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 on 19 September 2019,

by Mr Geoff Thompson (England),

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 Player E

I. Facts of the case

1. On 9 September 2014, Football Federation of Country B (hereinafter: the Football Federation of Country B) submitted, through the Transfer Matching System (TMS), a request for the approval by the sub-committee of the Players’ Status Committee prior to the international transfer of the player, Player E (hereinafter: the player), born on 26 January 1998, from a club affiliated to the Football Federation of Country D (Football Federation of Country D) to register him as an amateur for its affiliated club, Club F. In particular, the Football Federation of Country B based its request on the exception outlined in art. 19 par. 2 b) of the Regulations on the Status and Transfer of Players (hereinafter the Regulations), i.e. “The transfer takes place within the territory of the European Union (EU) or the European Economic Area (EEA) and the player is aged between 16 and 18”.

2. Based on the information available within the aforementioned application, the player holds the Country D and the Country B citizenship.

3. On 23 September 2014, the Single Judge of the sub-committee of the Players’ Status Committee accepted the request made by the Football Federation of Country B on behalf of its affiliated club, Club F, for the approval prior to the request of the International Transfer Certificate of the Country D/Country B player, Player E.

4. According to the player passport issued by the Football Federation of Country B on 23 June 2018, the player was registered with its affiliated clubs, including Club A (hereinafter: Club A or the Claimant), as follows:

Clubs

Registration dates

Status

Club F

From 02.10.2014 until 24.08.2015

Amateur

Club A

From 25.08.2015 until 23.07.2017

Amateur

5. The football seasons in Country B during the period of time the player was registered with the Claimant started on 1 July and ended on 30 June of the following year.

6. According to the information contained in the Transfer Matching System, the player, coming from the Claimant, was registered as a professional with the Country D club, Club C (hereinafter: Club C or the Respondent), on 25 July 2017.

7. Pursuant to the information in the TMS, the Respondent belonged to the category II (UEFA indicative amount of EUR 60,000 per year) at the moment the player was registered with it.

8. In this framework, on 26 April 2018, Club A contacted FIFA claiming its proportion of training compensation on the ground of the first registration of the player as a professional with a club of a different association, before the end of the season of his 23rd birthday. In particular, the Claimant requested the amount of EUR 115,000 plus 5% interest p.a. as of “the due dates”. In particular, the Claimant indicated that the training costs shall only be calculated based on the Respondent’s category as the country where Club C is based, i.e. Country D, is not inside the territory of the EU/EEA and therefore art. 6 par. 1 of Annexe 4 of the Regulations shall not apply.

9. In its reply to the claim, Club C indicated that the player was registered with the Claimant under the specific “serial youngster” status, of amateur nature. According to the Respondent, and despite the fact that the player and his entourage had discussed his future together with the Claimant’s management, the player “did not receive any concrete interest of [Club A] in proposing a professional contract”. In this context, having been informed of the player’s situation, Club C stated that it then offered a professional contract to the player, which the player eventually signed on 10 July 2017. In this respect, the Respondent declared that the player’s entourage duly informed Club A of the signature of said contract at the time. Then, the Respondent declared that the Claimant offered to the player on 13 July 2017 to enter into a “technical training relationship” (i.e. a further registration type of amateur status) by way of a letter allegedly back dated to 1 July 2017, an offer the player formally declined on 24 July 2017.

10. In this respect, the Respondent first explained that although Country D is neither part of the EU nor of the EEA, the country has signed with the EU on 21 June 1999 “the Agreement on the Free Movement of Persons “, and has “officially entered the Schengen Area” in 2008. In continuation, Club C emphasised that the freedom of movement is at the core of the Regulations, and that in this respect “FIFA has always equalized Country D players to EU players in the application of its regulations”, in particular when applying the provisions of art. 19 par. 2 lit. b) of said Regulations. Consequently, Club C stated that, despite the allegations of the Claimant, the provisions of art. 6 of Annexe 4 of the Regulations have to be applied to Country D clubs in general, and to this case in particular.

11. Then, the Respondent declared that the Claimant did not offer a professional contract to the player, and did not display any “genuine and bona fide interest to retain the player” by allegedly offering him a new type of amateur registration three days after having been informed of the player’s signature with Club C and back dating it to 1 July 2017 in order to “retain training compensation”. In other words, the Respondent stated that the Claimant did not fulfil the provisions set out in art. 6 par. 3 of Annexe 4 of the Regulations.

12. Based on all the above, the Respondent concluded that training compensation was not due to the Claimant.

13. In its replica, Club A stated, inter alia, that the jurisprudence of the FIFA DRC, which has been confirmed by CAS, clearly indicates that “the FIFA Regulations have supremacy over national laws in cases regarding transfers of players between football clubs from different associations”. In this respect, the Claimant declared that any of the agreements regarding the freedom of movement between Country D and the EU mentioned by the Respondent are superseded by the Regulations and that in consequence, as art. 6 par. 3 of Annexe 4 of the Regulations only applies to cases between clubs within the EU/EEA and since Country D does not belong to the EU/EEA, said provision does not apply to the case at hand. Finally, Club A concluded by re-iterating its argumentation contained in its claim.

14. In its duplica, Club C referred, inter alia, to the transfer of the player when he was still a minor from his former club in Country D, club G, to the Country B club, Club F. In particular, the Respondent underlined that the player transferred on the basis of the exception set out in art. 19 par. 2 b) of the Regulations. In that sense, the Respondent highlighted that, despite this exception being reserved for transfers that take place within the EU/EEA and although the former club of the player was located in Country D, the exception was granted. As such, Club C concluded that it was a proof that the so-called EU/EEA exceptions contained with the Regulations were to be applied to Country D, and as such the claim of the Claimant should be rejected on the basis of its failure to comply with art. 6 par. 3 of Annexe 4 of the Regulations.

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 26 April 2018. Consequently, the 2018 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 2019). 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 25 July 2017, 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 (editions 2016, 2018 as well as June 2019), the 2016 edition of the said 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 TMS.

5. In this regard, the Single Judge recalled that, in accordance with the player passport issued by the Football Federation of Country B, the player, born on 26 January 1998, was registered with the Claimant as an amateur from 25 August 2015 until 23 July 2017. Furthermore, the Single Judge took note that according to the information contained in the TMS, the player moved from the Claimant to the Respondent where he was registered as a professional for the first time.

6. In continuation, the Single Judge took note that the Claimant requested the payment of training compensation from the Respondent on the ground of the first registration of the player as a professional with the Respondent before the end of the season of his 23rd birthday. In particular, the Single Judge took note that the Claimant requested the amount of EUR 115,000 plus 5% interest p.a. as of “the due dates”.

7. In this respect, the Single Judge observed that the Respondent dismissed the claim of the Claimant, based on its view that the EU/EEA exceptions contained within the Regulations are applicable to clubs based in Country D and that the Claimant has failed to comply with the requirements of art. 6 par. 3 of Annexe 4 of the Regulations.

8. Furthermore, and hereby referring to the rules applicable to training compensation, the Single Judge stated that, as established in art. 20 of the Regulations in combination with art. 1 par. 1 and 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 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.

9. In continuation, the Single Judge observed that, based on the documents at disposal, it can be established that the player was registered with the Claimant before the end of the season of his 21st birthday, i.e. as an amateur as from 25 August 2015 until 23 July 2017. Likewise, the Single Judge duly noted that the player was registered as a professional for the first time with the Respondent on 25 July 2017, i.e. before the end of the season of his 23rd birthday.

10. In view of the above, the Single Judge concluded that the Respondent would, in principle, be liable to pay training compensation to the Claimant, which is one of the clubs with which the player has previously been registered and that has contributed to his training in the sense of art. 3 par. 1 sent. 1 of Annexe 4 of the Regulations.

11. In this context, the Single Judge highlighted that the main issue that needed to be assessed in this matter was of the applicability of art. 6 of Annexe 4 of the Regulations as lex specialis.

12. In this respect, the Single Judge underlined that the Respondent put forward the argument that certain exceptions of the Regulations are applied to clubs based in Country D, such as art. 19 par. 2 b) of the Regulations, and that as such all of said exceptions shall be applied to Country D clubs, including art. 6 of Annexe 4 of the Regulations.

13. In fact, and as raised by the Respondent, the Single Judge recalled that on 23 September 2014, the Single Judge of the sub-committee of the Players’ Status Committee approved the application submitted by the Football Federation of Country B on behalf of its affiliated club, Club F, prior to the transfer of the player from his former club, a club affiliated to the Football Federation of Country D, to Club F. In particular, the Single Judge duly noted that the Football Federation of Country B invoked the exception set out in art. 19 par. 2 b) of the Regulations, i.e. “The transfer takes place within the territory of the European Union (EU) or the European Economic Area (EEA) and the player is aged between 16 and 18”, and that said application was accepted on the basis of this particular article. In this respect, the Single Judge observed that based on the documentation submitted within said application, the player was holder of the Country D and the Country B citizenship.

14. The Single Judge also recalled that, according to the jurisprudence of the sub-committee of the Players’ Status Committee, the exception of art. 19 par. 2 b) may be applied to players who are EU/EEA nationals between the age of 16 and 18, registered in a non-EU/EEA country and who wish to register with a club based in an EU/EEA country, providing that all the other criteria set out in this particular article of the Regulations are fulfilled.

15. As such, the Single Judge determined that in view of the fact that the player was both a Country D and Country B citizen when transferring from Country D to Country B, it would de facto not demonstrate that the player benefited from one of the EU/EEA exceptions of the Regulations solely based on territoriality, i.e. the involvement of Country D, as stated by the Respondent.

16. What is more, the Single Judge strongly emphasised that the provisions of art. 6 of Annexe 4 of the Regulations are limited to a well-defined geographic scope. Since the Claimant is a member of the Football Federation of Country D, and Country D is neither a member of the European Union (EU), nor of the European Economic Area (EEA), the Chamber found it evident that art. 6 of Annexe 4 of the Regulations shall not apply to the present matter.

17. Consequently, the Single Judge concluded that no further analysis regarding the prerequisites for the application of art. 6 of Annexe 4 of the Regulations as a lex specialis was required.

18. In view of the foregoing, the Single Judge concluded that the Respondent is liable to pay training compensation to the Claimant for the training of the player in accordance with art. 20 as well as Annexe 4 of the Regulations.

19. Turning his attention to the calculation of the training compensation, the Single Judge referred to 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. As such, the Single Judge concluded that the effective period of time to be considered in the matter at stake corresponds to 10 months of the season of the player’s 18th birthday, the entire season of his 19th birthday as well as 1 month of the season of his 20th birthday.

20. Furthermore, the Single Judge referred to art. 5 paras. 1 and 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.

21. In this respect, the Single Judge took due note that, according to the information contained in the TMS, the Respondent belonged to category II (indicative amount of EUR 60,000 per year within UEFA) at the time the player was registered with it.

22. Consequently, taking into consideration all the above, the Single Judge decided that the Respondent is liable to pay the amount of EUR 115,000 to the Claimant for the training and education of the player.

23. 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 interest at 5% p.a. over the amount payable as training compensation as of 25 August 2017 until the date of effective payment.

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. The relevant provision further states 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 Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 115,000 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the present proceedings corresponds to CHF 15,000 (cf. table in Annexe A of the Procedural Rules).

26. As a result and taking into account that the Claimant is the successful party in the proceeding, the Single Judge determined the costs of the current proceedings to the amount of CHF 12,000, which shall be entirely borne by the Respondent.

*****

III. Decision of the Single Judge 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 115,000 + 5% p.a. interest as from 25 August 2017 until the date of effective payment.

3. In the event that the aforementioned sum plus interest are 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 XXXX/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 back to the Claimant.

5. 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

Country D

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

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives