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 3 November 2016
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 November 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Alejandro Marón (Argentina), member Mario Gallavotti (Italy), member
Carlos Puche (Colombia), member
Eirik Monsen (Norway), 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
Facts of the case
1. According to the player passport issued by the Football Federation of Country B, the Player E (hereinafter: the player), born on 28 October 1984, was registered with its affiliated club, Club A (hereinafter: the Claimant), as follows:
Club From To
Club A
16 April 1997
18 October 1999
2. The sporting season in Country B follows the calendar year, from January to December of each year.
3. According to the Football Association of Country D, the player was registered with the Club of Country D, Club C (hereinafter: the Respondent) on 10 August 2015.
4. According to the information contained in the Transfer Matching System (TMS), the Club of Country F, Club G, and the Respondent concluded, on 14 July 2015, a transfer agreement for the transfer of the player to the latter for the net amount of EUR 5,430,000, payable as follows:
-EUR 2,715,000, “immediately after player’s medical passing and after signing the employment agreement between the Player and [the Respondent]”
-EUR 2,715,000, “until 31st May 2016”.
5. Moreover, and in accordance with the transfer agreement, Club G and the Respondent agreed upon the following:
“2. [the Respondent] is solely and exclusively responsible for paying any solidarity contribution which might arise pursuant to Article 21 of the FIFA Regulations on the Status and Transfer of Players. The Parties explicitly agree that a deduction from the Transfer Fee is not permitted. The said amounts under this §2 explicitly constitute the amounts after deduction of any payment obligation which might arise pursuant to Article 21 of the FIFA Regulations on the Status and Transfer of Players”
6. On 12 August 2015, the Claimant contacted FIFA claiming its proportion of the solidarity contribution in connection with said transfer, for the alleged amount of EUR 7,000,000. In particular, the Claimant requested the payment of EUR 43,917.69 plus 5% interest p.a. “as from August 2012”.
7. In its reply, the Respondent confirmed that the transfer amount was settled in the sum of EUR 5,430,000, and objected that the Claimant based its calculations on a wrong amount. In addition, the Respondent requested an “official evidence” in order to prove that the Claimant effectively participated in the player’s training.
8. Despite being requested to do so, the Claimant failed to provide its replica to the Respondent’s reply.
9. Notwithstanding the above, and in reference to clause 2 of the transfer agreement (cf. point I. 5 above), the Claimant stated the following as additional comments: “The wording of the agreement is clear where each club, Club G and [the Respondent], would continue to be responsible for any training compensation amounts owed to third party clubs where such amounts would not be paid out of the transfer fee for the player. The result is that [the Respondent] ought to be compelled to pay [the Claimant] the relevant amount further to article 21 of the FIFA RSTP.”
I. 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 12 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 2015 and 2016), and considering that the player was registered with the Respondent on 10 August 2015, the 2015 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 the payment of EUR 43,917.69 as solidarity contribution from the Respondent in relation with the transfer of the player from Club G to the Respondent.
6. Moreover, the DRC observed that the Respondent contested the documentation submitted by the Claimant, and requested an “official evidence” in order to prove that the Claimant effectively participated in the player’s training.
7. 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, but merely stated that the Claimant based its calculation on the wrong transfer fee.
8. In view of the above, the Chamber first proceeded to analyse whether the Claimant had sufficiently proven its contribution to the training and education of the player. In this respect, the Chamber recalled that the Claimant had submitted a player passport issued by the Football Federation of Country B, according to which the player was undoubtedly registered with the Claimant as from 16 April 1997 until 18 October 1999. Moreover, the DRC recalled the basic principle of burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.
9. In this respect, the members of the Chamber were eager to point out that, in accordance with the DRC’s constant practice and its well-established jurisprudence, an official player passport issued by the relevant association, containing the relevant details of the player, including his date of birth and all clubs with which the player was registered since the age of 12 until the date of his registration with the respondent club (cf. art. 7 of the Regulations on the Status and Transfer of Players), is deemed sufficient in order to establish a club’s contribution to the training and education of a player.
10. Consequently, the DRC held that it could be established on the basis of the aforementioned player passport issued by the Football Federation of Country B that the Claimant had indeed trained the player as from 16 April 1997 until 18 October 1999 and is, therefore, entitled to receive solidarity contribution from the Respondent.
11. At this point, the DRC referred 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.
12. Subsequently, the DRC considered that it had to determine which should be the relevant amount of the solidarity contribution to be paid by the Respondent to the Claimant.
13. To that end, the DRC referred again to art. 1 of Annexe 5 of the Regulations which provides the figures for the distribution of the solidarity contribution, according to the period of time the player was effectively trained by a specific club and taking into consideration the age of the player at the time he was being trained and educated by the club(s) concerned.
14. In this respect, the DRC underlined that the Football Federation of Country B had confirmed that the player, born on 28 October 1984, was registered with the Claimant as from 16 April 1997 until 18 October 1999.
15. 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 16 April 1997 and 18 October 1999. In terms of the percentage of the 5% solidarity contribution, the Chamber calculated that, on a pro rata basis, this corresponds to 12.49% of the 5% of the total transfer amount.
10. Subsequently, 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 5,430,000 payable as follows:
-EUR 2,715,000, “immediately after player’s medical passing and after signing the employment agreement between the Player and [the Respondent]”
-EUR 2,715,000, “until 31st May 2016”.
16. 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 33,910.35 to the Claimant as solidarity contribution in relation to the transfer of the player from Club G to the Respondent.
17. 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 relevant due dates.
18. 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.
19. In respect of the above, the DRC held that the amount to be taken into consideration in the present proceedings is EUR 43,917.69 related to the amount claimed by the Claimant. The DRC concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).
20. 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 4,000. In particular, the DRC determined that the Respondent shall pay the amount of CHF 3,000 and the Claimant the amount of CHF 1,000.
21. 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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II. 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 33,910.35 plus 5% interest p.a. calculated as follows:
- 5% interest p.a. on the amount of EUR 16,955.18 as from 10 September 2015 until the date of effective payment;
- 5% interest p.a. on the amount of EUR 16,955.17 as from 1 July 2016 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 4,000 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 3,000 has to be paid by the Respondent.
5.2. The amount of CHF 1,000 has to be paid by the Claimant.
5.3. The above-mentioned amounts have to be paid to FIFA to the following bank account:
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 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