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 5 August 2020

Decision of the

Dispute Resolution Chamber

passed on 5 August 2020,

in the following composition:

Clifford J. Hendel (USA / France) Chairman, Alexandra Gómez Bruinewoud (Uruguay / the Netherlands) member, Joel Talavera (Paraguay) member

CLAIMANT:

MFK KARVINA A.S., Czech Republic

RESPONDENT:

PIAST GLIWICE, Poland

regarding training compensation for the player Remigiusz BORKALA

I. FACTS OF THE CASE

1. According to the player’s passport issued by the Football Association of Czech Republic (hereinafter: FACR), the player, Remigiusz Borkala, (hereinafter: the player), born on 28 February 1999, was registered with the following clubs:

2. Pursuant to the information provided by the FACR, the sporting seasons in Czech Republic, during the relevant period, started and ended on the following dates:

Seasons

Starting dates

Ending dates

2013 / 2014

01.07.2013

30.06.2014

2014 / 2015

01.07.2014

30.06.2015

2015 / 2016

01.07.2015

30.06.2016

2016 / 2017

01.07.2016

30.06.2017

3. According to the information contained in the TMS, the Respondent belonged to the category 3 of UEFA at the time the player was registered with the Respondent.

4. On 19 March 2019, the Claimant lodged a claim in front of FIFA claiming the payment of training compensation from the Respondent in the amount of USD 73,333, plus interests, on the basis of the first registration of the player as a professional –with the Respondent– in 2018 (on an unspecified date), but –in any case– before the end of the player’s 23rd birthday.

5. In this context, the Claimant explained that the player was registered with the Claimant as from 14 March 2014 until 11 October 2016, i.e. during the seasons of the player’s 15th (partially), 16th, 17th and 18th (partially) birthdays. Furthermore, the Claimant implied that, insofar the player was registered with the Claimant as an amateur, the parties did not conclude any written contract.

6. By means of their letter dated 1 July 2016, the parents of the player (the player was a minor at the relevant time) informed the Claimant that the player would stop rendering services for the Claimant as from said date.

7. Nevertheless, according to the Claimant, the player continued training and participating in games with the Claimant during the month of July 2016. In this regard, the Claimant argued that the player was a key player within its team and that, therefore, it offered the player a contract on 26 July 2016, which the player turned down.

Clubs

Registration dates

Status

Type

KP Beskid 09 Szkoczow

(not specified) – 13.03.2014

Amateur

Permanent

MKF Karvina A.S.

14.03.2014 – 11.10.2016

Amateur

Permanent

Piast Gliwice

12.10.2016 – (not specified)

Amateur - Professional

Permanent

8. In this context, the Claimant held that it complied with the requirements set in art. 6.3 of Annexe 4 of the Regulations on the Status and Transfer of Players (hereinafter: the RSTP), insofar, from the date of notification of the written offer, i.e. 26 July 2016, until the date on which the player was registered with the Respondent, i.e. 12 October 2016, more than 60 days elapsed.

9. In its reply to the claim, the Respondent rejected the proposal made by the FIFA administration, as well as the arguments brought forward by the Claimant. In particular, the Respondent argued that the Claimant did not comply with the requirements of art. 6.3 of Annexe 4 of the RSTP. In this respect, the Respondent maintained that, since the parents of the player communicated to the Claimant that the player would no longer play for the Claimant as from 1 July 2016, the parties were no longer professionally bound as from said date.

10. Thus, according to the Respondent, since the Claimant only offered a contract to the player on 26 July 2016, once the player was no longer a member of the team of the Claimant, the condition established in art. 6.3 of Annexe 4 of the RSTP was not met and, consequently, the Claimant is not entitled to receive training compensation from the Respondent.

11. Moreover, the Respondent argued that the Claimant acted in bad faith, only offering a contract to the player once the Claimant found out about the interest of the Respondent in the player.

12. In addition to the above, the Respondent provided a declaration allegedly issued by the player, whereby the latter confirms not having played in any games for the Claimant during the month of July 2016, since he signed an “amateur card” with the Respondent on 1 July 2016, meaning that he was already professionally engaged with the Respondent as from said date, after the notification to the Claimant of the unilateral termination of their professional relationship.

13. In view of the above, the Respondent held that the Claimant is not entitled to receive any amount as training compensation from the Respondent.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 19 March 2019 and the decision was passed on 5 August 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 June 2020 edition of the Procedural Rules is applicable to the matter at hand (cf. article 21 of the Procedural Rules).

2. Subsequently, the DRC 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 (June 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 DRC 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 as a professional in 2018, the DRC 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 2018 edition of the Regulations is applicable to the matter at hand as to the substance.

4. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. The DRC started by acknowledging the above-mentioned facts of the case as well as the documentation on file. However, the DRC emphasized that, in the following considerations, it will refer only to the facts, arguments and documentary evidence that he considered pertinent for the assessment of the matter at hand. In particular, the Chamber 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 DRC recalled that, in accordance with the player’s passport issued by the FACR, the player, born on 28 February 1999, was registered with the Claimant as from 14 March 2014 until 11 October 2016. Equally, the Chamber observed that, on 12 October 2016, the player was registered with the Respondent, as an amateur, and that –later on– in 2018 the status of the player changed from amateur to professional within the club of the Respondent.

6. In continuation, the Dispute Resolution Chamber took note that the Claimant asserted that it was entitled to receive training compensation from the Respondent in the amount of USD 73,333 upon the transfer and registration of the player with the Respondent.

7. Equally, the DRC noted that the Respondent rejected the claim of the Claimant, arguing that the Respondent failed to comply with the provision of the second sentence of art. 6.3 of Annexe 4 of the Regulations. In this regard, the Respondent explained that, insofar the parents of the player informed the Claimant that the player would stop rendering services for the Claimant as from 1 July 2016, and the Claimant only offered the player a contract on 26 July 2016, the requirement set in art. 6.3 of Annexe 4 of the Regulations was not met and, hence, the Claimant is not entitled to receive training compensation from the Respondent.

8. In this context, the DRC analysed all the information provided by the parties, as well as the documentation contained in TMS (ex. art. 6 par. 3 of Annexe 3 of the Regulations), and noted that it remained undisputed between the parties that the player was registered with the Respondent as an amateur on 12 October 2016 and that, during the year 2018, the player acquired the status of professional with the Respondent, being said registration the first registration of the player as a professional.

9. Furthermore, the DRC referred to art. 6 of Annexe 4 of the RSTP, which provides the special provisions for the EU / EEA, whose par. 3 reads as follows: “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. This provision is without prejudice to the right to training compensation of player’s previous club(s)”.

10. In this regard, the DRC emphasized that the requirement contained in the aforementioned article, i.e. the obligation of the new club to offer a contract in writing to the player 60 days before the expiry of his current contract, does not apply when the player is registered with the new club as an amateur, which occurred in the present case. In this respect, the Chamber preliminary explained that, since the player was registered as an amateur with the Claimant and no written contract was concluded between the said parties, the dies ad quem as to the deadline of 60 days, for the purpose of application of the second sentence of art. 6.3 of Annexe 4 of the RSTP, could not be calculated. Moreover, the DRC highlighted that the player was registered with the Respondent on 14 October 2016, but as an amateur, and that it was not until 2018 that the player acquired the status of professional with the club of the Respondent. Hence –continued the Chamber–, it is not reasonable to demand from the former club a higher bar than the one of the new club, i.e. to offer the player a contract in writing and register him as a professional if the new club was not willing to offer the player a contract and register him as a professional at the moment the player was firstly registered with it. In view of the above, the DRC determined that the present scenario, where the player registers as an amateur with the new club and later on registers as a professional with the same club, constitutes an exceptional scenario to which the requirement, on the Claimant, of offering a contract to the player, does not apply. Nevertheless, the Chamber pointed out that, in order to be entitled to training compensation, the former club shall justify that it is entitled to such compensation, ex. art. 6.3 of Annexe 4 of the RSTP (firs sentence).

11. The above being clarified, the Chamber noted that, albeit firstly registered with the Respondent as an amateur, during the course of the year 2018, i.e. in the season of the player's 19th birthday, the player acquired the status of professional within the club of the Respondent, being the said registration the first registration of the player as a professional. Thus, upon the said registration, the payment of training compensation was triggered, by virtue of application of 20 of the RSTP in connection with Annexe 4 thereof.

12. Moreover, as to the argument brought forward by the Respondent in connection with the date of termination of the relationship between the Claimant and the player, although the parent's of the player communicated to the club that the player would stop rendering services for the Claimant as from 1 July 2016, the Claimant provided sufficient evidence as to demonstrate that the player continued to play for the Claimant during July 2016. In particular, the Claimant provided an attendance sheet where it appears that the player participated in several matches during the month of July 2016; event which, combined to the fact that the player remained registered with the association of the Claimant until 11 October 2016, are to indicated that the player continued to render his services to the Claimant beyond the month of June 2016.

13. In addition, it must be taken into consideration that, in July 2016, the Claimant offered the player a professional contract, whereas the Respondent only registered the player as an amateur in October 2016 and it was not until 2018 that the player acquired the status of professional with the Respondent.

14. In view of all the above, the DRC unanimously concluded that the Claimant was indeed interested in the player's services and sufficiently justified its entitlement to training compensation upon the first registration of the player as a professional with the Respondent.

15. Consequently, taking into account the above-mentioned considerations, the DRC 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.

16. 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 DRC concluded that the effective period of time to be considered in the matter at stake corresponds to: 109 days of the 2013/2014 season, the entire 2014/2015 and 2015/2016 seasons, and 103 days of the 2016/2017 season.

17. Furthermore, the Chamber 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 DRC took into account that according to the documentation on file, the Respondent belonged to the club category 3 of UEFA.

18. Consequently, the DRC decided that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 71,452.05.

19. Moreover, as to the Claimant’s request of default interest, the DRC observed that there is no specific date on file regarding the date on which the status of the player changed from amateur to professional with the Respondent. Hence, the Chamber deemed it reasonable that no default interest shall be granted to the Claimant.

20. In continuation, the DRC noted that, when the present claim was lodged, the 2018 edition of the Procedural Rules was in force, and that, according to art. 18 par. 1 of the 2018 edition of the Procedural Rules, for 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.

21. In this respect, the DRC determined that the Claimant’s claim is partially accepted and decided that the costs of the present proceedings were to be assumed by the Respondent.

22. The Chamber further observed the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which the maximum amount of procedural costs levied for any claim lodged prior to 10 June 2020, which was yet to be decided at the time of such temporary amendment, shall be equivalent to any advance of costs paid.

23. Accordingly, the DRC observed that the Claimant paid the amount of CHF 2,000 as advance of costs, and therefore decided that the maximum amount of costs of the proceedings corresponds to CHF 2,000.

24. In this context, the Chamber determined that the Respondent shall pay the amount of CHF 2,000 in order to cover the costs of the present proceedings.

25. Subsequently, the DRC reverted to art. 17 par. 5 in combination with art. 18 of the Procedural Rules, and observed that the advance of costs paid by a party shall be duly considered in the decision regarding costs. Therefore, given that the Respondent is responsible to pay the amount of CHF 2,000, the DRC decided that the amount paid by the Claimant as advance of costs, i.e. CHF 2,000, shall be reimbursed to the latter by FIFA.

26. Thereafter, taking into account the consideration under number II./3. above, the DRC 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 Chamber 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 DRC 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 DRC 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 DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, MFK Karvina, is partially accepted.

2. The Respondent, Piast Gliwice, has to pay to the Claimant, EUR 71,452.05.

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.

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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