Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 14 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Joaquim Evangelista (Portugal), member
Philippe Diallo (France), member
Ivan Gazidis (U.S.A.), member
Zola Malvern Percival Majavu (South Africa), member
Essa M. Saleh Al-Housani (U.A.E.), member
on a matter between
the club, X
represented by Mr. V, attorney-at-law
and
the club, Y,
and
the club, Z
as Intervening party
regarding the distribution of solidarity contribution in connection with the player, P.
./…
I.
Facts of the case
1.
The player, P, was born on 3 May 1976.
2.
According to the player passport issued by and the explanations of the Football
Federation of X, the player was formerly registered with X on a loan basis (from Z)
as from 18 August 1995 until 31 July 1996.
3.
The Football Federation of Y has confirmed that the player was registered with Y
on 27 January 2006.
4.
On 15 September 2006, X lodged a claim in front of the Dispute Resolution
Chamber (DRC) against Y for payment of its proportion of the solidarity
contribution on the basis of the definitive transfer of the player from Z to Y and
art. 21 and Annex 5 of the Regulations for the Status and Transfer of Players.
5.
The relevant transfer agreement contains the amount of EUR 1,300,000 as
compensation for the definitive transfer of the player.
6.
Therefore, X maintains being entitled to 10% of the 5% solidarity contribution, i.e.
the amount of EUR 6,500. In addition, X claims payment of 5% interest as of the
31st day of the player’s registration with Y.
7.
In reply to the claim, Y refers to the transfer agreement that it signed with Z on 20
January 2006, in accordance with which Z is responsible for the distribution of the
solidarity contribution. Therefore, Y maintains that it has valid reasons for not
having remitted the solidarity contribution to X.
8.
After having been informed of the jurisprudence of the DRC in similar matters, Y
indicated that it would be willing to pay the relevant amount of solidarity
contribution to X and asks that Z then reimburses to Y the same amount of money.
9.
Z, after having been provided with a copy of the entire file and information on the
jurisprudence of the Dispute Resolution Chamber, has been invited to intervene in
the present matter and points out that the player was registered on a free loan
basis with X and that therefore X cannot be considered as a “former club”.
10.
Finally, Z asserts that out of the EUR 1,300,000 transfer compensation it in fact only
received EUR 250,000. That is, EUR 500,000 were compensated with a credit to the
same amount of Y over Z and EUR 550,000 of the compensation was delivered to P.
In this respect, Z submitted a copy of the agreement that it signed with the player,
P, on the termination of their employment contract by mutual consent, in
accordance with which the player was entitled to receive from Z the amount of
EUR 550,000.
11.
Z further points out that until the year 2000, the sportive season in the country of
X started on 1 August and ended on 31 July and that therefore X would be entitled
to receive 9,53% of the 5% solidarity contribution.
12.
X agrees with the pro rata calculation put forward by Z but rejects the other
arguments submitted by Z. X insists that Y shall pay the solidarity contribution on
the basis of the transfer compensation of EUR 1,300,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at stake. In this respect, it referred to art. 18 paras. 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 15
September 2006, as a consequence the Chamber concluded that the revised Rules
Governing Procedures (edition 2005) on matters pending before the decision
making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the Regulations
for the Status and Transfer of Players (edition 2005). In accordance with art. 24 par.
1 in combination with art. 22 (d) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes between two clubs belonging to
different Associations related to solidarity mechanism.
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 X in connection with the transfer of the professional P
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 had been registered for
his new club on 27 January 2006. Equally, the Chamber took note that the claim
was lodged at FIFA on 15 September 2006. In view of the aforementioned, the
Chamber concluded that the current FIFA Regulations for the Status and Transfer
of Players (edition 2005, hereafter: the Regulations) are applicable to the case at
hand as to the substance.
5.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber (DRC or Chamber) 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, P, was transferred from Z to Y on a definitive
basis and was registered with the latter on 27 January 2006.
6.
To this end, Z and Y signed a transfer agreement in accordance with which Y and Z
agreed on a transfer compensation of EUR 1,300,000 payable by Y to Z.
7.
The members of the Chamber recalled that as established in art. 21 of the
Regulations in conjunction with art. 1 of Annex 5 of the Regulations, 5% of any
compensation (with the exception of training compensation) paid to the player’s
former club shall be deducted from the total amount of this compensation and
distributed by the player’s new club as a solidarity contribution to the club(s)
involved in the player’s training and education in proportion to the number of
years that the player has been registered with the relevant club(s) between the
sporting seasons of his 12th and 23rd birthdays.
8.
The Chamber took into account that Y, i.e. the player’s new club, rejects the claim
put forward by X maintaining that according to the relevant transfer agreement Z
is responsible for the distribution of the solidarity contribution. Obviously, Y has
omitted to deduct 5% from the relevant transfer compensation relating to the
solidarity mechanism in accordance with the applicable Regulations.
9.
However, after having been informed about the jurisprudence of the Chamber in
similar cases, Y has confirmed that it would be willing to pay the relevant amount
of solidarity contribution to X and asked that Z then reimburses to Y the same
amount of money.
10.
Subsequently, the Chamber took note of the fact that, on the other hand, Z
considered that X cannot be considered a “former club” of the player in view of
the circumstance that P was registered with X on a free loan basis.
11.
Moreover, Z asserts that in fact it only received the amount of EUR 250,000 out of
the total compensation of EUR 1,300,000 due to the fact that EUR 550,000 were
payable by Z to P and EUR 500,000 were compensated with Z’s debt to the same
amount towards Y in connection with the transfer of another player.
12.
In this regard, first of all, the Chamber once again referred to its 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. 21 and Annex 5 of the
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.
13.
In this context, the Chamber once more pointed out that according to art. 1 of
Annex 5 of the Regulations, inter alia, the new club shall deduct the 5% solidarity
contribution from the amount of compensation agreed upon with the player’s
former club.
14.
Therefore, and in consideration of the said jurisprudence, the Dispute Resolution
Chamber decided to reject the argument of Y.
15.
The Chamber then turned its attention to the position of Z and pointed out that in
accordance with art. 10 par. 1 of the Regulations a loan is subject to the same rules
as apply to the transfer of players, including the provisions on training
compensation and solidarity mechanism. With respect to the matter at stake, the
Chamber deemed it important to highlight that it is irrelevant as to whether a
compensation was at the basis of such transfer on a loan basis to the player’s
former club, i.e. X.
16.
Furthermore, Z maintains that it only received EUR 250,000 out of the total transfer
compensation of EUR 1,300,000 for the reasons set out under points I.10 and II.11.
In this regard and in connection with the matter at hand, the Chamber concurred
that the amount of money agreed upon between the player’s former and new club
over the transfer of the player constitutes the monetary source from which the 5%
shall be deducted and distributed by the new club as a solidarity contribution.
17.
Therefore, the Chamber decided to reject the arguments put forward by Z.
18.
Having ascertained that the compensation agreed upon by and between Z and Y
for the transfer of the player P is EUR 1,300,000, the Chamber turned to the
calculation of the amount of solidarity contribution unmistakably due to X in
accordance with art. 21 of the Regulations in combination with Annex 5 of the
Regulations. In this context, the members of the Chamber pointed out that such
calculation shall be based on the position of X and Y in the present dispute as well
as the relevant facts relating to the period of registration of the player in question
with X. The Chamber also referred to art. 1 of Annex 5 of the Regulations, which
provides the figures for the distribution of the solidarity contribution, according to
the time the player was registered with the clubs involved.
19.
Considering that the player, P, born on 3 May 1976, was registered with X as from
18 August 1995 until 31 July 1996, the Chamber established that, in accordance
with art. 1 of Annex 5 of the Regulations, X is entitled to receive 9,16% of the 5%
of the compensation paid in relation with the transfer of the player P from Z to Y.
20.
Based on all of the above, the Dispute Resolution Chamber decided that Y must
pay to X solidarity contribution in the amount of EUR 5,954, i.e. 9,16% of 5% of the
aforementioned compensation, and that Z must reimburse the amount of EUR
5,954 to Y.
21.
Taking into consideration X’s claim as well as art. 2 par. 1 of Annex 5 of the
Regulations, the Chamber decided that Y has to pay interest at 5% p.a. over the
amount due as solidarity contribution as of the 31st day of the registration of the
player, P, with Y, i.e. as of 27 February 2006.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by X is partially accepted.
2.
Y has to pay to X the amount of EUR 5,954 plus 5% interest p.a. applicable as of 27
February 2006 within 30 days as from the date of notification of this decision.
3.
If the sum of EUR 5,954 and the pertinent interest are not paid by Y within the
aforementioned time limit, the present matter shall be reported to FIFA’s
Disciplinary Committee for its consideration and decision.
4.
X is directed to inform Y immediately of the account number to which the
remittance is to be made and to notify the Dispute Resolution Chamber of every
payment received.
5.
Any further claim of X is rejected.
6.
Z has to reimburse to Y the amount of EUR 5,954 plus 5% interest p.a. applicable as
of 27 February 2006 within 30 days as from the date of notification of this decision.
7.
If the sum of EUR 5,954 and the pertinent interest are not paid by Z within the
aforementioned deadline, the present matter shall be reported to FIFA’s
Disciplinary Committee for its consideration and decision.
8.
Y is directed to inform Z immediately of the account number to which the
remittance is to be made and to notify the Dispute Resolution Chamber of every
payment received.
9.
According to art. 61 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:
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:
_________________
Markus Kattner
Deputy General Secretary
Enclosed: CAS directives