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 5 November 2015

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 5 November 2015,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mohamed Al-Saikhan (Saudi Arabia), member

Rinaldo Martorelli (Brazil), 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 E

I. Facts of the case

1. According to the player passport issued by the Football Association of country B, the player, Player E, born on 19 October 1992, was registered as an amateur with its affiliated clubs as follows:

Club Status Registration dates

Club F

Amateur

from 11 August 2004 until 6 August 2006

Club G

Amateur

from 9 August 2006 until 10 August 2009

Club A

Amateur

from 11 August 2009 until 21 June 2011

2. On 21 October 2013, the Football Association of country B confirmed that Club A (hereinafter: the Claimant) is the legal successor of Club F and that “as such is registered with the Football Association of country B from 22.02.2006”.

3. The football season in country B ran as follows:

Season Dates

2004/2005

from 14 August 2004 until 1 June 2005

2005/2006

from 15 August 2005 until 2 June 2006

2009/2010

from 19 August 2009 until 6 June 2010

2010/2011

from 20 August 2010 until 7 June 2011

4. According to the information contained in the Transfer Matching System (TMS), the player was transferred from the club from country H, Club I (hereinafter: the involved club), to the club from country D, Club C (hereinafter: the Respondent), on 26 February 2013.

5. Furthermore, according to the player passport issued by the Football Association of country H, the player was registered with the involved club as an amateur.

6. The Football Union of country D confirmed that the player was registered with Club C on 26 February 2013.

7. According to the information contained in the TMS at the time the player was registered with Club C, said club belonged to the category 2 (indicative amount of EUR 60,000 per year).

8. On 24 September 2013, the Claimant contacted FIFA asking for its proportion of training compensation for the first registration as professional of the player with the Respondent. In particular, the Claimant requested EUR 137,583 plus 5% p.a. as from 30 March 2013, as well as the procedural costs and all the costs in relation to the present procedure, including the attorney’s fees.

9. In this respect, the Claimant stated that the player was previously registered with the involved club as an amateur from 20 July 2011 until 22 February 2013, enclosing a copy of the player passport issued by the Football Association of country H. According to the Claimant, during the 2013 winter registration period, the player then was transferred to the Respondent, with which he signed his first professional contract.

10. On 30 December 2013, the Respondent rejected the Claimant’s claim by referring to art. 2 of the FIFA Regulations on the Status and Transfer of Players. In particular, the Respondent stated that the player had a written contract with the involved club, which should be understood as an employment contract, and that, as a result, the employment contract entered into with the Respondent is not the player’s first employment contract. In particular, the Respondent held that it entered into a transfer agreement with the involved club for the transfer of the player, thus, clearly accepting an early termination of the employment contract between the involved club and the player.

11. In this respect, the Respondent provided a copy of the transfer agreement entered on 22 February 2013 between said club and the involved club by means of which the former paid EUR 100,000 to the latter for the transfer of the player.

12. Furthermore, and as to the alleged amateur status of the player while registered for the involved club, the Respondent referred to the jurisprudence of the DRC, according to which, the formal status of the player registered by a national association “shall not be a critical factor to determine whether the player is amateur or professional”.

13. On 4 April 2014, the Claimant rejected the Respondent’s arguments. In particular, the Claimant asserted that the player passport is a public document issued by the Football Association of country B and by the Football Association of country H and that, therefore, “it is legal to presume that the document proves what it is confirmed by it”.

14. In this respect, the Claimant referred to the Commentary to the Regulations on the Status and Transfer of Players and, in particular, to art. 7 par. 1 and 3, stating inter alia that the info contained in the player passport is “crucial when calculating training compensation and the solidarity contribution payable to those clubs that have invested in training this player”.

15. Furthermore, the Claimant referred to clause 2.3 of the transfer agreement entered into between the involved club and the Respondent, which reads as follows:

“Should [the involved club] fail to submit the international transfer certificate and the transfer contract for the registration of the player till 25 February 2013 (inclusive) the present Agreement shall be deemed null and void and not granting any rights or imposing any obligations upon de Parties”.

16. In this respect, the Claimant assessed that said transfer agreement only binds the signing parties and, therefore, no provision is effective against any third party such as the Claimant. Consequently, the latter is of the opinion that, since the ITC was issued on 26 February 2013, it should be undisputed that an international transfer of the player from the involved club to the Respondent indeed occurred.

17. Moreover, and as to the status of the player when registered with the involved club, the Claimant referred to the art. 12 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber and held that the Respondent failed to provide any evidence supporting that the player was a professional at the time he was registered with the involved club, although the burden of proof was on the Respondent. As a result, the Claimant is of the opinion that the information contained in the player passport issued by the Football Association of country H (i.e. that the player was registered with the involved club as an amateur) should be considered as accurate.

18. On 18 June 2014, the Respondent referred to the wording of the transfer agreement entered between the latter and the involved club (cf. point I.11 above), and stated that it repeatedly refers to the employment contract of the player with the involved club.

19. In this respect, the Respondent also referred to the DRC decisions no. 191126 and no. 99140 and asserted that the DRC has repeatedly accepted that the status in the player passport cannot be considered as irrefutable information.

20. Furthermore, the Respondent assessed that a transfer agreement is concluded whenever a club wants to register a player who is currently registered with another club, and whose employment contract with said club is valid.

21. In this respect, the Respondent held that it had paid EUR 100,000 to the involved club in order to release the player, thus, the Respondent concluded the player was not an amateur. In particular, the Respondent referred to the CAS jurisprudence, according to which, “the amateur status can also be corroborated by the fact that it is only because the Player was amateur that he was able to leave his previous club to join another club, without being hindered from being engaged in other professional activities or occupations”.

22. In light of the foregoing, the Respondent concluded that the player had entered into a contract with the involved club and that he was bound by said contract, thus, he was already a professional player before being transferred to the Respondent. Consequently, the Respondent requested the rejection of the claim.

23. Upon request, Football Association of country H and the involved club confirmed to TMS Compliance, in the context of their investigation on the subject, that on 24 June 2011 the Football Association of country H informed the Football Association of country B that the player was going to be registered as an amateur. Furthermore, the Football Association of country H held that “after 17 July 2011, Football Association of country H had no any kind of connection with this transfer or with the aforementioned player, because the jurisdiction for the registration of the player was on Regional Registration Body in the City J. After we checked it, we can confirm that the Player E has been registered as the member of [the involved club] in amateur status since 20 July 2011 (…). We can confirm that we have no knowledge of the existence of any employment contract between the club and the player”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. The present matter was submitted to FIFA on 24 September 2013. As a consequence, the Chamber concluded that the 2012 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 in hand.

2. With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of arts. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012, 2014 and 2015). In accordance with art. 1 par. 1 of the aforementioned Regulations, which describes the scope of the relevant Regulations, in connection with articles 24 par. 1 and 22 d) of said Regulations, the Dispute Resolution Chamber is competent to decide on the present litigation with an international dimension concerning the training compensation claimed by the club from country B for the training and education of the player in connection with the alleged first registration of said player as a professional for the club from country D.

3. Furthermore, and taking into consideration that the player was registered for the Respondent on 26 February 2013, the Chamber 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, 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 and 2015), 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.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter and started by acknowledging the facts of the case, as well as the documentation contained in the 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.

5. In this respect, the members of the Chamber first of all acknowledged that the Claimant requested the amount of EUR 137,583 as training compensation from the Respondent plus interest as from 30 March 2013. Particularly, the Claimant insisted that its claim was based on the first registration of the player as a professional.

6. The Chamber took also note, on the other hand, that the Respondent contested the claim of the Claimant emphasising that the player had already been registered as a professional with the club from country H, Club I. In order to corroborate its position, the Respondent provided a copy of the transfer agreement signed with the involved club on 22 February 2013, according to which the parties had agreed upon a transfer compensation of EUR 100,000.

7. Equally, the members of the Chamber considered that the Football Association of country H confirmed that the player had been registered as an amateur with the involved club.

8. Thereafter, the DRC maintained that, as a general rule, training compensation for a player’s training and education is, in principle, due when a player is registered as a professional for the first time and in case of a subsequent transfer of a professional, training compensation will only be owed to his former club for the time he was effectively trained by that club (cf. art. 3 par. 1 of the Annexe 4 to the Regulations).

9. Subsequently, the Chamber referred to the general legal principle of the burden of proof, which is a basic principle in every legal system, according to which a party deriving a right from an asserted fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural Rules).

10. In this respect, the DRC turned its attention to the rare evidence on file and considered the relevant transfer agreement as the most convincing element. According to said agreement, the involved club and the Respondent had agreed upon a transfer compensation amounting to EUR 100,000. Said payment, so the members of the Chamber, symbolises the amount payable to the former club in order to enable the transfer of a player to a new club during the validity of his employment contract. Consequently, the members of the Dispute Resolution Chamber unanimously concluded that a transfer compensation would clearly speak for a professional status of the player with his previous club.

11. Taking into account the above and due to the lack of proof with regard to the amateur status of the player with the involved club, the DRC did not uphold the Claimant’s position in this regard.

12. Thus, and bearing in mind all the above-mentioned points, the members of the Chamber underlined that in accordance with the clear wording of the Regulations in case of subsequent transfers of a professional, training compensation will only be owed to his former club for the time he was effectively trained by that club (cf. art. 3 par. 1 of Annexe 4 to the Regulations).

13. In light of the above, the Chamber concluded that the Claimant is not entitled to receive training compensation from the Respondent since the transfer of the player from the club from country B to the club from country D has to be considered as a subsequent transfer of a professional player, and, therefore, only the previous club of the player would be entitled to receive training compensation.

14. Taking into account all of the above, the Chamber concluded that the Claimant’s demand for training compensation has to be rejected.

15. In continuation, the Chamber referred to art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Dispute Resolution Chamber relating to disputes regarding training compensation 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. Therefore, the latter club 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 137,583 related to the claim of the Claimant. Therefore, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000 (cf. table in Annexe A of the Procedural Rules).

19. Considering that the matter at stake allowed to be dealt with following a reasonable procedure, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 15,000

*****

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 15,000 are to be paid by the Claimant to FIFA. Given that the latter already paid an advance of costs of CHF 4,000 at the beginning of the present proceedings, the Claimant has to pay the amount of CHF 11,000, within 30 days of notification of the present decision, to the following bank account with reference to case nr. XXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

Note relating to the motivated decision (legal remedy):

According to art. 67 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

____________________________

Markus Kattner

Acting Secretary General

Encl. CAS directives