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 6 November 2020
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 6 November 2020
regarding training compensation for the player Pierre Kunde Malong
BY:
Omar Ongaro (Italy), Single Judge of the sub-committee of the Dispute Resolution Chamber
CLAIMANT:
Extremadura UD, Spain
RESPONDENT:
1. FSV Mainz 05, Germany
I. FACTS OF THE CASE
Player: Pierre KUNDE MALONG
Date of birth: 26 July 1995
Player passport: issued by the Real Federación Española de Fútbol (“RFEF”) on 13 July 2018
Clubs
Registration dates
Status
Alcobendas C.F.
12.09.2013 - 17.10.2013
Amateur
Atletico Madrileno C.F.
18.10.2013 - 14.03.2014
Amateur
Club Atletico de Madrid SAD
14.03.2014 - 30.06.2014
Amateur
Club Atletico de Madrid SAD
21.08.2014 – 30.06.2015
Amateur
Club Atletico de Madrid SAD
26.08.2015 - 28.01.2016
Amateur
Club Atletico de Madrid SAD
28.01.2016 - 30.06.2016
Amateur
Extremadura UD
17.08.2016 - 30.06.2017
Amateur
Granada C.F. SAD
18.08.2017 - 30.06.2018
Professional
Club Atletico de Madrid SAD
09.07.2018 - 13.07.2018
Professional
According to the information contained in the Transfer Matching System (“TMS”), the above-mentioned passport was uploaded to TMS when the German club, 1. FSV Mainz 05 registered the player on 17 July 2018.
Sporting season: 1 July to 30 June (Spain)
Date of transfer: 17 July 2018, Spain to Germany
Claimant club: Extremadura UD (Spain)
UEFA, category III (EUR 30,000 per year)
Respondent club: 1. FSV Mainz 05 (Germany)
UEFA, category I (EUR 90,000 per year)
Claim and Response:
1. On 28 July 2020, the Claimant claimed training compensation of EUR 52,273.07 on the basis of the first registration as a professional of the player with the Respondent, plus 5% interests as of the relevant due date.
2. In particular, the Claimant argued that the player had been registered with it on loan between 17 August 2016 and 30 June 2017, i.e. during 318 days of his 21st birthday season.
3. The Claimant argued that the loan had not been, “reflected [in] the player passport (..) because of the misconduct of the Former Club which did not register the player as a professional before loaning him to the Claimant and to Granada. For that reason, the Spanish FA cannot insert the loan on the player passport, even if that is actually what happened here.”
4. In support of the aforementioned allegations, the Claimant provided the following documentation:
- an extract of the player’s career published on the website www.transfermarkt.com referring to the loan of the player to the Claimant and to the Spanish club Granada;
- a statement of the RFEF dated 21 May 2020 in which the latter informed the Claimant that it does not hold any records of the loan of the player with the Claimant and that, therefore, it could not amend the player passport as per the Claimant’s request;
- a correspondence exchange with the Federacion Extremena de Futbol by means of which, on 10 June 2020, the latter provided the Claimant with a copy of a document entitled “Certificado de Habilitacion” issued on 30 June 2016 indicating that the player was deemed to be “free of commitments on this date” and a document entitled the “Sollicitud de Inscripcion de Jugador”;
- an extract of Granada’s website dated 25 July 2017 in which the following is mentioned: “Granada CF have reached an agreement with Atlético Madrid for the loan of 21-year-old midfielder, Pierre Kunde Malong. Hailing originally from Cameroon, Kunde spent last season on loan at Extremadura UD (the Claimant) in 2ªB Group 4, making 35 appearances and scoring 11 goals.” (Free translation);
- an extract of the former club’s website dated 6 July 2018 in which the following is mentioned: “Pierre Kunde has been transferred to Mainz 05 on a permanent transfer. After rising through the ranks, the Cameroonian midfielder played for Granada CF and Extremadura UD (the Claimant) on loan. Everyone at Atlético de Madrid wishes Pierre well for his time with Mainz 05.”
5. As such, the Claimant referred to the contents of art. 20 RSTP and art. 2 par. 1 (ii) of Annex 4 to the RSTP and to the well-established jurisprudence of the DRC according to which the registration of a player with a club on loan is considered as an extension of the registration with the parent club.
6. In consideration of all the above, the Claimant deemed that it was entitled to receive training compensation from the Respondent calculated on the basis of the provisions set out in art. 6 of Annexe 4 to the RSTP (Special provisions for the EU/EEA).
7. On 7 October 2020, the FIFA administration notified the claim of the Claimant to the Respondent.
8. On 23 October 2020, the Respondent contested the Claimant’s request on the basis of the player passport issued on 13 July 2018 arguing that the document in question did not include the loan of the player to the Claimant. The Respondent also referred to an email exchange occurred between 18 and 31 October 2018 between the Deutsche Fussball Liga and the RFEF, in which the RFEF had confirmed that the player had not been registered on loan with the Claimant.
Clarification of the RFEF:
The following updated version of the player passport issued on 14 September 2020 was provided by the RFEF to FIFA:
Clubs
Registration dates
Status
Inscription
Alcobendas C.F.
12.09.2013 - 17.10.2013
Amateur
Permanent
Atletico Madrileno C.F.
18.10.2013 - 14.03.2014
Amateur
Permanent
Club Atletico de Madrid SAD
14.03.2014 - 30.06.2014
Amateur
Permanent
Club Atletico de Madrid SAD
21.08.2014 – 30.06.2015
Amateur
Permanent
Club Atletico de Madrid SAD
26.08.2015 - 28.01.2016
Amateur
Permanent
Club Atletico de Madrid SAD
28.01.2016 - 30.06.2016
Amateur
Permanent
Extremadura UD
17.08.2016 - 30.06.2017
Amateur
Permanent
Granada C.F. SAD
18.08.2017 - 30.06.2018
Professional
Permanent
Club Atletico de Madrid SAD
09.07.2018 - 13.07.2018
Professional
Permanent
Clarification of the former club:
Upon being requested by FIFA to provide a copy of the loan agreement allegedly concluded between the former club and the Claimant, the former club, on 30 September 2020, stated having issued the player’s “carta de libertad federativa” in order for the player to be registered with the Claimant during the 2016-2017 season. No loan agreement was mentioned nor provided.
II. LEGAL CONSIDERATIONS
Applicable law: RSTP: June 2018 edition.
Procedural Rules: June 2020 edition.
Decision:
9. The player passports issued by the RFEF on 13 July 2018 and 14 September 2020 confirm twice that the player was registered on a permanent basis with the Claimant.
10. The RFEF confirmed on 21 May 2020 that it does not hold any record of the player having been registered on loan with the Claimant.
11. The “Certificado de Habilitacion” issued on 30 June 2016 indicates that the player was deemed to be “free of commitments on this date”.
12. Following an enquiry of the Deutsche Fussball Liga, the RFEF confirmed on 31 October 2018 that the player was not on loan with the Claimant.
13. In its correspondence of 30 September 2020 addressed to FIFA, the former club did not provide nor mention any loan agreement concluded with the Claimant.
14. The Claimant failed to provide any concrete evidence in support of the allegation that a loan would have occurred, such as the loan agreement or any correspondence directly referring to a loan.
15. In accordance with the jurisprudence of the DRC, the Respondent could rely in good faith on the information included in the player passport provided in the context of the transfer which were confirmed by the RFEF on 31 October 2018 and therefore reasonably assume that the player had been registered with the Claimant on a permanent basis and not a temporary one.
16. In light of all the foregoing and in particular given the Claimant failed to prove that the player was registered on loan with itin line with the content of art. 3 par. 1 of Annexe 4 to the RSTP which stipulates inter alia 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.” [emphasis added], no training compensation is payable to the latter.
17. The claim of the Claimant is rejected.
DECISION
1. The claim of the Claimant, Extremadura UD, is rejected.
2. No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
For the Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
Pursuant to article 58 paragraph 1 of the FIFA Statutes, this decision may be appealed before the Court of Arbitration for Sport within 21 days of notification.
NOTE RELATED TO 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).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | chhelpdesk@fifa.org | T: +41 (0)43 222 7777