F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – contributo di solidarietà – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – solidarity contribution – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 August 2012, in the following composition: P, Chairman (did not take part in the deliberations) Rinaldo Martorelli (Brazil), member Jon Newman (USA), member Zola Percival Majavu (South Africa), member Theodoros Giannikos (Greece), member on the claim presented by the club, A, as Claimant against the club, B, as Respondent regarding a solidarity contribution dispute related to the transfer of the player J

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - contributo di solidarietà – ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - solidarity contribution – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 August 2012, in the following composition: P, Chairman (did not take part in the deliberations) Rinaldo Martorelli (Brazil), member Jon Newman (USA), member Zola Percival Majavu (South Africa), member Theodoros Giannikos (Greece), member on the claim presented by the club, A, as Claimant against the club, B, as Respondent regarding a solidarity contribution dispute related to the transfer of the player J I. Facts of the case 1. According to the players passport, issued by the Football Federation M, the player J (hereinafter: the player J), born on October 1981, was registered with the club A (hereinafter: the Claimant) as from 20 August 2003 until 2 August 2005. 2. According to the Football Federation M, the sporting season in Country D runs as from 1 July until 30 June of the following year. 3. The Football Association A confirmed that the player J was registered with its affiliated club B (hereinafter: the Respondent) on 1 September 2006. 4. On 28 February 2008, the Claimant lodged a claim in front of FIFA against the Respondent, claiming its relevant share of solidarity contribution for the transfer of the player J from the club C (hereinafter: Club C) to the Respondent. The Claimant requested payment of 20% out of the 5% share of solidarity contribution, i.e. it claimed an amount of EUR 49,000. 5. In support of its claim, the Claimant explained that the player J had previously been transferred from the Claimant to club C in August 2005 for a transfer compensation of EUR 24,500,000. In this respect, the transfer agreement provided by the Claimant and concluded between the Claimant and club C provides for an unconditional transfer compensation of EUR 20,000,000. Furthermore, said agreement stipulates various conditional payments up to an additional amount of EUR 4,500,000. 6. Furthermore, the Claimant stated that the player J was then transferred from club C to the Respondent in August 2006 on a loan basis for the season 2006/2007. The Claimant indicated that, based on the information it had at disposal, there was no transfer compensation paid by the Respondent to club C, but that the player J was exchanged with the player R (hereinafter: the player R) who was transferred from the Respondent to club C. 7. In this respect, the Claimant argued that the fact that no transfer compensation was paid for the player J would not mean that this transfer did not have an economic value. To decide otherwise, i.e. not to attribute an economic value to such a transfer and not to apply the respective provisions regarding solidarity contribution in case of an exchange of players would, according to the Claimant, mean a circumvention of the solidarity mechanism and this would create a means to distort said mechanism and to possibly commit fraud. 8. As to the calculation of the relevant solidarity contribution and the market value of the transfer of the player J, the Claimant held that the best approach was to base the calculation on the amount paid by club C to the Claimant for the player J. The Claimant suggested to take into account said amount proportionally, in accordance with the period of validity of the player J’s contract with club C after the transfer from the Claimant. This is, the Claimant suggested to divide the transfer compensation of EUR 24,500,000 paid by Club C to the Claimant into the five years of validity of the player J’s contract with club C to establish a value of EUR 4,900,000 for one year. Since the loan of the player J from club C to the Respondent was concluded for one year, the Claimant deemed the amount of EUR 4,900,000 to be the relevant figure to calculate the solidarity contribution. 9. Alternatively, the Claimant suggested that an adequate method of calculation would be to take into account the gross annual salary and all the compensation paid to the player R, since at least this amount would represent what the Respondent had saved due to the transfer in question. The Claimant also held that the calculation of this amount would have to be done and clarified by the Respondent. 10. The transfer agreement concluded between the Respondent and Club C contained the following relevant provisions: “(…) (C) Club C and Club B wish to effect (i) the transfer of the registration of J to Club B and (ii) the transfer of the registration of R to club C, in each case on the terms set out in this Agreement. (…) 2. Transfer compensation 2.1 Subject to the fulfilment of the Condition set out in clause 3.1 (A) below, and in consideration for club C effecting the J Transfer, club B shall: (A) effect the R Transfer; (B) pay to club C any amounts determined to be payable by club B to club C pursuant to clause 2.3 (…); and (C) pay to club C any amount determined to be payable by club B to club C pursuant to clause 2.4. 2.2 Subject to the fulfilment of the Condition set out in clause 3.1 (B) below, and in consideration for Club B effecting the R Transfer, club C shall: (A) effect the J Transfer; (B) pay to club B any amounts determined to be payable by club C to club B pursuant to clause 2.3 (…); and (C) pay to club B any amount determined to be payable by club C to club B pursuant to clause 2.4. 2.3 For the purpose of this clause 2.3: ’R Amount’ means the aggregate of (i) the gross cost to club C of employing R for the period from 1 September 2006 to 30 June 2007 pursuant to the terms and conditions of the R Employment Contract and (ii) any training and development compensation payable by Club C pursuant to FIFA Regulations in respect of the J Transfer; and ‘J Amount’ means the aggregate of (i) the gross cost to Club B of employing J for the period from 1 September 2006 to 30 June 2007 pursuant to terms and conditions of the J Employment Contract and (ii) any training and development compensation payable by Club B pursuant to FIFA Regulations in respect of the R Transfer. (A) If the J Amount is greater than the R Amount, then Club C shall pay to Club B an amount equal to such difference. (B) If the R Amount is greater than the J Amount, then Club B shall pay to Club C an amount equal to such difference. (C) If the J Amount is equal to the R Amount, then no payments shall fall to be paid under this clause 2.3. (…) 2.4 (A) Club B and Club C agree to meet prior to 31 May 2007 to negotiate in good faith: (i) the transfer value of J (the ‘J Value’); and (ii)the transfer value of R (the ‘R Value’). The J Value shall take into account any payment made by Club B under clause 2.3 above and shall not exceed EUR 20,000,000. The R Value shall take into account any payment made by Club C under clause 2.3 above and shall not exceed EUR 25,000,000. (…)” 11. Furthermore, the Claimant referred to a DRC decision dated 12 January 2007 and alleged that said decision dealt with a case with similar characteristics, the only difference being that said decision concerned a definitive transfer and not a loan. 12. In addition, the Claimant argued that, even if according to the jurisprudence of the DRC payments to third parties should not be taken into account to establish the solidarity payment due, the DRC had established that reimbursements made to the club of origin of a player in a transfer, whether they are monetary or non-monetary and whether the transfer was temporary or permanent, had to be taken into account to calculate the relevant solidarity contribution. 13. The Claimant furthermore stated that the absence of a monetary reward could only create a problem as regards the calculation of the solidarity contribution, but it could not bring about the inexistence of solidarity contribution. 14. In this respect, the Claimant also invoked Country D legislation, according to which an exchange or trade-off had to be valuated according to the relevant market value. 15. In its response, the Respondent rejected the Claimant’s claim and explained that no transfer compensation was payable, or paid, by the Respondent to Club C in respect of the transfer of the player J. Consequently, in the absence of any loan fees, no solidarity payments could be due. Furthermore, the Respondent stated that transfer compensation would only have become payable “should the transfers have become permanent. As all parties are aware, this did not occur: each player returned to his previous club at the end of one season.” 16. In addition, the Respondent explained that the only monies paid by it were payments made to the player J in respect of his wages. 17. The Respondent further argued that the transfer at the centre of the present dispute was “a common deal structure” and that it was clear that in the absence of any loan fees, no solidarity contribution is due. The Respondent also held that this was a very different situation from the DRC jurisprudence, as invoked by the Claimant, because in the decision to which the Claimant referred, the respective clubs had effected two permanent transfers of players. 18. Moreover, the Respondent held that, in case FIFA should take the view that solidarity contribution was due, such contribution could only be paid “on any balancing payments made in respect of the salary differential between [player R] and [player J]”. The Respondent stated that Club C had paid to the Respondent the amount of xy 1,090,400 pursuant to clause 2.2 of the agreement between Club C and the Respondent. 19. Finally, the Respondent referred to clause 2.5 of the agreement between Club C and the Respondent according to which Club C was responsible for any solidarity payments in respect of the player J. Therefore, the Respondent held that, in any case, it was not liable for any such payments. 20. In their subsequent submissions, both the Claimant and the Respondent reiterated their previous position. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 28 February 2008. Consequently, the 2005 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2010) the Chamber is competent to deal with the matter at stake with an international dimension concerning the distribution of the solidarity contribution claimed by the Claimant from the Respondent in connection with an international transfer of a player. 3. In this respect, the Chamber was eager to point out that contrary to the information contained in FIFA’s letter dated 10 August 2012 by means of which the parties were informed of the composition of the Chamber, the Chairman P refrained from participating in the deliberations due to the fact that he has the same nationality as the Respondent. Therefore, the Chamber adjudicated in the presence of four members, two club representatives and two player representatives. 4. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (editions 2008, 2009 and 2010) and considering that the present claim was lodged on 28 February 2008 as well as that the player was registered with his new club on 1 September 2006, the 2005 edition of said Regulations (hereinafter: Regulations) is applicable to the present matter as to the substance. 5. In continuation, and entering into the substance of the matter, the DRC started by acknowledging that the loan agreement concluded between Club C and the Respondent provided the exchange of the player R, who was registered with the Respondent, for the player J, who was registered with Club C. Hence, the loan agreement did not mention any specific amount as loan compensation to be paid for the loan of the player J, but that instead an exchange with the player R had been agreed upon between Club C and the Respondent. 6. In continuation, the Chamber observed that the Claimant asserted that it was entitled to receive solidarity contribution since the exchange of players did undoubtedly have an economic value. To deny such economic value would, according to the Claimant, result in the circumvention of the solidarity mechanism, which consequently would lead to the distortion of said mechanism. 7. Equally, the Chamber took note of the position of the Respondent, which was of the opinion that no solidarity contribution was due to the Claimant in view of the fact that there had been no compensation paid by the Respondent to Club C in relation to the transfer of the player J. Moreover, in relation to the decision referred to by the Claimant, the Respondent pointed out that the present matter deals with a different situation since the clubs involved in the aforementioned decision agreed upon the definitive transfer of the players, whereas the Respondent and Club C had agreed upon a loan exchange and, hence, the players would return to their clubs of origin after the expiry of the loans. 8. With due consideration to the above, the Chamber first referred to art. 21 and Annex 5 of the Regulations, which stipulate that, as a general rule, the solidarity contribution corresponds to 5% of any compensation, with the exception of training compensation, paid by the new club to the former club. What is more, the Chamber referred to the second sentence of art. 10 of the Regulations, which, in relation to the loan of players, outlines that the loan is subject to the same rules as apply to the transfer of players, including the provisions on training compensation and the solidarity mechanism. In this context, the Chamber stressed that, in principle, art. 21 and Annex 5 of the Regulations are also applicable to loan transfers. 9. Having established the above, the Chamber outlined that, as a general principle, any transfer agreement, including a loan agreement, represents a bilateral agreement, which implies a mutual exchange of obligations between the parties involved. In the matter at hand, by means of the signing of the loan agreement, the parties agreed upon a mutual exchange of obligations, whereby no loan compensation payment was specified, but in which two players were exchanged. Yet, the Chamber concluded that the present exchange of players implied indirectly a financial agreement, i.e. an agreement with a monetary component, due to the fact that the relevant qualities of the players have an economic value in the football employment market. 10. In connection with the preceding consideration, the Chamber referred to art. 1 of Annex 5 of the Regulations, and, more specifically, to the interpretation to be given to said article and to the solidarity mechanism in general. In this respect, the Chamber remarked that the aforementioned article should be interpreted according to its overall aim and primary purpose. In this respect, the Chamber underlined that the solidarity mechanism is meant to foster the training of young players by awarding a contribution that will be distributed to all clubs that have trained the player between the seasons of the player’s 12th and 23rd birthday. 11. In light of the aforementioned, the Chamber was of the unanimous opinion that the provisions regarding the solidarity mechanism also apply whenever there is an exchange of players, regardless from whether such exchange is on a temporary or permanent basis, and that, thus, the provisions regarding the solidarity mechanism cannot be circumvented by means of an exchange of players. In other words, the Chamber was of the opinion that in order to obtain the player J, the Respondent had “paid” Club C with the player R. 12. In view of the above, the Chamber decided that the Claimant is entitled to receive solidarity contribution in connection with the exchange of the players on a loan basis. 13. In continuation, the members of the Chamber underlined that the next issue in the present matter was to establish the value of the amount of money indirectly agreed upon between the parties for the exchange of players, in the current matter, for the loan of the player J. Thus, the Chamber had to establish the most appropriate value in order to calculate the relevant solidarity contribution. 14. In this context, the Chamber reiterated that in exchange for the loan of the player J from Club C to the Respondent, the latter had “paid” Club C with the player R. Hence, the Chamber did not share the opinion of the Claimant that, in order to determine the amount of solidarity contribution due to the Claimant in connection with the loan of the player J to the Respondent, it had to assess the market value of the player J. In fact, the Chamber stressed that it had to determine the market value of the player R, since the player R has to be considered as the “compensation paid” for the loan of the player J from Club C to the Respondent. 15. In this respect and in order to determine the market value of the player R, the members of the Chamber considered all the relevant elements in the present matter. The Chamber noted that the player J had been previously transferred from the Claimant to Club C for a transfer compensation amounting to EUR 24,500,000, including contingent payments, whereas the player R had been previously transferred from the Claimant to the Respondent for a transfer compensation amounting to EUR 22,500,000, including contingent payments. Consequently, the Chamber determined that to establish the basis for the assessed transfer value of the player R, it should take into account the transfer compensation paid by the Respondent to the Claimant for the transfer of the player R, i.e. EUR 22,500,000. 16. The Chamber further took note that upon signing the player R, the Respondent and the player R had concluded an employment contract for the duration of 4,5 years. 17. In continuation, and establishing the compensation on a pro rata basis, the Chamber concluded that the amount of EUR 22,500,000 should be divided by 4,5 years and that, thus, the starting point in order to determine the most appropriate value in order to calculate the relevant solidarity contribution shall be calculated on the basis of the assessed transfer compensation of EUR 5,000,000 (EUR 22,500,000 / 4,5 = EUR 5,000,000). 18. Having established the above, the Chamber deemed that the amount of EUR 5,000,000 should be further reduced, considering that the present matter concerns a transfer on a loan basis and not a transfer on a permanent basis and that, thus, the player returned to his club of origin after expiry of the loan period. Therefore, the Chamber deemed it appropriate to further reduce the assessed transfer compensation with 40%, which results in the amount of EUR 3,000,000 (EUR 5,000,000 - 40% = EUR 3,000,000). 19. In view of the foregoing and considering all the elements of the present matter, the Chamber concurred that the amount of EUR 3,000,000 is to be deemed as the most appropriate value as the transfer amount in order to calculate the relevant solidarity contribution in the present matter. 20. Having established the amount to serve as the basis for the calculation of the solidarity contribution, the Chamber referred once more to art. 21 in connection with Annex 5 of the Regulations, according to which the new club of the player shall distribute 5% of the relevant compensation as solidarity contribution to the club(s) involved in the training and education of the player, reflecting the number of years the player was registered with the relevant club(s) between the seasons of his 12th and 23rd birthdays. 21. In this respect, the Chamber recalled that the Football Federation M had confirmed that the player, born on October 1981, was registered with the Claimant as from 20 August 2003 until 2 August 2005, i.e. for 10 months of the season of the player’s 22nd birthday and for the complete season of the player’s 23rd season. 22. As a result, the Chamber decided that in accordance with the breakdown provided for in art. 1 of Annex 5 of the Regulations, the Claimant is entitled to receive 18,33% of the 5% of the amount of EUR 3,000,000 as solidarity contribution from the Respondent. 23. In view of all the above, the Chamber concluded that the Respondent has to pay to the Claimant a solidarity contribution of EUR 27,495 for the loan of the player from Club C to the Respondent. 24. In addition, the Dispute Resolution Chamber decided that any further claims lodged by the Claimant are rejected. ** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club A, is partially accepted. 2. The Respondent, Club B, has to pay to the Claimant Club A, the amount of EUR 27,495 within 30 days as of notification of the present decision. 3. If the aforementioned sum is not paid within the stated time limit, interest at a rate of 5 % p.a. will apply as of expiry of the stipulated time-limit, and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claims lodged by the Claimant, Club A, are rejected. 5. The Claimant, Club A, is directed to inform the Respondent, Club B, 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. 67 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: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Enclosed: CAS directives