TAS-CAS – Tribunal Arbitral du Sport/Tribunale Arbitrale dello Sport – Court of Arbitration for Sport/Corte Arbitrale dello Sport (2016-2017) – tas-cas.org – atto non ufficiale – Arbitration CAS 2016/A/4542 FC Kuban v. FC Real Succes, award of 27 March 2017
Tribunal Arbitral du Sport Court of Arbitration for Sport
Arbitration CAS 2016/A/4542 FC Kuban v. FC Real Succes, award of 27 March 2017
Panel: Mr Lars Hilliger (Denmark), Sole Arbitrator
Football
Training compensation
Principle applicable to training compensation in case of loan of a player
Absence of proof regarding the simulation of loan triggering the obligation to pay training compensation
1. In principle, the loan of a player to another club does not interrupt the continuing training period of the player. As a consequence, a club which transferred a player on a loan basis to another club is entitled to training compensation for the period of time during which it effectively trained the player, however, excluding the period of time of the loan to the other club. Likewise, a club which is loaned a player, and thus effectively trains the player, is in principle entitled to training compensation corresponding to the period it provided training to that player. In this connection it is not essential to a club’s potential claim for training compensation that such club is not the last club with which the player was on loan prior to the registration of the player that triggers the entitlement to receive training compensation. The club with which a player has a permanent contract together with the club or clubs to which the player has actually been loaned may overall, when and as appropriate, be regarded as the player’s former club in relation to Article 3 para. 1 of Annex 4 of the FIFA Regulations on the Status and Transfer of Players (RSTP). The above-mentioned principle reasonably applies only in cases of loan periods and is not applicable in cases where the “interrupting period”, i.e. the period of time in which the player stayed with the club to which he was loaned, was a period in which the player was definitively transferred to said club and then was retransferred back to the club of origin. Only a professional may be loaned to another club on the basis of a valid written agreement. The decisive factor is therefore that the player formally meets the requirement of being registered as a professional in relation to the contract with the club of origin which is suspended during the loan. It is of no importance in a specific case that a player apparently received no remuneration during the period he spent with a club he was loaned to.
2. On CAS arbitration, any party wishing to prevail on a disputed issue must discharge its burden of proof. Where it has not been proven to the comfortable satisfaction of the panel that there was a simulation of loan, namely that the move of the player to a former club did in fact constitute a definite transfer, the “chain of loans” was therefore never interrupted in a definitive manner between the date of the signing of the contract with the club of origin of the player and the date of the player’s registration with another club, the latter, as a result of the registration of the player, is obliged to pay training compensation to any club(s) for the time this club(s) trained and educated the player.
1. THE PARTIES
1.1 FC Kuban (“Kuban” or the “Appellant”) is a Russian professional football club affiliated with the Football Union of Russia (the “FUR”), which in turn is member of the Fédération Internationale de Football Association (“FIFA”).
1.2 FC Real Succes (“Real Succes” or the “Respondent”) is a Moldovan professional football club affiliated with the Moldovan Football Federation (the “FMF”), which in turn is member of FIFA.
2. FACTUAL BACKGROUND
2.1 The elements set out below are a summary of the main relevant facts as established by the Sole Arbitrator on the basis of the decision rendered by the FIFA Dispute Resolution Chamber (the “DRC”) on 25 September 2015 (the “Decision”), the written submissions of the Parties and the FIFA file. Additional facts may be set out, where relevant, in the legal considerations of the present Award.
2.2 On 1 December 2010, the Moldovan football club FC Dacia and the Moldovan football player A., born in 1993 (the “Player”), entered into an employment agreement valid as from the date of signing until 31 December 2013 (the “Dacia Contract”).
2.3 During the time the Player was under contract with FC Dacia, the football season in Moldova ran from 1 June until 31 May the following year.
2.4 Clause 2 of the Contract stated, inter alia, as follows:
“This contract governs employment of a professional football player (non-amateur) by the Club, member of the FMF and stipulates the right and obligations of the parties related to the football activity. …”.
2.5 On 12 February 2011, FC Dacia and the Moldovan football club FC Gagauziya entered into a contract regarding the loan of the Player to the latter from the date of signing until 30 June 2011 (the “Gagauziya Loan Agreement”), and the Player and FC Gagauziya also signed an employment contract valid as of 10 February 2011 until 30 June 2011 (the “Gagauziya Contract”).
2.6 The Gagauziya Contract stated, inter alia, as follows:
“3. OBJECT OF THE CONTRACT:
This Contract governs employment of a professional football player (non-amateur) by the Club, member of MFF and stipulates the rights and obligations of the parties related to the football activity. …
…
5. TYPE OF WORK/ACTIVITY
5.1 Position/profession: PROFESSIONAL FOOTBALL PLAYER, according to the Status Classification and FIFA/UEFA/FAM Regulations.
…
9. WAGES
9.1 Basic gross salary constitutes 1300 MDL
…”.
2.7 On 1 July 2011, and following the loan to FC Gagauziya, the Player returned to FC Dacia and signed an order of reintegration, thus being reinstated in the terms and provisions of the Dacia Contract.
2.8 On 28 August and 31 December 2012, FC Dacia, the Player and FC Real Succes entered into two continuous contracts regarding the loan of the Player to the latter from 28 August 2012 until 31 December 2012 and 1 June 2013, respectively (the “FC Real Succes Loan Agreements”).
2.9 The FC Real Succes Loan Agreements stated, inter alia, as follows:
“…
Art. 3 The “Receiving party” concludes the Labor contract with the Player for the period of validity of this contract and is obliged to pay salary to the Player (only the second agreement).
…
Art. 6 Based on the present the “Receiving party” can conclude an amature – non amature (sic) contract with the transferred player”.
2.10 On 3 June 2013, and following the loan to FC Real Succes, the Player signed an order of reintegration, thus being reinstated in the terms and provisions of the Dacia Contract.
2.11 On 16 August 3 FC Dacia, the Player and the Moldovan football club FC Sfintul entered into a contract regarding the loan of the Player to the latter from the date of signing until 31 December 2013 (the “FC Sfintul Loan Agreement”), and FC Dacia and the Player apparently also signed a suspension order “to suspend individual labor contract with the football player A. for the period from 16.08.2013 till 31.12.2013 in connection with the transfer to FC Sfintul Gheorghe according to art. 77 p. (e) of Labor code of RM”.
2.12 By letter of 13 December 2013, FC Dacia proposed that the Player should extend his employment contract with the club, however, by letter of 17 December 2013, the Player informed FC Dacia: “The undersigned, A., hereby inform Football Club Dacia about the fact that I don’t intend to extend the contract in the future”.
2.13 On 26 February 2014, the Player was transferred out of contract and for free to the Appellant, with which club he was registered as a professional.
2.14 According to the information available in the FIFA Transfer Matching System (the “TMS”), at the time of the registration of the Player with the Appellant, the Appellant was registered as a UEFA category II club with the indicative amount of training costs of EUR 60,000 per year.
2.15 By letter of 3 October 2014 and following a letter from FC Dacia, the FMF wrote to the Respondent, stating, inter alia, as follows:
“Regarding your letter from 22 September 2014, […] Football Association of Moldova, informs You as follows:
The contract of the Player non-amateur between FC Dacia and A. was concluded for the period from 01 December 2010 till 31 December 2013.
1. The Player’s passport, which was issued by FAM contains a mistake due to the fact that Player’s transfer was not reflected in the electronic register of the FAM, The updated version of the passport is attached.
2. After the expiration of the period of loan at Football Club Real Succes 01 June 2013, the Player was obliged to come back to the location of the Football Club Dacia and thereafter was transferred to FC Sfintul Gheorghe on loan, according the loan agreement from 16 August 2013. […]”.
2.16 According to the Player´s Player Passport, the Player was registered, inter alia, as follows:
Registration dates: Name of club: Player status: Loan or permanent registration:
1/12-10 – 31/1-11 FC Dacia Professional Permanent
01/2-11 – 31/05-11 FC Gagauziya Professional Loan
1/7-11 – 31/5-12 FC Dacia Professional Permanent
1/6-12 – 27/8-12 FC Dacia Professional Permanent
28/8-12 – 31/5-13 FC Real Succes Amateur Loan
16/8-13 – 31/12-13 FC Sfintul Professional Loan
2.17 On 12 November 2014, FC Real Succes, together with FC Dacia and FC Gagauzyia, lodged their respective claims before the FIFA Dispute Resolution Chamber (the “FIFA DRC”) and requested payment of training compensation on the basis of the subsequent professional registration of the Player with FC Kuban. In particular, FC Real Succes requested payment of EUR 44,547 plus 5% interest p.a. as of the 31st day after the Player’s registration with FC Kuban, together with costs to be determined by the FIFA DRC.
2.18 In support of its claim, FC Real Succes submitted, inter alia, that FC Dacia had concluded a valid employment contract with the Player for a period ending 31 December 2013 and that, during this contract period, the Player was loaned for free to three Moldovan clubs, including FC Real Succes. In this context, it was entitled to receive training compensation from FC Kuban for the period in which the Player was effectively trained by the club since (i) it has contributed to the training of the Player, (ii) the loans of the Player do not constitute subsequent transfers within the meaning of Article 3 para. 1 of Annex 4 of the Regulations on the Status and Transfer of Players (the “Regulations”) and, consequently, (iii) loans for training compensation purposes must be understood as a continuous period.
2.19 In its reply, FC Kuban submitted, inter alia, that since (i) the Player was an amateur with FC Real Succes, (ii) there was no valid loan to the said club, and (iii) the Player did not go back to FC Dacia after his loan to FC Real Succes, it is of the opinion that the Player was registered as a free agent with FC Sfintul. Alternatively, FC Kuban asserted that the transfer of the Player from FC Dacia to FC Sfintul was a definitive transfer since FC Dacia could not call the Player back, it did not pay the Player’s remuneration, the duration of the said loan corresponded to the remaining part of the Dacia Contract, and the FC Sfintul Loan Agreement was called a “transfer agreement”.
2.20 Moreover, FC Kuban submitted that since the Player was only 17 years old at the time he entered into the Dacia Contract, pursuant to the Regulations, the maximum length of the said contract could be three years. In light of the above, since the Player was thus registered with FC Sfintul without having a valid employment contract with FC Dacia, it has to be understood as a definitive transfer to FC Sfintul. Thus, the only club entitled to receive training compensation is the last club with which the Player was registered on loan. Finally, FC Kuban rejected the claim for interest due to lack of contractual or regulatory basis and, furthermore, rejected any claim for procedural compensation and costs.
2.21 In its replica, FC Real Succes rejected the application of the Regulations to a national Moldovan employment relationship as well as FC Kuban’s interpretation regarding the alleged early termination of the Dacia Contract and, consequently, the alleged conversion of the Sfintul Loan Agreement into a definitive transfer. Furthermore, even if the Player was registered as an amateur during his temporary stay with FC Real Succes, the Player kept his professional registration on a permanent basis with FC Dacia. Both the Dacia Agreement, the FC Real Succes Loan Agreements and the Player’s employment agreement were only subject to FMF’s regulations and, accordingly, were not subject to the Regulations.
2.22 Moreover, FC Real Succes rejected the allegations that the Player never returned to FC Dacia after his loan to the club. As confirmed by the FMF, the Player was under contract with FC Dacia and did indeed return to the said club for the period between 1 June and 15 August 2013. Furthermore, in the Sfintul Loan Agreements, FC Dacia and FC Sfintul did not include an “option clause”, agreed that the loan was for free, agreed on a fixed loan and agreed that Sfintul did not have to pay the Player’s remuneration during the loan period. Finally, the template used for the agreement was the FMF template, and it was further noted that FC Dacia had offered the Player a new contract.
2.23 In its duplica, FC Kuban held that FC Real Succes failed to prove that the Player concluded an employment agreement with the club and that Article 2 of the Regulations applies at the national level, as well. Consequently, the employment relationship between the Player and FC Dacia was terminated tacitly upon the registration of the Player with FC Real Succes, with which he was registered as an amateur.
2.24 Furthermore, FC Kuban underlined that FC Real Succes failed to provide evidence of the return of the Player to FC Dacia after his loan to the club. As a result, it must be asserted that the Player has not been registered with FC Dacia since 28 August 2012, which should be considered the termination date of the Dacia Contract. Finally, the alleged loan from FC Dacia to FC Sfintul was a simulation as well since the Player was a minor at the date of the signature of the Dacia Contract, and the said contract had consequently no effect after 1 December 2013.
2.25 The FIFA DRC, after having confirmed its competence, concluded that the 2012 edition of the Regulations was applicable to the case.
2.26 The FIFA DRC then recalled that the Player was registered on loan with FC Real Succes for the period between 28 August 2012 and 31 May 2013 and that, after this loan, the Player returned to FC Dacia with which he was still contractually bound and subsequently loaned to FC Sfintul. Thereafter, the Player was internationally transferred out of contract free of payment from FC Dacia to FC Kuban.
2.27 Taking into consideration that any party claiming a right on the basis of an alleged fact carries the burden of proof, the FIFA DRC then noted that – according to the information contained in the TMS and in view of the clarification provided by the FMF and the loan agreements provided by the Parties – the Player was a professional while registered with FC Dacia and that he was loaned on the basis of three written agreements to three different Moldovan clubs, including the Respondent. In this regard, the FIFA DRC formed the belief that regardless of what the status of the Player was with each of these loaning clubs, the Player was under an employment contract with FC Dacia and, therefore, has to be considered as a professional during the whole period.
2.28 Furthermore, the FIFA DRC pointed out that Article 18 para. 2 of the Regulations regulates the relationship between professional players and clubs. As such, no third party to such a relationship is entitled to claim that the length of such a contract freely concluded between and fully executed by the player and the club contravened the said provision since such a claim would necessarily need to be put forward by one of the parties to the relationship.
2.29 Moreover, the FIFA DRC referred to the information of the TMS, according to which the last club of the Player was FC Dacia. In light of the above, the FIFA DRC concluded that the Player’s move to FC Sfintul constituted a loan and not a definitive transfer as alleged by FC Kuban.
2.30 Having established the foregoing, the FIFA DRC referred to the rules applicable to training compensation. As established in Article 20 of the Regulations as well as in Article 1 para. 1 of Annex 4, as read with Article 2 para. 1 of Annex 4 of the Regulations, training compensation is payable, as a general rule, for training incurred between the ages of 12 and 21 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 two clubs of two different associations before the end of the season of the player’s 23rd birthday. In case the latter occurs, Article 3 para. 1, third sentence, of Annex 4 of the Regulations sets forth that training compensation will only be owed to the player’s former club for the time he was effectively trained by that club.
2.31 Furthermore, pursuant to Article 10 para. 1 of the Regulations, a professional may be loaned to another club on the basis of a written agreement between the professional and the club concerned. Moreover, the last sentence of the said provision stipulates that any such loan is subject to the same rule that applies to the transfer of players, including the provisions on training compensation and the solidarity mechanism.
2.32 Following the above, FIFA DRC stressed that one of the aims of the last sentence of Article 10 para. 1 of the Regulations is to ensure that training clubs which register a player on a loan basis also benefit from the solidarity mechanism and the training compensation, provided that the relevant prerequisites in the pertinent provisions of the Regulations are fulfilled. This approach is also in line with the FIFA DRC’s well-established jurisprudence that all clubs which have in actual fact contributed to the training and education of a player from the age of 12 are, in principle, entitled to training compensation for the period of time the player was effectively trained by them. Thus, the nature of a player’s registration with a club claiming training compensation, i.e. on a definitive or on a temporary basis, is in fact irrelevant with respect to the question as to whether such a club should be entitled to receive training compensation for the period of time the player was effectively trained by that club.
2.33 The FIFA DRC further emphasised that, as to the obligation to pay training compensation, the analogy established in Article 10 para. 1 of the Regulations could not be extended to the case in which a player is loaned to a club and therefore is not being definitively transferred to the latter cub. Thus, a transfer of a player from the club of origin to the club that accepted him on loan and the return of the said player from the club which accepted him on loan to the club of origin do not constitute a “subsequent transfer” within the meaning of Article 3 para. 1, third sentence, of Annex 4 of the Regulations. This would potentially deprive the loan of its essential flexibility and overall purpose.
2.34 Following the above, the FIFA DRC pointed out that the obligation to pay training compensation thus arises in case a player is definitively transferred from one club to another club belonging to a different association, but not when he is temporarily transferred to another club while still being contractually bound to his club of origin (yet, with the effects of the relevant contract being temporarily suspended), such as a loan. Hence, the relevant entitlement can only be claimed towards a new club that acquires the services of a player on a definitive and permanent basis subject to the fulfilment of the prerequisites established in Article 20 and Annex 4 of the Regulations.
2.35 As to the argument by FC Kuban that FC Real Succes was not the Player’s former club stricto sensu, the FIFA DRC pointed out that, within the framework of loans and for the purposes of the rules governing training compensation, the period of time the Player was registered with the other Moldovan clubs on loan and the period of time the Player was registered with FC Dacia should be considered as one continuous period of time. Any other interpretation would lead to a situation where clubs accepting a player on loan would never be entitled to receive training compensation, even if they contribute to the training and education of players.
2.36 Bearing that in mind, the FIFA DRC deemed that FC Kuban’s interpretation of Article 3 para. 1, third sentence, of Annex 4 of the Regulations is incorrect and would clearly conflict with the intention of the legislator of the Regulations, according to which all training clubs must, in principle, be rewarded for their efforts invested in training young players, including clubs that have accepted a player on a temporary basis.
2.37 Thus, the FIFA DRC found that the loans of the Player to the Respondent and the two other Moldovan clubs cannot be considered to constitute subsequent transfers, which would trigger the consequences stipulated in Article 3 para. 1, third sentence, of Annex 4 of the Regulations.
2.38 Moreover, and taking into consideration that FC Kuban belonged to UEFA Category II with the indicative amount of training costs of EUR 60,000 per year at the time of the registration of the Player, combined with the fact that the Player was registered with FC Real Succes as from 28 August 2012 until 31 May 2013, corresponding to nine months, the FIFA DRC accepted the claim of FC Real Succes and decided that FC Kuban is liable to pay training compensation to FC Real Succes in the amount of EUR 44,547.
2.39 On 25 September, the FIFA DRC issued its Decision stating, inter alia, as follows: “
1. The claim of [FC Real Succes], is partially accepted.
2. [FC Kuban ] has to pay to [FC Real Succes]within 30 days as of the date of notification of the present decision, the amount of EUR 44,547 plus 5% interest p.a. of 29 March2014.
3. If the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4. Any further claim lodged by [FC Real Succes] is rejected.
5. The final costs of the proceedings in the amount of CHF 6,000 are to be paid by the [FC Kuban ] within 30 days of notification of the present decision as follows:
5.1 The amount of CHF 4,000 has to be paid to FIFA …..
5.2 The amount of CHF 2,000 has to be paid directly to [FC Real Succes] …”.
3. SUMMARY OF THE ARBITRAL PROCEEDINGS BEFORE THE CAS
3.1 On 7 April 2016, the Appellant filed its Statement of Appeal in accordance with Articles R47 and R48 of the CAS Code of Sports-related Arbitration (the “CAS Code”) against the Decision rendered by the FIFA DRC on 25 September 2015.
3.2 On 13 May 2016, the Appellant filed its Appeal Brief in accordance with Article R51 of the Code.
3.3 On 27 July 2016, the Respondent filed its Answer in accordance with Article R55 of the Code.
3.4 By letter dated 6 June 2016, in accordance with Article R54 of the CAS Code, the Parties were informed by the CAS Court Office that Mr Lars Hilliger, attorney-at-law in Copenhagen, Denmark, had been appointed Sole Arbitrator to resolve the dispute.
3.5 By letter of 14 July 2016, the Parties were informed that the Sole Arbitrator had decided to deny the Appellant’s request to be granted a second round of submission for lack of exceptional circumstances pursuant to Article R56 of the CAS Code. However, upon receipt of the FIFA file, which the Sole Arbitrator had requested on the same date, the Parties may be invited to file their comments, where necessary.
3.6 By letter of 10 October 2016, the Parties were forwarded a copy of the FIFA file and were granted a short deadline to file their respective comments on the said file.
3.7 On 21 October 2016, both Parties submitted their comments on the FIFA file, however, the letter of the Appellant also contained its comments on certain exhibits filed by the Respondent together with its Answer, and, furthermore, the Appellant forwarded extracts of the Labour Code of Moldova and a piece of legal literature.
3.8 By letter of 16 November 2016, and following a request from the Respondent, the latter was granted a short deadline to file its comments with regard to the new arguments put forward by the Appellant in its written submission of 21 October 2016. The Respondent submitted its comments by letter of 23 November 2016.
3.9 By letter of 29 November 2016, and following the Parties’ submissions on the same issue, the CAS Court Office informed the Parties that the Sole Arbitrator deemed himself sufficiently informed to decide the case and render an award, based solely on the written submissions received without holding a hearing.
3.10 On 21 and, respectively, 26 December 2016, the Parties both duly signed and returned the Order of Procedure.
3.11 By signing the Order of Procedure, the Parties confirmed their agreement that the case may be decided solely on the basis of the written submissions and that their right to be heard had been duly respected.
3.12 The Sole Arbitrator examined carefully and took into account in his deliberations all the evidence and arguments presented by the Parties, even if they have not been expressly summarised in the present Award.
4. CAS JURISDICTION AND ADMISSIBILITY OF THE APPEAL
4.1 Article R47 of the CAS Code states as follows: “An appeal against the decision of a federation, association or sports-related body may be filed with the CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of that body”.
4.2 With respect to the Decision, the jurisdiction of the CAS derives from Article 67(1) of the FIFA Statutes as it determines that “[a]ppeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question”. In addition, neither the Appellant nor the Respondent objected to the jurisdiction of CAS, which was furthermore confirmed by the Parties signing the Order of Procedure.
4.3 The Decision with its grounds was notified to the Appellant on 17 March 2016, and the Appellant’s Statement of Appeal was lodged on 7 April 2016, i.e. within the statutory time limit of 21 days set forth in Article 67(1) of the FIFA Statutes, which is not disputed. Furthermore, the Statement of Appeal and the Appeal Brief complied with all the requirements of Articles R48 and R51 of the CAS Code.
4.4 It follows that the CAS has jurisdiction to decide on the Appeal and that the Appeal is admissible.
5. APPLICABLE LAW
5.1 Article R58 of the Code states as follows: “The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.
5.2 Article 66 para 2 of the FIFA Statutes states as follows: “The provisions of the CAS Code of Sports-Related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law”.
5.3 Based on the above, and with reference to the Parties’ submissions, which are consistent with these provisions, the Sole Arbitrator is satisfied to accept the application of the Regulations and, additionally, Swiss law, both insofar as the application relates to the normative application and interpretation of the Regulations, and to the extent that the Panel has to decide on matters not addressed in the Regulations.
5.4 As such, the Sole Arbitrator rejects the submission by the Respondent that FMF regulations must be taken into consideration where needed.
5.5 Finally, the Sole Arbitrator agrees with the FIFA DRC and the Parties that the FIFA Regulations on the Status and Transfer of Players (2012 edition) are applicable to the present matter.
6. THE PARTIES’ REQUESTS FOR RELIEF AND POSITIONS
6.1 The following outline of the Parties’ requests for relief and positions is illustrative only and does not necessarily comprise every contention put forward by the Parties. The Sole Arbitrator, however, has carefully considered all the submissions and evidence filed by the Parties with the CAS, even if there is no specific reference to those submissions or evidence in the following summary.
6.2 The Appellant
6.2.1 In its Appeal Brief, the Appellant requested the following from the CAS:
1. To set aside and annul the decision passed on 25 September 2015 by the FIFA Dispute Resolution Chamber.
2. To establish that FC Kuban does not owe training compensation to FC Real Succes for the player A.
3. To establish that FC Kuban does not have to pay any costs for the proceedings at FIFA.
4. To order FC Real Succes to bear all the costs incurred with the present procedure.
5. To order FC Real Succes to pay FC Kuban a contribution towards its legal and other costs, in an amount to be determined at the discretion of the Panel.
6.2.2 In support of its requests for relief, the Appellant submitted as follows:
a) The FMF regulations on the status of professional players and loan transfers cannot deviate from the provisions stipulated in the Regulations, which are mandatory at the national level and, therefore, apply to the Player’s move from FC Dacia to the Respondent.
b) In accordance with the Regulations, training compensation is payable, as a general rule, for training incurred between the ages of 12 and 21, when a player is registered for the first time as a professional, or when a professional is transferred between two clubs of two different associations before the end of the season of the player’s 23rd birthday. Furthermore, in case of a subsequent transfer of the professional, training compensation will only be owed to his former club for the time he was effectively trained by that club.
c) However, there was never any valid loan of the Player executed between FC Dacia and FC Real Succes, and the employment relationship between the Player and FC Dacia was terminated tacitly by mutual consent upon the registration of the Player with FC Real Succes as an amateur on 28 August 2012.
d) The Respondent failed to prove that the club and the Player ever concluded an employment contract for the Player for the duration of the alleged loan period, or that either FC Real Succes or FC Dacia paid any salary to the Player during the said period. On the contrary, the Player acquired amateur status when he was registered with FC Real Succes, which fact is proven, inter alia, by the information in the Player Passport.
e) Furthermore, there is no evidence proving that the Player was actually registered with FC Dacia after his stay with FC Real Succes, and according to the Player Passport, the Player was never registered with any club in the period between 1 June and 15 August 2013 as it was not until 16 August 2013 that the Player was registered with FC Sfintul as a professional.
f) In this respect, the Decision conflicts with the Regulations and the settled FIFA and CAS jurisprudence by ruling that “the DRC formed the belief that regardless of what the status of the player was with each of these clubs, the player was under an employment contract with FC Dacia and, therefore has to be considered as a professional during the whole period”.
g) With regard to the application of Article 10 para. 1 of the Regulations, pursuant to the Commentary on the Regulations for the Status and Transfer of Players (the “Commentary”) “[…] Only professionals can be loaned. The loan of an amateur is not possible, since the club loaning the player must be in possession of a valid employment contract at the moment the player leaves on loan. […] The two clubs and the player are also entitled to enter into a tripartite agreement in which the terms of the loan and employment are established. In any event, the player and the new club shall stipulate an employment contract for the duration of the loan. […]”.
h) In this case, and since an employment contract with FC Real Succes was never concluded, coupled with the fact that no remuneration was ever paid to the Player during his stay with the club, the Player should be considered as an amateur during this period. Since it was consequently not possible for the Player to maintain his status as a professional during his stay with Real Succes, and since only professionals may be loaned from one club to another, the Dacia Contract should be considered to have been terminated tacitly by mutual consent between the Player and FC Dacia upon the registration of the Player with FC Real Succes as an amateur on 28 August 2012. This is supported by the Respondent’s failure to prove that FC Dacia did in fact pay the Player’s salary in the period from 1 June until 31 December 2013, i.e. for the time remaining on the Dacia Contract.
i) Based on that, the “chain of loans” was interrupted by the Player’s move to FC Real Succes because each time a player is definitively transferred to another club, it interrupts the former club’s entitlement to training compensation. Hence, the FIFA DRC erred by applying the “loan segmentation principle”, which applies only in cases of a valid loan of a professional. As such, any training compensation payable to the Respondent should be paid by FC Sfintul, since it was the last club with which the Player was permanently registered as a professional prior to his transfer to the Appellant.
j) In the alternative, and only if these submissions are rejected, the Appellant submits that the Player’s move from FC Dacia to FC Sfintul was a definitive transfer and, accordingly, that the FC Sfintul Loan Agreement is an evident simulation of a loan.
k) The FIFA DRC failed to or omitted to assert the Appellant’s arguments regarding contractual simulation, thereby violating the Appellant’s right to be heard, and the Sole Arbitrator should therefore review the matter de novo in accordance with Article R57 of the CAS Code.
l) In accordance with the jurisprudence of FIFA and the CAS, in favour of the Player’s move to FC Sfintul being a definitive transfer, the following facts, which were never rebutted by the Respondent, nor by FC Dacia, before the FIFA DRC, must be taken into account: (i) there was no mechanism to either call back the Player or send the Player back, (ii) FC Dacia ceased paying the Player’s salary and medical insurance during the loan, (iii) the duration of the loan corresponded to the remaining part of the Dacia Contract, (iv) being 17 years old when he signed the Dacia Contract, the Player was in fact without a valid contract with the Respondent from 1 until 31 December 2013, (v) the FC Sfintul Loan Agreement was referred to as the “Transfer Contract”, (vi) the Player was under no obligation to return to FC Dacia after the expiry of the alleged loan, and (vii) FC Sfintul was under no obligation to return the registration of the Player to FC Dacia after the expiry of the alleged loan.
m) Based on that, it must be concluded that FC Dacia and FC Sfintul did not internally want to produce a loan of the Player, but wanted to execute a definitive transfer, as they did. In reality, the two clubs wanted to hide or mask the Player’s definitive transfer to FC Sfintul for the purpose of circumventing the provision of Article 3 para. 1 of Annex 4 of the Regulations, in order for FC Dacia and the other Moldovan clubs, including the Respondent, to preserve their right to claim training compensation from the Player’s new club in case of an international transfer, as it happened.
n) As it follows, FC Sfintul is the “former club” within the meaning of Article 3 para. 1 of Annex 4 of the Regulations, and training compensation is thus owed by the Appellant only to FC Sfintul for the time the Player was effectively trained by that club.
6.3 The Respondent
6.3.1 In its Answer, the Respondent filed the following requests for relief:
1. The appeal filed by OSJC Football Club “KUBAN”, in this arbitration procedure is dismissed.
2. The decision issued by the Dispute Resolution Chamber of FIFA on 25 September 2015 is confirmed.
3. OSJC Football Club “KUBAN” shall be ordered to sustain all the costs of this arbitration procedure.
4. OSJC Football Club “KUBAN” shall be ordered to reimburse FC Real Succes all the legal fees and other costs suffered in connection with this arbitration procedure, in an amount to be determined at the Panel’s discretion.
6.3.2 In support of its requests for relief, the Respondent submitted as follows:
a) The Player, who was under the Dacia Contract with FC Dacia from 1 December 2010 until 31 December 2013, was transferred on loan for free to three different Moldovan clubs during the length of the said contract in order to foster his training and education as follows: (i) between 10 February 2011 and 30 June 2011 to FC Gagauziya; (ii) between 28 August 2012 and 1 June 2013 to FC Real Succes, and (iii) between 16 August 2013 and 31 December 2013 to FC Sfintul.
b) Although not appearing in the Player Passport, the Player returned to FC Dacia from his loan with FC Real Succes on 1 June 2013 before being re-transferred on loan to FC Sfintul on 16 August 2013, which is supported by evidence submitted to the CAS during these proceedings.
c) The pillar concept of the rules regarding training compensation is that clubs investing in the training and education of young players have to be rewarded and that the compensation is distributed from the top of the football pyramid to the very bottom.
d) It is undisputed that the Respondent, among other clubs, effectively and successfully contributed to the Player’s training, which fact must be kept in mind as a starting point.
e) Pursuant to the Regulations, training compensation is due when, inter alia, a professional is transferred between clubs of different associations (whether during or at the end of a contract) before the end of the season of his 23rd birthday. 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.
f) According to the consistent jurisprudence of FIFA and the CAS, the concept of “subsequent transfer” and its consequence as mentioned does not apply to cases where the transfer is a loan.
g) FC Dacia kept the definitive registration of the Player for all the duration of the Dacia Contract and only transferred the Player on loan for free to three different Moldovan clubs in order to foster his training and let him improve his skills. Consequently, the Decision was correct in ruling that FC Dacia is entitled to training compensation both for the period of training before and after the loan periods with the three different clubs, and the three Moldovan clubs, including the Respondent, are likewise entitled to training compensation for the periods when the Player was on loan with each of these clubs.
h) With regard to the status of the Player, it has been proven, both by documents and by the Player, that he kept his registration as a professional for all the duration of the Dacia Contract. Thus, the Player was a professional also during the short loan periods he spent with other clubs during the same period of time, like his stay with the Respondent.
i) The Appellant is wrong in submitting that since the Player was an amateur during his stay with FC Real Succes, and since, according to the Appellant, only professionals may go on loan, the loan to FC Real Succes has to be automatically considered a definitive registration.
j) In that connection it must be noted that the loan agreements are subject only to the FMF rules since all the clubs involved are Moldovan clubs and such loans are allowed pursuant to the applicable FMF rules.
k) Furthermore, the FIFA DRC was correct in stating that regardless of the status of the Player with each of the loaning clubs, the Player was still under an employment contract with FC Dacia and, therefore, has to be considered as a professional during the whole period.
l) Regardless of whether or not the Player signed an employment contract with the Respondent and whether or not he received any remuneration during his loan with the club, it is absolutely irrelevant for the purpose of establishing that he kept his professional status, which is proven and undisputed. The allegation that the Player was not paid any remuneration during the loan to FC Real Succes is in any case disputed.
m) Furthermore, no alleged “tacit” termination “by mutual consent” between the Player and FC Dacia of the Dacia Contract ever occurred, and the Appellant failed to prove its allegations.
n) The Respondent also disputes the allegations made by the Appellant that from 1 June until 15 August 2013, the Player was not registered with any club and thereafter, on 16 August 2013, the Player was registered with FC Sfintul as a professional. The fact that the Player actually was with FC Dacia during the said period is proven before the CAS by submitting written evidence of such fact. Thus, the Player returned to FC Dacia after his loan to FC Real Succes and was then retransferred on loan from the Respondent to FC Sfintul as a professional.
o) As such, it must be concluded that FC Dacia’s “chain of entitlement” of training compensation was never interrupted by the Player’s loan to FC Real Succes and that the “loan segmentation principle” applies insofar as a valid loan of a professional was executed, and the Appellant is therefore liable for payment of training compensation, not only to FC Dacia but also to the Respondent for the period of time during which the Player was on loan with the Respondent.
p) With regard to the loan of the Player to FC Sfintul, this did in fact constitute a loan of the Player, which was in fact dealt with by the FIFA DRC, and the Appellant failed to prove differently. Thus, the Player was never transferred to FC Sfintul on a permanent basis, and the loan agreement did not in any way turn into such a permanent transfer.
q) Based on the evidence submitted by the Respondent, it must thus be evidently concluded that the employment relationship between the Player and FC Dacia remained valid until 31 December 2013 in accordance with the terms of the Dacia Contract.
7. MERITS
7.1 Initially, the Sole Arbitrator notes that it is undisputed that on 1 December 2010, the Player and FC Dacia signed the Dacia Contract, valid as from the date of signing until 31 December 2013 (the “Dacia Contract Period”) and that the Player was registered as a professional with the said club.
7.2 It is further undisputed that, on 26 February 2014, the Player, who, at that time, was under the age of 23, was transferred out of contract and for free to the Appellant, with which club the Player was registered as a professional. According to the information of the TMS, at the time of the registration of the Player with the Appellant, the latter was registered as a UEFA Category II club with the indicative amount of training cost of EUR 60,000 per year, which is also undisputed. Also, the Sole Arbitrator notes that he considers it proven that the FC Dacia did in fact offer the Player a new contract before the expiry of the Dacia Contract, which offer was rejected by the Player.
7.3 Furthermore, it is undisputed that during the Dacia Contract Period, the Player was transferred to/registered with the following three Moldovan football clubs as follows: (i) between 10 February 2011 and 30 June 2011 with FC Gagauziya; (ii) between 28 August 2012 and 31 May 2013 with FC Real Succes, and (iii) between 16 August 2013 and 31 December 2013 with FC Sfintul.
7.4 According to the Player’s Player Passport issued by the FMF on 3 October 2014, the Player was registered, inter alia, as follows:
Registration dates: Name of club: Player status: Loan or permanent registration:
1/12-10 – 31/1-11 FC Dacia Professional Permanent
01/2-11 – 31/05-11 FC Gagauziya Professional Loan
1/7-11 – 31/5-12 FC Dacia Professional Permanent
1/6-12 – 27/8-12 FC Dacia Professional Permanent
28/8-12 – 31/5-13 FC Real Succes Amateur Loan
16/8-13 – 31/12-13 FC Sfintul Professional Loan
7.5 However, while the Parties agree that the Appellant’s registration of the Player on 26 February 2013 triggers an obligation for the Appellant to pay training compensation to FC Sfintul, in accordance with the Regulations, the Parties disagree over whether or not the Appellant is also obliged to pay training compensation to the Respondent (and to FC Dacia and FC Gagauziya, whose claims are being dealt with separately in two parallel CAS proceedings). However, in case the Appellant is found liable to pay training compensation to the Respondent, the Parties agree that the amount of training compensation payable amounts to EUR 44,547, as decided by the FIFA DRC in the Decision.
7.6 Thus, the main issue to be resolved by the Sole Arbitrator is whether the Appellant, as a result of the registration of the Player with the Appellant, is obliged to pay training compensation to the Respondent for the training and education of the Player during his time with the latter?
7.7 Article 20 of the Regulations provides, inter alia, that:
“Training compensation shall be paid to a player’s training club(s): (1) when a player signs his first contract as a professional, and (2) each time a professional is transferred until the end of the season of his 23rd birthday. The obligation to pay training compensation arises whether the transfer takes place during or at the end of the player’s contract. The provisions concerning training compensation are set out in Annex 4 of these regulations”.
7.8 Furthermore, according to Article 3 para. 1 of Annexe 4 of the Regulations:
“On registering as a professional for the first time, 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.
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”.
7.9 The Sole Arbitrator further notes that Article 10 of the Regulations provides, inter alia, that:
“A Professional may be loaned to another club on the basis of a written agreement between him and the clubs concerned. Any such loan is subject to the same rules as apply to the transfer of players, including the provisions on training compensation and solidarity mechanism”.
7.10 With regard to the application of Article 10 of the Regulations, the Commentary states, inter alia, that:
“The loan of a player by one club to another constitutes a transfer for a predetermined period of time. Only professionals can be loaned. The loan of an amateur is not possible, since the club loaning the player must be in possession of a valid employment contract at the moment the player leaves on loan. The conditions governing the loan of a professional, such as the duration of the loan and the obligation to which the loan is subject, shall be regulated by a separate written contract. A loan contract is in principle only concluded between the two clubs. The player is, however, often asked to co-sign it so as to give his consent to the transfer on a loan basis. The two clubs and the player are also entitled to enter into a tripartite agreement in which the terms of the loan and employment are established. In any event, the player and the new club shall stipulate an employment contract for the duration of the loan. The minimum period of loan shall be the time between two registration periods”. […]”.
“A loan is subject to the same rules that apply to the transfer of players, including the provisions on training compensation and solidarity mechanism. In other words, the club receiving the player on loan shall retain 5% of the loan fee and distribute it to all clubs that contributed to training the player between the ages of 12 and 23. At the same time, the club receiving a player on loan is entitled to claim training compensation and a solidarity contribution for the time the player remained with it and it can claim training compensation if the player transfers to a third club provided the player is younger than 23”.
7.11 The Appellant submits that no valid loan of the Player was ever executed between FC Dacia and the Respondent and that the employment relationship between FC Dacia and the Player was terminated tacitly by mutual consent upon the registration of the Player as an amateur with the Respondent on 28 August 2012. Furthermore, there is no evidence that the Player was ever registered with any club from the time when he was no longer with the Respondent (from 1 June 2013) until he was registered with FC Sfintul on 16 August 2013.
7.12 As such, the “chain of loans” was interrupted by the Player’s move to the Respondent, and the Appellant is thus not obliged to pay any training compensation to the Respondent, because each time a player is definitively transferred to another club, the former club’s entitlement to training compensation is interrupted.
7.13 Initially, the Sole Arbitrator notes that the actual rationale of the training compensation system is to encourage the recruitment and training of young players. However, often such young players are not proficient enough to play for the first team of the club of origin, and in order to give such players the opportunity, inter alia, to train with and play for another team, players are therefore loaned to other clubs to gain such experience, which in general is considered beneficial for both the clubs and the players.
7.14 However, if such a loan would entail the consequence that the club of origin would thereby waive its entitlement to training compensation, the said club might decide not to loan the player in question to another club, merely in order to secure its entitlement to training compensation subject to the fulfilment of the conditions in the Regulations.
7.15 The Sole Arbitrator regards such a situation as undesirable and, thus, endorses the decision in CAS 2013/A/3119, according to which a loan of a player to another club does not interrupt the continuing training period of the player. As a consequence, a club which transferred a player on a loan basis to another club is entitled to training compensation for the period of time during which it effectively trained the player, however, excluding the period of time of the loan to the other club.
7.16 In continuation hereof, and with reference to, inter alia, the Commentary on the application of Article 10 of the Regulations (see para. 7.10 above), the Sole Arbitrator furthermore agrees with the Panel in CAS 2013/A/3119 (para. 115) when stating that “A club which [is] loaned a player; and thus effectively trains the player, is in principle entitled to training compensation corresponding to the period it provided training to that player, […]”.
7.17 The Sole Arbitrator notes in this connection that it is not essential to the Respondent’s potential claim for training compensation that the Respondent, if applicable, is not the last club with which the Player was on loan prior to the registration of the Player that triggers the entitlement to receive training compensation. The rationale behind the principle that a club which loans a player may also be entitled to receive training compensation if the conditions for such compensation were subsequently fulfilled, see the Regulations, would become partially illusory if this was subject to the condition that the club in question would have to be the last club with which the relevant player was on loan before the registration triggering training compensation.
7.18 The value of and expenses associated with the training concerned are not changed by the possibility that the player in question might be loaned anew, on which the original loaning club has typically no influence either. If it was the last loaning club that was entitled, if relevant, to receive training compensation, this would potentially result in a loss of rights for the club signing the first loan agreement in a manner which the Sole Arbitrator deems undesirable, unfair and not least arbitrary. It is therefore the Sole Arbitrator’s assessment that the club with which a player has a permanent contract together with the club or clubs to which the player has actually been loaned in accordance with the Regulations may overall, when and as appropriate, be regarded as the Player’s former club in relation to Article 3 para. 1 of Annex 4 of the Regulations.
7.19 However, the Sole Arbitrator stresses, also in line with the above-mentioned award, that the above-mentioned principle reasonably applies only in cases of one or several loan periods and is not applicable in cases where the “interrupting period”, i.e. the period of time in which the player in question stayed with the other club, was a period in which the player was definitively transferred to the other club and then was retransferred back to the club of origin.
7.20 Thus, the Sole Arbitrator has to decide whether the “chain of loans” was ever interrupted in a definitive manner between the date of the signing of the Dacia Contract and the date of the Player’s registration with the Appellant. The Sole Arbitrator notes that it is undisputed that the Player was on loan with FC Gagauziya during the spring and summer of 2011.
7.21 With regard to the Player’s stay with the Respondent between 28 August 2012 and 31 May 2013, the Sole Arbitrator notes that the Appellant submits that since the Player never signed any employment agreement with the Respondent and was never paid any remuneration during this stay, the Dacia Contract was terminated tacitly by mutual consent upon the registration of the Player with FC Real Succes as an amateur.
7.22 The Sole Arbitrator notes in this regard that according to the FC Real Succes Loan Agreements, FC Real Succes was entitled to “conclude an amature – non-amature (sic) contract” with the Player, and according to the second of the two contracts, FC Real Succes “is obliged to pay salary to the Player”. It is also noted that the Player, in his written witness statement submitted during these proceedings, stated that he never entered into a professional contract with FC Real Succes and never received any payment during his stay with the Respondent.
7.23 However, the Sole Arbitrator further notes that the FMF did in fact register the loan as a valid loan in the Player Passport, even if the Player’s status during this period was registered as that of amateur.
7.24 Pursuant to Article 10 of the Regulations, “a Professional may be loaned to another club on the basis of a written agreement between him and the clubs concerned […]”, and it is undisputed that the FC Real Succes Loan Agreements were both signed by the Player and the clubs concerned, thus constituting, at least at the outset, a valid loan of the Player. It is furthermore noted, that the Player was indisputably registered as a professional with FC Dacia at the time of the signing of the first of the said loan agreements.
7.25 Although it has not been proven whether the Player and Respondent did in fact enter into a valid employment agreement, nor whether the Player was indeed paid any remuneration during the period he spent with the Respondent, the Sole Arbitrator finds that the Appellant cannot use this absence of proof as a valid argument that no valid loan agreement existed between the Player and the Respondent and/or that the Dacia Contract was terminated tacitly by mutual consent upon the registration of the Player with FC Real Succes as an amateur.
7.26 In this connection, the Sole Arbitrator emphasises, inter alia, that the Player’s period with FC Real Succes was extended by the three parties’ conclusion of the second FC Real Succes loan agreement, which would have been unnecessary if the three parties had not all agreed on the continuance of the loan, coupled with the fact that the Player, as mentioned below, did in fact return to FC Dacia after the expiry of the agreed loan period. Besides, the Player apparently accepted the terms and conditions applicable during the loan period, since it must be expected, if this had not been the case that the Player would have refused to extend the loan period.
7.27 The Sole Arbitrator thus finds it of no importance in this specific case that the Player apparently received no remuneration during the period he spent with the Respondent, as the rule in Article 10 of the Regulations specifying that only a professional player may be loaned to another club was observed at the time of the commencement of the loan agreement when the Player was registered as a professional with FC Dacia. The decisive factor is therefore not whether the Player, throughout his loan period, formally met the requirement of being registered as a professional, but, on the other hand, that this requirement is seen to have been met in relation to the underlying contract with the club of origin which is suspended during the loan, unless the Player can only be deemed specifically to have met the requirement of being a professional for an insignificant part of this total contract period, or whether a specific assessment of circumvention is made. This does not appear to be inconsistent with the Commentary on Article 10 of the Regulations, which, inter alia, states as follows: “The loan of an amateur is not possible, since the club loaning the player must be in possession of a valid employment contract at the moment the player leaves on loan”.
7.28 The Sole Arbitrator emphasises, however, that the above will apply only provided that a Player’s professional contract with his club of origin can be considered to have a valid, substantive content and, accordingly, cannot be assumed to have been concluded exclusively on a pro forma basis with a view to signing a player on a professional contract without, at any time, being prepared to respect the professional terms and conditions agreed with the relevant player.
7.29 Based on the above, the Sole Arbitrator thus finds that the Player was validly loaned to FC Real Succes pursuant to the FC Real Succes Loan Agreements, that the Dacia Contract is not considered to have been terminated tacitly by mutual consent between the Player and FC Dacia upon the registration of the Player with the Respondent as an amateur and that the “chain of loans” was not interrupted in a definitive manner as a result of the loan of the Player to the Respondent.
7.30 The Sole Arbitrator further notes that he finds that sufficient evidence has been produced to prove that the Player did in fact return to FC Dacia in the period between the expiry of his loan to the Respondent and his registration with FC Sfintul, i.e. between 1 June and 16 August 2013.
7.31 In this connection, the Sole Arbitrator attaches for instance importance to the letter of 3 October 2014 from the FMF, which states, inter alia, as follows: “[…] 2. After the expiration of the period of loan at Football Club Real Succes 01 June 2013, the Player was obliged to come back to the location of the Football Club Dacia and thereafter was transferred to FC Sfintul Gheorghe on loan, according the loan agreement from 16 August 2013”. It is furthermore noted that the Respondent submitted evidence regarding FC Dacia’s payment of the Player’s remuneration for June 2013 and that, on 3 June 2013, the Player signed an Order stating as follows: “To reestablish A. in the position of football player at FC Dacia from 03.06.2013 due to expiration of the validity of the contract of loan with FC Real Success. Basis: Individual Labor Contract no 58/10 from 01.12.2010”.
7.32 The Sole Arbitrator therefore concludes that the Player was under valid contract with FC Dacia on 16 August 2013 when he and the said club signed the FC Sfintul Loan Agreement with FC Sfintul, thus not interrupting the “chain of loans” in a definitive manner.
7.33 With regard to the Player’s stay with FC Sfintul, the Sole Arbitrator notes that the Appellant submits that the Player’s move from FC Dacia to the said club was a definitive transfer and, consequently, only a simulation of a loan, which FIFA allegedly failed to address in the Decision, thus violating the Appellant´s right to be heard.
7.34 Initially, the Sole Arbitrator notes that, pursuant to Article R57 of the CAS Code, the Sole Arbitrator enjoys a full power to review the Decision, which means that any possible violation of the Appellant’s right to be heard with regard to the above-mentioned submission is in any case cured by the Sole Arbitrator’s current review.
7.35 Regarding the move of the Player to FC Sfintul allegedly being a definitive transfer and, thus, only a simulation of a loan, based on the facts of the case and the Parties’ submissions, the Sole Arbitrator finds that it is up to the Appellant to discharge the burden of proof to establish that these allegations are in fact correct.
7.36 In doing so, the Sole Arbitrator adheres to the principle established by CAS jurisprudence that “in CAS arbitration, any party wishing to prevail on a disputed issue must discharge its burden of proof, i.e. it must meet the onus to substantiate its allegations and to affirmatively prove the facts on which it relies with respect to that issue, In other words, the party which asserts facts to support its rights has the burden of establishing them (..) The Code sets forth an adversarial system of arbitral justice, rather than an inquisitorial one. Hence, if a party wishes to establish some fact and persuade the deciding body, it must actively substantiate its allegations with convincing evidence” (e.g. CAS 2003/A/506, para. 54; CAS 2009/A/1810 & 1811, para. 46 and CAS 2009/A/1975, para. 71ff).
7.37 However, the Sole Arbitrator finds that the Appellant has not adequately discharged the burden of proof to establish that the move of the Player to FC Sfintul did in fact constitute a definitive transfer and, thus, only a simulation of a loan.
7.38 The Sole Arbitrator notes in this connection that the fact that the Parties – as mentioned by the Appellant in support of its allegation that a definitive transfer was made between FC Dacia and FC Sfintul – failed to agree on, for instance, (i) a mechanism to either call the Player back or send the Player back, or (ii) an obligation for FC Dacia to pay the Player’s remuneration and medical insurance during his stay with FC Sfintul, combined with, inter alia, the fact that the duration of the alleged loan period corresponded to the remaining time of the Dacia Contract, does not in itself imply that this must in effect be assumed to be a definitive transfer.
7.39 Furthermore, the Sole Arbitrator notes that the receiving club (FC Sfintul), in this specific case, as opposed to the situation in, for instance, CAS 2007/A/1219, did not pay any loan fee to FC Dacia, which fee in CAS 2007/A/1219 was effectively considered to replace/constitute an actual transfer fee, and the Player was in fact also offered a new contract by FC Dacia before the expiry of the Dacia Contract, which would have meant, in the event of the Player’s acceptance, that the contractual relationships would have continued. In addition, neither any of the clubs involved nor the Player has indicated that the FC Sfintul Loan Agreement was concluded for any purpose other than to establish an actual loan between the two clubs.
7.40 Based on that, the Sole Arbitrator finds that the Appellant failed to prove to his comfortable satisfaction that there was only a simulation of a loan and, accordingly, that the move of the Player to FC Sfintul did in fact constitute a definitive transfer.
7.41 Furthermore, and with regard to the submission that the FC Dacia Contract in any case expired at the end of November 2013 due to the fact that the Player was only 17 years old when signing the said contract on 1 December 2010, the Sole Arbitrator agrees with the FIFA DRC that Article 18 para. 2 of the Regulations regulates the relationship between professional players and clubs and, in accordance with this provision, no third party to such a relationship is entitled to claim that the length of a contract freely concluded between and fully executed by the contract parties contravenes the said provision since such a claim would necessarily need to be forwarded by one of the parties to the relationship.
7.42 Based on that, the Sole Arbitrator finds that the “chain of loans” was never interrupted in a definitive manner between the date of the signing of the Dacia Contract and the date of the Player’s registration with the Appellant, which is why the Appellant (see para 7.16 above), as a result of the registration of the Player with the Appellant, is obliged to pay training compensation to the Respondent for the training and education of the Player during his time with the Respondent.
7.43 Having established that the Appellant is obliged to pay training compensation to the Respondent in accordance with Article 20 of the Regulations, and since the Parties agree that the amount of training compensation to be paid amounts to EUR 44,547 in case the Appellant is found liable to pay training compensation to the Respondent, the Sole Arbitrator confirms this amount.
7.44 Finally, the Sole Arbitrator sees no reason to deviate from the Decision concerning the late payment interest to be paid by the Appellant.
8. SUMMARY
8.1 Based on the foregoing and after taking into consideration all evidence produced and all arguments made, the Sole Arbitrator finds that the Appellant, as a result of the registration of the Player with the Appellant, is obliged to pay training compensation to the Respondent for the training and education of the Player during his time with the Respondent.
8.2 As the Appellant, at the time of the registration of the Player, was registered as a UEFA Category II club with the indicative amount of training cost of EUR 60,000 per year, and since the Player is considered to have spent nine months of training with the Respondent, the amount of training compensation payable by the Appellant to the Respondent is EUR 44,547 in accordance with the Respondent´s claim before the FIFA DRC.
8.3 The Appeal filed against the Decision is therefore dismissed.
ON THESE GROUNDS
The Court of Arbitration for Sport rules:
1. The appeal filed on 7 April 2016 by FC Kuban against the decision rendered by the FIFA Dispute Resolution Chamber on 25 September 2015 is dismissed.
2. The Decision rendered by the FIFA Dispute Resolution Chamber on 25 September 2015 is upheld.
3. (…).
4. (…).
5. All further and other requests for relief are dismissed.