F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution/ contributo di solidarietà – (2019-2020) – fifa.com – atto non ufficiale – Decision 19 September 2019

Decision of the

Single Judge of the sub-committee of the

Dispute Resolution Chamber (DRC)

passed in Zurich, Switzerland, on 19 September 2019,

by Johan van Gaalen (South Africa),

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 Association of Country B, the player, Player E (hereinafter: the player), born on 15 September 1993, was registered with Club A (hereafter: the Claimant) as from 21 August 2014 until 5 January 2015 on loan from Club F from Country B (hereinafter: the former club or Club F).

2. The football season in Country B during the relevant period of time ran as follows: from 1 July of the respective year until 30 June of the following year.

3. According to the information contained in the Transfer Matching System (TMS), the player was registered with the club from Country D, Club C (hereinafter: the Respondent), on 17 June 2016, which engaged the player “out of contract free of payment” directly from Club F.

4. Equally, according to the information contained in the TMS, the Claimant as well as the Respondent belonged to the category II (indicative amount of EUR 60,000 per year within UEFA) at the moment that the player was registered with them.

5. On 12 July 2018, the Claimant lodged a claim in front of FIFA requesting training compensation on the ground that the player’s subsequent transfer as a professional occurred before the end of the season of the player’s 23rd birthday. In particular, the Claimant requested EUR 20,000, plus 5% interest as from the due date.

6. In its reply, the Respondent requested to dismiss the claim. In particular, the Respondent argued that the player was registered with the Claimant on a temporary basis and therefore the latter does not fulfill the criterion of a “former club”. Furthermore, Club F did not offer the player a new contract and therefore did not retain its right to training compensation. The Respondent continued that the training compensation was payable, if at all, by the first club for which the player was registered after playing with the Claimant, i.e. Club F. In addition, according to the agreement signed by the parties on 31 October 2014, the Claimant and the former club ended the loan prematurely on 31 October 2014. Furthermore, according to the Respondent, the Claimant failed to offer the player a new contract and, therefore, the latter did not retain its right to training compensation.

7. The Respondent further stated that the contract it had signed with the player was not the his first professional contract and therefore no entitlement for the training compensation occured. Moreover, the Respondent argued the player completed his training before his 21st birthday, particularly before the time when he was registered with the Claimant, based on the player’s numerous loan periods and their respective funding arrangements.

8. Finally, the Respondent argued that the claim was filed more than two years since the event allegedly giving rise to the dispute.

9. In its replica, the Claimant contested the above-mentioned arguments of the Respondent. In particular, the criterion of a “former club”, based on the long standing jurisprudence of the Court of Arbitration for Sports (CAS) and FIFA. Along the same lines, the Claimant denied the neccessity of the former club’s offer for a new contract, based on the wording of the respective FIFA regulations. Lastly, the Claimant stated it was not in the position to offer an employment contract to the player since the latter was bound to Club F.

10. With regard to the completion of the training period before player’s 21st birthday, the Claimant pointed out that the Respondent did not support its argument with any evidence. The Claimant furthermore contested the Respondent’s argument that the claim was time-barred, based on the respective FIFA regulation.

11. In its duplica, the Respondent repeated its arguments regarding the premature termination of the loan between the Claimant and Club F, as well as the Claimant’s inability to offer an employment contract to the player.

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 DRC (hereinafter also: the 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 12 July 2018. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2018 edition of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 par. 2 of the Procedural Rules, which states that he shall examine his jurisdiction in light of art. 24 par. 2 of the Regulations on the Status and Transfer of Players (edition June 2019). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 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.

3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players 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 said regulations (edition June 2019) and considering that the player was registered with the Respondent on 17 June 2016, the June 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: the 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, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Single Judge emphasised 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.

5. First of all, the Single Judge took note that the Claimant maintained that it is entitled to receive training compensation from the Respondent in the amount of EUR 20,000, indicating that the transfer of the player occurred before the end of the season of his 23rd birthday.

6. Furthermore, the Single Judge duly noted that the Respondent, for its part, rebutted the claim of the Claimant, stating that the Claimant is not the player’s former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations and, moreover, that the former club and the Claimant did not offer the player a new contract in the sense of art. 6 par. 3 of Annexe 4 of the Regulations.

7. The Single Judge further noted that, according to the Respondent, the player had completed his training before his 21st birthday.

8. Lastly, the Single Judge took into account the Respondent’s argument concerning the premature termination of the loan agreement between the Claimant and Club F.

9. Having established the above, the Single Judge referred to the rules applicable to training compensation and stated that, as established in art. 1 par. 1 of Annexe 4 in combination with art. 2 par. 1 lit. ii. 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 professional is transferred between clubs of two different associations before the end of the season of the player’s 23rd birthday. In case of a subsequent transfer of a professional, art. 3 par. 1 of Annexe 4 of the Regulations sets forth that the club with which the player is registered is responsible for paying training compensation to the former club, for the time the player was effectively trained by the latter, within 30 days of registration.

10. 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 those those which apply to the transfer of players, including the provisions on training compensation and the solidarity mechanism.

11. Following the above, the Single Judge 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 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.

12. In other words, the Single Judge 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.

13. In view of the foregoing considerations, the Single Judge rejected the Respondent’s argument that the Claimant does not fulfil the criterion of a “former club”. Moreover, the Single Judge rejected the Respondent’s argument that the former club did not offer the player a contract since the entitlement of a club having a player on loan to training compensation is not precluded by the former club’s decision to offer an employment contract.

14. Equally, the Single Judge concluded that the fact that the Claimant did not offer the player a new contract is not to be taken into consideration since the Claimant was not in a position to offer a contract as the player was bound to a contract with Club F.

15. Regarding the Respondent’s argument about player’s completion of his training before his 21st birthday, the Single Judge concluded that the Respondent did not provide evidence within the meaning of art. 12 para. 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. The mere fact that there were numerous loan agreements prior to the registration with the Claimant rather showed the opposite. The Single Judge concluded that, if the former club, participant of the first national league of Country B, was sending the player on various loan periods to clubs of lower competitions clearly showed that the player had not yet completed his training phase at that point.

16. Reverting to the facts of the matter at hand, and based on the documentation provided by the Football Association of Country B and the information contained in TMS, the Single Judge concluded that it could indeed be established that the player had been registered with the Claimant from 21 August 2014 until 5 January 2015 on loan from Club F from Country B. The player returned to the latter on 6 January 2015. Moreover, it can be confirmed that Club F was indicated as the former club.

17. However, bearing in mind art. 12 para. 3 of the Procedural Rules, the Single Judge observed that the Respondent provided evidence in support of its argument that the Claimant ended the loan prematurely on 31 October 2014. Consequently, the Single Judge concluded that due to such premature ending of the contract, the entitlement has to be reduced to the period the player actually stayed with the Claimant.

18. In view of the foregoing considerations, the Single Judge concluded that it can be established that the player was subsequently transfered as a professional between two clubs of two different associations before the end of the season of his 23rd birthday and, thus, the Claimant is entitled to receive training compensation from the Respondent.

19. Subsequently, the Single Judge considered that he had to determine which should be the relevant amount of training compensation to be paid by the Respondent to the Claimant. In this regard, the Single Judge went on to establish the proper calculation of the relevant training compensation due to the Claimant.

20. To that end, the Single Judge referred 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, it is necessary to take the costs that would have been incurred by the new club if it had trained the player itself.

21. In continuation, the Single Judge recalled that the player was born on 15 September 1993 and was registered with the Claimant on loan from 21 August 2014 until 31 October 2014. Furthermore, the Single Judge noted that the player was subsequently transferred from the former club to the Respondent.

22. On account of the above, the Single Judge considered that the Claimant is, thus, entitled to receive training compensation for the period as from 21 August 2014 until 31 October 2014, i.e. 2 months of the season of the player’s 21st birthday.

23. Furthermore, the Single Judge recalled that, according to the information contained in the TMS, the player was registered with the Respondent on 17 June 2016. Consequently, the Single Judge dissmissed the Respondent’s argument regarding the alleged prescription.

24. Equally, the Single Judge recalled that, according to the information contained in the TMS, both the Claimant and the Respondent belonged to the category II at the moment of the player’s registration with it (UEFA indicative amount of EUR 60,000 per year).

25. In view of all the above, the Single Judge decided to partially accept the claim of the Claimant and held that the Respondent is liable to pay the amount of EUR 10,000 to the Claimant as training compensation in relation to the registration of the player with the Respondent.

26. Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of Annexe 4 of the Regulations, the Single Judge decided that the Respondent has to pay, in conformity with the longstanding practice of the DRC, interest of 5% p.a. over the amount payable as training compensation as as of 18 July 2016 until the date of effective payment.

27. Lastly, the Single Judge 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.

28. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 20,000 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).

29. As a result, considering the fact that the claim has been partially accepted and that the Respondent never replied to the claim, the Single Judge determined the final costs of the current proceedings in the amount of CHF 5,000 that shall be borne by both parties as follows: CHF 3,000 by the Respondent and CHF 2,000 by the Claimant.

30. The Single Judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Single Judge 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 10,000, plus 5% interest p.a. on said amount as of 18 July 2016 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. Any further claim lodged by the Claimant is rejected.

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

5.1. The amount of CHF 3,000 has to be paid by the Respondent.

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

5.3 The above mentioned amounts have to be paid to FIFA to the following bank account with reference to case nr. XXXXXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. above is to be made and to notify the Single Judge of 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 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Single Judge of the

sub-committee of the DRC:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives