SK Slavia Praha v. Genoa Cricket and Football Club S.p.A.

II. FACTUAL BACKGROUND

4. Lukas Zima (the “Player”) trained with FC Hradec Králové as of 18 August 2004 and was on loan with SK Praha from 18 August 2009 until 2 September 2011. In both cases, he was registered as an amateur player.

5. The football seasons in the Czech Republic during the time in which the Player played at SK Praha started and ended as follows:

- 2009/2010: 25 July 2009 - 30 May 2010

- 2010/2011: 17 July 2010 - 11 June 2011

The 2011/2012 season commenced on 30 July 2011.

6. On 2 September 2011, the Player was registered as a professional player, following a transfer instruction entered on the Transfer Matching System, by Genoa FC.

7. On 7 February 2012, SK Slavia Praha filed a claim with the FIFA Dispute Resolution Chamber (“DRC”) regarding recovery of training compensation for the training period from 18 August 2009 until 2 September 2011 (seasons 2009/2010-2010/2011), based on the fact that the Player had signed his first professional contract with Genoa FC.

8. On 28 June 2013, the FIFA Dispute Resolution Chamber (the “DRC”) issued the following decision (the “Challenged Decision”):

1. The claim of the Claimant, SK Slavia Praha, is rejected.

2. The final costs of the proceedings in the amount of CHF 12,000 are to be paid by the Claimant within 30 days as from the date of notification of the present decision, to FIFA. Given that the Claimant has already paid the amount of CHF 3,000 as advance of costs at the beginning of the present proceedings, the amount of CHF 9,000 is to be paid to FIFA to the following bank account with reference to case nr. 12 - 00514/wit: […]

Note relating to the motivated decision (legal remedy):

According to the art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Courts of Arbitration of 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)

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

9. On 14 February 2014, Mr. Vyacheslav Bytsanyov, on behalf of the Appellant, filed its Statement of Appeal pursuant to Article R51 of the Code of Sports Related Arbitration (the “Code”). In its Statement of Appeal, the Appellant requested a stay of the Challenged Decision, and appointed Dr. Michael Gerlinger as arbitrator.

10. On 19 February 2014, the Court of Arbitration for Sport (“CAS”) acknowledged receipt of the Statement of Appeal, provided the Appellant 10 days to file its Appeal Brief, and requested the Appellant to inform the CAS Court Office whether it maintained its request for a stay of the Appeal, considering that monetary decisions issued by private Swiss associations are not enforceable while under appeal.

11. On 24 February 2014, the Appellant informed the CAS Court Office that it maintained its request for a stay of the appeal. On 26 February 2014, the CAS Court Office provided the Respondent with a deadline until 5 March 2014 to file its comments to the request for a stay.

12. On 26 February 2014, the Appellant requested an extension of the time limit to file its Appeal Brief, which was granted in accordance with Article R32 of the Code.

13. On 3 March 2014, FIFA informed the CAS Court Office that it renounced to its right to intervene in the arbitration proceedings, pursuant to Articles R54 and R41.3 of the Code, and provided a clean copy of the Challenged Decision.

14. On 4 March 2014, the Appellant filed its Appeal Brief in accordance with Article R51 of the Code and informed the Respondent that it had a deadline of 20 days from receipt of the letter for submitting its Answer, pursuant Article R55 of the Code.

15. On 5 March 2014, the Respondent filed its objections to the Appellant’s request for a stay of the Challenged Decision.

16. On 10 March 2014, the Respondent nominated Ms. Margarita Echeverría, as arbitrator.

17. On 11 March 2014, the CAS Court Office issued its decision on the request for a stay of the Challenged Decision issued by the Deputy Division President of the Appeals Arbitration Division.

18. On 14 March 2014, the CAS Court Office forwarded the Arbitrator’s Acceptance and Statement of Independence of Dr. Michael Gerlinger, whereby certain disclosures were made by Dr. Gerlinger.

19. On 21 March 2014, upon request of the Respondent, the CAS Court Office suspended the Respondent’s time limit to file the Answer in accordance with Article R55 of the Code.

20. On 21 March 2014, considering Dr. Gerlinger’s disclosure, the Appellant decided to nominate His Honour James Robert Reid, QC as arbitrator instead of Dr. Gerlinger. On that same date, the Respondent was invited to comment on whether it objected to such nomination.

21. On 31 March 2014, failing any objection from the Respondent, the CAS Court Office confirmed the Appellant’s nomination of His Honour James Robert Reid, QC as arbitrator.

22. On 24 April 2014, the CAS Court Office advised the Parties that the Appellant’s share of the advance of costs had been paid, thereby inviting the Respondent to file its Answer within 20 days.

23. On 5 May 2014, the CAS Court Office informed the Parties that, pursuant to Article R54 of the Code, the Panel appointed to decide this appeal is constituted as follows:

President: José María Alonso Puig, attorney-at-law in Madrid, Spain.

Arbitrators: His Honour James Robert Reid Q.C., in West Liss, Hampshire, United Kingdom.

Ms. Margarita Echeverría Bermúdez, attorney-at-law in San José, Pavas, Costa Rica.

24. On 14 May 2014, the Respondent filed its Answer in accordance with Article R55 of the Code. On 16 May 2014, the CAS Office acknowledged receipt and requested the Parties to inform the CAS Court Office before 23 May 2014 whether they preferred a hearing to be held in this case.

25. On 23 May 2014, the Appellant informed the CAS Court Office that it preferred a hearing to be held in this case. On that same date, the Respondent informed the CAS Court Office that

it preferred that the Panel decide the issue exclusively on the basis of the Parties’ written submissions.

26. On 20 June 2014, the CAS Court Office sent the Parties the Order of Procedure for their signature.

27. On 25 June 2014, both the Appellant and the Respondent signed and returned a signed copy of the Order of Procedure to the CAS Court Office.

28. On 1 July 2014, the hearing was held at the CAS Court Office in Lausanne, Switzerland. The Panel was assisted by Mr. Brent J. Nowicki, Counsel to the CAS. The Appellant was represented by Vycheslav Bytsanov and Yuriy Serdyuk, and assisted by Nataliya Makukha (interpreter). The Respondent was represented by Paulo Lombardi.

29. On 11 July 2014, the Appellant filed a submission on costs that had not been requested by the Panel.

IV. OUTLINE OF THE PARTIES’ POSITIONS — A. THE A PPELLANT: SK SLAVIA PRAHA

1. Appellant’s position

30. As a general rule, the training compensation is paid for training of the player between the age of 12 and 21, when the player signs his first professional contract before the end of the season of the player’s 23rd birthday.

31. According to Article 3 of the Regulations on the Status and Transfer of Players, the club with which the player is registered as professional for the first time is responsible for paying training compensation within 30 days from registration.

32. If the player moves between associations inside the territory of the EU/EEA, as it occurs in this dispute, the amount of training compensation payable shall be calculated on the basis of para.1, art. 6, Annex 4 of the Regulations on the Status and Transfer of Players: based on the average training costs of the two clubs. Therefore, as the Appellant has an indicative amount of EUR 30,000 per year (third category) and the Respondent an indicative amount of EUR 90,000 per year (first category), the amount per year to use in the calculations shall be EUR 60,000 per year, the average between both amounts. Therefore, the amount due to the Appellant is EUR 122,301, calculated as follows:

- 18 August 2009 - 17 August 2010: EUR 60,000

- 18 August 2010 - 17 August 2011: EUR 60,000

- 18 August 2011 - 1 September 2011: EUR 2,301

33. The DRC made its Decision of rejecting the Appellant’s claim because the Appellant did not offer a contract to the Player, whilst it should have, as the DRC understood that the SK Praha was the “former club” of the Player based on the TMS instructions for the transfer of the Player.

34. SK Praha, however, alleges that it honestly believed that it did not have to offer a contract to the Player, based on the following reasons:

(a) SK Praha understands that it was not the Player’s “former club” under the internal regulations of the Regulations or Transfer of Amateur Players of the Czech Republic. SK Praha argues that, pursuant to art. 7.1 of said regulations, a club that has a player on loan cannot offer a professional contract “if the player is a minor and the club that released the player on loan is a professional club with license”. Under these regulations, as FC Hradek Kralove was a professional club with license, SK Praha understood that it could not offer the Player a contract.

SK Praha argues that in basing its decision solely on the TMS instructions issued by Genoa FC, the DRC did not take into account the applicable Czech regulations. In this regard, SK Praha notes that the TMS instructions were submitted by Genoa FC that could have been mistaken on the data submitted.

(b) As the Player was a minor and was training with the Appellant due to a loan, the Appellant needed FC Hradec Králové’s permission to make the offer of a contract to the Player, pursuant to Article 7 of the Czech Regulations of Transfer for Unprofessional Players. Without FC Hradec Kralove’s permission, the Appellant could not offer a contract to the Player.

(c) The Appellant claims that it did not know that the Player would be leaving before he turned 18. After the European U19 Championship in Italy, the Player did not return to the Czech Republic. Genoa FC did not negotiate with SK Praha.

35. In any case, if the Panel understands that SK Praha should have offered the Player a contract, SK Praha avers that not complying with such formality does not necessarily mean the loss of the right to compensation. In this regard, pursuant to art 6 para. 3 of Annex 4 of FIFA Regulations on the Status and Transfer of Players: “if the former club does not offer the player a contract, no training compensation is payable unless the former club can justify that it is entitled to such compensation”.

36. DRC decisions No. 1132516 and No. 49444, and CAS decision No. 2006/A/1152 serve as examples of this exception to the exception.

37. SK Praha argues that, pursuant to this case law, if the club can show that it was genuinely interested in the player it does not lose the right to training compensation. SK Praha avers that it should be entitled to compensation because of the following reasons:

(a) The achievements of the Player show that SK Praha has a right to claim compensation. Indeed, the Player participated in numerous matches and was able to sign his first professional contract in Italy before turning 18.

(b) SK Praha paid for the Player to study in Prague for 3 years, a term of study that was set to end on 30 June 2013.

(c) In fact, SK Praha discussed the possible transfer of the Player with FC Hradek Kralove. This possibility, however, was rejected by FC Hradek.

2. Prayers for relief

38. The Appellant thus requests the following:

1. To accept the present Statement of appeal and consequently, cancel the decision of FIFA DRC dated 28.06.2013.

2. To acknowledge that the Appellant has a right to obtain an amount of the training compensation for training the player Lukas Zima

3. To obligate the Respondent to pay for the Appellant’s benefit the following monetary funds in the amount of EURO 112 301 - as a training compensation sum and to award financial sanctions from the Respondent for the benefit of SK Slavia Praha, in amount of 5% interest per annum for unjustified delay in payment;

4. To obligate the Respondent to reimburse the monetary funds paid by the Appellant in connection with consideration of the present case:

Advance of costs in FIFA bodies in the amount of 3000 CHF;

CAS Court Office fee in the amount of 1000 CHF and costs of arbitration;

Funds spent for the legal assistance, transport charges, accommodation expenses and other funds connected with consideration of case.

B. THE RESPONDENT: GENOA CRICKET AND FOOTBALL CLUB

1. Respondent’s position

39. The Respondent understands that this proceeding revolves around the application of art. 6.3 of Annex 4 of the FIFA Regulations on the Status and Transfer of Players. Pursuant to such provision, if the player’s former club does not offer the player a contract, no training compensation is payable. In the Challenged Decision, the DRC confirmed that since the Appellant did not offer the Player a contract, no training compensation is payable.

40. First, the DRC considered the Appellant as the former club of the Player because:

1. The Player was transferred on a temporary basis from FC Hradek Kralove to the Appellant from 18 August 2009 to 30 June 2013. In fact, however, no loan agreement existed between the two clubs.

2. At the time of the Player’s transfer to the Respondent, the Czech Football Association officially indicated that the player’s former club was the Appellant.

41. The Respondent understands that the Appellant’s arguments to show that it is not, in fact, the Player’s former club are contradictory and, in fact, detrimental to the Appellant’s case. If the Appellant was not the Player’s former club, on what grounds does it claim its right for training compensation?

42. Having established that the Appellant is the Player’s former club, the issue is to determine whether the Player was offered a contract. In this case, the DRC, upon the lack of evidence provided by the Appellant, came to the conclusion that no contract was ever offered.

43. The Respondent agrees that, as the Appellant remarked, the DRC jurisprudence states that failing to offer a contract does not per se exclude a claim for training compensation, but then the claiming party must justify a bona fide interest in keeping the player in its team and show a proactive attitude vis-à-vis the relevant player. This bona fide interest and genuine interest, according to DRC jurisprudence, includes “evident contractual negotiations, several offers with constantly increasing financial conditions” which, as the Player declares, did not occur. The Respondent files a witness statement by the Player whereby it declares that it never received any offer from the Appellant. The Player’s statistics only confirm the lack of a proactive attitude to the Appellant towards offering a contract to the Player.

44. The DRC therefore acted in full compliance with the applicable regulations.

45. Finally, regarding the Appellant’s request for the procedural costs in the DRC proceedings, the Respondent submits that it should be rejected, as it affects the financial status of FIFA, who is not a part to these proceedings.

2. Prayers for relief

46. The Respondent thus requests the following:

1. We request that the Appellant’s appeal be rejected and the decision rendered by the Dispute Resolution Chamber confirmed in its entirely.

2. We request that this case be decided solely on the basis of the parties’ written submissions.

3. In any case, we request this Honourable Court to order the Appellant to bear all costs incurred with this appeal.

4. In any case, we request this Honourable Court to order the Appellant to cover the Respondent’s legal costs related to this appeal, which by the end of these proceedings will amount approximately CHF12 ’000.