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 22 May 2018

Decision of the

Single Judge of the sub-committee of the Dispute Resolution Chamber (DRC)

passed on 22 May 2018,

by Roy Vermeer (Netherlands),

Single Judge of the sub-committee of the DRC,

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 Federation of Country B, the player, Player E (hereinafter: player), born on 10 January 2000, was registered with its affiliated club, Club A (hereinafter: Claimant), as from 27 August 2010 until 9 August 2016 as an amateur.

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

3. Equally, according to the player passport issued by the Football Federation of Country B, the Claimant belonged to the club category 2 at the time the player was registered with it.

4. According to the information contained in the Transfer Matching System (TMS), the player was registered with Club C from country D (hereinafter: Respondent), as a professional player on 9 August 2016.

5. Also according to the TMS, the Respondent belonged to the club category 1 at the time the player was registered with it.

6. On 21 November 2017, the Claimant lodged a claim against the Respondent before FIFA asking to be awarded training compensation in connection with the first professional registration of the player with the Respondent. In particular, the Claimant requested EUR 115,000, plus interest.

7. In this context, the Claimant submitted a copy of the Respondent’s correspondence dated 14 June 2016, which reads as follows: “[the Respondent] hereby confirm that, in consideration for the registration of [the player], the Club is committed to paying the requisite amount of Training Compensation due to [the Claimant]. This will be done in accordance with the period of the Player’s registration with [the Claimant] as confirmed by the [Football Federation of Country B] and pursuant to the provisions of Annexe 4 of the FIFA Regulations on the Status and Transfer of Players”. In particular, the Claimant stated that initially the Respondent confirmed its intention to pay training compensation, but that, on 3 November 2017, it refused to pay training compensation on the basis that the Claimant had not offered the player a contract.

8. In this respect, the Claimant held that art. 6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players only applies to players who already had a professional contract during the previous season before leaving the club.

9. In its reply, the Respondent rejected the Claimant’s claim by stating that the Claimant did not make the player any offer, either verbally or in writing, of a professional contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players and that the Claimant does not dispute that fact.

10. The Respondent argued that, where the player does not currently hold a professional contract, the 60-day deadline does not apply, but that, in order to retain its entitlement to training compensation for the first professional registration of the player, the former club has the obligation to offer him a contract.

II. Considerations of the Single Judge of the sub-committee of the DRC

1. First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber (hereinafter also referred to Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 21 November 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 Single Judge 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 2018). 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 Single Judge is competent to decide on the present dispute relating to training compensation between clubs belonging to different associations handled through TMS.

3. Furthermore, and taking into consideration that the player was registered with the Respondent on 9 August 2016, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2018), the 2016 edition of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. The Single Judge started by acknowledging the above-mentioned facts of the case as well as the documentation on file. However, the Single Judge emphasized that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. In particular, the Single Judge 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).

5. Having established the above, the Single Judge recalled that the player, born on 10 January 2000, was registered with the Claimant as from 27 August 2010 until 9 August 2016 as an amateur, until his move from the Claimant to the Respondent.

6. In continuation, the Single Judge took note that the Claimant asserted that it was entitled to receive training compensation from the Respondent in the amount of EUR 115,000, on the basis that the player had signed his first professional contract with the Respondent.

7. Equally, the Single Judge took note that the Respondent rejected the Claimant’s claim, stating that the Claimant failed to offer the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations.

8. Having said that, the Single Judge took into account that it has remained uncontested that the player signed his first professional contract with the Respondent.

9. In this respect, and hereby referring to the rules applicable to training compensation, the Single Judge recalled that, as established in art. 1 par. 1 in combination with art. 2 par. 1 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 or when a professional is transferred between clubs of two different associations before the end of the season of the player’s 23rd birthday.

10. Moreover, the Single Judge referred, in particular, 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 Single Judge turned his attention to art. 6 par. 3 of Annexe 4 which stipulates, inter alia, that the former club must offer the player a contract in writing via registered post at least 60 days before the expiry of his current contract.

11. In view of the above, the Single Judge stated that, first and foremost, he had to verify whether art. 6 par. 3 of Annexe 4 of the Regulations applies in the present case as lex specialis, and, in the affirmative, to determine if the Claimant had complied with the said provision in order to be entitled to training compensation.

12. As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is concerned, the Single Judge stated that, as the player moved from a club in Country B to a club in Country D, i.e. moved from one association to another association inside the territory of the EU, the said article is applicable. Therefore, the Single Judge concluded that the aforementioned provision applies in the case at hand as lex specialis.

13. On account of the aforesaid, the Single Judge analysed whether or not the Claimant had complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations in order to be entitled to training compensation.

14. In this sense, the Single Judge emphasized that, in accordance with art. 6 par. 3 sent. 1 of Annexe 4 of the Regulations, if the former club does not offer the player a contract, no training compensation is payable unless the former club can justify that it is entitled to such compensation.

15. In this context, the Single Judge noted from the Claimant’s statement of claim that it implicitly acknowledged not having offered the player a contract. Indeed, the Claimant had not disputed the Respondent’s allegation that the Claimant had not offered a contract to the player, when it submitted that the Respondent refused to pay training compensation on such basis.

16. Furthermore, the Single Judge turned his attention to the Claimant’s argument, according to which the above-mentioned provision does not apply in casu, since it allegedly only applies to players who already had a professional contract during the previous season before leaving the club.

17. Considering the position of the Claimant, the Single Judge referred to the decision CAS 2006/A/XXX Club X v/Club Y taken by the Court of Arbitration for Sport (CAS) on 7 February 2007, by means of which the CAS confirmed the existing jurisprudence of the Dispute Resolution Chamber as far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is concerned. In particular, the CAS corroborated that the first sentence of art. 6 par. 3 of Annexe 4 of the Regulations does cover both amateur and professional players (cf. point 8.8 of the aforementioned decision). In fact, according to the Chamber’s jurisprudence and as confirmed by the CAS in the relevant decision, the second and third sentence of the provision in question, however, do only apply “to situations when a professional contract is already in existence, setting out certain requirements which the training club must meet in order to retain a right to compensation if a player moves to another club” (cf. point 8.9 of the aforementioned CAS-decision).

18. Subsequently, the Single Judge specified that according to the jurisprudence of the Dispute Resolution Chamber, art. 6 par. 3 sent. 1 of Annexe 4 of the Regulations, i.e. the obligation to offer a professional contract to the player, does not apply to pure amateur clubs, which are per se not in a position to do so, but does definitively apply to clubs, which have amateur and professional players.

19. Consequently, the Single Judge concluded that the Claimant had to meet the prerequisites of the above-mentioned art. 6 par. 3 sent. 1 of Annexe 4 of the Regulations in order to be entitled to training compensation. As a result, the Single Judge decided to reject the Claimant’s argumentation in this regard.

20. Subsequently, the Single Judge proceeded to analyse whether the Claimant had justified that it is nevertheless entitled to training compensation for the player’s first professional registration with the Respondent. In this respect, the Single Judge referred to the pertinent constant jurisprudence of the Dispute Resolution Chamber, which was confirmed by the Court of Arbitration for Sport (CAS), and considered that such justification can, in general, be manifested by a club by displaying a genuine and bona fide interest in keeping the player in question in its team and by showing a proactive attitude vis-à-vis the respective player, so as to clearly manifest that the club intends to count on the player for the future.

21. In this context, the Single Judge, and hereby referring to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, highlighted that the burden of proof to demonstrate any justification to receive training compensation notwithstanding not having offered a contract to the player, i.e. a genuine and bona fide interest of the Claimant in retaining the services of the player, lies with the Claimant. Equally, the Single Judge recalled that, according to the well-established jurisprudence, this justification is limited to very exceptional circumstances and shall be analysed on a case-by-case basis.

22. Having said that, the Single Judge underscored that the Claimant did not submit any piece of evidence in this respect. As a result, the Single Judge concluded that the Claimant had not demonstrated a proactive attitude vis-à-vis the player, so as to clearly manifest that it intended to keep the player.

23. Consequently, the Single Judge decided that the aforementioned considerations could lead to no other conclusion than that the Claimant had not complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations. In view of the foregoing, the Single Judge determined that the Claimant is not entitled to receive training compensation from the Respondent for the training and education of the player.

24. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in conjunction 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, 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.

25. As a result, and taking into account that the claim of the Claimant has been rejected, the Single Judge concluded that the Claimant has to bear the costs of the current proceedings in front of FIFA.

26. Considering that the case at hand did not compose any complex factual or legal issues, the Single Judge determined the costs of the current proceedings to the amount of CHF 3,000.

III. Decision of the Single Judge of the sub-committee of the DRC

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

2. The final costs of the proceedings in the amount of CHF 3,000 are to be borne by the Claimant, which amount has already been paid by the Claimant to FIFA as advance of costs.

*****

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 Single Judge of the

sub-committee of the DRC:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives