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 a matter between the club
Z,
as Claimant
and the club
K,
as Respondent
regarding the solidarity contribution related to
the transfer of the player D
I.
Facts of the case
1.
The S Football Association confirmed that the S player, D (hereinafter: the player),
born on 19 November 1984, was registered with its affiliated club, Z (hereinafter:
the Claimant), from 4 August 2004 until 20 January 2006.
2.
The season in S runs from 1 August until 31 July of the following year.
3.
According to a written statement of the T Football Federation, the player was
registered with K (hereinafter: the Respondent) on 11 January 2008.
4.
On 20 February 2008, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player from the S
club, V, to the Respondent for the alleged amount of EUR 500,000.
5.
The Claimant requested the payment of an amount of EUR 4,250, allegedly
corresponding to 17 % of the proportion of 5% of the compensation paid in
connection with the relevant transfer of the player, plus 5% interest p.a.
6.
The Respondent rejected the claim of the Claimant. In this respect, it declared that
no transfer compensation had been paid to V in connection with the transfer of
the player. Furthermore, the T club argued that there was no information or
documents supporting the fact that the Claimant had contributed to the raising
and training of the player.
7.
Despite having been invited to do so on two occasions, the Claimant did not
provide FIFA with its position with regard to the comments made by the
Respondent.
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, the Chamber first referred to art. 21
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008). The present
matter was submitted to FIFA on 20 February 2008, thus before the
aforementioned Rules entered into force on 1 July 2008. Therefore, the Dispute
Resolution Chamber referred to art. 18 par. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(DRC) (hereinafter: Procedural Rules; edition 2005) and concluded that the 2005
edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2008). In accordance with art. 24 par. 1 and par. 2 in
connection with art. 22 lit. d) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes relating to solidarity mechanism.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 20 February
2008 and that the player was registered for the Respondent on 11 January 2008. In
view of the aforementioned, the Dispute Resolution Chamber concluded that that
the 2008 edition of the Regulations for 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 Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging that the parties have contradictory
positions as to whether the Respondent had paid any transfer compensation at all
to the player’s former club for the transfer of the player.
5.
In particular, the Chamber took due note that, on the one hand, the Claimant
affirmed that the player was transferred from the S club, V, to the Respondent for
the alleged amount of EUR 500,000. On the other hand, the Chamber took due
note that the Respondent vehemently contested the affirmation of the Claimant.
6.
In continuation, the Chamber deemed it important to emphasize that, as a general
rule, as established in the art. 21 of the Regulations in connection with Annexe 5
of the Regulations, if a professional moves during the course of a contract, 5% of
any compensation, not including training compensation, paid to his former club,
shall be deducted from the total amount of this compensation and distributed by
the new club as solidarity contribution 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 club(s) between the sporting seasons of his 12th and
23rd birthdays.
7.
Thus, considering the above the Chamber concluded that one of the essential
prerequisites in order to establish as to whether a club involved in the training and
education of a player is entitled to receive any solidarity contribution is that at
least a compensation, not including training compensation, had been paid for
the transfer of a player to his former club, otherwise the calculation becomes
unfeasible.
8.
In this context, the Chamber considered that the Claimant did not provide any
documentary evidence at all proving that any transfer compensation had been
paid to V, but merely stated an amount. In particular, the Chamber acknowledged
that the Claimant did not provide any documentary evidence although the
Respondent vehemently contested that any compensation at all had been paid for
the transfer of the player. Even more, the Chamber emphasized that the Claimant
never took position after receiving the Respondent’s answer, despite having been
asked to do so by the FIFA administration.
9.
Then, the Chamber recalled that according to the legal principle of the burden of
proof, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
10.
In view of the above, the Chamber unanimously concluded that any club claiming
its right to receive its alleged proportion of the solidarity contribution, from a club
that contests that any transfer compensation had been paid, shall carry the burden
of proof that such a transfer compensation had indeed been paid.
11.
As a result, and based on the documents at its disposal the Chamber decided to
reject the claim of the Claimant against the Respondent for solidarity contribution
in connection with the transfer of the player D.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Z, 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
________________________________
Markus Kattner
Deputy Secretary General
Encl.
CAS directives