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 24 August 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 August 2018,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Joaquim Evangelista (Portugal), member
Todd Durbin (USA), member
Stefano La Porta (Italy), 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 relation to the
player, Player E
I. Facts of the case
1. The Football Federation of Country B issued the following player passports in connection with the player of Country B, Player E, born on 10 May 1987 (hereinafter: player):
a. Passport 1: dated 10 August 2013, in accordance with which the player was registered with the club, Club F, as from 10 May 1999 until 31 December 2007;
b. Passport 2: no date of issuance, in accordance with which the player was registered with the Football Federation of Country B, without club indication, as from 10 May 1999 until 31 December 2002 and with the Club F as from 1 January 2003 until 31 December 2007;
c. Passport 3: dated 17 April 2014, in accordance with which no records were available to the Football Federation of Country B for the seasons 1999-00 to 2003-04 and the player was registered with the Club F as from 1 June 2005 until 31 May 2007;
d. Passport 4: dated 24 April 2014, in accordance with which no records were available to the Football Federation of Country B for the seasons 1999-00 to 2003-04 and the player was registered with the Club F as from 1 March 2005 until 31 December 2007;
e. Passport 5: dated 19 September 2016, in accordance with which no records were available to the Football Federation of Country B for the seasons 1999-00 and 2000-01 and the player was registered with the Club A as from 1 March 2001 until 28 February 2005 and with Club F as from 1 March 2005 until 31 December 2007.
2. The Football Federation of Country B confirmed the following details regarding the sporting seasons in Country B:
- until 2005 the season ran as from 1 July to 30 June of the following year;
- as from 2005, the season ran from 1 January until 31 December;
- as from 2007-08, the season ran again as from 1 July until 30 June, with the 2007 season running for six months (January to June 2017).
3. According to the information contained in the Transfer Matching System (TMS), the club of Country G, Club H and the club of Country D, Club C (hereinafter: Respondent), inter alia, agreed upon a compensation for the transfer of the player in the amount of EUR 13,000,000, payable by the Respondent in two instalments as follows: EUR 6,000,000 on 14 August 2013 and EUR 7,000,000 on 31 August 2014.
4. The Football Federation of Country D confirmed that the player was registered with the Respondent, after being transferred from Club H, on 12 August 2013.
5. On 29 August 2014 and completed on 20 September 2016, the club of Country B, Club A (hereinafter: Claimant) lodged a claim in front of FIFA against the Respondent, claiming its proportion of solidarity contribution in connection with the transfer of the player from Club H to the Respondent and requested 35% of 5% of the transfer compensation. The Claimant further requested 15% interest p.a. as of the respective due dates as well as legal fees in the amount of CHF 10,000.
6. In this respect, the Claimant affirmed having trained the player between 1 January 2002 and 30 December 2005.
7. In reply to the claim, the Respondent held that the Claimant’s claim is time-barred.
8. Furthermore, the Respondent stated that following the transfer of the player, it received several player passports issued by the Football Federation of Country B with different indications as regards the period of time the player allegedly was registered with the Claimant, a copy of which it presented. Therefore, the Respondent wished to assure itself as to which would be the correct player passport in order to be able to distribute the solidarity contribution in an accurate manner.
9. In any event, the Respondent rejected that the Claimant is entitled to interest of 15% p.a.
10. After closure of the investigation in the matter, the Claimant presented further unsolicited comments as well as another player passport issued by the Football Federation of Country B on 29 March 2018, in accordance with which the player was registered with the Claimant as from 10 May 1999 until 30 June 2007.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 29 August 2014. Consequently, the DRC concluded that the 2014 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 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 2018) the DRC is competent to deal with the matter at stake, which concerns a dispute relating to the solidarity mechanism between clubs belonging to different associations.
3. In this context and prior to entering into the substance of the present matter, the members of the DRC recalled that according to the Respondent the claim of the Claimant is to be considered barred by the statute of limitations. In this respect, the DRC highlighted that according to art. 25 par. 5 of the Regulations on the Status and Transfer of Players, the application of the two years’ time limit since the event giving rise to the dispute shall be examined ex officio in each individual case. The present claim having been lodged in front of the DRC on 29 August 2014 and the event giving rise to the dispute, that is, the alleged non-payment of solidarity contribution following the registration of the player with the Respondent on 12 August 2013, the Chamber confirmed that the claim of the Claimant is not barred by the statute of limitations set out in art. 25 par. 5 of the said Regulations.
4. In continuation, 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 DRC confirmed that in accordance with art. 26 par. 1 and par. 2 of the said Regulations (edition 2018) and considering that the player was registered with the Respondent on 12 August 2013, 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.
5. The competence of the DRC and the applicable regulations having been established, the members of the Chamber 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. In this context, bearing in mind the Chamber’s relevant constant jurisprudence, the Chamber decided not to take into account the unsolicited comments and documents presented by the Claimant after the closure of the investigation in the present matter. Indeed, the Chamber shall take a decision on the basis of those documents on file that were provided prior to the closure of the investigation by FIFA.
6. Having said that, the DRC noted that the Claimant claimed, inter alia, the payment of 35% of 5% of the transfer compensation as solidarity contribution from the Respondent maintaining that the player was registered with it between 1 January 2002 and 30 December 2005.
7. Furthermore, the DRC noted that according to the Respondent it had received various player passports issued by the Football Federation of Country B with different indications as regards the period of time the player allegedly was registered with the Claimant.
8. In continuation, the members of the DRC turned their attention to the various player passports submitted by the Claimant in support of its claim and concluded that they contain discrepant information as regards the alleged registration of the player with the Claimant.
9. Indeed, according to the first 4 player passports issued by the Football Federation of Country B between 10 August 2013 and 24 April 2014, the player was either registered with the club of Country B, Club F, or there were no records available for the player during the period of time which is at the basis of the Claimant’s claim, i.e. as from 1 January 2002 until 30 December 2005.
10. At this point, the DRC recalled that the player was registered with the Respondent on 12 August 2013. Therefore, the Chamber concluded that according to the official information available around the period of time when the player was registered with the Respondent, the Claimant did not appear on the player passports as a former club of the player.
11. In continuation, the members of the Chamber took due note that only in the player passport issued on 19 September 2016 was the Claimant indicated as one of the player’s former clubs.
12. Turning its attention to the claim of the Claimant and the allegations contained therein, the Chamber wished to point out that in accordance with the legal principle of the burden of proof as contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In view of the foregoing, the Chamber underscored that it was for the Claimant to prove that the player was indeed registered with its club. In this respect, the members of the Chamber stressed that in support of its claim the Claimant had only presented the aforementioned player passports containing discrepant information regarding the registration of the player in Country B, including the period of time the player allegedly was registered with the Claimant. As a result, the members of the Chamber deemed that the Claimant failed to submit convincing documentary evidence, demonstrating that the player was indeed registered for its club, and for which period of time.
13. In view of the aforementioned, the DRC considered that by the time the player was transferred to the Respondent in August 2013, the latter could not have been aware of any possible obligations to pay solidarity contribution to the Claimant, as the latter was only mentioned for the first time by the Football Federation of Country B in a player passport issued on 19 September 2016. Consequently, the Chamber unanimously decided that the Respondent cannot be obliged to pay solidarity contribution to the Claimant as the player’s career, in particular his registration with the Claimant, could not be established with full certainty based on the documentation on file.
14. In view of all the above, the Dispute Resolution Chamber rejected the Claimant’s claim for solidarity contribution, due to the lack of consistent and clear documentary evidence allowing this Chamber to establish beyond doubt the player’s registration with the Claimant and, if so, to subsequently calculate any amount of solidarity contribution possibly due.
15. In continuation, the deciding authority 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.
16. In this respect, the Chamber reiterated that the claim of the Claimant is rejected and established that as a result, the Claimant has to bear the costs of the current proceedings in front of FIFA.
17. 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.
18. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 227,500 related to the claim of the Claimant. Therefore, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A).
19. Considering that the case at hand showed very particular factual difficulties and some legal complexity, as well as the fact that the claim of the Claimant is fully rejected, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 25,000, which shall be entirely borne by the Claimant.
20. In view of all of the above, the Chamber concluded that the amount of CHF 25,000 has to be paid by the Claimant to cover the costs of the present proceedings.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Club A, is rejected.
2. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Claimant to FIFA, within 30 days of notification of the present decision, 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: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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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
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
Enclosed: CAS directives