GAÚCHO FIFA

Fédération Internationale de Football Association

Att. Mr. Slim Aloulou

Dispute Resolution Chamber (DRC)

FIFA – STRASSE 20

PO BOX 8044 ZURICH

SWITZERLAND

REF Nº ELK 09-01124

SPORT CLUB GAÚCHO, a Brazilian football club with its registered office in St. MORON, 3312  - PASSO FUNDO /RS  – Brazil – legally represented by its attorney Alberto Lopes Franco – annex 01 - submit to the DRC, ANSWER OF RESPONDENT, as follows:

I - BRIEF HISTORY OF THE FACTS OF THE CASE

The player JAVIER ANTONIO COHENE MERELES, born on 03 May 1987.

On 2 March 2007, the player signed a professional contract with the Brazilian club, Sport Club Gaucho (hereafter: the Respondent), for the period above mentioned until 1 June 2007, when the contract was rescinded. Please find a copy of a professional player’s contract and Term of rescission issued by CBF. The player was registered by CBF on 13 April 2007.

Furthermore, according to the contract, the player was engaged as a professional player and was entitled to receive a monthly salary of R$ 506,00, i.e. €180,22.

During the period of the contract the player did not played any game, because he was injured.

In accordance of the documents we received by fax it’s possible to deduce:

a)       On unspecified day of Jun 2009, Club Pirayú Sport has filed a claim requesting the condemnation of the respondent to pay the amount of USD 95.000 (page 22/24 from 03/08/2011 FIFA fax); it’s important to refer that there are no proof of the protocol of the claim on FIFA.

b)      On 15 January of 2011, the Associación Paraguaya de Fútbol sent a petition requiring the adhesion to Pirayú Sport and General Diaz claim with regard to the payment of the training compensation;

c)      On 10 March 2011, the respondent was notified to start to pay the training compensation or to provide valid reasons which might justify a refusal, by no later than 30 March 3011.

The respondent is not responsible for the payment required for the reasons of the fact and the law set out below.

II – AS TO THE LAW

Considering the fact that the player was registered by CBF on 14 April 2007;

Considering the fact that the Claimant has 18 months to file a claim requesting the Training Compensation, since the registration.

I - THE DISPUTE RESOLUTION CHAMBER IS NOT COMPETENT

TO DECIDE ON THE PRESENT LITIGATION

The Dispute Resolution Chamber shall no hear the claim of the Claimant, due to the fact that more than two years had elapsed since the event giving rise to the dispute, in accordance of art. 25, 5, of the Regulations. Therefore, mustn't be accepted the claim of the Claimant.

Article 25 Procedural guidelines

(...)

5. The Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as the case may be) shall not hear any case subject to these regulations if more than two years have elapsed since the event giving rise to the dispute. Application of this time limit shall be examined ex officio in each individual case.

Consequently, the DRC cannot be considered as competent to deal with the procedure at stake.

II - LIMITATION OF ACTION

If DRC consider itself competent to present case, and taking in consideration that the contract was registered by CBF on 13 April 2007, there are two periods of limitation that should to be taken into consideration. One for the Club and other for the Association, in accordance of article 3, of the Annex 4, of the Regulations on the Status and Transfer of Players.

“Annex 4

Article 3 Responsibility to Pay Training Compensation

If a link between the Professional and any of the clubs that trained him cannot be established, or if those clubs do not make themselves known within 18 months of the player’s first registration as a Professional, the Training Compensation shall be paid to the Association(s) of the country (or countries) where the Professional was trained. This compensation shall be earmarked for youth football development programmes in the Association(s) in question present deal more than two years have elapsed from the day that training compensation was payable until the date the Claimant filed its claim with FIFA.

In continuation and analyzing the documents that was sent to the Respondent is possible to affirm that:

Registration by CBF	Initial term	Final Term	Protocol of the claim
13/04/2007	14/05/2007	14/05/2009	June 2009 - Club and January 2011 - Association

In this respect, and in order to clarify the sense of the mentioned clause, there is the follow commentary on Commentary on the Regulations for the Status and Transfer of Players, page 56:

“Chamber The association is entitled to claim training compensation as soon as 18 months have elapsed since the registration of the player for the new club. The association has six months to do so, as the right will lapse 2 years after the registration.

However, if the association has irrefutable evidence that one of its affiliated clubs, which is entitled to training compensation, no longer exists, then training compensation should be paid immediately to the association and not only after 18 months. If an association claims training compensation and an entitled club then appears, the claim of the association will obviously lose all effect.”

Thereby, considering that the present matter was submitted to FIFA on June 2009 by the Clubs, and on December 2010 by Associación Paraguaya de Fútbol, it’s fulminated by institute of the limitation of action.

III - THE BURDEN OF EVIDENCE

The burden of demonstrating the existence of an entitlement surely falls on the party seeking to rely upon it: actori incumbit probatio.

In accordance of the principle above and also to article 2, Annex 4 of the Regulations, it  fallen upon the Claimant to prove that the player was registered as amateur before be registered as professional for the Respondent, thru the passport of the player. The respondent, however, has not had access to the passport.

“Article 2 Payment of Training Compensation

Training Compensation is due:

i) when a player is registered for the first time as a Professional; or,

ii) when a Professional is transferred between clubs of two different Associations (whether during or at the end of his contract) before the end of the Season of his 23rd birthday.

Training Compensation is not due:

i) if the Former Club terminates the player’s contract without just cause (without prejudice to the rights of the previous clubs); or

ii) if the player is transferred to a Category 4 club; or

iii) if a Professional reacquires Amateur status on being transferred.”

Continuing,  the training compensation is also not due for the reason that the respondent belong to a category 4. To do so, the Respondent has already petitioned for CBF, requiring a statement of category. The respondent ask kindly

Furthermore, the Respondent is on 350 place on CBF Ranking clubs. Consequently it belongs to category 4. In this case the respondent is not due to pay.

IV - THE CALCULATION OF THE AMOUNT OF TRAINING COMPENSATION

Finally, in case of training compensation is due to the Claimant, the amount should be adjusted, for two reasons, according to art. 5 par. 4 of Annex of 4 of the Regulations.

“The Dispute Resolution Chamber may review disputes concerning the amount of Training Compensation payable and shall have discretion to adjust this amount if it is clearly disproportionate to the case under review” (emphasis added).

First of one is that the Respondent is a poor club of south of Brazil, which play the second division of regional league. It is the number 350 on 412 on the CBF Ranking. The club was raised for poor people to have some fun on boring weekends. Any condemnation will conduct the respondent  to a worst  financial collapse. The Respondent has already been with many unpayable debts.

Finally, if the money goes to Associación it will not reach the real intention of the law. The amount will not compensate any training and education costs. It will just increase the bank account of the Associación Paraguaya de Fútbol.

III - REQUESTS

In view of all the above factual and legal arguments, A.A. DALLAS VALLE DO SOL  hereby requests the DISPUTE RESOLUTION CHAMBER to:

a)      Condemn TOTTENHAM  to pay to it, the amount of £ 15.903 OR € 17.883,31, as solidarity mechanism in the matter at hand;

b)      Condemn TOTTENHAM  to pay interest at the rate of 5% per year since the moment the due amount became outstanding;

c)      Condemn TOTTENHAM  to bear, as the sole responsible for the present procedure, the eventual legal expenses incurred by A.A. DALLAS VALLE DO SOL in the matter at hand.

d)      Submit the present file to appreciation of the Disciplinary Committee in order for adequate disciplinary sanctions to be imposed on TOTTENHAM .  

e)      be granted the right to attach another copy of SANDRO RANIERE GUIMARÃES CORDEIRO PALYER PASSORT;

f)       send future notifications to the fax number 55 51 3019 2082.

Yours Faithfully,

Porto Alegre, 24^th October 2010.

Alberto Lopes Franco

Attorney