Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 September 2011,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Joaquim Evangelista (Portugal), member
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
on the claim presented by the club,
A,
as “Claimant”
against the club,
S,
as “Respondent”
regarding solidarity contribution in connection with the international transfer
of the player C
I.
Facts of the case
1.
The Football Federation B (hereinafter: “FFB”) confirmed that the player C
(hereinafter: “player”), born on 9 August 1985, was registered with its affiliated
club, Club A (hereinafter: “Club A” or “Claimant”) as from 23 February 2005 until 14
March 2005, as from 3 May 2005 until 9 August 2005 and as from 1 January 2006
until 14 August 2006.
2.
The Football Federation B also confirmed that in country B, the sporting season
follows the calendar year.
3.
On 18 February 2010, Club A contacted FIFA claiming its proportion of the solidarity
contribution in connection with the transfer of the player concerned from the club
Club M (hereinafter “Club M”) to the club S (hereinafter “Club S” or “Respondent”).
4.
Club A is not in a position to establish the amount of the player’s transfer nor the
date on which said transfer occurred. It therefore only stated that the transfer took
place in 2008 and that it claims 13,18% of the 5% to be deducted from the
unknown transfer amount.
5.
In spite of having been invited to present its position with regard to the claim
lodged against it, as well as to submit a copy of the transfer agreement at stake, no
reply was ever received from Club S.
6.
The Football Association of S (hereinafter: “FAS”), for its part, confirmed that the
player was registered with Club S on 31 August 2008.
7.
By means of a decision dated 13 October 2010, the Dispute Resolution Chamber
sentenced Club S to submit a copy of the transfer agreement it was reported to
have signed with Club M for the player’s transfer.
8.
From the contents of the agreement submitted accordingly by Club S, it can be seen
that said agreement, dated 7 August 2008, was concluded between the player, Club
S and a company referred to as “Company X ” (hereinafter: Company X ) and
apparently consists, inter alia, in a loan of the player’s federative rights to Club S by
company X for one sportive season plus an option for the definitive transfer of the
player’s federative rights to the Respondent.
9.
According to the agreement, Club S had to pay the amount of EUR 200,000 to
company X for the recruitment of the player for the sole sporting season 2008/09.
10.
In this context, and for the sake of completeness, Club S was asked to clarify as to
whether any other amount was paid to company X or to any club for the transfer of
said player from Club M to Club S.
11.
Club S replied that no other amount was ever paid to company X or to any club
with regard to the player’s transfer.
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II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
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 18 February
2010. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber, edition 2008 (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 in combination
with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition
2010), the Dispute Resolution Chamber is competent to decide on the present
litigation concerning solidarity contribution between clubs belonging to different
associations.
3.
Furthermore, and taking into consideration that the player was registered with
the Respondent on 31 August 2008, 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 (editions 2008, 2009 and 2010), the 2008 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 Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the above-mentioned facts of the case
and the documentation on the file.
5.
First of all, the Chamber recalled that the player, born 9 August 1985, was
registered with the Claimant as from 23 February 2005 until 14 March 2005, as
from 3 May 2005 until 9 August 2005 and as from 1 January 2006 until 14 August
2006.
6.
In continuation, the Chamber took note that the Claimant asserted that it was
entitled to receive solidarity contribution from the Respondent as a result of the
player’s transfer from Club M to the Respondent. More particularly, the Chamber
duly noted that the Claimant is requesting to receive the amount corresponding
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to 13,18% of the 5% to be deducted from the unknown transfer amount paid in
connection with the player’s transfer to the Respondent.
7.
The Chamber also noted that within the frame of the investigation on the case,
which led to the first decision passed by the Dispute Resolution Chamber on 13
October 2010, and despite having been asked to do so by the FIFA Administration,
the Respondent had never taken position as to the substance of the present
dispute. Therefore, the Chamber concluded that, in this way, the Respondent
renounced to its right to defence and accepted the allegations of the other party.
8.
At this stage, the Chamber deemed relevant to recall that on the basis of art. 21 in
combination with Annexe 5 of the Regulations, in particular its art. 1, 5% of any
compensation paid in relation with the movement of a football player has to 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 player’s training and
education over the years.
9.
Following its analysis of the situation at hand, the Chamber could verify that
after having been sentenced by a decision from the Dispute Resolution Chamber
dated 13 October 2010 to submit a copy of the transfer agreement it has signed
for the transfer of the player of the reference, the Respondent had proceeded
accordingly.
10. Yet, from the contents of the agreement at stake, the Chamber remarked that said
agreement was only signed by the player, the Respondent and the company called
company X.
11. Also, the members noted that said agreement stipulates that the Respondent had to
pay EUR 200,000 to company X so as to trigger the player’s transfer to it for the
sporting season 2008/09.
12. Furthermore, the Chamber deemed useful to recall that upon specific requests of the
FIFA Administration following the receipt of the copy of the above-mentioned
transfer agreement, the Respondent had indicated that it had not paid any other
sum apart from the amount of EUR 200,000 it paid to company X in relation with the
player’s transfer, be it to company X or to any club.
13. In view of the above, the Chamber concluded that apparently, no amount had been
paid by the Respondent to the player’s former club, i.e. the Club M, and that the sole
payment which took place in relation with the player’s transfer was remitted by the
Respondent to company X.
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14. However, the Chamber highlighted that in order to avoid a practice that could lead
to circumvent the obligation to pay solidarity contribution, i.e. by remitting sums to
companies or any third party instead of football clubs, and in view of the fact that
said payment of EUR 200,000 by the Respondent to company X was undoubtingly
made in order to implement the player’s transfer to the Respondent, the members of
the Chamber unanimously came to the conclusion that such payment was subject to
the payment of solidarity contribution to the player’s club(s) who contributed to his
education and training. In this regard, the Chamber also referred to the contents of
art. 1 of Annexe 5 of the Regulations, which provides that the solidarity contribution
consists in the deduction of 5% of any compensation (emphasis added) paid in the
context of the transfer of a player.
15. On account of the above considerations, the Chamber decided that the Respondent
is liable to pay solidarity contribution to the Claimant.
16. In view of the above, the Chamber wished to refer to the Regulations, in particular
the contents of art. 1 of Annexe 5, which stipulates that the solidarity contribution
shall be deducted from the total amount of compensation paid and distributed
prorata temporis by the new club to the club(s) involved in the player’s training and
education over the years.
17. In this respect, the Chamber reverted to the information contained in the file and
took due note that the Football Federation B confirmed that the player C, born on 9
August 1985, was registered with the Claimant as from 23 February 2005 until 14
March 2005, as from 3 May 2005 until 9 August 2005 and as from 1 January 2006
until 14 August 2006, hence representing three months during the football season of
his twentieth birthday and seven months during the football season of his twentyfirst birthday.
18. In addition, it also noted that according to the Football Federation B, the football
season in country B follows the calendar year.
19. On account of all the above, the Dispute Resolution Chamber decided that the
Respondent is liable to pay to the Claimant solidarity contribution in the amount of
EUR 833.
20. What is more, the Chamber wished to point out that the transaction/agreement at
stake, i.e. the payment of a sum by the Respondent to the company X so as to
organise a football player’s transfer, might represent a breach by the Respondent of
the contents of art. 18bis par. 1 of the Regulations, which stipulates that no club shall
enter into a contract which enables any other party to that contract or any third
party to acquire the ability to influence in employment and transfer-related matters
its independence, its policies or the performance of its teams.
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21. In this regard, and for the sake of completeness, the Chamber wished to recall that
art. 18bis par. 2 of the Regulations stipulates that the FIFA Disciplinary Committee
may impose disciplinary measures on clubs that do not observe the obligations set
out in par. 1 of article art. 18bis of the Regulations.
22. In view of the above, and considering the situation at stake, the Dispute Resolution
Chamber considered relevant to forward the case at hand to the FIFA Disciplinary
Committee for its consideration.
23. The Dispute Resolution Chamber concluded his deliberations by rejecting any further
claim of the Claimant.
*****
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club S, has to pay to the Claimant the amount of
EUR 833 within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated time
limit by the Respondent, interest at the rate of 5% per year will apply as of expiry
of the stipulated time limit and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The costs of the proceedings in the amount of CHF 2,000 are to be paid by the
Respondent to FIFA within 30 days of notification of the present decision to the
following bank account with reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
The Claimant is directed to inform the Respondent 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.
*****
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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
Enclosed: CAS directives
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