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 was born on 26 July 1981.
2.
A was registered with X from 4 August 1997 until 15 July 2001.
3.
In the summer registration period of 2004 the player was transferred from Z to
Y.
4.
According to the corresponding transfer agreement signed between Y and Z
on 12 June 2004, Y is obliged to pay EUR 3,000,000 to Z in two equal
instalments of EUR 1,5 mio. each on 18 June 2004 and 15 July 2005.
5.
In January 2005, X lodged a claim in front of FIFA maintaining that the player
having been registered with X from the age of 16 until the age of 20, i.e.
during four seasons, it is entitled to 40% of the 5% solidarity payment in
accordance with the applicable FIFA Regulations, i.e. the amount of EUR
60,000.
6.
Y, for its part, maintains that according to clause 3 of the above-mentioned
transfer agreement, the parties agreed that by remitting the fee of EUR 3 mio.
to Z, Y is discharged from any kind of compensation payment to any other
party.
7.
Therefore, it considers that it is not obliged to pay solidarity contribution to
the claimant and deems that the claimant should turn to Z in order to collect
its part of the 5% solidarity contribution.
8.
Y has presented the signatory page of a document delivered by Z to Y in
accordance with which on the occasion of the player’s transfer from X to Z, X
agreed that “this contract is made in mutual agreement and allowance, with
reciprocal quittance, remaining nothing to reclaim above any additional part
in the indemnity for the definitive or temporary cession of transfer of the
professional football athlete A to any national and/or international sportive
practice entity, as professional formation compensation.”
9.
FIFA suggested to the parties that Y distributes the relevant proportion
relating to the 5% solidarity contribution to X and that Z reimburses to Y the
relevant proportion of the 5% of the amount of compensation agreed upon
with Y.
10. Y has expressed its willingness to follow FIFA’s suggestion and pay the relevant
amount to X once it has received reimbursement from Z.
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11. The parties have not been able to settle this matter in this way.
12. Z has intervened in this matter and affirms the statement of Y in that Z
committed to distribute the solidarity contribution to the player’s former clubs
that were involved in his training and education in accordance with the
transfer agreement.
13. It furthermore states that X is not entitled to any solidarity contribution
relating to the player’s transfer from Z to Y referring to article 6 of the transfer
agreement signed between X and Z, which has been quoted under the abovementioned point 8.
14. To this end, Z has presented a full copy of the agreement signed between X
and Z on 3 June 2002.
15. Therefore, Z is of the opinion that the claim of X must be rejected. What is
more, it considers that this is a contractual conflict between X and Z that
should be decided upon by the “competent national court”.
16. It further asks that the DRC requests the Football Federation of X and Z to
confirm that the content and enforceability of the agreement concluded
between the X and Z fall under national law, in order to avoid legal
consequences such as, inter alia, the necessity of y to present a formal claim
against Z in front of the Players’ Status Committee for breach of contract.
17. In this regard, Z points out that it does not recognise X’s rights and therefore
will not proceed with any payment regarding solidarity contribution for the
player A.
18. Z further asserts that, inter alia, should the DRC decide that it shall consider
the agreement executed between Y and Z in order to assess the claim lodged
by X, it will also have to consider the aforementioned contractual provision
existing between X and Z and recognise that X is not entitled to participate in
the distribution of the solidarity mechanism for the player in question.
19. X, for its part, refers to the applicable FIFA Regulations and DRC jurisprudence
which state that the new club must retain and is responsible for the payment
of the solidarity contribution, even if this responsibility is the object of a
transfer agreement.
20. It refutes that this case would fall under national jurisdiction, given that the
claim has been lodged against Y, which is the player’s new club.
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21. As regards Z’s assertion that X would have renounced to its right to solidarity
contribution, X points out that the relevant agreement was made between X
and Mr. B, to whom X sold 50% of the “economic rights” to the player in
question. Therefore, according to X, this agreement only produces effects
between these two parties and Z cannot derive any claim from it.
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 January 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 2004.
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
3,000,000.
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.
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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 it should turn to Z, i.e. the
player’s former club, in order to obtain its proportion of the 5% solidarity
contribution payment on the basis of article 3 of the relevant transfer
agreement.
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.
The Chamber established that obligations arising from the governing FIFA
Regulations cannot be set aside by a divergent mutual agreement between
parties involved in a transaction. Consequently, in the case at hand, the
Chamber deemed that clause 3 of the transfer agreement signed between Y
and Z cannot be taken into consideration.
10. The DRC 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 this regard, the Chamber noted that Y does not object to the procedure
outlined under point 10 above. However, its agreement to remit the relevant
proportion of the 5% solidarity contribution to X is conditional on the
preceding reimbursement of the relevant proportion by Z to Y.
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13. Z, the intervening party, however, asserts that X is not entitled to receive any
payment relating to solidarity contribution on the basis of article 6 of the
transfer agreement signed between X and Z on 3 June 2002.
14. In continuation, the Chamber deemed that the agreement that was signed
between X and Z is irrelevant in the case at hand.
15. At this point, the Chamber recalled that X’s claim is lodged against Y and that
any solidarity payment relating to the transfer of the player in question from Z
to Y shall be carried out by Y.
16. Z’s responsibility in the present matter is limited to the reimbursement to Y of
the amount pertaining to solidarity contribution that it has unduly received
from Y in the light of the foregoing.
17. To conclude, 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.
18. Z 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).
19. 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.
20. 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.
21. Considering that the player, A, was registered with X from the age of 16 until
the age of 20, 40% of the 5% solidarity contribution shall be apportioned to
this club.
22. Having ascertained that the amount agreed upon by and between the
Respondent and Z for the transfer of the player, A, is EUR 3,000,000, 40% of the
5% solidarity contribution amounts to EUR 60,000.
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23. Consequently, the Chamber decided that Y is liable to pay the amount of EUR
60,000 as solidarity contribution to X.
24. Furthermore, in line with the above, the intervening party, Z, is liable to
reimburse to Y the same amount of EUR 60,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is accepted.
2.
The Respondent, Y, has to pay the amount of EUR 60,000 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 60,000 within 30 days as from the date of notification of this decision.
4.
If the sum of EUR 60,000 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:
7
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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