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 March 2016
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
John Bramhall (England), member
Theodore Giannikos (Greece), member
Zola Majavu (South Africa), member
on a matter between the club,
Club A, country B
against the club,
Club C, country D
and the club,
Club E, country F
as Intervening Party
regarding solidarity contribution in connection with the transfer
of the Player G
I. Facts of the case
1. According to a player passport issued by the Football Association of country B, the player, Player G (hereinafter: the player), born on 9 August 1985, was registered with the Club A from country B (hereinafter: Club A) as from 16 September 2004 until 21 August 2008. Further, according to the player passport and the information in the Transfer Matching System (TMS), the player was registered with the Club H from country I as from 28 August 2008.
2. The sporting season in country B starts on 1 July of the relevant year and ends on 30 June of the next year. The 2008/2009 sporting season in country I started on 16 August 2008 and ended on 30 May 2009.
3. According to the information in TMS, on 22 January 2013, the Club C from country D (hereinafter: Club C) concluded a transfer agreement with the Club E from country F (hereinafter: Club E), for the loan transfer of the player from Club E to Club C for a compensation of USD 600,000. This amount was payable in two instalments: the first instalment of USD 300,000 payable on 28 February 2013 and the second instalment of USD 300,000 payable on 30 June 2013.
4. The Football Association of country D informed FIFA that the player was registered with its affiliated club, Club C, on 25 January 2013.
5. On 13 August 2014, Club A lodged a claim in front of FIFA, claiming its proportion of the solidarity contribution in connection with the transfer of the player concerned from Club E to Club C for the alleged transfer amount of EUR 1,000,000.
6. In particular, Club A requested 39.47% of 5% of the total transfer compensation (i.e. EUR 19,735), as well as 5% interest p.a. as from February 2013 until the date of effective payment.
7. In reply to the claim, Club C stated that it wanted to start with the payment of the solidarity contribution, but that it failed to deduct 5% of the solidarity contribution from the loan compensation it agreed upon with Club E. Therefore, it requested the reimbursement of said percentage of the loan compensation by Club E.
8. Further, Club C stated that it was not clear in which period(s) the player was registered with Club A, because it received two different player passports. The first player passport, dated 8 May 2015 and issued by the Football Association of country B, stipulates that the player was registered with Club A as from 16 September 2004 until 21 August 2008. According to the second player passport, dated 19 July 2012 and issued by the Football Association of country J, the player was registered with Club A as from 9 September 2004 until 22 February 2005. Furthermore, the Football Association of country J confirmed that the season in country J runs from 1 January to 31 December of every year.
9. In addition, Club C stated that it already paid the amount of USD 2,838 to the Club K from country J, because of the alleged registration of the player with said club between 23 February 2005 and 14 March 2005, between 3 May 2005 and 9 August 2005 and between 1 January 2006 and 14 August 2006.
10. After being asked for a clarification with regard to the registration dates of the player, the Football Association of country J informed FIFA that according to its files, the player was registered with Club A from 9 September 2004 until 22 February 2005, and with Club K between 23 February 2005 and 14 August 2006.
11. After being asked for a clarification with regard to the registration dates of the player, the Football Association of country B informed FIFA that the player was registered with Club A between 16 September 2004 and 28 August 2008. Further, the Football Association of country B stated that on 11 March 2005, it received a decision from the Labor Court of country J in city L, stating that the contract between the player and Club K was valid. As a result, on 13 October 2005, Club A terminated its contract with the player. Further, the player and Club A signed a new contract on 14 September 2006, which was terminated by mutual consent on 28 August 2008.
12. After being informed about the jurisprudence of the DRC in cases as the matter at hand, Club E did not submit further comments as to the substance of the matter. Club C reiterated that it is willing to pay the solidarity contribution to Club A, but that it does not know the exact amount it needs to pay.
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 13 August 2014. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; 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 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 player was registered with the Club C on 25 January 2013. In view of the aforementioned, the Chamber confirmed that 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 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, and entering into the substance of the matter, the DRC noted that Club A claimed from Club C the payment of the solidarity contribution in connection with the international transfer of the player, Player G, from Club E to Club C. According to Club A, the solidarity contribution corresponded to 39.47% of 5% of the alleged total transfer compensation of EUR 1,000,000.
6. In addition to the above, the Chamber took into account that according to the transfer agreement concluded between Club E and Club C, said parties agreed upon a transfer compensation of USD 600,000 for the transfer of the player on loan basis. Said transfer compensation was payable in two instalments: the first instalment of USD 300,000 falling due on 28 February 2013 and the second instalment of USD 300,000 falling due on 30 June 2013.
7. Furthermore, the members of the Chamber noted that Club C, first of all, stated that it was willing to pay the solidarity contribution to the clubs involved, however that it paid the entire amount of USD 600,000 agreed upon as transfer compensation to Club E. In other words, Club C omitted to deduct 5% of the relevant transfer compensation relating to the solidarity mechanism.
8. With respect to the failure to deduct 5% of the relevant transfer compensation, Club C requested that Club E would be involved in the present proceedings and reimburse Club C with the relevant proportion of the 5% solidarity contribution. In this respect, the members of the Chamber observed that both Club C and Club E had been informed of the well-established jurisprudence of the DRC and had been invited to proceed accordingly, however, that Club C only reiterated its position and that no reply from Club E was received, nor were payments eventually made.
9. In this framework, the members of the Chamber first of all emphasised that, as established in art. 21 in conjunction with Annexe 5 of the Regulations, 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 solidarity contribution to the club(s) involved in the training and education of the player in proportion to the number of years the player has been registered with the relevant clubs between the seasons of his 12th and 23rd birthday.
10. Subsequently, the Chamber referred to the well-established jurisprudence of the DRC which has to be applied in the present matter, in accordance with which the player’s new club, i.e. Club C, 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. 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, i.e. Club E, is ordered to reimburse the same proportion(s) of the 5% of the compensation that it received from the player’s new club.
11. In light of the above, the Chamber decided that Club C is liable to pay the relevant proportion of the 5% solidarity contribution to Club A and that Club E must reimburse the same proportion of the 5% solidarity contribution to Club C.
12. In this regard, having confirmed the above-mentioned obligation incumbent on Club C, the Chamber went on to establish the proper calculation of the relevant proportion of solidarity contribution due to Club A.
13. In addition, the members of the Chamber took note that Club C asserted that it was not clear in which period(s) the player was registered with Club A, because it received two different player passports, one from the Football Association of country J and the other from the Football Association of country B, with different registration periods. As a result, Club C alleged that it was not clear which amount it had to pay as solidarity contribution to the club(s) involved.
14. To that end, the Chamber referred 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.
15. In this respect, the members of the Chamber recalled that the Football Association of country B had confirmed that the player, born on 9 August 1985, was registered with Club A as from 16 September 2004 until 28 August 2008 (although the player passport issued by the Football Association of country B mentioned that the player was only registered until 21 August 2008). However, the members of the Chamber also noted that the Football Association of country J had confirmed that – according to its files - the player was registered with Club A as from 9 September 2004 until 22 February 2005 and with several of its affiliated clubs as from 23 February 2005 until 14 August 2006.
16. Taking note of the above-mentioned overlapping registration dates, the Chamber determined that it first had to establish which were the exact registration dates of the player with Club A. In this respect, the members of the Chamber noted that the Football Association of country B further had confirmed that on 11 March 2005, it received a notification from a court in country J establishing that the player’s contract with Club K was still in force. Following such notification, on 13 October 2005, Club A had terminated the contract with the player and on 14 September 2006, the player and Club A signed a new contract.
17. On account of the all the foregoing information and taking into account that the player passport of the Football Association of country B did not indicate any interruptions in relation to the registration details of the player with Club A in 2005 (despite the Football Association of country J confirming that the player was registered with several of its affiliated clubs as from 23 February 2005 until 14 August 2006) and the fact that the Football Association of country B confirmed that the player and Club A signed a new contract on 14 September 2006, the Chamber decided that the player passport issued by the Football Association of country J is the pertinent player passport it shall take into account when establishing the registration details of the player.
18. Consequently, and taking into account the claim of Club A and the information of the Football Association of country B and the Football Association of country J, the Chamber established that the relevant periods of registration of the player with Club A which have to be taken into account for the calculation of solidarity contribution, are the periods as from 16 September 2004 until 22 February 2005 and as from 14 September 2006 until 21 August 2008, i.e. a total of 29 months.
19. Entering into the calculation of the relevant proportion of solidarity contribution, the members of the Chamber first concluded that the player was registered with Club A for 3 months of the season of the player’s 19th birthday.
20. Further to that, the members of the Chamber equally observed that the dates of the seasons in country B in country J overlapped, i.e. whereas the season in country J runs from 1 January to 31 December of every year, the season in country B runs from 1 July until 30 June of the following year.
21. Taking into consideration the foregoing information, the Chamber pointed out that in the present matter, the duration of at least two seasons was actually longer than the standard 12 months. In fact, and taking into consideration that the player was born on 9 August 1985, the members of the Chamber first of all pointed out that the season 2005 (1 January to 31 December 2005) in country J as well as the 2005/2006 season (1 July 2005 to 30 June 2006) in country B are to be seen as the complete season of the player’s 20th birthday. Thus, the season of the player 20th birthday lasted for 18 months.
22. In this respect, the Chamber emphasised however that there is not more to be distributed as solidarity contribution than 100% of 5% of any compensation paid to the player’s former club within the scope of an international transfer of a player. As a result, the only logical way to ensure an adequate distribution of the solidarity contribution for the relevant seasons is to establish that the season of the player’s 20th birthday lasted 18 months, i.e. from 1 January 2005 (beginning of the season of his 20th birthday with respect to country J) to 30 June 2006 (end of the season of his 20th birthday with respect to country B).
23. As a result and considering that the player was registered with Club A for 2 months during the season of the player’s 20th birthday, Club A is entitled to 2/18 of the 10% of the 5% solidarity contribution for that season.
24. The Chamber further remarked that Club A is entitled to 10/12 of the 10% of the 5% solidarity contribution for the season of the player’s 21st birthday, as well as the entire 10% of the solidarity contribution for the season of the player’s 22nd birthday.
25. For the season of the player’s 23rd birthday, the Chamber once again noted that there was an overlap in the seasons between country B and country I. Whereas the season in country B started on 1 July and ended on 30 June of the following year, the 2008/2009 season in country I started on 16 August 2008 and ended on 30 May 2009. Considering the foregoing and again taking into account the date of birth of the player, the members of the DRC pointed out that the season of the player’s 23rd birthday ran from 1 July 2008 until 1 August 2009, i.e. for a period of 13 months. As a result, and considering that the player was registered with Club A for two months during the season of his 23rd birthday, Club A is entitled to 2/13 of the 10% of the 5% solidarity contribution.
26. Consequently, the Chamber established that, in accordance with the above-mentioned breakdown, Club A is entitled to the amount USD 7,038 as solidarity contribution. Therefore, the Chamber decided that Club C must pay to Club A the amount of USD 7,038 and that Club E must reimburse the amount of USD 7,038 to Club C.
27. In view of all of the above, the Chamber decided to partially accept the claim of Club A, granting it 23.46% of 5% of the total transfer compensation. Consequently, the DRC held that Club C is liable to pay the amount of USD 7,038 to Club A as solidarity contribution in relation to the transfer of the player from Club E to Club C.
28. 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:
5% p.a. on the amount of USD 3,519 as from 31 March 2013;
5% p.a. on the amount of USD 3,519 as from 31 July 2013.
29. The Chamber concluded its deliberations as to the substance of the matter by rejecting any further claim of Club A.
30. 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.
31. In this respect, the Chamber reiterated that the claim of Club A is only partially accepted and that Club C agreed to pay the solidarity contribution, however that the parties involved could not settle the matter amicably, the Chamber decided that both parties have to pay costs of the current proceedings in front of FIFA.
32. 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.
33. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 19,735 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).
34. Considering that the case at hand in principle did not show particular factual difficulty and that it did not involve specific legal complexity, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 5,000.
35. In view of all of the above, the Chamber concluded that Club A has to pay the amount of CHF 2,000 and that Club C has to pay the amount of CHF 3,000.
*****
III. Decision of the Dispute Resolution Chamber
1. The claim of Club A is partially accepted
2. Club C has to pay to Club A, within 30 days as from the date of notification of this decision, the amount of USD 7,038 plus 5% interest p.a. until the effective date of payment as follows:
a) 5% p.a. on the amount of USD 3,519 as from 31 March 2013;
b) 5% p.a. on the amount of USD 3,519 as from 31 July 2013.
3. In the event that the aforementioned sum plus interest is not paid by Club C 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 Club A is rejected.
5. The final costs of the proceedings in the amount of CHF 5,000 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 Club A.
5.2. The amount of CHF 3,000 has to be paid by Club C.
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. Club A is directed to inform Club C 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.
7. Club E has to reimburse the amount of USD 7,038 to Club C within 30 days as from the date of notification of this decision.
8. If the aforementioned sum is not paid by Club E within the aforementioned deadline, interest at the rate of 5% p.a. will fall due as of expiry of the said 30 days’ time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
9. Club C is directed to inform Club E immediately and directly of the account number to which the remittance is 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:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives