F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution/ contributo di solidarietà – (2017-2018) – fifa.com – atto non ufficiale – Decision 7 June 2018

Decision of the sub-committee of the

Dispute Resolution Chamber (DRC)

passed in Zurich, Country D, on 7 June 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (Netherlands), member

Jon Newman (USA), member

Wouter Lambrecht (Belgium), member

Pavel Pivovarov (Russia), 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 20 January 1996, was registered as a professional with its affiliated clubs as follows:

- Club A on 23 January 2012;

- Club G (on loan) as from 23 January 2012 until 30 June 2012;

- Club A as from 1 July 2012 until 13 July 2015;

- Club H (on loan) as from 14 July 2015 until 30 June 2016;

- Club A as from 1 July 2016 until 30 June 2017.

2. Furthermore, according to the aforementioned player passport, the football seasons in Country B start on 1 July and end on 30 June of the following year.

3. According to the information contained in the Transfer Matching System (TMS), the player was registered as a professional with the Club of Country D, Club C (hereinafter: the Respondent), on 18 August 2017.

4. Equally, according to the information contained in TMS, the Respondent belonged to the category II (indicative amount of EUR 60,000 per year within UEFA) at the moment that the player was registered with it.

5. On 10 October 2017, Club A (hereinafter: the Claimant) lodged a claim in front of FIFA requesting training compensation on the basis of the player’s transfer as a professional from the Claimant to the Respondent. In this respect, the Claimant explained that it had concluded a renewal of the employment contract with the player that was to run until 30 June 2018. Furthermore, the Claimant explained that the player terminated the employment contract in writing on 7 June 2017 invoking sporting just cause. However, the Claimant argued that such unilateral termination by the player was without just cause, induced by the Respondent. In continuation, even if it was considered that the player had a sporting just cause to terminate the employment contract, the Claimant held that this does not release the Respondent from its obligation to pay training compensation.

6. Consequently, the Claimant requested the amount of EUR 242,136.99 plus 5% interest p.a. as of 18 September 2017.

7. In its reply to the claim, the Respondent referred to art. 2 par. 2 of Annexe 4 of the Regulations on the Status and Transfer of Players and argued that the player terminated the employment contract with (sporting) just cause due to a breach by the Claimant and, consequently, the latter is not entitled to training compensation.

8. In continuation, the Respondent referred to art. 3 par. 1 of Annexe 4 and art. 10 of the Regulations on the Status and Transfer of Players as well as to CAS jurisprudence and sustained that the loan transfer of the player from the Claimant to Club H “breached the chain of seasons of payable training compensation by [the Respondent]”. Moreover, the Respondent stated that, based on the internal regulations of the Football Federation F, Club H should have paid training compensation to the Claimant for the period of training provided before the player’s loan transfer to Club H. In this respect, the Respondent held that the lack of payment by Club H cannot be detrimental to the Respondent. Consequently, the Respondent held that the training period with the Claimant after the player’s return from Club H is the only period that could be considered for the payment of training compensation by the Respondent.

9. Furthermore, the Respondent referred to art. 1 par. 1 of Annexe 4 of the Regulations and argued that the player completed his training before the start of the season 2015/2016 when he was transferred on loan to Club H. In this respect, the Respondent pointed out that the player played 30 matches with Club H in the Second Division of Country B, and attracted the interest of the Club of Country J, Club K, which made an offer on 31 August 2016 for the loan transfer of the player against payment of a loan compensation of EUR 200,000. In addition, the Respondent stated that the player obtained professional status already in January 2012.

10. Finally, “without this implying any acceptance on a supposed debt for training compensation towards [the Claimant]”, the Respondent argued that the months of July 2015 and June 2017 shall not be considered for the calculation of training compensation, as the player was trained by the Claimant less than half of the month.

11. In its replica, the Claimant stated that “neither the wording or the spirit of the RSTP, nor the jurisprudence both at FIFA and CAS level provide for any interrelation between the termination of contract for sporting just cause and the alleged loss of entitlement to the training compensation”. As to the alleged breach of the employment contract by the Claimant, it argued that it has complied with all contractual obligations towards the player and that the latter never complained about any alleged violations of the contract by the Claimant.

12. Furthermore, the Claimant referred to FIFA and CAS jurisprudence and stated that the player’s loan spell at Club H does not harm the entitlement of the Claimant to receive training compensation for the period prior to the loan transfer to Club H. In addition, the Claimant held that it has never received any loan or training compensation from Club H.

13. Moreover, the Claimant referred to art. 15 of the Regulations and sustained that the player cannot be considered an “established professional”. In this respect, the Claimant explained that the player was transferred on loan to Club H in order to gain experience in the Second Division, and that it paid a bonus of EUR 70,000 to Club H as an incentive to field the player. Furthermore, the Claimant explained that the player had the role of a substitute player upon his return to the club and was never fielded. In addition, the Claimant argued that the player still has not terminated his training while being registered with the Respondent, considering that the player is mainly used as a substitute and played a full match only twice in the League of Country D during the 2017/2018 season.

14. Finally, the Claimant reiterated its calculation and the amount claimed in its initial claim.

15. In its duplica, the Respondent reiterated its position and argued that it is irrelevant for the loss of training compensation of the Claimant under art. 2 par. 2 of Annexe 4 of the Regulations whether the reason for the player to terminate the contract relates to financial, sporting or other reasons.

16. Finally, the Respondent argued that it is irrelevant whether a player who previously completed his training period plays more or less after changing clubs.

II. Considerations of the sub-committee of the DRC

1. First of all, the sub-committee of the DRC (hereinafter also referred to as the sub-committee) 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 10 October 2017. Consequently, the 2017 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 2017 and 2018 editions of the Procedural Rules).

2. Subsequently, the sub-committee 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 on the Status and Transfer of Players (edition 2018). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations on the Status and Transfer of Players, the sub-committee is competent to decide on the present dispute relating to training compensation between clubs belonging to different associations handled through TMS.

3. Furthermore, the sub-committee 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, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2016 and 2018), and considering that the player was registered with the Respondent on 18 August 2017, the 2016 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 sub-committee and the applicable regulations having been established, the sub-committee entered into the substance of the matter. The sub-committee started by acknowledging the facts of the case as well as the documentation on file. However, the sub-committee emphasised 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. First of all, the sub-committee recalled that, considering the player passport provided by the Football Federation F, the player, born on 25 January 1991, was registered as a professional with the following clubs:

- the Claimant on 23 January 2012;

- Club G (on loan) as from 23 January 2012 until 30 June 2012;

- the Claimant as from 1 July 2012 until 13 July 2015;

- Club H (on loan) as from 14 July 2015 until 30 June 2016;

- the Claimant as from 1 July 2016 until 30 June 2017.

6. In continuation, the sub-committee took note that the Claimant claimed that it was entitled to receive training compensation from the Respondent in the amount of EUR 242,136.99. Equally, the sub-committee noted that the Claimant argued that the player had terminated his employment contract with the Claimant, which was to run until 30 June 2018, without just cause on 7 June 2017.

7. Equally, the sub-committee took note of the various arguments of the Respondent, according to which the player had terminated his employment contract with the Claimant with (sporting) just cause and, consequently, with reference to art. 2 par. 2 of Annexe 4 of the Regulations, the Claimant is not entitled to training compensation.

8. Furthermore, the Respondent argued that the player’s loan transfer from the Claimant to Club H “breached the chain of seasons of payable training compensation by [the Respondent]”. Moreover, in connection with the aforementioned loan transfer, the Respondent referred to Football Federation F regulations and argued that Club H should have paid training compensation to the Claimant for the period prior to the loan transfer and, as such, the only period that could possibly be considered is the player’s registration with the Claimant after his return from Club H.

9. In continuation, the sub-committee observed that the Respondent referred to art. 1 par. 1 of Annexe 4 of the Regulations and argued that the player completed his training before the start of the season 2015/2016 when he was transferred on loan to Club H, pointing out that the player played a certain number of matches for Club H and attracted the interest of a foreign club.

10. Finally, the sub-committee noted that the Respondent argued that, if training compensation is due, the months of July 2015 and June 2017 shall not be considered as the player was trained by the Claimant less than half of said months.

11. In this context, the sub-committee highlighted that four issues need to be analysed in the present matter:

1) Does art. 2 par. 2 lit. i) of Annexe 4 of the Regulations apply?

2) Does a club that, during the training and education of the player, loans the player to another club, lose its entitlement to training compensation?

3) Was the player’s training already completed at the time the player joined Club H on loan? and

4) What would be the correct amount of training compensation?

12. When addressing the first issue, the sub-committee referred to art. 2 par. 2 lit. i) of Annexe 4 of the Regulations, according to which training compensation is not due if the former club terminates the player’s contract without just cause. With reference to the jurisprudence of the DRC, the sub-committee recalled that such rule equally applies when the player terminates the contract with just cause.

13. However, taking into consideration the conclusion reached by the DRC in the labour dispute involving the player, the Claimant and the Respondent (case ref. XXX), i.e. that the player did not have a (sporting) just cause to terminate his employment contract with the Claimant, the sub-committee concluded that art. 2 par. 2 lit. i) of Annexe 4 of the Regulations does not apply in the matter at stake.

14. In continuation, the sub-committee turned its attention to the second issue mentioned above and referred to the rules applicable to 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.

15. Furthermore, the sub-committee referred to art. 10 par. 1 of the Regulations, which stipulates that 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 article 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.

16. In this context, and turning its attention to the argument raised by the Respondent, the sub-committee understood that the Respondent was of the opinion that the Claimant is not entitled to any training compensation for the period between the 2012/2013 and 2015/2016 seasons, since the Claimant loaned the player to another club and, therefore, the Claimant was not the player’s former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, i.e. the loan of the player from the Claimant to Club H constituted a subsequent transfer and consequently deprived the Claimant from its potential entitlement to training compensation for the period of time prior to such loan.

17. With due consideration to the above, the sub-committee 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 DRC’s well-established jurisprudence that all clubs which have in actual fact contributed to the training and education of a player as from the age of 12 until the age of 21 (unless it is evident that the player has already terminated his training period before the age of 21) are, in principle, entitled to training compensation for the timeframe that the player was effectively trained by them.

18. In this respect, the sub-committee deemed it at this point 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 is loaned to a club and, thus, is not being definitively transferred to the latter 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 sub-committee was eager to point out that it could not have been the intention of the legislator of the relevant regulatory provision (i.e. 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 deprive the loan of its essential flexibility and, in connection with the training and education of players, its purpose of providing young players with the opportunity to gain practical experience in official matches for another club in order to develop in a positive way.

19. What is more, and while recalling that art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations 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”, the sub-committee pointed out that, within the framework of loans and for the purposes of the rules governing training compensation, the period of time that the player was registered with Club H on loan and the period of time that the player was registered with the Claimant, should be considered as one entire timeframe.

20. Hence, the sub-committee came to the firm conclusion that for the purposes of the provisions of the Regulations governing training compensation, the loan of a young player from his club of origin to other clubs does not interrupt the ongoing training period of the player, and the obligation to pay training compensation arises only in case a player is transferred on a definitive basis, with the effect that, at that moment, the club which transferred the player on a loan basis to another club is entitled to training compensation for the entire period of time during which it effectively trained the player, however, excluding the period of time of the loan.

21. Bearing in mind the foregoing, the sub-committee deemed that the Respondent’s interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations is incorrect and reiterated that the loan of the player to Club H cannot be considered to constitute a subsequent transfer which would trigger the consequences stipulated in the said provision.

22. Consequently, taking into account the above-mentioned considerations, the sub-committee concurred that it had to reject the Respondent’s argumentation in relation to art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations.

23. For the sake of completeness, the sub-committee pointed out that it was not in a position to enter into the application of the Football Federation F regulations to the loan transfer of the player from the Claimant to Club H and whether or not the latter should have paid training compensation to the former.

24. In continuation, the sub-committee went on to examine whether or not the player’s training period had already been completed before the start of the season 2015/2016, when the player joined Club H on loan.

25. In this respect, the sub-committee referred to art. 1 par. 1 second sentence of Annexe 4 of the Regulations, according to which “training compensation shall be payable, as a general rule, up to the age of 23 for training incurred up to the age of 21, unless it is evident that a player has already terminated his training period before the age of 21”.

26. In this context, the sub-committee emphasized that cases involving a possible early completion of a player’s training period have to be assessed on a case-by-case basis, whereby all the specific circumstances and all the evidence produced has to be taken into consideration. Hence, several factors and indications have to be considered in order to assess and establish whether a particular player’s training has indeed been completed before the season of his 21st birthday. For the sake of completeness, the sub-committee pointed out that, so far, both the DRC as well as the CAS have adopted a strict approach in establishing that a player’s training had indeed been completed before the season of a player’s 21st birthday, so as to not jeopardize the right of training clubs to, in principle, receive training compensation.

27. In this respect, the sub-committee recalled that the Respondent argued that the player completed his training before the start of the season 2015/2016 when he was transferred on loan to Club H, pointing out that the player played a certain number of matches for Club H and attracted the interest of a foreign club.

28. Equally, the sub-committee recalled that the Claimant explained that the player was transferred on loan to Club H in order to gain experience in the Second Division, and that it paid a bonus of EUR 70,000 to Club H as an incentive to field the player. Furthermore, the Claimant explained that the player had the role of a substitute player upon his return to the club and was never fielded. In addition, the Claimant argued that the player still has not terminated his training while being registered with the Respondent, considering that the player is mainly used as a substitute and played a full match only twice in the League of Country D during the 2017/2018 season.

29. First and foremost, the sub-committee wished to emphasize that, in accordance with DRC and CAS jurisprudence, the number of matches played is not per itself necessarily decisive. As a matter of fact, a player could be required to play on a regular basis although his formation is not yet finished, according to the standards of other stronger teams.

30. Turning its attention to the documentation submitted by the parties in support of their arguments, the sub-committee pointed out that, until his loan transfer to Club H, the player had only played for the Claimant’s youth team. Furthermore, according to the loan agreement concluded between the Claimant and Club H, the loan transfer of the player to the latter was free of charge.

31. What is more, the sub-committee highlighted that it was in fact the Claimant that committed to pay the total amount of EUR 70,000 in case the player reached a certain number of appearances in Club H’s first team. In addition, the sub-committee observed that Club H was playing in the Second Division of Country B during the 2015/2016 season, whereas the Claimant acted at First Division level.

32. Considering the aforementioned elements, the sub-committee felt comfortable to conclude that the player’s loan transfer from the Claimant to Club H, free of charge and from a First Division club to a Second Division club, clearly had the aim for the player to gain more experience and playing time at a lower level than the level where the Claimant’s first team was playing, in order for him to continue his training and development as a football player to eventually reach the required level to play for the Claimant’s first team.

33. In this respect, the sub-committee observed that, after his return from Club H to the Claimant, the player did not make any appearances in the Claimant’s first team.

34. In view of the above, the sub-committee concurred that, in the specific matter at hand, it could not be established that the player had indeed already completed his training before the start of the season 2015/2016, when the player joined Club H on loan. Hence, the sub-committee deemed that the training period of the player had not been completed before the season of his 21st birthday.

35. Having established the foregoing, and contrary to the Respondent’s opinion, the sub-committee concluded that the Claimant fulfilled all the requirements in the Regulations and that, therefore, training compensation was due.

36. Turning its attention to the calculation of training compensation, the sub-committee referred to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which stipulates 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 and, thus, it is calculated based on the training costs of the new club multiplied by the number of years of training with the former club.

37. In this respect, the sub-committee recalled that according to the information contained in TMS, the Respondent belonged to the category II (indicative amount of EUR 60,000 per year within UEFA) at the moment that the player was registered with it. Furthermore, the sub-committee observed that the player was registered with the Claimant as from 1 July 2012 until 13 July 2015 as well as that the player was loaned to Club H as from 14 July 2015 until 30 June 2016 and thereafter, the player was again registered with the Claimant for the period between 1 July 2016 to 30 June 2017.

38. However, the sub-committee took into consideration that the player terminated his employment contract with the Claimant on 7 June 2017 and, therefore, concluded that the month of June 2017 cannot be taken into account for the calculation of training compensation.

39. Consequently, and in light of the above-mentioned considerations, the sub-committee decided to partially accept the Claimant’s claim and held that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 235,000.

40. Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of Annexe 4 of the Regulations, the sub-committee decided that the Respondent has to pay interest at 5% p.a. over the amount payable as training compensation as of 18 September 2017 until the date of effective payment.

41. Lastly, the Single Judge referred to art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the DRC 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, 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.

42. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 242,136.99 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A of the Procedural Rules).

43. As a result, considering the particularities of the present matter as well as the parties’ degree of success, the Single Judge determined the final costs of the current proceedings to the amount of CHF 20,000, of which CHF 15,000 shall be borne by the Respondent and CHF 5,000 by the Claimant.

*****

III. Decision of the sub-committee of the DRC

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 235,000 plus 5% interest p.a. on said amount as from 18 September 2017 until the date of effective payment.

3. In the event that the aforementioned sum 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 20,000 are to be paid within 30 days as from the date of notification of the present decision, as follows:

5.1. The amount of CHF 15,000 has to be paid by the Respondent to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2. The amount of CHF 5,000 has to be paid by the Claimant 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 Claimant is exempted from paying the aforementioned amount.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. above is to be made and to notify the sub-committee of the DRC of every payment received.

*****

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

Country D

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the sub-committee of the DRC:

Omar Ongaro

Football Regulatory Director

Enclosed: CAS directives