F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution / contributo di solidarietà – (2017-2018) – fifa.com – atto non ufficiale – Decision 9 February 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 February 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Joaquim Evangelista (Portugal), member

Taku Nomiya (Japan), member

Todd Durbin (USA), member

on the claim presented by the club,

Football Association of Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding solidarity contribution in connection with the transfer

of the player Player E

I. Facts of the case

1. The Football Association of Country B (hereinafter: Football Association F or the Claimant) confirmed that the player, Player E (hereinafter: the player), born on 6 November 1986, was registered with its formerly affiliated club, Club L (hereinafter: Club L) between 17 December 2008 and 13 June 2011.

2. The Football Association F confirmed that for the period during which the player was registered with its formerly affiliated club, the sporting season in Country B started on 1 July and finished on 30 June of the following year.

3. According to the information contained on the Transfer Matching System (hereinafter: TMS), the player was registered with the Club of Country D, Club C (hereinafter: the Respondent), on 5 August 2014.

4. On 9 January 2015, and subsequently modified on 5 May 2015, the Claimant contacted FIFA on behalf of its affiliated club, Club L, claiming its portion of solidarity contribution in connection with the transfer of the player from the Club of Country M, Club G (hereinafter: Club G) to the Respondent on 5 August 2014. In particular, the Claimant requested the payment of EUR 8,592, i.e. 0,26% of the transfer compensation.

5. The Claimant informed FIFA that Club L had been disaffiliated in May 2014, and provided an extract of a Resolution taken by the General Assembly of the Football Association F dated 27 May 2014, which inter alia indicated that Club L had been disaffiliated.

6. According to the information contained on TMS, Club G and the Respondent had agreed upon transfer compensation amounting to EUR 3,200,000 net, payable in two instalments as follows:

a. EUR 2,000,000 “upon signing the contract to be paid before sending the International Transfer Certificate (ITC)”;

b. EUR 1,200,000 “on or before the 31st of December 2014”.

7. In its reply to the claim, the Respondent contested the claim presented by the Claimant on the basis that “the Football Association F” had allegedly failed to upload a correct version of the player’s passport in the TMS system at the time of the player’s previous transfer. The Respondent considers that the player’s passport uploaded “by the [Football Association of Country M]” (hereinafter: Football Federation H) at the time of the aforementioned previous transfer of the player should be the only one taken into account in relation to the present claim. In this regard, the Respondent indicates that said player’s passport was the one “uploaded in TMS by the Football Federation H” (hereinafter: Players Passport J). In this regard, the Respondent re-transcribes the dates on the document as being as follows:

a. Season 1997/98 to 2007/08 only contains the indication of “unknown”;

b. Season 2007/08 and 2008/09 mentions the Club of Country B, Club K and the “de-registration period” indicates 31 January 2008;

c. Season 2008/09, 2009/10 and 2010/11 mentions the Club of Country B, Club L and the “de-registration period” indicates 23 February 2009;

d. “from season 2011-2012 to 2012-2013” mentions the Club of Country M, Club G and the “de-registration period” indicates 25 July 2011;

e. Season 2014/15 mentions the Respondent and the “de-registration period” indicates 5 August 2014.

8. In addition, the Respondent considers that in line with the Players Passport J, that Club L would be entitled to training compensation for the period running from 31 January 2008 until 22 February 2009, i.e. for the registration for one entire season and twenty-two days, amounting to 0,53% of the paid portion of the transfer compensation. Nevertheless, the Chamber noted that the Respondent contests the claim of the Claimant on behalf of its formerly affiliated club since the claim was not lodged 18 months after the registration of the player with the new club.

9. In continuation, the Respondent acknowledges having paid the first instalment due to Club G but indicates it has not paid the second instalment and therefore solidarity contribution should not be due on said amount, stating that there is allegedly an ongoing dispute relating to “FIFA decision (case no. XXX)” relating to the alleged agreement to shift the financial obligations for solidarity contribution from the Respondent to Club G by means of reimbursement.

10. The Respondent therefore considers that no percentage of the remaining EUR 1,200,000 instalment should be due as the payment has not been made, so the thirty days have not started to elapse. In this regard, the Respondent considers that Club L should be paid 0,53% of EUR 2,000,000 only, amounting to EUR 11,600.

11. In its replica, the Claimant contested the Respondent’s access to information contained in TMS to which “[the Respondent] is considered to be a third party on the basis of the Data Protection Declaration”.

12. The Claimant acknowledges that the Respondent had taken note of the player’s passport and the relevant registration period with the Claimant’s formerly affiliated club but that it had never paid the due solidarity contribution. Finally, it remarks that it is always the “new club” which has to pay solidarity contribution.

13. In its final comments, the Respondent rejects the reply of the Claimant. It reiterates that only the Players Passport J should be taken into consideration in the calculation and analysis of entitlement of solidarity contribution and rejects any claim for any amount if it is not based on the mentioned player’s passport. In this regard, the Respondent considers that any update or modification to the player’s passport made by the Football Association F should be considered as time barred and goes against the principle of good faith. Finally, the Respondent reiterates that any solidarity contribution due should be paid only on the first instalment paid by it, i.e. EUR 2,000,000, and not the second instalment of EUR 1,200,000.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 9 January 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2014 edition; hereinafter: the 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 combination with art. 22 lit. d) and art. 2 par. 3 of Annexe 5 of the Regulations on the Status and Transfer of Players (2016 edition) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute relating to solidarity mechanism between the Football Association of Country B and a Club of Country D.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 paras. 1 and 2 of the Regulations on the Status and Transfer of Players (2016 edition), and considering that the present claim was lodged on 9 January 2015, the 2014 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the aforementioned facts as well as the arguments and the documentation submitted by the parties. The Chamber, however, 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of Regulations, any documentation or evidence generated or contained in the Transfer Matching System (hereinafter: TMS).

5. Having established the above, the DRC first 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.

6. The Chamber underlined that in the present matter it was an association and not a club which claimed payment of the solidarity contribution. Therefore, it first had to analyse whether the conditions set forth in art. 2 par. 3 of Annexe 5 of the Regulations were fulfilled.

7. The Chamber recapitulated that the aforementioned provision stipulates that an association is entitled to receive the proportion of solidarity contribution, which in principle would be due to one of its affiliated clubs, if it can provide evidence that the club involved in the professional’s training and education has in the meantime ceased to participate in organised football and/or no longer exists due to, in particular, bankruptcy, liquidation, dissolution or loss of affiliation.

8. In this context, the Dispute Resolution Chamber noted that the Claimant claimed the payment of the amount of EUR 8,592 as solidarity contribution from the Respondent, corresponding to 0.26% of the total transfer compensation paid for the transfer of the player, Player E from the Club of Country M, Club G to the Respondent. In particular, the DRC took note that the Claimant is claiming solidarity contribution for the period during which the player was registered with its affiliated club, Club L.

9. On this basis, the Chamber first took note that the player was indeed registered with Club L from 17 December 2008 and 23 June 2011. Furthermore, the DRC acknowledged that the Claimant affirmed that Club L had been disaffiliated in May 2014, and in support of its claim, submitted an extract of a Resolution taken by the General Assembly of the Football Association F dated 27 May 2014, inter alia indicating that Club L had been disaffiliated.

10. In view of the aforementioned, the members of the Chamber concluded that, as asserted by the Claimant, one of the clubs involved in the training and education of the player, i.e. Club L, had ceased to participate in organised football.

11. On the basis of all these considerations and in accordance with art. 1 and art. 2 of par. 3 of Annexe 5 of the Regulations, the DRC rejected the Respondent’s argument according to which the claim should otherwise be rejected as the claim was not lodged 18 months after the registration of the player with the Respondent and concluded that the Claimant is entitled to claim solidarity contribution for the period during which the player was registered with Club L and on its behalf.

12. In continuation, the members of the Chamber took into account that according to the information contained on the TMS, the Club of Country M, Club G, and the Respondent agreed upon transfer compensation of EUR 3,200,000, payable as follows:

a. EUR 2,000,000 “upon signing the contract to be paid before sending the International Transfer Certificate (ITC)”;

b. EUR 1,200,000 “on or before the 31st of December 2014”.

13. Furthermore, the Chamber noted that the Respondent argued that the player’s passport that should be taken into account in the present matter should be one that was “uploaded in TMS by the Football Federation H” and not the one provided by the Claimant in its statement of claim, i.e. the player’s passport issued by the Football Association F. The DRC took due note that the Respondent subsidiarily asserted that in light of the information transcribed from the Players Passport J, the claim of the Claimant should be limited to the alleged period of registration from 31 January 2008 until 22 February 2009, i.e. for the registration for one entire season and twenty-two days, amounting to 0,53% of the paid portion of the transfer compensation. In this regard, the Chamber took note that the Respondent asserted that considering it had not fulfilled the entirety of its obligation to pay transfer compensation to Club G, notably the second instalment of EUR 1,200,000, no solidarity contribution should be distributed on said amount.

14. In respect of the above, in particular the arguments made by the Respondent, the members of the Chamber deemed that they had to establish which player’s passport should be used for the basis of the calculation of solidarity mechanism in the present matter. In this regard, in line with the aforementioned art. 6 par. 3 of Annexe 3 of the Regulations, the Chamber took due note from the information contained on TMS that the player’s passport referred to by the Respondent as being “uploaded in TMS by the Football Federation H” was indeed uploaded by the Football Federation of Country M at the time of a previous transfer of the player. Consequently, and bearing in mind the information and documentation at the disposal of the DRC, the members of the Chamber determined that in principle the Respondent should rely on the official player’s passport issued by the Association of the training clubs when calculating the relevant portion of the solidarity contribution due.

15. In continuation, the members of the Chamber recalled the purpose of the solidarity mechanism system, pointing out that said system is meant to foster the training and education of young players by awarding a contribution to the club(s) that had effectively trained the player during the beginning of his career throughout his entire sporting activity. Therefore, in casu, in the Chamber’s view, only the Football Association F could issue reliable information regarding the clubs in Country B which effectively contributed to the formation and education of the player. Therefore, and considering the aforementioned reasoning, in casu, the parties must rely on the player’s passport issued by the Football Association F presented with the Claimant’s statement of claim, and not the player’s passport issued by the Football Federation H.

16. In continuation, having established that the player’s passport to be considered in the present matter for the calculation of the portion of the solidarity is that provided by the Football Association F, the Chamber then turned its attention to the argumentation of the Respondent. In this regard, the Chamber recalled that the Respondent deems that the portion of solidarity owed should not be calculated with regard to the second instalment provided for in the relevant transfer agreement of the player, as the Respondent has not proceeded to complete the payment. In this regard, the members of the Chamber recalled that a decision had been taken by the Single Judge of the Players’ Status Committee which was final and binding, providing that the Respondent indeed had to pay said second instalment in the amount of EUR 1,200,000.

17. Furthermore, the members of the Chamber deemed that, notwithstanding the aforementioned final and binding decision of the Single Judge of the Players’ Status Committee relating to the payment of the aforementioned instalment, any dispute regarding the fulfilment of obligations by the Respondent to any third party can not be held against the Claimant on the basis of the general legal principle of res inter alios acta. Consequently, the alleged non-payment by the Respondent of the second instalment relating to the transfer compensation paid to Club G does not discharge the Respondent of its obligations relating to the payment of solidarity contribution based on the agreed transfer compensation.

18. Having established all of the above, the DRC recalled that the Football Association F had confirmed that the player, born on 6 November 1986, was registered with its affiliated club, Club L, between 17 December 2008 and 23 June 2011.

19. 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 the player was registered with Club L running from 17 December 2008 until 30 June 2010, i.e. for 6 months of the season of the player’s 22nd birthday, as well as for 12 months for the seasons of the player’s 23rd birthday.

20. In view of all of the above and considering the claim lodged by the Claimant, the Dispute Resolution Chamber decided to accept said claim and held that the Respondent is liable to pay the amount of EUR 8,592 as solidarity contribution in relation to the transfer of the player from Club G to the Respondent.

21. In continuation, the members of 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 proceedings before the Dispute Resolution Chamber relating to disputes regarding solidarity contribution, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of a parties’ degree of success in the proceedings.

22. In this respect, the Chamber reiterated that the claim of the Claimant is accepted and it established that the Respondent has to bear the costs of the current proceedings in front of FIFA.

23. 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.

24. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 8,592 relating to the claim of the Claimant. The Chamber therefore concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).

25. Considering that the case at hand could have followed a simple procedure, that the case was adjudicated on by the Chamber and that the present case did not show particular factual or legal difficulty, the Chamber determined the final amount of costs of the current proceedings in the amount of CHF 4,000.

26. In view of all of the above, the Chamber concluded that the amount of CHF 4,000 has to be paid by the Respondent to cover the costs of the present proceedings.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Football Association of Country B, is accepted.

2. The Respondent, Club C, has to pay to the Claimant the amount of EUR 8,592 within 30 days as from the date of notification of this decision.

3. In the event that the aforementioned sum is not paid within the stated time limit, interest of 5% p.a. will fall due as of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. The Claimant is directed to inform the Respondent 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.

5. The final costs of the proceedings in the amount of CHF 4,000 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. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

*****

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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS Directives