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 9 June 2020
Decision of the
Single Judge of the sub-committee of the Dispute Resolution Chamber
passed on 9 June 2020,
regarding training compensation for the player Fabrizio BUSCHIAZZO MOREL
BY:
Joel Talavera (Paraguay), Single Judge of the sub-committee of the Dispute Resolution Chamber
CLAIMANT:
CA Peñarol, Uruguay
RESPONDENT:
Robur Siena S.r.l, Italy
I. FACTS OF THE CASE
1. According to the player’s passport issued by the Asociación Uruguaya de Fútbol (hereinafter: AUF), the player, Fabrizio Buschiazzo Morel, (hereinafter: the player), born on 7 July 1996, was registered with several of its affiliated clubs, including CA Peñarol (hereinafter: the Claimant), as follows:
2. According to the information contained in the Transfer Matching System (hereinafter: TMS), the above-mentioned passport was uploaded to TMS when Robur Siena S.r.l. (hereinafter: the Respondent) registered the player on 12 August 2019.
3. Moreover, it must be noted that, albeit not included in the player’s passport provided by the AUF, according to the information contained in TMS, the player was transferred on loan on three different occasions, during the seasons of the 20th, 22nd and 23rd birthdays of the player, as follows:
4. Pursuant to the information provided by the AUF, the sporting seasons in Uruguay, during the relevant period, started and ended on the following dates:
Seasons
Starting dates
Ending dates
2009
01.01.2009
31.12.2009
2010
01.01.2010
31.12.2010
2011
01.01.2011
31.12.2011
2011 / 2012
01.01.2012
31.07.2012
2012 / 2013
01.08.2012
31.07.2013
2013 / 2014
01.08.2013
31.07.2014
2014 / 2015
01.08.2014
31.07.2015
2015 / 2016
01.08.2015
31.07.2016
Especial 2016
01.08.2016
31.12.2016
2017
01.01.2017
31.12.2017
2018
01.01.2018
31.12.2018
2019
01.01.2019
31.12.2019
Clubs
Registration dates
Status
Type
Atlético Independiente
01.01.2002 – 31.12.2002
Amateur
Permanent
Escuela Industrial
17.07.2002 – 08.11.2009
Amateur
Permanent
CA Peñarol
09.11.2009 – 09.11.2011
Amateur
Permanent
CA Peñarol
10.11.2011 – 09.08.2019
Professional
-
Clubs
Registration dates
Status
Type
Defensa y Justicia (Argentina)
09-08.2016 – 17.01.2017
Professional
Loan
Matera Calcio (Italy)
05.09.2017 – 20.07.2018
Professional
Loan
Pisa Calcio (Italy)
16.08.2018 – 04.07.2019
Professional
Loan
5. According to the information contained in the TMS, the Respondent belonged to the category 3 of UEFA at the time the player was registered with the Respondent.
6. On 22 January 2020, the Claimant lodged a claim in front of FIFA claiming the payment of training compensation from the Respondent upon the transfer of the player from the Claimant to the Respondent on 12 August 2019. In this context, the Claimant is claiming training compensation from the Respondent on the basis of the international transfer of the player as a professional between the two clubs, that belong to different associations, before the season of the 23rd birthday of the player, as per art. 2.ii of Annexe 4 of the RSTP.
7. In particular, the Claimant requested the amount of EUR 199,970 for the period the player was registered with it, plus 5% interest p.a. as from the due date until the day of effective payment. Moreover, the Claimant stressed that –albeit not specifically mentioned in the player's passport– the player was transferred on loan from the Claimant to the Italian clubs Matera Calcio and Pisa Calcio. With regard to the transfer of the player to said Italian clubs, the Claimant acknowledged not being entitled to receive training compensation, insofar loanee clubs do not have to pay training compensation to the former clubs that have trained the player. Nevertheless, the Claimant argued that the transfers of the player to those clubs, since those transfers were on loan, they do not break the chain of the Claimant's entitlement to receive training compensation from the Respondent.
8. In its reply to the claim, the Respondent rejected the proposal made by the FIFA administration and firstly referred to one of the two loan transfers of the player, the one that occurred in September 2017 between the now Claimant and the Italian club, Matera Calcio. In respect to the said transfer, the Respondent held that the player was not transferred on loan to said Italian club, but on a permanent basis and that, later on, the player was transferred back, again on a permanent basis, from Matera Calcio to the Claimant.
9. In this context, the Respondent referred to the principle of segmentation and stated that, although the transfer of the player on a loan basis would not break the chain of entitlement of training compensation, since the player was transferred on a permanent basis from the Claimant to Matera Calcio, the Claimant would only be entitled to training compensation concerning the period the player was registered with the Claimant once he was transferred back from Matera Calcio to the club of the Claimant.
10. In this context, the Respondent argued that, in view of the aforementioned consideration, the Claimant would not be entitled to receive any moneys regarding training .compensation from the Respondent, insofar the transfer of the player from Matera Calcio to the Claimant occurred already in the season of the player's 22 birthday and, since training compensation is only payable for training incurred up to the age of 21, the Claimant is not entitled to training compensation.
11. Furthermore, the Respondent held that, since the termination of the contract between the player and the Claimant occurred without a decision rendered by FIFA, said termination is to be presumed as made without just cause, which would hinder the Claimant from requesting any moneys from the Respondent as per art. 2.2.i of the RSTP.
12. Subsidiary, the Respondent held that, should its allegations be rejected, the training compensation costs in Italy do not amount to EUR 30,000 per year, as stated in the proposal made by the FIFA administration. In this regard, it must be noted that the Respondent made reference to art. 5 para. 4 of Annexe 4 of the Regulations and, as per said article, the Respondent made its own calculations, taking into account the amounts invested by the Respondent every year in training its players and dividing that figure by the number of players the Respondent had registered during the relevant seasons; hence, coming to the conclusion that the moneys the club would have invested in the player’s training and education would have amounted to EUR 984.85 per year, and not EUR 30,000.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE DISPUTE RESOLUTION CHAMBER
1. First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber (hereinafter: 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 22 January 2020 and the decision was passed on 9 June 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the 2019 edition of the Procedural Rules is applicable to the matter at hand (cf. article 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 (June 2020 edition). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations, 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 12 August 2019, 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, the June 2019 edition of 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, 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 that 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 recalled that, in accordance with the player’s passport issued by the AUF, the player, born on 7 July 1996, was registered with the Claimant as from 9 November 2009 until 11 August 2019, with the exception of the period the player was on loan (cf. point I.3 above). Equally, the Single Judge observed that, in August 2019, the player, who was already a professional, was internationally transferred from the Claimant to the Respondent, on a permanent basis, the registration having occurred on 12 August 2019.
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 199,970 upon the transfer and registration of the player with the Respondent.
7. Equally, the Single Judge noted that the Respondent rejected the claim of the Claimant, arguing that the player was not transferred by the Claimant to the Italian club Matera Calcio on loan, but on a permanent basis, in September 2017; and that, thereafter, the player was transferred back from Matera Calcio to the Claimant, on a permanent basis as well. In this regard, the Single Judge took note of the argument wielded by the Respondent, who held that, in view of the aforesaid, the Claimant is not entitled to receive training compensation from the Respondent for the period the Claimant trained the player before the latter was transferred to Matera Calcio. In this context, the Respondent argued that the Claimant would only, and in principle, be entitled to receive training compensation from the Respondent as regards the period the player was registered with the Claimant when he returned from Matera Calcio, i.e. as from 21 July 2018 onwards. Nevertheless, as to the aforesaid eventual entitlement, the Respondent further argued that, when the player was again registered with the Claimant in July 2018, it was already the season of the player’s 22nd birthday and, as such, no training compensation would be payable, since training compensation is only payable for training incurred up to the age of 21.
8. In this context, the Single Judge analysed all the information provided by the parties, as well as the documentation contained in TMS (ex. art. 6 par. 3 of Annexe 3 of the Regulations), and noted that, according to both, the loan agreement concluded between the Claimant and Matera Calcio on 9 August 2017 and the transfer instruction inserted in TMS, the player was indeed transferred between the said clubs on a loan basis. Consequently, the Single Judge determined that the first of the arguments brought forward by the Respondent cannot be upheld.
9. In continuation, the Single Judge referred to the argument of the Respondent in accordance with which the termination of the contract between the Claimant and the player would have been made without just cause by the Claimant, which would hinder the latter from requesting any training compensation upon the transfer of the player to any third club ex. art. 2.2. lit i of Annexe 4 of the Regulations.
10. In this regard, the Single Judge noted that, despite the Respondent carrying the burden of the proof to demonstrate that the Claimant terminated the contract with the player without just cause, ex. art. 12.3 of the Procedural Rules, the latter did not provide any evidence that would lead to the conclusion that the Claimant terminated the contract of the player, not even to conclude that said alleged termination occurred without just cause. Hence, the Single Judge concluded that said argument could not be taken into account.
11. Furthermore, the Single Judge made reference to the argument of the Respondent concerning the expenses incurred by the Respondent in training the amateur players of the club on a yearly basis and to the alleged disproportion existing between said expenses and the amounts indicated in the FIFA circular no. 1673 regarding the categorisation of clubs, registration and eligibility. In this context, the Single Judge further referred to art. 5 para. 4 of Annexe 4 of the Regulations, which reads as follows: “The Dispute Resolution Chamber may review disputes concerning the amount of training compensation payable and shall have discretion to adjust this amount if it is clearly disproportionate to the case under review”; article to which the Respondent also referred in its statement of defence.
12. Furthermore, the Single Judge acknowledged the argumentation of the Respondent, who broke down the monetary expenses incurred by the club in training its registered amateur players during the different seasons, as follows:
Sporting season 2016/2017: EUR 150,000;
Sporting season 2017/2018: EUR 200,000;
Sporting season 2018/2019: EUR 200,000;
Sporting season 2019/2020: EUR 230,000.
13. In this context, the Respondent highlighted that the average yearly costs it incurred in training amateur players amount to EUR 195,000 and that, since in the sporting season 2019/2020 198 amateur players were registered with the Respondent, the training costs effectively incurred by the Respondent per player per year amount to EUR 984.85 (195,000 / 198 = 984.85). In view of the aforesaid, the Respondent argued that the training costs of EUR 30,000 foreseen in the above-mentioned circular no. 1673 as the standard costs incurred on average by clubs that belong to category 3 of UEFA is disproportionate and, hence, art. 5 para. 4 of Annexe 4 of the Regulations should be taken into account by the DRC in order to reduce the amount eventually due by the Respondent as training compensation. In this sense, the Respondent stressed that, in view of the period the player was registered with the Claimant, an amount of EUR 19,500 would be an adequate amount should training compensation be due to the Claimant.
14. The Single Judge firstly acknowledged all the arguments brought by the Respondent and thoroughly analysed the documentary evidence provided by the latter in support of its allegations. In this regard, the Single Judge noticed that the documentary evidence provided by the Respondent concerning the yearly costs incurred per year in amateur players (hereinafter: the yearly training costs documentation) was documentation fabricated by the Respondent itself, in Italian, along with a summary thereof in English.
15. In this regard, the Single Judge referred to the yearly training costs documentation of the sporting season 2019/2020, in which the Respondent held that 198 amateur players were registered with it. In particular, the Single Judge referred to its translation into English –which is to be considered as the relevant document, since the original documentation in Italian cannot be considered, insofar Italian is not an official FIFA language ex. art. 9 para. 1 of the Procedural Rules– and observed that, therein, the following is stated “Forecast budget: the club intends to invest in the sporting season 2019/2020 for the implementation of the youth training program the amount of EUR 230,000, so divided: EUR 98,000 registered wages and employee compensation; EUR 40,000 locomotation logistics; EUR 15,000 food and accommodation logistics; EUR 30,000 sports facilities rental and rooms for training meetings; EUR 32,000 affiliations and technical collaborations; EUR 15,000 preparation awards (ex art. 96 noif)”. In this regard, the Single Judge highlighted that the said document explicitly states that it constitutes a “forecast budget” for the youth training program for the season 2019/2020, but does not constitute an evidence of the Respondent having effectively incurred in said costs during the relevant season. What is more, the Single Judge wished to stress that the said yearly training costs documentation clearly states that said document only reflects the intention of the club to invest the above-mentioned moneys in the youth training program during the season 2019/2020, but that the Respondent failed to submit any documentary evidence of having incurred in the said costs.
16. Moreover, the Single Judge determined that, although the season 2019/2020 had not ended when the present proceedings started and, as such, the supporting documentary evidence that the Respondent could have submitted to demonstrate the reality of those training costs was indeed more limited, the Single Judge referred to the yearly training costs documentation of the previous seasons, i.e. 2016/2017, 2017/2018 and 2018/2019, which also display a “budget forecast” for the youth training costs program of each season. In this context, the Single Judge recalled the jurisprudence of the DRC, according to which the club alleging the disproportion in the amount of training compensation shall submit all necessary evidence substantiating the demand or review. In view of the aforesaid, the Single Judge reaffirmed that the Respondent de facto failed to sufficiently prove that its training costs of amateur players amount to an average of EUR 19,500 per year.
17. The above being clarified, the Single Judge wished to point out that the amount of training compensation is to be calculated in accordance with the rules provided in the FIFA circular no. 1673 and that said indicative amount would only be altered if the circumstances of the player in question are exceptional and or if the outcome of the calculation is clearly disproportionate. In this respect, the Single Judge observed that the Respondent did not refer to the circumstances of the player involved, but only to the difference between the budget foreseen by the club and the amount indicated in the FIFA circular no. 1673 as training compensation costs of clubs that belong to the category 3 of UEFA.
18. In view of all of the above, the Single Judge concluded that, taking into account the abovementioned jurisprudence and considering that the respondent bears the burden of the proof to demonstrate that the amounts are disproportionate, the Respondent in this case neither substantiated nor provided any solid evidence in order to corroborate exceptional circumstances of the player or a disproportionate outcome of the calculation in the present matter. Hence, the Single Judge determined that there is no reason to deviate from the indicative training compensation amounts established in the FIFA circular no. 1673, which provides a general framework that, if disregarded, would lead to worldwide legal uncertainty.
19. Consequently, taking into account the above-mentioned considerations, the Single Judge concurred that it had to reject the Respondent’s arguments and decided that the Respondent is liable to pay training compensation to the Claimant for the training of the player in accordance with art. 20 of the Regulations and art. 2 par. 1 lit. ii. and art. 3 par. 1 of Annexe 4 of the Regulations.
20. As a result, 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 Single Judge concluded that the effective period of time to be considered in the matter at stake corresponds to: 53 days of the 2009 season, the entire 2010 and 2011 seasons, 213 days of the 2011/2012 season, the entire 2012/2013, 2013/2014, 2014/2015 and 2015/2016 seasons, 9 days of the Especial 2016 season and 227 days of the 2017 season.
21. Furthermore, the Single Judge referred to the FIFA circular no. 1673 dated 28 May 2019, which provides details for the calculation of training compensation as well as 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 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. In this respect, the Single Judge took into account that according to the documentation on file, the Respondent belonged to the club category 3 of UEFA.
22. Consequently, the Single Judge decided that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 179,515.97.
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, in conformity with its longstanding practice, interest of 5% p.a. over the amount payable as training compensation as of the 31st day of the registration of the player with the Respondent on a definitive basis, i.e. as of 12 September 2019, until the date of effective payment.
24. In continuation, 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 the proceedings before the Dispute Resolution Chamber relating to disputes regarding training compensation, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings.
25. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 199,970, related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000 (cf. table in Annexe A of the Procedural Rules).
26. As a result, considering the present case, the Single Judge determined the final costs of the current proceedings to the amount of CHF 10,000,which shall be paid by the parties as follows: (i) the amount of CHF 1,000 by the Claimant; (ii) the amount of CHF 9,000 by the Respondent
27. Thereafter, taking into account the consideration under number II./3. above, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.
28. In this regard, the Single Judge pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.
29. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
30. Finally, the Single Judge recalled that the above-mentioned sanction will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.
III. DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, CA Peñarol, is partially accepted.
2. The Respondent, Ribur Siena S.r.l., has to pay to the Claimant, EUR 179,515.97 as training compensation plus 5% interest p.a. as from 12 September 2019 until the date of effective payment.
3. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.
4. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).
5. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:
1.
The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.
In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
For the Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).
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