Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 January 2014,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club,
Club R, from country P
as Claimant
against the club,
Club G, from country L
as Respondent
regarding training compensation in connection with
the player S
I.
Facts of the case
1.
The country P Football Federation confirmed that the player S (hereinafter:
player), born in May 1992, was registered as an amateur player with its
affiliated club, Club R (hereinafter: Claimant) as from 26 September 2005 until
31 August 2006 and as from 29 August 2007 until 30 September 2008.
2.
The country P Football Federation also confirmed that the player was registered
as an amateur player with its affiliated clubs as follows:
as from 24 January 2001 until 25 September 2005 with Club V;
as from 1 October 2008 until 5 November 2009 with Club B;
as from 6 November 2009 until 18 January 2012 with Club A.
3.
The country P Football Federation further confirmed that the 2000/2001
sporting season in country P ran as from 1 August until 30 June of the following
year. As from the season 2001/2002, the sporting season in country P ran as from
1 July until 30 June of the following year.
4.
In addition, the country P Football Federation confirmed that Club R belonged
to the category IV during the seasons when the player was registered with this
club.
5.
On 9 January 2012, Club G hereinafter: Respondent) and the player signed a
contract (hereinafter: contract) valid as from January 2012 until May 2012.
6.
According to clause I. of the contract, the contract shall not constitute an
employment contract.
7.
According to clause III. of the contract, Club G has to pay to the player EUR 300
per month for incurred expenses (“frais encourus”). Additionally, in order to
honour the player’s efforts, the player is to receive EUR 90 if he plays in the
starting eleven and EUR 45 if he is included in the squad in a League or a Cup
match. Furthermore, the player receives a bonus of one monthly instalment if
Club G qualifies for the UEFA Cup or wins the national Cup; and two monthly
instalments if Club G wins the national championship. Finally, Club G provides to
the player the equipment for the matches, with the exception of the shoes.
8.
According to clause IV. of the contract, in case the player does not or cannot
respect his duties for whatever reason (also illness or injury), the payments
would be reduced proportionally to the number of the player’s absences in the
trainings and matches, since the expense and indemnity payments do not
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constitute a salary, but only a payment to cover the expenses incurred by the
player.
9.
According to a written confirmation received from the country L Football
Federation, the player was registered with its affiliated Club G on 13 February
2012 as an amateur player.
10. The country L Football Federation also confirmed that Club G belonged to the
category III during the sporting season when the player was registered with it.
11. On 4 June 2012, the Claimant contacted FIFA asking for the payment of training
compensation from Club G on the basis of the player’s alleged first registration
as professional with Club G.
12. The Claimant is requesting the amount of EUR 31,178.08 plus 5% interest as
from 19 February 2012 as training compensation.
13. In its reply, the Respondent stated that the contract would not constitute an
employment contract. Furthermore, Club G is of the opinion that the payment
of training compensation in the total amount of more than EUR 50,000
(together with the claim lodged by Club V, from country P) would not be in a
reasonable relation to Club G’s yearly budget of EUR 380,000. Thus, the
Respondent asked art. 5.4 of the Regulations on the Status and Transfer of
Players to be applied in case FIFA would decide that Club G has to pay training
compensation.
14. The Respondent highlighted that the contract was only valid for five months,
i.e. from January to May 2012. According to Club G, the amount due to the
player in accordance with the contract was not considered to be a salary. The
Respondent argued that it only reimbursed the player’s expenses that he had in
connection with his football activity. Club G held that the player had to travel
50 kilometres to attend Club G’s trainings. Thus, with four trainings per week,
the player had to travel 800 kilometres per month, which effects travel expenses
in the amount of 0.375 EUR/km. In addition, the Respondent stated that it had
paid to the player the amount of EUR 45 or EUR 90, respectively, per match for
travel expenses.
15. Further, Club G stated that the player had come to country L to find a job in
another profession than football, since he had not been offered a contract as a
professional player in country P.
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16. In its replica, the Claimant stated that the International Transfer Certificate (ITC)
had been issued by the country P Football Federation to the country L Football
Federation for the player as a professional.
17. In its duplica, the Respondent reiterated the arguments of its reply and added
that the country P club had not offered the player a professional contract and
that the Claimant just wanted to take advantage of the situation. Moreover, the
Respondent stated that in June 2012, the player transferred from Club G to the
Club M, which plays in one league below Club G. According to the Respondent,
the player did not play one single match in the first team of Club G during the
six months in which he was registered with the club.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) 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 4 June 2012. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, edition 2008
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 2 and 3 of the Procedural Rules).
2.
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 of
Players (edition 2012) the Dispute Resolution Chamber is competent to decide
on the present litigation concerning training compensation between clubs
belonging to different associations.
3.
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 par. 2 of the Regulations on the Status and Transfer of
Players (edition 2012), and considering that the player was registered with the
Respondent on 13 February 2012 as well as that the present claim was lodged
on 4 June 2012, the 2010 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
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refer only to the facts, arguments and documentary evidence which it
considered pertinent for the assessment of the matter at hand.
5.
First of all, the Chamber recalled that the player was born in May 1992 and was
registered with the Claimant as from 26 September 2005 until 31 August 2006
and as from 29 August 2007 until 30 September 2008.
6.
In continuation, the Chamber took note that the Claimant maintained that it is
entitled to receive training compensation from the Respondent in the amount
of EUR 31,178.08, indicating that the player was registered for the first time as a
professional with the Respondent.
7.
Equally, the Chamber took note that the Respondent rejected the Claimant’s
claim for the payment of training compensation, stating that the player was
registered with it as an amateur and that the Claimant had not offered the
player a professional contract.
8.
In this respect, the Chamber firstly deemed it important to establish whether
the player held the amateur status or the professional status at the time he was
registered with the Respondent. To this end, the Chamber examined the
contract that the Respondent had submitted in the present proceedings.
9.
In this regard, the members of the Chamber duly noted that the contract
contained a provision stipulating that the contract shall not constitute an
employment contract and that, according to said contract, the player was
entitled to receive from the Respondent EUR 300 per month for incurred
expenses, EUR 90 if he plays in the starting eleven and EUR 45 if he is included
in the squad in a League or a Cup match. Furthermore, the Chamber noted that
the contract indicated that the player would be entitled to receive a bonus of
one monthly instalment if Club G qualifies for the UEFA Cup or wins the
national Cup; and two monthly instalments if Club G wins the national
championship.
10. Thus, the player was entitled to receive at least EUR 300 per month, plus the
amount of EUR 90 or EUR 45, respectively, multiplied by the number of League
and Cup matches, in which the player plays in the starting eleven or is included
in the team, respectively.
11. In this context, the Chamber referred to art. 2 par. 2 of the Regulations, which
stipulates that “A professional is a player who has a written contract with a club
and is paid more for his footballing activity than the expenses he effectively
incurs. All other players are considered to be amateurs”.
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12. Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations
as well as the amounts payable to the player on the basis of the
aforementioned contract, the members of the Chamber unanimously concluded
that the player was in fact paid more for his footballing activity than the
expenses he effectively incurred. In this regard, the Chamber was eager to
emphasize that a player’s remuneration as per the criteria set out in art. 2 par. 2
of the Regulations constitutes the decisive factor in the determination of the
status of the player and that the legal nature or the designation of the contract
is of no relevance in this regard. This approach has been confirmed by the Court
of Arbitration for Sport (CAS) in its decision CAS 2006/A/1177, whereby the
Panel also emphasized that the definition contained in the mentioned provision
is the only ground to establish a player’s status. For the sake of completeness,
the Chamber pointed out that according to said decision, the classification of a
player made by the association of his club is not decisive to determine the status
of a player.
13. Equally, the Chamber highlighted that the second element contained in said
art. 2 par. 2 of the Regulations, i.e. the existence of a written contract, is met.
14. On account of all the above, the Chamber concurred that the player was
registered as a professional with the Respondent.
15. Having established the above, the Chamber referred to the rules applicable to
training compensation. In this context, the Chamber started by stating that, as
established in art. 1 par. 1 of Annexe 4 in combination with art. 2 par. 1 lit. i. 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 professional is
registered for the first time as a professional before the end of the season of
the player’s 23rd birthday. In case the player is registered for the first time as a
professional, art. 3 par. 1 sent. 1 of Annexe 4 of the Regulations sets forth that
the club with which the player is registered is responsible for paying training
compensation within 30 days of registration to every club with which the player
has previously been registered and that has contributed to his training starting
from the season of his 12th birthday.
16. 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 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
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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.
17. However, in this regard, the Chamber pointed out that, in casu, a possible
obligation to offer the player a contract in compliance with art. 6 par. 3 of
Annexe 4 of the Regulations would in principle lie with the former club of the
player and not with the Claimant. In this respect, the Chamber recalled that the
Claimant was not the player’s former club, since the player was registered with
two other clubs after he had left the Claimant (cf. point I./2. above). As stated in
art. 6 par. 3 of Annexe 4 of the Regulations, said provision is without prejudice
to the right of training compensation of the player’s previous club(s).
18. On account of all of the above considerations, the Chamber decided that the
Respondent is liable to pay training compensation to the Claimant.
19. Turning its attention to the calculation of training compensation, the Chamber
reiterated that the player was born in May 1992 and was registered with the
Claimant as from 26 September 2005 until 31 August 2006 and as from 29
August 2007 until 30 September 2008.
20. Equally, the DRC recalled that the country L Football Federation confirmed that
the player was registered with the Respondent on 13 February 2012.
21. On account of the above and in accordance with art. 20 in combination with
Annexe 4 of the Regulations, the DRC considered that the Claimant is, thus,
entitled to receive training compensation for the period as from 26 September
2005 until 31 August 2006 and as from 29 August 2007 until 30 September 2008.
22. In view of all of the above and taking into account the amount claimed, the
DRC decided to partially accept the claim of the Claimant and held that the
Respondent is liable to pay the amount of EUR 30,832 to the Claimant as
training compensation in relation to the registration of the player with the
Respondent.
23. Moreover, taking into account the Claimant’s claim as well as art. 3 par. 2 of
Annexe 4 of the Regulations, the DRC decided that the Respondent has to pay
interest of 5% p.a. over the amount payable as training compensation as of the
31st day of the registration of the player with the Respondent, i.e. as from
14 March 2012 until the date of effective payment.
24. However, the Chamber acknowledged that the Respondent had, on a subsidiary
note, requested the Chamber to consider a possible reduction of the amount of
training compensation payable to the Claimant. In particular, the Respondent is
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of the opinion that the payment of training compensation in the total amount
of more than EUR 50,000 (together with the claim lodged by Club V, from
country P) would not be in a reasonable relation to Club G’s yearly budget of
EUR 380,000. In addition, the DRC noted that the Respondent alleged that the
player had remained registered with it for five months only, i.e. from January to
May 2012, and that the player did not play one single match in the first team of
Club G during these five months.
25. In this respect, the Chamber recalled that, according to art. 5 par. 4 of Annexe 4
of the Regulations, the Dispute Resolution Chamber may review disputes
concerning the amount of training compensation payable and shall have
discretion to adjust this amount if it is clearly disproportionate to the case under
review. In this regard, the members of the Chamber were, however, eager to
emphasize that such possibility allowed by the Regulations would, in any case,
have to be analysed on a case-by-case basis.
26. In this context, and reverting to the Respondent’s arguments (cf. point II./24.
above), the Chamber pointed out that, according to art. 20 and art. 2 of Annexe
4 of the Regulations, and as pointed out by the Court of Arbitration for Sport
(CAS) in the case CAS 2006/A/1189 Club N v/ Club T & country F Football
Federation, the player’s first registration as a professional before the end of the
season of his 23rd birthday is, in itself, sufficient to trigger the right of training
clubs to claim training compensation. Moreover, in the aforementioned case, in
which the CAS also dealt with a request to reduce the amount of training
compensation, the CAS highlighted that the Regulations do not set out any
minimum length of the contractual relationship between the player and the
club where he signs his first professional contract.
27. Regardless of the aforementioned consideration, the Dispute Resolution
Chamber deemed that the fact that the player never played in the 1st team
could not be taken into account as a strong argument in favour of reducing the
amount of training compensation.
28. On account of these considerations and in the absence of convincing arguments
and documentation in support of the Respondent’s request to adjust the
amount, bearing in mind art. 12 par. 3 of the Procedural Rules, the Chamber
had no alternative but to decide that the amount of training compensation
payable by the Respondent to the Claimant could not be adjusted.
29. Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in combination
with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings
before the DRC relating to disputes regarding training compensation, costs in
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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 that, in accordance with Annex 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 31,178.08 related to the claim
of the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to currency of country H 5,000
(cf. table in Annex A of the Procedural Rules).
31. As a result, and taking into account that the case at hand did not compose any
complex factual or legal issues as well as the degree of success, the Chamber
determined the costs of the current proceedings to the amount of currency of
country H 2,000, which shall be borne by the Respondent.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club R, is partially accepted.
2.
The Respondent, Club G, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 30,832 plus
interest of 5% p.a. as from 14 March 2012 until the date of effective payment.
3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, 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 in the amount of currency of
country H 2,000 is to be paid by the Respondent within 30 days as from the
date of notification of the present decision, to FIFA to the following bank
account with reference to case no.:
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 2. above 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:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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