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
Damir Vrbanovic (Croatia), member
Theo van Seggelen (Netherlands), member
on the claim presented by the club,
Club G, from country F
as Claimant
against the club,
Club B, from country I
as Respondent
regarding a training compensation dispute
related to the player S
I.
Facts of the case
1.
The country F Football Federation confirmed that the player, Player S
(hereinafter: the player), born in February 1992, was registered with its
affiliated club, Club G (hereinafter: the Claimant) from 1 July 2007 until 30 June
2010 as an “Aspirant” and from 1 July 2010 until 30 June 2011 as a professional.
2.
Moreover, the country F Football Federation informed FIFA that the Claimant
consists of two separate entities: the Société Anonyme Sportive Professionnelle
Club G (hereinafter: SASP), which signed all employment contracts with the
player during the seasons 2007/2008 to 2010/2011, and the Association Club G
(hereinafter: Association). According to the information provided by the country
F Football Federation, based on an agreement between the Association and the
SASP and in accordance with the regulations of the country F Football
Federation, the latter entity was responsible for the participation of the
Claimant’s professional teams in the various competitions.
3.
Furthermore, the the country F Football Federation informed FIFA that on 12
July 2011, the SASP entered into liquidation without the Claimant losing its
affiliation at the the country F Football Federation. It only lost its status of
professional club at the end of the season 2010/2011 and continued competing
in the 4th country F division and since then has the status of a category IV club.
4.
In addition, the the country F Football Federation informed FIFA that, despite
the fact that the Association and the SASP are linked through an agreement,
the Association cannot be regarded as the legal successor of the SASP. As
constituted in the liquidation proceedings, the legal successor of the SASP is the
liquidator Mr R, 9 bis rue New York, country F, for the duration of the
liquidation.
5.
The football season in country F lasts from 1 July until 30 June of the following
year.
6.
According to the country I Football Federation, the player was registered with
its affiliated club, Club B (hereinafter: the Respondent) on 10 August 2011 as a
professional.
Training compensation in connection with the player S
(Club G, from country F / Club B, from country I)
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7.
The country F Football Federation confirmed that the Claimant belonged to the
category I (indicative amount of EUR 90,000 per year within UEFA) during the
period when the player was registered with it.
8.
The country I Football Federation confirmed that the Respondent belonged to
the category I (indicative amount of EUR 90,000 per year within UEFA) during
the season when the player was registered with the club.
9.
On 23 November 2011, the Claimant, under the name of the Association,
contacted FIFA requesting the training compensation in connection with the
transfer of the player to the Respondent, for an amount of EUR 360,000.
10. In its reply, the Respondent indicated that the player was registered with the
SASP and not with the Association during the seasons 2007/2008 to 2010/2011.
At the same time, the Respondent stated that the SASP was declared in judicial
liquidation by the Tribunal de Commerce on 12 July 2011. The Respondent
provided a letter addressed by the “nominated Commissioner” to the player in
which reference to the above-mentioned decision is made and the player is
informed of the early termination of his contract for economic reasons due to
the cessation of the SASP’s activities.
11. Consequently, the Respondent deems that the SASP’s decision of entering into
liquidation constituted a unilateral breach of the employment contract without
just cause by the SASP, with the consequences stipulated in art. 2 of Annexe 4 of
the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations), i.e. that no training compensation should have fallen due.
12. Furthermore, the Respondent stressed that art. 3 par. 1 of Annexe 4 of the
Regulations provides that “in the case of subsequent transfers of the
professional, training compensation will only be owed to his former club for the
time he was effectively trained by that club”. Therefore, the Respondent
deemed that as of 25 July 2011 the player was a free agent and could hence be
signed without the payment of a transfer fee. Thus, there was no transfer
which could have triggered an obligation for the Respondent to pay training
compensation.
13. In addition to that, the Respondent emphasized that, according to art. 4 par. 1
and art. 5 par. 1 of Annexe 4 of the Regulations, only the club which actually
trained the player could claim for training compensation. In this context, the
Training compensation in connection with the player S
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Respondent referred to the decision of the country F Football Federation dated
27 July 2011, by which it was established that all sporting rights of the club
would be assigned to the Association. According to the Respondent, following
this decision, the Association only received the sporting rights of the SASP,
which do not include the right to receive training compensation. Finally, given
that the Association was not involved in the training of the player, it shall not
have the right to receive training compensation.
14. Alternatively, the Respondent alleges that the player had already finished his
training before the age of 21, referring to art. 6 par. 2 of Annexe 4 of the
Regulations. In this regard, the Respondent indicated that during the season
2010/2011, i.e. when the player was 18 years old, he played in 26 matches with
the first team of the SASP, thereof 16 in the starting line-up. In view of the
above, the Respondent argues that when calculating the amount of training
compensation, the period to be considered as effective training has to be
reduced.
15. In addition, the Respondent objects to the amount of EUR 360,000 which was
claimed by the Association as training compensation. In this regard, the
Respondent stresses that the Association, which actually claimed for training
compensation before FIFA, was a category IV club, whereas only the SASP was a
category I club. Consequently, according to art. 6 par. 1 lit. a of Annexe 4 of the
Regulations, training compensation should be calculated based on the average
training costs of the two clubs. Therefore, the calculation should only be based
on the average of EUR 50,000 and only for the seasons of effective training of
the player, which according to the Respondent are the seasons 2007/2008,
2008/2009 and 2009/2010.
16. Moreover, the Respondent pointed to the fact that the Association in its
correspondence with the Respondent dated 17 October 2011, considered an
indicative amount of EUR 50,000 as applicable, whereas only the country F
Football Federation when submitting the Association’s claim to FIFA on 23
November 2011 regarded EUR 90,000 as the correct indicative amount.
17. Lastly, the Respondent referred to jurisprudence of the CAS (CAS 2009/A/XXXX
Club M v. Club N, award of 30 July 2009), indicating that the amount due as
training compensation can be reduced in certain circumstances. In this context,
the Respondent held that since the matter at hand regards a club declared in
liquidation and the Claimant is a club that has never made any contribution in
Training compensation in connection with the player S
(Club G, from country F / Club B, from country I)
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the training of the player, a reduction of the training compensation would be
justified.
18. In its replica, without making a distinction between the Association and the
SASP, the Claimant emphasized that it was the club itself which effectively
trained the player.
19. In this context, the Claimant indicated that art. 26 of the Regulations of the
country F Football Federation requires that clubs constitute a company
whenever certain levels of profit or remuneration are reached. In addition, art.
27 stipulates that:
[Free translation] “(…) the sporting organization which is affiliated to the
Federation and constitutes a company continues to exist as an « association » as
per the law of 1901 and it remains the only beneficiary of the consequences of
being affiliated and, if applicable, of the right to use professional players.”
[Original language] “(…) l’association sportive affiliée à la Fédération qui constitue
une société continue d’exister en tant qu’association de la loi de 1901 et elle
seule bénéficie des effets de l’affiliation et, les cas échéant, de l’autorisation
d’utiliser des joueurs professionnels.»
20. Therefore, the Claimant held that despite the denominational difference
between the Association and the SASP, it remained the sole holder of rights
with regard to training compensation, as it was representing the totality of the
Claimant in accordance with the Regulations of the country F Football
Federation.
21. Furthermore, the Claimant stated that it had provided the player with
accommodation and food within the training center of the Association during
the period when the player was registered with the SASP. Moreover, the player
was allegedly trained by the coaching staff of the Association. Hence, it shall be
regarded as the club which has actually trained the player.
22. In its final position, the Respondent reiterated its previous position, however
emphasizing that the Association and the SASP should be considered as two
different clubs, which happened to have a joint-venture and an agreement
stipulating the relationship between these two clubs. Consequently, the
Association should not be regarded as the club which trained the player, as this
Training compensation in connection with the player S
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was solely the SASP. In this context, the Respondent stresses that the player was
never registered for the Association but only for the SASP.
23. After having been asked to provide its position regarding art. 6 par. 3 of
Annexe 4 of the Regulations, the Claimant stated that this article was not
applicable to the present case as the employment contract with the player did
not expire but was cancelled due to the liquidation of the SASP. Hence, the
Association could not propose a contract extension for a contract which had not
expired yet as stipulated in art. 6 par. 3 of Annexe 4 of the Regulations.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber) analysed
which procedural rules were applicable to the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 23 November 2011.
Consequently, the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules), is applicable to the matter at hand (cf. article 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 and 2 in
combination with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2010 and 2012), the Dispute Resolution Chamber was
competent to adjudicate on a dispute relating to training compensation
between a country F club and an country I club.
3.
In continuation, the Chamber analysed which regulations were applicable as to
the substance of the matter. In this respect, it confirmed that, in accordance
with art. 26 par. 1 and 2 and art. 29 of the 2010 and 2012 edition of the
Regulations, and considering that the present claim was lodged on 23
November 2011 and that the player was registered with the Respondent on 10
August 2011, the 2010 edition of the Regulations is applicable to the matter at
hand as to the substance.
4.
The Chamber first of all took note of the claim lodged by the Claimant for
training compensation in the amount of EUR 360,000 in relation to the transfer
of the player to a club belonging to a different association before the end of his
23rd birthday.
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(Club G, from country F / Club B, from country I)
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5.
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
refer only to the facts, arguments and documentary evidence which it
considered pertinent for the assessment of the matter at hand.
6.
In a first instance, the Claimant deemed fit to address the argumentation raised
by the Respondent according to which the Claimant would not be entitled to
training compensation in accordance with art. 2 par. 2 of Annexe 4 of the
Regulations, for the employment contract between the Claimant and the player
had allegedly been terminated without just cause by the latter.
7.
Therefore, the Chamber turned its attention to the facts that are pertinent from
the assessment of the stated issue and recalled that the player, born on 29
February 1992, was registered with the Claimant from 1 July 2007 until 30 June
2010 as an “Aspirant” and from 1 July 2010 until 30 June 2011 as a professional,
until his move from the Claimant to the Respondent.
8.
In continuation, the Chamber acknowledged that the SASP was declared in
judicial liquidation by the Tribunal de Commerce on 12 th July 2011 and that,
during the course of these liquidation proceedings the “nominated
Commissioner” on 25 July 2011 informed the player about the liquidation
process of the SASP and announced to him the early termination of his
employment contract.
9.
Equally, the Chamber took note that the Respondent rejected the Claimant’s
claim for the payment of training compensation, stating that the decision of the
SASP to enter into liquidation and the associated termination of the
employment contract with the player constituted a unilateral breach of the
employment contract without just cause by the Claimant leading to the
consequences as stipulated in art. 2 par. 2 of Annexe 4 of the Regulations, i.e.
that no training compensation fell due.
10. The Chamber went on to take due note of the Claimant’s position regarding the
termination of the employment contract with the player. In particular, the
Chamber noted that the Claimant stressed that the employment contract with
the player did not expire but was cancelled due to the liquidation of the SASP.
Training compensation in connection with the player S
(Club G, from country F / Club B, from country I)
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11. On account of the above, the Chamber highlighted that the central issue in the
matter at stake would be, thus, to determine as to whether art. 2 par. 2 of
Annexe 4 of the Regulations is applicable to the case. In this respect, the
Chamber recalled the content of art. 2 par. 2 of Annexe 4 of the Regulations
which stipulates that training compensation is not due if the former club
terminates the player’s contract without just cause. A contrario, only if the club
had just cause to terminate the relevant employment contract, would it still be
entitled to training compensation.
12. In this respect, the Chamber stressed that the definition of just cause and
whether just cause exists shall be established in accordance with the merits of
each particular case. In this context, the Chamber thought to emphasize the
content of art. 13 of the Regulations and the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the
parties in good faith, and stressed that the unilateral termination of a contract
without just cause is to be vehemently discouraged.
13. Pertaining to the statement of the Claimant that the employment contract with
the player did not expire but was cancelled due to the liquidation of the SASP,
taking full account of all the circumstances regarding the abovementioned
liquidation proceedings, the Chamber first had to analyse whether or not the
Respondent had terminated the contract with just cause, i.e. for a valid reason
as per art. 2 par. 2 of Annexe 4 of the Regulations.
14. With regard to the particularities of the case, the Chamber recalled that it was
undisputed between the parties that the player at no time showed any behavior
which would have constituted a violation of the terms of the employment
contract justifying the early termination of such contract. On the contrary, it
was undisputed that the only reason for the unilateral termination of the
employment contract with the player were the financial difficulties of the
Claimant and the related liquidation of the SASP pursuant to the
abovementioned decision of the Tribunal de Commerce on 12 July 2011. In the
light of this, the Chamber formed the belief that the termination of the
relevant employment contract was by no means imputable to the player and
concluded that in fact the Claimant was solely responsible for the liquidation of
the SASP and the consequent termination of the contract.
15. Against such background, the Chamber decided that there was no valid reason
or just cause for the unilateral termination of the employment contract. Thus,
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(Club G, from country F / Club B, from country I)
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the Chamber thought to emphasize that a club that has terminated a contract
with a player without having a just cause to do so shall not be able to retain any
rights which depend on such a rightful termination. Therefore, in accordance
with art. 2 par. 2 of Annexe 4 of the Regulations, the Claimant is not entitled to
receive training compensation in connection with the transfer of the player to
the Respondent.
16. Having established the above, the Chamber deemed it unnecessary to analyze
any further arguments put forward by either party and concluded that the
Claimant’s claim for training compensation was to be rejected.
17. Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in conjunction
with 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.
18. In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 360,000 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 25,000 (cf.
table in Annexe A).
19. As a result, and taking into account that the claim of the Claimant has been
rejected, the Chamber concluded that the Claimant has to bear the costs of the
current proceedings in front of FIFA.
20. Considering the case at hand and its complex factual and legal issues, the
Chamber determined the costs of the current proceedings to the amount of
currency of country H 18,000.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club G, is rejected.
Training compensation in connection with the player S
(Club G, from country F / Club B, from country I)
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2.
The final costs of the proceedings in the amount of currency of country H
18,000 are to be paid by the Claimant, Club G. Given that the Claimant, Club G,
has already paid the amount of currency of country H 5,000 as advance of costs
at the start of the present proceedings, the amount of currency of country H
13,000 has to be paid 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. XX-XXXX:
*****
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
Training compensation in connection with the player S
(Club G, from country F / Club B, from country I)
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