Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Phillippe Piat (France), member
Zola Malvern Percival Majavu (South Africa), member
Phillippe Diallo (France), member
on the claim presented by the club
Club A, X,
as Claimant
against the club
Club B, Y
as Respondent
regarding a solidarity mechanism dispute
in connection with the transfer of the player C.
I.
Facts of the case
1.
According to the written confirmation from the X Football Federation, the player C
(hereafter: the player), born on 18 May 1981, was registered with club A
(hereafter: the Claimant) from 8 April 1996 to 30 June 2002. According to X
Football Federation, the football season in X begins on 1 January and ends on 31
December.
2.
Moreover, the Y Football Federation confirmed that the player was registered with
club B (hereafter: the Respondent) on 31 August 2006.
3.
On 22 November 2006, the Claimant contacted FIFA to demand solidarity
contribution from the Respondent for the transfer of the player from club D
(hereafter: D) to the Respondent.
4.
The Claimant alleges being entitled to 2.93% of the relevant transfer
compensation. Furthermore, the Claimant is demanding interest of 5% p.a. as from
30 days from when the player was registered with the Respondent.
5.
The Y Football Federation submitted a copy of the transfer agreement concluded
between the Respondent and D, which provided for a financial compensation in
the amount of EUR 5’700’000.
6.
The Respondent, for its part, has not replied to the correspondence sent to it via
the X Football Federation, despite repeated requests from FIFA.
7.
On 13 September 2007, the Claimant informed FIFA that the Respondent has paid
EUR 36’950. However, the Claimant adhered to its claim and asked for the rest of
the requested - and with this correspondence specified – amount of EUR 167’010.
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 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 22
November 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 connection with art. 22 (d) of the aforementioned Regulations, the Dispute
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2
Solidarity Contribution for the player C
(Club A, X / Club B, Y)
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 the Claimant in connection with the transfer of the
professional player C during the course of a contract.
4.
Subsequently, the members of the Chamber analysed 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 31 August 2006. Equally the Chamber took note that the claim was
lodged at FIFA on 22 November 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.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging that, on the one hand, the Claimant asserts
being entitled to receive 2.93% of the transfer compensation and thus demands
the sum of EUR 167’010, of which the amount of EUR 36’950 has already been paid
by the Respondent and received by the Claimant. Furthermore, it is claiming
interest of 5% p.a. as from 30 days as of the date of registration of the player for
the Respondent.
6.
On the other hand, the Chamber noted that the Respondent, despite having been
solicited to do so several times, never presented its position to the claim lodged
against it by the Claimant.
7.
In this respect, the Chamber stated that, as a general principle of procedure before
the Dispute Resolution Chamber, if a Respondent does not reply to the claim, a
decision shall be taken upon the basis of the documents on file, since with its
conduct, the Respondent renounces to its right of defence and thus accepts the
allegations of the Claimant (cf. art. 9 par. 3 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
8.
On account of the above, the Chamber stated that because the Respondent never
took position in the dispute, the Dispute Resolution Chamber has to pass a decision
based only on the facts and evidences provided by the Claimant and the
associations concerned.
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Solidarity Contribution for the player C
(Club A, X / Club B, Y)
9.
Continuing, the Chamber referred to art. 21 and Annex 5 of the Regulations
according to which the new club of the player is to distribute 5% of any
compensation, with the exception of training compensation, paid to the previous
club to the club(s) involved in the training and education of the player in
proportion to the number of years the player has been registered with the relevant
clubs between the sporting seasons of his 12th and 23rd birthdays.
10.
In the present case, the Chamber outlined that according to the confirmation of
the X Football Federation, the period to be taken into consideration (period of
registration of the player with the Claimant) went from 8 April 1996 until 30 June
2002, during the sporting seasons of the player’s 15th to 21st birthday. In this
respect, the Chamber concluded that the period of effective training to be taken
into account corresponds to five entire sporting seasons and 15 months.
11.
Furthermore, the Chamber recalled that according to the transfer agreement
concluded between the Respondent and D, and submitted to FIFA by the Y
Football Federation, the transfer compensation at the basis of the present dispute
amounts to EUR 5’700’000.
12.
In this respect, the Chamber took note that the Claimant asked for 2.93% of the
compensation paid in relation with the transfer of the player C from D to the
Respondent, amounting to EUR 167’010. Furthermore, the Chamber acknowledged
that the Claimant has confirmed by correspondence dated 13 September 2007 that
the Respondent has paid EUR 36’950 to the Claimant in this respect. Consequently,
the Claimant requested an outstanding amount of EUR 130’060 from the
Respondent.
13.
Based on all of the above, the Dispute Resolution Chamber concluded that the
Claimant is entitled to receive the sum of EUR 167’010 from the Respondent.
Furthermore, the Chamber pointed out that the amount of EUR 36’950 had already
been paid by the Respondent. On account of that, the members of the Chamber
decided that the Respondent must pay the sum of EUR 130’060 to the Claimant.
14.
Finally, the Chamber acknowledged that the Claimant asks for interest of 5% p.a.
over the amount due as solidarity contribution payable as from 30 days of the date
on which the player was registered for the Respondent. In this respect, the
Chamber noted that the Y Football Federation had confirmed that the player was
registered for the Respondent on 31 August 2006. Consequently and referring to
art. 2 of Annex 5 of the Regulations which establishes that the new club shall pay
the solidarity contribution to the training club(s) no later than 30 days after the
player’s registration, the Chamber decided that the Respondent has to pay to the
Claimant interest of 5% p.a. over the amount due as of the 31st day of the
registration of the player C with the Respondent, i.e. as of 1 October 2006 and
until the effective date of payment.
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4
Solidarity Contribution for the player C
(Club A, X / Club B, Y)
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club A, is accepted.
2.
The Respondent, club B, has to pay the amount of EUR 130’060 plus interest at the
rate of 5% p.a. applicable as from 1 October 2006 until the effective date of
payment to the Claimant, club A, within 30 days as from the date of notification
of this decision.
3.
If the aforementioned sum plus interest are not paid within the aforementioned
deadline the present matter shall be submitted to FIFA’s Disciplinary Committee so
that the necessary disciplinary sanctions may be imposed..
4.
The Claimant is directed to inform the Respondent 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.
5.
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:
Court of Arbitration for Sport
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
Encl.
CAS directives
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Solidarity Contribution for the player C
(Club A, X / Club B, Y)