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 21 September 2017

Decision of the

sub committee of the

Dispute Resolution Chamber (DRC)

passed on 21 September 2017,

in the following composition:

Thomas Grimm (Country D), Deputy Chairman (did not take part in the deliberations)

Johan van Gaalen (South Africa), member

Pavel Pivovarov (Russia), 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, born on 11 March 1993, was registered with its affiliated club, Club A (hereinafter: the Claimant) as a professional as from 27 August 2013 until 30 June 2014, on loan from the Club of Country F, Club G (hereinafter: Club G).

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

3. According to the player passport issued by the Football Association of Country D, the player was subsequently loaned from Club G to the Club of Country D, Club H, with which the player was registered as from 14 July 2014 until 9 July 2015.

4. Also according to the player passport issued by the Football Association of Country D, the player’s registration was transferred from Club H to the Club of Country D, Club C (hereinafter: the Respondent), with which the player was registered on a permanent basis as a professional on 13 July 2015.

5. According to the Transfer Matching System (TMS), the Respondent belonged to the club category 2 at the time the player was registered with it.

6. On 19 December 2016, the Claimant lodged a claim before FIFA against the Respondent asking to be awarded training compensation in connection with the subsequent professional registration of the player with the Respondent. In particular, the Claimant requested EUR 52,603, plus 5% interest p.a. as of 13 August 2015, and that the Respondent bear the costs of the present proceedings.

7. In this context, the Claimant held that, according to the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) and the jurisprudence of the Dispute Resolution Chamber (DRC), training compensation is payable not only to the professional player’s former club, but also to the clubs that registered the player on loan from the club of origin, in order to ensure that the loan clubs receive proper compensation for the training provided during the loan periods.

8. As to the amount claimed, the Claimant referred to art. 6 par. 1 of Annex 4 of the Regulations and asserted that the amount payable as training compensation shall be calculated based on the category of the Respondent, as the player allegedly moved from a higher to a lower category club.

9. In its reply, the Respondent rejected the Claimant’s claim by stating that according to the player passport issued by the Football Association of Country D the player was nationally transferred from Club H to the Respondent. As a result, the Respondent referred to art. 1 par. 1 of the Regulations as well as to the Commentary to the Regulations, according to which the Regulations apply to international transfers only, and concluded that they are not applicable.

10. In particular, the Respondent submitted a copy of a Football Association of Country D form relating to a national transfer of the player from Club H to the Respondent, dated 6 July 2015.

II. Considerations of the sub-committee of the DRC

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 19 December 2016. 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 sub-committee of the Dispute Resolution Chamber referred to art. 3 of the Procedural Rules, which states that the Dispute Resolution Chamber shall examine its jurisdiction in light of arts 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2016). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations on the Status and Transfer of Players, the sub-committee is competent to decide on the present matter relating to training compensation between clubs belonging to different associations handled through TMS.

3. In this respect, the sub-committee was eager to emphasize that the Deputy Chairman, Mr Thomas Grimm, refrained from participating in the deliberations in the case at hand, due to the fact that he has the same nationality as the Respondent.

4. Furthermore, the sub-committee analysed which regulations should be applicable as to the substance of the matter. In this respect, the sub-committee noted that the Respondent argued that the player was nationally transferred from Club H to the Respondent and that, therefore, the FIFA Regulations on the Status and Transfer of Players are not applicable.

5. In this context, the sub-committee recalled that, during a loan, a player is temporarily transferred to another club and the effects of his employment contract with his club of origin are temporarily suspended, and underscored that in the present matter, the player was loaned from Club G, a Club of Country F, to Club H, a Club of Country D. In this respect, the sub-committee also referred to art. 10 par. 3 of the Regulations on the Status and Transfer of Players, in accordance with which the club that accepted a player on a loan basis is not entitled to transfer him to a third club without the written authorisation of the club that released the player on loan and the player concerned. The sub-committee took into account that the Respondent had not submitted documentation corroborating that Club G and the player concerned had given such written authorisation. As a result, the sub-committee concluded that only Club G, i.e. the player’s club of origin, was in a position to transfer the player on a definitive basis to the Respondent, a Club of Country D. Therefore, the sub-committee agreed that the definitive transfer of the player to the Respondent was in fact an international transfer. Equally, the sub-committee emphasised that the apparent incorrect administrative procedure relating to the transfer and the registration of the player on a definitive basis with the Respondent following his loan at Club H cannot be to the detriment of the Claimant, which was not involved in such procedure.

6. In light of these considerations, the sub-committee decided to reject the argumentation put forward by the Respondent in its defence.

7. Having said that, in continuation, the sub-committee 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 13 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.

8. 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, the sub-committee 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. In particular, the sub-committee 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 Transfer Matching System (TMS).

9. Having established the above, the sub-committee recalled that the player, born on 11 March 1993, was registered on a loan basis with the Claimant for the period between 27 August 2013 and 30 June 2014. Equally, the sub-committee observed that after the loan with the Claimant had expired, the player was subsequently loaned from his club of origin, i.e. Club G, to Club H for the period between 14 July 2014 and 9 July 2015. Thereafter, on 13 July 2015, the player was registered with the Respondent on a definitive basis as a professional. In this respect, the sub-committee highlighted that at no point in time was the player registered on a definitive basis with Club H.

10. Following the above, the sub-committee highlighted that it had to address the question as to whether 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.

11. In this respect, the sub-committee, and hereby referring to the rules applicable to training compensation, started by stating 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.

12. 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.

13. Following 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 DRC’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.

14. 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 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.

15. In this respect and for the sake of good order, 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.

16. 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.

17. In this context, and although the Claimant is not the former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, the sub-committee 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 sub-committee acknowledged that the Claimant was not the player’s former club stricto sensu, however, the sub-committee pointed out that, within the framework of loans, the period of time that the player was registered with Club G and the period of time that the player was registered with, inter alia, the Claimant 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.

18. Bearing in mind the foregoing, the sub-committee deemed that any other 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.

19. Consequently, taking into account the above-mentioned considerations, the sub-committee 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.

20. As a result, 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 sub-committee concluded that the effective period of time to be considered in the matter at stake corresponds to 10 months of the 2013/2014 season, i.e. as from 27 August 2013 until 30 June 2014.

21. Furthermore, the sub-committee referred to the FIFA circular no. XXX dated 30 April 2015 which provides details for the calculation of training compensation as well as to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which stipulate 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. In this respect, the sub-committee took into account that the Respondent belonged to the club category 2.

22. Consequently, the sub-committee decided that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 50,000.

23. Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of Annexe 4 of the Regulations, the sub-committee 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 August 2015, until the date of effective payment.

24. 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 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.

25. In respect of the above, the sub-committee held that the amount to be taken into consideration in the present proceedings is EUR 52,603 related to the claim of the Claimant. Consequently, the sub-committee concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in Annexe A of the Procedural Rules).

26. As a result, and taking into account the complexity of the case as well as that the claim of the Claimant has been almost fully accepted, the sub-committee determined the costs of the current proceedings to the amount of CHF 6,000, which shall be borne by the Respondent.

III. Decision of the sub-committee of the DRC

1. The claim of the Claimant, Club A, is partially 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 50,000, plus 5% interest p.a. as of 13 August 2015 until the date of effective payment.

3. In the event that the aforementioned sum 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. Any further claim lodged by the Claimant is rejected.

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

5.1. The amount of CHF 4,000 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: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.2 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 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 Club H

Country D

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