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 17 December 2015

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 December 2015,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

Joaquim Evangalista (Portugal), member

on the claim presented by 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 the player passport issued by the Football Association of country B, the player from country B, Player E (hereinafter: the player), born on 29 April 1984, was registered with the Club A from country B (hereinafter: Club A), as from 24 January 2001 until 17 September 2002.

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

3. According to the transfer agreement submitted by the club from country D, Club C (hereinafter: Club C), the club from country B, Club F, concluded a transfer agreement with Club C, on 21 July 2010, for the definitive transfer of the player for a compensation of EUR 2,070,000. Said amount was payable in two instalments: the first instalment of EUR 1,025,000 ‘within three business days upon execution of the transfer agreement’ and the second instalment of EUR 1,045,000, on 1 July 2011.

4. The Football Association of country D informed FIFA that the player was registered with its affiliated club, Club C, on 28 August 2010.

5. On 18 November 2010, Club A lodged a claim in front of FIFA (which claim was amended on 7 March 2011), claiming its proportion of the solidarity contribution in connection with the transfer of the player concerned from Club F to Club C for the alleged transfer amount of EUR 2,200,000.

6. In particular, Club A requested 16.52% of 5% (i.e. 0.826%) of the total transfer compensation, as well as 5% interest p.a. and legal costs to be paid by Club C.

7. In its reply to the claim, Club C stated that it was not able to contact Club A and that it did not have certainty about the bank account to which it had to pay the requested solidarity contribution. Therefore, Club C contacted the Football Association of country D ‘in order to transfer solidarity contribution according to the transfer agreement signed on 21 July 2010’.

8. On 22 April 2015, Club C reverted to FIFA and insisted that the claim of Club A is time barred, since, according to Club C, the starting date of the claim should be either 28 August 2010 or 1 July 2011 and in the meanwhile, ‘more than two years have elapsed’. Further, Club C states that it tried to make the payments for solidarity contribution via the Football Association of country D, however that the transfer of the payment was rejected several times.

9. On 9 July 2015, Club A informed FIFA that it still had not received the payment of the relevant solidarity contribution related to the transfer of the player.

10. Furthermore, Club A informed FIFA that its claim is not time barred and that on 12 January 2011, it communicated its bank account details to Club C. Furthermore, Club A argues that on 9 July 2015, it sent the payment instructions to Club C via a document referred to as ‘Payment for Authorization’. In said document, Club A allegedly confirms that the solidarity contribution needs to be paid on the bank account of its legal representative.

11. On 22 October 2015, Club C informed FIFA that it has the intention to pay the solidarity contribution, but that it has doubts about the validity of the ‘Authorization for Payment’ submitted by Club A.

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 18 November 2010. 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 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 (edition 2015) and, on the other hand, to the fact that the present claim was lodged on 18 November 2010 and that the player was registered with Club C on 28 August 2010. In view of the aforementioned, the Chamber confirmed that the 2009 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 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.

5. 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 0.826% of the alleged total transfer compensation of EUR 2,200,000.

6. In addition to the above, the Chamber took into account that according to the transfer agreement concluded between Club F and Club C, said parties agreed upon a transfer compensation of EUR 2,070,000. Said transfer compensation was payable in two instalments, the first instalment of EUR 1,025,000 falling due within three business days upon execution of the transfer agreement and the second instalment of EUR 1,045,000 falling due on 1 July 2011.

7. Furthermore, the members of the Chamber noted that Club C, for its part, stated that it tried to pay the solidarity contribution via the bank account of the Football Association of country D however that the transfer of the payment was rejected several times, as well as its position that the claim of Club A is time barred, as ‘more than two years have elapsed’ since the starting date of the claim, which should – according to Club C - be either 28 August 2010 or 1 July 2011.

8. In this respect, the members of the Chamber established that the mere fact that the solidarity contribution could not be transferred to Club A (via the bank account of the Football Association of country D), does not release Club C from its obligation to pay the solidarity contribution.

9. Furthermore, with respect to the argument of Club C that the claim of Club A is time-barred, the members of the Chamber held that – given the fact that the claim of Club A was lodged on 18 November 2010 and the event giving rise to the dispute, that is, the non-payment of the solidarity contribution within 30 days of the registration of the player, having occurred on 28 September 2010 - it had to reject the respective argument of Club C. As a result, the Chamber confirmed that the present petition was lodged in front of the DRC within said two years’ period of time and that the matter is, thus, not barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations on the Status and Transfer of Players.

10. In addition, the members of the Chamber noted that on the other hand - after Club A argued that it deemed that its claim was not time barred since it lodged its claim and communicated its bank details within the period of two years - Club C confirmed that it was willing to pay the solidarity contribution, but that it has doubts about the validity of the ‘authorization for payment’ as submitted by Club A.

11. In this respect, turning to the argument of Club C that it could not pay the solidarity contribution, because the ‘authorization for payment’ submitted by Club A was possibly ‘not valid’, the members of the Chamber established that it merely has to determine in this procedure whether Club A is entitled to solidarity contribution or not. Any argument in relation to the alleged impossibility to pay the relevant amount is not relevant in relation to the question whether Club A is entitled to solidarity contribution, but it may be taken into account when determining the interest as well as costs of the procedure. For the sake of good order, the Chamber stressed that it remained undisputed that Club A had not yet received the relevant payment of the solidarity contribution.

12. 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.

13. In this respect, the DRC recalled that the Football Association of country B had confirmed that the player, born on 29 April 1984, was registered with Club A as from 24 January 2001 until 17 September 2002.

14. 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 the period as from 24 January 2001 until 17 September 2002, i.e. for 11 months of the season of the player’s 17th birthday and for 9 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 16.52% of 5% of the transfer fee.

15. In view of all of the above, the DRC decided to accept the claim of Club A for 16.52% of 5% of the total transfer compensation and held that Club C is liable to pay the amount of EUR 17,098.20 to Club A as solidarity contribution in relation to the transfer of the player from Club F to Club C.

16. 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 8,466.50 as from 28 September 2010 until 23 April 2012;

b) 5% p.a. on the amount of EUR 8,631.70 as from 1 August 2011 until 23 April 2012.

In this respect, the Chamber decided to limit the interest as from the respective due dates until 23 April 2012. On said date, Club C tried to make the payment for solidarity contribution to Club A via a bank account of the Football Association of country D and effectively paid the alleged solidarity contribution on said bank account. However, according to Club C, the transfer of the payment from the bank account of the Football Association of country D to Club A was rejected several times.

17. 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.

18. In this respect, the Chamber reiterated that the claim of Club A is only partially accepted and that it could have done more to settle the matter amicably. As a result, the Chamber decided that both parties have to bear 50% of the costs of the current proceedings in front of FIFA.

19. 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.

20. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 17,098.20 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).

21. Considering that the case at hand in principle dealt with an undisputed amount but that the parties were not able to settle the matter amicably, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 4,000.

22. In view of all of the above, the Chamber concluded that the amount of CHF 4,000 has to be paid by Club C and Club A in equal parts.

*****

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 17,098.20 plus 5% interest as follows:

a) 5% p.a. on the amount of EUR 8,466.50 as from 28 September 2010 until 23 April 2012;

b) 5% p.a. on the amount of EUR 8,631.70 as from 1 August 2011 until 23 April 2012.

3. In the event that the aforementioned sums 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 4,000 are to be paid within 30 days of notification of the present decision, as follows:

5.1. The amount of CHF 2,000 has to be paid by the Claimant.

5.2. The amount of CHF 2,000 has to be paid by the Respondent.

5.3. The above-mentioned amounts have to be paid to FIFA to the following bank account with reference to case nr. 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. 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