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 3 September 2020

Decision of the

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

passed on 3 September 2020,

regarding training compensation for the player LUIZ HENRIQUE BESERRA DOS SANTOS

BY:

Tomislav Kasalo (Croatia), Single Judge of the sub-committee

of the DRC

CLAIMANT:

EC Bahia, Brazil

RESPONDENT:

Moreirense FC, Portugal

I. FACTS OF THE CASE

1. According to the player’s passport issued by the Confederação Brasileira de Futebol (hereinafter: CBF), the player, LUIZ HENRIQUE BESERRA DOS SANTOS (hereinafter: the player), born on 19 April 1997, was registered as follows:

- the player was loaned by the Brazilian club, Nautico (hereinafter: Nautico or the former club), to the Brazilian club, EC Bahia, (hereinafter: the Claimant), as from 1 September 2018 until 31 December 2018;

- after the loan with the Claimant, the player returned to Nautico;

- the player was subsequently registered on a permanent basis with the Portuguese club, Moreirense FC (hereinafter: the Respondent) on 18 July 2019;

- the player was registered as a professional with all three clubs involved.

2. Pursuant to the information provided by the CBF, the sporting seasons in Brazil follows the calendar year, i.e. the seasons start on 1 January and end on 31 December each year.

3. According to the information contained in the Transfer Matching System (hereinafter: TMS), the above-mentioned passport was uploaded to TMS when the Respondent registered the player on 19 July 2019.

4. In addition, according to the information contained in the TMS, the Respondent belonged to the category II at the time the player was registered with it.

5. On 13 July 2020, the Claimant lodged a claim in front of FIFA requesting the payment of training compensation from the Respondent on the basis that the player, in July 2019, was transferred from the Brazilian club, Nautico, to the Respondent. In particular, the Claimant is claiming the amount of EUR 20,054.79 from the Respondent, plus 5% interest as of the due date.

6. In this context, the Claimant argued that the player was registered with the Claimant on a loan basis during the season of his 21st birthday. In addition, the Claimant referred, inter alia, to the fact that:

1) "The Player was trained and educated by the Claimant for 122 days at the season of his 21st birthday" ;

2) "...in July 2019, when the Player was already considered a professional (...), but before the end of the season of his 23rd birthday, he was internationally transferred from the Former Club to the Respondent" ;

3) "... a loan period and the time spent at the parent club (Former Club) have to be viewed as one entire timeframe (...) training compensation will also have to be paid to the loan club (the Claimant) for contributing to the Player’s training and education...".

7. For its part, the Respondent contested the Claimant’s request as it held, inter alia, that the player had already finished his formation at the moment of the registration with the Respondent and underlined that the player had “competed in the most important Brazilian championship, serving other teams than the Claimant”. In addition, in its opinion, the Claimant was not the player's last club before registering with the Respondent. As such, the Respondent deemed that "...compensation for training is not due, pursuant to the provisions of article 3, paragraph 1, of annex 4 to the FIFA RSTP" .

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 13 July 2020 and the decision passed on 3 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), said 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 (August 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 19 July 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 which 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 CBF, the player, born on 19 April 1997, was registered with the Claimant on a loan basis as from 1 September 2018 until 31 December 2018. Equally, the Single Judge observed that after the loan with the Claimant had expired, the player returned to his club of origin, Nautico, i.e. the club with which the player was still contractually bound. Thereafter, in July 2019, the player was internationally transferred from Nautico to the Respondent on a definitive basis, the registration having occurred on 19 July 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 20,054.79 in view of the aforementioned registration of the player with the Respondent, plus 5% interest as of the due date.

7. Equally, the Single Judge noted that the Respondent rejected the claim of the Claimant, arguing that the Claimant is not the player’s former club in the sense of art. 3 par. 1 of Annexe 4 of the Regulations. In addition, the Respondent also stated that the player had already finished his formation at the moment of the registration with the Respondent.

8. At this point, the Single Judge recalled the Respondent’s aforementioned allegation deeming that the player had already finished his formation at the moment of the registration with the Respondent which would, as such, justify that no payment of training compensation was due in accordance with the Regulations.

9. In this regard, referring to art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Single Judge took into account that the Respondent failed to present documentary evidence in support of its allegation that the player had already finished his formation at the moment of the registration with the Respondent. Consequently, the Single Judge decided that the Respondent’s allegation in this regard cannot be accepted.

10. Having established the above, the Single Judge highlighted that, in this context, the main issue in the present matter is whether or not a club that employed a professional player 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.

11. In consideration of the above-mentioned issue, the Single Judge, and hereby referring to the rules applicable to training compensation, started by stating 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 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.

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

13. Following the above, the Single 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 Dispute Resolution Chamber’s well-established jurisprudence that all clubs which have actually 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.

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

15. In this respect and for the sake of good order, the Single Judge deemed it essential to emphasise that, as to the liability to pay training compensation, the analogy established in art. 10 par. 1 of the Regulations could not be extended to the case in which a player was loaned to another club and thus is not being definitively transferred to a new club. In other words, the transfer of a player from the club of origin to the club that accepts the player on loan as well as the return of the player from the club that accepted him on loan to the club of origin do not constitute a subsequent transfer in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations. The Single Judge was eager to point out that it could not have been the intention of the legislator of the relevant regulatory provision (art. 10 par. 1 of the Regulations) to trigger the consequences of art. 3 par. 1 of Annexe 4 of the Regulations on the occasion of a transfer on a loan basis and, thus, potentially depriving the loan of its essential flexibility and function of providing young players the opportunity to gain practical experience in another club in order to develop in a positive way, personally and, eventually, also for the benefit of the player’s new club.

16. Following the above, the Single Judge pointed out that the obligation to pay training compensation thus arises in case a player is definitively transferred from one club to another club belonging to a different association, but not when he is temporarily transferred to another club while still being contractually bound to his club of origin (yet, with the effects of the relevant contract being temporarily suspended), such as a loan. Hence, the relevant entitlement can only be claimed towards a new club that acquires the services of a player on a definitive and permanent basis subject to the fulfilment of the prerequisites established in art. 20 and Annexe 4 of the Regulations.

17. As to the argument of the Respondent that the Claimant is not the former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, the Single Judge 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 Single Judge acknowledged that the Claimant was not the player’s former club stricto sensu, however, the Single Judge pointed out that, within the framework of loans, the period of time that the player was registered with Nautico and the period of time that the player was registered with the Claimant 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 contributed to the training and education of players.

18. Bearing in mind the foregoing, the Single Judge 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 players on a temporary basis.

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 122 days of the 2018 season, i.e. as from 1 September 2018 until 31 December 2018.

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 II.

22. Consequently, the Single Judge decided that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 20,054.79.

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 19 August 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. However, in this respect, the Single Judge referred to art. 18 par. 1. i. of the Procedural Rules according to which, for any claim lodged between 10 June 2020 and 31 December 2020 which has yet to be decided, no procedural costs shall be levied.

26. 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.

27. 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.

28. 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.

29. 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, EC Bahia, is accepted.

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

- EUR 20,054.79 as training compensation plus 5% interest p.a. as from 19 August 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 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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