Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club
A, Y,
as Claimant
against the club
B, Y
as Respondent
regarding a solidarity mechanism dispute
in connection with the transfer of the player C.
I.
Facts of the case
1.
According to a written statement of the football association of the country X the
player C, born on 14 March 1984, was registered for the club A, the Claimant, from 22
March 1995 until 25 February 2003.
2.
On 13 February 2006, the player was transferred from the X club D to the club B of
the country Y, the Respondent, with transfer compensation of USD 1,350,000 being
paid. According to the relevant contract, a company named M was to pay the transfer
compensation to the club D. The contract also indicated that M was responsible for
paying all training compensation.
3.
On 1 March 2006, the Claimant contacted FIFA demanding from the Respondent the
relevant payment of solidarity contribution in connection with the transfer of the
player in question. In particular, the Claimant requested 3.5% of a transfer
compensation that it said was USD 3,000,000.
4.
On 14 March 2006, the Respondent declared that the payment of the solidarity
contribution was the responsibility of the party that had bought the “rights” to the
player. On 14 June 2006, the Respondent added that it was up to M to pay the
solidarity contribution.
5.
On 16 April 2007, D (the former club of the player) informed FIFA that, in its opinion,
the Respondent as the player’s new club was responsible for paying the solidarity
contribution.
6.
Upon FIFA’s request, the Respondent informed FIFA that the above-mentioned
company M possesses a part of the “rights” for the player C. Furthermore, the
Respondent stated that it was not its idea to include the said company into the
transfer contract.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 1 March 2006, as a
consequence the Chamber concluded that the revised Rules Governing Procedures
(edition 2005) on matters pending before the decision making bodies of FIFA are
applicable on the matter at hand.
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2.
With regard to the competence of the Chamber, art. 3 par. 1 of the above-mentioned
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the
light of articles 22 to 24 of the current version of the Regulations for the Status and
Transfer of Players (edition 2005). In accordance with art. 24 par. 1 in connection with
art. 22 (d) of the aforementioned Regulations, the Dispute Resolution Chamber shall
adjudicate on disputes between two clubs belonging to different Associations related
to solidarity mechanism.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation concerning the distribution of the solidarity contribution
claimed by the Claimant in connection with the transfer of the professional C during
the course of a contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1 and 2
of the Regulations for the Status and Transfer of Players (edition 2005) in the
modified version in accordance with the FIFA circular no. 995 dated 23 September
2005. Furthermore, it acknowledged that the professional had been registered for his
new club in February 2006. Equally the Chamber took note that the claim was lodged
at FIFA on 1 March 2006. In view of the aforementioned, the Chamber concluded that
the current FIFA Regulations for the Status and Transfer of Players (edition 2005,
hereafter: the Regulations) are applicable on the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging that, as established in the art. 21 and annex 5 of
the Regulations, the new club of the player is to distribute 5% of any compensation
paid to the previous club to the club(s) involved in the training and education of the
player in proportion to the number of years the player has been registered with the
relevant clubs between the sporting seasons of his 12th and 23rd birthdays.
6.
In the present case, the Chamber outlined that the entire period to be taken into
consideration with regard to the solidarity contribution would run from the sporting
season 1996, i.e. the sporting season of the player’s 12th birthday and the sporting
season 2003, i.e. the sporting season of the player’s 19th birthday.
7.
Subsequently, the Chamber duly noted that, on the one hand, the Claimant asserts
being entitled to receive 3.5% of USD 3,000,000, i.e. USD 105,000, as solidarity
contribution for the transfer of the player to the Respondent.
8.
On the other hand, the Chamber observed that the Respondent is convinced that it
was the responsibility of the company M, which allegedly had bought parts of “the
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rights” to the player, to pay the solidarity contribution and that it was not its wish to
include the said company into the transfer contract.
9.
After examining par. 3 of clause II) of the transfer agreement concluded between D, B
and the company M on 13 February 2006, the Chamber considered that the relevant
clause stipulated, in contradiction to art. 21 and annex 5 of the Regulations, that a
third party assumed to pay the 5% costs for the training and education of the player
to the player’s training clubs.
10.
On account of the above, the Chamber referred to its well-established jurisprudence
applied in similar cases, in accordance with which the player’s new club is ordered to
remit the relevant proportion(s) of the 5% solidarity contribution to the club(s)
involved in the player’s training in strict application of art. 21 and annex 5 of the
Regulations. At the same time, the player’s former club is ordered to reimburse the
same proportion(s) of the 5% of the compensation that it received from the player’s
new club.
11.
As a result and in application of the said jurisprudence, the Dispute Resolution
Chamber decided that the argument of the Respondent could not be taken into
consideration and thus has to be rejected.
12.
In addition to the above-mentioned decision, the Chamber deemed it important to
make it clear that in accordance with the ratio legis of the above-mentioned
provisions, the said jurisprudence applies independently of the fact that a third party,
in casu the company M, assumed the obligation to pay the 5% solidarity contribution
to the player’s training club(s).
13.
In this context, the Chamber recalled that in accordance with art. 22 to 24 of the
Regulations in connection with art. 6 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, FIFA is not competent
to decide on claims derived from contracts concluded between a club and a company.
Consequently, the Chamber decided to refer the Respondent to the competent
national authorities in order to obtain a binding decision regarding potential claims
derived from the said contract against the company.
14.
For the sake of good order and on a side note, the Chamber remarked that the
concept of “rights” or “federative rights” to players does not exist anymore. It was
replaced by the principle of maintenance of contractual stability between the
contracting parties, i.e. professional players and clubs, comprising, in particular, that
compensation for unilateral breach of contract without just cause is to be paid by the
party in breach of contract in favour of the counterparty (cf. Chapter IV of the
Regulations). Consequently, the Chamber concluded that such an agreement on
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“federative rights” is null and void and, thus, does would not prejudice the Claimant’s
entitlement to solidarity contribution.
15.
On account of the above considerations, the Chamber resumed that all the
Respondent’s arguments have to be rejected.
16.
The Chamber then proceeded to the calculation of the relevant solidarity
contribution. In this respect, the Chamber referred to art. 1 of annex 5 of the
Regulations, which provides the figures for the distribution of the solidarity
contribution, according to the time the player was effectively trained by the clubs
involved.
17.
In the present case, the Chamber outlined that according to the confirmation of the Y
football association the period to be taken into consideration (period of registration
of the player with the Claimant) went from the sporting season of the player’s 12th
birthday, i.e. the sporting season of 1996 until 25 February 2003, i.e. during the
sporting season of the player’s 19th birthday. In this respect, the Chamber concluded
that the period of effective training to be taken into account corresponds to seven
sporting seasons and two months.
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Therefore, the Chamber established that, in accordance with the breakdown provided
for in art. 1 of annex 5 of the Regulations, the Claimant is entitled to receive 51. 6 %
of the 5% of the compensation paid in relation to the transfer of the player C from
the club D to the Respondent.
19.
The Chamber noted that according to the transfer contract remitted to the file the
player in question was transferred for the amount of USD 1,350,000.
20.
Based on all of the above, the Dispute Resolution Chamber decided that the
Respondent must pay to the Claimant 51. 6 % of the 5% of the transfer compensation
paid in relation to the transfer of the player C, i.e. USD 34,875.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay the amount of USD 34,875 to the Claimant within 30
days as from the date of notification of this decision.
3.
All other claims of A are rejected.
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4.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
5.
The Claimant is directed to inform the Respondent directly and immediately of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
6.
According to art. 61 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the
CAS, a copy of which we enclose hereto. Within another 10 days following the expiry
of the time limit for filing the statement of appeal, the appellant shall file a brief
stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point
4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
__________________________________
Jérôme Valcke
General Secretary
Encl.
CAS directives
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