Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 14 September 2007,
in the following composition:
Mr. Slim Aloulou (Tunisia), Chairman
Mr. Philippe Diallo (France), Member
Mr. Ivan Gazidis (USA), Member
Mr. Percival Majavu (South Africa), Member
Mr. Essa M. Saleh Al-Housani (UAE), Member
Mr. Theo van Seggelen (The Netherlands), Member
Mr. Gerardo Movilla (Spain), Member
Mr. Rinaldo Martorelli (Brazil), Member
Mr. Joaquim Evangelista (Portugal), Member
on an matter between
Club S,
represented by Mr. , Lawyer
and
G,
and
T,
as Intervening party,
regarding the solidarity contribution related to the transfer of the player,
L
I.
Facts of the case
1.
On 12 January 2006, club G (hereinafter: G) and club T signed an agreement for
the transfer of the player, L, for USD 3,500,000. In a contract dated 19 May 2006,
the club G and the club T revised the original transfer agreement and signed a
new one setting the transfer compensation payable at USD 1,750,000.
2.
On 13 March 2006, Club S contacted FIFA to claim its share of the solidarity
contribution. The player, L, was born on 16 August 1983. According to the player
passport submitted by the Football Association P (FP), the player was registered
with the club from 24 February 1998 until 4 February 2003.
3.
Responding to a request from the FIFA administration, the club G said that it was
prepared to pay the solidarity contribution owing to Club S, but asked FIFA to
calculate the amount.
4.
On 29 August 2006, the FIFA administration proposed that the two parties seek an
amicable agreement.
5.
On 25 October 2006, Club S submitted the correspondence that the two parties
had exchanged between 13 September and 20 October 2006, during which time
the parties had not managed to reach an agreement. Among this correspondence,
Club S included a letter from G that mentioned that the transfer contract between
G and T had been annulled and the transfer compensation to be paid had been
reduced.
6.
On 14 November 2006, the FIFA administration asked G if the amount of transfer
compensation payable had been reduced again in an agreement with T and to
provide proof of any such agreement between the two clubs.
7.
On 18 April 2007, G indicated that the player, L, had been transferred from T for
USD 1,750,000 and this amount had been reduced to USD 850,000 in accordance
with an agreement dated 22 July 2006. G submitted a copy of this agreement and
added that it had made the transfer compensation payment to T in full.
8.
On 30 April 2007, a copy of the entire file was passed on to the FP for the
attention of its affiliated club, T, and the parties were informed that, according to
the jurisprudence of the Dispute Resolution Chamber, the player’s new club was
responsible for paying the solidarity contribution but, in the event that the
transfer compensation had already been paid in full, the former club was to
refund the corresponding percentage of the compensation to the new club. It was
therefore proposed that the parties involved act in accordance with this
jurisprudence.
9.
On 9 May 2007, Club S provided the details of its bank account for the payment of
2.25% of USD 850,000, in other words, USD 19,687.50, and, at the same time,
reserved the right to claim more if the transfer compensation payment turned out
to be higher than this.
Solidarity Contribution for the player L
(Club S / Club G; Club T)
2
10.
On 10 May 2007, G informed FIFA that T had not refunded 5% of the transfer
compensation it had paid and it was not in a position to pay the amount owing to
Club S.
11.
On 6 September 2007, T informed FIFA – via the FP – that when they concluded
the transfer agreement with G, T renounced expressly to request training
compensation or any other amounts in connection with the player L. Moreover, T
remarked that they lodged a complaint against G at FIFA for breach of the
relevant transfer agreement and they had to afford a lot of payments in this
respect being economically damaged.
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 13 March 2006,
as a consequence the Chamber concluded that the revised Rules Governing the
Procedures of the Players´ Status Committee and the Dispute Resolution Chamber
(DRC),edition 2005, on matters pending before the decision making bodies of FIFA
are applicable on 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 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 club S in connection with the transfer of the
professional player L 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, in the modified
version, in accordance with the FIFA circular no. 995 dated 23 September 2005.
Furthermore, it acknowledged that based on the relevant international transfer
certificate the professional had been transferred to his new club on 20 January
Solidarity Contribution for the player L
(Club S / Club G; Club T)
3
2006. Equally the Chamber took note that the claim was lodged at FIFA on 13
March 2006. In view of the aforementioned, the Chamber concluded that the
current FIFA Regulations for the Status and Transfer of Players (edition 2005,
hereinafter: the Regulations) are applicable on 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 the player L was transferred on 20
January 2006 from the club T (hereinafter: T) to the club G (hereinafter: G).
6.
The Chamber underlined that as established in art. 1 of the Annex 5 in connection
with art. 10 par.1 of the Regulations, the new club of the player has to distribute
5% of any compensation paid to the previous club to the club(s) involved in the
training and education of the player in proportion to the numbers of years that
the player has been registered with the relevant clubs between the ages of 12 and
23.
7.
In the present case, the Chamber outlined that the relevant period to be taken
into account with regard to the solidarity contribution would run from the season
1996 (12-13 years) until the season 2006 (22-23 years).
8.
In continuation the Chamber duly noted that based on the aforementioned
transfer, T and G signed on 12 January 2006 a transfer agreement which it was
modified consequently by two other transfer agreements dated 19 May 2006 and
22 July 2006 respectively. Taking in consideration all the negotiations and
aforementioned transfer agreements the club G was obliged to pay to the club T a
transfer compensation to the amount of USD 850,000.
9.
In this respect, the Chamber duly noted that G (the player’s new club) asserted
having paid the amount of USD 850,000 agreed upon as transfer compensation, to
T (the player’s previous club) and that therefore, the latter is responsible to pay
the relevant solidarity contribution to S. In other words, G omitted to deduct 5%
of the relevant transfer compensation related to the solidarity mechanism.
10.
Furthermore, the Chamber took note that G put forward the argument that
because T did not reimburse to them the relevant proportion of the solidarity
contribution, they cannot pay the relevant amount to S.
11.
In continuation, 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 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.
Solidarity Contribution for the player L
(Club S / Club G; Club T)
4
12.
The deciding authority then took note that the intervening club, T, contested its
obligation to reimburse the relevant solidarity contribution to G based on the
point 6 of the original transfer agreement dated 12 January 2006. In this respect, T
alleged that they renounced expressly and irrevocably to receive from G the
payment of the relevant training compensation or solidarity contribution that
they would be entitled in accordance with the FIFA Regulations. Moreover, T
remarked the existence of a formal complaint against G in front of FIFA by means
of which the club T deems that G still owes a remaining amount for the transfer of
the player L.
13.
As a consequence, the Chamber deemed appropriate to clarify that the fact that T
renounced to receive eventually an amount of money as training compensation or
solidarity contribution from G in connection with the transfer of the player L does
not affect or interfere in any way the right of S to receive its relevant proportion
of the solidarity contribution as training club.
14.
In continuation, the Chamber referred to the complaint lodged by T against G in
front of FIFA and remarked that this dispute cannot affect or impede the club S to
receive the relevant proportion of the solidarity contribution for the transfer of
the player L.
15.
Taking into account all of the above and, in particular, the aforementioned wellestablished jurisprudence of the Chamber, the members of the Chamber deemed
that the arguments put forward by the intervening party, T, could not be taken
into consideration and thus has to be rejected.
16.
Therefore, T, having unduly received the amount of money pertaining to solidarity
contribution, is to be held liable for the reimbursement to G of the relevant
proportion(s) of the solidarity contribution payable by the cited club, to the
player’s former training club(s) i.e. S.
17.
The Chamber then referred to art. 1 of the Annex 5 of the Regulations which
provides the percentage of the share for the distribution of the solidarity
contribution, according to the period at which the player was effectively trained
by the clubs involved.
18.
In the present case, the Chamber remarked that according to the confirmation of
the FP, the period of registration of the player L with the club S was as from 24
February 1998 until 4 February 2003.
19.
In this respect, the Chamber concluded that the period of effective training to be
taken into account corresponds to the period from 24 February 1998 until 4
February 2003 at the player’s age of 14 until 19 corresponding to five sporting
seasons.
Solidarity Contribution for the player L
(Club S / Club G; Club T)
5
20.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of the Annex 5 of the Regulations, S is entitled to receive
45% of the 5% of the compensation paid in relation to the transfer of the player L
from T to G.
21.
Finally, the Chamber noted that according to the final transfer agreement signed
by the relevant clubs on 22 July 2006 and remitted to the file, the player L was
transferred for a total amount of USD 850,000. In particular, the club G explained
that it paid the total amount to the club T and this fact was expressly recognized
by both clubs in the point 2 of the cited transfer agreement.
22.
Based on all of the above, the Dispute Resolution Chamber decided that G has to
pay to S, 45% of the 5%, i.e. USD 42,500 of the transfer compensation paid in
relation to the transfer of the player L, amounting to USD 19,125 and that T has to
reimburse the aforementioned amount to G.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of S is accepted.
2.
G has to pay to S the amount of USD 19,125 within the next 30 days as from the
date of notification of this decision.
3.
T has to reimburse G the amount of USD 19,125 within the next 30 days as from
the date of notification of this decision.
4.
In the event that the above-mentioned amount is not paid by G to S within the
above-stated deadline, an interest rate of 5% per year will apply as from the 31st
day of notification of this decision and the present matter shall be submitted to
FIFA’s Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
5.
In the event that the above-mentioned amount is not reimbursed by T to G within
the above-stated deadline, an interest rate of 5% per year will apply as from the
31st day of notification of this decision and the present matter shall be submitted
to FIFA’s Disciplinary Committee, so that the necessary disciplinary sanctions may
be imposed.
6.
S is instructed to inform G immediately and directly 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 L
(Club S / Club G; Club T)
6
7.
G is instructed to inform T immediately and directly 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. 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
Solidarity Contribution for the player L
(Club S / Club G; Club T)
7