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 29 March 2018

Decision

of the sub committee of the

Dispute Resolution Chamber (DRC)

passed in Zurich, Switzerland, on 29 March 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (the Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay), member

Wouter Lambrecht (Belgium), member

Joel Talavera (Paraguay), 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 E

I. Facts of the case

1. According to the player passport issued by the Football Association of Country B, the player, Player E (hereinafter: the player), born on 28 February 1996, was registered with its affiliated Club A (hereinafter: Club A or the Claimant) as follows:

- as of 16 March 2011 until 14 November 2013 as an amateur;

- as of 15 November 2013 until 9 September 2015 as a professional.

2. The relevant player passport further provides that the player was registered as a professional as follows:

a) “De 10/09/15 al 30/06/16 (P)” with the club of Country B, Club F;

b) on “1/07/2016 (Reintegro)”, with the Club A.

3. The sporting seasons in Country B ran as follows: a) for amateurs (under 20 years of age) from January to December of the relevant year and b) for amateurs (more than 20 years of age) and professionals from 1 July until 30 June of the following year.

4. According to the information contained in the Transfer Matching System (TMS), the player was registered as a professional with the club of Country D, Club C (hereinafter: Club C or the Respondent), on 6 July 2016, on a direct transfer from Club A.

5. According to the information contained in the TMS, Club C belonged to the category I (Continental Confederation indicative amount of EUR 90,000 per year) at the moment the player was registered with it. Furthermore, the indicative amount for each year of training between the player’s 12th and 15th birthday is EUR 10,000, based on category IV.

6. In this framework, on 9 June 2017, Club A contacted FIFA claiming its proportion of training compensation on the ground of the transfer of the player as a professional to a club of a different association, before the end of the season of his 23rd birthday. In particular, Club A requested the amount of EUR 339,314 plus interest until the date of payment.

7. In its claim, Club A maintained that the player was transferred on loan to the Club F until 30 June 2016, by means of a loan agreement dated 7 September 2015. Furthermore, the Claimant also submitted copy of the “Boletin Complementario N XXX de la Gerencia de la Asociación”, dated 15 September 2015, where the player’s loan is indicated as “sin cargo y opción”.

8. Moreover, Club A affirmed that, once the loan period with Club F ended, on 30 June 2016 the player returned to Club A, which consequently was the last club with which the player was registered. Furthermore, Club A stated that, on the same date, the employment contract between Club A and the player expired; hence, as of 1 July 2016, the player was out of contract. In this context, Club A submitted copy of the “Boletin Complementario N XXX de la Gerencia de la Asociación”, indicating that the player was transferred from Club A to Country D.

9. Club C replied to the claim, arguing that the last club of the player was not Club A but, rather, Club F and, thus, Club A was not entitled to training compensation.

10. In particular, Club C contested that the player was registered with Club A on 1 July 2016, as indicated in the player’s passport, on the basis of the following arguments:

i) the employment contract between the player and Club A expired on 30 June 2016;

ii) on 1 July 2016 the player was under contract with the Club C, pursuant to the employment contract – a copy of which was submitted by Club C- concluded between the player and Club C on 21 April 2016, valid as from 1 July 2016 until 30 June 2020;

iii) the player was transferred from Club A to Club F on a permanent basis. In particular, Club C alleged that the loan was simulated and such transfer occurred against the payment of a transfer fee, constituted by the transfer of another player from Club F to Club A at the same time. In this context, Club C submitted, as supporting evidence, press articles and a “sworn affidavit” of an alleged player’s agent.

11. In its replica, Club A rejected Club C’s arguments and, while reiterating the argumentation exposed in the claim, pointed out that the term “Reintegro” appearing in the player’s passport (cf. point 2, lit. b) above) indicated the player’s return from the loan, which was therewith mentioned under the letter “P” (cf. point 2, lit. a) above).

12. In its duplica, Club C insisted with its previous arguments and reiterated that the player left Club A in September 2015 and did not return, as he was allegedly transferred to Club F on a permanent basis.

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 9 June 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 confirmed that, in accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 1 and 3 and art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2018), it is competent to deal with the dispute at stake relating to training compensation between clubs belonging to different associations.

3. 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 2018), and considering that the player was registered with the Respondent on a definitive basis on 6 July 2016, the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. 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 it considered pertinent for the assessment of the matter at hand.

5. First, the sub-committee took note of the fact that the player, born on 28 February 1996, was registered with the Claimant as of 16 March 2011 until 14 November 2013, as an amateur, and as of 15 November 2013 until 9 September 2015, as a professional.

6. Furthermore, the sub-committee acknowledged that, according to the relevant player passport issued by the the Football Association of Country B, the player was registered as a professional as follows:

- “De 10/09/15 al 30/06/16 (P)” with the club Club F;

- on “1/07/2016 (Reintegro)”, with the Club A.

7. Equally, the sub-committee noted that the player was registered with the Respondent, on a permanent basis, on 6 July 2016.

8. With the aforementioned facts in mind, the members of the sub-committee noted that the Claimant maintained that the player had been registered on loan with the Club F and 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, they took note that the Claimant requested the amount of EUR 339,314 plus interest until the date of effective payment.

9. The sub-committee further noted that, conversely, the Respondent asserted that the Claimant was not entitled to any training compensation as allegedly Club F, and not the Claimant, was the last club which the player was effectively registered with before his definitive transfer to the Respondent. In particular, the Respondent contested that the player was registered with the Claimant on 1 July 2016, alleging that, on that date, the player was already under contract with the Respondent and his transfer on loan from the Claimant to Club F was actually a definitive transfer occurred against payment of a transfer fee.

10. In view of the above and considering the dissenting positions of the parties, the members of the sub-committee concurred that the first issue to address in the present matter is to assess whether the player was registered with Club F on loan or on a definitive basis. In this context, the members of the sub-committee deemed necessary to refer 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).

11. In this respect, the members of the sub-committee took into account that the Claimant submitted a copy of the documentation issued by the Football Association of Country B “Boletin Complementario N XXX de la Gerencia de la Asociación”, according to which the player was transferred on loan from Club A to Club F until 30 June 2016. What is more, the sub-committee highlighted that, according to the player’s passport, the player was registered with Club F on a loan basis.

12. On account of the foregoing, after a thorough examination of the documentation submitted by both parties, the members of the sub-committee concluded that the player was transferred from Club A to Club F until 30 June 2016 on a loan basis. In particular, the sub-committee considered that Club C did not provide sufficient evidence in order to rebut the presumption of correctness of the player’s passport issued by the Football Association of Country B and of the “Boletin Complementario N XXX de la Gerencia de la Asociación”. More specifically, the sub-committee was of the opinion that the employment contract signed by the player with Club C on 21 April 2016, and valid as of 1 June 2016, is not sufficient to prove, in and of itself, that the player was in fact transferred to Club F on a definitive basis.

13. Having established the above, the sub-committee further stated 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.

14. 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.

15. 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 actual 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 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.

17. 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.

18. 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.

19. On account of the aforementioned considerations, the sub-committee rejected the argument of the Respondent according to which Club F was the last club which the player was effectively registered with before his definitive transfer to the Respondent. In this respect, the sub-committee emphasised that, according to the player passport issued by the Football Association of Country B and to the information contained in the TMS, it was indeed the Claimant the last club which the player was registered with before his transfer to the Respondent. What is more, the sub-committee was comforted with such conclusion by the fact that, according to “Boletin Complementario N XXX de la Gerencia de la Asociación” submitted by the Claimant, the player was transferred directly from Club A to Country D.

20. Consequently, taking into account the above-mentioned considerations, the sub-committee concluded that it can be established that the player was registered on a definitive basis as a professional before the end of the season of his 23rd birthday and, thus, the Claimant is entitled to receive training compensation and that the Respondent is the party responsible for the payment.

21. Turning his attention to the calculation of training compensation, the sub-committee referred to art. 5 par. 1 and 2 of the 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.

22. Furthermore, the sub-committee also referred to art. 5 par. 3 of the Annexe 4 of the Regulations, according to which the training costs for players for the seasons between their 12th and 15th birthday shall be based on the training and education costs of category IV clubs.

23. In this respect, the sub-committee took due note that the Respondent belonged to category I at the moment the player was registered with it (indicative amount within Continental Confederation of EUR 90,000 per year, corresponding to EUR 10,000 for category IV clubs).

24. As a result, in view of the above and of art. 3 par. 1 of the 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 sub-committee concluded that the effective period of time to be considered at the matter at stake corresponds to:

- ten months of the season of the player’s 15th birthday;

- the entire seasons of the player’s 16th, 17th, 18th and 19th birthday;

- two months of the season of the player’s 20th birthday.

25. Consequently and taking into account all the above-mentioned elements, as well as the fact that the Claimant requests the amount of EUR 339,314, the sub-committee decided that the Claimant is entitled to receive training compensation from the Respondent in the amount of EUR 339,314.

26. Moreover, taking into consideration the claim of the Claimant, the sub-committee decided that, in conformity with its longstanding practice, the Respondent has to pay interest at 5% p.a. over the amount payable as training compensation as from the date of its claim, i.e. as of 9 June 2017.

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

28. In respect of the above, the sub-committee held that the amount to be taken into consideration in the present proceeding is EUR 339,314, related to the claim of the Claimant. Consequently, the Chamber concluded that the maximum amount of costs of the proceeding corresponds to CHF 25,000 (cf. table in Annex A).

29. As a result, and taking into account the particularities of the present matter and in view of the degree of success of the Claimant, the sub-committee determined the costs of the current proceedings to the amount of CHF 25,000, 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 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 EUR 339,314, plus 5% interest p.a. as from 9 June 2017 until the date of effective payment.

3. In the event that the aforementioned amount plus interest is not paid by the Respondent 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 amount of costs of the proceedings in the amount of CHF 25,000 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 20,000 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 5,000 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