Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), Member
John Didulica (Australia), Member
Philippe Diallo (France), Member
Essa M. Saleh Al Housani (United Arab Emirates), Member
on a matter between the club
X, XX,
represented by Mr U, attorney at law
and the club,
Y, YY,
and the club,
ZZ, XX,
as Intervening party
regarding the solidarity contribution related to the
transfer of the player AB
I.
Facts of the case:
1.
According to an official confirmation from the YY Football Federation, the
player AB, born on 4 June 1979, was registered with the YYclub, X, from 25
September 1989 to 4 November 1998 and from 14 July 1999 to 18 July 2001. In
between, i.e. from 5 November 1998 to 13 July 1999, the player was registered
with another YY club, PP.
2.
On 12 February 2005, ZZ and Y concluded a transfer agreement for the transfer
of the player in question to the YY club by means of which they agreed on a
transfer compensation of USD 1’000’000 payable in two instalments of USD
500’000 each, the first to be paid on 16 February 2005 and the second to be
paid on 28 February 2005. Thereupon, on 18 February 2005, the player signed an
employment contract with the said YY club, a copy of which has been
presented.
3.
On 19 April 2005, X contacted FIFA and lodged a claim against Y. At first, X was
claiming the proportion of the solidarity contribution amounting to EUR
34’202.05 based on the information it had at that time, i.e. that the player had
been permanently registered with X from 25 September 1989 to 18 July 2001
and an assumed transfer compensation amounting to EUR 750’000. During the
course of the proceedings, after having taken knowledge of the actual transfer
compensation, i.e. USD 1’000’000, X amended its claim and claimed the
payment of USD 45’602.74.
4.
On 3 May and 30 June 2005 Y informed FIFA, by referring to the transfer
agreement it had entered into with ZZ, that it had paid the entire transfer
compensation amount to the aforementioned YY club and that no further
financial obligations on its part had been mentioned in the relevant transfer
agreement. In addition, the YY club stated that it had received no official
documents from the YY Football Federation, which had made it impossible for
the YY club to know what it had to pay and to which club.
5.
FIFA then informed the parties involved of the jurisprudence of the Dispute
Resolution Chamber in similar cases, in accordance with which the player’s
new club is instructed to remit the relevant proportion(s) of the 5% solidarity
contribution to the club(s) involved in the player’s training as solidarity
contribution and the player’s former club is invited to reimburse the same
proportion(s) to the player’s new club.
Solidarity Contribution for the player AB
(Club X, XX / Club Y, YY)
2
6.
On 27 September 2005, X informed FIFA that it agrees to FIFA's proposal for
dealing with the matter in accordance with the jurisprudence of the Dispute
Resolution Chamber.
7.
The YY club informed FIFA that it had noted FIFA's proposal and accepted it in
principle, but that it was attempting to resolve the matter with ZZ directly so that
the latter would pay the solidarity contribution to X. In this respect, the YY club
stated that international payment transactions always incur high additional
charges that could be avoided if ZZ would pay the solidarity contribution
straight to X.
8.
On 10 October 2005, ZZ submitted its position, denying all responsibility for the
payment of the solidarity contribution to X. According to ZZ, pursuant to the
relevant applicable FIFA Regulations, such payment is the duty of the player's
new club, i.e. Y.
9.
On 17 October 2005, after it had become clear that no mutual agreement
could be reached between ZZ and Y in this matter, X stated that it is now
demanding payment of the solidarity contribution by Y in strict application of
the FIFA Regulations. Should FIFA be required to pass a decision, X demanded a
default interest on the due amount with effect as from 25 October 2005. For the
period before this date, X accepted that Y had tried to resolve the matter by
mutual agreement.
10.
The YY club then expressed its concern that ZZ might fail to return the relevant
proportion of the 5% of the transfer compensation, even if it would remit the
relevant solidarity contribution to X. In this respect, the YY club demanded a
guarantee that ZZ would reimburse the 5% of the transfer compensation. Finally,
the YY club pointed out that it would incur 27,5% charges on the payment of
the EUR 45’602.74, i.e. the relevant amount in dispute, and therefore asked that
ZZ has to reimburse these charges as well.
II.
Considerations of the Dispute Resolution Chamber:
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art.18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 19 April 2005,
as a consequence the Chamber concluded that the previous Procedural Rules
(edition 2001) on matters pending before the decision making bodies of FIFA
are applicable to the matter at hand.
Solidarity Contribution for the player AB
(Club X, XX / Club Y, YY)
3
2.
With regard to the competence of the Chamber, art. 25 par. 2 of the FIFA
Regulations for the Status and Transfer of Players (edition 2001) establishes that it
falls within the purview of the Dispute Resolution Chamber to review disputes
concerning the distribution of the solidarity contribution.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the distribution of the solidarity
contribution claimed by the YY club, X, in connection with the transfer of the
professional player AB to the YY club, Y, during the course of a contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1
and 2 of the Regulations for the Status and Transfer of Players (edition 2005) in
the modified version in accordance with the FIFA Circular no. 995 dated 23
September 2005. Furthermore, it acknowledged that the professional player in
question had been registered for his new club in February 2005. Equally the
Chamber took note that the claim was lodged at FIFA on 19 April 2005. In view
of the aforementioned, the Chamber concluded that the former FIFA
Regulations for the Status and Transfer of Players (edition 2001, hereafter: the
Regulations) are applicable to the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber carefully studied the facts outlined above, which show that the
player in question was transferred in February 2005 from ZZ to Y on a definite
basis.
6.
The Chamber took note that, to this end, a transfer agreement had been
signed between ZZ and Y for the definitive transfer of the player AB to the
aforementioned YY club.
7.
At this point, the Chamber recalled that, as established in art. 25 of the
Regulations in combination with art. 11 par. 1 of the Regulations governing the
Application of the Regulations (hereafter: the Application Regulations), the new
club to which a player is transferred, is the club responsible for the distribution of
5% of any compensation it paid to his former club, to the club(s) involved in the
training and education of the player between the ages of 12 and 23.
8.
In this respect, the members of the Chamber took into account that Y, after
FIFA had informed the parties involved about the jurisprudence of the Dispute
Resolution Chamber in similar cases, did not dispute X’s apparent right to a
Solidarity Contribution for the player AB
(Club X, XX / Club Y, YY)
4
proportion of the solidarity contribution. It was even noted by the Chamber that
the parties made efforts to amicably settle the present affair without success.
9.
The Chamber took particular note of the fact that ZZ has intervened in the
present matter and that it maintained having no responsibility with regard to
the payment of the solidarity contribution due to X, since, according to the
Regulations, the new club shall pay the amount due as solidarity contribution.
10.
In this respect, taking in particular into account the position of the intervening
party, 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. 11 of the Application
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.
11.
The said jurisprudence is based on the fact that there is no contractual link
between the training club claiming for solidarity contribution and the player’s
former club. Therefore, such a claim would not find any contractual basis. Yet,
the Regulations clearly establish that the distribution of the solidarity contribution
is incumbent on the 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 new club and the previous
club are bound by a contractual agreement, which needs to be respected.
12.
In addition, the members of the Chamber stressed that FIFA circular 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.
13.
In light of the above, in particular the aforementioned well-established
jurisprudence of the Chamber, the members confirmed that it is the
responsibility of the new club, Y, to pay the relevant proportion of the solidarity
contribution to X, which was involved in the player’s training and education.
14.
In view of the above and referring to the objection raised by the YY club
concerning additional charges that it allegedly incurs in case of international
payment transactions, the members of the Chamber unanimously concluded
that these alleged facts do not discharge a club from its obligation to pay the
relevant proportion of the solidarity contribution to the clubs involved in the
training and education of a player.
Solidarity Contribution for the player AB
(Club X, XX / Club Y, YY)
5
15.
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, ZZ, cannot be accepted.
16.
Therefore, ZZ, having unduly received the amount of money pertaining to
solidarity contribution, is to be held liable for the reimbursement to Y of the
relevant proportion(s) of the solidarity contribution payable by Y to the player’s
former training club, X.
17.
The Chamber then went on to deliberate on the proper calculation of the said
proportion due to X.
18.
To that regard, the members of the Chamber referred to art. 10 of the
Application Regulations, which provides the figures for the distribution of the
solidarity contribution, according to the period of time that the player was
trained by a specific club.
19.
In the present case, the Chamber outlined that according to the player
passport submitted by the YY Football Federation, the period to be taken into
consideration went from the sporting season 1991/1992, when the player was 12
years old, until 4 November 1998 with respect to the first period of time that the
player was registered with X and from 14 July 1999 until 18 July 2001 for the
second period of time that the player was registered with X. To that regard, the
Chamber underlined that in accordance with art. 25 of the Regulations and art.
10 of the Application Regulations, the period of time during which the player
had been registered with X before the player’s age of 12 years cannot be
taken into account.
20.
In view of the above, taking in particular into account that the player AB, born
on 4 June 1979, was registered for the club, X, for the period of times indicated
above, the Chamber decided that 83,33% of 5% of the solidarity contribution
shall be apportioned to X.
21.
The Chamber noted that according to the transfer contract remitted to the file,
the player AB was transferred from ZZ to Y for the amount of USD 1’000’000.
22.
Based on all the foregoing considerations, the Dispute Resolution Chamber
decided that Y has to pay the amount of USD 41’665 to X as solidarity
contribution for the player AB.
Solidarity Contribution for the player AB
(Club X, XX / Club Y, YY)
6
23.
Finally, the members of the Chamber made reference to art. 11 par. 1 of the
Application Regulations, which reads that the amount due as a solidarity
contribution shall be paid by the new club to the training clubs pursuant to the
above provisions at the latest within 30 days of the player’s new registration.
24.
In this respect, the members noted, however, that X is asking a default interest
payment only as from 25 October 2005.
25.
Consequently, in light of the fact that the payment of the solidarity contribution
is due since the thirty-first day after the registration of the player AB with the
association of his new club and taking into account the relevant statement of
X, the Chamber established that a default interest payment of 5% p.a. as from
25 October 2005 must be applied to the due amount of EUR 41’665.
26.
Furthermore, in line with the above, the intervening party, ZZ, is liable to
reimburse to Y the amount of EUR 41’665.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of X is partially accepted.
2.
The club, Y, has to pay the amount of USD 41’665 to X within 30 days as from the
date of notification of this decision.
3.
On the aforementioned amount, a default interest payment of 5% p.a. is
applied as from 25 October 2005 until the day of execution of the present
decision.
4.
Any further claims lodged by X are rejected.
5.
In the event that the above-mentioned amount is not paid within the stated
deadline, the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
6.
X is directed to inform Y directly and immediately of the account number to
which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
Solidarity Contribution for the player AB
(Club X, XX / Club Y, YY)
7
7.
The intervening party, ZZ, has to reimburse to Y the amount of USD 41’665 within
30 days as from the date of notification of this decision.
8.
If the aforementioned sum is not paid 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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
9.
Y is directed to inform the intervening party, ZZ, directly and immediately of the
account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
10.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receiving notification of this
decision and has to contain all elements in accordance with point 2 of the
directives issued by the CAS, copy of which we enclose hereto. Within another
10 days following the expiry of the time limit for the filing of the statement of
appeal, the appellant shall file with the CAS a brief stating the facts and legal
arguments giving rise to the appeal (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
Encl.
CAS directives
Solidarity Contribution for the player AB
(Club X, XX / Club Y, YY)
8