Training Compensation
Texto da decisão
REF TMS 6749
Decision of the Dispute Resolution Chamber
passed on 19 August 2021
regarding training compensation for the player Gabriel Vieira Gomes
COMPOSITION:
Clifford J. Hendel (France & USA), Deputy Chairman
Roy Verm eer (Netherlands), member
Pav el Piv ov arov (Russia), member
CLAIMANT:
Clube Futebol Os Belenenses, Portugal
RESPONDENT:
SAMPDORIA SPA, Italy
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REF TMS 6749
I. FACTS OF THE CASE
Player:
Gabriel VIEIRA GOMES
Date of birth:
1 February 2002
Player passport:
issued by the Federação Portuguesa de Futebol (“FPF”) on an unknown date
Season
17-18
18-19
Birthday
16
17
Club(s)
Cf Os Belenenses
Spg C Espinho
Registration dates
03.10.2017 - 30.06.2018
01.08.2018 - onwards
Status
Amateur
Professional
Sporting season:
1 July to 30 June (Portugal)
Date of transfer:
13 August 2018, Portugal (SC Espinho - UEFA, Category IV - EUR 10,000 per
year) to Italy (loan)
Financial conditions:
EUR 50,000 (fixed loan fee) payable by 30 September 2018
EUR 150,000 (Option right) payable as follows:
EUR 50,000 by 1 September 2019;
EUR 50,000 by 30 April 2020;
EUR 50,000 by 30 June 2020.
Art. 3.2. provided, inter alia, that “the Option Right may be exercised by [the
Respondent], at its sole discretion, within 31 May 2019”.
Claimant club:
Clube Futebol Os Belenenses (Portugal)
UEFA, Category IV (EUR 10,000 per year)
Respondent club:
SAMPDORIA SPA (Italy)
UEFA, category I (EUR 90,000 per year)
Claim and Response:
1.
On 8 September 2020, the Claimant requested training compensation in the amount of EUR
37,123.28 on the basis of the alleged first registration of the player with the Respondent, plus
5 % interest p.a. as of 10 September 2018.
2.
In its calculation, the Claimant took into consideration the average of the Respondent’s and the
Claimant’s categories, i.e. EUR 50,000, which it multiplied pro rata by the 271 days the player
was registered with it.
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3.
In particular, the Claimant referred to past proceedings held before FIFA under the Transfer
Matching System (TMS), i.e. case 6019, in which it had already requested the aforementioned
amount, said proceedings having been however closed by the FIFA Administration on 31 August
2020.
4.
As such, the Claimant reiterated the content of its previous claim arguing, inter alia, the
following:
- the player registered with the Respondent 10 days after having been registered as a
professional for the first time with the former club (SC Espinho), said conduct being irregular
and aimed to circumvent the applicable rules as to the issuance of training compensation;
- the player played no official match with the former club considering that the leagues in Portugal
started only on 10 August 2018, at the most the player trained briefly with the latter;
- the player being a minor upon registration with the Respondent, any possible request of the
latter to the competent bodies to authorize such registration occurred most certainly before the
player’s first professional registration with the former club, which would confirm the alleged
circumvention;
- the loan fee agreed between Sporting and the Respondent amounting to EUR 50,000 would
result in the payment of solidarity contribution in the amount of EUR 250 which demonstrates
the will of the Respondent to circumvent the training compensation mechanism in order to avoid
having to pay much higher sums;
- the Respondent operated a similar scheme with another player, namely Joao Miguel Vieira
Nobrega; and
- in accordance with the jurisprudence of the DRC, the short term registration period such as
the present one with the former club is irrelevant for purposes of liability to pay training
compensation.
5.
In support of its arguments, the Claimant provided, inter alia, the following documentation:
- the aforementioned player passport issued by the FPF on an unknown date; and
- a player passport issued by the FPF on an unknown date according to which the Portuguese
player, Joao Miguel Vieira Nobrega, was registered with the former club, as a professional, as
from 8 January 2018 until 15 January 2018, date of his registration with the Respondent.
6.
On 22 October 2020, the Respondent rejected the claim entirely.
7.
The Respondent referred to the present matter and first held that it “represents a “res judicata”,
since it was finally settled after due consideration of the reliefs sought by all the parties in course
of the relevant proceedings before FIFA”.
8.
In particular, the Respondent referred to CAS jurisprudence according to which, inter alia, “the
decision is an act of individual sovereignty addressed to an individual, by which a relation of
concrete administrative law, forming or stating a legal situation, is resolved in an obligatory and
constraining manner. The effects must be directly binding both with respect to the authority as
to the party who receives the decision”.
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REF TMS 6749
9.
As a result, the Respondent held that FIFA’s correspondence of 31 August 2020 was to be
considered as a final and binding decision “whereby it is clearly set out that “after a careful
examination of the correspondence received (…) [FIFA] is not in a position to intervene in the
present matter, since it appears that [the Claimant is] claiming the payment of training
compensation from the Italian club, UC Sampdoria, on the basis of the temporary transfer of the
player, Gabriel Vieira Gomes, from the Portuguese club, Sporting Clube de Espinho, to UC
Sampdoria".
10.
Consequently, the Respondent referred to the jurisprudence of the DRC, CAS and the Swiss
Federal Tribunal and argued that “bearing in mind that the present claim is filed by the same
person, against the same respondent, with the same object and the same cause, and FIFA has
already decided such dispute with identical elements, based on the “res judicata” principle the
present claim cannot be further or newly considered”.
11.
In the alternative and in the event FIFA would consider that “there is no “res judicata””, the
Respondent first held that it acted in good faith and diligence while registering the player on
loan.
12.
In particular, the Respondent explained that after having concluded the relevant loan agreement
with the former club and signed the employment contract with the player, both on 6 August
2018, it solicited the Federazione Italiana Giuoco Calcio (“FIGC”) to obtain the authorization of
the temporary registration of the player. The latter being a minor, the Respondent explained that
following the FIGC’s successful application for the International Transfer Certificate (“ITC”)
before FIFA on 9 August 2018, it could duly proceed with the relevant registration process in
TMS for the loan of the player, i.e. the ITC being requested by the FIGC to the FPF on 9 August
2018 and delivered by the latter to the former on 10 August 2018.
13.
In respect to the above, the Respondent provided, inter alia, the following documentation:
- a correspondence dated 6 August 2018 sent to the FIGC by means of which it requested the
necessary documents required for the player’s registration;
- a decision of the Single Judge of the Player’s Status Sub-Committee dated 9 August 2018
according to which it accepted the application of the FIGC, on behalf of the Respondent, for the
approval prior to the request for the ITC of the minor player; and
- the ITC of the player delivered by the FIGC to the FPF on 10 August 2018.
14.
Bearing the above in mind, the Respondent argued that despite the loan agreement contained
a purchase option, it did not trigger said option at any stage and “Therefore, Sampdoria and the
Former Club closed the “Engage on loan” TMS instruction and entered the “Return from loan”
TMS instruction. Thus, the Player returned to being registered with the Former Club as of the
beginning of the 2019/2020 sports season (i.e. 01 July 2019)”.
15.
What is more, the Respondent held that no training compensation was due to the Claimant on
the basis, inter alia, of the established jurisprudence of the DRC according to which “a club that
receives a professional player on loan is exempt from the obligation to pay training compensation
to the player’s initial club (as in our case, when at the end of the loan period, the Player is
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returned to the Former Club), since only a definitive transfer triggers the payment of training
compensation”.
16.
Finally, the Respondent held that even if training compensation would be triggered by the
player’s temporary registration with it, such entitlement would only be due to the former club
and not the Claimant.
Information of the FIGC:
On 24 June 2021, the FIGC issued a player passport according to which the player was registered as a
professional with the Respondent as from 13 August 2018 until 30 June 2019, on a permanent basis.
In addition, according to said player passport, the ITC was subsequently released to Portugal on 20
January 2020.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): June 2018 edition.
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): January 2021 edition.
Jurisdiction:
Yes, uncontested
Admissibility:
Yes, contested
Decision:
1.
The Respondent contested the admissibility of the claim lodged by the Claimant on the basis of
the legal principle of res judicata.
2.
In accordance with the legal principle of res judicata, a decision making body is not in a position
to deal with the substance of a claim if another (or the same) deciding body has already dealt
with the same matter and passed a final and binding decision on it. The principle of res judicata
is applicable if, cumulatively and necessarily, the parties to the dispute as well as the object and
the cause of the matter in dispute are identical.
3.
In accordance with art. 6 par. 4 of Annexe 3 of the RSTP, “Within the scope of proceedings
pertaining to the application of these regulations, FIFA may use any documentation or evidence
generated by or contained in TMS (…)”.
4.
Following the above and referring to the documents available in TMS case 6019, on 8 May 2020,
the Claimant requested training compensation in the amount of EUR 37,123.28 on the basis of
the player’s registration with the Respondent, plus 5 % interest p.a. as of 10 September 2018.
5.
According to the information available in TMS, by means of a correspondence sent to the
Claimant on 31 August 2020, the FIFA Administration closed the proceedings in case 6019, inter
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alia, in the terms set out in point I./9. In addition, said correspondence stipulated inter alia that
“all of the above information (…) is of a general nature only and thus without prejudice
whatsoever”.
6.
In view of the above, the aforementioned correspondence in the dispute TMS 6019 is not a final
and binding decision. Hence, the principle of res judicata is not applicable in casu and the claim
of the Claimant is admissible.
7.
The claim of the Claimant is based on the alleged first registration of the player as a professional
with the Respondent. In particular, the Claimant sustains that the player’s registration with the
former club was meant to circumvent the applicable rules as to the issuance of training
compensation. As such, in its opinion, said period of registration should be considered as
irrelevant for the purposes of liability to pay training compensation.
8.
For its part, the Respondent rejected the allegations of the Claimant and argued, inter alia, that
1) it acted in good faith and diligence while registering the player on loan; 2) no training
compensation is payable when registering a player on loan as per the jurisprudence of the DRC;
and 3) should any training compensation be triggered by such temporary registration, only the
former club would be entitled to it, not the Claimant.
9.
In accordance with art. 2 par. 1. of Annexe 4 of the RSTP, training compensation is due when a
player is registered for the first time as a professional; or when a professional is transferred
between clubs of two different associations (whether during or at the end of his contract), before
the end of the season of his 23rd birthday.
10.
What is more, according to the jurisprudence of the DRC, the obligation to pay training
compensation solely arises in those situations where a professional is transferred on a definitive
basis, provided that the relevant conditions outlined in art. 20 and Annexe 4 of the RSTP are
fulfilled, but not when a player 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.
11.
In casu, according to the information available in TMS, the player was registered with the
Respondent on 13 August 2018, on a loan basis, the Portuguese club SC Espinho being indicated
as the former club.
12.
What is more, according to the documentation uploaded in the relevant transfer instruction, i.e.
“Engage against payment on loan – Professional International”, the former club and the
Respondent agreed on a loan valid as from 6 August 2018 until 30 June 2019 under the
following financial conditions: payment of a loan fee amounting to EUR 50,000 by 30 September
2018 and a purchase option of EUR 150,000, to be triggered by the Respondent by 31 May
2019. In addition, the Respondent and the player signed an employment contract on 6 August
2018 valid as from 7 August 2018 until 30 June 2021 providing for a fixed gross yearly
remuneration of EUR 25,000 for the 2018/2019 season and EUR 30,000 for the 2019/2020 and
2020/2021 seasons. No conditional payments were agreed.
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REF TMS 6749
13.
In addition, a decision of the Single Judge of the Player’s Status Sub-Committee of 9 August
2018 was uploaded in the aforementioned transfer instruction. According to said decision, the
application of the FIGC, on behalf of the Respondent, for the approval prior to the request for
the ITC of the minor player, was accepted.
14.
In continuation, according to TMS, no “Return from loan” instruction was processed in the
system to the contrary of the Respondent’s allegations, i.e. the player’s ITC was not requested
by the FPF to the FIGC on behalf of the former club. In other words, according to TMS the player
did not “formally” return to the former club at the end of the loan.
15.
Furthermore, still according to TMS, on 20 January 2020, the player was engaged, as an
amateur, out of contract free of payment, by the Portuguese club FC Pacos de Fereira, the
Respondent being indicated as the former club (Transfer instruction nr. 266159). In particular,
according to the player passport issued by the FIGC on 20 January 2020 and uploaded in the
relevant transfer instruction, the player is indicated as having been registered with the
Respondent as from 13 August 2018 until 30 June 2019 on a permanent basis.
16.
According to the information provided by the FIGC on 24 June 2021, the player was registered
with the Respondent for the relevant period of registration, i.e. as from 13 August 2018 until
30 June 2019, on a permanent basis.
17.
Following the all above, it can be concluded that the player was duly registered with the
Respondent on 13 August 2018, on a loan basis. However, according to the contradictory
information available in TMS and as per the player passport’s issued by the FIGC on 20 January
2020 and 24 June 2021, it cannot be established with certainty that the player was not registered
on a permanent basis with the Respondent, at a certain point of time, during the course of his
registration with the latter.
18.
As such, the argument of the Respondent according to which training compensation is not
payable when registering a player on loan as per the jurisprudence of the DRC cannot be
retained.
19.
As a result, the central issue in the matter at stake is to determine if the allegations of the
Claimant as to a possible circumvention of the applicable rules occurred, considering that the
player was registered as a professional with the former club for a short period of time, before
moving on to the Respondent. In other words, it has to be determined if the player’s movement
is to be considered as sufficiently unusual to determine that a transfer with the aim to circumvent
art. 20 and Annexe 4 of the RSTP occurred.
20.
According to art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
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21.
In this respect, it appears that the circumstances surrounding the player’s short stay with the
former club could raise certain doubts as to the legitimacy of the player’s spell with the latter, a
category IV club within UEFA.
22.
In particular, according to the information available in TMS and the documentation provided by
the parties, it remains undisputed that:
- on 1 August 2018, the player is registered as professional with the former club;
- on 6 August 2018, a loan agreement is concluded between the former club and the
Respondent and an employment contract is signed by the player with the Respondent;
- on 9 August 2018, the minor application is accepted by FIFA; and
- on 13 August 2018, the player is registered with the Respondent.
23.
This documentation is duly uploaded in the relevant TMS transfer instruction.
24.
In addition, despite the absence of evidence on file that the purchase option set out in the loan
agreement was triggered, according to the two player passports issued by FIGC on 20 January
2020 and 24 June 2021, the player was registered on a permanent basis with the Respondent.
25.
What is more, the employment contract signed by the player with the Respondent on 6 August
2018 was valid for three seasons (i.e. as from 7 August 2018 until 30 June 2021) which is a solid
indicator that the Respondent was in fact registering the player on a permanent basis and not
for the duration of the loan as per the loan agreement (i.e. as from 6 August 2018 until 30 June
2019).
26.
In this respect, based on the short registration of the player with the former club (i.e. as from 1
August 2018 until 13 August 2018), the player’s movements appear sufficiently unusual enough
to determine that a transfer with the aim to circumvent art. 20 and Annexe 4 of the RSTP
occurred and that the loan was in fact put in place as if the transfer was permanent. This in
order for the Respondent to avoid having to pay training compensation for the first registration
of the player as a professional.
27.
As a result of all the above, in particular according to the duration set out in the employment
concluded between the player and the Respondent and as per the information provided by the
FIGC, the Claimant is entitled to training compensation for the player’s first registration as a
professional with the Respondent on 13 August 2018.
28.
It is uncontested that the player was registered with the Claimant for 271 days of the season of
the player’s 16th birthday.
29.
In accordance with art. 3 par. 1 of Annexe 4 of the RSTP, on registering a player 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 the 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).
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30.
In accordance with art. 5 par. 2 of Annexe 4 of the RSTP, the first time a player registered as a
professional, the training compensation payable by the new club to the training club(s) of the
player is calculated by taking the training costs of the new club multiplied by the number of
years with the training club(s).
31.
Art. 6 of Annexe 4 RSTP foresees special provisions regarding training compensation for clubs
that are located within the territory of the European Union (EU) and/ or the European Economic
Area (EEA).
32.
In casu, the Claimant is based in Portugal and the Respondent in Italy, both countries being
member of the EU and/or EEA.
33.
Therefore, art. 6 of Annexe 4 RTSP is applicable to the matter at hand as lex specialis.
34.
The training costs for category IV clubs within UEFA are set at EUR 10,000 per year and at EUR
90,000 per year for category I clubs within UEFA. As such, in line with Art. 6 par. 1. lit a) of
Annexe 4 RSTP, the average of the Respondent’s and the Claimant’s categories is EUR 50,000.
35.
Art. 3 par. 1 of Annexe 4 RSTP stipulates that the amount payable of training compensation is
calculated on a pro rata basis according to the period of training that the player spent with each
club.
36.
As established in point II./28. above, the player was registered with the Claimant for 271 days
of the season of the player’s 16th birthday.
37.
Consequently, the Claimant is entitled to receive EUR 37,123.28 for the training and education
provided to the player during the course of the season of his 16th birthday.
38.
As such, the Claimant is entitled to EUR 37,123.28 as training compensation for the player’s first
registration as a professional with the Respondent.
39.
Furthermore, the Claimant requested to be awarded interest amounting to “5 % interest p.a. as
of 10 September 2018”.
40.
Taking into consideration the Claimant’s claim as well as art. 3 par. 2 of Annexe 4 of the RSTP,
the Respondent has to pay, in conformity with the longstanding practice of the DRC, interest of
5% p.a. over the amount payable as training compensation as of 31 days after the registration
of the player with it, i.e. one day after the amount was due, in casu as from 13 September 2018
until the date of effective payment.
41.
In view of all the above, the claim of the Claimant is partially accepted and the Claimant is
entitled to receive EUR 37,123.28 as training compensation, plus 5% interest p.a. on that
amount, as from 13 September 2018 until the date of effective payment.
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42.
No procedural costs are levied (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
43.
Art. 24 bis of the RSTP is applicable.
III. DECISION
1.
The claim of the Claimant, Clube Futebol Os Belenenses, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, SAMPDORIA SPA, shall pay to the Claimant:
-
EUR 37,123.28 as training compensation, plus 5% interest per annum on that amount as
from 13 September 2018, until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant shall immediately inform the Respondent of the bank account to which the
Respondent must pay the due amount (including all applicable interest).
6.
The Respondent shall provide evidence of full payment to [email protected]. If applicable,
the evidence shall be translated into an official FIFA language (English, French, German, Spanish).
7.
If the due amount (including all applicable interest) is not paid by the Respondent within 45 days
as from notification of the bank account details, the following consequences shall apply:
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.
2. The ban will be lifted immediately, and prior to its complete serving, following confirmation
that the due amount (including all applicable interest) has been received by the Claimant.
3. 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.
8.
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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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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