Dansk Boldspil-Union (DBU), FC Nordsjaelland A/S, Batuhan Zidan Sertdemir v. Fédération Internationale de Football Association (FIFA)

II. FACTUAL BACKGROUND

5. Below is a summary of the main relevant facts, as established on the basis of the written submissions of the Parties and the evidence examined in the course of the proceedings. This background information is given for the sole purpose of providing a synopsis of the matter in dispute. Additional facts may be set out, where relevant, in connection with the legal analysis.

6. On 13 June 2017 FIFA issued Circular Letter # 1587 “International transfers of professional minor players” (hereunder “2017 Circular”), which reads as follows:

“We refer to the administrative procedure governing the international transfers of minor players to be registered at an association for a club as professionals.

With the purpose of avoiding any possible future misunderstandings concerning this matter, we would like to clarify the interpretation of the applicable provisions of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations).

As you are certainly aware, the approval of the sub-committee of the Players' Status Committee (hereinafter: the sub-committee) is a compulsory requirement for any international transfer of a minor player and must be obtained prior to any request for an International Transfer Certificate (ITC; cf. art. 19 par. 4 of the Regulations).

In this regard, we wish to point out that art. 19 par. 4 of the Regulations does not affect the contents and applicability of the rules relating to the obligation of a club wishing to register a minor player as a professional

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to enter all compulsory data and upload all mandatory documents to support the information entered in the Transfer Matching System (TMS) during one of the relevant registration periods when creating the pertinent transfer instruction. In other words, the provisions pertaining to the registration periods apply to the registration of any player, regardless of whether the player is a minor or not.

In particular, we wish to draw your attention to art. 8.2 par. 1 of Annexe 3 in combination with art. 4 paras 2 and 3 of Annexe 3 of the Regulations, which stipulate, inter alia, that all data relating to the transfer instruction allowing the new association to request an ITC including for a professional minor player, shall be entered into the TMS by the club wishing to register the (minor) player during one of the registration periods established by that association . When entering the relevant data, the new club shall, depending on the selected instruction type, upload all mandatory documents prior to the end of the relevant registration period. The required application to the sub-committee does not relieve the new club from the aforementioned obligations and from respecting such time limits.

Furthermore, in consideration of the aforementioned provisions of the Regulations, we would like to emphasise that the club wishing to register a minor player as a professional must immediately confirm and match the relevant data in the TMS as soon as the sub-committee's decision, whereby the sub-committee accepts the pertinent application for approval, is notified to the association concerned via the TMS. Please note that it is the responsibility of the association in question to immediately forward decisions of the sub-committee notified to them via the TMS to their affiliated clubs concerned (cf. art. 2 of Annexe 2 of the Regulations).

Nevertheless, since art. 19 par. 4 of the Regulations makes it compulsory to receive the approval of the subcommittee prior to any ITC request for a minor player, the time needed to handle the relevant minor application leading to the decision of the sub-committee could possibly justify the ITC request being made by the association concerned after the end of the relevant registration period, if applicable.

If the relevant decision of the sub-committee is passed and notified to the association concerned during the registration period in question, resulting in the new club having not only to enter but also confirm and match the relevant data in the TMS before the end of that registration period in order to allow the new association to request the ITC for the minor player in the TMS on time, i.e. prior to the end of the relevant registration period (cf. art. 4 par. 5 of Annexe 3 and art. 8.1 par. 2 of Annexe 3 of the Regulations), the new association is not entitled to request the ITC for the minor player outside the relevant registration period.

If the relevant decision of the sub-committee is, however, passed and notified to the association concerned after the end of the registration period in question, the new club may confirm and match the relevant data in the TMS after the end of that registration period and the new association, for its part, may be entitled to request the ITC outside the registration period in question.

In view of the above, and in order to prevent any potential issues related to the application of the pertinent articles of the Regulations and respective registration proceedings, we kindly ask you to take due note of these clarifications and inform your affiliated clubs, in particular those intending to sign new minor players as professionals, accordingly.

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Please do not hesitate to contact the Players' Status Department of FIFA if you have any questions in connection with any of the above”.

7. The Player joined the FCN academy some time in 2017, at the age of 12. In 2020, at age of 15, he was promoted to the FCN U-19 team.

8. On 1 July 2021, FIFA issued Circular Letter # 1763 “Regulations on the Status and Transfer of Players – categorisation of clubs, registration periods, and international transfers of minor players” (hereafter “2021 Circular” or “Circular Letter 1763”) which, inter alia, stated:

“3. Administrative procedure for the international transfer of minor players

We would like to clarify certain aspects of the administrative procedure governing the international transfer of minor players.

As you may know, where an international transfer of a minor player is due to take place, two separate procedures must be conducted in TMS:

• The relevant association must submit a minor application (cf. art. 19 par. 4 of the Regulations).

• A transfer instruction must be processed in accordance with Annexe 3 to the Regulations.

Following a technical update to TMS (release 10.2), transfer instructions related to the international transfer of a minor player may be confirmed by the clubs concerned at any time. Doing so no longer depends on the status of the relevant minor application (thus revoking the procedure described in FIFA circular no. 1587 of 13 June 2017).

Regardless of the above, the new association’s ability to request an International Transfer Certificate (ITC) for a minor player remains dependent on the status of the associated minor application.

Therefore, a club intending to register a minor player must comply with all its obligations prior to the end of the applicable registration period (subject to the exceptions under art. 6 par. 1 of the Regulations), as per the applicable provisions of Annexe 3 to the Regulations.

Independently from the relevant minor application, in accordance with art. 19 par. 4 (a) of the Regulations, a club intending to register a minor player shall undertake the following actions prior to the end of the applicable registration period:

(i) enter a transfer instruction (cf. art. 4 par. 2 read with art. 8.2 par. 1 of Annexe 3 to the Regulations);

(ii) provide all compulsory data (cf. art. 4 par. 3 read with art. 8.2 par. 1 of Annexe 3 to the Regulations);

(iii) upload all mandatory documents to support the information entered (cf. art. 4 par. 4 read with art. 8.2 par. 1 of Annexe 3 to the Regulations);

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(iv) confirm the relevant transfer instruction (cf. art. 4 par. 4 read with art. 8.2 par. 1 of Annexe 3 to the Regulations); and

(v) where applicable, resolve any matching exceptions (cf. art. 4 par. 5 read with art. 8.2 par. 1 of Annexe 3 to the Regulations).

For clubs that are not registered in TMS, these actions must be completed by their association, if the minor player will be registered as an amateur (cf. art. 1 par. 6 of Annexe 3 to the Regulations).

Associations remain responsible for requesting an ITC in a timely manner (cf. art. 8.1 par. 2 of Annexe 3 to the Regulations) upon notification of a decision approving a minor application. Where an approval decision is notified to an association after the end of the applicable registration period, the association may be entitled to request the ITC outside that registration period.

We kindly ask that your affiliated clubs ensure that all transfer instructions related to minor players are completed (i.e. entered, confirmed and matched) in a timely manner.

Please do not hesitate to contact the Players’ Status Department at psdfifa@fifa.org if you have any questions in connection with any of the above”.

9. In July 2021, the Player was transferred to Bayer 04 Leverkusen Fussall GmbH (“Bayer”).

10. The Player was listed as a substitute in the match team sheet for the first team of Bayer already in mid-October 2017. In the 2021 - 2022 season, the Player was fielded in the Bundesliga matches three times and was listed in match team sheets on five further occasions (four in the Bundesliga and one in the DFB-Pokal (i.e. German Cup competition), before suffering a season-ending groin injury in February 2022.

11. The Player returned from injury for the 2022 - 2023 season, he was listed in the team sheet in six matches, however, was never fielded prior to the season brake in winter 2023.

12. On 30 January 2023, FCN and Bayer concluded a transfer agreement for the permanent transfer of the Player’s registration to FCN. FCN agreed to pay Bayer “a Fixed Transfer Fee in the amount of EUR 1.550.000 net”.

13. On the same day, the Player signed a termination agreement with Bayer.

14. On 31 January 2023, the Player and FCN entered into an employment contract valid as of the same day until 31 December 2025. The Employment Contract stated, inter alia, that “football is the Player’s full- time job”, “the Player is not entitled to take on other employment without the prior approval of the Club”, “The Player must take part in training, training camps and matches in accordance with the Club’s directions”, and further that “The Player is entitled and obligated to train with the training group and play matches for the team/training group directed by the Club…”.

15. On that day the Player was still a minor (aged 17 and 361 days), therefore, FCN entered a transfer instruction in the FIFA Transfer Matching System (“TMS”) and uploaded all the

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relevant documents. The DBU created a “minor case” and submitted the application for approval of the FIFA Players’ Status Chamber (the “PSC”).

16. On 4 February 2023, the Player turned 18 years old.

17. On 5 February 2023, the minor application submitted by DBU was automatically cancelled.

18. On 7 February 2023, FCN confirmed the transfer instruction.

19. On 16 February 2023, the DBU requested the International Transfer Certificate (“ITC”) for the Player from the Deutscher Fussball-Bund (“DFB”).

20. On the same date, the DBU’s TMS manager submitted a correspondence to FIFA requesting the approval of and intervention enabling ITC request for the Player, namely a special exemption from the “validation exception” in TMS, i.e. FIFA’s intervention giving the possibility to proceed with requesting the ITC for the Player. In its letter, the DBU mentioned twice that the transfer instruction was created and confirmed by FCN before the registration period ended.

21. On 17 February 2023, FIFA informed the DBU that it “[…] is not in a position to grant [the] request for the special exemption from the “validation exception” in TMS”, because “Art. 10 par. 7 of Annexe 3 to the RSTP […] stipulates, inter alia, that all data relating to the transfer instruction allowing the new association to request an ITC shall be entered and confirmed into the TMS by the club wishing to register the player during one of the registration periods established by that association”; and because the transfer instruction was confirmed by FCN “only after the end of [the DBU’s] latest registration period”.

22. On 20 February 2023, a DBU representative contacted the FIFA PSC by phone, during which FIFA emphasized that based on 2021 Circular, as of 1 July 2021, all transfer instructions in TMS shall be “confirmed” (and not just “created” and remain pending) before the end of the registration period, even if such transfer instructions were pertinent to a minor player, subject to the FIFA PSC approval.

23. On 21 February 2023, the DBU submitted another correspondence to FIFA reiterating its previous request, however this time admitted that the transfer instruction was indeed created and remained pending without confirmation. The DBU mentioned that it was not aware of 2021 Circular Letter before the conversation of the DBU and the FIFA representatives on 20 February 2023, however underlined that refusal to allow the Player’s registration based on a procedural error will have major consequences for the Club and the Player.

24. FIFA replied on the same day and informed DBU that “[…] we unfortunately have no option but to adhere to our position previously communicated to your association […]”.

25. On 28 February 2023, FCN requested FIFA for the matter to be referred to the PSC for a formal decision to be rendered in accordance with Article 14(2) of Annexe 3 of the RSTP.

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Among other, FCN pointed that it was instructed by DBU not to “confirm” the transfer instruction in TMS attaching relevant message exchange between DBU and FCN.

26. On 1 March 2023, the DBU submitted another correspondence to FIFA where the DBU highlighted, having conducted an internal investigation, that the 2021 Circular was sent by FIFA only to the DBU’s general email box, but that this email was not forwarded to the DBU’s TMS department, thus it remained unaware of the new administrative procedure, introduce by the said 2021 Circular. DBU once again requested FIFA to reconsider its position and grant a special exemption related to the registration of the Player.

27. On 3 March 2023, FIFA replied, reiterating its previous positions of 17 and 21 February 2023 and stated that “after a careful analysis of the documentation and information on file, the Chairperson of the [PSC] confirmed that the provisions of Annexe 3 to the RSTP regarding the obligation to enter and confirm the relevant transfer instruction in TMS within the relevant registration period were not respected […]” and that “the present decision is final and subject to the legal remedies foreseen by article 57 of the Statutes” (the “Appealed Decision”).

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

28. On 16 March 2023, the Appellants filed a joint Statement of Appeal with the Court of Arbitration for Sport (the “CAS”) against the Appealed Decision, in accordance with Articles R47 and R48 of the 2023 edition of the CAS Code of Sports-related Arbitration (the “CAS Code”). In this submission, the Appellants named FIFA as the Respondent. In their Statement of Appeal, the Appellants requested an expedited procedure in accordance with Article R52 of the Code, with a decision prior to 15 June 2023.

29. In their Statement of Appeal, the Appellants requested that the case be submitted to a Sole Arbitrator.

30. On 20 March 2023, FIFA informed the CAS Court Office that it agreed the matter to be referred to a Sole Arbitrator, however objected to the implementation of an expedited procedure.

31. On 23 March 2023, the CAS Court Office informed the Parties that no expedited procedure will be implemented and that the deadlines provided for in Articles R51(1) and R55(1) would apply to the matter.

32. On 28 March 2023, in accordance with Article R51 CAS Code, the Appellants filed their Appeal Brief.

33. On 28 April 2023, based upon an agreed extension, the Respondent filed its Answer.

34. On the same day, in accordance with Article R54 CAS Code, and on behalf of the Deputy President of the CAS Appeals Arbitration Division, the CAS Court Office informed the

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Parties that the arbitral tribunal appointed to decide the present matter was constituted as follows:

➢ Sole Arbitrator: Dr. Anna Bordiugova, attorney-at-law in Kyiv, Ukraine.

35. Upon being invited to express their opinion in this respect, the Parties informed that they preferred the case to be resolved based solely on the Parties’ written submissions.

36. On 4 May 2023, the Parties were informed that in view of their positions and pursuant to Article R57 of the CAS Code, the Sole Arbitrator had determined that no hearing would be held in this matter. The CAS Court Office also forwarded to the Parties a copy of the Order of Procedure which was returned by them in duly signed copies on 4 May 2023 by the Respondent and on 5 May 2023 by the Appellants.

37. By signing the Order of Procedure, the Parties confirmed the CAS’ jurisdiction to hear this matter and that their right to be heard had been respected during these proceedings.

38. The Sole Arbitrator confirms that in her decision she had carefully considered all the submissions, evidence and arguments presented by the Parties, even if they have not been specifically summarized or referred to in the present arbitral award.

IV. SUBMISSIONS OF THE PARTIES AND REQUESTS FOR RELIEF — A. The Appellants

39. The Appellants submitted the following arguments in their Appeal Brief:

This case concerns an exceptional set of circumstances that relate to the overly formalistic application of a rule (relating to the international transfer of the Player on FIFA’s TMS) that was questionably introduced, inconclusively amended and formalistically applied to the detriment of each of the Appellants; in particular:

The 2021 Circular was not properly communicated to the DBU (and as a result, FCN)

➢ The 2021 Circular was sent to a general DBU email address, rather than to the TMS department at the DBU (and FCN/all clubs concerned, given that the administrative change was directed at clubs). The DBU cannot be expected to monitor rule changes – particularly where they are of an administrative nature – via email, especially where Article 6(2) (f) of Annexe 3 of the RSTP explicitly requires clubs and associations to “check TMS at regular intervals to ensure they are in a position to comply with their obligations at all time”.

➢ DBU had a legitimate expectation vis-à-vis FIFA to expect communication via TMS, which has been violated; as a result, FCN, who in turn had a legitimate expectation to receive updates from FIFA via the DBU, did not receive the 2021 Circular;

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➢ FCN explicitly asked DBU whether it should confirm the transfer instruction on 31 January 2023, in response to which the DBU instructed FCN to wait for the PSC approval before doing so. Relying on DBU, FCN failed to confirm the transfer instruction due to no fault of its own;

➢ The 2021 Circular letter was entitled “Regulations on the Status and Transfer of Players – categorisation of clubs, registration periods and international transfers of minor players”, and related primarily to FIFA’s annual categorisation of clubs for training compensation purposes. The section dealing with the proposed changes was shoehorned into the same document, at the end. This was purely an administrative change, not one that was reflected in the RSTP. Whereas the 2017 Circular letter was published as a standalone circular entitled “International transfer of professional minor players”, clearly detailing the procedural changes in relation to the international transfer of minor players.

In any event, the FIFA RSTP and the 2021 Circular are not conclusive proof of a change in procedure

➢ FIFA primarily relies upon the following to assert the fact that FCN ought to have “confirmed” rather than simply “created” the transfer instruction before the close of the registration period: the 2021 Circular, Article 10(7) of Annexe 3 of the RSTP (October 2022 edition). However, neither of these documents are conclusive proof of any alleged change in the administrative procedure. The Appellants contend that the circular was poorly drafted, causing ambiguity and therefore lacked legal certainty as to the correct administrative procedure. FIFA’s contention that there was a requirement to “confirm” the transfer instruction pursuant to the October 2022 version RSTP, is misleading;

➢ When comparing versions of the RSTP in force before and after the 2021 Circular one would not be able to differentiate that an administrative procedural change requiring “confirmation” of the transfer instruction before the closure of the registration period had taken place.

As a result, the 2021 Circular did not constitute a “mandatory procedure”, that was binding

➢ Given that neither the 2021 Circular nor the FIFA RSTP were conclusive evidence of a change in procedure, it follows that this procedure was not “mandatory”, and could not bind the DBU or FCN;

➢ For the 2021 Circular to constitute a mandatory procedure, it must serve to enable the international transfer of minors to be organised in an efficient, orderly, safe and fair manner. None of these criteria are satisfied by the introduction of the ambiguously drafted 2021 Circular. The requirement to check a “confirm” box on TMS is a technical update and serves no purpose to (a) make the international transfer of minors more efficient or orderly; or (b) safeguard minors any more or less than the previous system

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did; or (c) ensure fairness, particularly in this case, where FCN were explicitly instructed not to take the relevant step;

➢ If FIFA did consider the 2021 Circular and accompanying procedures to be material and mandatory, the Appellants submit that it ought to have ensured that the Minor Application Guide – a valuable resource for all clubs and federations involved with the international transfers of minors – was updated to reflect the latest practice; instead it includes – as part of the “reference materials”, the 2017 Circular – that FIFA claims had been revoked by the 2021 Circular. The fact that the Minor Application Guide, FIFA’s key subject specific reference material on the international transfer of minors, still refers to the 2017 Circular is wholly misleading. This is a further illustration that FIFA did not consider the 2021 Circular material enough to include in a document that was published for the benefit of, and is widely relied upon, by clubs across the world.

The Appealed Decision is disproportionate and represents excessive formalism by FIFA

➢ The [Appellants] understand the importance of the FIFA rules on registration to be consistently applied across the board. However, such objective, even if legitimate, cannot prevail in circumstances where the misrepresentations given by a national association, which act as de facto agents of FIFA in each jurisdiction, would directly cause a violation to fundamental rights of parties, such as the Players’ right to work;

➢ It is a situation where rules are enforced for the sake of enforcement, but without consideration for the wider circumstances of the facts at hand. The rationale for requiring the prior approval of the PSC for all international minor transfers is to protect minors from abuse, mistreatment and trafficking. However, a mere failure to check a “confirm” box in TMS, having complied with all other formalities, is in no way contrary to these objectives.

The Appealed Decision has caused and continues to cause serious and irreparable harm to the Player

➢ The entire situation causes irreparable harm to the Player - an injury causing him to miss five months of football in early 2022 was a major setback and hampered his development. He explained in his personal statement the impact that this incident has had and continues to have on his physical and mental health;

➢ If the Player is only able to register with FCN in June 2023, he will miss crucial games for FCN. Having already missed five league matches since 1 February 2023, he stands to miss 10 more before the end of the season. FCN currently sit atop the Danish Superliga, and need the Player’s contribution if they are to face the competition. Crucially, he will have to reintegrate himself with the squad, with FCN possibly reassessing his place in the squad, if his performance following a long time away has deteriorated;

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➢ Elite football is extremely competitive, and the Player and FCN are both concerned that time away from competitive football when he is fit and available could have damaging effects on the Player’s career in the long-term perspective, causing irreparable harm, for which the Player could never receive any tangible, monetary compensation;

➢ Whilst secondary to the irreparable harm caused to the Player, the irreparable harm to FCN cannot be understated. FCN has not only paid a significant transfer fee for the Player – the second highest in the club’s history – but is also unable to field the Player in a number of competitive matches. This may ultimately affect its title prospects, which have significant sporting and financial consequences, particularly where only the winner of the Danish Superliga has the opportunity to qualify for the UEFA Champions League.

In any event, by cancelling the minor application on 4 February 2023, the FIFA PSC de facto approved the “regular” transfer of the Player

➢ Whilst this case initially concerned the international transfer of a minor, that ceased to be the case on 4 February 2023, when the Player turned 18. This was acknowledged by FIFA, when they cancelled the DBU’s minor application on 4 February 2023. The only reason that FCN did not confirm the transfer instruction was because the Player was a minor, and that his transfer was subject to further approval. FIFA’s subsequent cancellation of the minor application means that the Player was being transferred to FCN as a “normal” (i.e. not minor) player;

➢ FIFA’s cancellation of the minor application amounted to a tacit “confirmation” of the transfer instruction, as if the Player was transferring under the normal route, there would be no reason for FCN to create the transfer instruction without confirming it;

➢ FCN/DBU took this step in the interests of transparency and on the basis that they were following what they believed was the correct procedure. In theory, the Player had terminated his contract with Bayer on 30 January 2023, before signing his Employment Contract on 31 January 2023. He was therefore “out of contract” briefly, meaning that the FCN/DBU could have facilitated his registration as a “normal” player after 4 February 2023, when he was no longer a minor.

40. On this basis, the Player submits the following prayers for relief:

1. To uphold its appeal and set aside the decision taken by the FIFA General Secretariat dated 3 March 2023;

Primarily,

2. To grant the DBU’s request for an exemption of the validation exception in respect of the transfer of the Player from Leverkusen to FCN;

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Subsidiarily,

3. To order FIFA to grant the DBU’s request for an exemption of the validation exception in respect of the transfer of the Player from Leverkusen to FCN;

In any event,

4. To order that the Player be registered and eligible to play for FCN with immediate effect;

5. To order FIFA to bear the entire costs of these arbitration proceedings;

6. To order FIFA to pay a contribution towards the Appellants’ legal fees and other expenses incurred in connection with these arbitration proceedings, in the amount of GBP 20,000.

B. The Respondent

41. FIFA submitted the following arguments in its Answer:

➢ DBU’s request for a special exemption from the “validation exception” in TMS was rejected, because of FCN’s failure to confirm the relevant transfer instruction (for the Player’s transfer) in TMS before the end of the registration period as required by Article 10(7) Annexe 3 RSTP and in accordance with 2021 Circular;

➢ The Appellants contest the Appealed Decision on the basis of a wide range of arguments, alleging that (a) the 2021 Circular was “not properly communicated” to the DBU, (b) the RSTP and 2021 Circular are “not conclusive proof of change in procedure”, (c) the 2021 Circular did not constitute a “mandatory procedure” that was binding, (d) that the Appealed Decision is “disproportionate” and “excessive formalism”, (e) that “irreparable harm” is caused to the Player and FCN, and (f) that the FIFA PSD “de facto approved the regular transfer”;

➢ The essence of the matter is simply that the Appellants failed to comply with the TMS instructions (confirm the transfer instruction) during the time limit (prior to the end of the registration period) resulting in the Player’s failed transfer. The DBU – as per its own admission – wrongly advised its affiliated club FCN resulting in the latter’s failure to timely comply with 2021 Circular which had been duly notified on 1 July 2021;

➢ The international transfer of players and TMS is primarily governed by Annexe 3 of the RSTP, containing all the relevant provisions on TMS’s functioning and the relevant processes. TMS being mandatory for associations and clubs to use for the international transfer of professional and amateur players in eleven-a-side football cf. Article 2(2) Annexe 3 RSTP;

➢ The functioning of TMS is straightforward and its process governed by Title IV of Annexe 3 RSTP. For the international transfers of minor players, two separate procedures must be conducted in TMS:

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(1) A transfer instruction must be processed (cf. Annexe 3 RSTP);

(2) The relevant association must submit a minor application (cf. Article 19(4) RSTP).

➢ Article 10(8) Annexe 3 RSTP stipulates that for international transfers with a transfer agreement, both clubs shall (a) independently enter and confirm the transfer instruction, (b) ensure that the required information matches; and (c) collaborate to resolve any matching exceptions. If the transfer instruction is not confirmed, the transfer will not be processed;

➢ The second step in the process (subject to the successful outcome of the first step) involves the respective associations, with the new association being able to request in TMS that the former association deliver the ITC cf. Article 11(1)b) Annexe 3 RSTP.

➢ Additionally, for the international transfer of minors, an ITC may only be requested if the minor application has been approved cf. Article 14(1) d) Annexe 3 RSTP. When the relevant transfer instruction is not confirmed within the applicable registration period, the TMS process can never reach the phase where the new association is able to request the ITC.

➢ Article 11(1) c) Annexe 3 RSTP stipulates that the ITC shall be requested on the last day of the new association’s registration period for the transfer to occur during that registration period. An ITC requested after the close of the relevant registration period of the new association will go into validation exception status cf. Article 14(1) c) Annexe 3 RSTP. Depending on the situation, a valid exception may be triggered, e.g. when a minor application has not yet been accepted (Article 14(1) a) Annexe 3 RSTP) or when the date of the ITC request is outside the new association’s registration period and no exception applies (Article 14(1) d) Annexe 3 RSTP);

➢ FCN failed to comply with the mandatory administrative steps in TMS prior to the closure of the DBU registration period. FCN failed to “confirm the transfer in TMS without delay and before the end of the new association’s registration period”, since it was only confirmed on 7 February 2023 and outside the registration period. The inevitable consequence of such failure was simply that the DBU was not able to request the ITC for the Player from the DFB on 16 February 2023 (since this date is outside of the registration period) in accordance with Article 11(1) c) Annexe 3 RSTP. As a result, the DBU’s request for a special exemption from the validation exception could not be granted;

➢ By means of 2021 Circular, inter alia, the member associations were informed of the clarification of the administrative procedure governing the transfer of minor players. More specifically, and following a “technical update to TMS”, it was clarified that the transfer instructions in relation to the international transfer of a minor player may be confirmed by the clubs at any time (during the registration period) and independently from the status of the minor application “[…] thus revoking the procedure described in FIFA circular no. 1587 of 13 June 2017”. The new association’s ability to request the ITC remained dependent on

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the status of the minor application. It was repeated that a club must “[…] comply with all its obligations prior to the end of the applicable registration period”. It was further requested that “[…] your affiliated clubs ensure that all transfer instructions related to minor players are completed (i.e. entered, confirmed and matched) in a timely manner”. According to the Circular Letter … the transfer instruction needs to be confirmed in TMS, independently of the minor application, and prior to the end of the registration period:

“Independently from the relevant minor application, in accordance with art. 19 par. 4 (a) of the Regulations, a club intending to register a minor player shall undertake the following actions prior to the end of the applicable registration period: […] (iv) confirm the relevant transfer instruction […]”;

➢ FIFA uses its Circular Letters to officially correspond with its member associations, they are addressed “to the Member Associations of FIFA”. Evidently, FIFA does not only issue Circular Letters regarding TMS, but on a wide range of topics. Whenever a circular letter is issued, this is sent to all FIFA’s Member Associations’ general email addresses;

➢ The DBU itself has not only confirmed that it (1) effectively received the relevant email that was sent to its “main mailbox” but also (2) that is “regrettably never got transferred” internally. That same mailbox is indicated on the official DBU webpage, in TMS and in FIFA’s Integrated Football and Event System “IFES”;

➢ The FIFA TMS Help Centre (accessible to all TMS users) contains a “Document Library” which provides FIFA regulations, document guidelines, templates and circular letters. All the circulars are chronologically published in the Document Library, only containing the circulars that are relevant for TMS. Both DBU and NFC could have retrieved the Circular Letter 1763;

➢ FIFA circular letters or other important correspondence are communicated to the FIFA member associations via email. The obligation referred to in Article 6(2) f) Annexe 3 RSTP clearly only relates to the TMS specific obligations, and do not relate to administrative/system update changes in TMS. This becomes even more evident when considering “specific obligations” for associations contained in Article 8 Annexe 3 RSTP;

➢ If the DBU never received the 2021 Circular, or never became aware of its content until the “telephone conversation on 20 February 2023”, it would inevitably mean that the DBU was not able to (1) classify its affiliated clubs by 15 July 2021 and (2) set the two registration periods for the next calendar year (i.e. for 2022) by 15 July 2021. For example, failure to comply with the request to set the registration periods would have resulted in the DBU being unable to register players;

➢ The Appellants refer to the procedure set out in Circular 1587 and address the “wording” of the 2021 Circular by “highlighting three issues” concluding that the “Appellants cannot be punished for FIFA’s ambiguous wording”. There is no apparent ambiguity when considering the paragraph cited by the Appellants in the context of the entire circular. It is unambiguously stated that all obligations “must” be complied with “prior to the end of the

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registration period”, it is further specified which actions “shall” be undertaken “prior to the end of the registration period” and it is reiterated again at the end that all transfer instructions “are” to be “completed” in a “timely manner”; even if there were any perceived ambiguity – quod non - the DBU was entitled to contact the FIFA PSD, as indicated at the end of Circular 1763, in case it would have any questions;

➢ There was no material change to the RSTP, confirmation of the transfer instruction was always required. The applicable October 2022 RSTP even explicitly states in Article 10(7) Annexe 3 RSTP that the “[…] club shall confirm the transfer in TMS without delay and before the end of the new association’s registration period” as opposed to the February 2021 edition which does not explicitly reiterate such requirement in Article 4(4) Annexe 3 RSTP besides “[…] provide confirmation of the relevant instruction”. Solely based on the applicable RSTP, the Appellants should have been aware of the applicable administrative requirements, regardless of any circular. The only variable to the confirmation of the transfer instruction was the timing: 2017 Circular provided the possibility, when a decision on the minor application was rendered after the end of the registration period, to confirm and match the data in TMS after the end of the registration period (and the new association was entitled to request the ITC outside the registration period). This possibility was revoked by Circular 1763, following a technical update. The technical update now requires that the transfer instruction is confirmed during the registration period and independently from the minor application. Put simply: the administrative amendment introduced by 2017 Circular, was revoked by 2021 Circular, while the RSTP remained unchanged;

➢ TMS contains the TMS Help Centre with answers to frequently asked questions – containing a specific section for “Minors” including the question: “If the minor application is accepted after my registration period closes, can I still request the ITC for the player?”. All TMS users have access to the Help Centre;

➢ The TMS Help Centre, in response to such frequently asked question, clearly clarifies that: “It may be that you are unable to request the ITC for a minor player during the relevant registration period because the corresponding minor application has not yet been accepted. However, please note that, subject to the exceptions listed in art. 6 par. 3 of the Regulations, the transfer instruction must be entered and confirmed by the club (or the association where applicable) before the relevant registration period has closed and with all mandatory information and documents completed correctly. The transfer may then be left in “Awaiting ITC request” status until there is a decision on the minor application”;

➢ TMS is and remains a web-based data information system – requiring constant updates – by means of which international transfers are administered. At the same time, there are clear regulations (and circulars) that govern the use of such system so that international transfers can be administered. Even if the Appellants were to disagree with such “technical update” or its “purpose”, their disagreement or objection to the technical update would result in the impossibility for them to process any transfer in the TMS system. If the Appellants would have duly complied with all their obligations in a timely manner, there would have been no need for the strict application of the time limits. The technical update is not the reason for the Appellants’ failure to duly process the transfer in TMS, it is the

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Appellants failure to comply with a circular that has been in force since 1 July 2021 (for 19 months or more than one year and a half). Ignorantia juris non excusat;

➢ The Appellants’ criticism of the “contradictory Minor Application Guide” where it finds that the fact that “it still refers to the 2017 Circular is wholly misleading” and that the Appellants are “the victims of the lack of uniformity across FIFA’s various documents” is ungrounded. The document referred to concerns the “September 2020 Edition” as evidenced by the front the 2017 Circular, since the 2021 Circular was only notified on 1 July 2021 and after publication of the Minor Application Guide. It appears that the Appellants have misled themselves. There is also no lack of uniformity;

➢ The problem for the Appellants, and the problem for most of their arguments, is simply that the 2021 Circular has been in force since 1 July 2021 or for 19 months (!). During such time, there have been three (3) registration periods in Denmark (summer 2021, winter and summer 2022). There was more than enough time for the Appellants to familiarize themselves with the existing TMS processes. There could be some understanding if the matter at stake had occurred during the 2021 summer window (which opened on 15 June and closed on 31 August 2021) during which time the 2021 Circular was notified. In that case, there may have been some credibility to the “common practice” argument (with circumstances like those addressed in CAS 2017/A/5063). But there can be no understanding when such error occurs more than 19 months later, when the existing “common practice” is for the transfer instruction to be confirmed during the registration period. For all these reasons, the Appellants’ reliance on CAS 2017/A/5063 is irrelevant;

➢ There is consistent CAS jurisprudence dismissing any arguments of “excessive formalism” by FIFA in TMS related disputes;

➢ There is no irreparable harm suffered either by FCN or the Player: the Appellants never filed any request for provisional measures whereas in most cases that concern registration disputes, provisional measures are requested; the Appellants failed to demonstrate or prove that any harm they would suffer would be of an irreparable nature should their appeal not be accepted and did not provide any tangible or effective supporting evidence;

➢ As to the Player allegedly suffering an irreparable harm - the Appellants only provide general considerations without providing any supporting evidence (besides the Player’s statement); while understanding the Player’s discomfort caused by not playing official matches, this kind of situation cannot be qualified as harm, let alone one of irreparable nature - the Player can still play official matches for his former club Bayer Leverkusen; the Appellants failed to establish that the Player was deprived from playing football since 1 February 2023 - it cannot be undoubtedly determined that the Player would have played any of the crucial for FCN matches or will have to re-integrate or that his performance would have deteriorated when he is finally registered; the Player’s current situation only causes him to miss official matches with FCN.

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➢ The Appealed Decision does not prevent the Player from training and playing “friendly” or “unofficial” matches with FCN or as explained above, from playing “official” matches with Bayer Leverkusen; he still can train with his team and maintain his sporting skills, participate in friendly matches;

➢ Training with FCN will allow the Player to become familiar with the team’s tactics and his teammates, irrespective of whether he participates in official matches. It can be reasonably argued that this will allow the Player to adapt to his new team and environment, without the added pressure – especially for a young player – of making an immediate impact in official matches;

➢ In what concerns the alleged “irreparable harm” caused to FCN, the Appellants describe paying a “significant transfer fee” while “unable to field the player in a number of competitive matches” which “may ultimately affect its title prospects” which has “significant sporting and financial consequences”. As a first point in that regard, and specifically concerning the reference to FCN’s “title prospects” or the “sporting consequences” for FCN, which essentially concerns “sporting success”, CAS has generally and recently confirmed that “[…] the ambiguous phrase of “sporting success” of a team depends on various factors that are difficult to determine. In other words, the uncertainty and unpredictability that characterizes sporting events, such as football matches, makes it impossible to affirm that the fact the new players may not be registered to play for a club would directly jeopardize the sporting success in an irreparable manner” (CAS 2022/A/9231). Evidently, the citation relates to a case where a registration ban was imposed on a club, but the concept is the same: a club invokes the inability to register a player as an argument to substantiate an alleged irreparable harm to its “sporting success”;

➢ CAS has also addressed the ability of one player (e.g. Mr Batuhan Zidan Sertdemir) to affect a club’s sporting performance by confirming that “[…] the results of a football club cannot exclusively depend on the performance of a player, regardless how extraordinary such player may be. In this sense, the Deputy President must emphasize that football is a team sport and, therefore, even if a team cannot field its best player, it is impossible to say that the result of a match depends on the performance of a single player […]” (CAS 2021/A/7650);

➢ FIFA’s interest as the governing body of football, as well as that of all participants in national and international football, prevail over any individual interest that the Appellants may have. Adherence to registration periods is necessary to preserve the fundamental objectives of sporting integrity and equal treatment, which is also linked to the paramount importance of safeguarding contractual stability;

➢ The automatic cancellation of a minor application upon reaching adulthood cannot be construed as a “tacit confirmation of the Transfer Instruction, as if the Player was transferring under the normal route”. The Appellants were required to timely comply with all formalities applicable at that moment;

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➢ FIFA has clearly demonstrated that FCN’s failure to comply with the TMS instructions (confirm the transfer instruction) during the time limit (prior to the end of the registration period) which resulted in the Player’s failed transfer, is incurable.

➢ Despite 2021 Circular being properly communicated to all FIFA’s member associations, FCN – at the direction of the DBU – failed to comply with a mandatory administrative process that is clear and has been clear for more than 19 months. FIFA’s refusal to cure FCN and the DBU’s failure cannot be construed as excessive formalism or as causing irreparable harm. Adherence to registration periods is necessary to preserve the fundamental objectives of sporting integrity, equal treatment, and contractual stability. FIFA seeks to guarantee that these principles, safeguarded by strict compliance with registration periods, are respected. To effectively preserve these objectives and principles, TMS operates in a clearly defined and equal manner for all the football stakeholders. FIFA cannot tolerate non-conform instructions and/or non-compliance with time-limits. Doing so, to accommodate one player, would render the entire transfer system obsolete. That is a scenario which is simply unacceptable.

42. On this basis, FIFA submits the following prayers for relief:

“(a) reject the requests for relief sought by the Appellants;

(b) confirm the Appealed Decision;

(c) order the Appellants to bear the full costs of these arbitration proceedings”.