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.
In the summer registration period of 2003 the player was transferred from Z to Y.
3.
According to the corresponding transfer agreement signed between FC 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.
4.
By fax dated 26 July 2003, Z instructed Y to pay the amount of EUR 5,000,000 as
follows:
a.
EUR 2,000,000 to the bank account of Z
b.
EUR 3,000,000 to the bank account of X
5.
Y confirms having paid these amounts to the stated accounts.
6.
X maintains that the player was registered with its club during the following
periods of time:
Age
16-17
17-18
18-19
19-20
20-21
21-22
22-23
7.
Period of time
31.03.95 – 13.09.95
14.09.95 – 13.09.96
14.09.96 – 13.09.97
14.09.97 – 13.09.98
14.09.98 – 07.01.99
15.01.00 – 13.09.00
14.09.00 – 17.07.01
In this regard, the members of the Chamber noted that according to the player’s
passport provided by the Football Federation of X, the player’s history with X can
be traced as follows:
Date of Registration
Info
31.03.95 –
Player was under contract with X until 31.07.98.
not precisely indicated According to X, the player was released on loan to B on
08.01.99 for a year.
29.02.00 –
Player was released on loan from B and registered with
not precisely indicated X until 31.12.00 and then returned to B
28.02.01
Player was released on loan from B to X until 30.06.01.
After the end of the loan period the player signed a
contract with X for the period from 19.06.01 until
31.07.05, which was terminated by mutual consent on
20.08.02
18.07.01
Player was released on loan from X to C
26.07.02
16.08.02
Return of the player to X after end of the loan
Player transferred to Z on a definitive basis
8.
Taking into account the above, X maintains that it is entitled to receive from Y
payment of solidarity contribution to the amount of EUR 132,054.80.
9.
X has presented a detailed calculation of this amount.
10. In addition, X claims payment of a “fine” amounting to 5% interest p.a. due to the
unjustified delay in payment and it asked that Y be sanctioned for violation of
article 25 of the former Regulations for the Status and Transfer of Players.
11. In reply to X’s claim, Y maintains having paid 100% of the transfer compensation
to Z and X given that the player’s former club, i.e. Z, had failed to provide the
necessary information on the player’s career.
12. Y asserts that the amount of solidarity contribution should be deducted from the
transfer compensation paid to Z.
13. X explains that it received the above-mentioned EUR 3 million via Y in accordance
with instructions issued by Z in the light of financial relations between X and Z
relating to another transaction.
14. According to X, this payment does not exempt Y from its obligations relating to
solidarity contribution towards X.
15. 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.
16. The parties have not been able to settle the matter in accordance with FIFA’s
suggestion.
17. Z has intervened in this claim and explains that according to the FIFA Regulations
for the Status and Transfer of Players the player’s new club is responsible for the
payment of the solidarity contribution and that the transfer agreement does not
include any other arrangement.
18. Z points out that the amount of money that it asked Y to pay to X is based on a
contractual obligation that it had towards X and that the amount is related to the
transfer of the player in question and not to solidarity contribution.
19. Therefore, Z rejects that it would have any obligation in respect of this matter.
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 May 2005, 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.
Y has remitted the total amount of EUR 5,000,000 to two different bank accounts
in accordance with the instructions that it had received from Z.
6.
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.
7.
The Chamber took into account that the Respondent, i.e. the player’s new club,
rejects the claim put forward by X maintaining that it remitted 100% of the
transfer compensation to Z.
8.
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.
9.
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.
10. 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.
11. 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.
12. 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.
13. 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.
15. In this regard, the Chamber took into account that according to the player’s
passport A was regularly transferred to another club on a loan basis. The Chamber
pointed out that solidarity contribution is payable only for the period of time that
a club effectively provided the player with training and education and, therefore,
excludes any period of time that the player was transferred to another club on a
loan basis.
16. 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.
17. Taking into consideration the above, the Chamber acknowledged that the player,
A, was registered with X from the age of 15,5 until the age of 19 and from the age
of 20 to 22. Consequently, 55% of the 5% solidarity contribution shall be
apportioned to this club.
18. 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, 55% of the 5% solidarity
contribution amounts to EUR 137,500.
19. However, X claims payment of solidarity contribution to the amount of EUR
132,054.80. In this context, the Chamber concurred that the amount of money to
be awarded shall not exceed the amount that the Claimant is demanding.
20. Consequently, the Chamber decided that Y is liable to pay to X the amount of EUR
132,054.80 as solidarity contribution.
21. The DRC took into account that the Claimant asks for payment of 5% interest p.a.
due to unjustified delay in payment of the solidarity contribution. Such claim
having been put forward, in addition to the aforementioned amount of EUR
132,054.80, the DRC decided that Y is liable to pay 5% interest over the said
amount as from the 31st day of the player’s registration at Y.
22. Furthermore, in line with the above, the intervening party, Z, is liable to reimburse
to Y the aforementioned amount of EUR 132,054.80.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, X, is accepted.
2.
The Respondent, Y, has to pay to the Claimant, X, the amount of EUR
132,054.80 increased with 5% interest p.a. as from the 31st day of the player’s
registration at Y, 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 132,054.80 within 30 days as from the date of notification of this decision.
4.
If the sum of EUR 132,054.80 plus 5% interest p.a. is not paid by Y to X within
the aforementioned deadline, the matter shall be submitted to the FIFA
Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
5.
If the sum of EUR 132,054.80 is not reimbursed by Z to Y within the
aforementioned deadline, an interest rate of 5% per year will apply as from
the 31st day of notification of this decision and the matter shall be submitted
to the FIFA Disciplinary Committee, so that the necessary disciplinary sanctions
may be imposed.
6.
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.
7.
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.
8.
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]
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www.tas-cas.org
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Enclosed: CAS directives
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