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 3 March 2021
Decision of the
Single Judge of the sub-committee of the Dispute Resolution Chamber (DRC)
Passed on 3 March 2021,
regarding training compensation for the the player Alveiro Vallejo Angulo
BY:
Geoff Thompson (England), Single Judge of the sub-committee of the DRC
CLAIMANT:
CD GALLEGOL SAS, Colombia
Represented by Mr. Jan Schweele
RESPONDENT:
DEFENSA Y JUSTICIA, Argentina
I. FACTS OF THE CASE
1. According to the player passport issued by the Federación Colombiana de Fútbol (hereinafter: FCF), the player, Mr Alveiro Vallejo Angulo (hereinafter: the player), born on 10 April 1997, was registered with the Colombian club, CD Gallegol SAS (hereinafter: the Claimant) from 10 April 2013 until 25 February 2014 as an amateur.
2. According to the information available on file, the Claimant is affiliated to the Liga Antionqueña de Fútbol (hereinafter: LAF) since 16 October 2014.
3. In this respect, the FCF, upon the request of FIFA, clarified as follows:
“En ese sentido, se aclara que el club GALLEGOL para la fecha comprendida entre el 1 de abril de 2013 hasta el 25 de febrero de 2014 actuaba como club invitado, pues para dicha fecha el sistema de registro que opera en la FCF (Sistema COMET), en sus inicios, incluía todos los clubes sin distinción, fuesen estos afiliados o no afiliados (invitados), sin que de su inclusión se desprendiera, per se, el derecho a elevar reclamaciones encaminadas al pago de la contribución de solidaridad, derecho reservado, en el caso concreto, única y exclusivamente para clubes afiliados directa o indirectamente a la FCF.
Así las cosas, reiteramos que, la afiliación del club GALLEGOL a la Liga Antioqueña de Fútbol y a su vez a la FCF se materializó a partir del día, 16 de octubre de 2014, razón por la cual dicho club únicamente está facultado para reclamar períodos de formación posterior a la fecha anteriormente mencionada, es decir a partir del 17 de octubre de 2014 en adelante, situación que como señalamos a lo largo del presente escrito no se configura en el caso particular
4. Such clarification translates freely as follows:
“In this sense, it is clarified that the GALLEGOL club for the date between April 1, 2013 and February 25, 2014 acted as a guest club, since for that date the registration system operating in the FCF (COMET System) , in its beginnings, included all the clubs without distinction, whether they were affiliated or not affiliated (invited), without their inclusion giving rise, per se, the right to raise claims aimed at paying the solidarity contribution, right reserved, in the specific case, solely and exclusively for clubs directly or indirectly affiliated with the FCF.
Thus, we reiterate that, the affiliation of the GALLEGOL club to the [LAF] and in turn to the FCF materialized as of October 16, 2014, which is why said club is only empowered to claim periods of training after the aforementioned date, that is, from October 17, 2014 onwards, a situation that, as we have pointed out throughout this brief, is not configured in the particular case”
5. As to the apparent inconsistency in the player’s passport, upon request of FIFA, the FCF clarified as follows:
“A la fecha, el sistema se ha ido depurando con el fin de permitirle a las ligas seguir administrando sus competiciones, seguir invitando a participar a equipos no afiliados, pero sin confundir afiliados con invitados. En ese sentido se están realizando los esfuerzos respectivos para que, en la mayoría de los casos, los clubes invitados (no afiliados) no aparezcan en el Pasaporte Deportivo de los jugadores.
No obstante lo anterior, existen casos como el que nos ocupa, en los que la FCF de buena fe remite los pasaportes deportivos con la información cargada en el sistema COMET y con posterioridad, se encuentra que el club reclamante no cumple con los requisitos para elevar reclamaciones encaminadas al pago de la indemnización por formación o contribución de solidaridad, pues como hemos expuesto se trata de un derecho reservado, en el caso concreto, única y exclusivamente para clubes afiliados directa o indirectamente a la FCF”.
6. Such clarification translates freely as follows:
“To date, the system has been refined in order to allow leagues to continue managing their competitions, to continue inviting unaffiliated teams to participate, but without confusing affiliates with guests. In this sense, the respective efforts are being made so that, in most cases, the invited (unaffiliated) clubs do not appear in the Sports Passport of the players.
Notwithstanding the foregoing, there are cases like the one at hand, in which the FCF in good faith sends the sports passports with the information uploaded in the COMET system and subsequently, it is found that the complaining club does not meet the requirements to raise claims aimed at the payment of compensation for training or solidarity contribution, since as we have stated it is a reserved right, in the specific case, solely and exclusively for clubs directly or indirectly affiliated with the FCF”.
7. The football season in Colombia follows the calendar year, i.e. from 1 January to 31 December.
8. The player was registered as a professional for the first time with the Argentinian club, Defensa y Justicia (hereinafter: the Respondent) on 8 February 2018. At the time, the Respondent was a category I club according to the Transfer Matching System (TMS).
9. On 10 March 2020, the Claimant lodged a claim in front of FIFA requesting training compensation on the basis of the alleged player’s first registration as a professional with the Respondent.
10. More in particular, the Claimant deems to have trained and educated the player, and that the claim was lodged within the deadline set by art. 25 par. 5 of the FIFA Regulations on the Status and Transfer of Players. Accordingly, the Claimant requested that the Respondent is ordered to pay it training compensation plus 5% interest from the due date, calculated as follows:
a. 275 days registered with the Claimant during the season of his 16th birthday: USD 37,671.23;
b. 59 days registered with the Claimant during the season of his 17th birthday: USD 8,082.19.
11. The Respondent, for its part, rejected the Claimant’s claim and submitted that the claim is time-barred.
12. As to the substance, the Respondent argued that since the Claimant was affiliated to the LAF after the period of training of the player, the Claimant cannot be entitled to any amounts.
13. Thus, the Respondent requested that the claim be deemed inadmissible and that the Respondent is exempted from any payment.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE DRC
14. First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note of the fact that the present matter was submitted to FIFA on 10 March 2020 and decided on 3 March 2021. Taking into account the wording of art. 21 of the January 2021 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.
15. Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states that the he shall have jurisdiction in light of arts 22 to 24 of the Regulations on the Status and Transfer of Players (edition February 2021). 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, he confirmed he is competent to decide on the present dispute relating to training compensation between a Colombian club and an Argentinian club.
16. Notwithstanding the above, the Single Judge noted that the Respondent objected to the admissibility of the claim on the grounds that it was time-barred. To this end, the Single Judge referred to art. 25 par. 5 of the February 2021 edition of the Regulations on the Status and Transfer of Players, and confirmed that the claim is not time-barred since the deadline for the Respondent to pay training compensation, if any, was 10 March 2018 as per art. 3 par. 1 of Annexe 4 of the Regulations on the Status and Transfer of Players. As such, the Single Judge found that the event giving rise to the dispute is the non-payment of said training compensation, and hence that the claim is admissible since it was filed on 10 March 2020, that is within the 2-year deadline established under said art. 25 par. 5.
17. Furthermore, and taking into consideration that the player was registered with the Respondent on 8 February 2018, 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 February 2021), the January 2018 edition of the said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance.
18. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.
19. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.
20. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging 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 it will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.
21. In this respect, the Single Judge noted that the central point of the dispute is whether the Claimant is entitled to training compensation on the basis of the player’s first registration as a professional with the Respondent.
22. To this end, the Single Judge noted that in accordance with the evidence of file, the Claimant has been affiliated to the LAF – and consequently to the FCF – since 16 October 2014. At the same time, the Single Judge noted that the Claimant’s claim pertains to the registration of the player with the Claimant from 10 April 2013 until 25 February 2014.
23. Taking into account such constellation as well as the explanations provided by the FCF, it became evident to the Single Judge that the Claimant was claiming training compensation for a period before its official affiliation to the FCF and hence to association football.
24. In this respect, the Single Judge was of the firm opinion in light of the above no training compensation was to be awarded. Indeed, the Single Judge confirmed that establishing that the rules and regulations of an association would also apply to an entity not affiliated to such association would clearly be incompatible with the general principles of association law, in particular, with the principle of freedom of association which established that every association can, in principle, accept or refuse any applicant for membership.
25. In the particular matter at hand, the Single Judge highlighted that the Claimant has failed to demonstrate why and how it would be entitled to training compensation for a period when it was not affiliated to the LAF, and consequently to the FCF.
26. Taking into consideration that the Claimant could not sufficiently prove that it was affiliated to the FCF, the Single Judge saw no legal basis to uphold the assumption that regulations issued by an association were applicable to legal entities that were not affiliated to the relevant association.
27. For the sake of completeness and in spite of his confidence on the foregoing line of reasoning, the Single Judge stressed that he took due note of the decision rendered by the DRC on case ref. TMS 3963, according to which it was found that the Claimant was not entitled to solidarity mechanism insofar as it could not be established that the clubs which originally engaged the player’s training where at the time affiliated to the FCF.
28. On account of the above, the Single Judge decided that the claim had to be rejected.
29. 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 the proceedings before the Dispute Resolution Chamber relating to disputes regarding training compensation, costs in the maximum amount of CHF 25,000 are levied.
30. The Single Judge further observed the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules according to which the maximum amount of procedural costs levied for any claim lodged prior to 10 June 2020, which was yet to be decided at the time of such temporary amendment, shall be equivalent to any advance of costs paid.
31. Accordingly, the Single Judge referred to art. 17 of the Procedural Rules, and recalled that no advance of costs is payable in proceedings before the Dispute Resolution Chamber, only before the Players’ Status Committee and the single judge, and that naturally no costs have been advanced by the Claimant in these proceedings.
32. Based on the foregoing considerations, the Single Judge determined that the decision shall be rendered free of costs.
33. For the sake of completeness, the Single Judge referred to art. 18 par. 4 of the Procedural Rules and confirmed that no procedural compensation is to be paid in these proceedings.
III. DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE DRC
1. The claim of the Claimant, CD GALLEGOL SAS, is admissible.
2. The claim of the Claimant is rejected.
3. The decision is rendered free of costs.
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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