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 15 September 2020

Decision of the

Single Judge of the sub-committee of

The Dispute Resolution Chamber

passed on 15 September 2020

regarding training compensation for the player Rodrigo Pollero Lopez

BY:

Stefano La Porta (Italy), Single Judge of the sub-committee of the Dispute Resolution Chamber

CLAIMANT:

Sud America, Uruguay

RESPONDENT:

FC Chiasso, Switzerland

I. FACTS OF THE CASE

Player: Rodrigo Pollero Lopez

Date of birth: 14 September 1996

Player passport: issued by the Asociación Uruguaya de Fútbol on 05.02.2018

Clubs

Registration dates

Status

Type

Penarol

01.01.2018 - 25.01.2018

Professional

Permanent

Sud America

27.01.2017 - 31.12.2017

Professional

Loan

Penarol

01.01.2017 - 18.01.2017

Professional

Permanent

Cerro Largo

08.09.2016 - 31.12.2016

Professional

Loan

Penarol

21.02.2014 – 07.09.2016

Professional

Permanent

San Lorenzo – San Jose

07.04.2010 – 21.02.2014

Amateur

Permanent

Sporting season: 1 January to 31 December (Uruguay)

Date of transfer: 28 January 2019, Argentina to Switzerland

Claimant club: Sud America (Uruguay)

Respondent club: FC Chiasso (Switzerland)

UEFA, category II (EUR 60,000 per year)

Events surrounding the registration with the Respondent:

1. On 17 January 2017, Penarol and the Claimant concluded a loan agreement by means of which the player was borrowed from the former to the latter until 31 December 2017. In particular, said agreement provided, inter alia, the following clauses:

“Antecedentes

1.- Que el jugador tiene contracto laboral en vigor con [Penarol] como futbolista profesional que concluye el 31/12/2020”;

(Free translation: “That the player has a current employment contract with [Penarol] as a professional footballer which expires on 31/12/2020”)

“Segunda. – Remuneracion del jugador.

(…)

[Penarol] se hara cargo de la remuneración minima y liquida de la Divisional por la qual se registra el Jugador por [the Claimant] y los demás haberes que el jugador y [Penarol] tienen firmados, sin los premios variables.”;

(Free translation: "Second. - Player's remuneration.

(…)

[Penarol] will take over the minimum and liquid remuneration of the Division for which the Player is registered for [the Claimant] and the other assets that the Player and [Penarol] have signed, without the variable prizes")

“Sexta.- Reintegro anticipado.

En forma única y exclusiva, [Penarol] podrá solicitar el reintegro anticipado del jugador para reincorporarse a su plantilla (…) En caso de que se deniegue o (…) la misma no se ejecute, [the Claimant] será pasible de una multa de USD 100.000 (…) más danos y prejuicios acumulables”;

(Free translation: "Sixth - Early repayment.

In a unique and exclusive way, [Penarol] may request the early return of the player to rejoin its team (...). In case of refusal or (...) the same is not executed, [the Claimant] will be liable for a fine of USD 100,000 (...) plus damages and cumulative damages")

“Septima: impedimento.

[the Claimant] no podrá alinear ni convocar al jugador para enfrentar a [Penarol] en partidos oficiales so pena de multa de USD 50.000 (…) más danos y prejuicios acumulables”.

(Free translation: "Seventh: impediment.

[the Claimant] may not field or call the player to play against [Penarol] in official matches under penalty of a fine of USD 50,000 (...) plus cumulative damages".)

2. According to the information contained in the Transfer Matching System (hereinafter: TMS), the player, on contract with Penarol until 31 December 2020, has been loaned from Penarol to the Argentinian club, Arsenal Sarandí, for a loan period as from 25 January 2018 until 31 December 2018.

3. From the information available in TMS, the employment contract between the player and Arsenal Sarandí was mutually terminated on 23 July 2018.

4. Thereafter, according to the information available in TMS, the player and Penarol mutually terminated their contractual relationship on 15 August 2018. This information is available in TMS, in a transfer instruction related to the transfer of the player “out of contract free of payment International” from Penarol to the Respondent which was cancelled by AUF because the “Incorrect counter association” had been inserted in the system (in Spanish language: “El CTI se encuentra en la Asociación del Fútbol Argentino en carácter definitivo. Deberán solicitar allí el CTI” – Free translation: “The ITC is permanently within the Asociación del Fútbol Argentino. You must apply for the ITC there”).

5. According to the information available in TMS, the player was registered as a free agent with the Respondent on 28 January 2019, i.e. during the season of the player’s 23rd birthday. Arsenal Sarandi is indicated as the former club in the relevant transfer instruction.

Claim and Response:

6. On 27 February 2020, the Claimant claimed training compensation of EUR 55,726.03 on the basis of the registration of the player with the Respondent, plus 5 % interests p.a. as of the due date.

7. The Claimant argued that despite not being the “player’s former club stricto sensu, (…) within the framework of loans, the period of time that the player was registered with [the former club] and the period of time that the player was registered with the Claimant on loan, should be considered as one entire timeframe”.

8. On 28 February 2020, the FIFA administration made a proposal to the parties to the settle the matter suggesting that the Respondent should pay the Claimant the sum of EUR 55,726.03 as training compensation, plus 5% interests p.a. as from the due date.

9. The proposal was accepted by the Claimant and rejected by the Respondent.

10. On 30 March 2020, the Respondent rejected the claim arguing that the Claimant was not the player’s former club in the sense of art. 3 par 1 of Annexe 4 of the Regulations on the Status and Transfer of Players (RSTP). In addition, the Respondent alleged having only been made aware that Penarol was in fact the player’s former club once the latter had arrived in Chiasso.

11. Moreover, the Respondent referred to the content of the loan agreement concluded between Penarol and the Claimant and underlined that the former was the one that had to pay the player’s entire salary instead of the latter and that the player’s accommodation costs were borne by the player. Further, the Respondent recalled that the loan agreement provided for the Claimant to pay a penalty should it object to Penarol’s recall of the player or in case it should field the player against Penarol.

12. Consequently, the Respondent was of the opinion that the Claimant had not born any costs related to the player’s training, to the contrary of Penarol who invested in the player’s training during its time at the Claimant’s to lately benefit for such training.

13. Furthermore, the Respondent sustained that the player had already completed his training before joining the Claimant in January 2017.

14. In the alternative, the Respondent argued that “(…) since [the Claimant] saved EUR 11,989.84 being the overall Player’s remuneration during the loan pursuant to the Contract, this amount must be deducted from any possible training compensation payable”.

II. LEGAL CONSIDERATIONS

Applicable law: RSTP: June 2018 edition.

Procedural Rules: 2019 edition.

Jurisdiction: uncontested

Admissible: uncontested

Decision:

15. Despite the transfer instruction included in TMS indicated Arsenal Sarandi as the former club, the player’s former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations was Penarol.

16. The Claimant was not the player’s former club stricto sensu, however, in line with the jurisprudence of the DRC, within the framework of loans, the period of time that the player was registered with Penarol, the former club, and the period of time that the player was registered with the Claimant on loan, should be considered as one entire timeframe.

17. Bearing in mind the foregoing, the Respondent’s interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the RSTP contravenes the intention of the legislator which is for clubs that have trained a player to be, in principle, rewarded for their efforts, including those clubs that have accepted a player on a temporary basis.

18. According to the contents of the loan agreement concluded between Penarol and the Claimant in combination with art. 5. par. 1 of Annexe 4 of the RSTP, the Respondent failed to present conclusive evidence in the sense of art. 12 par. 3 of the Procedural Rules that Penarol was the only club bearing the training costs during the loan period with the Claimant.

19. Moreover, in line with the jurisprudence of the DRC and CAS, even though regular performance for a club’s “A” team can trigger the end of a player‘s training, this does not necessarily constitute the only and decisive factor of a player’s “early completion of training”. There are further factors that are generally taken into consideration such as the player’s value at a club, reflected in the salary a player is paid, in the loan fee that is achieved for his services or in the value of the player’s transfer, the player’s public notoriety at national and international level, his position at the club if established as a regular, the holding the captaincy or his regular inclusion in the national team.

20. In casu, it can be established that:

- until he joined the Respondent, the player had performed with three different clubs, however each time on a loan basis;

- according to the contents of the loan agreement concluded between Penarol and the Claimant, said loan was free of charge and Penarol took part of the player’s development fees;

- upon returning from the Claimant to Penarol, the player had been loaned to Arsenal Sarandi only 25 days later without playing for Penarol’s first team until the latter and the player mutually terminated the employment contract on 15 August 2018.

21. As such, it has to be assumed that the player has been loaned from Penarol to different clubs, including the Claimant, with the aim of allowing him to gain more experience and playing time so that he could eventually reach the required level to play for Penarol’s first team. Therefore, the training period of the player had not been completed before the season of his 21st birthday.

22. In conclusion, the Claimant is entitled to receive training compensation from the Respondent (cfr. Art. 2 par. 1 lit. b) of Annexe 4 of the RSTP)

23. The Claimant is entitled to training compensation for:

(i) 2017 season (season of the Player’s 21st birthday): 339 days.

24. The training costs are calculated, on a pro-rata basis, as follows:

(i) 2017 season - on the basis of a category II club, i.e. for UEFA, EUR 60,000 per year (cfr. Art. 5 par. 2 of Annexe 4 of the RSTP):

EUR 60,000 x (339 / 365) = EUR 55,726.03;

25. The Claimant is entitled to EUR 55,726,03 as training compensation.

26. The Claimant is entitled to receive 5% interests p.a. as of 28 February 2019, i.e. as of the day after the due date of the payment of training compensation, 30 days after the registration + 1 day.

27. Art. 24 bis is applicable.

DECISION

1. The claim of the Claimant, Sud America, is accepted.

2. The Respondent, FC Chiasso, shall pay to Sud America:

EUR 55,726.03 as training compensation plus 5% interest p.a. as from 28 February 2019 until the date of effective payment.

3. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to chhelpdesk@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

4. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

5. 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 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) 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

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