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 15 December 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 December 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (England), member

Mario Gallavotti (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 training compensation in connection

with the player Player F

I. Facts of the case

1. The Football Federation of Country B confirmed that the player, Player F, born on 27 September 1990, was registered with its affiliated club, Club A (hereinafter: the Claimant) as from 27 July 2011 until 30 June 2012 as non-amateur, on loan from the Club of Country G, Club H.

2. The football season in Country B lasts from 1 July to 30 June of the following year.

3. The Football Federation of Country B confirmed that the Claimant belonged to the category 4 (indicative amount of EUR 10,000 per year within UEFA) at the time the player was registered for it.

4. The player was subsequently registered as a professional with the following Club of Country G:

Club Dates Registration basis

Club H

from 27 July 2012 until 30 July 2012

Permanent

Club J

from 1 August 2012 until 30 January 2013

On loan from Club H

Equally, according to the information contained in the Transfer Matching System (TMS) the International Transfer Certificate (ITC) was issued in favour of the Country D Football Association on 13 August 2013, being Club H the player’s last club.

5. On 13 August 2013, the player was registered with the Club of Country D, Club C (hereinafter: the Respondent), as a professional player.

6. According to TMS, Club C belonged to the category 4 (indicative amount of EUR 10,000 per year within UEFA) at the time the player was registered for it.

7. On 13 August 2015, the Claimant contacted FIFA asking for its proportion of training compensation from the Respondent. In particular, the Claimant requested EUR 20,000, plus 5% interest p.a. as of 13 September 2013.

8. In particular, the Claimant referred to the jurisprudence of the Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sport (CAS) in relation to loans and stated that the player’s new club has the obligation to pay training compensation not only to his former club but also to the clubs that have registered the player on a temporary basis.

9. In this context, the Claimant held that the training compensation system is based on the fact that all clubs are rewarded once for their efforts invested in effectively training young players, regardless of the nature of the registration, i.e. on a permanent or temporary basis.

10. Furthermore, the Claimant argued that loans do not trigger the consequences of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players, this is, they do not constitute a subsequent transfer of a player. As a result, the period of time in which the player is registered with his club of origin as well as the time the player is on loan as well as his return to his club of origin should be considered as one entire time frame.

11. In light of the foregoing, the Claimant stated that the new club of the professional player shall pay training compensation to his previous club with which he was registered on a permanent basis as well as, if any, to the clubs which accepted him on loan from his previous club.

12. Consequently, since the Claimant has never been rewarded for its efforts to train the player while he was registered on loan, the latter club is of the opinion that the Respondent has to reward it for the time it effectively trained the player as any other interpretation would contravene the real intention and the purpose of the training compensation system and would result in the reluctance of loan clubs to register players on a loan basis, preventing young players to gain practical experience.

13. In addition, regarding the calculation of the amount due as training compensation, the Claimant provided evidence that the Football Association of Country D allocated all the Clubs of Country D, including the Respondent, in the category 4. In this respect, the Claimant referred to the FIFA Circulars regarding the categorization of clubs, according to which Clubs of Country D are either category 3 or 4, and asserted that the Respondent belonged to category 3 at the time the player was registered for it since it is a long lasting member of the highest football league in Country D, which has an overall value over EUR 5,000,000 and is fully professional, and has competed numerous times in the UEFA Champion’s League or Europa League matches.

14. In this respect, the Claimant pointed out that the allocation of all the clubs of a country in the category 4 results in the whole training compensation system being “destroyed” and the rights of the clubs being irredeemable. In light of the foregoing, the Claimant provided evidence of having lodged a complaint before FIFA TMS Integrity and Compliance and FIFA Disciplinary Committee against the Football Association of Country D on 1 July 2015 regarding the alleged allocation of Country D clubs in wrong categories.

15. On 28 May 2016, the Respondent rejected the Claimant’s claim by stating that the claim is time-barred since the player was transferred to Club C on 1 July 2013 and, as a result, training compensation is due as of the end of July 2013.

16. Furthermore, the Respondent held that the Claimant is not entitled to training compensation since the player’s last club is Club H and before he was registered for the Club of Country G, Club J.

17. In this context, the Respondent referred to art. 3 par. 1 of Annexe 4 of the Regulations, in accordance with which “in the case of subsequent transfer of the professional, training compensation will only be owed to his former club for the time he was effective trained by that club” and asserted that the meaning of the provision is clear and that the ratio behind the rule is that clubs are not rewarded more than once. In this respect, the Respondent held that “in case your committee accept the claim of the Claimant, the Claimant has the ability to be compensated from the Club H from Country G (international transfer) and from Club J from Country G (international transfer) as well. Therefore at the end of the day, the Claimant will be compensated in triple”. Equally, the Respondent rejected the Claimant’s allegation that it has not received training compensation for the player yet (cf. point 12 above) and asserted that “it is unreasonable the payment of any amount of training compensation by the Respondent to the Claimant, because the Claimant has not be compensated yet. This is erroneously and it is not according to the well establish FIFA Regulations”.

18. Moreover, the Respondent referred to art. 6 par. 3 of Annexe 4 of the Regulations, according to which “if the former club does not offer the player a contract, no training compensation is payable”. In this respect, the Respondent assessed that the Claimant did not conclude a contract with the player and/or failed to offer him a contract and, consequently, no training compensation shall be paid to the Claimant.

19. In this context, the Respondent further stated that the Claimant failed to provide any evidence as to the training relationship between the latter and the player.

20. In addition, the Respondent argued that the player was transferred between two European clubs and that before the transfer his training and education period had concluded since he was playing as a professional with other football clubs.

21. Lastly, the Respondent held that it belongs to the category 4 and that, as a result, accordance to art. 2 par. 2 (ii) of the Regulations as well as to the jurisprudence of the DRC, no training compensation is payable when a player is transferred to a category 4 club.

22. On 2 December 2016, the Football Association of Country D confirmed that between the seasons 2009/2010 and 2013/2014, the Respondent belonged to the category 4 in the sense of art. 4 par. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players and that during this period it participated in the first division in Country D.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 13 August 2015. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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 and 2 in combination with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake relating to training compensation between clubs belonging to different associations.

3. At this point, the DRC, however, referred to the objection raised by the Respondent and stated that prior to deliberating on the substance of the matter, the Chamber must verify whether or not it is competent to deal with the present affair for formal reasons.

4. In this respect, the DRC referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players (editions 2012, 2014, 2015 and 2016), which stipulates that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute, and that the application of this time limit shall be examined ex officio in each individual case.

5. In this context, and hereby referring to the rules applicable to training compensation, the Chamber stated that, as established in art. 3 par. 1 and 2 of Annexe 4 of the Regulations on the Status and Transfer of Players (editions 2012, 2014, 2015 and 2016), training compensation is payable to the player’s former club 30 days following the registration of the professional player with the new association, as a general rule, for training incurred between the ages of 12 and 21 when a professional player is subsequently transferred before the end of the season of his 23rd birthday.

6. In this regard, the DRC underscored that the player was registered with the Respondent on 13 August 2013 and that the present claim was lodged on 13 August 2015, this is, within two years since the event giving rise to the dispute. Consequently, the Chamber concluded that the present claim of the Claimant is admissible.

7. 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 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2014, 2015 and 2016), and considering that the player was registered with the Respondent on 13 August 2013, the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

8. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the above-mentioned facts of the case as well as the documentation on file. However, the Chamber emphasized 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.

9. In this regard, the Chamber recalled that the player, born on 27 September 1990, was registered on a loan basis with the Claimant for the period between 27 July 2011 and 30 June 2012. Equally, the Chamber observed that after the loan with the Claimant had expired, the player returned to his club of origin, Club H, i.e. the club with which the player was still contractually bound, and that, thereafter, he was registered on loan with the Club from Country G, Club J . Subsequently, on 13 August 2013, the player was internationally transferred from Club H to the Respondent on a definitive basis.

10. In continuation, the Chamber took note that the Claimant asserted that it was entitled to receive training compensation from the Respondent in the amount of EUR 20,000.

11. Equally, the Chamber noted that the Respondent rejected the claim of the Claimant, arguing that i) the Claimant is not the player’s former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, ii) the Claimant already received training compensation from Club H and Club J , iii) the player’s training and education period had concluded since he was transferred as a professional within other European clubs, iv) the Claimant did not offer him a contract in accordance to art. 6 par. 3 of Annexe 4 of the Regulations, and v) the Respondent is a category 4 club and that, as a result and in accordance with art. 2 par. 2 lit. ii of the Regulations, no training compensation is payable.

12. In this context, the Chamber highlighted that the first issue to be addressed in the present matter is whether or not a club that accepted a professional on loan is entitled to receive training compensation when, after the expiry of the loan, the professional returns to his club of origin, and, thereafter, is transferred from the club of origin to a club belonging to another association before the end of the season of the player’s 23rd birthday.

13. In consideration of the above-mentioned issue, the Chamber, and hereby referring to the rules applicable to training compensation, reiterated that, as established in art. 20 of the Regulations as well as in art. 1 par. 1 of Annexe 4 in combination with art. 2 of Annexe 4 of the Regulations, training compensation is payable, as a general rule, for the training incurred between the ages of 12 and 21 when a player is registered for the first time as a professional before the end of the season of the player’s 23rd birthday or when a professional is transferred between clubs of two different associations before the end of the season of the player’s 23rd birthday. In case the latter occurs, art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations sets forth that training compensation will only be owed to the player’s former club for the time he was effectively trained by that club.

14. Furthermore, according to art. 10 par. 1 of the Regulations, professionals may be loaned to another club on the basis of a written agreement between the professional and the clubs concerned. Moreover, the last sentence of said provision stipulates that any such loan is subject to the same rules as apply to the transfer of players, including the provisions on training compensation and the solidarity mechanism.

15. Following the above, the Chamber stressed that one of the aims of the last sentence of art. 10 par. 1 of the Regulations is to ensure that training clubs which register a player on a loan basis also benefit from the solidarity mechanism and training compensation, provided that the relevant prerequisites in the pertinent provisions of the Regulations are fulfilled. This approach is also in line with the Chamber’s well-established jurisprudence that all clubs which have in fact contributed to the training and education of a player as from the age of 12 are, in principle, entitled to training compensation for the timeframe that the player was effectively trained by them.

16. In other words, the Chamber emphasised that the nature of the player’s registration with a club claiming training compensation, i.e. on a definite or on a temporary basis, is in fact irrelevant with respect to the question as to whether such club would be entitled to receive training compensation for the period of time that the player was effectively trained by that club.

17. In this respect and as to the argument of the Respondent that the Claimant had already received training compensation from Club H and Club J , the Chamber deemed it essential to emphasise that, as to the liability to pay training compensation, the analogy established in art. 10 par. 1 of the Regulations could not be extended to the case in which players were loaned to other clubs and thus are not being definitively transferred to a new club. In other words, the transfer of a player from the club of origin to the club that accepts the player on loan as well as the return of the player from the club that accepted him on loan to the club of origin do not constitute a subsequent transfer in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations. The DRC was eager to point out that it could not have been the intention of the legislator of the relevant regulatory provision (art. 10 par. 1 of the Regulations) to trigger the consequences of art. 3 par. 1 of Annexe 4 of the Regulations on the occasion of a transfer on a loan basis and, thus, potentially depriving the loan of its essential flexibility and function of providing young players the opportunity to gain practical experience in another club in order to develop in a positive way, personally and, eventually, also for the benefit of the player’s new club.

18. Following the above, the Chamber pointed out that the obligation to pay training compensation thus arises in case a player is definitively transferred from one club to another club belonging to a different association, but not when he is temporarily transferred to another club while still being contractually bound to his club of origin (yet, with the effects of the relevant contract being temporarily suspended), such as a loan. Hence, the relevant entitlement can only be claimed towards a new club that acquires the services of a player on a definitive and permanent basis subject to the fulfilment of the prerequisites established in art. 20 and Annexe 4 of the Regulations.

19. In this regard, the DRC further emphasized that, in accordance with the legal principle of the burden of proof mentioned under art. 12 par. 3 of the Procedural Rules, it would have fallen upon the Respondent to prove that the Claimant had already received training compensation from Club H and Club J.

20. Having said that, the Chamber turned its attention to the argument of the Respondent that the Claimant is not the former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations. In this respect, the Chamber wished to recall that art. 3 par. 1 sent. 3 of Annexe 4 stipulates that “In the case of subsequent transfers of the professional, training compensation will only be owed to his former club for the time he was effectively trained by that club”. In this context, the Chamber acknowledged that the Claimant was not the player’s former club stricto sensu, however, the Chamber pointed out that, within the framework of loans and for the purposes of the rules governing training compensation, the period of time that the player was registered with Club H and the period of time that the player was registered with the Claimant (and any other club) on loan, should be considered as one entire timeframe. Any other interpretation would lead to the situation in which clubs accepting a player on loan would never be entitled to receive training compensation, even if they contribute to the training and education of players.

21. Bearing in mind the foregoing, the Chamber deemed that the Respondent’s interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations would clearly contravene the intention of the legislator of the Regulations according to which all training clubs shall, in principle, be rewarded for their efforts invested in training young players, including those clubs that have accepted a player on a temporary basis.

22. In continuation, the Chamber went on to examine whether or not the player’s training period had already been completed before the season of the player’s 21st birthday.

23. In this respect, the DRC referred to art. 6 of Annexe 4 of the Regulations, which contains special provisions regarding players moving from one association to another association inside the territory of the European Union (EU)/European Economic Area (EEA). More specifically, the members of the Chamber referred to art. 6 par. 2 of Annexe 4 of the Regulations, which stipulates that, inside the EU/EEA, the final season of training may occur before the season of the player’s 21st birthday if it is established that the player completed his training before that time.

24. In view of the above, the Chamber stated that it first had to verify whether art. 6 par. 2 of Annexe 4 of the Regulations applies to the present case as lex specialis.

25. In this regard, the Chamber indicated that, since the player moved from Country G to Country D , i.e. from one association to another association inside the territory of the EU, said article is applicable. Therefore, the Chamber concluded that art. 6 par. 2 of Annexe 4 of the Regulations applies in the case at hand as lex specialis.

26. In this context, the Chamber wished to emphasize that cases involving a possible early completion of a player’s training period have to be assessed on a case-by-case basis, whereby all the specific circumstances and all the evidence produced have to be taken into consideration. Hence, several factors and indications have to be considered in order to assess and establish whether a particular player’s training has indeed been completed before the season of his 21st birthday. For the sake of completeness, the Chamber pointed out that, so far, both the Chamber as well as the CAS have adopted a strict approach in establishing that a player’s training had indeed been completed before the season of a player’s 21st birthday, so as to not jeopardize the right of training clubs to, in principle, receive training compensation.

27. In this regard, the Chamber took, once more, note of all the specific circumstances of the present matter as well as of all the evidence produced by the parties of the dispute, according to which the player was loaned and transferred between different European clubs as a professional. However, the DRC concurred that, in the specific matter at hand, from the player’s career and, in particular, from the mere fact that the player was transferred as a professional between two European countries, it could not be established that the player had indeed already completed his training before joining the Respondent. Hence, in the absence of any convincing evidence, the Chamber deemed that the training period of the player had not been completed before the season of his 21st birthday.

28. Subsequently, and as to the allegation of the Respondent that the Claimant failed to comply with the prerequisite of offering the player a contract, the DRC pointed out that, in casu, a possible obligation to offer the player a contract in compliance with art. 6 par. 3 of Annexe 4 of the Regulations would in principle lie with Club H, this is, the club with which the player concluded a professional agreement that was suspended during the loan, and not with the Claimant. As stated in art. 6 par. 3 of Annexe 4 of the Regulations, said provision is without prejudice to the right of training compensation of the player’s previous club(s).

29. Turning its attention to the Respondent’s argument that it is a category 4 club, the Chamber went on to recall that, in accordance with art. 2 par. 2 lit. ii. of Annexe 4 of the Regulations, training compensation is not due when a player is transferred to a category 4 club.

30. In continuation, the members of the DRC emphasized that, in accordance with the FIFA Circular no. 1354, clubs in Country D shall be allocated either in category 3 or 4.

31. With this established, the Chamber carefully examined the documents on file. In particular, it noted that, in accordance with the clarification of the Football Association of Country D dated 2 December 2016, the Respondent has been allocated in the category 4 between the seasons 2009/2010 and 2013/2014, as well as that it had continuously played in the first division of Country D during said period.

32. In this context, the DRC was of the view that there are good reasons to deem that the allocation of the Respondent in category 4 is not justified in view of the specific circumstances of the present matter. Consequently, the Chamber decided that the club category 3 shall apply to the Respondent and, therefore, training compensation is due.

33. Consequently, taking into account the above-mentioned considerations, the Chamber concurred that it had to reject the Respondent’s arguments and decided that the Respondent is liable to pay training compensation to the Claimant for the training of the player in accordance with art. 20 of the Regulations and art. 2 par. 1 lit. ii. and art. 3 par. 1 of Annexe 4 of the Regulations.

34. Turning its attention to the calculation of training compensation, and considering art. 3 par. 1 sent. 2 of Annexe 4 of the Regulations, which stipulates that the amount payable is calculated on a pro rata basis according to the period of training that the player spent with each club, the DRC concluded that the effective period of time to be considered in the matter at stake corresponds to 11 months of the 2011/2012 season, i.e. as from 27 July 2011 until 30 June 2012.

35. Furthermore, the Chamber referred to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which stipulates that as a general rule, to calculate the training compensation due to a player’s former club, it is necessary to take the costs that would have been incurred by the new club if it had trained the player itself. Equally, the DRC recalled the contents of art. 6 par. 1 of the Annexe 4 of the Regulations, which stipulates that when a player moves from a lower to a higher category club within the territory of the EU/EEA, the amount of training compensation payable shall be calculated on the average training costs of the two clubs. In this respect, the Chamber took into account that according to the documentation on file, the Claimant belonged to the club category 4 and that, as previously established, the Respondent belonged to the club category 3.

36. Consequently, the Chamber decided that the claim of the Claimant can be partially accepted and that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 18,333.

37. Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of Annexe 4 of the Regulations, the DRC decided that the Respondent has to pay, in conformity with its longstanding practice, interest at 5% p.a. over the amount payable as training compensation as of the 31st day of the registration of the player with the Respondent on a definitive basis, i.e. as of 13 September 2013, until the date of effective payment.

38. Lastly, 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 proceedings before the DRC relating to disputes regarding training compensation and the solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further stipulated that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and that, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

39. In respect of the above, the Chamber held that the amount to be taken into consideration in the present proceedings is EUR 20,000 related to the claim of the Claimant. Consequently, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).

40. As a result, and taking into account the complexity of the case as well as that the claim of the Claimant is partially accepted, the Chamber determined the costs of the current proceedings to the amount of CHF 5,000.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Club A, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Club C , has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 18,333, plus 5% interest p.a. as of 13 September 2013 until the date of effective payment.

4. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by the Claimant is rejected.

6. The final costs of the proceedings in the amount of CHF 5,000 are to be paid within 30 days as from the date of the notification of the present decision as follows:

6.1. The amount of CHF 4,000 has to be paid by the Respondent to FIFA to the following bank account with reference to case nr. XXXXXXXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6.2. The amount of CHF 1,000 has to be paid by the Claimant to FIFA to the aforementioned bank account with reference to case nr. XXXXXXXXX.

7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 3. above 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. 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:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives