Training Compensation
Texto da decisão
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TMS 6584
Decision of the
Single Judge of the sub-committee of
the Dispute Resolution Chamber
passed on 28 January 2021
regarding training compensation for the registration of the player Gustavo Coutinho
Silva Lopes with Fortaleza EC
BY:
Omar Ongaro (Italy), Single Judge of the sub-committee of the Dispute
Resolution Chamber
CLAIMANT:
AC Alcanenense, Portugal
RESPONDENT:
Fortaleza EC, Brazil
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TMS 6584
I. FACTS OF THE CASE
Player:
Gustavo Coutinho Silva Lopes
Date of birth:
19 January 1999
Player passport:
issued by the Federação Portuguesa de Futebol (“FPF”)
Season
2016/2017
2017/2018
Registration dates
16.02.2017 – 30.06.2017
17.08.2017 – 30.06.2018
Club(s)
AC Alcanenense
AC Alcanenense
Status
Amateur
Amateur
Sporting season:
1 July to 30 June of the following year (Portugal)
Player passport:
issued by the Confederação Brasileira de Futebol (“CBF”) on 2 September 2020
Registration dates
01.01.2011 – 15.04.2013
16.04.2013 – 14.02.2014
15.02.2014 – 16.02.2014
17.02.2014 – 27.03.2016
28.03.2016 – 08.12.2016
09.12.2016 – 31.07.2018
01.08.2018 – 31.12.2020
Club(s)
Audax Rio
Botafogo
Botafogo
Fortaleza
Status
Amateur
Amateur
Amateur
Professional
Date of transfer:
1 August 2018, from Portugal to Brazil.
First registration as a professional
Claimant club:
AC Alcanenense (Portugal)
Respondent club:
Fortaleza EC (Brazil)
CONMEBOL, category II (USD 30,000 per year)
Country
Brazil
Brazil
Brazil
Brazil
Claim and Response:
1.
On 14 August 2020, the Claimant lodged a claim requesting the payment of USD 76,712.33 as
training compensation from the Respondent for the first registration of the player as a
professional, plus 5% per annum interest as from the due date until the date of effective
payment.
2.
In its calculation, the Claimant took into consideration the amount set for training category I
club in CONMEBOL, category which it assumed the Respondent was part of (i.e. USD 50,000
per year), which it multiplied pro rata by the 560 days the player was registered with it.
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TMS 6584
3.
On 4 September 2020, the FIFA administration submitted a proposal to the parties suggesting
that the Respondent should pay to the Claimant the sum of USD 37,232.88 as training
compensation, plus 5% interests p.a. as of the due date.
4.
The Respondent rejected the proposal alleging that it acted with utmost due diligence when
registering the player as a professional, having received confirmation from the CBF’s registration
system that the player had only been registered with two Brazilian clubs, Audax Rio and
Botafogo, and that he never had played abroad.
5.
The Respondent insisted that it was not aware that the player had played for the Claimant, and
requested that the matter be forwarded to FIFA TMS Compliance for investigation since an
International Transfer Certificate (ITC) is required to register a player internationally.
6.
In addition, the Respondent indicated that the player passport issued by the FPF did not include
the complete career history of the player nor was dated, whilst the player passport issued by the
CBF had been recently ratified.
7.
The Respondent underlined that it acted in good faith, relying on the information provided by
the CBF, and that in line with the well-established jurisprudence of the DRC “the new clubs of
the players are able to rely in good faith on the information contained in the player passport
available to them at the time of the respective transfer, as it constitutes the main documentary
evidence of the period of registration of players with each former club, which provides for legal
certainty”.
8.
Alternatively, the Respondent rejected the Claimant’s calculation and indicated that should
training compensation deemed due, only the amount of USD 37.067,69 was to be attributed to
the Claimant, i.e. corresponding to 451 days.
9.
In connection with the registration of the player with the Claimant, the FIFA Disciplinary
Committee established on 17 December 2020 that the FPF and the Claimant, respectively, had
breached the following provisions of the 2016 edition of the Regulations on the Status and
Transfer of Players (RSTP):
(i)
(ii)
the FPF: art. 9 par. 1 of the RSTP (registration of the player with a new association without
having received an ITC from the former association), art. 2 par. 1 of Annexe 3a of the RSTP
(eligibility of a player registered with one association to play with a club affiliated to a new
association without an ITC) and art. 4 par. 2 of Annexe 3a of the RSTP (absence of ITC
request from the new association upon receipt of the application from its affiliated club);
and
the Claimant: art. 2 par. 1 of Annexe 3a of the RSTP.
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TMS 6584
II. LEGAL CONSIDERATIONS
Applicable law:
Regulation on the Status and Transfer of Players (RSTP): June 2018 edition.
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chambe (Procedural Rules): 2020 edition.
Jurisdiction:
Yes, uncontested.
Admissible:
Yes, uncontested.
Decision:
1.
The validity of the player passport issued by the CBF is not disputed. The said player passport is
duly signed and stamped.
2.
The Respondent is disputing the validity of the player passport issued by the FPF as it is not dated
nor signed.
3.
As per the relevant decision of the FIFA Disciplinary Committee, it is undisputed that the player
was registered with the Respondent, albeit wrongfully and, therefore, the player passport issued
by the FPF is to be considered valid.
4.
On the basis of such player passport, and considering that the player was registered with the
Claimant as an amateur prior to his registration with the Respondent, the Claimant would in
principle be entitled to receive training compensation for the training and education it provided
to the player following his first registration as a professional with the Respondent on 1 August
2018.
5.
Notwithstanding the above, in accordance with the well-established jurisprudence of the Dispute
Resolution Chamber (DRC), when registering a player, a club can in principle rely in good faith
on the information provided by the member association where such player was previously
registered.
6.
The DRC has in the past also established that it cannot be expected for a club, which takes a
player under contract based on the confirmation of the previous association and trusting that it
would not have to pay training compensation, to be subsequently obliged to pay training
compensation based on a new player passport issued by the previous association at a later stage.
7.
In view of the above, the first issue to be determined in the matter at stake is which was the
member association where the player was previously registered.
8.
In this respect, the Respondent provided official documents, including the player passport issued
by the CBF, indicating that the player was previously registered in Brazil up until 31 December
2016 and that his ITC remained in Brazil during the player’s period of non-registration in the
said country.
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TMS 6584
9.
In accordance with art. 4 par. 1 of the RSTP “[p]rofessionals who end their careers upon expiry
of their contracts and amateurs who terminate their activity shall remain registered at the
association of their last club for a period of 30 months”. Hence, a player may register without
the issuance of an ITC with a new association if more than 30 months have elapsed since his last
match with his previous club.
10.
In the present matter, only 19 months had elapsed between the player’s end of registration with
his previous Brazilian club (Botafogo) and his registration with the Respondent. Thus, it is
plausible that the Respondent could trust in good faith that the player did not register with a
different association from the CBF after the expiry of his registration with Botafogo.
11.
Taking into account the aforementioned and considering the documentation at the
Respondent’s disposal at the time of the player’s registration with it, as well as bearing in mind
the decision taken by the Disciplinary Committee with regard to the irregularity surrounding
such registration, the Respondent had a legitimate expectation to believe that the player’s
previous association was the CBF, and not the FPF.
12.
Consequently, it can be concluded that, when registering the player, the Respondent could not
have been expected to contact the FPF.
13.
Equally, and because the FPF had failed to request the player’s ITC, the CBF could not be
expected to contact the latest association.
14.
The Respondent provided documentary evidence in support of the allegation that it had collected
information from the CBF which confirmed that the player had last been registered in Brazil,
with Botafogo, and that he had not played elsewhere since, either in Brazil nor in any other
country.
15.
Therefore, the Respondent acted diligently before signing the first professional contract of the
player and could rely in good faith on the information at its disposal.
16.
Consequently, the claim of the Claimant is rejected.
17.
No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
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TMS 6584
DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE
DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, AC Alcanenense, is rejected.
2.
No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
For the Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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TMS 6584
NOTE RELATED TO THE APPEAL PROCEDURE:
Pursuant to article 58 paragraph 1 of the FIFA Statutes, this decision may be appealed before the Court
of Arbitration for Sport within 21 days of notification.
NOTE RELATED TO PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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