Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 January 2013,
in the following composition:
Geoff Thompson (England), Chairman (did not take part in the deliberations)
Jon Newman (USA), member
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club,
Club F, from country S
as Claimant
against the club,
Club B, from country E
as Respondent
regarding training compensation in connection with the player M
I.
Facts of the case
1.
The player, M (hereinafter: the player), was born in June 1988 and, therefore,
he turned 23 in 2011.
2.
According to an official confirmation of the county S Football Association, the
player was registered with the country S Club F (hereinafter: the Claimant) as
from 30 January 2006 until 30 June 2011 as a professional.
3.
Equally, the player passport indicated that player was loaned by the Claimant
to the country S Club G, as from 5 November 2007 until 2 January 2008.
4.
Having enquired about the duration of its sporting seasons during the period
of time the player was registered with the Claimant, the county S Football
Association explained that it did not have a definition of “sporting season” in
its regulations. The county S Football Association indicated that, therefore, the
definition of “season” as prescribed in the FIFA Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) had been applied, which
results in the following dates:
-
2005/2006:
2006/2007:
2007/2008:
2008/2009:
2009/2010:
2010/2011:
as from 30 July 2005 until 7 May 2006;
as from 29 July 2006 until 20 May 2007;
as from 4 August 2007 until 22 May 2008;
as from 9 August 2008 until 24 May 2009;
as from 15 August 2009 until 9 May 2010;
as from 7 August 2010 until 22 May 2011.
5.
At the same time, however, the county S Football Association referred to the
information contained in the Transfer Matching System (TMS) which stipulates
that the “logged” dates are:
- for the season 2010/2011: from 1 August 2010 until 31 May 2011;
- for the season 2011/2012: from 1 June 2011 until 31 May 2012.
6.
Furthermore, the county S Football Association stated that the “end date for
Season 2010/2011, within FIFA TMS (…), was 31/05/2011; and the date of the
last national league match was on 22/05/2011 (…). FIFA TMS also confirms that
season 2011/2012 commenced on 1st June 2011 (…)”
7.
According to an official confirmation of the county S Football Association, the
Claimant belonged to the category II during the time the player was registered
with it.
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8.
According to an official confirmation of The Football Association of country E
the player was registered with its affiliated club, Club B (hereinafter: the
Respondent), on 6 July 2011.
9.
According to the information contained in the TMS, the Respondent belonged
to the category II at the time of the player’s registration.
10. On 15 March 2012, the Claimant lodged a claim in front of FIFA claiming the
payment of training compensation from the Respondent in the amount of EUR
330,000.
11. The Claimant indicated that the player was below the age of 23 when both the
country S Football Association’s season officially finished on 30 May 2011 as
well as the country E season on 28 May 2011. The player’s employment
contract with the Claimant terminated on 30 June 2011, i.e. during the
2011/2012 season, and, hence, the player was below the age of 23 when still
under contract with the Claimant at the start of the 2011/2012 season in the
country S Football League, which started on 1 June 2011.
12. The Claimant further indicated that it had offered the player a new contract
with improved terms in October 2010 in accordance with art. 6 par. 3 of the
Regulations. In this respect, the Claimant submitted the employment contract
of the player which ran from 9 July 2009 until 30 June 2011 in accordance with
which the player was to receive a monthly salary of £1,841.66 for the
2009/2010 season and £2,058.33 for the 2010/2011 season as well as several
bonuses. A “contract extension proposal” was also submitted which was dated
18 October 2010 and which would run from the date of the signature until 20
June 2013. In accordance with said offer, the player would receive a monthly
salary of £2,491.66 as well as several bonuses plus an increase in salary when
the player would play a certain amount of matches.
13. In its reply to the claim lodged against it, the Respondent indicated that the
Claimant is not entitled to training compensation, because the player
transferred to the Respondent after the end of the season of his 23rd birthday.
14. In this respect, the Respondent stated that the player turned 23 on 22 June
2011 and that his contract expired 8 days later on 30 June 2011. The
Respondent asserts that, as such, when the player was registered with the
Respondent on 5 July 2011, i.e. at the beginning of the 2011/2012 season, he
was registered during the season of his 24th birthday.
15. The Respondent indicates that, whilst it may be that the last football match of
the country S football season took place on 22 May 2011, said date cannot be
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used as the relevant date for the purpose of establishing a liability for training
compensation, for the following reasons:
a) The Claimant has adopted a uniform interpretation and application of the
definition of ‘season’ in the Regulations. However, the Regulations
contemplate two types of season: the playing season and the sporting
season. The Respondent indicates that a playing season starts with the
first match of the championship and ends with the last one, while a
sporting season is a period of 12 months which encompasses the playing
season. In this respect, the Respondent stresses that the sporting season is
relevant for the purposes of training compensation.
b) FIFA Circular no. 769, dated 24 August 2001, confirms that training
compensation has been so established ‘in order to render the system
manageable’. Therefore, should the season of a player’s 23rd birthday be
dependent on the date of the last official match, this would render the
system entirely unpredictable and unmanageable.
c) FIFA Circular no. 769 further confirms that “only years of effective
training may be taken into account” and that training compensation is to
be distributed “pro rata according to full years of proper and proven
training”. The Respondent refers to FIFA Circulars no. 799 and 826 and
art. 4 par. 1 of Annexe 4 of the Regulations to explain that the entire
system of training compensation is founded on the basis of “full years”.
d) It cannot be correct that training compensation is calculated on the basis
of the playing season of first teams’ matches, given that training
compensation may also be payable for players as young as 12, who never
played a first team match.
e) FIFA case law confirms that a season must last for 12 months for the
purpose of calculating training compensation.
f) The player’s contract with the Claimant expired on 30 June 2011; in the
Respondent’s view, this confirms that the country S season for the
purposes of assessing whether training compensation is payable in fact
ended on 30 June 2011.
g) The country S Football League Regulations state that “all agreements of
service will normally expire on 30th June”. This is consistent with the
country S season ending on 30 June. The Respondent wondered why a
national league requires its club to conclude employment contracts which
run out of synchronisation with the season and expire a matter of days
into the next season.
16.
Furthermore, the Respondent stated that, contrary to the Claimant’s
statement, the country E season did not end on 28 May 2011, but on 30 June
2011, and submitted a confirmation of The FA.
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17. Finally, the Respondent indicated that, by means of a letter dated 16 April
2012, the country S Football Association had confirmed to FIFA that the
“country S season starting dates for all of the relevant seasons are not, in fact
until July and sometimes even August”. Such documents contradict the
Claimant’s and the country S Football Association’s submission that the
2010/2011 country S season concluded at the end of May 2011 and the
2011/2012 season commenced on 1 June 2011. Also, the Respondent indicated
that neither the Claimant nor the country S Football Association have
submitted any evidence that the 2011/2012 season in fact starts on 1 June 2011.
18. In the alternative, should training compensation be awarded, the Respondent
submits that the amount payable should be reduced to EUR 150,625, since:
a) The Claimant has claimed EUR 60,000 for a season beyond the player’s 21 st
season. According to the Claimant’s own submission, the 2010/2011 season
was the season of the player’s 23rd birthday;
b) Only the period of time that the player was effectively trained should be
taken into account. According to the Claimant’s own submission, the player
only received training approximately 10 months a year;
c) The player’s training period was completed by the end of the 2008/2009
season, since in the 2008/2009 season the player became an established
member of the first team of the Claimant, making 20 appearances for the
first team.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
Chamber or DRC) indicated that Mr Geoff Thompson refrained from
participating in the deliberations on account of his nationality. Therefore, the
Chamber adjudicated in the presence of four members, two club
representatives and two player representatives.
2.
Secondly, the Dispute Resolution Chamber analysed whether it was competent
to deal with the case at hand. In this respect, it took note that the present
matter was submitted to FIFA on 15 March 2012. Consequently, the 2008
edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: Procedural
Rules) is applicable to the matter at hand (cf. art. 21 par. 1 and 2 of the 2008
and 2012 editions the Procedural Rules).
3.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. d) of the Regulations on the Status and Transfer
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of Players (edition 2012) the Dispute Resolution Chamber is competent to deal
with the matter at stake relating to training compensation between clubs
belonging to different associations.
4.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (editions 2010 and 2012), and considering that the player was
registered with the Respondent on 6 July 2011, the 2010 edition of the
Regulations on the Status and Transfer of Players (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The
members of the Chamber started by acknowledging the above-mentioned
facts of the case, the documentation on file as well as the information
contained in TMS.
6.
In this regard, the Chamber recalled that the player, born in June 1988, was
registered with the Claimant as a professional for the period between 30
January 2006 until 30 June 2011 and that, between 5 November 2007 and 2
January 2008, the player was registered on a loan basis with Club G.
7.
In continuation, the Chamber took note that the Claimant claimed that it was
entitled to receive training compensation from the Respondent in the amount
of EUR 330,000.
8.
Equally, the Chamber noted that the Respondent rejected the claim of the
Claimant, arguing that the player was transferred to the Respondent after the
end of the season of the player’s 23rd birthday.
9.
In this context, the Chamber highlighted that the main issue that needed to be
analysed in the present matter is whether or not the season of the player’s 23rd
birthday had already ended at the time the player was registered with the
Respondent.
10.
In this respect, the Chamber first referred to the rules applicable to training
compensation and stated that, as established in art. 20 of the Regulations as
well as in art. 1 par. 1 of Annexe 4 in combination with art. 2 of Annexe 4 of
the Regulations, training compensation is payable, as a general rule, for
training incurred between the ages of 12 and 21 when a player is registered
for the first time as a professional before the end of the season of the player’s
23rd birthday or when a professional is transferred between clubs of two
different associations before the end of the season of the player’s 23rd
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birthday. In case the latter occurs, art. 3 par. 1 sent. 3 of Annexe 4 of the
Regulations sets forth that training compensation will only be owed to the
player’s former club for the time he was effectively trained by that club.
11.
Furthermore, the Chamber took note of the various data provided, in
particular, in relation to the start and end dates of the 2010/2011 and
2011/2012 seasons. The Chamber observed that, according to the information
contained in TMS, the 2010/2011 season ran as from 1 August 2010 until 31
May 2011 and the 2011/2012 season ran as from 1 June 2011 until 31 May
2012.
12.
In this respect, the Chamber referred to art. 1 par. 5 of Annexe 3 of the
Regulations which, inter alia, stipulates that the use of TMS is a mandatory
step for all international transfers of professional male players within the
scope of eleven-a-side football. Equally, art. 3 par. 3.2. sub 1. of Annexe 3 of
the Regulations stipulates, inter alia, that associations are responsible for
maintaining their season and registration details.
13.
The Chamber outlined that the use of TMS is mandatory since 1 October 2010
and that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations,
within the scope of proceedings pertaining to the application of the
Regulations, FIFA may use any documentation or evidence generated by or
contained in TMS or obtained by FIFA TMS GmbH on the basis of their
investigation powers in order to properly assess the issue at stake.
14.
Against this background and once more emphasising that the use of TMS is
mandatory since 1 October 2010, the Chamber stated that the information
contained in TMS is leading and that it shall therefore take into account the
objective criteria entered into TMS by the various stakeholders using TMS. The
Chamber observed that the country S Football Association had indeed entered
the start and end dates of its seasons in TMS and outlined that such data was
also available for the Respondent at the moment it signed and registered the
player. In view of the foregoing and taking into account that the player was
born in June 1988, the Chamber decided that the season of the player’s 23 rd
birthday started on 1 June 2011 and ended on 31 May 2012 and that, thus, the
2011/2012 season was the season of the player’s 23rd birthday. As a result, at
the time the player was registered with the Respondent, the season of the
player’s 23rd birthday had not yet ended and, consequently, the Chamber
decided that the Respondent is, in principle, liable to pay training
compensation to the Claimant.
15.
The aforementioned having been established, the Chamber then referred to
art. 6 of Annexe 4 of the Regulations, which contains special provisions
regarding players moving from one association to another association inside
the territory of the European Union (EU)/European Economic Area (EEA). In
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this regard, the Chamber indicated that, since the player moved from one
association to another association inside the territory of the EU, said article is
applicable. Hence, the Chamber concluded that art. 6 par. 3 of Annexe 4 of the
Regulations applies in the case at hand as lex specialis.
16.
In this respect, the Chamber acknowledged that it had to verify whether the
Claimant had complied with the prerequisites of art. 6 par. 3 of Annexe 4 of
the Regulations in order to be entitled to receive training compensation from
the Respondent. The members of the Chamber recalled that the player was
already contractually bound and registered as a professional with the Claimant
prior to his move to the Respondent.
17.
In this context, the Chamber emphasised that, in accordance with art. 6 par. 3
sent. 1 of Annexe 4 of the Regulations, 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. The former club must offer
the player a contract in writing via registered post at least 60 days before the
expiry of his current contract. Such an offer shall furthermore be at least of an
equivalent value of the player’s current contract. (cf. art. 6 par. 3 sent. 2 and 3
of Annexe 4 of the Regulations)
18.
In light of the above, the Chamber examined the documents presented by the
Claimant and considered that the Claimant had offered the player a contract
of a higher value than his previous contract with the Claimant and that such
offer had been made at least 60 days prior to the expiry of his contract. For the
sake of good order, the Chamber pointed out that this fact was not disputed
by the Respondent in any way. In light of the foregoing, the Chamber
established that the Claimant had complied with art. 6 par. 3 of Annexe 4 of
the Regulations.
19.
On account of all the above-mentioned considerations, the Chamber decided
that the Respondent is liable to pay training compensation to the Claimant in
accordance with art. 20 and Annexe 4 of the Regulations.
20.
Having established the above and turning its attention to the calculation of
the amount of training compensation payable to the Claimant, the Chamber
acknowledged that the Respondent argued that the player’s training was
already completed by the end of the 2008/2009 season and that, as a result,
the amount payable as training compensation should be reduced. In view of
the foregoing, the Chamber went on to examine whether or not the player’s
training period had already been completed before the season of the player’s
21st birthday.
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21.
In this context, the members of the Chamber referred to art. 6 par. 2 of
Annexe 4 of the Regulations, which stipulates that, inside the EU/EEA, the final
season of training may occur before the season of the player’s 21st birthday if it
is established that the player completed his training before that time.
22.
The Chamber emphasised that cases involving a possible early completion of a
player’s training period have to be assessed on a case-by-case basis, whereby
all the specific circumstances and all the evidence presented have to be taken
into consideration. Hence, several factors and indications have to be
considered in order to assess and establish whether a particular player’s
training has indeed been completed before the season of his 21st birthday. For
the sake of completeness, the Chamber pointed out that, so far, both the
Dispute Resolution Chamber as well as the CAS have adopted a strict approach
in establishing that a player’s training had indeed been completed before the
season of a player’s 21st birthday, so as to not jeopardize the right of training
clubs to, in principle, receive training compensation.
23.
In this respect, the Chamber took, once more, note of all the specific
circumstances of the present matter as well as of all the evidence produced by
the Respondent. After a thorough examination of the documentation and
argumentation provided by the Respondent, the Chamber deemed that the
mere fact that the player was a regular member of the Claimant’s first team
did not lead to the conclusion that his training was already completed at that
time.
24.
In view of the above, the Chamber decided that it could not be established
that the training period of the player had been completed before the season
of his 21st birthday, as alleged by the Respondent.
25.
Subsequently, the Chamber referred to the FIFA circular no. 1223 dated 29
April 2010 which provides details for the calculation of training compensation
as well as to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which
stipulate that as a general rule, to calculate the training compensation due to
a player’s former club, it is necessary to take the costs that would have been
incurred by the new club if it had trained the player itself. Furthermore, the
Chamber referred to art. 6 par. 1 of Annexe 4 of the Regulations which
contains special provisions in case a player moves from a lower to a higher
category club or from a higher to a lower category club within the territory of
the EU/EEA. However, since in the matter at hand both clubs belong to the
same category, this provision is irrelevant in this context.
26.
In continuation, the Chamber observed that according to the documentation
on file, both the Claimant and the Respondent belonged to the category II
(indicative amount of EUR 60,000 per year) and that the player was registered
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with the Claimant as from 30 January 2006 until 30 June 2011 as well as that
the player was loaned to Club G as from as from 5 November 2007 until 2
January 2008. Therefore, taking into account the period during which the
player was registered with Club G, the player was effectively registered with and trained by - the Claimant for a period of 50 months between the seasons
2005/2006 and 2009/2010.
27.
For the sake of completeness, the Chamber at this point wished to refer to its
well-established jurisprudence in relation to the loan of players and indicated
that the loan of the player from the Claimant to Club G did not constitute a
“subsequent transfer” in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the
Regulations. The Chamber was eager to point out that it could not have been
the intention of the legislator of the relevant regulatory provisions to trigger
the consequences of art. 3 par. 1 of Annexe 4 of the Regulations on the
occasion of a transfer on a loan basis and, thus, potentially deprive the loan of
its essential flexibility and, in connection with the training and education of
players, its purpose of providing young players with the opportunity to gain
practical experience in official matches for another club in order to develop in
a positive way. Hence, for the purposes of the provisions of the Regulations
governing training compensation, the loan of a young player from his club of
origin to other clubs does not interrupt the ongoing training period of the
player and the obligation to pay training compensation arises only in case a
player is transferred on a definitive basis, with the effect that, at that moment,
the club which transferred the player on a loan basis to another club is entitled
to training compensation for the entire period of time during which it
effectively trained the player, however, excluding the period of time of the
loan.
28.
Consequently, and in light of all of the above-mentioned considerations, the
Chamber decided to partially accept the Claimant’s claim and decided that the
Respondent is liable to pay training compensation to the Claimant in the
amount of EUR 250,000.
29.
Lastly, the Chamber referred to art. 18 par. 1 of the Procedural Rules,
according to which, in proceedings before the DRC relating to disputes
regarding training compensation and the solidarity mechanism, costs in the
maximum amount of currency of country H 25’000 are levied. It is further
stipulated that the costs are to be borne in consideration of the parties’ degree
of success in the proceedings and, in accordance with Annexe A of the
Procedural Rules, the costs of the proceedings are to be levied on the basis of
the amount in dispute.
30.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 330,000 related to the claim of
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the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to currency of country H
25,000 (cf. table in Annexe A of the Procedural Rules).
31.
As a result, taking into account the particularities of the present matter, the
number of issues that had to be addressed as well as that the Respondent was
the unsuccessful party in the present proceedings, while the Claimant’s claim is
only partially accepted, the Chamber determined the costs of the current
proceedings to the amount of currency of country H 15,000, 2/3 of which shall
be borne by the Respondent and 1/3 by the Claimant.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club F, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant the amount of EUR
250,000 within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned sum is not paid within the stated time
limit, interest of 5% p.a. will fall due as of expiry of the stipulated time limit
and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The final amount of costs of the proceedings, amounting to currency of
country H 15,000, are to be paid within 30 days as from the date of
notification of the present decision as follows:
5.1. Currency of country H 10,000 by the Respondent to FIFA to the
following bank account with reference to case no. XX-XXXXX:
5.2. Currency of country H 5,000 by the Claimant to FIFA. Given that the
Claimant has already paid the amount of currency of country H 5,000
as advance of costs at the start of the present proceedings, the
Claimant does not have to pay an additional amount as costs of the
proceedings.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 2. is to be made and
to notify the Dispute Resolution Chamber of every payment received.
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*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for 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).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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