Fodboldalliancen AC Horsens A/S & Tudor-Stefan Cocu v. FIFA

II. FACTUAL BACKGROUND

5. Below is a summary of the main relevant facts and allegations based on the Parties’ written submissions. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in this award (“Award”) only to the submissions and evidence he considers necessary to explain his reasoning.

(A) The object of the dispute

6. This appeal case (the “Appeal”) is related to the challenging of the Decision of the Single Judge of the Player’s Status Chamber (the “PSC”) passed on 22 July 2024 (the “Appealed Decision” or the “PSC Decision”) which denied the application of the DBU, on behalf of the Club, for the approval of the international transfer of the Player, who is a minor, prior to the request for the issuance of the International Transfer Certificate (the “ITC”).

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7. The Player is a football player, currently registered with the Romanian football club FC Player. The Player is 16-year-old as of the date of this Award.

8. On 21 June 2024, the Club, the Player and FC Player entered into a transfer agreement, whereby the transfer of the Player to AC Horsens was agreed (the “Transfer Agreement”). The following are the main clauses of the Transfer Agreement:

“(…)

Article 1 – Obligations of the Parties

(…)

1.4. The present Agreement and all the terms and conditions contained herein are subject to the following conditions (“Conditions”): (a) the Player entering into a valid and enforceable employment agreement with [AC Horsens] in accordance with the relevant rules of the DBU; (b) the issuance of the Player’s International Transfer Certificate by the [the Romanian Football Federation].

If any of the Conditions are not finalized by 15 August 2024, 12.00 Central European Time, the Agreement and all of its effects shall be considered null and void and the Player will not be transferred to [AC Horsens].

Article 2 – Financial conditions

(…)

2.1.1 In consideration for the permanent transfer of the Player and any and all declarations, warranties and guarantees provided by [FC Player], [AC Horsens] shall pay to [FC Player] a sum of Euro 150,000 (one hundred fifty thousand) (the "Fixed Transfer Fee"), paid on the following dates: (i) Euro 150,000 (one hundred fifty thousand) excluding VAT, within 30 business days as from the release of the [ITC];

(…)

Article 4 – Player consent

4.1. The Player hereby agrees to the transfer in all of its effects, including but not limited to, the suspension and possible future termination of his employment

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contract with [FC Player] and the transfer of the Player's federative and economic rights to [AC Horsens] as well as any and all of the express and implied terms of this agreement. 4.2. The Player hereby declares that he is fully satisfied with the amount of the salaries he will receive from [AC Horsens].

(…)”

9. On 5 July 2024, the Player and the Club entered into an employment agreement using the standard DBU template (the “Employment Agreement”). The Employment Agreement was subject to the approval of the Administration of the Danish League as per Clause 5, which reads as follows in its relevant part:

“5.1 The validity and commencement of this Contract is subject to approval by the Danish League’s administration. (…).”

10. On 12 July 2024, the DBU submitted, on behalf of AC Horsens, an application for approval to the transfer of the Minor (the “Application”) in the FIFA Transfer Matching System (“TMS”). The Application was to be assessed and approved by the PSC prior to any request for the “ITC”.

11. The Application contained, among other documents, the following:

a) A copy of the Player’s birth certificate. b) A copy of the Player Romanian passport. c) A copy of the Transfer Agreement. d) A copy of the Employment Agreement. e) A copy of a leasing agreement between AC Horsens and a landlord (the “Leasing Agreement”). f) A copy of the Player’s “football education timetable”. g) A copy of a letter signed by the Player’s parents authorizing the transfer to AC Horsens. h) A copy of the Player’s weekly training timetables. i) An unsigned declaration which covered AC Horsen’s school collaboration programme. j) A copy of a report issued by the DBU, indicating AC Horsens’s training facilities score (the “DBU Training Report”).

12. According to the DBU Training Report, it was stated that AC Horsens was classified as 13th in terms of the “overall ranking” and it contained the following mentions:

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a) Strategy – 75% b) Organisation & HR – 78,57 % c) Team Development – 75% d) Individual Development – 65,63 % e) Talent Identification – 62,50 % f) Facilities – 75% g) Productivity – 21,85% h) Total score – 62,39 %

13. The Application was submitted under the specific exception established in Article 19.2(b)(i) of the Regulations on the Status and Transfer of Players (the “RSTP”), related with the possibility to transfer a player if he is aged between 16 and 18, within the territory of the European Union or European Economic Area, when the new club fulfils the minimum obligations set forward in Article 19.2(b)(iii)(iv)(v) and (vi) RSTP.

14. On 22 July 2024, the PSC passed the Appealed Decision, the operative part of which is as follows:

“The application of the Dansk Boldspil-Union (TMS reference G-0002851) on behalf of its affiliated club, AC Horsens, for the approval prior to the request for the International Transfer Certificate of the minor player, Tudor-Stefan Cocu, is rejected.”

15. The grounds of the Appealed Decision, which were communicated to the DBU on 25 July 2024, consisted of the following:

a. The present case concerns the exception listed in Article 19.2 (b) RSTP. b. For the application of such an exception to be justified, a few requirements must be complied with, namely:

• The club must provide the player with adequate football education or training in line with the highest national standards;

• The club needs to guarantee an academic education or vocational training to the player enabling him to pursue a career other than football should he cease to play professionally; and

• The club is required to make necessary arrangements, so the player is properly looked after and accommodated. c. The Player was 16 years old at the time of the Application, therefore he complied with the age requirement. d. The international transfer in casu involved clubs affiliated to different football associations (the DBU and the Romanian Football Federation) located within the EEA, as required.

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e. When it comes to the “adequate football education and/or training in line with the highest national standards” requirement, the Single Judge stresses that said requirement is to be objectively applied according to Annexe 4, Article 4 RSTP. As a result, and as per FIFA Circular 1853, each national association had to divide its clubs each year into a maximum of four categories, from I (highest) to IV (lowest), in accordance with the club’s declared financial investment in training young players. f. The DBU has three training categories for its affiliated clubs, from II to IV, with II being the highest category and IV being the lowest. g. According to the information provided by the DBU, AC Horsens was classified as having training costs category III, the second lowest of the DBU’s categories. h. As a result, despite the documentation provided by the DBU, the Single Judge is bound to conclude that the Player was not receiving a football education and/or training “in line with the highest national standards” and that the requirements stipulated in Article 19.2(b) RSTP were not fulfilled. i. The remaining requirements do not require and assessment, since the lack of one is enough to deny the Application.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

16. On 12 August 2024, the Appellants filed with the Court of Arbitration for Sport (the “CAS”) a statement of appeal (the “Statement of Appeal”), in accordance with Articles R47 and R48 of the Code of Sports-related Arbitration (the “Code”), challenging the Appealed Decision. Together with its Statement of Appeal, the Appellants have filed an application for provisional measures (the “APM”) requesting the CAS to order (i) the interim release of the Player’s ITC as well as (ii) allowing the Player to be registered with the AC Horsens. The Appellant also requested that the present case be submitted to a sole arbitrator.

17. On 19 August 2024, the Appellants filed a letter of support issued by the DBU confirming how the training category system in Denmark functions (the “DBU Support Letter”).

18. On the same date, the CAS Court Office invited the Respondent to comment on the DBU Support Letter in its answer to the APM (the “Answer to the APM”).

19. On 23 August 2024, the Appellants, in accordance with Article R51 of the Code and within the time-limit previously extended, filed their appeal brief (the “Appeal Brief”) with the CAS.

20. On 28 August 2024, the Respondent filled its Answer to the APM, within the extended deadline and in accordance with Article R37 of the Code.

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21. On 30 August 2024, the CAS Court Office communicated to the Parties the operative part of the Order on the Application for Provisional Measures (the “Order on APM”) issued by the Deputy President of the Appeals Arbitration Division of the CAS, the relevant part of which read as follows:

“(…)

1. The application for provisional measures filed by the Appellants on 9 August 2024 is dismissed. 2. The costs of the present Order shall be determined in the final award or any other financial disposition of this arbitration.

(…)”

22. On 30 September 2024, the CAS Court Office communicated to the Parties the grounds of the Order on APM issued by the Deputy President of the Appeals Arbitration Division of the CAS. These can be summarized as follows:

“(…)

5.13 (…) the international transfer and then registration of a minor football player must comply with two steps: first, the approval by the [PSC] of the application for international transfer (the “Application”) and, second, the ITC request made by the new association (the “ITC Request”), once the Application has been approved by the [PSC] (…).

5.14 [It is] undisputed that the core of the Appealed Decision is limited to the assessment by the [PSC] of the Application, which has been (…) rejected. Accordingly, and given the restricted issue at stake, the Deputy Division President could have potentially assessed whether the DBU’s Application for the Player’s international transfer to the Club could be temporarily accepted pending the issuance of a final award by the Sole Arbitrator. However, in their Request, the Appellants are not seeking for the provisional acceptance of the DBU’s Application for the [PSC’s] prior approval for the Player’s international transfer to the Club but, instead, they request the interim release of the Player’s ITC.

5.15 The Deputy Division President considers that (…) is not in a position to grant such request as the prior Application – whose approval by the [PSC] is a sine qua non condition for the filing of the ITC Request – was rejected by the [PSC]. Granting the interim release of the ITC would circumvent the procedural steps set forth by the [RSTP] and would by-pass the [PSC’s] function to deal with international transfers and registrations of minor football players.

5.16 Considering the above (…) the Appellants’ Request for Provisional Measures shall be rejected.

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(…)”

23. On 2 October 2024, in light of the Appellants’ request, the CAS Court Office informed the Parties that it would assure that the operative part of the Award would be notified before 1 January 2025 at the latest.

24. On 10 October 2024, the Appellants’ requested the CAS Court Office to be able to supplement their Appeal Brief due to the judgement issued by the European Court of Justice on 4 October 2024, in the matter C650/22 FIFA v. BZ.

25. On 17 October 2024, the Respondent filed its answer (the “Answer”), within the extended time-limit.

26. On the same date, the Respondent also informed that it objected the possibility that the Parties be authorized to supplement or amend their arguments, as requested by the Appellants.

27. On 18 October 2024, the CAS Court Office informed the Parties that it would not admit the supplement or amendments of the Parties’ requests in light of Article R56 of the Code, unless the Parties agreed to it, or the Sole Arbitrator ordered otherwise on the basis of exceptional circumstances.

28. On 21 October 2024, the CAS Court Office informed the Parties regarding the appointment of the Sole Arbitrator by the President of the CAS Appeals Arbitration Division:

Sole Arbitrator: Mr Rui Botica Santos, Attorney-at-Law in Lisbon, Portugal

29. On 31 October 2024, the Sole Arbitrator invited the Appellants to file an English translation of the Annexe 14 to the Application.

30. On 4 November 2024, after consultation of the Parties, the Sole Arbitrator decided to hold an in-person hearing on 22 November 2024 at 09:30 am (Swiss time).

31. On the same date, the CAS Court Office issued the Order of Procedure, which was duly signed by the Parties.

32. On 8 November 2024, the Appellants filed with the CAS the translation of the Annexe 14 to the Application, as well as:

a. an amendment to the Transfer Agreement (the “Amendment”); b. a joint letter signed by AC Horsens and FC Player (the “Joint Letter”); c. the signed version of the lease agreement (the “Signed Lease Agreement”); and

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d. the Employment Agreement signed and approved by DBU (the “Approved Employment Agreement”).

33. On 15 November, the Respondent objected to the admissibility of the documents (the “Additional Documents”) filed by the Appellants (see para. 32), for the following reasons:

• New evidence and documents may only be filed with the CAS under Article R56 of the Code and based on “exceptional circumstances”, as per CAS jurisprudence and relevant legal doctrine.

• The filing of the Amendment shall be rejected, since the Appellants could have easily produced it until 23 August 2023, since the Transfer Agreement became null and void on 15 August 2024.

• The same reasons apply to the Joint Letter, since it also could have been produced earlier by the Appellants.

• The Signed Lease Agreement must be rejected, since its filing at this stage does not allow to establish when such signature was placed. In any case, if the document really was signed on 21 March 2024, then the Appellants had more than enough time to produce this document, only doing so now without any proper justification.

• The Approved Employment Agreement, similarly to the previous documents, was available to the Appellants on 9 July 2024, its date, and therefore it could have been timely filed, there being no justification for the Appellant’s failure to do so.

34. On 22 November 2024, the in-person hearing was held. In addition to the Sole Arbitrator and Mr Fabien Cagneux, as CAS Managing Counsel, the following persons attended the hearing in-person in Lausanne, Switzerland, or by videoconference:

1. For the Appellants

• Mr Richard Liddell KC – Counsel (in-person)

• Mr David Seligman – Counsel (in-person)

• Ms Maxime van den Dijssel – Counsel (in-person)

• Mr Tudor Stefan Cocu – Second Appellant (by videoconference)

• Mr Kristian Nielson – CEO of the First Appellant (by videoconference)

• Mr Adam Binnie – Witness (by videoconference)

• Mr Martin Bloch – Witness (by videoconference)

• Mr Claus Thompson – Witness (by videoconference)

• Mr Daniel Mofid – Witness (by videoconference)

• Ms Michelle Gregersen – Witness (by videoconference)

• Mr Marius Cocu – Witness (by videoconference)

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2. For the Second Respondent

• Mr Miguel Liétard Fernández-Palacios – Director of Litigation (in-person)

• Mr Rodrigo Morais – Senior Legal Counsel (in-person)

35. At the beginning of the hearing, and as a preliminary remark, the Parties confirmed that they had no objections to the appointment of the Sole Arbitrator and to the manner in which the proceedings had been conducted so far.

36. Also, as a preliminary remark, the Sole Arbitrator gave the floor to the Parties so they could present their arguments in relation to the Additional Documents. After considering their arguments, the Sole Arbitrator decided that they would be accepted, on the basis of Article R56 of the Code, since these were (i) deeply interconnected with the documents / evidence already on file and (ii) their production could not hurt the Respondent, since it had already considered, in its Answer, the potential validity of the Transfer Agreement beyond the date of 15 August 2024, as well as the existence of a valid lease agreement. In addition to this, the Approved Employment Agreement’s constituted a mere confirmation of the validity of the alleged unapproved version of said document, which was filed and, as such, it would not constitute a supplement of the Appellants’ position.

37. In continuation, and also as a preliminary remark, the Appellants clarified their “requests for relief”, specifically noting that the final part of item c. (“(…) and AC Horsens is permitted to request the ITC of the Second Appellant” – should be considered unwritten and therefore removed. This clarification is made to address the issue raised by the Respondent, who argued that “the Appellants’ request for relief is out of the Sole Arbitrator’s power of review” and that “FIFA lacks standing to be sued (alone) in relation to the Appeal”. This issue will be further examined in the preliminary section of the merits.

38. The hearing proceeded normally, and all witnesses were allowed to provide their testimony. The Parties’ representatives had the opportunity to examine and crossexamine the witnesses.

39. Before the conclusion of the hearing, the Parties expressly confirmed that they had been afforded a full opportunity to present their case and to make their submissions and arguments. They also expressed no objections regarding the conduct of the proceedings, emphasizing that their rights to equal treatment and to be heard had been duly respected.

IV. THE PARTIES’ SUBMISSIONS

40. The following summary of the Parties’ positions is illustrative and does not necessarily comprise each contention put forward by the Parties. The Sole Arbitrator, however, has

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carefully considered all the submissions made by the Parties, even if no explicit reference is made in what immediately follows:

A. The Appellants’ Submissions

41. The Appellants sought the following reliefs – considering the clarification held during the hearing – see para. 37 – in their joint Appeal Brief:

“(…)

a. The present appeal filed by AC Horsens is admissible and upheld.

b. The Challenge Decision is annulled.

c. The application for the prior approval from the FIFA PSC for the international transfer of the Second Appellant is approved.

d. The Respondent shall pay in full, or in the alternative, a contribution towards the costs and expenses incurred, including the Appellant’s legal costs and expenses and the procedural costs of this present appeal.

(…).”

42. The Appellants advanced the following grounds in support of its appeal:

a. The legal framework of Article 19 RSTP

(i) The object of the dispute is essentially connected to determining if the conditions set forth in Article 19.2(b)(iii) to (vi) RSTP are met, allowing the Appellants to benefit from the exception to the general rule that international transfers of player are only permitted if said player is over the age of 18 (Article 19.1 RSTP). (ii) In the case at hand, the Player is a 16-year-old European Union national (from Romania) that is pursuing a transfer to AC Horsens, a club with headquarters in Denmark, i.e. within the European Union. (iii) Article 19.2(b) RSTP must be interpreted in accordance with CAS jurisprudence, which dictates that the intention behind the drafting of this provision cannot be ignored (TAS 2012/A/2862).

b. The prohibition of international transfers of minors

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(i) It must be recalled that the prohibition of international transfers of minors is an essential rule which aims to protect the safety of minor players and avoid any abuses linked to their juvenile condition (as per CAS 2014/A/3793, CAS (ii) As per CAS jurisprudence (namely, CAS 2007/A/1403), the rule from Article 19.1 RSTP aims to combat the social, cultural, commercial or sporting exploitation of minor players. Its strict application is seen as essential for the correct functioning of the system, however, CAS jurisprudence also dictated that a “mechanical approach” is not always suitable (TAS 2015/A/4178). (iii) AC Horsens submitted the Application, which specifically outlines its ability to offer football education at the highest national level, provide high-quality academic education, ensure optimal living conditions, and offer psychological support to the Minor. (iv) FIFA failed to adequately analyse the documentation provided by AC Horsens and rejected the application submitted based on the training category classification of AC Horsens.

c. The scope of the exception provided for in Article 19.2(b) RSTP

(i) The Commentary to the RSTP – 2023 Edition (the “Commentary”), provides that the exception foreseen in Article 19.2(b) RSTP was introduced to comply with the right to free movement of workers within the EU, allowing transfers of players between the ages of 16 and 18 within the EU/EEA subject to certain conditions. This is also confirmed in TAS 2012/A/2826. (ii) The primary condition relates to the ability to provide the Player with adequate football education and/or training in line with the highest national standards (as set out in Article 19.2(b)(iii) RSTP). As per the Commentary and FIFA Circular 1709, a club is generally deemed to satisfy this requirement only if it belongs to the highest training compensation category for the member association to which it is affiliated. (iii) AC Horsens was able to demonstrate that it complies with the conditions set forth in Article 19.2(b)(iii) to (vi) RSTP. The nuances of the DBU Academy Licensing System would require further analysis by the FIFA. (iv) Within the DBU, training categories are determined mainly by the men’s club competition where a certain club participates. This, however, does not necessarily involve an assessment of the quality of a club’s academy nor its ability to provide high level football education. The information provided by the DBU to FIFA further confirms this. (v) In Denmark there is a football academy system (the “Academy System”) which is distinct from the FIFA classification system. The Academy System is based on independent audits and a separate licencing regime.

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(vi) The U19 League in Denmark is a good example of this system in practice, since only the 14 best ranked teams according to the Academy System are allowed to compete in it. For that reason, it is not uncommon to have first division clubs in Denmark, which have a Category 2 FIFA classification, be deemed ineligible to participate in this U19 competition. (vii) AC Horsens has maintained its licence to compete in the U19 League since the 2020/2021 season. It has also submitted to the FIFA a breakdown of its ongoing financial investment into its academy and facilities. It is, therefore, clear that AC Horsens can provide football education at the highest national level. (viii) FIFA failed to correctly assess this matter, and the documentation provided.

d. The remaining conditions for the exception have been met

(i) The Appealed Decision does not contest AC Horsens’s ability to satisfy the remaining conditions set forth in Article 19.2(b)(iv) to (vi) RSTP, however, for the sake of completeness, the Appellants also deem the remaining conditions to have been met. (ii) In relation to the academic requirements (Article 19.2(b)(iv) RSTP), AC Horsens worked closely with the Player and his parents to create a personalized academic education plan which adhered to the highest standards. It involved an international schooling programme, university accredited classes, personal tutors, career counselling sessions, personal development plans and public speaking training, along with frequent progress reports. (iii) As for the living standards requirement, AC Horsens has made all arrangements to provide the Player with high quality accommodation at its campus, located close to the main stadium, benefitting from weekly cleaning. The Player would be provided with his own room, breakfast, lunch and dinner. In addition to this, AC Horsens’ player care department would look after the Player’s welfare in all moments, also with the help of full-time sports psychologists. All his travels would be arranged and managed by AC Horsens, which would be responsible for providing transportation. (iv) Based on the foregoing, AC Horsens was also able to satisfy the remaining requirements foreseen in Article 19.2(b)(iv) to (vi) RSTP.

e. The consequences of the Appealed Decision

(i) The interpretation of Article 19 RSTP established in the Appealed Decision is contradictory to its spirit and CAS jurisprudence on the topic, which foresees that a mechanical application of the prohibition may, in some cases, be contrary to the best interest of the minor.

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(ii) The Player is a 16-year-old professional football player that devoted his life and sacrificed his childhood to become a top player. With the close help of his parents, the Player chose to pursue his career at AC Horsens, since it considered into to be the best place to satisfy his personal, academic and footballing ambitions. Similar opportunities do not exist in Romania, his home country. It is a crucial time for the Player, since any decision taken now has the power to profoundly impact his future career and his ability to achieve his goals as a professional football player. (iii) A decision which, in light of the available evidence, concludes that AC Horsens is unable to provide football education at the highest national level, would therefore be contrary to the Player’s right to reside and work in the territory of the European Union, denying him his right to free movement of persons under the Treaty on The Functioning of the European Union (the “TFEU”) as well as the spirit of Article 19.2 RSTP. (iv) The Appealed Decision has disregarded the Academy System, which creates a competitive disadvantage for AC Horsens when compared to other Danish clubs. In fact, the Appellant has made a significant investment in making sure that its academy complied with the highest national standards – but is now faced with a “blanket” decision which only considered the FIFA classification. (v) Based on the Appealed Decision, we are faced with the conclusion that clubs which significantly invest in their academies, but fail to play first division football in Denmark, are unable to register young players from the EU/EEA, while clubs who compete in the first division and don’t invest significantly in their academies are granted this opportunity. This situation generates an immediate and irreparable competitive disadvantage to AC Horsens and other clubs in the same position and is even contrary to the position of the DBU.

f. Conclusions

(i) AC Horsens complies with all the required conditions mentioned in Article 19.2.(b)(iii) to (v) RSTP, namely: o Adequate football education and/or training in line with the highest national standards. o Academic, school or vocational education that allows the Player to pursue a career other than football will be provided. o High-level accommodation and permanent monitoring of the Player is guaranteed. (ii) The specific nature and working of the DBU licencing system should be considered by FIFA, since it clearly demonstrates that AC Horsens is able to provide football education at the highest national level, a position which the DBU confirmed.

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(iii) Any decision that is contrary to these conclusions has the immediate effect of unduly restricting the Player’s right to reside in the EU and his right to pursue professional sporting activities in a manner that is contrary to both the free movement of persons and the spirit of Article 19.2.(b) RSTP.

B. The Respondent’s submissions

43. The Respondent filed its Answer to the Appeal Brief and made the following prayers for relief:

“Based on the foregoing, FIFA respectfully requests the Sole Arbitrator to issue an award on the merits:

a) Rejecting the reliefs sought by the Appellants in their entirety;

b) Confirming the Appealed Decision; and

c) Ordering the Appellants to bear the full costs of this Request for provisional measures.”

44. The submissions of the Respondent, in essence, may be summarised as follows:

a. The Appellants’ request is out of the Sole Arbitrator’s power of review

(i) The Appellants request in their Appeal Brief that the “(…) the First Appellant is permitted to request the ITC of the Second Appellant.” (ii) For the DBU to be able to request the ITC of the Player, both AC Horsens and FC Player (the old club), must create a joint transfer instruction in TMS. (iii) Since this instruction has neither been created in the TMS nor is it within the scope of the Appealed Decision, the Sole Arbitrator has no authority to decide on such a request and must therefore reject it.

b. FIFA lacks standing to be sued alone

(i) In order for the Sole Arbitrator to permit the ITC to be requested, the Player’s transfer would have to first be approved and submitted by FC Player in the TMS system, which has not occurred to date. (ii) According to the Transfer Agreement, the validity of the transfer was conditioned to the issuance of the Player’s ITC until no later than 15 August 2024, 12:00h CET – which never occurred. Therefore, it would be likely that FC Player would reject the transfer instruction in the TMS.

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(iii) Despite that, considering that such transfer would have to be confirmed by FC Player, it is clear that FIFA lacks standing to be sued alone in the present appeal, since there is a lack of passive mandatory joinder, a notion which has been further explored in CAS jurisprudence (CAS 2008/O/1808, paras. 67-70; CAS 2013/A/3228, paras. 8.10 and 8.11; CAS 2018/A/6044, para. 72; CAS 2022/A/9238, paras. 71-76; CAS 2021/A/8225, paras. 111-114, among others). (iv) An eventual decision by the Sole Arbitrator that the Player’s ITC request is to be permitted, without the participation of FC Player in the present proceedings, would violate that club’s right to be heard. (v) FIFA lacks standing to be sued alone, considering the passive mandatory litisconsortium. This is enough to dismiss the appeal, as confirmed by CAS

c. The rationale behind Article 19 RSTP

(i) Prior to the entry into force of the RSTP, edition 2001, trafficking of young players to clubs in Europe, by unscrupulous persons, led to many children being virtually abandoned on the streets of European countries, without even understanding the language and culture of said places. Many were left without means to return home. (ii) FIFA decided to adopt strict rules on the international transfer of young players. It did so based on intensive discussions with various bodies of the EU, namely the European Commission, leagues, clubs, FIFPro and member associations and confederations. The current rules are, therefore, a consequence of the agreement concluded between FIFA, UEFA and the European Commission in Mach 2001. (iii) The primary objective of Article 19 RSTP is, therefore, the protection of young player’s welfare and against exploitation and mistreatment, as corroborated by CAS jurisprudence (TAS 2020/A/7116, para. 74). While exceptions exist, international transfers of minors are unlikely to benefit a player or, at the very least, creates a risk for their well-being and development (iv) Article 19.2 and 19.3 RSTP created exceptions to the main rule (the prohibition of international transfers of minor players) to introduce some flexibility to the system. Such provisions, as expressly stated by the CAS jurisprudence, need to be applied in a very strict, rigorous and consistent manner (CAS 2022/A/8592, para. 1 of the Preamble; CAS 2021/A/7807, para. 87; CAS 2020/A/7503, para. 2 of the Preamble; CAS 2015/A/4312, paras. 78

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(v) The burden of proving that one of the exceptions to Article 19.1 RSTP applies, lies on the one relying on such exception. The standard to prove that such an exception applies, in view of the strictness and rigour needed when handling these matters, should be the standard of beyond reasonable doubt (CAS 2017/A/5244, para. 54). If the Sole Arbitrator does not concur with this assessment, the standard to be applied shall be the one of “comfortable satisfaction”, as acknowledged by the Appellants in their Appeal Brief.

d. The scope of the DBU’s application and of the Appeal

(i) DBU requested that the transfer of the Player be authorised on the basis of Article 19.2(b) RSTP. (ii) The scope of the Appealed Decision was limited to the analysis of the concrete requirements to determine if the exception invoked by the DBU could be granted. (iii) The Sole Arbitrator is limited to considering if the requirements mentioned in Article 19.2(b) RSTP are met or not. (iv) Recent CAS jurisprudence is clear in affirming that the exceptions mentioned in Article 19.2 RSTP are exhaustive, to the contrary of what is argued by the

e. The cumulative requirements set out in Article 19.2(b) RSTP

(i) The Appellants failed to prove that AC Horsens was in compliance with the requirements listed in Article 19.2(b) (iv) and (v) RSTP.

e.1 – Adequate football education at the highest national level

(ii) The PSC correctly assessed that, as per its training category, AC Horsens was not able to provide the Player a football education in line with the highest national standards. This is because Article 19.2(b)(iii) refers directly to Article 4, Annexe 4 RSTP. (iii) Pursuant to the RSTP, the Commentary and the “Guide to Submitting a Minor Application” (the “Guide”), a club pertaining to an association with only three training categories will only be considered to have adequate football education or training in line with the highest national standards if it has been placed in the highest training category of such association. (iv) In casu, it is not disputed that the DBU placed AC Horsens as a club with training costs of category III, the second lowest of the DBU’s training categories. Therefore, the FIFA PSC’s decision was correct.

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(v) The Appellants’ reasoning cannot be accepted, since the internal system used by the DBU to classify clubs is irrelevant in the face of Article 19.2 (b) RSTP’s direct reference to the training costs category system (Article 4, Annexe 4 RSTP). (vi) The exceptions mentioned in Article 19 RSTP must be applied in a strict and rigorous manner to ensure a high level of protection for children, as well as to provide legal certainty for clubs and associations. (vii) The evidence presented by the Appellants does not support the conclusion that AC Horsens provides adequate football education at the highest national level. Within the DBU’s system, AC Horsens received a score of 3,5 stars out of 5, being classified as “medium” in relevant parameters such as “individual development and training”. (viii) Nothing prevented the DBU, if it truly considered AC Horsens to have a toplevel academy, of placing said club in the highest available category, as per FIFA Circular no. 1249.

e.2 – Academic Requirements

(ix) The Appellants have failed to adequately demonstrate that the Player would be provided with an academic or/and school and/or vocational education and/or training, as per Article 19.2(b)(iv) RSTP. (x) As the evidence submitted by the Appellants suggests, there are only statements from AC Horsens on file, which are not substantiated by any concrete evidence proving the Player’s effective enrolment in any international school, nor the qualification the Player would receive upon completion of the mentioned course. (xi) No mention of when the Player would be graduating, nor any signed weekly academic schedule, has been provided either.

e.3 – Optimal living standards and accommodation

(xii) There is no evidence on file submitted by the Appellants which demonstrates that AC Horsens has the control of 10 three-bedroom apartments. The provided lease agreement copy is unsigned. (xiii) The Appellants also failed to prove that the Player would be accommodated in such bedrooms. (xiv) The Appellants failed to demonstrate compliance with the requirement set out in Article 19.2(b)(v) RSTP.

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f. The Employment Agreement submitted is invalid

(i) DBU submitted a copy of the Employment Agreement which stated that it was subject to its approval. (ii) The Employment Agreement was not signed, nor approved, by the DBU. (iii) The Transfer Agreement became null and void on 15 August 2024, considering its Article 1.4 (see para. 8). (iv) The Application would never be approved, since the DBU failed to provide the PSC with the necessary documentation.

g. The Appellants’ remaining arguments are of no avail

(i) The Appealed Decision does not impact the Player’s right to move and reside freely in the EU; in fact, he maintains all of his rights to do so. Only his transfer to AC Horsens was affected by said decision. It must be recalled that Article 19 RSTP was expressly accepted and even deemed appropriate by the European Commission, which was the one to suggest the system of prohibition of internal transfers of minors. The Player cannot be considered a worker for the purposes of Article 45 of the TFUE, since he would be a trainee at AC Horses, with a remuneration below Denmark’s minimum wage. (ii) AC Horsens is not to be considered at any kind of competitive disadvantage, since the fact it is not placed in the category it considers adequate is not the fault of FIFA. AC Horsens should have requested the DBU to alter its classification, if it considered itself to be incorrectly classified. In addition, the “imbalance” would actually be generated if AC Horsens was allowed to register the Player despite its category, as it would have to pay less training compensation in the future compared to clubs of a higher category. (iii) The Appellants have also failed to clarify the reasons why they argue that the Player would not be able to continue his football education in Romania, nor why it would not be able to satisfy his personal, academic and football ambitions. (iv) Any inconvenience that the Appealed Decision created for the Player is highly justified in view of the higher principle sought by the relevant rules – the protection of minors, as corroborated by CAS jurisprudence.

h. Conclusions

(i) The Sole Arbitrator lacks the power of review to consider the Appellants’ requests. (ii) FIFA lacks standing to be sued (alone), since FC Player should also have been named as respondent in the present proceedings.

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(iii) Without prejudice to the above preliminary issues, the Appellants failed to prove that the necessary requirements for the Application of the exception set out in Article 19.2(b) RSTP, in which they rely on, could apply. (iv) The remaining arguments presented by the Appellants, namely those related to the violation of EU Law by the Appealed Decision, are of no avail and deserve no merit, since they are contradictory and unsubstantiated.