F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution/ contributo di solidarietà – (2016-2017) – fifa.com – atto non ufficiale – Decision 8 November 2016

Decision of the

Single Judge of the sub-committee of the Dispute Resolution Chamber (DRC)

passed on 8 November 2016,

by Mr Wouter Lambrecht (Belgium),

Single Judge of the sub-committee of the DRC,

on the claim presented by the club,

Club A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding training compensation in

connection the player Player E

I. Facts of the case

1. According to the player passport issued by the Football Federation of Country B the player, Player E, born on 21 April 1994, was registered with its affiliated clubs as a professional as follows:

Club Registration dates Registration basis

Club F

as from 23 August 2013 until 23 January 2014

Permanent

Club A

(hereinafter: Claimant)

as from 24 January 2014 until 30 June 2014

On loan from Club F

Club F

as from 1 July 2014 until 9 July 2014

Permanent

2. The football season in Country B runs from 1 July to 30 June of the following year.

3. Also according to the player passport issued by the Football Federation of Country B, the Claimant belonged to the category 2 (indicative amount of EUR 60,000 per year within UEFA) at the time the player was registered with it.

4. According to the information contained in the Transfer Matching System (TMS), the player was registered with the Club of Country D, Club C (hereinafter: the Respondent), as a professional on 31 July 2014. According to the International Transfer Certificate (ITC) available in TMS, Club F was the player’s former club.

5. Also according to TMS, the Respondent belonged to the category 1 (indicative amount of EUR 90,000 per year within UEFA) at the time the player was registered with it.

6. On 13 June 2016, the Claimant contacted FIFA asking for its proportion of training compensation from the Respondent in connection with the subsequent professional registration of the player with the Club of Country D. In particular, the Claimant requested EUR 25,973.

7. In spite of having been invited to do, the Respondent did not reply to the claim of the Claimant.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber (hereinafter also referred to as 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 June 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 1 and 2 and art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2016) he is competent to deal with the matter at stake relating to training compensation between clubs belonging to different associations.

3. Furthermore, 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 on the Status and Transfer of Players (editions 2012, 2014, 2015 and 2016), and considering that the player was registered with the Respondent on 31 July 2014, the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. His competence and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and documentation submitted by the parties. However, he 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.

5. In this regard, the Single Judge recalled that the player, born on 21 April 1994, was registered on a loan basis with the Claimant for the period between 24 January 2014 and 30 June 2014. Equally, from the information available in TMS, he observed that after the loan with the Claimant had expired, the player returned to his club of origin, Club F, i.e. the club with which the player was still contractually bound. Thereafter, on 31 July 2014, the player was internationally transferred from Club F to the Respondent on a definitive basis.

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 25,973.

7. Equally, the Single Judge noted that, although having been invited to do so by FIFA, the Respondent failed to provide its position to the Claimant’s claim. Consequently, the Single Judge deemed that the Respondent renounced to its right to defence and accepted the allegations of the Claimant.

8. As a consequence of the aforementioned consideration, the Single Judge established that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documents already on file as well as upon the information contained in the TMS (cf. art. 6 par. 3 of Annexe 3 of the Regulations).

9. In this context, the Single Judge highlighted that the main issue 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 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.

11. Furthermore, the Single Judge referred to art. 10 par. 1 of the Regulations, according to which 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 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 well-established jurisprudence of the Dispute Resolution Chamber (DRC), according to which 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 Single Judge 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. 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 players were loaned to other clubs and, thus, are 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.

15. 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.

16. In this regard, 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, he pointed out that, within the framework of loans, the period of time that the player was registered with Club F 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 contribute to the training and education of players.

17. Bearing in mind the foregoing, the Single Judge deemed that any other 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.

18. Moreover, the Single Judge further referred to art. 6 of Annexe 4 of the Regulations, which contains special provisions regarding players moving from one association to another association inside the territory of the European Union (EU)/European Economic Area (EEA). In this regard, he indicated that, since the player moved from one association to another association inside the territory of the EU, said article is applicable.

Hence, the Single Judge concluded that art. 6 par. 3 of Annexe 4 of the Regulations applies in the case at hand as lex specialis.

19. However, in this regard, the Single Judge pointed out that, in casu, a possible obligation to offer the player a contract in compliance with art. 6 par. 3 of Annexe 4 of the Regulations would in principle lie with the former club of the player, i.e. Club F, and not with the Claimant. As stated in art. 6 par. 3 of Annexe 4 of the Regulations, said provision is without prejudice to the right of training compensation of the player’s previous club(s).

20. Consequently, taking into account the above-mentioned considerations, the Single Judge 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.

21. 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 5 months of the season of the player’s 20th birthday.

22. Furthermore, the Single Judge referred 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.

23. Equally, the Single Judge referred to art. 6 par. 1a) of Annexe 4 of the Regulations which contains special provisions in case a player moves from a lower to a higher category club or from a higher to a lower category club within the territory of the EU/EEA. In this respect, the Single Judge took into account that according to the documentation on file, the Claimant belonged to the category 2 during the season 2013/2014 and that the Respondent belonged to the category 1 at the time the player was registered with said club. Therefore, in accordance with art. 6 par. 1a) of Annexe 4 of the regulations, the calculation of the relevant training compensation shall be based on the average training costs of the two clubs.

24. In light of the above-mentioned considerations and considering the amount claimed by the Claimant, the Single Judge decided to accept the Claimant’s claim and held that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 25,973.

25. Lastly, 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 proceedings before the DRC and its Single Judge relating to disputes regarding training compensation and the solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further stipulated that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and that, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

26. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 25,973 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).

27. As a result, and taking into account that the Respondent never took stance in the procedure, the Single Judge determined the costs of the current proceedings to the amount of CHF 5,000, which shall be borne by the Respondent.

*****

Decision of the Single Judge of the sub-committee of the DRC

1. The claim of the Claimant, Club A, is accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 25,973.

3. In the event that the aforementioned sum is not paid by the Respondent within the stated time limit, interest of 5% p.a. falls due as of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Single Judge of the sub-committee of the DRC of every payment received.

5. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Respondent, within 30 days of notification of the present decision to FIFA to the following bank account with reference to case no. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

*****

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Single Judge of the

sub-committee of the DRC:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives