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 Kolesnichenko KIRILL

BY:

Geoff Thompson (England)

CLAIMANT:

FC CHERTANOVO MOSCOW, Russia

RESPONDENT:

FC KAIRAT, Kazakhstan

I. FACTS

1. On 16 September 2017, the player , Kolesnichenko KIRILL, (hereinafter: the player), born on 26 March 2000, signed an employment agreement with FC Chertanovo (hereinafter: FC Chertanovo or the Claimant) valid as from 6 June 2018 until 31 May 2020, according to which he was entitled to receive a monthly remuneration of RUB 17’642, corresponding to approximately EUR 200, in exchange for his services as a professional football player.

2. On 20 February 2018, FC Chertanovo and PFC SKA-Khabarovsk signed a loan agreement by means of which they agreed on the loan of the player to PFC SKA-Khabarovsk between 21 February and 21 May 2018.

3. Within the agreement, it is stipulated that FC Chertanovo “has a valid fixed-term employment contract with the Football Player”. The loan agreement was signed by FC Chertanovo, PFC SKA-Khabarovsk and the player.

4. On 26 February 2020, the player and the Claimant signed an addendum to the player’s employment contract, according to which, in case of a premature termination by the player, the latter had to pay the sum of RUB 4’200’000 to the Claimant. In particular, the addendum indicated that in case of termination “the termination of the employment contract at the initiative of the Employee (voluntarily) shall be carried out without payment of any other compensation and (or) the application of sports sanctions.”

5. On 23 March 2020, the player was registered with the Kazakh club FC Kairat (hereinafter also referred as the Respondent) as a professional.

6. FC Kairat registered the player as an out of contract player. In accordance with the relevant transfer instruction inputted in the Transfer Matching System (TMS), the player had unilaterally terminated the contract with the Claimant on 18 March 2020.

7. According to the information contained in the TMS:

- The Respondent belonged to the category III (indicative amount of EUR 30’000 per year within UEFA) at the moment that the player was registered with it; and

- The football season in Russia had not a consistent format between 2011 and 2020.

8. On 5 May 2020, the Claimant lodged a claim in front of FIFA requesting training compensation for the registration of the player as a professional with FC Kairat on 23 March 2020, i.e. before the end of the season of the his 23rd birthday.

9. The claim of the Claimant is based on the following player passport issued by the Russian Football Union on 29 April 2020 (hereinafter: FUR), in accordance with which the player was registered with the following Russian clubs:

Clubs

Registration Dates

Registration Type

Status

FC Chertanovo

06.05.2011 to 31.12.2016

Permanent

Amateur

FC Chertanovo

01.01.2017 to 21.02.2018

Permanent

Professional

PFC SKA-Khabarovsk

22.02.2018 to 21.05.2018

Loan

Professional

FC Chertanovo

22.05.2018 to 12.03.2020

Permanent

Professional

10. In this respect, the Claimant requested the payment of EUR 173’668.54, plus 5 % interest p.a. as of 23 April 2020 until the date of effective payment, corresponding to the training and education it had provided to the player during the course of a period that stretched between the season of his 12th birthday and the season of his 20th birthday.

11. On 26 May 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 FC Kairat should pay training compensation in the amount of EUR 158’602.74 to FC Chertanovo.

12. The FIFA administration requested the parties to provide their acceptance or rejection as to the proposal by no later than 10 June 2020, and, in case of rejection, to provide their positions by no later than 30 June 2020 in accordance with art. 16 par. 11 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (June 2020 edition), according to which an extension of a maximum of 15 days may be requested.

13. The Respondent rejected the proposal arguing the following:

- The Claimant had waived its rights to receive training compensation;

- The Claimant is not entitled to training compensation for any training that took place before January 2017, moment upon which, according to the Respondent. the player was registered with PFC SKA-Khabarovsk on a permanent basis and not on loan;

- The player was not a professional in the sense of the Regulations on the Status and Transfer of Players while he was registered with the Claimant as he was earning in or around EUR 220 per month with the latter.

14. The Respondent referred to the addendum to the player’s employment contract concluded between the Claimant and the player (cf. I. 5. above), and alleged that by means of such clause it had been effectively discharged, together with the player, from the payment of “any other compensation”, including training compensation.

15. In continuation, the Respondent maintained that the player had been permanently registered with PFC SKA-Khabarovsk between January 2017 and May 2018.

16. In particular, the Respondent stated that the Claimant status in Russia would not allow it to loan players in principle. Nevertheless, FC Kairat alleged that the Claimant had proceeded with a change of its status at a later stage in order to disguise the registration with PFC SKA-Khabarovsk as temporary in an attempt to unduly claim training compensation from FC Kairat.

17. In support of its allegations, the Respondent provided the following documents:

- A player passport issued by the FUR on 23 March 2020 according to which the player was registered with PFC SKA-Khabarovsk between 1 January 2017 and 21 May 2018, and

- An abstract of a post made on 22 February 2018 through PFC SKA-Khabarovsk’s social media channel Instagram where the latter is announcing the signing of the player.

18. In addition, the Respondent argued that the player could not be considered as a professional with the Claimant as he was earning in or around EUR 200 per month with the Claimant. Hence, from the Respondent’s point of view no training compensation was payable to FC Chertanovo. FC Kairat based its reasoning on the understanding that “under the FIFA RSTP, training compensation is only payable in respect of professional players (FIFA RSTP, Annex 4, Rule 2.1)”.

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 5 May 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 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 23 March 2020, the Single Judge analysed which 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 March 2020 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 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 to 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.

5. The Single Judge took note that the Claimant had requested the payment of EUR 173’668.54 plus 5 % interest p.a. as of 23 April 2020 as training compensation from the Respondent on the basis of the player’s registration as a professional with the latter on 23 March 2020, i.e. before the end of the season of his 23rd birthday arguing that it had trained the player between the season of his 12th birthday and the season of his 20th birthday.

6. Furthermore, the Single Judge duly noted that the Respondent, for its part, had rejected the claim of the Claimant alleging the following:

- The Claimant had waived its rights to training compensation;

- The Claimant is not entitled to training compensation for any training that took place before January 2017, when he was registered with PFC SKA-Khabarovsk on a permanent basis and not on loan as a professional;

- The player was not a professional in the sense of the Regulations on the Status and Transfer of Players with the Claimant as he was earning in or around EUR 200 per month with the latter .

7. With the aforementioned considerations in mind, the Single Judge turned his attention to the rules applicable to training compensation and recalled that, in accordance with art. 1 par. 1 of Annexe 4 in combination with art. 2 par. 1 lit. i) of Annexe 4 to the Regulations, training compensation is payable, as a general rule, to the former club for training incurred between the ages of 12 and 21, when a player is subsequently registered as a professional before the end of the season of the player’s 23rd birthday. The Single Judge further pointed out that in case of the subsequent registration of a player as a professional, in accordance with art. 3 par. 1 of Annexe 4 to the Regulations, the club with which the player is registered is responsible for paying training compensation within 30 days of registration only to the last club with which the player was previously registered (in accordance with the players’ career history as provided in the player passport) for the time he was effectively trained by said club.

8. The amount payable is calculated on a pro rata basis according to the period of training that the player spent with the former club.

9. Bearing in mind the above and to begin with, the Single Judge recalled that while it had remained undisputed between the parties that the player had signed his first professional contract on 1 January 2017,the Respondent had argued that the player had been registered on a permanent basis with PFC SKA-Khabarovsk.

10. Equally, the Single Judge remarked that, according to the Respondent, training compensation is only payable in the context of the registration of a player who is already a professional, and that the player was not a professional with the Claimant, thus no training compensation is payable.

11. In view of all of the aforementioned, the Single Judge considered that he had to first establish the accurate career history of the player.

12. In doing so, the Single Judge examined the following documents at his disposal:

- A player passport issued by the FUR on 29 April 2020 (cf. I. 1. above);

- An employment contract dated 16 September 2017 signed by FC Chertanovo and the player (cf. I. 2. above);

- An agreement concerning the loan of the player from FC Chertanovo to PFC SKA-Khabarovsk dated 20 February 2018 (cf. I. 3. above);

- A player passport issued by the FUR dated 23 March 2020 (cf. I. 17 above);

- A social media post made by PFC SKA-Khabarovsk on 22 February 2018 in which the signature of the player with the latter was announced.

13. To begin with and as to the registration of the player with PFC SKA-Khabarovsk, the Single Judge noted that two different player passports containing contradictory information were on file: one indicating that the player had been loaned to PFC SKA-Khabarovsk from FC Chertanovo between 22 February 2018 and 21 May 2018, and another one indicating that the player had been permanently registered with PFC SKA-Khabarovsk between 1 January 2017 and 21 May 2018.

14. In this context, the Single Judge referred to art. 12 par. 3 of the Procedural Rules and recalled that any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

15. In this respect, the Single Judge remarked that while the Claimant had provided a signed loan agreement dated 20 February 2018 allegedly concluded between FC Chertanovo and PFC SKA-Khabarovsk no evidence had been submitted by the Respondent in support of the allegation that the player would have been registered with PFC SKA-Khabarovsk prior to 22 February 2018, and that the player would have been registered on a permanent basis with the latter.

16. In view of the above, taking into account the documentation at his disposal and in particular the loan agreement provided by the Claimant as well as bearing in mind that the player passport provided by the Claimant seemed to have been issued later than the one provided by the

Respondent, it could be concluded that the player had been loaned to PFC SKA-Khabarovsk as from 22 February 2018 until 21 May 2018 and not transferred on a definitive basis as alleged by the Respondent.

17. Consequently, the Single Judge determined that it had to be also assumed the player had been effectively permanently registered with the Claimant as from 6 May 2011 until 21 February 2018, and as from 22 May 2018 until 12 March 2020.

18. Having established the aforementioned, the Single Judge turned his attention to allegation of FC Kairat in accordance with which the player could not be considered a professional, as he had not been earning more than EUR 200 per month.

19. In this regard, the Single Judge referred to art. 2 par. 2 of the Regulations and recalled that a professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs.

20. The Single Judge further recalled that in line with the established jurisprudence of the DRC, a player is considered a professional if he has signed a written contract with a club and is receiving a retribution (financial and/or in kind) for his footballing activity which is greater than the expenses he effectively incurs, even if his monthly salary is lower than the ones received by other football players within the same country.

21. Reverting to the matter at stake, the Single Judge remarked that the player was receiving the sum of EUR 200 from FC Chertanovo and that the Respondent considered such amount as being very low.

22. In this respect, the Single Judge underlined that according to the established jurisprudence of the DRC, the remuneration in question may well fall short of a living wage, but as long as it exceeds the expenses effectively incurred by the player, the salary criteria of art. 2 par. 2 of the Regulations is met.

23. Having noted that no documentary evidence had been provided by the Respondent in support of its allegation that the sum of EUR 200 would only cover the player’s expenses incurred in the practice of football with the Claimant, the Single Judge concluded that the salary criteria set out in art. 2 par. 2 of the Regulations was met.

24. Furthermore, the Single Judge observed that the second element contained in art. 2 par. 2 of the Regulations, i.e. the existence of a written contract, was too met.

25. In view of the above, the Single Judge determined that the player was a professional with FC Chertanovo as from 6 June 2018 (i.e. the starting date of the contract dated 16 September 2017; cf. I. 2. above) at the latest and up until his termination dated 12 March 2020.

26. In view of all the above, the Single Judge determined that in principle, the Claimant is entitled to receive training compensation for the registration of the player as a professional with the Respondent on 23 March 2020, and that the Claimant shall receive a compensation for the training and education that it provided the player between 6 May 2011 and 21 February 2018, and between 22 May 2018 and 12 March 2020.

27. However, the Single Judge recalled that, according to the Respondent, the Claimant had waived its rights to receive training compensation by means of an addendum to the employment contract of the player (cf. I. 5. above).

28. In view of the above, the Single Judge deemed that he had to assess whether a valid waiver had been validly concluded by the Claimant.

29. In doing so, the Single Judge referred to the jurisprudence of the DRC, in accordance with which the validity of a waiver is subject to a clear and unequivocal declaration by the party concerned and requires a clear language reflecting the party’s intention to renounce its rights. Equally, the Single Judge recalled that implied waivers are not recognized.

30. Taking into account the aforementioned, the Single Judge turned his attention to the wording included in the addendum to the employment contract and which the Respondent deemed being a waiver of the Claimant’s right to receive training compensation, and pointed out that the phrase mentioned by the Respondent had been clearly drafted in the context of a possible termination of contract by the player. Furthermore, the Single Judge was eager to emphasized that the document in question did not refer to training compensation.

31. Therefore, and in line with the consistent approach of the DRC in relation to waivers, the Single Judge concluded that FC Chertanovo had not waived its entitlement to training compensation.

32. As a result of all of the aforementioned, 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 of the Regulations and art. 2 par. 1 lit. i. and art. 3 par. 1 of Annexe 4 of the Regulations.

33. Having established the aforementioned, the Single Judge referred to art. 5 par. 1 and par. 2 of Annexe 4 to 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.

34. In this respect, the Single Judge recalled that the Respondent belonged to category III when the player was registered with it.

35. As a result, the Single Judge determined that the yearly amount to take into consideration when calculating the training compensation due to the Claimant in connection with the subsequent registration of the player as professional with the Respondent amounted to EUR 30’000 per year (i.e. yearly amount set out for UEFA training category III clubs) for the time he was trained with Claimant from the season of his 16th birthday onwards, and that the amount of EUR 10’000 (i.e. yearly amount set out for UEFA training category IV clubs) has be taken into account for the seasons between his 12th and 15th birthday (cf. art. 5 par. 3 of Annexe 4 to the Regulations).

36. Equally, the Single Judge acknowledged that the seasons in Russia did not have consistent start and end dates over the period of relevance.

37. Taking into account all of the aforementioned as well as his established jurisprudence in accordance with which football seasons in the context of a solidarity contribution or training compensation claims are counted either in calendar years or following the July to June of the following year pattern, the Single Judge concluded that the effective periods of time to be considered in the matter at stake corresponds to:

- Season of the player’s 12th birthday: as from 1 January 2012 until 31 December 2012, amounting to EUR 10’000;

- Season of the player’s 13th birthday: as from 1 January 2013 until 31 December 2013, amounting to EUR 10’000;

- Season of the player’s 14th birthday: as from 1 January 2014 until 31 December 2014, amounting to EUR 10’000;

- Season of the player’s 15th birthday: as from 1 January 2015 until 31 December 2015, amounting to EUR 10’000;

- Season of the player’s 16th birthday: as from 1 January 2016 until 31 December 2016, amounting to EUR 30’000;

- Season of the player’s 17th birthday: as from 1 January 2017 until 31 December 2017, amounting to EUR 30’000;

- Season of the player’s 18th birthday: as from 1 January 2018 until 21 February 2018 and as from 22 May 2018 until 31 December 2018, amounting to EUR 22’684.93;

- Season of the player’s 19th birthday: as from 1 January 2019 until 31 December 2019, amounting to EUR 30’000; and

- Season of the player’s 20th birthday: as from 1 January 2020 until 12 March 2020, amounting to EUR 5’917.81.

38. As a result, the Single Judge determined that the amount of EUR 158’602.74 corresponds to the training compensation payable to the Claimant for the training and education of the player as from 6 May 2011 until 21 February 2018, and as from 22 May 2018 until 12 March 2020.

39. Hence, the Single Judge decided that the Respondent has to pay the amount of EUR 158’602.74 to the Claimant.

40. Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of Annexe 4 to the Regulations, the Single Judge decided that the Respondent has to pay, in conformity with the longstanding practice of the DRC, interest of 5% p.a. over the amount payable as training compensation as of 23 April 2020 until the date of effective payment.

41. Lastly, the Single Judge referred to FIFA Circular 1720 of 11 June 2020, in which it is stipulated that for any claims lodged in front of the Dispute Resolution Chamber and/or the Players’ Status Committee before 10 June 2020, the maximum amount of the procedural costs shall be equivalent to any advance of costs paid.

42. Bearing in mind that in line with art. 17 par. 1 of the Procedural Rules, no advance of costs shall be payable for disputes concerning the distribution of solidarity contribution and/or training compensation, the Single Judge concluded that the present decision shall be free of procedural costs.

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

1. The claim of the Claimant, FC Chertanovo Moscow, is partially accepted.

2. The Respondent, FC Kairat, has to pay to the Claimant, the following amount:

- EUR 158,602.74 as training compensation plus 5% interest p.a. as from 23 April 2020 until the date of effective payment.

3. Any further claim lodged by the Claimant is rejected.

4. 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.

5. 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).

6. 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.

7. The decision is free of procedural costs (cf. FIFA Circular Nr. 1720 of 11 June 2020 and art. 17 of the Rules Governing the Procedure of the Players’ Status Committee and Dispute Resolution Chamber).

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).

CONTACT INFORMATION:

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