Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mick McGuire (England), member
Carlos Soto (Chile), member
Ivan Gazidis (USA), member
Zola Malvern Percival Majavu (South Africa), member
on a matter between the club,
A,
represented by Mr. K, attorney-at-law
against the club,
O,
represented by Mr. G
and the club,
M,
“as Intervening Party”
regarding solidarity contribution related to the international transfer of the player
T,
I.
Facts of the case
1.
The player, T, was born on 13 May 1983.
2.
According to the written confirmation of the Football Federation of I, the
player was formerly registered with A training center, as from 19 March 1995
until 3 August 2001.
3.
Furthermore, the relevant sporting seasons in I ran from 1 December until 30
November.
4.
On 11 August 2006, A lodged a claim in front of the Dispute Resolution
Chamber (DRC) against O for payment of its proportion of the solidarity
contribution on the basis of the definitive transfer of the player from M to the
O club in the summer transfer period of 2005. A claim is based on art. 21 and
Annex 5 of the Regulations for the Status and Transfer of Players (edition
2005).
5.
A claims that it is entitled to receive 50% of the 5% solidarity contribution and
points out that it is unaware of the transfer compensation that was agreed
upon between O and M for the transfer of the player in question.
6.
The H Football Federation has confirmed that the player was registered with
its member club on 11 August 2005.
7.
In reply to the claim, O stated that it has paid the transfer compensation in its
entirety to the former club of the player, i.e. M. Therefore, the O club asks that
the M club be involved in this matter as intervening party.
8.
At FIFA’s request, O presented a copy of the relevant transfer agreement dated
20 July 2005 in accordance with which the O club and M agreed upon a
transfer compensation totalling EUR 1,500,000.
9.
FIFA informed all three clubs mentioned above of the jurisprudence of the DRC
in similar matters, inviting them to act accordingly. The present matter could
not be solved in this way.
M has failed to present its position in this matter in spite of having been
invited to do so twice.
10.
II.
Considerations of the Dispute Resolution Chamber
Solidarity contribution relating to the player, T (A / O / M)
2/7
1.
First of all, the Dispute Resolution Chamber analysed whether it was
competent to deal with the case at hand. In this respect, it took note that the
present matter was submitted to FIFA on 11 August 2006. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2005; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 18 par. 2 and 3 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer
of Players (edition 2008) the Dispute Resolution Chamber is competent to
decide on the present litigation with an international dimension concerning
the distribution of the solidarity contribution claimed by A in connection with
the transfer of the professional T during the course of a contract.
3.
Furthermore, and taking into consideration that the player was registered with
his new club on 11 August 2005, the Chamber analysed which regulations
should be applicable as to the substance of the matter. In this respect, it
confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players (edition 2008), and considering that the
present claim was lodged on 11 August 2006, the previous version of the
regulations (edition 2005; hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber carefully studied the facts outlined above, which show that
the player, T, was transferred from M to O on a definitive basis and was
registered with the latter on 11 August 2005.
5.
To this end, M and O signed a transfer agreement in accordance with which M
and O agreed on a transfer compensation of EUR 1,500,000 payable by O to M.
6.
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
Solidarity contribution relating to the player, T (A / O / M)
3/7
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.
7.
The Chamber took into account that O, i.e. the player’s new club, stated that it
has paid the transfer compensation in its entirety to the former club of the
player, i.e. M. Therefore, the O club asks that the M club be involved in the
proceedings pertaining to this matter. Obviously, O has omitted to deduct 5%
from the relevant transfer compensation relating to the solidarity mechanism
in accordance with the applicable Regulations.
8.
After having been informed about the jurisprudence of the Chamber in similar
cases, the parties involved have not been able to settle this matter in
accordance with the pertinent jurisprudence, which will be discussed below.
9.
Subsequently, the Chamber took note of the fact that, in spite of having been
invited to do so, M has failed to present its position in this matter. In this way,
so the Chamber, the M club has renounced its right to defence and accepted
the allegations and facts surrounding the present matter.
10.
In this regard, first of all, the Chamber recalled 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 to the player’s new club the same proportion(s) of the 5% of the
compensation that it received from the player’s new club.
11.
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.
12.
Having ascertained that the compensation agreed upon by and between M
and O for the transfer of the player T is EUR 1,500,000, the Chamber turned to
the calculation of the amount of solidarity contribution unmistakably due to A
in accordance with art. 21 and Annex 5 of the Regulations. In this context, 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 club involved.
Solidarity contribution relating to the player, T (A / O / M)
4/7
13. Considering that the player, T, born on 13 May 1983, was registered with A as
from 19 March 1995 until 3 August 2001, the Chamber established that, in
accordance with art. 1 of Annex 5 of the Regulations, A is entitled to receive
45% of the 5% of the compensation paid in relation with the transfer of the
player T from M to O.
14.
Based on all of the above, the Dispute Resolution Chamber decided that O
must pay to A solidarity contribution in the amount of EUR 33,750, i.e. 45% of
5% of the aforementioned transfer compensation, and that M must reimburse
the amount of EUR 33,750 to O.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is partially accepted.
2.
O has to pay the amount of EUR 33,750 to A within 30 days as from the date
of notification of the present decision.
3.
Any further request filed by A is rejected.
4.
If the aforementioned sum is not paid by O within the aforementioned time
limit an interest rate of 5% per year will apply as of expiry of the fixed time
limit and the present matter shall be submitted upon the parties request to
FIFA’s Disciplinary Committee.
5.
A is directed to inform O 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.
6.
M has to reimburse the amount of EUR 33,750 to O within 30 days as from the
date of notification of this decision.
7.
If the aforementioned sum is not paid by M within the aforementioned time
limit an interest rate of 5% per year will apply as of expiry of the fixed time
limit and the present matter shall be submitted upon the parties request to
FIFA’s Disciplinary Committee.
Solidarity contribution relating to the player, T (A / O / M)
5/7
8.
O is directed to inform M 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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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 Secretary General
Solidarity contribution relating to the player, T (A / O / M)
6/7
Encl. CAS directives
Solidarity contribution relating to the player, T (A / O / M)
7/7