Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 August 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Mario Gallavotti (Italy), member
on the claim presented by the club
P,
as Claimant
against the club
A,
as Respondent
I.
regarding the solidarity contribution in connection with
the transfer of the player M
Facts of the case
1.
The player M (hereinafter: the player) was born on 13 October 1980.
2.
The B Football Federation (B Football Federation) confirmed that the player was
registered with its affiliated club, P (hereinafter: the Claimant), as from 30 July
1994 until 30 June 1999 as an amateur and as from 30 July 1999 until 30 June 2001
as a professional.
3.
The season in the B Football Federation runs from 1 July until 30 June of the
following year.
4.
The U Football Association confirmed that the player was registered with the U
club, A (hereinafter: the Respondent), on 12 December 2005.
5.
On 11 February 2008, the Claimant contacted FIFA and claimed its proportion of
the solidarity contribution in connection with the transfer of the player from the B
club, P, to the Respondent, on 8 December 2005.
6.
On 9 June 2008, the Claimant provided FIFA with a copy of the transfer agreement
concluded between P and the Respondent, which indicates that the amount of the
transfer is of EUR 900,000, to be paid “in one payment within thirty days from the
arrival of the said player’s card to the U Football Association, and the completion
of the registration procedures” (article 5 of the transfer agreement).
7.
As a consequence, the Claimant claimed the payment of an amount of EUR 28,125,
i.e. 62,5% of the proportion of 5% of the transfer compensation as solidarity
contribution, plus 5% interest per year as from the due date of payment.
8.
In this respect, the Claimant asserted that the payment of solidarity contribution
fell due 30 days after the date of the payment of the transfer compensation, the
latter amount being allegedly due at the latest 30 days after the registration of
the player. Consequently, the Claimant affirmed that its claim was not timebarred, since it was lodged on 11 February 2008, i.e., allegedly, on the last possible
day to seek redress pursuant to art. 25 par. 5 of the Regulations on the Status and
Transfer of Players.
9.
In its reply to the claim, the Respondent confirmed that it had signed a transfer
agreement with P on 7 December 2005 for the sum of EUR 900,000. The
Respondent also indicated that, during the validity of his employment contract,
the player developed a serious disease which rendered him unable to perform his
obligations. The player and the Respondent eventually found a mutual agreement
for the termination of the employment relationship.
10.
Additionally, the Respondent stated that it did not understand why the Claimant
would be entitled to solidarity contribution, since the player was 25 years old, i.e.
more than 23 years old, when he was registered with the Respondent.
11.
Thus, the Respondent entirely rejected the claim of the Claimant.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 11 February 2008. Consequently, the 2005 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) are applicable to the
matter at hand (cf. art. 18 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. d) of the Regulations for the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to decide on
the present litigation with an international dimension concerning the distribution
of the solidarity contribution claimed by the Claimant in connection with the
transfer of the professional player, M, during the course of a contract.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 12 December 2006, the Chamber analysed which regulations should
be applicable as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2008), and also considering that the present claim was lodged
on 11 February 2008, the 2005 edition of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter. The members of the Chamber started by acknowledging that the Claimant
requested its proportion of the solidarity contribution in connection with the
transfer of the player from the B club, P, to the Respondent, on 8 December 2005.
Furthermore, the Chamber underlined that according to a statement of the U
Football Association, the player was registered with the Respondent on 12
December 2005. Finally, the members of the Chamber observed that the claim of
the Claimant was submitted to FIFA on 11 February 2008.
5.
Having stated the aforementioned, the Chamber proceeded to analyse whether it
could hear the present case, i.e. whether the claim of the Claimant could be timebarred in accordance with the rule set out under art. 25 par. 5 of the Regulations.
6.
In this respect, the members of the Chamber recalled that according to art. 25 par.
5 of the Regulations, the Dispute Resolution Chamber shall not hear any case
subject to these regulations if more than two years have elapsed since the event
giving rise to the dispute, and that the application of this time limit shall be
examined ex officio in each individual case.
7.
In continuation, the Chamber duly noted that the Claimant was of the opinion
that the present claim should not be viewed as time-barred. In this regard, the
Claimant asserted that the starting point of the application of the time limit
provided for in art. 25 par. 5 of the Regulations should be 30 days following the
payment of the transfer compensation. Thus, according to the Claimant, the
payment of the transfer compensation was to be made, according to art. 5 of the
relevant contract, within 30 days of the registration of the player, i.e. until 11
January 2006. Consequently, the Claimant asserted that the starting point of the
time period of two years stipulated in art. 25 par. 5 of the Regulations should be
30 days after such payment, i.e. until 10 February 2006 at the latest. In
continuation, the Claimant alleged that the expiry of the time limit should occur
two years after 10 February 2006, i.e. on 10 February 2008. However, the Claimant
added that the 10th of February 2008 being a Sunday, the time limit should be
extended to 11 February 2008. In view of all of the foregoing, the Claimant came
to the conclusion that it had lodged its claim on the last possible day to seek
redress in the present case, in accordance with the rule set out under art. 25 par. 5
of the Regulations.
8.
In view of the above, the Chamber deemed fundamental to underline that in
order to determine whether it could hear the present case, it should, first and
foremost, establish which is “the event giving rise to the dispute”, i.e. which is the
starting point of the time period of two years set out under art. 25 par. 5 of the
Regulations. In this respect, the Chamber referred to art. 2 par. 1 of Annex 5 of the
Regulations, which stipulates that “The new club shall pay the solidarity
contribution to the training club(s) (…) no later than 30 days after the player’s
registration or, in case of contingent payments, 30 days after the date of such
payments”.
9.
Reverting to the facts of the present case, the Chamber emphasized that according
to art. 5 of the transfer agreement signed between P and the Respondent, the
parties had agreed upon the payment of a transfer compensation of EUR 900,000
payable in one single payment.
10.
On account of the foregoing, and bearing in mind, in particular, that the transfer
compensation was paid in a lump sum, the Chamber unanimously decided that the
event giving rise to the dispute, regarding the payment of solidarity contribution
occurred 30 days after the player’s registration with the Respondent.
11.
Therefore, the members of the Chamber came to the firm conclusion that, in casu,
and, in accordance with art. 2 par. 1 of Annex 5 of the Regulations, the payment
of contribution fell due on 11 January 2006, i.e. 30 days after the registration of
the player within the U Football Association, and that this latter date was the
starting point of the time period of two years set out under art. 25 par. 5 of the
Regulations. Equally, the Chamber held that the time period of two years had
elapsed, in casu, on 11 January 2008.
12.
As a consequence, the Chamber concluded that more than two years had elapsed
between the event giving rise to the dispute, i.e. the due date of payment of the
solidarity contribution, which was on 11 January 2006, and the submission of the
present claim to FIFA by the Claimant on 11 February 2008, and therefore that the
claim of the Claimant for solidarity contribution cannot be heard by the Dispute
Resolution Chamber.
13.
In view of all of the above, the Dispute Resolution Chamber decided that the claim
of the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, P, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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
Secretary General
Encl. CAS directives