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 10 December 2019

Decision of the

Dispute Resolution Chamber (DRC)

passed by way of circulars on 10 December 2019,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay), member

Stefano La Porta (Italy), member

on the claim presented by the club,

Club Lautaro Roncedo, Argentina

Represented by Mr Ricardo Frega Navia

as Claimant

against the club,

FK Liepaja, Latvia

as Respondent

regarding training compensation in connection

with the player Martin Emiliano Mercau

I. Facts of the case

1. According to the player passport issued by the Asociación del Fútbol Argentino (AFA), the player, Martin Emiliano Mercau (hereinafter: the player), born on 9 August 1995, was registered with the Argentinian club, Lautaro Roncedo (hereinafter: the Claimant), as from 23 March 2013 until 21 July 2015, always as an amateur.

2. The football season in Argentina follows the calendar year.

3. According to the information contained in the Transfer Matching System (TMS), the player was registered as a professional with the Latvian club, FK Liepaja (hereinafter: the Respondent), on 22 July 2015.

4. Moreover, according to the information contained in the TMS, the Respondent belonged to the category IV at the moment the player was registered with it.

5. On 21 July 2016, the Claimant contacted FIFA via TMS, requesting training compensation on the ground of the player’s first registration as a professional. In particular, the Claimant requested the amount of EUR 69,944 plus 5% interest p.a. as from the due date.

6. After having been informed by the FIFA administration that the Respondent belonged to the category IV at the moment that the player was registered with it, the Claimant insisted on its claims and argued that Liepaja is the sporting successor of Liepaja Metalurgs.

7. Along these lines, the Claimant firstly argued that the Respondent was not only playing in the highest division in Latvia when it registered the player, but actually became national champion that year, resulting in access to the qualifying rounds of the UEFA Champions League the following season. In this context, the Claimant referred to publicly available information, such as the Wikipedia page of the Respondent, as well as press articles, in order to emphasis that the Respondent indeed became national champion in Latvia in 2015.

8. Having said this, the Claimant referred to the FIFA Circulars numbers 1223, 1264 and 1299 and argued that the Latvian FA “improperly and unjustifiably” considered the Respondent a category IV club. In this regard, the Claimant further held that “there is no legal or factual basis that allows for the modification of that what is ordered in the Circulars […], which with total clarity impose that this club should be considered a UEFA category III club”.

9. In continuation, the Claimant referred to the categorization criteria of the clubs and noted that, as per FIFA Circular 1249, the FIFA Dispute Resolution Chamber “normally applies the training category in accordance with the guidelines, despite the fact that the member association concerned a different categorization”.

10. Finally, the Claimant underlined that FIFA “should not limit itself to creating the norms, but […] should also ensure that [the norms] are fulfilled and respected by the national associations”. As per the Claimant, if “the illegality” perpetrated by the Latvian Football Federation “in order to liberate” its affiliated club from this obligation is established, “this would create an enormous injustice and inequality with respect to other associations […] and clubs” who do respect the rules.

11. Given all of the above, the Claimant held that Liepaja was wrongly considered a category IV club, while must be considered a category III club instead.

12. In its reply to the claim, as to the substance, the Respondent submitted a statement from the Latvian FA and maintained that it belonged to the category IV during the year 2015 and category III as from 2016.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: DRC or Chamber) analysed whether they were competent to deal with the case at hand. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the 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 October 2019) and confirmed that, in accordance with art. 24 par. 1 and art. 22 lit. d) of the Regulations, the DRC is competent to decide on the present dispute concerning training compensation between clubs belonging to different associations.

3. Furthermore, the DRC 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, the Chamber confirmed that in accordance with art. 26 par. 1 and par. 2 of said Regulations (edition April 2015, June 2016, January 2018, June 2018, June 2019, October 2019) and considering that the player was registered with the Respondent on 22 July 2015, the April 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.

4. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC 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. In particular, the Chamber 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. First of all, the DRC recalled that the player was born on 9 August 1995 and was registered with the Claimant as from 23 March 2013 until 21 July 2015 as an amateur.

6. In continuation, the Dispute Resolution Chamber observed that the Claimant asserted that it was entitled to receive training compensation from the Respondent in the amount of EUR 69,944 plus 5% interest p.a. as from the due date, since the player was registered as a professional for the first time with a club belonging to a different association before the end of the season of his 23rd birthday.

7. Furthermore, the DRC recalled that the Claimant maintained that the Latvian FA “improperly and unjustifiably” considered the Respondent a category IV club. The Chamber took into account that the Claimant referred to the FIFA Circulars numbers 1223, 1264 and 1299 and argued that the Respondent “should be considered a UEFA category III club”.

8. In this regard, the DRC educed that the Claimant argued that according to FIFA Circular 1249, the FIFA Dispute Resolution Chamber “normally applies the training category in accordance with the guidelines, despite the fact that the member association concerned a different categorization”.

9. Equally, the DRC took note that the Respondent, in its reply to the claim, submitted a statement from the Latvian FA and maintained that it belonged to the category IV during the year 2015 and category III as from 2016.

10. In this context, the Chamber first of all referred to the rules applicable to training compensation and stated 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.

11. Equally, the Chamber went on to recall that, in accordance with art. 2 par. 2 lit. ii. of Annexe 4 of the Regulations, training compensation is not due when a player is transferred to a category IV club.

12. In continuation, the DRC recalled that, according to the information contained in the TMS, the Respondent belonged to the category IV at the moment the player was registered with it, i.e. 22 July 2015.

13. Having said this, the DRC firstly referred to FIFA Circular 769, and recalled that the Training Compensation system was “designed to encourage more and better training of young football players, and to create solidarity among clubs, by awarding financial compensation to clubs which have invested in training young players”.

14. In continuation, the Chamber turned to art. 5 par. 4 of Annexe 4 of the Regulations, according to which it “may review disputes concerning the amount of training compensation payable and shall have discretion to adjust the amount if it is clearly disproportionate to the case under review.”

15. In this regard, along with the established jurisprudence, the DRC deemed it can decide to reallocate the clubs playing in the highest division of the relevant association to the highest available category.

16. Next, the members of the Dispute Resolution Chamber emphasized that, in accordance with the FIFA Circular 1484 of 30 April 2015, clubs in Latvia shall be allocated either in category III or IV.

17. With this established, bearing in mind art. 12 par. 3 of the Procedural Rules, the Chamber carefully examined the documents on file. In particular, the Chamber noted that the Claimant provided documentary evidence that the Respondent was in fact playing in the highest Latvian division in 2015. Furthermore, the DRC took into the account that, according to the documentation provided by the Claimant, the Respondent became national champion in 2015 and therefore qualified for the UEFA competitions for the following season.

18. Consequently, the DRC was of the unanimous view that the allocation of the Respondent in category IV is not justified in view of the specific circumstances of the present matter. Along these lines, the DRC was eager to emphasize that if it were to concur with the Latvian FA and allocate the Respondent as a category IV for the year 2015, then the Claimant would not get rewarded for investing in the training of the player in question. In other words, as per the Chamber, such an allocation would be contrary to the Training Compensation system itself.

19. Consequently, the Chamber decided that the club category III shall apply to the Respondent and, therefore, training compensation is due.

20. Turning its attention to the calculation of training compensation, the DRC referred to art. 5 paras. 1 and 2 of Annexe 4 of the Regulations, which stipulates 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.

21. Equally, and as to the obligation to pay training compensation, the DRC underscored the content of art. 3 of Annexe 4 of the Regulations, which stipulates that it is the obligation of the club with which the player is registered to pay training compensation within 30 days of the registration.

22. In continuation, the Chamber recalled that the player was born on 9 August 1995 and was registered with the Claimant as from 23 March 2013 until 21 July 2015.

23. Equally, the DRC recalled that according to the information contained in the TMS, the player was definitively registered with the Respondent on 22 July 2015.

24. Furthermore, 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 DRC concluded that the effective period of time to be considered in the matter at stake corresponds to 9 months of the season of the player’s 18th birthday, the entire season of the player’s 19th birthday as well as 7 months of the season of the player’s 20th birthday.

25. Consequently, in light of the above-mentioned considerations and taking into account the aforementioned registration dates as well as that the Respondent should be allocated in category III (indicative amount of EUR 30,000 per year within UEFA) for training compensation purposes, the Chamber concluded to accept the Claimant’s claim and held that the Respondent would, in principle, be liable to pay the amount of EUR 70,000 to the Claimant as training compensation in relation to the registration of the player with the Respondent.

26. Having said this, the DRC observed that in its claim, the Claimant had limited its request for relief to EUR 69,944. Thus, in accordance with the general legal principle of non ultra petita, the Chamber understood that it could not award to the Claimant more than what it had requested.

27. Given the above, the DRC concluded that the Respondent is liable to pay the amount of EUR 69,944 to the Claimant as training compensation in relation to the registration of the player with the Respondent.

28. 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 22 August 2015 until the date of effective payment.

29. Lastly, the Dispute Resolution Chamber 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.

30. In respect of the above, the Chamber held that the amount to be taken into consideration in the present proceedings is EUR 69,944 related to the claim of the Claimant. Consequently, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in Annexe A of the Procedural Rules).

31. As a result, and taking into account that the claim of the Claimant is accepted, the DRC concluded that the Respondent has to bear the costs of the current proceedings in front of FIFA.

32. Considering the particularities of the present matter, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 7,000.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Club Lautaro Roncedo, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, FK Liepaja, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 69,944 plus 5% interest p.a. as from 22 August 2015 until the date of effective payment.

4. 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.

5. The final costs of the proceedings in the amount of CHF 7,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision, to FIFA to the following bank account with reference to case nr. 16-01428/osv:

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 III.3. above is to be made and to notify the Dispute Resolution Chamber of every payment received.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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.

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

_________________________

Emilio García Silvero

Chief Legal & Compliance Officer