Training Compensation
Texto da decisão
REF TMS 6369
Decision of the
Single Judge of the sub-committee of
the Dispute Resolution Chamber
passed on 3 September 2020,
regarding training compensation for the player LUIZ HENRIQUE BESERRA DOS SANTOS
BY:
Tom is lav Kas alo (Croatia), Single Judge of the sub-committee
of the DRC
CLAIMANT:
EC Bahia, Brazil
RESPONDENT:
Moreirense FC, Portugal
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I. FACTS OF THE CASE
1.
According to the player’s passport issued by the Confederação Brasileira de Futebol (hereinafter:
CBF), the player, LUIZ HENRIQUE BESERRA DOS SANTOS (hereinafter: the player), born on 19
April 1997, was registered as follows:
- the player was loaned by the Brazilian club, Nautico (hereinafter: Nautico or the former club),
to the Brazilian club, EC Bahia, (hereinafter: the Claimant), as from 1 September 2018 until 31
December 2018;
- after the loan with the Claimant, the player returned to Nautico;
- the player was subsequently registered on a permanent basis with the Portuguese club,
Moreirense FC (hereinafter: the Respondent) on 18 July 2019;
- the player was registered as a professional with all three clubs involved.
2.
Pursuant to the information provided by the CBF, the sporting seasons in Brazil follows the
calendar year, i.e. the seasons start on 1 January and end on 31 December each year.
3.
According to the information contained in the Transfer Matching System (hereinafter: TMS), the
above-mentioned passport was uploaded to TMS when the Respondent registered the player on
19 July 2019.
4.
In addition, according to the information contained in the TMS, the Respondent belonged to
the category II at the time the player was registered with it.
5.
On 13 July 2020, the Claimant lodged a claim in front of FIFA requesting the payment of training
compensation from the Respondent on the basis that the player, in July 2019, was transferred
from the Brazilian club, Nautico, to the Respondent. In particular, the Claimant is claiming the
amount of EUR 20,054.79 from the Respondent, plus 5% interest as of the due date.
6.
In this context, the Claimant argued that the player was registered with the Claimant on a loan
basis during the season of his 21st birthday. In addition, the Claimant referred, inter alia, to the
fact that:
1) "The Player was trained and educated by the Claimant for 122 days at the season of his 21st
birthday" ;
2) "...in July 2019, when the Player was already considered a professional (...), but before the
end of the season of his 23rd birthday, he was internationally transferred from the Former Club
to the Respondent" ;
3) "... a loan period and the time spent at the parent club (Former Club) have to be viewed as
one entire timeframe (...) training compensation will also have to be paid to the loan club (the
Claimant) for contributing to the Player’s training and education...".
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7.
For its part, the Respondent contested the Claimant’s request as it held, inter alia, that the player
had already finished his formation at the moment of the registration with the Respondent and
underlined that the player had “competed in the most important Brazilian championship, serving
other teams than the Claimant”. In addition, in its opinion, the Claimant was not the player's
last club before registering with the Respondent. As such, the Respondent deemed that
"...compensation for training is not due, pursuant to the provisions of article 3, paragraph 1, of
annex 4 to the FIFA RSTP" .
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF
THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber
(hereinafter: the Single 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 13 July
2020 and the decision passed on 3 September 2020. Taking into account the wording of art. 21
of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), said edition of the
Procedural Rules is applicable to the matter at hand (cf. article 21 of the Procedural Rules).
2.
Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states that the
Dispute Resolution Chamber shall examine its jurisdiction in light of arts. 22 to 24 of the
Regulations (August 2020 edition). In accordance with art. 3 of Annexe 6 in conjunction with
art. 24 par. 3 and art. 22 lit. d) of the Regulations, the Single Judge is competent to decide on
the present dispute relating to training compensation between clubs belonging to different
associations handled through TMS.
3.
Furthermore, and taking into consideration that the player was registered with the Respondent
on 19 July 2019, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations, the June 2019 edition of the Regulations is applicable to the matter at
hand as to the substance.
4.
The competence of the Single Judge and the applicable regulations having been established, the
Single Judge entered into the substance of the matter. The Single Judge started by
acknowledging the above-mentioned facts of the case as well as the documentation on file.
However, the Single Judge 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. In particular, the Single Judge recalled that, in accordance
with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated or
contained in the TMS.
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5.
First of all, the Single Judge recalled that, in accordance with the player’s passport issued by the
CBF, the player, born on 19 April 1997, was registered with the Claimant on a loan basis as from
1 September 2018 until 31 December 2018. Equally, the Single Judge observed that after the
loan with the Claimant had expired, the player returned to his club of origin, Nautico, i.e. the
club with which the player was still contractually bound. Thereafter, in July 2019, the player was
internationally transferred from Nautico to the Respondent on a definitive basis, the registration
having occurred on 19 July 2019.
6.
In continuation, the Single Judge took note that the Claimant asserted that it was entitled to
receive training compensation from the Respondent in the amount of EUR 20,054.79 in view of
the aforementioned registration of the player with the Respondent, plus 5% interest as of the
due date.
7.
Equally, the Single Judge noted that the Respondent rejected the claim of the Claimant, arguing
that the Claimant is not the player’s former club in the sense of art. 3 par. 1 of Annexe 4 of the
Regulations. In addition, the Respondent also stated that the player had already finished his
formation at the moment of the registration with the Respondent.
8.
At this point, the Single Judge recalled the Respondent’s aforementioned allegation deeming
that the player had already finished his formation at the moment of the registration with the
Respondent which would, as such, justify that no payment of training compensation was due in
accordance with the Regulations.
9.
In this regard, referring to art. 12 par. 3 of the Procedural Rules, in accordance with which any
party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Single
Judge took into account that the Respondent failed to present documentary evidence in support
of its allegation that the player had already finished his formation at the moment of the
registration with the Respondent. Consequently, the Single Judge decided that the Respondent’s
allegation in this regard cannot be accepted.
10.
Having established the above, the Single Judge highlighted that, in this context, the main issue
in the present matter is whether or not a club that employed a professional player 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 23rd birthday.
11.
In consideration of the above-mentioned issue, the Single 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 23rd birthday or when a professional is transferred between
clubs of two different associations before the end of the season of the player’s 23rd birthday. In
case the latter occurs, art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations sets forth that training
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compensation will only be owed to the player’s former club for the time he was effectively
trained by that club.
12.
Furthermore, according to art. 10 par. 1 of the Regulations, a professional player 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 said provision stipulates that any such loan is subject
to the same rules which apply to the transfer of players, including the provisions on training
compensation and the solidarity mechanism.
13.
Following the above, the Single 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 Dispute Resolution Chamber’s well-established jurisprudence that all clubs
which have actually 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.
14.
In other words, the Single Judge emphasised that the nature of the 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 club should be entitled to receive
training compensation for the period of time that the player was effectively trained by that club.
15.
In this respect and for the sake of good order, the Single Judge deemed it essential to emphasise
that, as to the liability to pay training compensation, the analogy established in art. 10 par. 1 of
the Regulations could not be extended to the case in which a player was loaned to another club
and thus is not being definitively transferred to a new club. In other words, the transfer of a
player from the club of origin to the club that accepts the player on loan as well as the return of
the player from the club that accepted him on loan to the club of origin do not constitute a
subsequent transfer in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations. The
Single Judge was eager to point out that it could not have been the intention of the legislator
of the relevant regulatory provision (art. 10 par. 1 of the Regulations) to trigger the consequences
of art. 3 par. 1 of Annexe 4 of the Regulations on the occasion of a transfer on a loan basis and,
thus, potentially depriving the loan of its essential flexibility and function of providing young
players the opportunity to gain practical experience in another club in order to develop in a
positive way, personally and, eventually, also for the benefit of the player’s new club.
16.
Following the above, the Single Judge 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
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permanent basis subject to the fulfilment of the prerequisites established in art. 20 and Annexe
4 of the Regulations.
17.
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 Single 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 Single Judge acknowledged that the Claimant was not the
player’s former club stricto sensu, however, the Single Judge pointed out that, within the
framework of loans, the period of time that the player was registered with Nautico 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 contributed to the training and education of players.
18.
Bearing in mind the foregoing, the Single 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 players on a temporary basis.
19.
Consequently, taking into account the above-mentioned considerations, the Single Judge
concurred that it had to reject 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.
20.
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 Single Judge concluded that the effective period of time to
be considered in the matter at stake corresponds to 122 days of the 2018 season, i.e. as from 1
September 2018 until 31 December 2018.
21.
Furthermore, the Single Judge referred to the FIFA circular no. 1673 dated 28 May 2019 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 Single Judge
took into account that according to the documentation on file, the Respondent belonged to the
club category II.
22.
Consequently, the Single Judge decided that the Respondent is liable to pay training
compensation to the Claimant in the amount of EUR 20,054.79.
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23.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of Annexe 4 of
the Regulations, the Single 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 19 August 2019, until the date of effective payment.
24.
In continuation, the Single Judge referred to art. 25 par. 2 of the Regulations in combination
with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the
Dispute Resolution Chamber relating to disputes regarding training compensation, costs in the
maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the
parties’ degree of success in the proceedings.
25.
However, in this respect, the Single Judge referred to art. 18 par. 1. i. of the Procedural Rules
according to which, for any claim lodged between 10 June 2020 and 31 December 2020 which
has yet to be decided, no procedural costs shall be levied.
26.
Thereafter, taking into account the consideration under number II./3. above, the Single Judge
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision,
the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of
the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
27.
In this regard, the Single Judge pointed out that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
28.
Therefore, bearing in mind the above, the Single Judge decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the Respondent, a ban from registering any new players, either nationally
or internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
29.
Finally, the Single Judge recalled that the above-mentioned sanction will be lifted immediately
and prior to its complete serving upon payment of the due amounts, in accordance with art.
24bis par. 3 of the Regulations.
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III. DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE
DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, EC Bahia, is accepted.
2.
The Respondent, Moreirense FC, has to pay to the Claimant, the following amount:
- EUR 20,054.79 as training compensation plus 5% interest p.a. as from 19 August 2019
until the date of effective payment.
3.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
4.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
5.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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