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 26 September 2019

Decision of the

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

passed on 26 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 A

as Claimant

against the club,

Club B, Country B

as Respondent

regarding training compensation in connection with

the player C

I. Facts of the case

1. According to the player passport issued by the Federation Country A (hereinafter: Federation A) on 17 August 2017, the player, C (hereinafter: the player), born on xxx, was registered with its affiliated club, A (hereinafter: the Claimant), (a) as an amateur from 15 June 2009 until 30 June 2010 and (b) as a professional from 1 July 2010 until 1 August 2017.

2. Pursuant to the information provided by the Federation A, the football seasons in Country A follow the calendar year.

3. According to the information available on the Transfer Matching System (TMS), the football seasons in Country B start in July of one year and end in June of the following year.

4. Based on the information contained in the TMS, the Claimant concluded a transfer agreement (hereinafter: the transfer agreement) with club B (hereinafter: the Respondent), for the registration of the player on a permanent basis with the Respondent on 11 August 2017.

5. In particular, clause 2. of the transfer agreement states as follows:

“Transfer Fee: in order to make the transfer feasible, [the Respondent] agrees to pay [the Claimant] the net amount of EUR 5,500,000 (five million five hundred thousand Euros), payable within 05 (five) days as from the effective transfer and registration of the player to [the Respondent]”.

6. Furthermore, clause 2. par. 1. of the transfer agreement stipulates that “the referred definitive transfer fee amount is net, free of tributes, solidarity mechanism FIFA, training compensation FIFA, taxes or other deductions, which costs shall be paid by [the Respondent]”.

7. Pursuant to the information in the TMS, the Respondent belonged to the category I (UEFA indicative amount of EUR 90,000 per year) at the moment the player was registered with it.

8. In this framework, on 20 October 2017, the Claimant contacted FIFA claiming its proportion of training compensation on the ground of the transfer of the player as a professional to 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 545,479.45 plus “default interest as from 27 August 2017 in a fair rate, in any case no less than 5% per year”.

9. In its reply to the claim, the Respondent highlighted that in its statement of claim, the Claimant wrongfully indicated that it lodged its complaint in front of the Players’ Status Committee. In this respect, the Respondent declared that disputes regarding training compensation have to be lodged in front of the Dispute Resolution Chamber (hereinafter: the DRC), and that in consequence the claim of the Claimant should be deemed inadmissible.

10. In the event of the claim being deemed admissible, the Respondent indicated that the jurisprudence of the DRC with regard to training compensation “considers that a transfer fee is supposed to contain the eventual training compensation that would be due to the ‘selling’ club, unless if a contradictory and explicit clause exists”.

11. In this respect, the Respondent stated that the spirit of clause 2. par. 1. of the transfer agreement was to emphasise that any deductions that would potentially be due to third parties, including training compensation, were included in the transfer fee of EUR 5,500,000 received by the Claimant.

12. Then, the Respondent argued that at the time of the transfer of the player, the season of the player’s 23rd birthday had already ended in Country B.

13. Finally, should it be deemed that training compensation is due in the present matter, the Respondent indicated that the amount awarded for training compensation should be reduced considering that the player terminated his training period prior to the end of the season of his 21st birthday. In this respect, in view of the fact that the player had already signed a professional contract with the Claimant on 1 July 2010, the Respondent concluded that his training period should be considered completed on 30 June 2010. As such, the Respondent argued that in this scenario the Claimant should not be awarded more than EUR 50,475.45.

14. In its replica, the Claimant stated, inter alia, that the wording of clause 2. and clause 2. par. 1. were “self-explanatory”, and clearly stating that “the transfer fee does not include the Training Compensation value”.

15. In addition, the Claimant declared that the season of the player’s 23rd birthday was still running in Country A at the time of the transfer of the player to the Respondent, and that therefore training compensation was effectively due.

16. With regards to the early termination of the training period of the player before his 21st birthday, the Claimant provided, inter alia, detailed information evidencing that the player never participated in official matches for its first team until the end of the season 2013, only competing with its youth teams. Then, the Claimant stated that the player participated (a) in less than 25% of its first team matches during the season 2014; (b) in or around 68% of its first team matches during the season 2015, and (c) in or around 89% of its first team matches during the season 2016 and during season 2017 until his transfer to the Respondent. Furthermore, the Claimant stated that the player only started to earn a salary equivalent to the average salary paid to its first team players on 17 July 2017. As such, the Claimant maintained that the player had not completed his training before the end of the season of his 21st birthday and consequently reiterated its request for relief.

17. In its duplica, the Respondent reiterated its arguments detailed above.

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 20 October 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 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 11 August 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 on the Status and Transfer of Players (editions 2016, January and June 2018 as well as edition June 2019), 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 TMS.

5. First of all, the Single Judge observed that the claim of the Claimant was lodged on 20 October 2017 via the TMS, in line with art. 5 of Annexe 6 of the Regulations. Consequently, the Single Judge declared the claim admissible.

6. Then, the Single Judge recalled that, in accordance with the player passport issued by the Federation A, the player, born on xxxx, was registered with the Claimant (a) as an amateur from 15 June 2009 until 30 June 2010 and (b) as a professional from 1 July 2010 until 1 August 2017. Furthermore, the Single Judge recalled that according to the information contained in the TMS, the player was subsequently transferred to the Respondent on 11 August 2017, with which he was also registered as a professional on the same date.

7. In continuation, the Single Judge took note that the Claimant requested the payment of the training compensation from the Respondent on the ground of the definitive transfer of the player as a professional to 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 545,479.45 plus “default interest as from 27 August 2017 in a fair rate, in any case no less than 5% per year”.

8. The Single Judge acknowledge that the Respondent argued, inter alia, that the claim of the Claimant should be rejected on the basis that training compensation was already included in the transfer agreement, and that in any case the season of the player’s 23rd birthday had already ended in Country B at the time of his registration in August 2017. What is more, the Respondent declared that should training compensation be deemed due, the amount attributed should be lowered to EUR 50,475.45 in view of the fact that the player had completed his training period on 30 June 2010.

9. 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.

10. 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. (a) as an amateur from 15 June 2009 until 30 June 2010 and (b) as a professional from 1 July 2010 until 1 August 2017. Likewise, the Single Judge duly noted that the player was subsequently registered with the Respondent as a professional on 11 August 2017.

11. In this regard, the Single Judge acknowledged that the Respondent stated that the player transferred to the Respondent after the end of the football season of his 23rd birthday.

12. Recalling the constant jurisprudence of the DRC in this respect, the Single Judge indicated that training compensation is calculated upon the football seasons of the Claimant, not of the Respondent, in order to prevent clubs not being rewarded for their work in training players when they move to associations which have different season dates.

13. Paying particular attention to the facts of the present matter, the Single Judge noted that the football season in Country A follows the calendar year, whilst the season in Country B starts in July of one year and ends in June of the following year. In addition, the Single Judge highlighted that the player, born on xxxx, transferred to the Respondent on 11 August 2017, that is to say during the course of the season of the player’s 23rd birthday in Country A. Therefore, the Single Judge decided to set aside this particular argument of the Respondent.

14. The Single then turned his attention to the transfer agreement that the Claimant and the Respondent concluded with regard to the transfer of the player. In fact, the Single Judge observed that the transfer agreement stipulated that the Respondent had to pay the Claimant EUR 5,500,000 as “transfer fee” payable within five days after the registration of the player with the Respondent.

15. Furthermore, the Single Judge observed that, according to clause 2. par. 1 of the transfer agreement, “the referred definitive transfer fee amount is net, free of tributes, solidarity mechanism FIFA, training compensation FIFA, taxes or other deductions, which costs shall be paid by [the Respondent]”.

16. The Single Judge stated that, the Single Judge stated that, according to the well-established jurisprudence of the DRC, if two clubs conclude a transfer agreement providing for the respective financial obligations, i.e. transfer compensation, training compensation is considered as being included in the transfer compensation. However, if the parties wish to stipulate the contrary to the aforementioned, i.e. training compensation being due in addition to the agreed transfer compensation, they need to explicitly mention it in the transfer agreement.

17. Bearing the aforementioned in mind, the Single Judge thoroughly analysed the contents of the transfer agreement, and in particular of clause 2. and clause 2. 1.

18. In this respect, the Single Judge acknowledged that the Respondent committed to pay to the Claimant a transfer fee of EUR 5,500,000 within five days of the player’s registration with the Respondent. In addition, the Single Judge duly observed that the transfer agreement stipulates that the aforementioned transfer fee is “net, free of (…) training compensation FIFA”.

19. In view of the above, the Single Judge had no other option but to conclude that the Claimant and the Respondent agreed that training compensation in the sense of the Regulations was not included within the transfer fee, and that the payment of said training compensation had to be covered by the Respondent in addition to the aforementioned net transfer fee. In this respect, the Single Judge strongly emphasised that the contents of the aforementioned clauses were unambiguous in that sense and left no room for interpretation, and that both the Claimant and the Respondent signed the transfer agreement in good knowledge of its contents.

20. In view of the foregoing, the Single Judge concluded that the Respondent is, in principle, 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.

21. Then, with reference to art. 1 par. 1 of Annexe 4 of the Regulations, the Single Judge emphasised that training compensation for a player is generally payable up to the age of 23 for training that occurred form the age of 12 up until the age of 21, unless it is evident that said player has completed his training period before the age of 21. What is more, the Single Judge noted that in such instance, the calculation of training compensation would be based on the years between the age of 12 up until the age when it is established that said player ended his training period.

22. In this regards, the Single Judge remarked that the Respondent declared that the player had terminated his training period upon signing his first professional contract with the Claimant on 1 July 2010.

23. Having considered the Respondent’s position about the player’s completion of his training period 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 Single Judge remarked that the Respondent only relied upon the fact that the player signed his first professional contract with the Claimant on 1 July 2010 in order to arrive to the conclusion that his training period had been completed by then.

24. In that regard, the Single Judge pointed out that in the absence of any supporting evidence, he was not in a position to determine whether or not the player had indeed already ended his training period when turning professional with the Claimant. As such, the Single Judge concluded that the player’s training period had not been completed prior to the end of the season of his 21st birthday.

25. Consequently, the Single Judge determined 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.

26. 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, Judge concluded that the effective period of time to be considered in the matter at stake corresponds to the following:

- 7 months of the season of the player’s 15th birthday;

- The full the season of the player’s 16th birthday;

- The full the season of the player’s 17th birthday;

- The full the season of the player’s 18th birthday;

- The full the season of the player’s 19th birthday;

- The full the season of the player’s 20th birthday; and

- The full the season of the player’s 21st birthday.

27. 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.

28. In this respect, the Single Judge took due note that, according to the information contained in the TMS, the Respondent belonged to category I (indicative amount of EUR 90,000 per year within UEFA) at the time the player was registered with it.

29. Consequently, taking into consideration all the above as well as the amount claimed by the Claimant, the Single Judge decided that the Respondent is liable to pay the amount of EUR 545,479.45 to the Claimant for the training and education of the player.

30. 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 10 September 2017 until the date of effective payment.

31. 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.

32. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 545,479.45 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 25,000.

33. As a result, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000 which should be entirely borne by the Respondent in view of the outcome of the case.

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 B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 545,479.45 + 5% interest p.a. as from 10 September 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 25,000 are to be paid by the Respondent, within 30 days of notification of the present decision, as follows:

4.1 The amount of CHF 20,000 has to be paid to FIFA to the following bank account with reference to case no. TMS 2069/tle:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

4.2 The amount of CHF 5,000 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

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

Encl.: CAS directives