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 17 December 2015

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 December 2015,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

Joaquim Evangelista (Portugal), member

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 with the Player E

I. Facts of the case

1. According to the player passport issued by the Football Association of country B, the player, Player E (hereinafter: the player), born on 22 June 1992, was registered with its affiliated club, Club A (hereinafter: the Claimant), from 29 April 2009 until 31 December 2009 as an amateur.

2. The aforementioned player passport indicates “no record found” for the period as from 1 January 2004 until 16 April 2008. Furthermore, the player passport states that the player was registered with the club from country B, Club F, from 17 April 2008 until 28 April 2009, as an amateur.

3. In addition, the Football Association of country B confirmed that the player’s last club in country B, before being transferred to country D, was the Claimant.

4. The football season in country B follows the calendar year.

5. According to a written confirmation of the Football Federation of country D, the player was registered with its affiliated Club G (hereinafter: Club G) on 25 February 2013 as a professional.

6. The Football Federation of country D further confirmed that Club G belonged to the club category III (indicative amount of EUR 30,000 per year within UEFA) at the time the player was registered with the latter club.

7. On 20 February 2015, the Claimant contacted FIFA and requested to be awarded with the amount of EUR 20,300, plus 5% interest as of 20 March 2013, as training compensation in connection with the first registration of the player as a professional with Club G.

8. In a first correspondence addressed to FIFA on 23 April 2015, Club C (hereinafter: Club C) stated that “[t]he highest division the club ever participated was the second division (last season played was 2012/2013)” and that “due to restructuring the national competitions of country D [it is] playing in the 3rd division since season 2013/2014”.

9. In a subsequent correspondence, Club C explains that it never signed a contract with the player, stressing that it only participates in the competitions organised by the Football Federation of country D since 1st July 2013. According to Club C, the player entered in a contract with Club G, which constitutes a different legal entity, i.e. a “youth training club”, with a different chairman. Club C further asserts that the player, prior to signing with Club G, informed the latter club that he was professional in country B and that therefore no training compensation would be due. In this respect, Club C insists that the player’s passport does not contain any information regarding the player’s registration between 2010 and 2013.

10. In continuation, Club C alleges that Club G did not need the player and therefore sent him on loan to a third-division club on 19 February 2013. Finally, Club C asserts that in June 2013, the player and Club G terminated the contract.

11. In its replica, the Claimant sustains that Club G and Club C are the same entity; the latter being the successor of the former. In support of its assertion, the Claimant refers to the documentation submitted by the Football Federation of country D, according to which Club G is an entity owner and founder of Club C.

12. Finally, the Claimant concludes that the player’s passport issued by the Football Association of country B, which is an official document the validity and veracity of which cannot be questioned, is clear regarding the player’s registration.

13. In spite of having been invited to do so, Club C did not submit final comments.

14. On 20 May 2015, the Football Federation of country D stated, inter alia, the following:

“Club G and Club C are two different legal entities. Club G is a sport club while Club C is a company which conducts sport-related activities.

Club G participated in the 2nd division of season 2012/2013 in country D. Since then it is no longer affiliated to the Football Federation of country D.

Club C participates in the 3rd division of country D since the season of 2013/2014 and it is still affiliated to the Football Federation of country D.

[…]

Exhibit 3: Company registration document of Club C where Club G appears as owner and founder”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 20 February 2015. Consequently, the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of Players (edition 2015), the Dispute Resolution Chamber is competent to deal with the matter at stake relating to training compensation between clubs belonging to different associations.

3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 on the Status and Transfer of Players (edition 2015), and considering that the player was registered with the Respondent on 25 February 2013, the 2012 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 DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case as well as the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In continuation, the DRC took note that the Claimant maintained that it is entitled to receive training compensation based on the first registration of the player as a professional with Club G, allegedly the club to which Club C legally succeeded to.

6. On the other hand, the members of the Chamber acknowledged the position of Club C, which stresses that it does not have standing to be sued in the present proceedings, since the player entered into a professional contract with Club G, which constitutes a different legal entity from Club C, i.e. a “youth training club”, with a different chairman.

7. Having stated the above, the members of the Chamber took note of the statement provided by the Football Federation of country D, which states the following:

“Club G and Club C are two different legal entities. Club G is a sport club while Club C is a company which conducts sport-related activities.

Club G participated in the 2nd division of season 2012/2013 in country D. Since then it is no longer affiliated to the Football Federation of country D.

Club C participates in the 3rd division of country D since the season of 2013/2014 and it is still affiliated to the Football Federation of country D.

[…]

Exhibit 3: Company registration document of Club C where Club G appears as owner and founder”.

8. With the above-mentioned considerations in mind and in relation to the position of Club C, the DRC referred to previous decisions of FIFA’s decision-making bodies related to this particular issue as well as to the CAS Award 2013/A/3425 which mutatis mutandis can be applied to the present matter. Indeed, in said Award, CAS, while confirming a previous decision of the Players’ Status Committee of FIFA, established that a club is a sporting entity identifiable by itself, which is formed by a combined set of elements that constitute its image.

9. In particular, the DRC fully adopted the reasoning of the Sole Arbitrator in the aforementioned Award that reads as follows:

“The Sole Arbitrator highlights that the decisions that had dealt with the question of the succession of a sporting club in front of the CAS (CAS 2007/A/1355; TAS 2011/A/2614; TAS 2011/A/2646; TAS 2012/A/2778) and in front of FIFA’s decision-making bodies (…), have established that, on the one side, a club is a sporting entity identifiable by itself that, as a general rule, transcends the legal entities which operate it. Thus, the obligations acquired by any of the entities in charge of its administration in relation with its activity must be respected; and on the other side, that the identity of a club is constituted by elements such as its name, colours, fans, history, sporting achievements, shield, trophies, stadium, roster of players, historic figures, etc. that allow it to distinguish from all the other clubs. Hence, the prevalence of the continuity and permanence in time of the sporting institution in front of the entity that manages it has been recognised, even when dealing with the change of management companies completely different from themselves” (original text in Spanish).

10. Having said this, the members of the Chamber focused their attention on the following facts:

a. Club C is registered at the same address as Club G;

b. The official website of Club C is XXXX;

c. The official e-mail address of Club C is XXXX;

d. Club C started to participate in the competitions organised by the Football Federation of country D, the season immediately after the season when Club G ceased to participate in the aforementioned competitions;

e. Club C started to participate in the division immediately inferior to the one in which Club G was participating during the 2012-13 season and finished in a position leading to relegation.

11. Regarding said last consideration, the Chamber was eager to emphasise Club C’s statement, according to which “[t]he highest division the club ever participated was the second division (last season played was 2012/2013)”.

12. In addition, the members of the Chamber deemed of utmost importance to point out that on 30 October 2013, Club C took over the TMS account of Club G.

13. In sum, and in consideration of the above-mentioned facts, the DRC was of the unanimous opinion that the new club’s argument that it constituted a different entity from Club G cannot be upheld.

14. Consequently, the DRC decided that Club C (hereinafter: the Respondent) is one and the same club as Club G and has standing to be sued in the present proceedings and it can therefore, in principle, be liable for the payment of training compensation in connection with the alleged first registration of the player as a professional.

15. Having established the foregoing, the DRC noted that the Respondent maintained that no training compensation is due, considering that:

- The player informed it that he was professional in country B;

- It did not need the player and sent him on loan to a third-division club on 19 February 2013;

- The contractual relationship with the player was mutually terminated in June 2013.

16. In this respect, the Chamber first referred to the rules applicable to cases regarding training compensation and stated 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.

17. In connection with the above, the DRC duly noted the argument raised by the Respondent that, in fact, the player was already a professional. In this respect, the DRC stressed that the Football Association of country B had unequivocally confirmed that the player’s last club before being transferred to the Respondent was the Claimant and that he was registered with it as an amateur.

18. In this regard, and for the sake of completeness, the Chamber deemed it useful to point out that even if the player had been registered with the Claimant as a professional, training compensation would have been due in accordance with art. 2 par. 1 lit. ii of the Annexe 4 of the Regulations since the Claimant was the player’s former club.

19. In continuation, the members of the Chamber recalled the well-established jurisprudence of the Chamber according to which events that occurred after the registration of the player, such as his subsequent loan or the premature termination of the employment contract, do not have any influence on the former club(s)’ right to receive training compensation.

20. In this context and considering the career history of the player, which indicated that at all time prior to the player’s registration with the Respondent, the player way registered as an amateur, the DRC determined that the player was registered for the first time as a professional with the Respondent before the end of the season of the player’s 23rd birthday.

21. On account of all the above considerations, the DRC decided that the Respondent is liable to pay training compensation to the Claimant in accordance with art. 20 and Annexe 4 of the Regulations.

22. Turning its attention to the calculation of training compensation, the Chamber 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, it is necessary to take the costs that would have been incurred by the new club if it had trained the player itself.

23. In continuation, the Chamber recalled that the player was born on 22 June 1992 and was registered with the Claimant as from 29 April 2009 until 31 December 2009 as an amateur.

24. Therefore, the DRC considered that the Claimant is, thus, entitled to receive training compensation for the aforementioned period, i.e. for a period of 8 months during the season of the player’s 17th birthday.

25. Moreover, the DRC took into account that the Respondent belonged to the category III (indicative amount of EUR 30,000 per year).

26. In view of all of the above, the DRC decided to partially accept the claim of the Claimant and held that the Respondent is liable to pay the amount of EUR 20,000 to the Claimant as training compensation in relation to the registration of the player with the Respondent.

27. In addition, and considering the Claimant's request for interest as well as the date of registration of the player with the Respondent, the DRC decided that the Claimant is entitled to receive interest at the rate of 5% p.a. as of 28 March 2013 until the date of effective payment.

28. In continuation, the Dispute Resolution Chamber established that any further claim lodged by the Claimant is rejected.

29. Lastly, the Chamber 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 relating to disputes regarding training compensation, 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 Annex A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

30. In respect of the above, the Chamber held that the amount to be taken into consideration in the present proceedings is EUR 20,300 related to the claim of the Claimant. Consequently, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annex A).

31. As a result, and taking into account the particularities of the present matter, the number of issues that had to be addressed, as well as the complexity of the case, the Chamber determined the costs of the current proceedings to the amount of CHF 5,000, which shall be borne by the Respondent.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Club A, is partially 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 20,000 plus 5% interest p.a. as of 28 March 2013 until the date of effective payment.

3. In the event that the aforementioned amount plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

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. XXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. is to be made and to notify the Dispute Resolution Chamber of every payment received.

*****

Training compensation for the Player E

(Club A, country B / Club C, country D)

9

Note relating to the motivated decision (legal remedy):

According to art. 67 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 Dispute Resolution Chamber:

Markus Kattner

Acting Secretary General

Encl: CAS directives