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 18 August 2016

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 18 August 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Joaquim Evangelista (Portugal), member

Johan van Gaalen (South Africa), member

Todd Durbin (USA), member

Zola Majavu (South Africa), 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

Player E

I. Facts of the case

1. According to the player passport issued by the Football Association of country B, the player, Player E (hereinafter: the player), born on 14 April 1984, was registered with its affiliated club, Club A (hereinafter: Club A or the Claimant), as follows:

Club From To Status

Club A

23 February 2001

12 July 2006

Amateur until the season 2002, professional as from the season 2003-2004

Club A

1 July 2007

16 January 2008

Professional

2. The sporting season in country B runs as follows: a) for amateurs (under 20 years of age) from January until December of the relevant year and b) for amateurs (more than 20 years of age) and professionals from 1 July until 30 June of the following year.

3. The Football Association of country D confirmed that the player was registered with its affiliated club, Club C (hereinafter: the Respondent) on 12 February 2014.

4. According to the information contained in the Transfer Matching System (TMS), the club from country F, Club G (hereinafter: Club G), and the Respondent agreed, on 28 January 2014, on the transfer of the player to the latter for the amount of EUR 7,500,000 “net of taxes or any other retention or deduction”, payable until 12 February 2014.

5. Moreover, Club G and the Respondent agreed upon the following:

“2.1.1. The amount agreed as training compensation and/or solidarity mechanism shall be paid equally.

2.1.2. Since Club G is responsible for distributing the amount due as solidarity mechanism to the player’s former clubs, [the Respondent], in this act, agrees to pay Club G the amount corresponding to half of the solidarity contribution. [EUR] 187,500.”

6. On 3 August 2015, the Claimant lodged a claim in front of FIFA, which was finally completed on 9 December 2015. In particular, the Claimant requested its proportion of the solidarity contribution in connection with the aforementioned transfer, for the alleged amount of EUR 7,000,000. In particular, the Claimant requested the payment of 3.47% of the total transfer amount or EUR 242,900 plus “interests and costs”. After having been informed of the financial details of the transfer, the Claimant amended its claim requesting 3.47% of the transfer compensation of EUR 7,500,000.

7. On 18 March 2016, the Respondent provided its reply and confirmed that the transfer amount was settled in the sum of EUR 7,500,000, but explained that, according to the contract, a copy of which it provided Club G is responsible for the distribution of the solidarity contribution and that, consequently, it paid the amount of EUR 187,500 to the latter (i.e. half of the total solidarity contribution). Therefore, Club C requested FIFA “to let Club G distribute the solidarity contribution to [the Claimant]”.

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, it took note that the present matter was submitted to FIFA on 3 August 2015. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2015 edition 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 2016), the Dispute Resolution Chamber is competent to deal with the matter at stake relating to a dispute regarding the solidarity mechanism between clubs belonging to different associations.

3. Furthermore, the Chamber 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, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2014, 2015 and 2016), and considering that the player was registered with the Respondent on 12 February 2014, the 2012 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.

4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case as well as the documentation on file. 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. First of all, the DRC took note that the Claimant requested 3.47% of the transfer compensation as solidarity contribution from the Respondent in relation with the transfer of the player from Club G to the Respondent.

6. Equally, the DRC took note that, on 18 March 2016, the Respondent stated that it had already paid the transfer compensation as well as half of the solidarity contribution to Club G, and requested FIFA “to let distribute the solidarity contribution to [the Claimant]”, on the grounds of the stipulations contained in clauses 2.1.1. and 2.1.2 of the relevant transfer contract.

7. Having established the above, the DRC recalled the contents of said clauses, and observed that Club G and the Respondent agreed to equally pay the amounts pertaining to the solidarity contribution to the player’s former clubs.

8. In this respect, the Chamber wished to refer the parties to the content of art. 1 of Annexe 5 of the Regulations, which stipulates 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 distributed by the new club as a solidarity contribution to the club(s) involved in his training and education over the years” (emphasis added).

9. Furthermore, the Chamber referred to the well-established jurisprudence of the DRC with regard to cases in which the player’s new club does not withhold 5% of the agreed transfer compensation when paying such transfer compensation, but nevertheless is asked to distribute solidarity contribution to the player’s training clubs. To clarify, according to the mentioned jurisprudence, 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 and education in strict application of art. 21 and art. 1 and art. 2 of Annexe 5 of the Regulations. At the same time, according to said well-established jurisprudence, 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.

10. Notwithstanding the above, the Chamber considered of utmost importance to verify if the Respondent’s request to involve Club G in the procedure was compliant with the provisions set forth in art. 25 par. 5 of the Regulations, which reads as follows:

“The Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as the case may be) shall not hear any case subject to these regulations if more than two years have elapsed since the event giving rise to the dispute. Application of this time limit shall be examined ex officio in each individual case.”

11. Moreover, the members of the Chamber also observed the provisions contained in art. 2 par.1. of Annexe 5 of the Regulations, according to which as a general rule, the solidarity contribution is payable no later than 30 days after the player’s registration with the new club. Within the context of the current dispute, the members of the Chamber observed that the player was registered with the Respondent on 12 February 2014 and, consequently the solidarity contribution would be payable at the latest on 15 March 2014.

12. Whereas, on the basis of what is mentioned in the previous paragraphs, more than two years elapsed between the event that giving rise to the dispute (i.e. the deadline for the payment of the solidarity contribution on 15 March 2014) and the date of the Respondent’s request before FIFA (i.e., 18 March 2016), the members of the Chamber observed that said request was not compliant with the provisions set forth in art. 25 par. 5 of the Regulations. In other words, the members of the Chamber observed that said request was time-barred, and consequently decided that it was inadmissible.

13. As a result, and in the light of the previous considerations, the members of the Chamber unanimously agreed that the Respondent is, in principle, to be held liable for the payment of the solidarity contribution to the Claimant.

14. In this respect, the DRC noted that the Claimant claimed the payment of solidarity contribution from the Respondent, corresponding to 3.47% of the transfer compensation paid by the Respondent for the transfer of the player.

15. In addition to the above, the DRC took into account that according to the information contained in the Transfer Matching System, Club G and the Respondent agreed upon a transfer compensation of EUR 7,500,000.

16. Furthermore, the DRC duly noted that the Respondent never took position as to the specific calculation of the solidarity contribution, although having been invited to do so by FIFA.

17. Having established the above, the DRC referred again to art. 21 of the Regulations in combination with art. 1 of Annexe 5 of the Regulations which establish 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 in proportion of the number of years the player has been registered with the relevant club(s) between the seasons of his 12th and 23rd birthday.

18. In this respect, the DRC recalled that the Football Association of country B had confirmed that the player, born on 14 April 1984, was registered with the Claimant as from 23 February 2001 until 12 July 2006, and as from 1 July 2007 until 16 January 2008.

19. In this respect, the Chamber wished to underline that, notwithstanding the above, the period comprised between 1 July 2007 until 16 January 2008 would correspond to the season of the player’s 24th birthday. Thus, the Chamber pointed out that said period cannot be taken into account in order to determine the amount due as solidarity contribution.

20. On account of the above and in accordance with art. 1 of Annexe 5 of the Regulations, the DRC considered that the Claimant is, thus, entitled to receive solidarity contribution for the period comprised between 23 February 2001 until 12 July 2006 only.

21. Therefore, and in accordance with art. 1 of Annexe 5 of the Regulations, the DRC considered that the Claimant is, thus, entitled to receive solidarity contribution. In terms of the percentage of the 5% solidarity contribution, the Chamber calculated that, on a pro rata basis, this corresponds to 58.33% of the 5% of the total transfer amount.

22. In application of the relevant calculation, the DRC decided to partially accept the claim of the Claimant and held that the Respondent is liable to pay the amount of EUR 218,737.50 to the Claimant as solidarity contribution in relation to the transfer of the player from Club G to the Respondent.

23. In addition, and taking into account the Claimant’s request and its own jurisprudence, the DRC decided to grant 5% interest p.a. over said amount as from the date of the claim.

24. Lastly, the DRC referred to art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the DRC relating to disputes regarding training compensation and the solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further stipulated that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

25. In respect of the above, the DRC held that the amount to be taken into consideration in the present proceedings is EUR 242,900 related to the percentage claimed by the Claimant. The DRC concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A of the Procedural Rules).

26. As a result, considering the complexity of the case at hand as well as that the claim of the Claimant has been partially accepted, the DRC determined the final costs of the current proceedings to the amount of CHF 20,000. In particular, the DRC determined that the Respondent shall pay the amount of CHF 18,000, whereas the amount of CHF 2,000 shall be borne by the Claimant.

27. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

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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 as from the date of notification of this decision, the amount of EUR 218,737.50 plus 5% interest p.a. as of 3 August 2015 until the date of effective payment.

3. In the event that the aforementioned sum plus interest is 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 20,000 are to be paid within 30 days as from the date of the notification of the present decision, as follows:

5.1. The amount of CHF 15,000 has to be paid by the Respondent to FIFA to the following bank account with reference to case nr. xxxxxxxxxxxxxxxx:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2. The amount of CHF 3,000 has to be paid by the Respondent directly to the Claimant.

5.3. The amount of CHF 2,000 has to be paid by the Claimant to FIFA. Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the beginning of the dispute, no procedural costs are due by the Claimant.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. is to be made and to notify the Dispute Resolution Chamber of every payment received.

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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 (CAS)

Avenue de Beaumont 2

CH-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:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives