F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution / contributo di solidarietà – (2016-2017) – fifa.com – atto non ufficiale – Decision 25 September 2015

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 September 2015,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Carlos González Puche (Colombia), member

Guillermo Saltos Guale (Ecuador), member

Alejandro Marón (Argentina), member

on the claim presented by the club,

Club A, country B

as Claimant

against the club,

Club C, country D

as Respondent

regarding a solidarity contribution dispute related

to the transfer of the Player E

I. Facts of the case

1. According to the player passport issued by the Football Federation of country B, Player E from country B (hereinafter: the player), born on 30 August 1993, was registered with the Club A from country B (hereinafter: the Claimant) as from 2 September 2009 until 6 September 2009, as an amateur and from 7 September 2009 until 31 January 2011 as a professional.

2. The football season in country B follows the calendar year.

3. The Football Federation from country D confirmed that the player was registered with its affiliated club, Club C (hereinafter: the Respondent), on 5 August 2013.

4. According to the Claimant, the club from country B, Club C (hereinafter: Club C), concluded a transfer agreement with the Respondent for the transfer of the player, from Club C to the Respondent.

5. According to the information contained in the Transfer Matching System (TMS), the Club G from country F (hereinafter: Club G), was also part of this agreement, as Club G had a prior agreement with Club C for the permanent transfer of the player. The Respondent overtook the remaining financial obligations of Club G towards Club C and the Respondent obliged itself to reimburse Club G the amount the latter had already paid.

6. On 31 January 2014, the Claimant contacted FIFA claiming its proportion of the solidarity contribution in connection with the transfer of the player concerned from Club C to the Respondent on 11 July 2013. In particular, the Claimant requested 14.17% of 5% of the total transfer compensation, plus 5% interest p.a. as from “the date in which the payments were effectively due”.

7. According to the information contained in the TMS, Club C and the Respondent agreed upon a transfer compensation amounting to EUR 2,500,000 payable as follows:

- EUR 937,500 until 15 July 2013 to be paid to Club C;

- EUR 625,000 until 31 July 2013 to be paid to Club G;

- EUR 937,500 until 15 December 2013 to be paid to Club C.

8. In its reply to the claim, the Respondent argued that it had already paid solidarity contribution to the Claimant in connection with the transfer of the player before the claim was lodged. The Respondent argued that it paid the amount of EUR 17,750 calculated as 0.71% of the total transfer compensation.

9. The Respondent further argued that it paid the amount in two instalments on 21 November 2013 and 27 January 2014, respectively. The Respondent explained that it paid according to the bank instruction received, but that the payment was blocked by the Bank of country B, as the bank was waiting for some information to be provided by the Claimant.

10. In its replica, the Claimant argued that the payments mentioned by the Respondent were not received, as they were retained by the Central Bank of country B and subsequently returned to the Respondent. The Claimant provided again its bank details to the Respondent and requested the payment of EUR 17,750.

11. In its duplica, the Respondent repeated its position and argued that the amounts allegedly paid, remain blocked and were never returned.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 31 January 2014. Consequently, the 2012 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2012, 2014 and 2015 editions of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. in conjunction with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2015), the Dispute Resolution Chamber is competent to decide on the present matter, which concerns a dispute relating to the solidarity mechanism between clubs belonging to different associations.

3. Furthermore, the DRC analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the members referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and 2015) and, on the other hand, to the fact that the player was registered with the Respondent on 5 August 2013. In view of the aforementioned, the Chamber confirmed that the 2012 edition of the Regulations on the Status and Transfer of Players (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 DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the DRC noted that the Claimant claimed 14.17% of 5% of the total transfer compensation paid by the Respondent, as solidarity contribution.

6. In addition to the above, the Chamber recalled that according to the information contained in the TMS, the Respondent and Club C agreed upon a transfer compensation of EUR 2,500,000 payable as follows:

- EUR 937,500 until 15 July 2013 to be paid to Club C;

- EUR 625,000 until 31 July 2013 to be paid to Club G;

- EUR 937,500 until 15 December 2013 to be paid to Club C.

7. Furthermore, the DRC noted that the Respondent asserted that, even before the claim at hand was lodged, it paid solidarity contribution to the Claimant in connection with the transfer of the player. In this respect, the members of the Chamber took note that the Respondent argued that it paid the amount of EUR 17,750, calculated as 0.71% of the total transfer compensation, to the Claimant.

8. In this regard, the members of the DRC referred to the content of art. 12 par. 3 of the Procedural Rules according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof and outlined that the Respondent presented evidence confirming that the amount was actually paid in two instalments, on 21 November 2013 and 27 January 2014, respectively.

9. Equally, the members of the Chamber took note that the Respondent held that, however, the payments mentioned above were blocked by the Bank of country B, as according to it, “the payment was blocked by the Bank of country B which was waiting for [the Claimant] to supply the Bank of country B with certain details”. Furthermore, it was observed by the DRC that the Respondent also held that the corresponding amount was not returned to it to its bank account.

10. Subsequently, the DRC then proceeded to focus on the arguments of the Claimant. In this regard, the Claimant argued that the above mentioned payments were not received, as they were retained by the Central Bank of country B and subsequently returned to the Respondent.

11. In this respect, the Chamber took note that the Claimant submitted evidence to support its allegation, however, the evidence presented by the Claimant was only submitted in its original version i.e. in the Portuguese language.

12. At this point, the Chamber recalled that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German). Bearing in mind the wording of the aforementioned provision, the Chamber concluded that as no translation was provided by the Claimant, the evidence submitted could not be taken into account.

13. Consequently, the members of the DRC deemed that no substantial evidence was provided by the Claimant with regard to the return of the above mentioned payments to the Respondent, while on the other hand, the DRC deemed that the Respondent provided adequate evidence that it paid the amount of EUR 17,750, to the Claimant, and that said amount was not returned after being withheld by the Bank of country B.

14. On the basis of all these considerations, the DRC unanimously concluded that the Respondent had duly paid the relevant solidarity contribution to the Claimant and that the claim of the Claimant must be rejected.

15. In continuation, the deciding authority referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Dispute Resolution Chamber relating to disputes regarding solidarity mechanism costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings.

16. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

17. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 17,713 related to the claim of the Claimant. Therefore, the DRC concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A).

18. As a result, and taking into account the particularities of the present matter, the complexity of the case as well as that the claim of the Claimant is rejected, the DRC determined the costs of the current proceedings to the amount of CHF 3,000, which shall be borne by the Claimant.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Club A, is rejected.

2. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Claimant, within 30 days of notification of the present decision, to FIFA to the following bank account with reference to case no.:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

*****

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

For the Dispute Resolution Chamber:

Markus Kattner

Acting Secretary General

Enclosed: CAS directives