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 11 December 2020
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 11 December 2020
regarding training compensation for the player Cheikh-Sidya Diaby
BY:
Omar Ongaro (Italy), Single Judge of the sub-committee of the Dispute Resolution Chamber
CLAIMANT:
JEUNESSE AUBERVILLIERS A.S., France
RESPONDENT:
West Bromwich Albion FC, England
I. FACTS OF THE CASE
Player: Cheikh-Sidya DIABY
Date of birth: 7 March 2000
Player passport: issued by the Fédération Française de Football (“FFF”) on an unknown date
Season
Birthday
Club
Registration
Status
T. Category
2011-2012
12th
Claimant
22.07.2011 – 30.06.2012
Amateur
IV
2012-2013
13th
Claimant
10.07.2012 – 30.06.2013
Amateur
IV
2013-2014
14th
Claimant
10.07.2013 – 30.06.2014
Amateur
IV
2014-2015
15th
Claimant
01.07.2014 – 30.06.2015
Amateur
IV
2015-2016
16th
Claimant
01.07.2015 – 30.06.2016
Amateur
IV
2016-2017
17th
Le Havre AC
11.07.2016 – 30.06.2017
Amateur
I
2017-2018
18th
Le Havre AC
28.07.2017 – 30.06.2018
Amateur
I
2018-2019
19th
Le Havre AC
05.07.2018 – 30.06.2019
Amateur
I
2019-2020
20th
West Bromwich Albion FC
ITC issued to FA on 31.01.2020
Professional
I
Sporting season: 1 July to 30 June (France)
Transfer:
a) First transfer instruction:
On 17 October 2019, a first transfer instruction for the player from Le Havre AC (“Former club”) to West Bromwich Albion FC (“Respondent”) was entered in the Transfer Matching System (TMS): “the contract with the former club has expired on 30 June 2019” was indicated as reason for the termination of the contract between the former club and the player.
In the context of the same transfer instruction a document dated 19 July 2019 was uploaded in TMS which inter alia indicated that the “training convention” between the player terminated on 30 June 2019 and that the former club had waived its right to training compensation from the player’s new club.
On 25 October 2019, the transfer instruction was cancelled upon the FFF’s request because the player was registered as an amateur with the former club during the 2018-2019 season.
b) second transfer instruction:
On 31 January 2020 the player was transferred from Le Havre AC (France) to West Bromwich Albion FC (England)
Claimant club: JEUNESSE AUBERVILLIERS A.S. (France)
UEFA, category IV (EUR 10,000 per year)
Respondent club: West Bromwich Albion FC (England)
UEFA, category I (EUR 90,000 per year)
Claim and Response:
1. On 9 September 2020, the Claimant requested EUR 90,000 as training compensation based on the player’s first registration as a professional with the Respondent on 31 January 2020, before the end of his 23rd birthday season.
2. In its calculation, the Claimant took into consideration the training costs established in the training category IV for the complete seasons of the player's 12th birthday until the end of the season of the player's 15th birthday (4 x EUR 10,000).
3. The Claimant considered the average of its and the Respondent’s categories for the complete season of the player’s 16th birthday, i.e. EUR 50,000 (total amount claimed of EUR 90,000).
4. On 25 September 2020, the FIFA administration made a proposal to the parties to the settle the matter suggesting that the Respondent should pay the Claimant the sum of EUR 88,958.99 as training compensation, plus 5% interests p.a. as from 2 March 2020.
5. The proposal was accepted by the Claimant and rejected by the Respondent.
6. On 23 October 2020, the Respondent contested the Claimant’s entitlement to receive training compensation for the player arguing that the player was already a professional player whilst he was registered at the former club and therefore the transfer of the latter was a “subsequent transfer” under art. 3 par. 1 of Annexe 4 of the RSTP.
7. The Respondent pointed out that the player had a written contract with the former club and that he was paid for his football activity an amount in excess of the expenses he effectively incurred in accordance with the wording of art. 2 par. 2 of the RSTP.
8. The Respondent referred to the following documentation:
- a copy of a “Contrat d’apprentissage” (Scholarship agreement) concluded between the former club and the player on 3 July 2018 and valid as from 1 July 2018 until 30 June 2019 and which provided for a monthly gross salary of EUR 614.37. The document is signed by the player and the former club in accordance with the wording or art. 2 par. 2 of the RSTP;
- several payment slips of the player for the period July 2018-June 2019 which indicated an increased monthly gross salary of EUR 623.71 as from January 2019, an accommodation monthly allowance of EUR 400 and eight bonus payments amounting to a total of EUR 1,570;
- the bank statements of the player for the 2018-2019 period which provided for a total income of EUR 13,770.80 (i.e. an average of EUR 1,147.57 a month), paid by the former club as a one monthly transaction referenced as “salary”;
- the player’s “witness statement” dated 22 October 2020 by means of which the player held inter alia that, in addition to his salary, the former club paid him bonuses and an accommodation allowance of EUR 400 per month. The player added that overall he had received the total amount of EUR 13,770 by the former club and that the expenses in which he had incurred whilst at the former club in the 2018-2019 season amounted EUR 300 a month.
II. LEGAL CONSIDERATIONS
Applicable law: RSTP: January 2020 edition.
Procedural Rules: June 2020 edition.
Jurisdiction: Yes, uncontested
Admissible: Yes, uncontested
Decision:
9. The claim of the Claimant is based on the first registration of the player as professional with the Respondent.
10. The Respondent contested the claim arguing that the player had already been a professional player with the former club.
11. Art. 2 par. 2 of the RSTP provides 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. All other players are considered to be amateurs.”
12. According to the well-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 the monthly salary of the player is of a relatively low amount in comparison to salaries received by other football players within the same country.
13. CAS confirmed that the remuneration of a player constitutes the decisive factor in determining his status and not the legal nature or the designation of the contract. The classification of a player made by the association of his club is not decisive to determine the status of a player.
14. In casu, the player had a written contract with the former club.
15. In accordance with the documentation on file, the player received from the former club the amount of EUR 13,770.80 for the period he was registered with it, i.e. the season of his 19th birthday season. Said amount has been paid on a monthly basis and was referenced to by the former club as a “salary”, i.e. equaling to an average of EUR 1,147.57 a month.
16. In addition, in light of the “witness statement” of the player, the following can be assumed:
- a second division club such as the former club, provides in principle the necessary training facilities/material to its players;
- it is assumed that the former club feeds its players during/after training sessions and home/away matches;
- the former club ensures in principle its players travel/transportation costs linked to matches and eventually training sessions.
17. In view of all of the aforementioned it can be concluded that the player was earning with the former club more than he needed to cover the expenses effectively incurred.
18. In addition and in line with the transfer instruction entered in TMS for the first transfer of the player, it seems like the former club and the Respondent intended to transfer the player as a professional.
19. In view of all of the aforementioned, it can be concluded that the player was already a professional when he was registered with the former club and therefore his transfer to the Respondent is not a first registration of a professional player in the sense of art. 3 par. 1 of Annexe 4 of the RSTP.
20. According to art. 3 par. 1 of Annexe 4 of the RSTP in the case of a subsequent transfer of a professional player training compensation is only due to the former club of that player which in casu is Le Havre AC.
21. As a result, the Claimant is not entitled to receive training compensation from the Respondent.
22. In conclusion, the claim of the Claimant is rejected.
23. No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
DECISION
1. The claim of the Claimant, JEUNESSE AUBERVILLIERS A.S., is rejected.
2. No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
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:
Pursuant to article 58 paragraph 1 of the FIFA Statutes, this decision may be appealed before the Court of Arbitration for Sport within 21 days of notification.
NOTE RELATED TO 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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | chhelpdesk@fifa.org | T: +41 (0)43 222 7777