F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution/ contributo di solidarietà – (2020-2021) – fifa.com – atto non ufficiale – Decision 21 August 2020

Decision of the Single Judge

of the sub-committee of the

Dispute Resolution Chamber

passed on 21 August 2020

regarding training compensation for the player João Pedro MATURANO DOS SANTOS

BY:

Geoff Thompson (England)

CLAIMANT:

SE PALMEIRAS, Brazil

RESPONDENT:

FC PORTO, Portugal

I. FACTS

1. According to the player passport issued by the Confederação Brasileira de Futebol (hereinafter: CBF), the player, João Pedro Maturano Dos Santos, (hereinafter: the player), born on 15 November 1996, was registered with several clubs affiliated to the CBF, including SE Palmeiras (hereinafter: Palmeiras or the Claimant), as follows:

Clubs

Registration Dates

Registration Type

Status

Olé Brasil

25.03.2011 to 28.06.2012

Permanent

Amateur

Commercial FC

28.06.2012 to 31.01.2013

Permanent

Amateur

Palmeiras

01.02.2013 to 11.01.2017

Permanent

Professional

Chapecoense

12.01.2017 to 31.12.2017

Loan

Professional

Palmeiras

01.01.2018 to 01.08.2018

Permanent

Professional

2. According to the information contained in the Transfer Matching System (TMS), the player was registered with the Portuguese club FC Porto (hereinafter: Porto or the Respondent), on 2 August 2018 as a professional.

3. In particular, the Claimant and the Respondent signed a transfer agreement (hereinafter: the agreement) according to which the player would be transferred to Porto against the payment of transfer compensation in the amount of EUR 4,000,000.

4. According to art. 2.2.2 of the relevant agreement, “[the Respondent] agrees that total amount mentioned above shall be paid to [the Claimant] free of Portuguese taxes, levies and charges, so [the Respondent] shall only deduct Solidarity Mechanism from the aforementioned Transfer Fee”.

5. What is more, art. 3 of the transfer agreement stipulated the following:

““3. Training Compensation and Solidarity Mechanism

3.1 In case any club presents a valid claim for the distribution of the solidarity mechanism in connection with the present transfer of [the player], as provided by art. 21 and Annexe 5 of FIFA Regulations, [the Respondent] commits to pay such third party directly.

3.2 [The Respondent] shall deduct from the transfer for the amounts due to all the [the player’s] former clubs as solidarity mechanism, pursuant to the FIFA Regulations. However, for the avoidance of doubt, [the Claimant] as former club of the [the player], will not waive any compensation related to the [player’s] training.”

6. According to the information contained in the 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 Porto.

7. On 30 June 2020, the Claimant lodged a claim in front of FIFA requesting training compensation on the ground of the player’s subsequent registration as a professional with the Respondent which occurred before the end of the season of the player’s 23rd birthday. In particular, the Claimant requested EUR 237,369.84, plus 5% interest as from 1 August 2018 until the date of effective payment.

8. The Claimant argued that “under clause 3.1 of the Transfer Agreement, PORTO took the obligation to pay solidarity contribution to PALMEIRAS and, at the same time, under clause 3.2 PALMEIRAS as the only former club of the Player did not waive any compensation related the athlete´s training.”

9. From the Claimant’s point of view if it had not waived “any compensation related to the Player’s training, it is needless to say that training compensation shall be claimed since the agreement does not provide the contrary.”

10. In addition, the Claimant highlighted that art. 3 of the transfer agreement was named “Training Compensation and Solidarity Mechanism”, thus explicitly addressing the two concepts of solidarity and training compensation.

11. In this respect, the Claimant underlined that as art. 3 did not explicitly stipulate that training compensation was not included in the transfer compensation, and that should the parties had wanted to exclude it, they would have stipulated it within art. 3 par. 2 of the agreement.

12. Quoting the English law principle of “everything that is not forbidden is allowed”, the Claimant concluded that it should receive training compensation from the Respondent.

13. In its answer, the Respondent rejected the claim of the Claimant in its entirety.

14. In fact, the Respondent referred to the jurisprudence of the Dispute Resolution Chamber (hereinafter also referred as DRC) and of the Court of Arbitration (hereinafter: CAS) according to which training compensation is included in the transfer compensation unless the parties “clearly and expressly establish the contrary”.

15. The Respondent underlined that “if the financial conditions for a player’s transfer are being negotiated between the parties, they must be all laid down in the agreement achieved”.

16. In this respect, the Respondent declared that art. 3 of the agreement only addressed solidarity the compensation received for the training of the player, and stipulated that the solidarity should be deducted from the transfer fee and the part due to Palmeiras to be distributed from said deduction.

17. What is more, Porto pointed out that art. 3 par. 2 of the agreement was to be interpreted as whole, and not sentence by sentence. In this respect, the Respondent underlined that sent. 1 established that the solidarity was to be deducted from the transfer compensation, and sent. 2 was a confirmation that the Claimant was not waiving its entitlement to receive its share of the solidarity being deducted.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber (hereinafter: the single judge) analysed whether he was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 30 June 2020 and submitted for decision on 21 August 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states that he shall examine his jurisdiction in light of arts. 22 to 24 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations; edition June 2020). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations, 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, and taking into consideration that the player was registered with the Respondent on 2 August 2018, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the single judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, the June 2018 edition of the 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. The Single Judge started by acknowledging the above-mentioned facts of the case as well as the documentation on file. However, the Single Judge emphasized that in the following considerations he will refer only to the facts, arguments and documentary evidence which were considered pertinent for the assessment of the matter at hand. In particular, the single judge recalled that, in accordance with art. 6 par. 4 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 TMS.

5. First of all, the Single Judge took note that the Claimant maintained that it is entitled to receive training compensation from the Respondent in the amount of EUR 237,369.84, plus 5% interest as from 1 August 2018, indicating that the subsequent professional registration of the player occurred before the end of the season of his 23rd birthday. In particular, the Single Judge noted that the Claimant argued having agreed with the Respondent that training compensation was not included in the transfer compensation paid for the player and that it could therefore claim it.

6. Furthermore, the Single Judge remarked that the Respondent, for its part, had rejected the claim and the aforementioned argument of the Claimant alleging that training compensation had been include in the relevant transfer fee.

7. With the aforementioned in mind, the Single Judge referred to art. 1 par. 1 of Annexe 4 in combination with art. 2 par. 1 lit. i) of Annexe 4 of the Regulations and recalled that training compensation is payable, as a general rule, for training incurred between the ages of 12 and 21, when a player is registered as a professional for the first time before the end of the season of the player’s 23rd birthday. In case of a first registration as a professional, art. 3 par. 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 (in accordance with the players’ career history as provided in the player passport) and that has contributed to his training starting from the season of his 12th birthday. The amount payable is calculated on a pro rata basis according to the period of training that the player spent with each club.

8. In continuation, the Single Judge observed that the player was registered with the Claimant before the end of the season of his 21st birthday, i.e. between 1 February 2013 and 11 January 2017 and that the latter was subsequently registered with the Respondent as a professional on 2 August 2018. Hence, the Claimant would in principle be entitled to receive training compensation from the Respondent.

9. However, the Single pointed out that in accordance with the well-established jurisprudence of the DRC, if two clubs conclude a transfer agreement providing for the respective financial obligations, i.e. transfer compensation, training compensation is considered as being included in the relevant fee. Equally, the Single Judge emphasized that, in line with the same jurisprudence, if the parties in question wish to stipulate the contrary, i.e. that training compensation is due in addition to the agreed transfer compensation, the need to explicitly mention it in the transfer agreement.

10. Bearing the aforementioned in mind, the Single Judge thoroughly analysed the contents of the transfer agreement and in particular of clause 3.2 on which the Claimant based its claim and in accordance with which the latter ”as former club of the [the player], will not waive any compensation related to the [player’s] training.”

11. From the Single Judge’s point of view, the wording of clause 3.2. of the transfer agreement did not clearly indicate the intention of the parties to exclude the training compensation due to the Claimant for the player from the transfer compensation payable to the latter.

12. Bearing in mind the aforementioned and taking into account the jurisprudence of the DRC, the Single Judge established that it had to be assumed that the parties had not commonly intended to exclude training compensation from the transfer compensation paid by the Respondent to the Claimant.

13. As such, the Single Judge concluded that the transfer compensation paid by the Respondent to the Claimant was to be considered as inclusive of training compensation.

14. In view of all the above, the Single Judge determined that the claim of the Claimant had to be rejected.

15. Lastly, the Single Judge referred to FIFA Circular 1720 of 11 June 2020, in which it is stipulated that for any claims lodged in front of the Dispute Resolution Chamber and/or the Players’ Status Committee before 10 June 2020, the maximum amount of the procedural costs shall be equivalent to any advance of costs paid.

16. Bearing in mind that in line with art. 17 par. 1 of the Procedural Rules, no advance of costs shall be payable for disputes concerning the distribution of solidarity contribution and/or training compensation, the Single Judge concluded that the present decision shall be free of procedural costs.

DECISION OF THE SINGLE JUDGE OF THE SUBCOMMITTEE OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, SE Palmeiras, is rejected.

2. The decision is free of procedural costs (cf. FIFA Circular Nr. 1720 of 11 June 2020 and art. 17 par. 1 and 18 par. 1 of the Rules Governing the Procedure of the Players’ Status Committee and Dispute Resolution Chamber).

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

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