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 19 April 2018

Decision

of the sub committee of the

Dispute Resolution Chamber (DRC)

passed in Zurich, Switzerland, on 19 April 2018,

in the following composition:

Geoff Thompson (England), Chairman

Takuya Yamazaki (Japan), member

Tomislav Kasalo (Croatia), member

Daan de Jong (The Netherlands), member

Abu Nayeem Shohag (Bangladesh), member

on the claim presented by the club,

Club A, from country C

as Claimant

against the club,

Club B, from country C

as Respondent

regarding training compensation in connection with

the player X

I. Facts of the case

1. According to the player passports issued by the Football Federation of country D and the Football Federation of country C the player, Player X (hereinafter: the player), born on 21 December 1992, was registered as a professional with the following clubs:

- Club D from country D (hereinafter: Club D) as of 1 July 2013 until 3 September 2013 on a permanent basis;

- Club A, from country C (hereinafter: the Claimant) as of 4 September 2013 until 30 June 2014 on loan from Club D;

- Club E, from country D (hereinafter: Club E) as of 23 July 2014 until 30 June 2015 on loan from Club D;

- Club D as of 14 July 2015 until 19 July 2015 on a permanent basis.

2. According to the to the information contained in the Transfer Matching System (TMS), on 20 July 2015 the player was transferred from Club D to the Club B, from country C (hereinafter: the Respondent) on a definitive basis and the latter club belonged to category I (UEFA indicative amount of EUR 90,000 per year) at the moment the player was registered with it. Equally, Club A (hereinafter: the Claimant) belonged to category I during the time the player was registered with it.

3. The sporting season in country C runs from 1 July until 30 June of the following year.

4. In this framework, on 25 July 2017, the Claimant contacted FIFA claiming its proportion of training compensation on the ground of the subsequent transfer of the player as a professional from Club D to the Respondent before the end of the season of his 23rd birthday. In particular, the Claimant requested the amount of EUR 75,000 plus interest.

5. In its claim, the Claimant first pointed out that the transfer at the basis of the dispute occurred between clubs of different associations rule and argued that FIFA was competent due to the analogical application of art. 22 lit. e) of the Regulations.

6. Furthermore, the Claimant maintained that not only the last club with which the player has been registered on a definitive basis, but also the club(s) that have registered the player on loan are entitled to the training compensation.

Consequently, the Claimant maintained that it was entitled to training compensation corresponding to a period of ten months, during which the player was registered with it on loan from Club D.

7. The Respondent replied arguing that the player had already completed his training before joining the Claimant, based on the number of matches he allegedly played with Club D during the season of his 19th birthday (3, according to the Respondent) and with Club F, from country D during the season of his 20th birthday (17, according to the Respondent).

II. Considerations of the sub-committee of the Dispute Resolution Chamber

1. First of all, the sub-committee of the Dispute Resolution Chamber (hereinafter also referred to as: the sub-committee) 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 24 July 2017. Consequently, the 2017 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 sub-committee referred to art. 3 par. 1 and 2 of the Procedural Rules and affirmed that, in accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 1 and 2 and art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2016), it would not be competent, in principle, to deal with the dispute at stake, relating to training compensation between clubs belonging to the same association.

3. Nevertheless, the members of the sub-committee wished to point out that, pursuant to art. 20 and art. 2 par. 1 of Annexe 4 of the Regulations on the Status and Transfer of Players (edition 2016), the purpose of the training compensation is to reward the player’s training clubs when the player is registered for the first time as a professional or when the professional player is transferred between clubs of different associations before the end of the season of his 23rd birthday.

4. Moreover, the sub-committee was eager to emphasise that, as a result of the above, a club belonging to the same association of the Respondent club would be, in principle, prevented from receiving training compensation even in the case of an international transfer of the player, namely whenever the transfer at the basis of the dispute occurs between clubs belonging to different associations.

5. In this context, the sub-committee wished also to refer to the content of art. 22 lit. e) Regulations on the Status and Transfer of Players (edition 2016), according to which FIFA is competent to hear disputes regarding the solidarity mechanism (art. 21) between clubs belonging to the same association provided that the transfer at the basis of the dispute occurs between clubs belonging to different associations.

6. On account of the aforementioned considerations, the members of the Chamber came to the conclusion that it would not have been the intention of the lawmaker to operate such a distinction between solidarity mechanism and training compensation in the case of an international transfer of the player as a professional and a dispute involving clubs belonging to the same association, given that both the mechanisms aim to reward the clubs which were involved in the player’s training.

7. Consequently, the sub-committee considered that the application of art. 22 lit. e) Regulations on the Status and Transfer of Players (edition 2016) should be extended, by way of analogy, also to the cases of disputes for training compensation between clubs belonging to the same association, provided that the transfer at the basis of the dispute occurs between clubs belonging to different associations.

8. Therefore, bearing in mind the aforementioned considerations, the sub-committee concluded that it is competent to deal with the dispute at stake relating to training compensation between clubs belonging to the same association, as the transfer at the basis of the dispute occurred between clubs belonging to different associations.

9. Furthermore, the sub-committee 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 (edition 2016), and considering that the player was registered with the Respondent on a definitive basis on 20 July 2015, the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

10. Its competence and the applicable regulations having been established, the sub-committee entered into the substance of the matter. In this respect, the sub-committee started by acknowledging all the above-mentioned facts as well as the arguments and documentation submitted by the parties. However, it emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

11. In this respect, the sub-committee took note of the fact that the player, born on 21 December 1992, was registered as a professional, on loan, with the following clubs:

- the Claimant, as of 4 September 2013 until 30 June 2014; and

- Club E, from country C as of 23 July 2014 until 30 June 2015.

12. Equally, the sub-committee took note that the player was transferred as a professional from Club D to the Respondent, on a permanent basis, on 20 July 2015.

13. Furthermore, the sub-committee duly noted that the Claimant requested the payment of the training compensation from the Respondent on the ground of the definitive transfer of the player as a professional to the Respondent before the end of the season of his 23rd birthday. In particular, the sub-committee took note that the Claimant requested EUR 75,000 plus interest.

14. The sub-committee also duly noted that the Respondent replied that the claim should be rejected, since the player had allegedly terminated his training period before the season of his 21st birthday, prior to his transfer to the Respondent. In particular, the Respondent alleged that the player had played 3 matches with Club D, from country D during the season of his 19th birthday and 17 with the Club F, from country D during the season of his 20th birthday.

15. With the aforementioned considerations in mind, the sub-committee stated first that, as established 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 training incurred between the ages of 12 and 21 when the player concerned is registered for the first time as a professional, or when a professional is transferred between two clubs of two different Associations, before the end of the season of the player’s 23rd birthday.

16. Furthermore, the sub-committee wished to recall that, 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.

17. Notwithstanding the above, the sub-committee 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 Dispute Resolution 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.

18. In other words, the sub-committee emphasised that the nature of the player’s registration with a club claiming training compensation, i.e. on a definitive 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.

19. Along those lines, the sub-committee 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 sub-committee 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.

20. Following the above, the sub-committee 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. The aforementioned approach is in line with the longstanding and well-established jurisprudence of this Chamber, which has been confirmed by the Court of Arbitration for Sport on numerous occasions.

21. Furthermore, the sub-committee emphasised that, according to the player passport issued by the Football Federation of country D, and to the information contained in the TMS, the player, before his permanent transfer to the Respondent, was registered with Club D.

22. Consequently, taking into account the above-mentioned considerations, the sub-committee concluded that it can be established that the player was registered as a professional on a definitive basis with the Respondent before the end of the season of his 23rd birthday and, thus, the Claimant would be, in principle, entitled to receive training compensation from the Respondent.

23. In continuation, the sub-committee focused its attention on the Respondent’s argument according to which the player had completed his training period before the season of his 21st birthday, i.e. before being registered with the Claimant.

24. In this respect, the sub-committee 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 sub-committee 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.

25. In view of the above, the sub-committee 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.

26. In this regard, the sub-committee indicated that, since the player moved from one association to another association inside the territory of the EU, which is from country D to country C, said article is applicable. Therefore, the sub-committee concluded that art. 6 par. 2 of Annexe 4 of the Regulations applies in the case at hand as lex specialis.

27. In this context, the sub-committee emphasized 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 has 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 sub-committee pointed out that, so far, both the Dispute Resolution 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.

28. In this respect, the sub-committee referred to art. 12 par. 3 of the Procedural Rules, in accordance with which, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In continuation, the sub-committee noted that the Respondent argued that player had completed his training period before the season of his 21st birthday as he had allegedly played 3 matches during the season of his 19th birthday with Club D and 17 matches with Club F during the season of his 20th birthday. Nevertheless, the Respondent did not support such allegations with any evidence. In any case, the fact that the player played a number of matches with his previous clubs is insufficient, per se, to conclude that the player had already finished his training period before joining the Respondent.

29. Consequently, pursuant to the aforementioned principle of the burden of the proof, the sub-committee concluded that, in the specific matter at hand, it could not be established whether the player had completed his training before the season of his 21st birthday and, thus, rejected the Respondent’s argument in this regard.

30. In continuation, the sub-committee acknowledged that it also had to verify whether the Claimant had complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations in order to be entitled to receive training compensation from the Respondent.

31. In this context, the sub-committee recalled that, in casu, the player was transferred on loan from Club D to the Claimant from 4 September 2013 until 30 June 2014 and still had a valid employment contract with Club D.

32. In view of the foregoing, the sub-committee held that art. 6 par. 3 of Annexe 4 of the Regulations, i.e. the obligation to offer a professional contract to the player, does not apply to clubs with which the player is registered on loan, since said clubs are per se not in a position to do so considering that the player is still contractually bound to the club of origin.

33. In view of all the aforementioned considerations, the sub-committee therefore concluded that the Claimant is entitled to receive training compensation from the Respondent.

34. Turning its attention to the calculation of the training compensation, the sub-committee referred to art. 5 par. 1 and 2 of Annexe 4 of the Regulations, which stipulates that, as a general rule, it is necessary to take the costs that would have been incurred by the new club as if it had trained the player itself and, thus, it is calculated based on the training costs of the new club multiplied by the number of years of training with the former club.

35. Furthermore, the sub-committee referred to art. 6 par. 1 of Annexe 4 of the Regulations which, as mentioned, contains special provisions in case a player moves from a higher to a lower category club or from a higher to a lower category club within the territory of the EU/EEA. In this respect, the sub-committee observed that, according to the documentation on file as well as the foregoing considerations, both the Claimant and the Respondent belonged to the category I (indicative amount of EUR 90,000 per year) and that the player was registered with the Claimant as from 4 September 2013 until 30 June 2014, i.e. during 10 months of the season 2013/2014 (the season of the player’s 21st birthday).

36. Consequently, and taking into account all the above-mentioned elements, the sub-committee decided that the Claimant is entitled to receive training compensation from the Respondent in the amount of EUR 75,000, as requested by the Claimant.

37. As to the Claimant’s request for interest on the aforementioned amount, the sub-committee wished to highlight once again that its competence to adjudicate the present matter arises out of the specific circumstances of the case among which, in particular, the application by way of analogy of art. 22 lit. e) of the Regulations to a dispute regarding training compensation between two clubs belonging to the same association (cf. par. from II.2 to II.9 above). In view of the above, and considering the peculiarity of the matter at hand, the sub-committee decided to reject the request of the Claimant for interests.

38. Lastly, the sub-committee 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, 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 sub-committee held that the amount to be taken into consideration in the present proceeding is EUR 75,000, related to the claim of the Claimant. Consequently, the sub-committee concluded that the maximum amount of costs of the proceeding corresponds to CHF 10,000 (cf. table in Annexe A).

40. As a result, and taking into account the particularities of the present matter, the sub-committee determined the costs of the current proceedings to the amount of CHF 8,000, which shall be borne by the Respondent in its entirety.

III. Decision of the sub-committee of the DRC

1. The claim of the Claimant, Club A, is partially accepted.

2. The Respondent, Club B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 75,000.

3. In the event that the aforementioned amount is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. The final amount of costs of the proceedings in the amount of CHF 10,000 is to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows:

4.1 The amount of CHF 8,000 has to be paid to FIFA to the following bank account with reference to case no:

UBS Zurich Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

4.2 The amount of CHF 2,000 has to be paid to the Claimant.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 4.2 above are to be made and to notify the sub-committee of the DRC of every payment received.

*****

Note relating to the motivated decision (legal remedy):

According to article 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 sub-committee of the DRC:

Omar Ongaro

Football Regulatory Director

Encl.: CAS Directives