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
Mario Gallavotti (Italy), member
Theo Van Seggelen (Netherlands), member
on a matter between the club
K,
and the club
C,
and the club
N,
as intervening party
I.
regarding solidarity contribution related to the
transfer of the player D
Facts of the case
1.
The M player, D (hereinafter: the player), was born on 17 April 1982. According to
the player passport issued by the M Football Federation and provided to FIFA at the
beginning of the present procedure, the player was registered as an amateur with
the M club, K from 1 October 1995 until 31 July 2004. During the relevant period of
time, still according to the M Football Federation, the sporting season in M ran
from “1 October to 31 July” of the following year.
2.
On 27 August 2007, the player was transferred from the F club, N, to the X club, C.
After that, on 2 September 2007, the player was transferred, on a loan basis, to
another X club, A. In this respect, and according to a written statement provided by
the X Football Association at the end of the investigation-phase, the player was not
officially registered with C since he was immediately transferred, on a loan basis, to
A upon receipt of the International Transfer Certificate (ITC). Consequently, the
player was ‘officially’ registered with A on 2 September 2007 although it had been
C which had concluded the transfer agreement with N and which had paid the
latter the relevant transfer compensation.
3.
On 2 November 2007, K lodged a claim with FIFA against A, alleging that it was
entitled to a solidarity contribution for the period covering the entire sporting
seasons of 1993 until 2004 and representing 90% of the 5% of the total amount of
solidarity contribution, i.e. EUR 112,500. K based its claim on the information it had
read in the press according to which the player had been apparently transferred to
A for the amount of EUR 2,500,000. Based on the aforementioned information, K
had mistakenly thought that the player had been transferred from N directly to A,
whereas he had first been transferred to C to be subsequently transferred to A.
Before lodging its claim with FIFA, K explained that it had sent a number of faxes
to A, with copy to the X Football Association, requesting its share of solidarity
contribution without, however, receiving any answer from A nor from the X
Football Association.
4.
On 29 October 2008, the X Football Association, responding on behalf of its
affiliate A, explained that although the player had been registered with A on 2
September 2007, he was originally transferred from N to C apparently on 27 August
2007 for the amount of EUR 2,500,000. The X Football Association submitted in this
respect a copy of the transfer agreement concluded between N and C as well as a
copy of the ITC dated 29 August 2007. It consequently considered that any claim for
solidarity contribution K might want to lodge with regard to the transfer of the
player should be addressed to C and not to A.
Having been informed about the aforementioned, K amended its claim in
conformity with the information provided by the A Football Association and
requested FIFA to involve C in the proceedings since K claimed that, having not
received any response neither from A nor the X Football Association, it had not
been able to know that the player had first been transferred to C to be
subsequently transferred to A.
5.
6.
Consequently, K requested from C the amount of EUR 112,500 as solidarity
contribution.
7.
The X Football Association, on behalf of its affiliate C, submitted, on 29 January
2009, its reaction to the amended claim of K and asserted that since they had not
received any information with regard to the player’s previous football career, the
percentage due as solidarity contribution had not been paid to any club. In this
respect, C confirmed that it would be willing to pay the relevant amount of
solidarity contribution to K as long as the said amount is calculated by FIFA’s
competent decision-making body and furthermore expressly requested FIFA to
order N to reimburse the same proportion of the 5% which C would be asked to
pay to K, since C had not deducted the relevant amount of solidarity contribution
but paid 100% of the contractually agreed transfer compensation.
8.
After having received from FIFA the entire documentation contained in the file, N
submitted, on 24 February 2009, its comments in response to the position of C and
claimed that since the transfer agreement concluded with C for the transfer of the
player did not contain any stipulation pertaining to the distribution of the
solidarity contribution by N itself, it could therefore not be inferred that the latter
would be in any way responsible or liable to reimburse any amount to the former.
Consequently, N deemed that the relevant amount of solidarity contribution was
not included in the transfer amount of EUR 2,500,000 and asked FIFA to reject the
plea of C for reimbursement.
9.
Finally, on 5 May 2009, C informed FIFA that it considered that N should reimburse
the relevant amount of solidarity contribution according to the relevant
jurisprudence since the former had paid the entire transfer compensation to the
latter without deducting any amount for the solidarity contribution.
10.
Having learned from different sources that the player had also been registered for
an E club between the time he played for K and before joining N, FIFA asked the E
Football Federation to confirm whether the player had been registered for one of
its affiliated clubs. In reply, the E Football Federation informed FIFA, on 25 June
2009, that the player had indeed been registered with its affiliated club, U, from 23
December 2003 until 3 January 2005.
In response to the newly submitted information, K simply acknowledged that the
player had been registered with it until he went to U on 23 December 2003.
11.
12.
Asked by FIFA to provide their comments on the information received from the E
Football Federation, neither C nor N submitted any further comments in this
regard.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the present matter. In this respect, it noted that the
original claim at the basis of the present case was submitted to FIFA on 2 November
2007. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2005; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of
the 2008 edition of the Procedural Rules in combination with 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
connection with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber shall adjudicate, in the
presence of at least three members including the chairman, on disputes relating to
solidarity mechanism between clubs belonging to different associations.
3.
As a consequence, the Dispute Resolution Chamber confirmed that it was the
competent body to decide on the present litigation involving a M, a X and a F club
and concerning the distribution of the solidarity contribution in connection with
the international transfer of the professional M player D.
4.
Furthermore, and taking into consideration that the player was transferred to his
new club, C, on or about 27 August 2007 and that the present claim was lodged
with FIFA on 2 November 2007, 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) the previous version of the regulations, the FIFA
Regulations for the Status and Transfer of Players (edition 2005; hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and started by
acknowledging the above-mentioned facts as well as the documentation submitted
by the parties.
6.
To begin with, the Chamber sought to underline that although K had at first
mistakenly addressed its claim against A, it remained undisputed that C had
concluded the transfer agreement with N for the transfer of the player in question
and had paid the relevant amount of transfer compensation. As a matter of fact, C
had itself stated in its submission that it was willing to pay the relevant amount of
solidarity contribution to K as long as the said amount was calculated by FIFA’s
competent decision-making body.
7.
Furthermore, the members of the Chamber acknowledged that according to the
transfer agreement provided by the X Football Association, the player was
transferred from N to C for a total amount of EUR 2,500,000, payable in two equal
instalments, the first one on the day of the signature of the agreement and the
second one on 1 June 2008.
8.
The Chamber further noted that C had argued that since it had not received any
information with regard to the player’s previous football career, it had paid the
entire amount of transfer compensation to N, without retaining the percentage
due as solidarity contribution. In other words, C had omitted to deduct 5% of the
relevant transfer compensation relating to the solidarity mechanism. Moreover, the
Chamber noted that C had asked FIFA to calculate the relevant amount of solidarity
contribution and had further deemed that such amount should be reimbursed by N
according to the relevant jurisprudence.
9.
In turn, the DRC underlined that N had, in response to the request for
reimbursement made by C, sought to argue that it had no obligation whatsoever to
reimburse such an amount since the transfer agreement in question did not contain
any stipulation in this regard and that consequently, the relevant amount of
solidarity contribution could not have been included in the transfer amount of EUR
2,500,000.
10.
In continuation, the members of the Chamber went on to recall that according to
art. 21 of the Regulations in connection with Annex 5 of the Regulations, if a
professional player 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 be 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 clubs between the sporting seasons of his 12th and 23rd birthday.
11.
In view of the above-mentioned provisions, the Chamber underlined that, in the
matter at hand, a proportion of 5% of the compensation paid by the player’s new
club, in casu C, to his former club, in casu N, ought to have been deducted (cf. art. 1
of Annex 5 of the Regulations) from the total amount of the transfer compensation
paid by the former in order to be distributed as a solidarity contribution to the
club(s) involved in the training and education of the player concerned.
12.
In addition to the above-mentioned considerations, the Chamber underlined that in
view of the clear wording of the aforementioned applicable provisions, it was
evidently not left at the discretion of the parties to change such an explicit rule.
Therefore, the parties to a transfer agreement have to abide by the Regulations in
terms of the party responsible for the distribution of the solidarity contribution to
the clubs having trained and educated the player concerned.
13.
The Chamber also held that this conclusion fully reflected 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 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.
14.
In view of all the above and in light of the aforementioned well-established
jurisprudence, the members of the Dispute Resolution Chamber concluded that it
was the responsibility of the new club, i.e. C, to pay the relevant proportion of the
solidarity contribution to K, which was involved in the player’s training.
Furthermore, and bearing in mind that the 5% solidarity contribution has to be
deducted from the amount payable to the player’s former club, N would have to
refund the same proportion to C.
15.
After having confirmed the above-mentioned obligations incumbent on the parties,
the Chamber went on to establish the proper calculation of the relevant proportion
of solidarity contribution due to K.
16.
To that end, the Chamber referred to art. 1 of the Annex 5 of the Regulations
which provides the figures for the distribution of the solidarity contribution,
according to the period of time the player was effectively trained by a specific club
and taking into consideration the age of the player at the time he was being
trained and educated by the club(s) concerned.
17.
In this respect, the Chamber drew its attention to the fact that although the M
Football Federation had provided a copy of the player passport that stated that the
player in question had been registered with its affiliate, K, from 1 October 1995
until 31 July 2004, it had subsequently been established that the player was
registered with U, a club affiliated to the E Football Federation, from 23 December
2003 until 3 January 2005. Consequently, and in view of the fact that K had, after
being informed of the above-mentioned further registration with U acknowledged
that the player had only been registered with it until he had joined the relevant E
club (i.e. on 23 December 2003), the Chamber concluded that the relevant dates to
be taken into consideration for the calculation of the amount of solidarity
contribution had thus to be from 1 October 1995 until 22 December 2003.
18.
In light of the above, the Chamber decided that the period of training and
education to be taken into account corresponds to a total of eight years and three
months. Consequently, the Chamber established that, in accordance with the
breakdown provided for in art. 1 of Annex 5 of the Regulations, K is basically
entitled to receive 72,5% of 5% of the transfer compensation paid by C to N in
relation to the transfer of the player D.
19.
Based on all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that C must pay to K the amount of EUR 90,625
corresponding to 72,5% of the 5% of the total amount of transfer compensation of
EUR 2,500,000, thus that the claim of K is partially accepted, and that N has to
reimburse the amount of EUR 90,625 to C.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of K is partially accepted.
2.
C has to pay the amount of EUR 90,625 to K within 30 days as from the date of
notification of this decision.
3.
Any further claims lodged by K are rejected.
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, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
5.
K is directed to inform C immediately and directly of the account number to which
the remittance is to be made and to notify the Dispute Resolution Chamber of
every payment received.
6.
N has to reimburse the amount of EUR 90,625 to C within 30 days as from the
date of notification of this decision.
7.
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, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
8.
C is directed to inform N immediately and directly of the account number to which
the remittance is to be made and to notify the Dispute Resolution Chamber of
every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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