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
V,
and the club
S,
and the club
C,
as Intervening Party
regarding a dispute for solidarity contribution in connection with
the transfer of the player F
I.
Facts of the case
1.
The B player, F (hereinafter also referred to as: the player), was born on 4
February 1981.
2.
According to the B Football Federation, the player was registered with its
affiliated club V (hereinafter also referred to as: V) as from 20 June 1997 until 1
September 1999, as from 16 December 1999 until 30 September 2000 and as
from 18 October 2000 until 15 January 2004.
3.
The season in B follows the calendar year.
4.
The player was registered with the P club, S (hereinafter also referred to as: S),
on 1 September 2006.
5.
On 11 June 2007, V contacted FIFA claiming its proportion of the solidarity
contribution in connection with the transfer, on a loan basis, of the player from
the B club, C (hereinafter also referred to as: C), to S for the season 2006-2007. V
claimed that it was entitled to receive 60.34% of 5% of the total transfer
compensation, along with default interest of 5% p.a. as of the day the payment
fell due.
6.
In reply to V’s claim, S informed FIFA that it had paid to the player’s former
club, C, 100% of the transfer compensation. S allegedly tried to contact C
repeatedly in order to recover 5% of this amount. C would have finally agreed
to pay all amounts due as solidarity contribution in connection with the transfer
in question directly to the training clubs of the player. Therefore, S asked V to
address itself directly to C for the payment of the solidarity contribution.
7.
On 23 November 2007, V contacted FIFA in order to request a formal decision to
be passed in the matter at hand due to the fact that, contrary to S’s statements,
C had not proceeded to the payment of the solidarity contribution.
8.
On 12 February 2008, S asserted that it was open to an amicable settlement
with the clubs involved in the present proceedings. However, it asked the
Dispute Resolution Chamber to condemn C to reimburse the 5% of the total
transfer compensation prior to ordering S to pay the solidarity contribution due
to V. S also asked that it not be ordered to pay default interest to V, as it had
not been in possession of the relevant amount to be distributed as solidarity
contribution.
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9.
In a statement dated 1 October 2008, C, after having been contacted by FIFA
and informed of the Dispute Resolution Chamber’s relevant jurisprudence in
similar cases, as well as having been provided with the entire correspondence
exchanged in the case at hand, indicated that prior to any payment it requested
the determination of the exact amount claimed by V as well as a copy of the
players’ passport issued by the B Football Federation.
10.
On 22 October 2008, S informed FIFA that it had still not received any
reimbursement from C. S reiterated its request that C be ordered to reimburse
the 5% of the total transfer compensation in question prior to any payment
being made by S to V.
11.
On 12 January 2009, S provided FIFA with a copy of the relevant loan
agreement which it had concluded with C. According to this agreement, the
total amount of transfer compensation for the temporary transfer of the player
was of EUR 500,000. In this respect, S was to pay EUR 487,500 to C and EUR
12,500 to the entity Gestifute “as agency commission, such payment to be made
in the name and on account of C”.
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 11 June
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 the solidarity mechanism between clubs belonging to different associations.
As a consequence, the Dispute Resolution Chamber confirmed that it was the
competent body to decide on the present litigation concerning the distribution
of the solidarity contribution in connection with the international transfer of
the professional B player, F, from the B club, C, to the P club, S.
3.
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4.
Furthermore, and taking into consideration that the player was registered with
his new club on 1 September 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; hereinafter: the Regulations), and
considering that the present claim was lodged on 11 June 2007, the 2005
edition of the regulations is applicable to the matter at hand as to the
substance.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber first
of all recapitulated that, pursuant to art. 21 of the Regulations and art. 1 par. 1
of Annex 5 of the Regulations, if a professional is transferred before the expiry
of his contract, 5% of any compensation, with the exception of training
compensation, paid to his former club shall be deducted from the total amount
of this compensation and distributed by the new club as a solidarity
contribution to the club(s) involved in his training and education over the years.
Furthermore, the Chamber recalled that the solidarity contribution will reflect
the number of years (calculated on a pro rata basis if less than one year) he was
registered with the relevant club(s) between the seasons of his 12th and 23rd
birthdays.
6.
In continuation, the members of the Chamber acknowledged that, on the one
hand, V claimed solidarity contribution for the training of the player who,
according to the player passport issued by the B Football Federation, was
registered with V as from 20 June 1997 until 1 September 1999, as from 16
December 1999 until 30 September 2000 and as from 18 October 2000 until 15
January 2004. V thus claimed 60,34% of 5% of the total transfer compensation,
along with default interest of 5% p.a. as of the day the alleged payment fell
due.
7.
Equally, the Chamber duly noted that S (the player’s new club) asserted having
paid the entire amount of EUR 500,000 agreed upon as transfer compensation
to C (the player’s former club), in the amount of EUR 487,500, and to the entity
Gestifute, “as agency commission” in the amount of EUR 12,500, on behalf of C,
respectively. In other words, S omitted to deduct 5% of the relevant transfer
compensation relating to the solidarity mechanism due to the player’s training
clubs. Therefore, S was of the opinion that V should address itself directly to C
for the payment of the solidarity contribution. Furthermore, S expressed the
opinion that it should not pay default interest to V, since it was not in
possession of the relevant amount to be distributed as solidarity contribution. In
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addition, S declared, in a subsequent position, that it would not proceed to any
payment to V until it had received the relevant reimbursement from C.
8.
Finally, the Chamber noted that C had requested, prior to proceeding to any
payment in connection to solidarity contribution, to receive a copy of the player
passport issued by the B Football Federation.
9.
In view 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. 2 par. 1 of
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.
10.
The said jurisprudence is based on the fact that there is no contractual link
between the training club claiming for solidarity contribution (in casu, V) and
the player’s former club (in casu, C). Therefore, the relevant claim against the
former club would not find a contractual basis. Yet, the Regulations clearly
establish that the distribution of the solidarity contribution is incumbent on the
player’s new club. As a consequence, the Regulations provide for a legal basis
for the claim of the training club against the new club, yet not for a claim
against the player’s former club. Finally, the player’s new club and the previous
club are bound by a contractual agreement, which needs to be respected.
11.
On account of the above, and taking into consideration art. 21 of the
Regulations and art. 1 of Annex 5 of the Regulations as well as its wellestablished jurisprudence, the Dispute Resolution Chamber decided that S was
indeed liable to pay solidarity contribution to V for the training and education
of the player F during his period of registration with the latter B club. Indeed, a
proportion of 5% of the compensation paid by the player’s new club, i.e. S, to
his former club, i.e. C, ought to have been deducted from the total amount of
the transfer compensation in order to be distributed as solidarity contribution
to the club(s) involved in the training and education of the player concerned.
Furthermore, and bearing in mind that the 5% solidarity contribution has to be
deducted from the amount payable to the player’s former club, C would have to
refund the same proportion to S. In this respect, the Chamber was eager to
emphasize that C’s argument that it would not proceed to the relevant
reimbursement until it was in possession of the player passport issued by the B
Football Federation could clearly not serve as an exemption from its obligation
to reimburse S. In particular, the Chamber stressed that, in any case, C had been
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duly provided with the entire correspondence exchanged in the matter by FIFA,
and thus, had undoubtedly received a copy of the player passport issued by the
B Football Federation.
12.
In continuation, having confirmed the above-mentioned obligations incumbent
on S as well as on C, the Chamber went on to establish the proper calculation of
the relevant proportion of solidarity contribution due to V.
13.
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.
14.
In this respect, the Chamber drew particular attention to the fact that according
to the player passport issued by the B Football Federation, the player in
question had been registered with V as from 20 June 1997 until 1 September
1999, as from 16 December 1999 until 30 September 2000 and as from 18
October 2000 until 15 January 2004.
15.
Consequently, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of Annex 5 of the Regulations, V is entitled to receive,
pursuant to its claim, the requested 60,34% of 5% of the transfer compensation
paid by S to C in relation to the transfer of the player F.
16.
In continuation, the Chamber noted that according to the transfer agreement
remitted to the file the player F was transferred for the amount of EUR 500,000.
17.
Based on all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the claim of V is accepted and that S must pay to V
the amount of EUR 15,085 corresponding to 60,34% of the 5% of the total
amount of transfer compensation of EUR 500,000, as well as 5% interest per
year on the said amount as from 2 October 2006 (i.e. the due date of the
respective payment by virtue of art. 2 par. 1 of Annex 5 of the Regulations), and
that C has to reimburse the amount of EUR 15,085, to S. In this respect, the
Chamber was eager to underline that S’s argument that it should not pay
default interest had to be rejected, as the said club deliberately refused to
proceed to the spontaneous payment of the solidarity contribution due to V in
accordance with art. 21 of the Regulations and art. 1 of Annex 5 of the
Regulations.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the B club, V, is accepted.
2.
The P club, S, has to pay to V the amount of EUR 15,085, as well as 5 % interest
per year on the said amount as from 2 October 2006 until the date of effective
payment, within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee so that the necessary disciplinary sanctions may be imposed.
4.
V is directed to inform S 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.
5.
The Intervening Party, C, has to reimburse the amount of EUR 15,085 to S
within 30 days as from the date of notification of this decision.
6.
If the aforementioned sum is not paid by C 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.
7.
S is directed to inform the Intervening Party, 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.
*****
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
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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
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