Decision of the Dispute Resolution Chamber (DRC) judge

Transcription

1 Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 15 July 2016, by Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the club, Club A, country B, as Claimant against the club, Club C, country D, as Respondent regarding training compensation in connection with the Player E

2 I. Facts of the case 1. The Football Association of country B confirmed that the player, Player E, born on 24 October 1992, was registered with its affiliated club, Club A (hereinafter: the Claimant) as from 11 August 2004 until 2 June 2009 as an amateur on permanent basis as well as from 16 February 2011 until 4 July 2012 as a professional, on loan from the club from country F, Club G (hereinafter: the involved club). 2. According to the player passport issued by the Football Union of country F the player was registered as a professional with the involved club as from 6 August 2009 until 31 December 2009 as well as from 19 February 2010 until 31 December According to the information contained in the Transfer Matching System (TMS), on 27 January 2011 and 30 June 2011 the Claimant and the involved club agreed upon the loan of the player against the payment of a compensation amounting to EUR 70, The football season in country B ran as follows: Season Start End 2004/ July August / July August / July August / June July / June July / June July / June July Upon the expiry of his loan with the Claimant, the player was subsequently loaned from the involved club to the club from country D, Club C (hereinafter: the Respondent) until 30 June 2013 against the payment of EUR 100,000. The aforementioned parties further agreed upon an option of permanent transfer exercisable until 31 May 2013, for the amount of EUR 1,000, According to TMS, on 28 May 2013 the Respondent exercised the purchase option. As a result, the involved club and the Respondent concluded a transfer agreement in accordance with which [the involved club] from 1 July 2013 transfers the rights of the player and his professional permanent football registration to enable him to work for [the Respondent] as a football player. (Club A, country B / Club C, country D) 2

3 7. Also according to TMS, the Respondent belonged to the category 2 (indicative amount of EUR 60,000 per year within UEFA) at the time the player was permanently registered for the Respondent. 8. On 30 July 2015, the Claimant contacted FIFA asking for its proportion of training compensation from the Respondent for the subsequent professional registration of the player. In particular, the Claimant is requesting EUR 82,500, plus 5% interest p.a. as of 1 August 2013 until the effective date of payment and that the Respondent be ordered to pay any procedural costs relating to the Claimant s claim. 9. In particular, the Claimant held that it is entitled to receive training compensation for the time the player was registered for it on loan from the involved club and that training compensation shall be paid by the Respondent since it permanently registered the player after the loan. 10. In this context, the Claimant referred to the jurisprudence of the Dispute Resolution Chamber (DRC) and stated that the period of time that the player was registered with his club of origin, i.e. the involved club, as well as the period of time that the player was on loan shall be considered as one entire timeframe. 11. Subsequently, the Claimant asserted that the player was permanently transferred from country F to country D at the beginning of the season 2013/2014. As a result, the Claimant is of the opinion that this is an international transfer before the player s 23 rd birthday and that, consequently, training compensation is due. 12. Lastly, the Claimant stated that the aim of loaning young players is to be seen as part of the players education and training process and that, in particular, the player s training and education period had not terminated since i) whilst being at the involved club the player did not take part in any official game, ii) during the 17 months the player was registered for the Claimant, he only participated in 21 games and iii) after his loan to the Claimant the player, aged 19, was subsequently loaned to the Respondent, which was relegated at the end of the 2012/2013 to the second League of country D. In this respect, the Claimant provided mass media reports in accordance with which, the player never appeared for the involved club and made 15 appearances with the Claimant during the seasons 2010/2011 and 2011/2012. Equally, the Claimant provided a mass media report in accordance with which the Respondent was relegated to the second League of country D at the end of the season 2012/ On 25 May 2016, the Respondent rejected the Claimant s claim by providing a TMS report, in accordance with which the player was registered with the Respondent on 28 August 2012, and held that the claim is time barred according to art. 3 par. 1 of Annex 4 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) in connection with art. 25 par. 5 of the Regulations since the player was registered with the Respondent on 31 July 2012 and the claim was lodged on 30 July 2015, this is, more than two years after the registration of the player with the Respondent. (Club A, country B / Club C, country D) 3

4 14. Furthermore, the Respondent referred to art. 3 par. 1 of Annex 4 of the Regulations, according to which, 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, as well as to the Commentary to the Regulations, in accordance with which the former club is the club that the player is leaving. As a result, the Respondent assessed that training compensation is not due to the Claimant since it is not the last club of the player. 15. In addition, the Respondent asserted that the player completed his training and education period before joining the Claimant. In this respect, the Respondent referred to the jurisprudence of the Court of Arbitration for Sport (CAS), in accordance with which a player that regularly plays in the A team of a club is to be deemed as having completed his training and stated that the Claimant acquired a fully trained professional on loan from the involved club against payment of a loan fee and immediately made full use of his services in the highly successful first team of the Claimant. 16. In particular, the Respondent provided mass media reports in accordance with which the player was firstly transferred from the Claimant s U19 to the involved club against the payment of a transfer fee in the amount of 300,000, he made his first appearance in the First League of country F when he was 17, he was subsequently loaned back from the involved club to the Claimant against an alleged loan fee of EUR 70,000 and during the loan he appeared in 21 matches in the top league of country B, the Cup of country B as well as the UEFA Europa League, resulting in the Claimant finishing runner-up in the League of country B twice and champion of the Cup of country B. Equally, according to the same mass media reports, the player had played 5 matches with the country B U19 team during and 10 matches with the country B U21 team during In this context, the Respondent further provided mass media reports according to which, after his loan to the Claimant, the involved club and the Respondent agreed upon a loan fee amounting to EUR 100,000 and an option to permanently transfer the player in the amount of EUR 1,000,000. The Respondent also provided a mass media report in accordance with which, the player appeared in 21 matches with the Respondent during the season 2012/ In light of the foregoing, the Respondent held that the player was an established first team player who had been transferred against payment several times before joining the Claimant and that, as a result, it is clear that he was loaned to the Claimant as a fully trained professional player in order to play in the club s first team alongside other fully trained professional players. As a result, the Respondent is of the opinion that the training and education period of the player had been concluded before his loan with the Claimant. (Club A, country B / Club C, country D) 4

5 19. Moreover, the Respondent assessed that the Claimant has already received a compensation for the time in which the player was registered for it. In particular, the Respondent asserted that the involved club and the Claimant freely concluded a loan agreement and that, in the Respondent s opinion, the reason why the Claimant entered into said agreement was not to provide training to the player gratuitously but rather that it must have actually received an immediate benefit from it. 20. In this context, the Respondent held that since the Claimant has already been compensated for the above-mentioned transaction, sentencing the Respondent to pay training compensation to the Claimant would mean that the latter received double compensation for the same transfer. 21. In this regard, the Respondent requested that the Claimant is ordered to disclose any agreement entered between it and the involved club in relation to the loan of the player in order to determine whether the Claimant has already been compensated for the player. 22. Lastly, the Respondent stated that the Claimant is also claiming solidarity contribution for the transfer of the player from the involved club to the Respondent and that since it is a request on the basis of the Regulations for the same transfer, no training compensation shall be payable. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 30 July Consequently, the 2015 edition of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (editions 2012, 2014, 2015 and 2016, hereinafter: the Regulations) he is, in principle, competent to deal with the matter at stake relating to training compensation between clubs belonging to different associations. 3. At this point, the DRC judge however recalled that the Respondent referred to art. 3 par. 1 of Annex 4 of the Regulations in connection with art. 25 par. 5 of the Regulations and argued that the present claim is time barred due to the time elapsed between the registration of the player with the Respondent, which the latter claims to have occurred on 31 July 2012, and the date of the claim, i.e. 30 July (Club A, country B / Club C, country D) 5

6 4. In this respect, the DRC judge underscored that, according to the well-established jurisprudence of the DRC, the obligation to pay training compensation solely arises in case a player is definitively transferred from one club to another, 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. 5. Equally, the DRC judge pointed out that, according to the information contained in the TMS, the player was registered on loan with the Respondent on 31 July 2012 and that on 28 May 2013 it exercised the purchase option provided for in the loan agreement concluded between the involved club and the Respondent, resulting in the conclusion of a transfer agreement by means of which the player was definitively transferred from the involved club to the Respondent on 1 July 2013 (cf. points I.5 and 6 above). Consequently, the DRC judge concluded that the registration of the player with the Respondent on his definitive transfer from the involved club as a result of the due exercise of the purchase option by the Respondent occurred, at the earliest, on 1 July Having said that, the DRC judge referred to art. 3 par. 2 of Annex 4 of the Regulations, in accordance with which the deadline for payment of training compensation is 30 days following the registration of the professional with the new association, and held that if any, training compensation should have been paid, at the latest, 30 days after 1 July Consequently, and considering that the present claim was lodged on 30 July 2015, the DRC judge concluded that the claim is admissible and that the Respondent s objection in this regard must be rejected. 8. The admissibility of the claim having been established, the DRC judge went on to analyse 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 2 of the Regulations (editions 2012, 2014, 2015 and 2016), and considering that the player was registered with the Respondent on a permanent basis on 1 July 2013 at the earliest (cf. point II.6 above), the 2012 edition of the Regulations is applicable to the matter at hand as to the substance. 9. Having determined which edition of the Regulations is applicable to the case at hand, the DRC judge acknowledged the facts and the documentation contained in the file. However, he emphasized that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. (Club A, country B / Club C, country D) 6

7 10. In this regard, the DRC judge recalled that the player, born on 24 October 1992, was registered on a loan basis with the Claimant for the period between 16 February 2011 until 4 July Equally, the DRC judge observed that after the loan with the Claimant had expired, the player returned to his club of origin, i.e. the involved club, the club with which the player was still contractually bound. Thereafter, at the earliest on 1 July 2013, the player was internationally transferred on definitive basis from the involved club to the Respondent, after having been previously registered with the Respondent on a loan basis until 30 June 2013, for a transfer compensation amounting to EUR 1,000, In continuation, the DRC judge took note that the Claimant asserted that it was entitled to receive training compensation from the Respondent in the amount of EUR 82, Equally, the DRC judge noted that the Respondent rejected the claim of the Claimant, arguing that i) the Claimant is not the player s former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, ii) that the player had terminated his training and education period before joining the Claimant on loan and iii) that the Claimant has already been compensated for the transaction. 13. In this context, the DRC judge highlighted that one of the main issues in the present matter is whether or not a club that accepted a professional on loan is entitled to receive training compensation when, after the expiry of the loan, the professional returns to his club of origin, and, thereafter, is transferred from the club of origin to a club belonging to another association before the end of the season of the player s 23 rd birthday. 14. In consideration of the above-mentioned issue, the DRC judge, and hereby referring to the rules applicable to training compensation, started by stating that, as established in art. 20 of the Regulations as well as in art. 1 par. 1 of Annexe 4 in combination with art. 2 of Annexe 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 23 rd birthday or when a professional is transferred between clubs of two different associations before the end of the season of the player s 23 rd birthday. In case the latter occurs, art. 3 par. 1 sent. 3 of Annexe 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. 15. Furthermore, according to art. 10 par. 1 of the Regulations, professionals may be loaned to another club on the basis of a written agreement between the (Club A, country B / Club C, country D) 7

8 professional and the clubs concerned. Moreover, the last sentence of said provision stipulates that any such loan is subject to the same rules as apply to the transfer of players, including the provisions on training compensation and the solidarity mechanism. 16. Following the above, the DRC judge stressed that one of the aims of the last sentence of art. 10 par. 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 training compensation, provided that the relevant prerequisites in the pertinent provisions of the Regulations are fulfilled. This approach is also in line with the DRC s well-established jurisprudence that all clubs which have in fact contributed to the training and education of a player as from the age of 12 are, in principle, entitled to training compensation for the timeframe that the player was effectively trained by them. 17. In other words, the DRC judge emphasised that the nature of the player s registration with a club claiming training compensation, i.e. on a definite or on a temporary basis, is in fact irrelevant with respect to the question as to whether such club would be entitled to receive training compensation for the period of time that the player was effectively trained by that club. 18. As to the argument of the Respondent that the Claimant is not the former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, the DRC judge wished to recall that art. 3 par. 1 sent. 3 of Annexe 4 stipulates that In the case of subsequent transfers of the professional, training compensation will only be owed to his former club for the time he was effectively trained by that club. In this context, the DRC judge acknowledged that the Claimant was not the player s former club stricto sensu, however, the DRC judge pointed out that, within the framework of loans, the period of time that the player was registered with the involved club and the period of time that the player was registered with the Claimant on loan, should be considered as one entire timeframe. Any other interpretation would lead to the situation in which 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. 19. Bearing in mind the foregoing, the DRC judge deemed that the Respondent s interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations would clearly contravene the intention of the legislator of the Regulations according to which all training clubs shall, in principle, be rewarded for their efforts invested in training young players, including those clubs that have accepted a player on a temporary basis. Therefore, this argument of the Respondent cannot be upheld. (Club A, country B / Club C, country D) 8

9 20. In continuation, the DRC judge went on to examine whether or not the player s training period had already been completed before the season of the player s 21 st birthday. 21. In this context, the DRC judge emphasized that cases involving a possible early completion of a player s training period have to be assessed on a case-by-case basis, whereby all the specific circumstances and all the evidence produced has to be taken into consideration. Hence, several factors and indications have to be considered in order to assess and establish whether a particular player s training has indeed been completed before the season of his 21 st birthday. For the sake of completeness, the DRC judge pointed out that, so far, both the DRC as well as the CAS have adopted a strict approach in establishing that a player s training had indeed been completed before the season of a player s 21 st birthday, so as to not jeopardize the right of training clubs to, in principle, receive training compensation. 22. In this respect, the DRC judge took, once more, note of all the specific circumstances of the present matter as well as of all the evidence produced by the parties of the dispute. First of all, the DRC judge highlighted that the player was loaned from country F to country B and that during the period of registration with the Claimant, the player had played 21 matches over the course of 16 months. Consequently, the DRC judge deemed that he did not play on a regular basis with the Claimant. Consequently, and contrary to the opinion of the Respondent, the DRC judge considered that it could not be established that the player had been a permanent member of the Claimant s team. 23. In fact, the DRC judge pointed out that the player was first transferred from the Claimant to the involved club in August 2009 against an alleged transfer fee of 300,000 and that the loan fee for the loan of the player from the involved club to the Claimant in January 2011 amounted to EUR 70,000. In this respect, the DRC judge considered that the significant discrepancy over these two amounts evidences that the involved club loaned the player to the Claimant in order for the player to gain personal and professional experience. 24. In continuation, the DRC judge noted that the player appeared for the U19 and U21 teams of his national team. The DRC judge outlined that this may indeed be an indication of the player s talent, skills and level of training, however, such fact is in itself not conclusive in establishing that a particular player indeed already completed his training period before the age of In view of the above, the DRC judge concurred that, in the specific matter at hand and taking all the above-mentioned elements combined, it could not be established that the player had indeed already completed his training before joining the Respondent. Hence, the DRC judge deemed that the training period of the player (Club A, country B / Club C, country D) 9

10 had not been completed before the season of his 21 st birthday and that the Respondent s arguments in this regard had to be rejected. 26. Turning his attention to the third issue, the DRC judge underscored that the fact that training compensation, regulated in art. 20 and Annex 4 of the Regulations, and solidarity contribution, stipulated in art. 21 and Annex 5 of the Regulations, may be payable for the same transfer does not constitute a double compensation as there is no identity in the ratio behind them and they are independent one from the other. 27. Consequently, taking into account the above-mentioned considerations, the DRC judge concurred that he had to reject all the Respondent s arguments and decided that the Respondent is liable to pay training compensation to the Claimant for the training of the player in accordance with art. 20 of the Regulations and art. 2 par. 1 lit. ii. and art. 3 par. 1 of Annexe 4 of the Regulations, while registered on loan with the Claimant. 28. As a result, and considering art. 3 par. 1 sent. 2 of Annexe 4 of the Regulations, which stipulates that the amount payable is calculated on a pro rata basis according to the period of training that the player spent with each club, the DRC judge concluded that the effective period of time to be considered in the matter at stake corresponds to 4 months of the season of the player s 18 th birthday as well as the entire season of the player s 19 th birthday. 29. Furthermore, the DRC judge referred to the FIFA circular no dated 29 April 2010 which provides details for the calculation of training compensation as well as to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which stipulate that as a general rule, to calculate the training compensation due to a player s former club, it is necessary to take the costs that would have been incurred by the new club if it had trained the player itself. In this respect, the DRC judge took into account that according to the documentation on file, the Respondent belonged to the club category Consequently, the DRC judge decided that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 80, Moreover, taking into consideration the Claimant s claim as well as art. 3 par. 2 of Annexe 4 of the Regulations, the DRC judge decided that the Respondent has to pay, in conformity with its longstanding practice, interest of 5% p.a. over the amount payable as training compensation as of the 31st day of the registration of the player with the Respondent on a definitive basis, i.e. as of 1 August 2013, until the date of effective payment. (Club A, country B / Club C, country D) 10

11 32. Lastly, the DRC 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 proceedings before the DRC and the DRC judge relating to disputes regarding training compensation and the solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further stipulated that the costs are to be borne in consideration of the parties degree of success in the proceedings and that, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. 33. In respect of the above, the DRC judge held that the amount to be taken into consideration in the present proceedings is EUR 82,500 related to the claim of the Claimant. Consequently, the DRC judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in Annexe A of the Procedural Rules). 34. As a result, and taking into account the complexity of the case, the DRC judge determined the costs of the current proceedings to the amount of CHF 8,000, which shall be borne by the Respondent. III. Decision of the DRC judge 1. The claim of the Claimant, Club A, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, has to pay to the Claimant the amount of EUR 80,000 within 30 days as from the date of notification of this decision, plus 5% interest p.a. as of 1 August 2013 until the date of effective payment. 4. In the event that the aforementioned sum plus interests is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA s Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The final amount of costs of the proceedings, amounting to CHF 8,000, are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows: 6.1 The amount of CHF 6,000 has to be paid to FIFA to the following bank account with reference to case no. xxxxxxxxxxxxx: UBS Zurich Account number U (FIFA Players Status) (Club A, country B / Club C, country D) 11

12 Clearing number 230 IBAN: CH U SWIFT: UBSWCHZH80A 6.2 The amount of CHF 2,000 has to be paid to the Claimant. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 6.2. are to be made and to notify the DRC judge of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the DRC judge: Marco Villiger Deputy Secretary General Enclosed: CAS directives (Club A, country B / Club C, country D) 12