F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution/ contributo di solidarietà – (2020-2021) – fifa.com – atto non ufficiale – Decision 10 September 2020

Decision of the Single Judge

of the sub-committee of the

Dispute Resolution Chamber

passed on 10 September 2020

regarding training compensation for the player August Stana FROBENIUS

BY:

Roy Vermeer (Netherlands)

CLAIMANT:

STABAK FC, Norway

RESPONDENT:

SPORTING CP, Portugal

I. FACTS

1. According to the player passport issued by the Norges Fotballforbund (hereinafter: NFF), the player, August Stana Frobenius, (hereinafter: the player), born on 1 August 2003, was continuously registered as an amateur player with the clubs Skeid and Stabak FC (hereinafter: Stabak FC or the Claimant), as follows:

Clubs

Registration Dates

Registration type

Status

Skeid

From 01.01.2015 to 19.06.2015

Permanent

Amateur

Stabak FC

From 20.06.2015 to 17.09.2019

Permanent

Amateur

2. According to the information contained in the Transfer Matching System (TMS):

2.1. The player was registered with the Portuguese club, Sporting CP (hereinafter: Sporting CP or the Respondent), on 18 September 2019 as a professional;

2.2. 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 Sporting CP;

2.3. Stabak FC recruited professional players with whom it signed professional contracts during the period going from 2015 to 2019;

2.4. There are three training categories available in Norway, IV being the lowest and II being the highest;

2.5. The football season in Norway follows the calendar year.

3. On 16 July 2020, the Claimant lodged a claim in front of FIFA requesting the payment of EUR 63,840 as training compensation on the ground of the player’s first registration as a professional with the Respondent which occurred before the end of the season of the player’s 23rd birthday. In addition, the Claimant requested for the Respondent to be “ordered to pay the costs of the case, including reasonable attorneys’ fees.”

4. In this respect, the Claimant was of the opinion that it was entitled to receive training compensation from the Respondent for the training and education it had provided the player with. In particular, the Claimant indicated that it had retained its entitlement to such compensation by having shown a bona fide interest in retaining the services of the player, thus fulfilling the requirements of art. 6 par. 3 of the Regulations on the Status and Transfer of Players.

5. In fact, the Claimant emphasized that it had invested in the training of the player, who was considered as a “highly prioritized player”. In addition, , the Claimant highlighted that since the player joined its academy on 20 June 2015, he “was granted numerous opportunities to play on higher levels at young age”, and “the player was ranked number 3 in his age at the academy [of the Claimant] and thereby a highly observed and regarded talent with the academy [of the Claimant] and [Stabak FC]”. In support, the Claimant provided copies of the player’s statistics and a copy of its academy ranking of February 2019.

6. What is more, Stabak FC underlined that it always had a good relationship with the player and with the youth national coaches, “to follow up and endorse his development and career at the club”.

7. The Claimant, referring to Dispute Resolution Chamber (hereinafter referred also as DRC) and the Court of Arbitration for Sport (hereinafter: CAS) jurisprudence on the aforementioned article which was allegedly compiled by the ECA in its Legal Bulletin 4 of September 2014, deemed that it was sufficient for it to prove that “It had a desire to keep the player on the roster or in its youth academy with a view to keep alive the option of granting him a professional contract.”

8. The Claimant emphasised that it had, through the above, showed a “genuine and bona fide interest in the player. Therefore, in accordance with RSTP article 6.3 annex 4 the claimant is entitled to receive training compensation for the player amounting to EUR 63,840”.

9. The Claimant explained that the Respondent had refused to pay training compensation unless it could prove that it had made a contract offer to the player in line with art. 6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players.

10. On 19 July 2020, the FIFA administration submitted a proposal (hereinafter: the proposal) to the Claimant and the Respondent, in line with Article 13 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber and FIFA Circular 1689, suggesting that Sporting CP should pay training compensation in the amount of EUR 52,986 to Stabak FC plus 5% interest as from “the due date”, corresponding to the registration of the player with the Claimant during the course of his 12th, 13th, 14th, 15th and 16th birthday seasons.

11. The FIFA administration requested the parties to provide their acceptance or rejection as to the proposal by no later than 3 August 2020, and, in case of rejection, to provide their positions by no later than 8 August 2020.

12. On 28 July 2020, the Claimant accepted the proposal.

13. On 3 August 2020, the Respondent rejected the proposal and requested to be provided with an extension of the deadline set for reply to the 18 of August 2020.

14. The FIFA administration granted the aforementioned extension.

15. On 18 August 2020, Sporting CP provided its arguments as to its rejection of the proposal.

16. First, the Respondent contested the admissibility of the claim, arguing that the Claimant’s petition did not meet the requirements set out in the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber and the Regulations on the Status and Transfer of Players, namely by having failed to provide documents translated in one of the four FIFA official languages and by not having submitted “mandatory” documents such as confirmations from the NFF of season dates and training category of Stabak FC.

17. As to the substance of its claim, the Respondent argued that because the Claimant had not offered a contract to the player as provided for in art. 6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players, the latter was not entitled to receive training compensation. Equally, the Respondent deemed that the Claimant had failed to show a bona fide interest in retaining the services of the player.

18. According to Sporting CP Stabak FC had “failed to show it has ever taken a proactive stance vis-à-vis the Player (and/or his family) to demonstrate its will to maintain him at [Stabak], let alone offered (or even discussed!) any contract with the player.”

19. From Sporting CP’s point of view, Stabak had failed “to discharge its burden of proof in showing that it is entitled to receive training compensation.”

20. On 24 August 2020, the FIFA administration requested the Claimant to provide its comments as to art. 6 par. 3 of Annexe 4 to the Regulations on the Status and Transfer of Players by no later than 31 August 2020.

21. In its replica on 26 August 2020, the Claimant stated the following:

“Reference is made to the defendant's response of 18. August 2020. The Claimant will provide:

1. Official confirmations on the sporting season and the category of the Claimant from the Norwegian Football federation.

2. The requested translations.

3. Further evidence, including declarations and witness statements in support of the claim.

4. Legal arguments addressing the cases and legal arguments in the response and other relevant and applicable law.

We will present the above as soon as possible but do however invite the FIFA Players Status Committee to set a deadline for such filing in support of the claim.”

22. However, the Claimant failed to provide to FIFA any further documentation.

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 16 July 2020 and submitted for decision on 10 September 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 Single Judge concluded that the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states that he shall examine his jurisdiction in light of arts. 22 to 24 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations - edition June 2020). 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 18 September 2019, the Single Judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Single Judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, the June 2019 edition of the Regulations is applicable to the matter at hand as to the substance.

4. As a preliminary remark, the Single Judge acknowledged that Sporting CP had contested the admissibility of the claim, arguing that the petition filed by the Claimant was not compliant with the Regulations and the Procedural Rules.

5. Recalling the wording of art. 5 par. 2 of Annexe 6 of the Regulations according to which the mandatory documents that shall be submitted by the Claimant depend on the details of the claim, the Single Judge was keen to point out that the list of mandatory documents is not exhaustive, and that some documents may be omitted should they not be of particular relevance to a specific dispute or should the relevant documentation be available on TMS.

6. In view of the aforementioned and taking into account the documentation submitted by the Claimant as well as the information included in TMS, the Single Judge concluded the petition of the Claimant was compliant with the requirements of art. 5 of Annexe 6 of the Regulations.

7. 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 were considered pertinent for the assessment of the matter at hand. In particular, the single judge recalled that, in accordance with art. 6 par. 4 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. What is more, the Single Judge recalled the provisions of art. 12 par. 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. During the proceedings, the parties shall submit all relevant facts and evidence of which they are aware at that time, or of which they should have been aware if they had exercised due care.

8. In this respect, the Single Judge took note that the Claimant had requested from the Respondent the payment of training compensation in the amount of EUR 63,840 arguing that it had trained the player between 20 June 2015 and 17 September 2019 and that the latter had been registered as professional for the first time with the Respondent on 18 September 2019.

9. In particular, the Single Judge acknowledged that the Claimant deemed having complied with the requirement of art. 6 par. 3 of Annexe 4 to the Regulations by having shown “genuine and bona fide interest in the player”.

10. Furthermore, the Single Judge duly noted that the Respondent, for its part, had rejected the claim of Stabak FC arguing that the latter had failed to offer a contract to the player and was not able to prove that “it has ever taken a proactive stance vis-à-vis the Player (and/or his family) to demonstrate its will to maintain him at Stabaek.”

11. Bearing in mind 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. i) of Annexe 4 of the Regulations, training compensation is payable, as a general rule, for the training and education that incurred between the age of 12 and 21, when a player is registered as a professional for the first time before the end of the season of his 23rd birthday. Equally, the Single Judge recalled that, in case of a first registration as 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 within 30 days of registration to every club with which the player has previously been registered (in accordance with the players’ career history as provided in the player passport) and that has contributed to his training starting from the season of his 12th birthday. The amount payable is calculated on a pro rata basis according to the period of training that the player spent with each club.

12. Furthermore, the Single Judge referred, in particular, to art. 6 of Annexe 4 of the Regulations, which contains special provisions regarding players moving from one Association to another Association inside the territory of the European Union (EU)/European Economic Area (EEA).

13. More specifically, the Single Judge turned his attention to art. 6 par. 3 of Annexe 4 which stipulates, inter alia, that if the former club does not offer the player a contract, no training compensation is payable unless the former club can justify that it is entitled to such compensation. In addition, the former club must offer the player a contract in writing via registered post at least 60 days before the expiry of his current contract in order to retain its entitlement to training compensation vis-à-vis the new club.

14. In view of the above, the Single Judge stated that, first and foremost, he had to verify whether art. 6 par. 3 of Annexe 4 of the Regulations applies in the present case as lex specialis, and, in the affirmative, to determine if the Claimant had complied with the said provision in order to be entitled to training compensation.

15. In this respect and considering that, the player had moved from a club based in Norway to a club based in Portugal, i.e. he had moved from one Association to another Association within the territory of the EEA, the Single Judge established that art. 6 par. 3 of Annexe 4 of the Regulations is applicable to the present dispute as lex specialis.

16. Having determined the applicability of art. 6 par. 3 of Annexe 4 of the Regulations to the present affair, the Single Judge went on to analyse the exact wording of said article. In particular, the Single Judge underlined that that, in accordance with the provision in question “If the former club does not offer the player a contract, no training compensation is payable unless the former club can justify that it is entitled to such compensation. The former club must offer the player a contract in writing via registered post at least 60 days before the expiry of his current contract. Such an offer shall furthermore be at least of an equivalent value to the current contract”.

17. In the opinion of the Single Judge art. 6 par. 3 sent. 1 of Annexe 4 of the Regulations unequivocally indicated that when a player moves between two clubs affiliated to different associations within the EU/EEA before the end of the player’s 23rd birthday season, training compensation is not due to the last club where the player played if no contract offer is made unless the former club can justify its entitlement to compensation.

18. In continuation and recalling the jurisprudence of the DRC, the Single Judge pointed out that the obligation of the former club to offer a professional contract to the player in the sense of art. 6 par. 3 sent. 1 of Annexe 4 to the Regulations, does not apply to purely amateur clubs as pure amateur clubs are per se not in a position to offer such contract. This is therefore a ground that a purely amateur club can invoke to justify that it is entitled to training compensation, even though it did not offer the player a contract. However, such obligation does apply to those clubs which register both amateur and professional players and the Regulations in this sense are clear: a club must offer the player a contract.

19. In the same context, the Single Judge, referring once again to the aforementioned jurisprudence, recalled that the applicability of sent. 2 and 3 of art. 6 par. 3 of Annexe 4 of the Regulations is limited to situations when the player is already under professional contract.

20. Turning his attention to the matter at hand, the Single Judge pointed out that it was uncontested that the Claimant was a club with professional status in Norway, nevertheless the player had always been registered as amateur with it.

21. Therefore, the Single Judge concluded that Stabak FC had been in the position to offer a contract to the player when the latter was still registered with it.

22. Reverting to the above, the Single Judge noted that in the present scenario, whereas Stabak FC is a professional club and the player was always registered under amateur status with it, the Claimant, in order to retain its entitlement to training compensation, would have required to evidence that it had offered a professional contract during the course of the player’s registration with it.

23. In this respect, the Single Judge duly noted that it had remained uncontested that the Claimant never offered a contract to the player.

24. In view of the aforementioned and because the Claimant had not offered a contract to the player, the Single Judge concluded that the Claimant had not complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations.

25. Hence, the Single Judge decided that the Claimant is not entitled to receive training compensation from the Respondent.

26. Finally, as to the request of the Claimant for reimbursement of legal costs, the Single Judge, in line with the contents of art. 18 par. 4 of the Procedural Rules according to which no procedural compensation shall be awarded in proceedings of the Players’ Status Committee and the DRC, dismissed said request.

27. In view of all the above, the Single Judge rejected the claim of the Claimant.

DECISION OF THE SINGLE JUDGE OF THE SUBCOMMITTEE OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Stabak FC, is rejected.

For 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 receipt 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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