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 15 July 2016

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 July 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Theo van Seggelen (Netherlands), member

Mohamed Al Saikhan (Saudi Arabia), member

on a matter between the club,

Club A, country B

as Claimant

against the club,

Club C, country D

as Respondent

regarding solidarity contribution in connection with the transfer

of the Player E

I. Facts of the case

1. According to a player passport issued by the Football Association of country B (hereinafter: Football Association of country B), the player, Player E (hereinafter: the player), born on 29 October 1987, was registered with the following clubs from country B:

- Club A (hereinafter: Club A or Claimant) as from:

 26 July 2001 until 31 December 2001;

 12 August 2002 until 31 December 2002;

 26 June 2003 until 31 December 2003;

 10 May 2004 until 24 February 2005;

 26 May 2005 until 1 September 2005;

- Club F, as from 25 February 2005 until 25 May 2005;

- Club G, as from 1 September 2008 until 1 December 2008.

2. The football season in country B follows the calendar year, i.e. from January until December of the relevant year.

3. According to the information in the Transfer Matching System (TMS), the player was registered with the club from country D, Club C (hereinafter: Club C or Respondent), on 18 August 2011.

4. According to the information contained in TMS, on 31 January 2011, the Club I from country H (hereinafter: Club I) and Club C agreed upon a definitive transfer of the player from Club I to Club C for a transfer compensation of EUR 4,100,000, payable as follows:

 the amount of EUR 2,700,000 ‘by 5 days from signing this transfer agreement’;

 the amount of EUR 200,000 on 15 March 2011;

 the amount of EUR 300,000 on 31 March 2011;

 the amount of EUR 400,000 on 30 April 2011;

 the amount of EUR 250,000 on 31 May 2011;

 the amount of EUR 250,000 on 10 July 2011.

5. On 19 September 2011, Club A lodged a claim in front of FIFA, claiming its proportion of the solidarity contribution in connection with the transfer of the player from Club I to Club C, for an alleged transfer compensation of EUR 4,500,000.

6. In particular, Club A requested the amount of EUR 45,000 as solidarity contribution, plus 5% interest as from July 2011, corresponding to 20% of 5% of the total transfer fee.

7. In spite of having been invited by FIFA to provide its position regarding the claim, Club C did not respond to the claim of Club A within the investigation phase of the matter at hand.

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 19 September 2011. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 and 2 in conjunction with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2016), 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. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 8 July 2016, by means of which the parties were informed of the composition of the Chamber, the member J refrained from participating in the deliberations in the case at hand, due to the fact that he has the same nationality as Club C. In order to comply with the prerequisite of equal representation of club and player representatives, also the member K refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

4. 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 (edition 2016) and, on the other hand, to the fact that the player was registered with Club C on 18 August 2011 and that the present claim was lodged on 19 September 2011. In view of the aforementioned, the Chamber confirmed that the 2010 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

5. The competence of the DRC 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 Chamber 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.

6. In this respect, the DRC noted that Club A claimed from Club C the payment of the solidarity contribution, according to Club A corresponding to 20% of 5% of the alleged total transfer compensation of EUR 4,500,000.

7. In addition to the above, the Chamber took into account that according to the transfer agreement concluded between Club I and Club C, said parties agreed upon a transfer compensation of EUR 4,100,000. Said transfer compensation was payable in six instalments, the first instalment of EUR 2,700,000 falling due within five days from the signing of the transfer agreement, the second instalment of EUR 200,000 falling due on 15 March 2011, the third instalment of EUR 300,000 falling due on 31 March 2011, the fourth instalment of EUR 400,000 falling due on 30 April 2011, the fifth instalment of EUR 250,000 falling due on 31 May 2011 and the sixth instalment of EUR 250,000 falling due on 10 July 2011.

8. Furthermore, the members of the Chamber noted that Club C, during the investigation phase of the matter at hand, never took position in the specific matter relating to the claim of Club A, although having been invited to do so by FIFA. Therefore, the Chamber deemed that, in this way, Club C renounced to its right to defence and therefore accepted the allegations of Club A.

9. As a consequence of the aforementioned consideration, the Chamber established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall pass a decision upon the basis of the documents already on file i.e. upon the statements and documents presented by Club A as well as upon the information contained in the TMS.

10. Having established the above, the Chamber referred to art. 21 in combination with art. 1 of Annexe 5 of the Regulations which stipulate that, if a professional moves during the course of a contract, 5% of any compensation, not including training compensation paid to his former club, shall be deducted from the total amount of this compensation and be distributed by the new club as a solidarity contribution to the club(s) involved in the training and education of the player between the seasons of his 12th and 23rd birthday.

11. In this respect, the DRC recalled that the Football Association of country B had confirmed that the player, born on 29 October 1987, was registered with Club A as from 26 July 2001 until 31 December 2001, as from 12 August 2002 until 31 December 2002, as from 26 June 2003 until 31 December 2003, as from 10 May 2004 until 24 February 2005 and as from 26 May 2005 until 1 September 2005.

12. On account of the above and in accordance with art. 1 of Annexe 5 of the Regulations, the DRC considered that Club A is, thus, entitled to receive solidarity contribution for (a) the period 26 July 2001 until 31 December 2001, i.e. for 5 months of the season of the player’s 14th birthday, (b) for the period as from 12 August 2002 until 31 December 2002, i.e. for 5 months of the season of the player’s 15th birthday, (c) for the period 26 June 2003 until 31 December 2003, i.e. for 6 months of the season of the player’s 16th birthday, (d) for the period 10 May 2004 until 31 December 2004, i.e. for 8 months of the season of the player’s 17th birthday and (e) for the period between 1 January 2005 and 24 February 2005, as well as for the period between 26 May 2005 and 1 September 2005, i.e. for 5 months of the season of the player’s 18th birthday. In this respect, and considering the percentage claimed by Club A, the Chamber decided that Club A is entitled to 20% of 5% of the transfer fee.

13. In view of all of the above, the DRC decided to partially accept the claim of Club A for 20% of 5% of the total transfer compensation, amounting to EUR 4,100,000 as detailed in point I.4 above, and held that Club C is liable to pay the amount of EUR 41,000 to Club A as solidarity contribution in relation to the transfer of the player from Club I to Club C.

14. Furthermore, and taking into consideration both the claim of Club A as well as art. 2 par. 1 of Annexe 5 of the Regulations, the Chamber decided that Club C has to pay, in conformity with the longstanding practice of the DRC, interest at rate of 5% p.a. as from the due dates, as follows:

a) 5% p.a. on the amount of EUR 27,000 as from 1 July 2011;

b) 5% p.a. on the amount of EUR 2,000 as from 1 July 2011;

c) 5% p.a. on the amount of EUR 3,000 as from 1 July 2011;

d) 5% p.a. on the amount of EUR 4,000 as from 1 July 2011;

e) 5% p.a. on the amount of EUR 2,500 as from 1 July 2011;

f) 5% p.a. on the amount of EUR 2,500 as from 10 August 2011.

In this respect, the Chamber decided that the interest could only be awarded as from 1 July 2011 as requested on the first five instalments, since the sixth instalment had only fallen due on 10 July 2011.

15. In continuation, the Chamber 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. In this respect, the Chamber reiterated that the claim of Club A is partially accepted and established that Club C has to bear the costs of the current proceedings in front of FIFA.

17. 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.

18. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 45,000 related to the claim of Club A. Therefore, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A).

19. Considering that the case at hand in principle did not show particular factual difficulty and that it did not involve specific legal complexity, and the fact that Club C did not reply during the investigation phase of the matter at hand, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 5,000.

20. In view of all of the above, the Chamber concluded that the amount of CHF 5,000 has to be paid by Club C to cover the costs of the present proceedings.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Club A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days of the date of notification of this decision, the amount of EUR 41,000, plus 5% interest p.a. until the date of effective payment as follows:

a) 5% p.a. on the amount of EUR 27,000 as from 1 July 2011;

b) 5% p.a. on the amount of EUR 2,000 as from 1 July 2011;

c) 5% p.a. on the amount of EUR 3,000 as from 1 July 2011;

d) 5% p.a. on the amount of EUR 4,000 as from 1 July 2011;

e) 5% p.a. on the amount of EUR 2,500 as from 1 July 2011;

f) 5% p.a. on the amount of EUR 2,500 as from 10 August 2011.

3. In the event that the aforementioned sum and interest are not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

5. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Respondent within 30 days of notification of the present decision, to FIFA to the following bank account with reference to case no. XXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are 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. 58 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:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives