F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution/ contributo di solidarietà – (2018-2019) – fifa.com – atto non ufficiale – Decision 16 August 2018

Decision of the

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

passed on 16 August 2018,

by Daan de Jong (Netherlands),

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 with

the player, Player E

I. Facts of the case

1. According to the player passport issued by the Football Association of Country B (hereinafter: Football Association F) on 21 February 2017, the player, Player E, born on 2 January 1996, was registered with its affiliated clubs as follows:

- with Club G between 1 August 2008 and 31 July 2012 as an amateur;

- with Club A (hereinafter: Club A or Claimant) between 1 August 2012 and 31 July 2014 as an amateur;

- with Club H between 1 August 2014 and 31 July 2015 as an amateur;

- with Club J between 21 April 2015 and 31 July 2016 as an amateur.

2. Further, after being requested to clarify the discrepancies in the player passport dated 21 February 2017, Club A submitted a second player passport, issued by the Football Association F on 22 December 2017, indicating that the correct dates of registration of the player, are as follows:

- with Club G between 1 August 2008 and 31 July 2012;

- with Club A between 1 August 2012 and 31 July 2014;

- with Club H between 1 August 2014 and 21 April 2015 and;

- with Club J between 21 April 2015 and 31 July 2016.

3. According to a confirmation of the Football Association F, the football seasons in Country B during the period of time the player was registered with Club A, started on 1 August and ended on 31 July of the following year.

4. According to the information contained in the TMS, the player was registered for the first time as a professional with the Club of Country D, Club C (hereinafter: Club C or Respondent) on 3 February 2016.

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

6. On 25 January 2018, Club A lodged a claim in front of FIFA, requesting training compensation on the basis of the player’s first registration as a professional with Club C. In particular, Club A requested the amount of EUR 86,000, plus 5% interest p.a. as from 3 February 2016 to be paid by Club C.

7. In its reply to the claim of Club A, Club C argued that at the time the player was transferred to its club and was registered as a professional, 3 February 2016, it had received a ‘guarantee’ from the Football Association F that no compensation would be due for the player. In this respect, Club C submitted a copy of declaration of the Football Association F dated 8 December 2015, signed by Manager K (General Secretary) in which the following is confirmed: ‘[…] the Federation guarantees the Club C all and any claims of complaints against the Club C from club claiming right, in whole or in part to the FIFA training indemnity, which concern the training from the 12 years old to the time of the player beginning at the Club C as a professional player. This declaration is an essential and decisive condition for the Club C to conclude a professional contract with the player, Player E. The Association will be personally responsible for any further applications for all clubs who ask compensation or try to attack the Club C […]’.

8. Moreover, Club C submitted a letter dated 1 December 2015, issued by the Club of Country B, Club J in which inter alia the following is confirmed: ‘[…] the club, Club J insures and confirms that the player is an amateur player (non-professional) at the time this commitment is signed. […] The Club is expressively declares to have trained the player. The Club declares to the Club C that strictly nothing oppose the transfer of the player at the Club C and the conclusion of a professional contract. […] In this respect, the Club give the Club C the full warranty against all and any recorse or appeal filed by a third party against the Club C. […] Consequently, the Club guarantees the Club C all and any claims of complaints against the Club C from club claiming right, in whole or in part to the FIFA training indemnity, which concern the training from the 12 years old to the time of the player beginning at the Club C as a professional player’.

9. In view of the abovementioned documents, Club C explains that on 20 February 2017, it was contacted by the legal representative of Club A, Lawyer L, who requested the payment of training compensation for the player to his client. On 21 February 2017, Club C replied to said e-mail, rejecting the claim of Club A. In this respect, Club C explains that it relied in good faith on the letter of Club J dated 1 December 2015 and the declaration of the Football Association F dated 8 December 2015, by means of which the player’s former clubs had waived their right to receive training compensation.

10. However, according to Club C, on 24 February 2017, Lawyer L confirmed via email that he insisted on the claim and that the declaration of the Football Association F dated 8 December 2015 was falsified. On 5 April 2017, Lawyer L, on behalf of Club A, sent Club C a confirmation of the Football Association F dated 21 March 2017, in which the Football Association F confirms the following: ‘Our attention has been drawn to the attached letter emanating from the Football Association of Country B in the context of recognizing Club J and its assigns. We wish to disassociate ourselves from the said allegedly forged letter. The documents have since been forwarded to the Country B Police Service for further investigations’. Club C argues that it firmly opposes against the arguments that the letter dated 8 December 2015 was falsified, as it contains the same letterhead and wording and reference method as the letter dated 21 March 2017.

11. In view of the foregoing, Club C argues that it contacted the Football Association M and the First League of Country D in order to investigate the present matter. In conclusion, Club C request for the rejection of Club A’s claim.

12. In its replica, Club A reiterates its previous argumentation and points out that Club C did not submit evidence that it contacted the Football Association F and/or the player’s previous clubs, in order to confirm whether or not training compensation was due. Furthermore, Club A insists that the alleged letter of the Football Association F dated 8 December 2015 ‘did not state grounds of waiver of all training compensation rights of the player’s former training club’s’. Furthermore, Club A argues that a waiver must always be issued by the ‘responsible entity‘ itself.

13. Moreover, Club A submits a letter dated 25 October 2017, sent by Club C to the Football Association F, in which it requests for information about possible training compensation due for the player. Further, according to Club A, the Football Association F answered on 11 December 2017 to Club C that it ‘does not and shall never guarantee any club from claims of training compensation […]’ and that it ‘did not write the letter dated 8 December 2015’.

14. In its duplica, Club C holds that it relied ‘in good faith’ on an ‘official statement by a football authority, being the Football Association of Country B’, which was received by Club C from the player. Therefore, Club C deems that it acted in due diligence and that it must be possible to rely on a statement of the federation of ‘the training club’, and that if said federation later on changes its position, this ‘cannot have any consequences for Club C’.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber (hereinafter: Single Judge) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 25 January 2018. Consequently, the 2018 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 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 Single Judge is competent to decide on the present dispute relating to training compensation between clubs belonging to different associations handled through TMS.

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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the player was registered with Club C on 3 February 2016, the 2015 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. The competence of the Single Judge 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 the documentation submitted by the parties. However, the Single Judge emphasised 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. In particular, the Single Judge 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 Transfer Matching System (TMS).

5. First of all, the Single Judge recalled that the player was born on 2 January 1996 and, according to a player passports issued by the Football Association F, a clarification of the Football Association F regarding a discrepancy in the player passport and to the player’s ITC contained in TMS, he was registered with the Club of Country B, Club G between 1 August 2008 and 31 July 2012, with Club A between 1 August 2012 and 31 July 2014, with the Club of Country B, Club H between 1 August 2014 and 21 April 2015 and with the Club of Country B, Club J between 21 April 2015 and 2 February 2016, always as an amateur.

6. In addition, the Single Judge took note that Club A maintained that it is entitled to receive training compensation from Club C in the amount of EUR 86,000, indicating that the player had signed his first professional contract with Club C before the end of the season of his 23rd birthday, having been transferred on 3 February 2016 from Club J, where the player was registered as an amateur.

7. Furthermore, the Single Judge noted that Club C argued that it is not obliged to pay training compensation in the matter at hand, as it received – after investigating the player’s background and his career history – a letter from the Club of Country B, Club J dated 1 December 2015, as well as a declaration of the Football Association F dated 8 December 2015, according to which Club C would be exempted to pay training compensation to any of the player’s training clubs. Furthermore, Club C argues that it was informed by both Club A and the Football Association F that the declaration dated 8 December 2015 was not issued by the Football Association F, as it was falsified, although that it did not rely on said arguments, as the declaration contained the same font and letter head as other, not contested, documents from the Football Association F.

8. What is more, after Club A had submitted its reply and stated that it never waived its right to receive training compensation, as a possible waiver always has to be issued by the affected entity itself, Club C insisted on its previous argumentation and stated that it had always acted in good faith. In conclusion, Club C argued that it could validly rely on the declaration dated 8 December 2015 submitted by the Football Association F, although it later on appeared that said declaration could be falsified.

9. On account of the aforementioned considerations, the Single Judge highlighted that the main issue in the present matter – as it appears not to be in dispute between the parties that Club A had trained the player for a specific period of time and that it therefore, in principle should be entitled to receive training compensation from Club C – to establish whether or not Club A had waived its right to receive training compensation for the player of the reference. In this respect, for the sake of completeness and before entering in the substance of the matter, the Single Judge first of all wished to recall certain general principles regarding its payment.

10. Along those lines, the Single Judge 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. 2 par. 1 of Annexe 4 of the Regulations, training compensation is payable, as a general rule, 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.

11. What is more, in case the player is registered for the first time as a professional, article 3 par. 1 sent. 1 of Annexe 4 of the Regulations sets forth that the club with which the player is registered is responsible for paying training compensation within 30 days of registration, to every club with which the player has previously been registered and that has contributed to his training starting from the season of his 12th birthday.

12. With the aforementioned in mind, the Single Judge turned his attention to the declaration of the Football Association F dated 8 December 2015, on the basis of which Club C deems that it is exempted to pay training compensation to any of the player’s training clubs.

13. However, the Single Judge noted that first of all, the declaration dated 8 December 2015 is not issued by Club A, but by its national association, the Football Association F, as well as that the declaration does not hold any specific reference to Club A. Furthermore, the letter dated 1 December 2015 is issued by the Club of Country B Club J, and only contains a reference to the fact that said club would possibly waive its right to receive training compensation for the player of the reference, in the scope of the transfer from the player from Club J to Club C.

14. In light of the foregoing argumentation, the Single Judge went on to analyse the documentation on file, and is this respect, first of all, wished to point out that the right of a party cannot be waived by another party. As the document dated 8 December 2015, was apparently issued by the Football Association F, which later on even contested the validity of the document, as well as that the letter dated 1 December 2015 was issued by the Club J and only referred to said club, the Single Judge concluded that there was no documentation on file on the basis of which it could be concluded that Club A had unambiguously waived its right to receive training compensation in the matter at hand.

15. What is more, the Single Judge turned to the argumentation of Club C that it did everything it could to verify whether it was obliged to pay training compensation for the player of the reference, and that it always acted in good faith.

16. In this respect, the DRC judge pointed out that Club C, when signing a contract with the player, only seemed to have relied on a (contested) declaration of the Football Association F dated 8 December 2015, as well as a letter dated 1 December 2015, submitted by one of the other previous clubs of the player, Club J, which documentation – according to the Single Judge - can however not be considered as satisfying documentary evidence that Club C had no obligations towards Club A, as Club A contested the alleged fact that it had waived its right to receive training compensation, and because of the fact that the Football Association F contested the validity of its alleged declaration dated 8 December 2015.

17. Finally, the DRC judge observed that Club C only referred to its alleged contact with the Football Association M and the First League of Country D, with the request to investigate the present matter, however that it failed to submit any documents which demonstrated that it had requested said entities to inform it about the player’s career history and/or to clarify any possible discrepancies in the player’s passport at the moment of signing a contract with the player and/or registering said player.

18. In view of the above, taking into account the wording of the declaration dated 8 December 2015, issued by the Football Association F, the Single Judge concluded that it could not established that Club A, by means of this document, or by means of the letter dated 1 December 2015 from the Club of Country B Club J, had waived its potential entitlement to training compensation.

19. In view of all the foregoing, the Single Judge decided that the arguments raised by Club C in this regard should be rejected and that Club A is entitled to receive training compensation in connection with the registration of the player of the reference with Club C.

20. Turning its attention to the calculation of training compensation, the Single Judge referred to the FIFA circular no. 1537 dated 3 May 2016, 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.

21. In this respect, the Single Judge recalled that the player was born on 2 January 1996 and, according to the player passport issued by the Football Association F, he was registered with Club A as from 1 August 2012 until 31 July 2014 as an amateur.

22. Equally, the Single Judge stressed that according to the information contained in the TMS, the player was registered as a professional with Club C on 3 February 2016, this is, in the season of his 20th birthday. In continuation, the Single Judge observed that according to the documentation on file, Club C belonged to the category II.

23. On account of the above and in accordance with art. 20 in combination with Annexe 4 of the Regulations, the Single Judge considered that Club A is, thus, entitled to receive training compensation for the period as from 1 August 2012 and 31 July 2014 from Club C, as the player was registered for the first time as a professional with Club C before the end of the season of the player’s 23rd birthday.

24. In view of all of the above and taking into account the amount claimed, the Single Judge decided that Club C is liable to pay the amount of EUR 86,000 to Club A as training compensation in relation to the registration of the player with Club C.

25. Moreover, taking into consideration Club A’s claim as well as art. 3 par. 2 of Annexe 4 of the Regulations, the Single Judge decided that, in conformity with its longstanding practice, Club C has to pay interest at 5% p.a. over the amount payable as training compensation as of the 31st day of the registration of the player with Club C, i.e. as of 5 March 2016, until the date of effective payment. Thus, Club A’s claim is partially accepted.

26. 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 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.

27. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 86,000 related to the claim of Club A. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in Annexe A).

28. As a result, considering that the case at hand did not pose any particular factual difficulties as well as that the claim of Club A has been partially but to a considerable extent accepted, the Single Judge determined the final costs of the current proceedings to the amount of CHF 8,000 which shall be borne by Club C.

III. Decision of the Single Judge 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 of the date of notification of this decision, the amount of EUR 86,000, plus 5% interest p.a. on said amount as of 5 March 2016 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 amount of costs of the proceedings in the amount of CHF 8,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows:

5.1. The amount of CHF 2,000 has to be paid to the Claimant.

5.2. The amount of CHF 6,000 has 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: 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 remittances under points 2. and 5.1 are to be made and to notify the Single Judge of 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

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:

_______________________

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives