Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 September 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Michele Colucci (Italy), member
David Mayebi (Cameroon), member
John Didulica (Australia), member
Philippe Diallo (France), member
Paulo Rogerio Amoretty Souza (Brazil), member
Eissa M. Selah Al-Housaini (U.A.E.), member
Peter Friend (Australia), member
on the claim presented by
the club, X
as Claimant
against
the club, Y
as Respondent
with
the club, Z
as Intervening party
regarding the distribution of solidarity contribution in connection with the player, A
I.
Facts of the case
1.
The player, A, was born on 14 September 1979.
2.
A was registered as an amateur player with X from 25 March 1991 until 31 March 1995.
3.
In the summer registration period of 2003 the player was transferred from Z to Y.
4.
According to the corresponding transfer agreement signed between Z and Y on 27 July
2003, Y was obliged to pay to Z EUR 5,000,000 via the bank account indicated by the
latter.
5.
The player, A, having been registered with X from the age of 12 (on 14 September
1991) until the age of 15,5 (on 31 March 1995), X maintains being entitled to receive
from Y 30% of the 5% solidarity payment in accordance with the FIFA Regulations for
the Status and Transfer of Players (edition September 2001), i.e. the amount of EUR
75,000.
6.
A copy of the player’s passport outlining the player’s football career at X has been
presented by the Football Federation of X.
7.
Y asserts having paid 100% of the transfer amount to Z and points out that X should
turn to Z in order to collect the amount it claims.
8.
The FIFA administration suggested to the parties that Y distributes the relevant
proportion relating to the 5% solidarity contribution of the transfer compensation to
X and that Z reimburses to Y the same proportion relating to the 5% solidarity
contribution of the amount of compensation agreed upon with Y.
9.
The parties have not been able to settle the matter in accordance with FIFA’s
suggestion.
10. Z has intervened in this matter and explains that it does not consider itself obliged to
participate in the payment of solidarity contribution in connection with the transfer of
the player, A, to Y.
11. Furthermore, Z considers that the transfer amount agreed upon between the clubs
serves as the basis for the calculation of the relevant amount payable by the new club
and excludes the 5% relating to solidarity mechanism, unless the parties inserted a
clause in the agreement indicating that the 5% solidarity mechanism is included in the
transfer amount.
II.
Considerations of the Dispute Resolution Chamber
1.
The present dispute having been lodged in front of the Dispute Resolution Chamber
(hereinafter referred to as “DRC” or “Chamber”) in October 2004, the members of the
DRC firstly proceeded to confirm that the September 2001 edition of the FIFA
Regulations for the Status and Transfers of Players (hereinafter referred to as “the
Regulations”) applies to the case at hand.
2.
The DRC commenced its deliberations by referring to art. 25 of the Regulations,
according to which it falls within the purview of the Dispute Resolution Chamber to
decide upon disputes concerning the distribution of the solidarity contribution.
Consequently, the DRC established that it was the competent body to decide on the
present litigation concerning the solidarity contribution claimed by X.
3.
Once its competence was thus established, the DRC went on to deal with the substance
of the case. The members of the Chamber carefully studied the facts outlined above,
which show that the player, A, was transferred from Z to Y on a definitive basis in the
summer registration period of 2003.
4.
To this end, Z and Y signed a transfer agreement in accordance with which Y was
obliged to pay to Z a transfer compensation to the amount of EUR 5,000,000.
5.
At this point, the Chamber recalled that, as established in article 10 in conjunction
with article 11 of the Regulations governing the Application of the Regulations
(edition September 2001), the new club to which a player is transferred during the
course of an employment contract with his previous club is responsible for the
distribution of 5% of the compensation payable to the player’s former club to the
club(s) involved in the training and education of the player between the ages of 12
and 23.
6.
The Chamber took into account that the Respondent, i.e. the player’s new club,
rejects the claim put forward by X maintaining that X should turn to Z, i.e. the
player’s former club, in order to obtain its proportion of the 5% solidarity
contribution payment, given that Y remitted 100% of the transfer compensation to
Z.
7.
In this respect, the Chamber once more referred to paragraph 1 of the abovementioned article 11 of the Regulations governing the Application of the
Regulations (edition September 2001) which clearly states that the new club shall
pay the amount due as a solidarity contribution to the training clubs.
8.
In addition, the members of the Chamber stressed that FIFA circular letter nr. 826
dated 31 October 2002, which deals with the interpretation of the FIFA Regulations
for the Status and Transfer of Players (edition September 2001), elucidates that the
5% solidarity contribution is to be deducted from the amount payable to the
player’s former club.
9.
Furthermore, the deciding body recalled its well established jurisprudence, in
accordance with which, in cases like the one at hand, it was established that the
player’s new club is ordered to remit the 5 % solidarity contribution to the club(s)
involved in the player’s training in strict application of the said article 11 of the
Regulations governing the Application of the Regulations (edition September
2001). At the same time, the player’s new club may request the player’s former club
to reimburse 5 % of the compensation that it received from the player’s new club.
10. In light of all the above, the Chamber concluded that on the basis of its
jurisprudence and in particular of the strict application of article 11 of the
Regulations Governing the Application of the Regulations (edition September
2001) it is the responsibility of the new club, i.e. Y, to pay the relevant proportion
of the solidarity contribution to the club(s) involved in the player’s training, i.e. X.
11. In addition, taking into account all of the above and, in particular, the
aforementioned well-established jurisprudence of the Chamber, the members of
the Chamber deemed that the arguments put forward by the intervening party, Z,
cannot be accepted.
12. Therefore, Z, having unduly received the amount of money pertaining to solidarity
contribution, is to be held liable for the reimbursement to the Respondent of the
relevant proportion(s) of the solidarity contribution payable by the Respondent, Y,
to the player’s former training club(s).
Having established that the transfer of the player in question was on a definitive basis and
that a transfer compensation was agreed upon between the player’s former club and new
club, the Chamber then turned to the calculation of the relevant proportion due to X on
the basis of the period of time that the player was effectively trained by X.
14. The Chamber subsequently referred to art. 10 of the Regulations governing the
Application of the Regulations, which provides the figures for the distribution of the
solidarity contribution.
15. Considering that the player, A, was registered with X from the age of 12 (on 14
September 1991) until the age of 15,5 (on 31 March 1995) 25% of the 5% solidarity
contribution shall be apportioned to this club.
16. Having ascertained that the amount agreed upon by and between the Respondent
and Z for the transfer of the player, A, is EUR 5,000,000, 25% of the 5% solidarity
contribution amounts to EUR 62,500.
17. Consequently, the Chamber decided that Y is liable to pay the amount of EUR
62,500 as solidarity contribution to X.
18. Furthermore, in line with the above, the intervening party, Z, is liable to reimburse
to Y the same amount of EUR 62,500.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of EUR 62,500 to the Claimant, X, within
30 days as from the date of notification of this decision.
3.
The Intervening Party, Z, has to reimburse to the Respondent, Y, the amount of EUR
62,500 within 30 days as from the date of notification of this decision.
4.
If the sum of EUR 62,500 is not paid within the aforementioned deadline by Y
and/or Z, an interest rate of 5% per year will apply and the matter shall be
submitted to the FIFA Disciplinary Committee, so that the necessary disciplinary
sanctions may be imposed.
5.
The Claimant is directed to inform the Respondent immediately of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
6.
The Respondent is directed to inform the Intervening Party immediately of the
account number to which the reimbursement is to be made and to notify the
Dispute Resolution Chamber of every payment received.
7.
According to art. 60 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 10 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:
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:
Urs Linsi
General Secretary
Enclosed: CAS directives
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