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 9 February 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 February 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Taku Nomiya (Japan), member

Todd Durbin (USA), 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, Player E

I. Facts of the case

1. According to the player passport issued by the Football Federation of Country B (Football Federation F), the player, Player E, born on 27 May 1995, was registered with Club A (hereafter: the Claimant) as from 3 February 2010 until 19 January 2015 as a professional.

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

3. Equally, 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), on 10 February 2015.

4. According to the information contained in the TMS, the Respondent belonged to the category 2 (indicative amount of EUR 60,000 per year within UEFA) at the time the player was registered with it.

5. On 19 July 2016, the Claimant contacted FIFA asking to be awarded training compensation from the Respondent for the subsequent professional registration of the player. In particular, the Claimant is requesting EUR 279,166.67, plus 5% interest p.a. as of 19 February 2015, as well as that the Respondent bear all the costs of the proceedings and reimburse the advance of costs paid.

6. In this context, the Claimant argued that it had unsuccessfully tried to solve the matter amicably.

7. Furthermore, the Claimant alleged that the player had not terminated his training and education period before joining the Respondent on 19 January 2015, as he only made 20 appearances for the Claimant, most of them as a substitute. In this respect, the Claimant referred to the jurisprudence of the Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sport (CAS), according to which a few substitute appearances for a club’s first team are not enough to consider that his training period had already terminated.

8. Moreover, the Claimant submitted a copy of its letter dated 19 January 2015 (hereinafter: the confirmation letter), addressed to the player, which reads as follows:

“With the authorization of the President of [the Claimant], and in the name of [the Claimant], general manager of [the Claimant] hereby confirms the following conditions to be valid for the transfer of the player, Player E (Nat: BiH), DOB: 27.05.1995 to the new football club from [the Claimant].

With this document [the Claimant] confirms that:

a. the new club of the player, Player E agrees to pay 10% of the total net transfer fee, should the player be transferred or loaned from new club to the third (next) club; and

b. the new club of the player, Player E, should the player return back to [the Claimant], will not request any compensation or transfer fee or any other funds from [the Claimant];

then [the Claimant] will not ask for training compensation from the new club”.

In this context, the Claimant stated that the confirmation letter cannot be considered a valid waiver to training compensation as it does not constitute a binding agreement between the parties since it is only signed by the Claimant. In the latter’s opinion, the confirmation letter is a mere declaration given to the player as a courtesy that allows him to negotiate a transfer with other clubs, preventing that his career is halted in Country B due to the fact that foreign clubs are not willing to sign players for whom high amounts of training compensation may be due.

9. In particular, the Claimant asserted that if a club that is willing to sign the player is relying on this courtesy to the player, the only possible way is to conclude an agreement with the Claimant, the provisions of which would match the terms of the waiver.

10. In addition, the Claimant pointed out that the confirmation letter stipulates that it would not ask for training compensation from a new club if two conditions are fulfilled: i) that the Claimant is entitled to a sell-on fee of 10%, and ii) that the new club will not request training compensation if the player is transferred back to the Claimant. In this context, the latter stressed that neither the Respondent agreed to these terms nor the two conditions were fulfilled. Consequently, the Claimant assessed that it did not waive its right to training compensation.

11. Equally, the Claimant stated that should the confirmation letter be considered a valid waiver, it would be impossible for it to enforce its right to a sell-on fee of 10% on the subsequent transfer of the player as the confirmation letter does not bind the Respondent. As a result, the Claimant held that it was never its intention to waive its right to training compensation without receiving anything in return.

12. Furthermore, the Claimant referred to the jurisprudence of the DRC, according to which a waiver can only be assumed in case it is unmistakable that the renouncing club had indeed intended to waive its right to training compensation. Equally, in the same matter, the DRC emphasized that the relevant document, which was an administrative document issued in accordance with the procedure of a Football Federation related to the transfer of the relevant player, did not constitute an agreement between the parties. In light of the foregoing, the Claimant held that, as no agreement was concluded with the Respondent and the two conditions stipulated in the confirmation letter (cf. point I.10. above) were not fulfilled, it never intended to waive its right to training compensation.

13. Moreover, the Claimant stated that during the one and a half years since the confirmation letter was issued, the Respondent had the time to assess what option (paying training compensation or paying the 10% of the future net transfer fee) is more profitable for it and that now that it saw that paying training compensation is not profitable, it is willing to agree upon the terms stipulated in the waiver.

14. In addition, the Claimant provided a copy of its correspondence dated 20 June 2016, addressed to the player, the translation into English of which reads as follows:

“We wish to inform you that the letter that you have received from the [Claimant] on the date of 19 January 2015, in regards to your transfer to another Club ([the Respondent]), has no longer any legal effect in any ways or grounds. The letter has no effect since the day you have transferred out of the [Respondent] to another Club, therefore the letter from the date of 19.01.2015 will no longer have any grounds”.

In this respect, the Claimant reiterated that at no point the parties concluded an agreement including the terms stipulated in the confirmation letter, being therefore clear, in the Claimant’s opinion, that the confirmation letter cannot be considered a waiver.

15. Lastly, the Claimant referred to the CAS jurisprudence, according to which the new club of the player cannot rely on a document between the player and his former club to establish that the latter waived its right to claim training compensation from the new club.

16. In its reply to the claim, the Respondent rejected having to pay training compensation to the Claimant for the player by alleging that the player’s contract with the Club of Country B expired on 31 December 2014 and that negotiations between both clubs took place during January 2015. As a result, on 19 January 2015 the Respondent received the confirmation letter and on 31 January 2015, it concluded an employment contract with the player, who was registered with it on 10 February 2015. Equally, the Respondent submitted a copy of the waiver for training compensation it received on 2 February 2015 from Club G, the previous club of the player, which in the Respondent’s view shows that it was aware that training compensation may have been due for the player and therefore contacted the former clubs for their express renouncement.

17. In this respect, the Respondent stressed that this timeline and the fact that the Claimant stated that the player was registered with the Club of Country D on 19 January 2015 (cf. point I.7. above), i.e. on the same date as the confirmation letter was issued, is not a mere coincidence. In the Respondent’s opinion, on the contrary, this shows that the parties negotiated and were all aware that the new club would be the Respondent, for whom the confirmation letter was a conditio sine qua non it would not have signed the player.

18. Equally, the Respondent provided a copy of its letter dated 3 February 2015, allegedly sent after the former General Manager of the Claimant, Mister H, and the Respondent’s advisor confirmed that no training compensation would be due if the Respondent accepted the conditions set in the confirmation letter, which reads as follows:

“[The Respondent] hereby confirms by written to agree with the conditions as written in the document off 19.01.2015 from [the Claimant] concerning Player E and as discussed with Mister H”.

19. In this context, the Respondent further provided a copy of the Claimant’s confirmation addressed to “Attn: Player E. [the Respondent]” dated 3 February 2015 declaring that its employment relationship with the player had expired on 1 January 2015.

20. In this regard, the Respondent further stated that, thereafter, in March 2016, the player and the Respondent mutually terminated the employment contract and that, as a result, no transfer fee was paid for the subsequent transfer of the player to Country J.

21. In light of the foregoing, the Respondent concluded that, only when the Claimant became aware that it would not be entitled to 10% of a transfer fee, it requested training compensation from the Respondent, which refused to pay. As a result of the Respondent’s refusal, on 20 June 2016, the Claimant addressed the player once again withdrawing its letter of 19 January 2015 (cf. point I.14. above).

22. As to the confirmation letter of 19 January 2015, the Respondent argued that the Claimant waived its right to training compensation (cf. point I.8. above). In particular, the Respondent referred to the DRC jurisprudence, according to which clubs are entitled to waive their right to training compensation if i) it is unmistakable that the former club renounces to training compensation, this is, that the wording of the waiver does not leave room for interpretation, which means that explicit reference to training compensation is required, and ii) the waiver is signed by a legal representative of the former club.

23. In this respect, the Respondent pointed out that the confirmation letter, signed by the former General Manager of the Claimant, clearly expresses the latter’s renouncement to training compensation under certain conditions.

24. Furthermore, the Respondent rejected that the CAS jurisprudence that the Claimant referred to is applicable to the present matter, as in the referred case the document at the center of the dispute was a termination agreement in which the club and the player established that they do not have any claims towards each other.

25. In particular, the Respondent stressed that it is a basic legal principle that parties can unilaterally renounce to a right they have and that this was also implied in the CAS jurisprudence the Claimant relied on.

26. Equally, the Respondent referred to the DRC jurisprudence, according to which waivers should be signed by the former clubs, but no express acceptance of the new club is required. In light of the foregoing, the Respondent asserted that the confirmation letter met all the requirements of a waiver.

27. Moreover, the Respondent stated that the conclusion of a contract requires the mutual expression of the intent by the parties which, according to Swiss Law, can be express or implied. In particular, the Respondent further pointed out that, in this particular case, its acceptance was required due to the fact that the confirmation letter contained two conditions, but there was no reference to the need to enter into a separate agreement. As a result, the Respondent rejected the Claimant’s argument regarding the need to conclude a new agreement and argued that it would not make sense to hand the confirmation letter to the player, taking into account that the Claimant did not consider itself bound by its own declarations.

28. As to the Claimant’s letter dated 20 June 2016 (cf. point I.14. above), the Respondent held that it shows that the Claimant was aware, at the time of signing the confirmation letter, that his new club would be the Respondent. Equally, the latter referred to its wording, according to which the confirmation letter would have no effect since 1st March 2016, and pointed out that it clearly establishes that the confirmation letter was valid and that it was valid before that date. In this context, the Respondent stated that one cannot withdraw an offer that has already been accepted (cf. point I.18. above).

29. As to the claim for interests, the Respondent argued that should the DRC decide that training compensation is due, interests could only run as of 30 days after the registration of the player.

30. Lastly, the Respondent requested that the present claim be rejected and that the Claimant bear the costs of the proceedings and, alternatively, should the claim be accepted, that the interest be reduced and that the costs be equally split between the parties.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: 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 19 July 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2015 and 2017 editions of the Procedural Rules).

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

3. Furthermore, and taking into consideration that the player was registered with his new club on 10 February 2015, the Chamber analysed 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 on the Status and Transfer of Players (editions 2014, 2015 and 2016), the 2014 version of said Regulations is applicable to the present matter as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. The Chamber started by acknowledging the facts of the case as well as the documentation contained in the file. However, the DRC emphasized that in the following considerations it 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 DRC took note of the fact that the player, born on 27 May 1995, was registered with the Claimant as from 3 February 2010 until 19 January 2015 as a professional.

6. Furthermore, the DRC duly noted that the Claimant is requesting training compensation for the training and education of the player concerned from the Respondent in the amount of EUR 279,166.67 for his subsequent professional registration with the Respondent.

7. Moreover, the Chamber noted that the Respondent rejected the claim of the Claimant, arguing that, via its confirmation letter dated 19 January 2015, the Claimant waived its right to training compensation.

8. In this context, the DRC firstly underscored that it is undisputed that, on 10 February 2015, the player was subsequently registered as a professional with the Respondent.

9. In continuation, the DRC stated that, as established 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 the player concerned is registered for the first time as a professional, or when a professional is transferred between two clubs of two different Associations, before the end of the season of the player’s 23rd birthday.

10. Furthermore, the Chamber also referred to art. 3 par. 1 of Annexe 4 of the Regulations, in accordance with which, as a general principle, in case of subsequent transfers of the professional player, training compensation will only be owed to his former club for the time he was effectively trained by that club.

11. Subsequently, the DRC referred to art. 12 par. 3 of the Procedural Rules, which essentially stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof and, in this respect, it concluded that the Respondent bears the burden of proving that the Claimant had waived its right to claim training compensation.

12. In this context, the DRC referred to the time-frame and, in particular, to the fact that before the registration of the player with the Respondent on 10 February 2015, the latter received the Claimant’s confirmation letter, a waiver for training compensation from Club G, the previous club of the player (cf. point I.16. above), and a confirmation from the Claimant addressed to the player, to the Respondent’s address, regarding the expiry of his employment contract with the Claimant (cf. point I.19. above). In this respect, the Chamber stressed that the Respondent, before registering the player and so as to act in compliance with its duty of care, had requested a confirmation from the previous clubs of the player that no training compensation would be due.

13. In particular, the Chamber stressed that the confirmation letter received from the Claimant, which was signed by its General Manager, expressly mentioned that the Claimant waived its right to receive training compensation under two conditions: i) that the Claimant receives 10% of the subsequent transfer fee, if the player is transferred or loaned to a third club, and ii) that if the player returns to the Claimant, no training compensation shall be payable by the latter to the player’s former club. Equally, the Chamber underscored that the Claimant itself submitted that the objective of its confirmation letter was to avoid that the player’s career is halted in Country B due to the fact that a high amount may be payable as training compensation, which may result in the unwillingness of foreign clubs to sign the player (cf. point I.8. above).

14. In addition, the DRC found it important to note that, on 3 February 2015, the Respondent confirmed that it accepted the aforementioned conditions (cf. point I.18. above).

15. Equally, the Chamber pointed out that the two conditions stipulated in the confirmation letter could not be met as the player never returned to the Claimant and he was apparently subsequently transferred from the Respondent to a Club of Country J free of charge. Notwithstanding the foregoing, the Chamber concluded that the confirmation letter did not foresee the present situation and that, consequently, the non-fulfilment of the above-mentioned conditions does not affect the validity of its content.

16. Also, the DRC drew its attention to the fact that, on 20 June 2016, i.e. one year and four months after the registration of the player with the Respondent, the Claimant informed the player that the confirmation letter did no longer have legal effect as a result of his subsequent transfer to a third club (cf. point I.14. above).

17. Taking into account the above, the Chamber unanimously came to the conclusion that the Claimant clearly and unmistakably waived its right to receive training compensation for the player.

18. What is more, the DRC emphasised that, the Respondent, based on the available documentation at the time when it registered the player, had no reason to pay training compensation. Consequently, the Chamber decided that the Respondent could not be obliged to do so at a later stage.

19. In light of the foregoing, the Chamber decided that the claim of the Claimant had to be rejected.

20. 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 Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

21. In respect of the above, the DRC held that the amount to be taken into consideration in the present proceedings is EUR 279,166.67 related to the claim of the Claimant. Consequently, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A).

22. As a result, considering the complexity of the case at hand as well as the degree of success of the parties, the DRC determined the costs of the current proceedings to the amount of CHF 20,000, which shall be borne by the Claimant.

III. Decision of the Dispute Resolution Chamber

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

2. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Claimant, within 30 days as from the date of notification of the present decision, to FIFA. Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the amount of CHF 15,000 is to be paid 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 Dispute Resolution Chamber:

__________________________________

Marco Villiger

Chief Legal & Integrity Officer

Enclosed: CAS directives