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 20 August 2020

Decision of

the Single Judge of the sub-committee of the Dispute Resolution Chamber

passed on 20 August 2020,

regarding training compensation for the the player Ibrahima NDIAYE

BY:

Geoff Thompson (England),

CLAIMANT:

FC ERGOTELIS, Greece,

RESPONDENT:

FC LUZERN, Switzerland,

I. FACTS OF THE CASE

1. According to the player passport issued by the Hellenic Football Association the player, Ibrahima Ndiaye (hereinafter: player), born on 6 July 1988, was registered with the Greek club, Ergotelis FC (hereinafter: Claimant), as from 13 September 2017 until 29 January 2018, i.e. during 139 days of the season of the player’s 19th birthday. The player passport indicated that the player was registered with the Claimant as a professional, on loan from the Egyptian club, Wadi Degla.

2. The football seasons in Greece started on 1 July and ended on 31 June of the following year during the period of time the player was registered with the Claimant.

3. The Hellenic Football Association confirmed that the Claimant belonged to the club category II during the period of time the player was registered with the Claimant.

4. According to information contained in the Transfer Matching System (TMS), on 6 August 2019, the player was registered with the Swiss club, FC Luzern (hereinafter: Respondent), after a permanent transfer from Wadi Degla.

5. On 9 June 2020, the Claimant lodged a claim in front of FIFA claiming the payment of training compensation from the Respondent on the basis that player was transferred between clubs of two different associations before the end of the season of the player’s 23rd birthday and that the player was on loan from the former club. In particular, the Claimant claimed the amount of EUR 22,849 plus 5% annual interest as from due date from the Respondent.

6. In reply to the Claimant’s claim, the Respondent rejected the request of the Claimant arguing that the latter is not entitled to training compensation at the matter at stake since it was not the former club and due to the fact that it agreed with Wadi Degla that training compensation was included in the transfer agreement. The Respondent maintained that the Claimant should claim training compensation from Wadi Degla, if at all.

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 (DRC) Judge (hereinafter also referred to as: Judge” analyzed whether he was competent to deal with the matter at hand. In this respect, it took note that, according to art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: “the Procedural Rules”), said edition of the Procedural Rules is applicable to the matter at stake.

2. Subsequently, the Judge referred to art. 3 par. 1 and 3 of the Procedural Rules and confirmed that in accordance with art. 3 of Annexe 6 of in conjunction with art. 24 par. 1 and 2 and art 22 lit. d) of the Regulations on the Status and Transfer of Players, he is competent to deal with the dispute at stake, which concerns a dispute relating to training compensation between clubs belonging to different associations.

3. Furthermore, the Judge analyzed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations, and considering that the player was registered with the Respondent on 6 August 2019, the June 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

4. The competence of the Judge and the applicable regulations having been established, the Judge entered into the substance of the matter. In this respect, the Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Judge emphasized that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Judge recalled that the player, born on 6 July 1988, was registered with the Claimant as from 13 September 2017 until 29 January 2018, on loan from the former club, and that, on 9 June 2020, the Claimant lodged a claim against the Respondent, requesting the payment of training compensation due to the player’s registration with the Respondent.

6. In continuation, the Judge took note that the Claimant asserted that it was entitled to receive training compensation from the Respondent in the amount of EUR 22,849 plus interest, since the player was transferred to a club belonging to a different association before the end of the season of the player’s 23rd birthday.

7. Moreover, the Judge acknowledged that the Respondent rejected the claim, pointed out that the claimant was not the former club and that it had agreed with the former club that no training compensation was payable.

8. In this respect, and hereby referring to the rules applicable to training compensation, the Judge stated that, as established in art. 1 par. 1 in combination with art. 2 par. 1 lit. ii. 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 professional is transferred between clubs of two different Associations before the end of the season of the player’s 23rd birthday.

9. In this context, the Chamber highlighted that the first issue to be addressed in the present matter is whether or not a club that accepted a professional on loan is entitled to receive training compensation when, after the expiry of the loan, the professional returns to his club of origin, and, thereafter, is transferred from the club of origin to a club belonging to another association before the end of the season of the player’s 23rd birthday.

10. In consideration of the above-mentioned issue, the Judge, and hereby referring to the rules applicable to training compensation, reiterated that, as established in art. 20 of the Regulations as well as in art. 1 par. 1 of Annexe 4 in combination with art. 2 of Annexe 4 of the Regulations, training compensation is payable, as a general rule, for the 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. In case the latter occurs, art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations sets forth that training compensation will only be owed to the player’s former club for the time he was effectively trained by that club.

11. Furthermore, according to art. 10 par. 1 of the Regulations, professionals may be loaned to another club on the basis of a written agreement between the professional and the clubs concerned. Moreover, the last sentence of said provision stipulates that any such loan is subject to the same rules as apply to the transfer of players, including the provisions on training compensation and the solidarity mechanism.

12. Following the above, the Judge stressed that one of the aims of the last sentence of art. 10 par. 1 of the Regulations is to ensure that training clubs which register a player on a loan basis also benefit from the solidarity mechanism and training compensation, provided that the relevant prerequisites in the pertinent provisions of the Regulations are fulfilled. This approach is also in line with the Chamber’s well-established jurisprudence that all clubs which have in fact contributed to the training and education of a player as from the age of 12 are, in principle, entitled to training compensation for the timeframe that the player was effectively trained by them.

13. In other words, the Chamber emphasised that the nature of the player’s registration with a club claiming training compensation, i.e. on a definite or on a temporary basis, is in fact irrelevant with respect to the question as to whether such club would be entitled to receive training compensation for the period of time that the player was effectively trained by that club.

14. Having said that, the Judge turned its attention to the argument of the Respondent that the Claimant is not the former club in the sense of the Regulations. In this respect, the Chamber wished to recall that art. 3 par. 1 sent. 3 of Annexe 4 stipulates that “In the case of subsequent transfers of the professional, training compensation will only be owed to his former club for the time he was effectively trained by that club”. In this context, the Judge acknowledged that the Claimant was not the player’s former club stricto sensu, however, the Judge pointed out that, within the framework of loans and for the purposes of the rules governing training compensation, the period of time that the player was registered with Wadi Degla and the period of time that the player was registered with the Claimant (and any other club) on loan, should be considered as one entire timeframe. Any other interpretation would lead to the situation in which clubs accepting a player on loan would never be entitled to receive training compensation, even if they contribute to the training and education of players.

15. Bearing in mind the foregoing, the Chamber deemed that the Respondent’s interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations would clearly contravene the intention of the legislator of the Regulations according to which all training clubs shall, in principle, be rewarded for their efforts invested in training young players, including those clubs that have accepted a player on a temporary basis.

16. Subsequently, the Judge turned his attention to the argument of the Respondent that it agreed with the former club that no training compensation would be due. In this regard, the Judge had to reject said argument since the Claimant itself did not waive its entitlement to training compensation, contrary to the former club.

17. 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.

18. 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 Judge concluded that the effective period of time to be considered in the matter at stake corresponds to 122 days of the 2018 season, i.e. as from 1 September 2018 until 31 December 2018.

19. Furthermore, the 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 II.

20. Consequently, the Judge decided that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 22,849.

21. 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 4 September 2019, until the date of effective payment.

22. 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.

23. However, in this respect, the Single Judge referred to art. 18 par. 1. i. and ii. of the Procedural Rules and concluded that no procedural costs shall be levied.

24. 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.

25. 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.

26. 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.

27. 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 DRC

1. The claim of the Claimant, FC Ergotelis, is accepted.

2. The Respondent, FC Luzern, has to pay to the CLAIMANT, the following amount:

- EUR 22,849 as the training compensation plus 5% interest p.a. as from 4 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 DRC:

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).

CONTACT INFORMATION:

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