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2016 | OriginalPaper | Buchkapitel

12. Solidarity Mechanism

verfasst von : Frans de Weger

Erschienen in: The Jurisprudence of the FIFA Dispute Resolution Chamber

Verlag: T.M.C. Asser Press

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Abstract

The solidarity mechanism entails that each time a professional is transferred before the end of his contract, a solidarity contribution is due by the new club to all the clubs for which the player played between the age of 12 and 23. The solidarity mechanism is only due if the player moves during the course of his contract. In this chapter all relevant issues relating to the solidarity mechanism will be discussed. It is the responsibility of the new club to calculate the amount of the solidarity contribution and to distribute it in accordance with the player’s career history as provided in the Player Passport. The DRC refers to its well-established jurisprudence, in accordance with which the player’s new club is ordered to remit the relevant proportion of the 5 % solidarity contribution to the clubs involved in the player’s training. In other words, following numerous DRC decisions, it is a general rule that it is only the new club which is entitled to distribute the amount of solidarity compensation to the relevant former clubs of the player. Even if this obligation is transferred to another club, the new club will still remain liable in any event. The provisions of loan are also subject to the same rules that apply to the transfer of players, including the provisions on the solidarity mechanism. If the player is on loan, the loaning club is entitled to receive a solidarity contribution. Under certain circumstances a solidarity contribution must be paid despite the fact that a transfer compensation is not due. If parties agree upon a mutual exchange of obligations, without providing for payment of any compensation, for example to exchange 2 players, the DRC is of the opinion that the exchange of players can indirectly imply a financial agreement, in view of the fact that the sports qualities of the players have an economic value in the football employment market.

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Vorheriges Kapitel Training Compensation

Nächstes Kapitel Final Conclusions

See DRC 8 June 2007, no. 671050. In this case the DRC drew attention to the transfer agreement concluded between 2 clubs and noted that the parties had, instead of agreeing on a transfer compensation by means of a lump sum payment, agreed upon on a payment of a share of 40 % if the player would be transferred internationally to another club. The DRC stated that the agreement had been concluded on 18 December 1998 whereas the mechanism of solidarity contribution had not been introduced until the entry into force of the 2001 edition of the regulations. The DRC concluded that the parties could not have made any provision regarding the solidarity contribution, as this mechanism did not exist at the date of the conclusion of the agreement.

For example and as referred to earlier, for the provisions regarding solidarity contribution it is irrelevant whether a particular player already ended his training period, because it is a different concept from training compensation. See DRC 17 March 2015, no. 03151545.

See for example DRC 22 June 2007, no. 67986. In this case the DRC confirmed that the provisions of the solidarity contribution apply only in the event of a player transferring between 2 clubs affiliated to different associations and if a transfer compensation is paid by the player’s new club to the player’s former club, from where the player is being transferred during the course of the contract.

FIFA Circular no. 769 dated 24 August 2001.

From a more linguistic point of view, the “solidarity contribution” is the contribution itself to be paid by the new club. The overarching system is called “solidarity mechanism”.

DRC 1 April 2011, no. 4112858. See also DRC 10 July 2013, nos. 07132717a, 07132717b and 07132717c.

For the rationale of the solidarity mechanism, see CAS 2012/A/2944 Genoa Cricket and Football Club S.p.A. v. Club Bella Vista, award of 3 April 2013.

See CAS 2011/A/2635 Real Madrid Club de Futbol v. Confederacao Brasileira de Futbol (BF) and Sao Paulo FC, award of 25 July 2012.

See DRC 22 July 2010, no. 710264. In this case the DRC was of the opinion that despite the fact that the claiming club and the new club played in the same domestic pyramid, and even in the same competition—i.e. the Football League Championship—the transfer of the player was undoubtedly a transfer between clubs belonging to different associations, also commonly called “international transfer”.

DRC 21 November 2006, no. 116132. See DRC 9 November 2004, nos. 114679, 114678c, 114678b, 114678a, 114677b, 114677a, 114663b, 114663a, 114662, and nos. 15, 114407, 114342 and 114465.

FIFA Commentary, explanation Article 1, p. 128.

DRC 1 February 2012, no. 2121218.

See also DRC 26 April 2012, no. 4121300.

CAS 2007/A/1287 Danubio FC v. FIFA & Internazionale Milano S.p.A. award of 28 November 2007.

DRC 8 June 2007, no. 67579.

RSTP, 2016 edition, Annex 5, Article 1.

DRC 28 September 2006, no. 961202B.

DRC 24 April 2015, no. 0415977.

The DRC Judge believed that it was the amount of EUR 6,036,285.71 on the basis of which a solidarity contribution had to be calculated, given that said amount was adequately substantiated by the claimant and was subsequently not disputed by the respondent.

DRC 24 April 2015, no. 04151496.

FIFA Commentary, Annex 5, explanation Article 2, p. 130.

RSTP, 2016 edition, Annex 5, Article 1.

FIFA Commentary, explanation Article 10 para 1, p. 129.

DRC 17 August 2006, no. 861152. See also DRC 28 September 2007, no. 97280, and DRC 8 June 2007, no. 67579.

If the new club paid the entire amount of compensation to the former club without having deducted the 5 % solidarity contribution, the claim for recovering the amount paid in excess has to be lodged with the PSC, which can be based on Article 22 under f RSTP, 2016 edition. See also FIFA Commentary, explanation Article 24, p. 73, Footnote 108. In the PSC decision of 14 January 2015, no. 0115486, the Single Judge decided that “the event giving rise to the dispute” in the context of Article 25 para 5 of the RSTP, arose on the 31st day following the due date of the respective instalments of the transfer compensation. As from that moment the two-year deadline started with regard to the request for reimbursement of the solidarity contribution. However, this decision was appealed and in the award of the CAS 2015/A/4105 PFC CSKA Moscow v. FIFA & Football Club Midtjylland A/S, award of 21 December 2015, it was decided by the Sole Arbitrator that the “event giving rise to a claim”, in light of the “prescription term” of Article 25 para 5 Annex 4 RSTP, shall be the moment when the club is obliged to pay a solidarity contribution to another club. Therefore, the statute of limitation started in this matter as from the date of the DRC decision.

DRC 22 July 2004, no. 74038.

DRC 26 November 2004, no. 114130.

DRC 21 February 2006, no. 26866b.

DRC 27 April 2006, no. 4618.

DRC 10 August 2007, no. 87505. See also DRC 22 June 2007, no. 67525.

DRC 14 September 2007, no. 97527.

DRC 2 November 2007, no. 117568.

DRC 22 July 2010, no. 710106.

DRC 23 February 2007, no. 27377.

DRC 26 January 2011, no. 111492.

DRC 11 March 2011, no. 3112691.

PSC 21 November 2011, no. 1111159.

DRC 18 March 2014, no. 03142763a.

See also DRC 13 March 2013, nos. 12131365a and 12131365b, and DRC 18 March 2014, no. 03142763.

CAS 2006/A/1018 C.A. River Plate v. Hamburger S.V., award of 10 November 2006. See also CAS 2004/A/797 Confederação Brasileira de Futbol (CBF) v. Bayer 04 Leverkusen Fussbal, award of 25 January 2006. In a case before the CAS between Confederação Brasileira de Futbol (CBF) v. Bayer 04 Leverkusen Fussball of 25 January 2006, the CAS Panel confirmed in this case in a compelling manner that one cannot possibly accept that the 5 % figure was intended as an absolute requirement rather than a ceiling.

See also RSTP, 2016 edition, Article 2 para 2, last sentence.

This means that “any” means not even a deduction of the 5 % solidarity contribution. The CAS decided in its case between Feyenoord and Cruzeiro of 19 December 2006, that when a contractual clause states that a club is entitled to a certain percentage of a “full transfer sum”, an amount of solidarity contribution cannot be deducted from the transfer fee since this deduction would not be justified. See CAS 2005/O/985 Feyenoord Rotterdam N.V. v. Cruzeiro Esporte Club, award of 19 December 2006.

CAS 2008/A/1544 RCD Mallorca v. Al Arabi, award of 13 February 2009.

CAS 2009/A/1773 and 1774 Borussia Vfl 1900 Monchengladbach v. Club de Futbol America de C.V. (Asociacion Atletica Argentinos Juniors), award of 3 November 2009.

This long-standing CAS jurisprudence has also been confirmed in CAS 2008/A/1544 RCD Mallorca (Spain) v. Al Arabi (Qatar), award of 13 February 2009, and CAS 2006/A/1018 C.A. River Plate v. Hamburger S.V., award of 10 November 2006.

CAS 2012/A/2707 AS Nancy-Lorraine v. FC Dynamo Kyiv, award of 12 October 2012.

In addition, the CAS Panel also referred to the case CAS 2008/A/1544 RCD Mallorca v. Al Arabi, award of 13 February 2009, in which it was expressly mentioned that: “Furthermore, neither the 2005 FIFA Regulations nor other FIFA rules do prohibit the parties on such an internal arrangement […] Therefore, upon analysis of the aforementioned provisions, the Panel concludes that neither the relevant provisions of the FIFA Regulations nor those of Swiss Law forbid the parties to stipulate who will carry the financial burden of the solidarity contribution”.

RSTP, 2016 edition, Article 7. It is stipulated that if a birthday falls between seasons, the player will be listed in the Player Passport for the club for which he was registered in the season following his birthday.

RSPT, 2016 edition, Annex 5, Article 2 para 2. This was also confirmed by the CAS Panel in CAS 2006/A/1018 C.A. River Plate v. Hamburger S.V., award of 10 November 2006.

DRC 28 September 2006, no. 961202B. See also DRC 23 February 2007, no 27837, in which case the DRC considered that the claimant, with his claim for solidarity contribution, should have known how long it provided the player in question with training and education.

See DRC 20 May 2011, no. 511126, and DRC 30 August 2013, no. 08121946.

DRC 19 February 2015, no. 0215163.

DRC 6 May 2010, no. 510435.

DRC 22 July 2010, no. 310149.

As we noted with the system of training compensation, under the former editions before 2012, the association used to have 6 months to make themselves known, and if a club makes itself known after the 18th month after the registration of its former player, the claim of the club will then get priority above the right of the association after all. However, if the association has irrefutable evidence that one of its affiliated clubs that is entitled to a solidarity contribution no longer exists (for example, due to bankruptcy), then the solidarity contribution should immediately be paid by the new club to the association, and not only after the 18th month. See also FIFA Commentary, Annex 5, explanation Article 2, p. 130.

DRC 19 February 2009, no. 29108.

DRC 10 August 2011, no. 811829.

CAS 2008/A/1751 Brazilian Football Federation v. Sport Lisboa e Benfica-Futebol S.A.D., award of 5 August 2009.

CAS 2011/A/2635 Real Madrid Club de Futbol v. Confederacao Brasileira de Futbol (BF) and Sao Paulo FC, award of 25 July 2012.

DRC 2 November 2007, no. 117526.

In CAS 2015/A/4105 PFC CSKA Moscow v. FIFA & Football Club Midtjylland A/S, award of 21 December 2015, it was decided by the Sole Arbitrator that the “event giving rise to a claim”, in light of the “prescription-term” of Article 25 para 5 Annex 4 RSTP, shall be the moment when the club is obliged to pay a solidarity contribution to another club. Therefore, the statute of limitation started in this matter as from the date of the DRC decision.

DRC 24 November 2011, no. 1111460.

CAS 2012/A/2919 FC Seoul v. Newcastle Jets FC, award of 24 September 2013.

FIFA Commentary, Annex 5, explanation Article 2, p. 180, Footnote 180.

DRC 17 August 2006, no. 86558.

DRC 10 January 2008, no. 18337; See CAS 2012/A/2817, from which case it follows that a solidarity contribution is only due if the related transfer compensation is actually paid.

DRC 8 June 2007, no. 67579.

DRC 27 April 2006, no. 46557.

RSTP, 2016 edition, Article 10 para 1. See also DRC 2 November, no. 117420. For the sake of clarity and in order to avoid any misunderstanding, it needs to be emphasized that as from the RTSP 2005 and further new editions, a loan is subject to the same rules that apply to the transfer of players, including the provisions on the solidarity mechanism. However, following the RSTP 2001 edition, a loan was not subject to the same rules that apply to the transfer of players, including the provisions on the solidarity mechanism. See for example DRC 23 February 2007, no. 2753.

FIFA Commentary, explanation Article 10 para 1, p. 32.

DRC 26 October 2006, no. 106419.

DRC 28 September 2006, no. 961202B.

In a case before the Chamber of 22 June 2007, the DRC established and confirmed, for the sake of clarity, that according to Article 10 para 1 of the RSTP a loan is subject to the same rules that apply to the transfer of players, including the provisions on training compensation and the solidarity mechanism. The DRC again pointed out in this case that according to Article 1 of Annex 5 of the RSTP, the new club is obliged to deduct the 5 % solidarity contribution from the compensation agreed upon with the player's former club. DRC 22 June 2007, no. 471240.

DRC 28 September 2007, no. 97276.

DRC 29 September 2010, no. 10101596.

DRC 12 January 2007, no. 17630.

DRC 9 January 2009, no. 19442b. See also DRC 9 January 2009, no. 19442a.

DRC 17 August 2012, no. 812019.

DRC 17 August 2012, no. 812020.

See an unpublished PSC decision of 22 May 2015 regarding a situation in which an exchange of three players took place and the claimant club was of the opinion that it was entitled to receive compensation based on a sell-on clause.

In CAS 20111/A/2449 K.F.C. Germinal Beerschot Antwerpen NV v. FIFA & Club Atlético Chacarita Juniors, award of 23 December 2011, reference was made to the concept of “simulation”. According to the CAS Panel, a simulation exists if both parties agree to the fact that the reciprocal declarations shall produce a legal effect which does not correspond to their will, as they want to feign an agreement or to hide, by means of the apparent contract, the contract really wanted by the parties. See also CAS 2014/A/3508 FC Lokomotiv v. Football Union of Russia & FC Nika, award of 23 March 2015.

Chemor 2013.

CAS 2011/A/2356 SS Lazio S.p.A. v. CA Vélez Sarsfield & FIFA, award of 28 September 2011. Lazio stated that the key issues that arose in this case were the same as those which were considered in the so-called Keita case, CAS 2010/A/2098 Sevilla FC v. RC Lens, award of 29 November 2010. In both cases the players terminated their contracts in advance and were hired by a new club, which paid the amounts corresponding to the indemnification to be received by the club of origin. In both cases, the lack of consent of the club of origin impedes any consideration that a “sale” (Keita case) or a “transfer” (this case) was effected. In addition, no bad faith by the destination club existed in either of these cases.

The abovementioned position was reinforced by the broad wording of Article 1 of Annex 5 FIFA RSTP, which (a) recognized the right to the solidarity contribution when the player “moves” (not restricted to “transfer”) and (b) stipulates that 5 % of contribution is to be calculated on “any compensation” (not restricted to “transfer fee”).

The fact that this transaction was not identical to the typical or common pattern of transfer does not at all mean that it should not be considered a transfer if the basic elements constituting a transfer concur. The Panel wanted to stress that the circumstances of the Keita case were not comparable to the situation that gave rise to the present dispute, so it was not in any respect anomalous or incoherent that the pronouncements made and grounds followed in the one case, were different from the other. Although both cases may present certain similarities, there were major differences which impact in their respective outcomes. In the Keita case, RC Lens claimed against Sevilla CF for an amount arising out of a contractual commitment (additional payment in case of “resale” of Keita) which both parties freely agreed, defined and drafted. However, in the present case, club Vélez requested the payment of an amount to Lazio not based on a contractual stipulation but on certain FIFA regulations (solidarity contribution) which tend to foster the training of young players and which shall be respected by operators in the world of football.

See DRC 24 April 2015, no. 04151496b.

See DRC 24 April 2015, no. 04151496.

See for example DRC 27 April 2007, no. 47774.

DRC 27 April 2007, no. 47407. See also DRC 28 March 2008, no. 38289(1). In the previously mentioned CAS case between Real Madrid and the Brazilian Football Association of 25 July 2012 (CAS 2011/A/2635 Real Madrid Club de Futbol v. Confederacao Brasileira de Futbol (BF) and Sao Paulo FC, award of 25 July 2012), it was decided that there are 3 types of interest.

Chemor MF (2013) Solidarity contribution in pathological contract terminations. Int Sports Law J 13(3/4):225–235CrossRef

Titel: Solidarity Mechanism
verfasst von: Frans de Weger
Verlag: T.M.C. Asser Press
Buch: The Jurisprudence of the FIFA Dispute Resolution Chamber
Print ISBN: 978-94-6265-125-8

Electronic ISBN: 978-94-6265-126-5

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-94-6265-126-5_12

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