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 13 July 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 13 July 2017,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), 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 E

I. Facts of the case

1. The F confirmed that the player, Player E (hereinafter: player), born on 4 July 1992, was registered with its affiliated club, Club A (hereinafter: Claimant), as a professional, as from 16 July 2011 until 31 May 2015.

2. The Football Association of Country B confirmed that, since 2010, the sporting season in Country B has been running from 1 July until 31 May of the following year.

3. On 16 July 2015, the Claimant issued a statement (hereinafter: statement), confirming that the contract of the player with the Claimant expired on 31 May 2015 and that “no transfer fees exist in this regards”.

4. The Football Federation of Country D confirmed that the player was registered with the Club of Country D, Club C (hereinafter: Respondent) on 26 July 2015.

5. Moreover, according to the information in the Transfer Matching System (TMS), the International Transfer Certificate issued for the transfer of the player by the Football Association of Country B to the Football Federation of Country D indicated the Claimant as the player’s former club.

6. Also according to the information in the TMS, the Respondent belonged to the club category II within The Confederation F during the relevant period of time.

7. On 29 September 2015, the Claimant lodged a claim against the Respondent in front of FIFA asking for payment of training compensation relating to the subsequent transfer of the player to the Respondent. In particular, the Claimant is requesting the amount of USD 120,000, on the basis that the Respondent belonged to category II within The Confederation F, as well as 5% interest as of 31 days of the registration of the player with the Respondent.

8. According to the Claimant, it trained the player from 1 July 2011 until 31 May 2015.

9. The Respondent submitted its response, rejecting the Claimant’s claim.

10. In this respect, the Respondent raised the following arguments:

- The Claimant used both the English and German language in its submission and documents, which would be against art. 9 par. 1 lit. e) of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules);

- the official language to be used in the present procedure is Spanish, since it is the official language of Country D;

- the signature contained in the power of attorney granted by the Claimant is not authenticated by a notary in accordance with art. 6 par. 2. of the Procedural Rules and must be rejected. Moreover, the signature of the club’s president is allegedly different from the signature contained in the statement and thus, shall be analysed by an expert;

- the aforementioned power of attorney is dated 13 July 2015 and thus, it was issued before the issuance of the statement, allegedly demonstrating the bad faith of the Claimant. According to the Respondent, in order to correct this mistake, under the signature, the date of 5 August 2015 was written by hand.

11. As to the substance, the Respondent submitted a notarised declaration of the player stating inter alia that, apart from his contractual relationship with the Respondent for the season 2015/2016, he is currently not linked to any other Club of Country D or to any other institution affiliated to FIFA as well as that he does not have any commitment regarding training compensation.

12. After the closure of the investigation-phase of the present matter, the Claimant submitted further non-solicited statements.

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 29 September 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are 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 par. 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 competent to deal with the matter at stake relating to training compensation between clubs belonging to different associations.

3. 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 (edition 2016), and considering that the player was registered with the Respondent on 26 July 2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the members of the DRC emphasised that in the following considerations they will refer only to the facts, arguments and documentary evidence, which they considered pertinent for the assessment of the matter at hand. In particular, the DRC recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. First of all, the Chamber recalled that the player was born on 4 July 1992 and was registered with the Claimant, as a professional, as from 16 July 2011 until 31 May 2015.

6. In continuation, the DRC took note that the Claimant maintained that it is entitled to receive training compensation from the Respondent in the amount of USD 120,000, indicating that the player was transferred from the Claimant to the Respondent.

7. Furthermore, the Chamber noted that the Respondent rejected the claim of the Claimant, mainly raising objections regarding procedural aspects of the Claimant’s claim, which cannot be upheld. In this respect, the members of the DRC made reference to art. 9 par. 1 of the Procedural Rules and highlighted that the Claimant’s petition contained the relevant details. In particular, the members of the DRC referred to art. 9 par. 1 lit. e), according to which the parties shall submit the documents of relevance to the dispute in the original version and, if applicable, into one of the official FIFA languages, which include English, Spanish, French and German. In addition, the Chamber pointed out that the Claimant had presented a power of attorney in accordance with art. 6 par. 2 and art. 9 par. 1 lit. b) of the Procedural Rules.

8. In continuation, the members of the DRC took note that, in its defence, the Respondent submitted a notarised declaration issued by the player, on the basis of which the Respondent apparently deems that no training compensation is due to the Claimant. However, the DRC considered that the player’s statement, should such statement be understood as a confirmation that no training compensation would be due to the Claimant, cannot be held against the Claimant and does not have any impact on the entitlement of the Claimant to receive training compensation from the Respondent. In this context, the Chamber wished to stress that a club wishing to employ and register a player has to exercise due diligence and carry out all relevant assessments prior to having the player transferred to it. In addition, the Chamber recalled that, in general, a renunciation to training compensation is possible, but emphasised that the relevant waiver should be issued by the party wishing to waive its right and be clear and unambiguous.

9. In continuation, the Chamber took note of the declaration dated 16 July 2015, issued by the Claimant, which was submitted by the Respondent in its defence.

10. In this respect, the DRC considered that the Claimant’s declaration merely established that no transfer compensation was paid for the relevant transfer. In particular, the DRC took note that in accordance with the information contained in the TMS, the player was transferred from the Claimant to the Respondent indicating in the TMS instruction “Engage out of contract free of payment”. Furthermore, the DRC highlighted that the Claimant’s declaration was inserted in the aforementioned TMS instruction as a proof of the end date of the player’s former contract with the Claimant.

11. Consequently, the DRC concluded that the Claimant’s declaration dated 16 July 2015 cannot be considered as a waiver of its right to receive training compensation in regard to the player.

12. In continuation, the Chamber recalled 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 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.

13. Following the above, the Chamber noted that the Football Federation of Country D had confirmed that the player was registered with the Respondent on 26 July 2015, this is, in the season of the player’s 23rd birthday. Equally, the Chamber stressed that, according to the player passport issued by the Football Association of Country B, the player was registered with the Claimant as from 16 July 2011 until 31 May 2015 as a professional.

14. Moreover, the DRC took note that the ITC issued by the Football Association of Country B to the Football Federation of Country D indicated the Claimant as the player’s former club.

15. On account of all of the above, the Chamber decided to reject the arguments put forward by the Respondent in its defence and that the Respondent is liable to pay training compensation to the Claimant in accordance with art. 20 and Annexe 4 of the Regulations.

16. Having established the above, the members of the DRC turned their attention to the calculation of the amount of training compensation and referred to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which stipulate 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.

17. In this respect, the DRC took due note that according to the information contained in the TMS, the Respondent belonged to category II within the Confederation F during the season when the player was registered with it. In this regard, the DRC further took into account that according to FIFA circular no. 1484 dated 30 April 2015 the indicative amount within the Confederation F for category II clubs is of USD 40,000 per year. Furthermore, the Chamber took into account that the player, born on 4 July 1992, was registered with the Claimant during the complete seasons of his 19th, 20th and 21st birthdays (USD 40,000 each).

18. Consequently and taking into account all the above-mentioned elements, the members of the DRC decided that the claim of the Claimant is accepted and that the Respondent must pay to the Claimant training compensation in the amount of USD 120,000 for the Player E.

19. 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 interest of 5% p.a. on the amount payable as training compensation as of the 31st day of the registration of the player with the Respondent, i.e. as of 26 August 2015, until the date of effective payment.

20. Lastly, the DRC 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 Annex A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

21. In respect of the above, the DRC held that the amount to be taken into consideration in the present proceedings is USD 120,000 related to the claim of the Claimant. Consequently, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000 (cf. table in Annex A).

22. As a result, and taking into account the particularities of the present matter, the number of issues that had to be addressed, the complexity of the case as well as that the claim of the Claimant has been accepted, the Chamber determined the costs of the current proceedings to the amount of CHF 12,000, which shall be borne by the Respondent.

III. Decision of the Dispute Resolution Chamber

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

2. 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 USD 120,000 plus interest of 5% p.a. as from 26 August 2015 until the date of effective payment.

3. 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.

4. The final costs of the proceedings in the amount of CHF 12,000 are 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 9,000 has to be paid to FIFA to the following bank account with reference to case no. XXX:

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 3,000 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 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

Chief Legal & Integrity Officer

Encl. CAS Directives

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