Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2014,
in the following composition:
Geoff Thompson (England), Chairman
Todd Durbin (USA), member
Mohamed Al Saikhan (Saudi Arabia), member
Joaquim Evangelista (Portugal), member
Leonardo Grosso (Italy), member
on the claim presented by the club,
Club G, from country B
as Claimant
against the club,
Club L, from country F
as Respondent
regarding training compensation in connection
with the player O
I.
Facts of the case
1.
According to the player passport issued by the country B Football Association
(hereinafter: country B Football Association), the player O (hereinafter: the
player), born in April 1995, was registered with its affiliated club, Club G
(hereinafter: the Claimant), as an amateur as from 1 July 2005 until 30 June
2010.
2.
On 17 September 2010, the Single Judge of the Players’ Status Sub-Committee
rejected the application made by the country F Football Federation
(hereinafter: country F Football Federation) for the approval prior to the
international transfer of the player in accordance with art. 19 par. 4 of the
FIFA Regulations on the Status and Transfer of Players (hereinafter: the
Regulations).
3.
Therefore, the player was only registered with Club L, from country F
(hereinafter: the Respondent) upon approval of a second application in front
of the Players’ Status Sub-Committee. In the meantime, i.e. from 1 July 2010
and 30 June 2011, the player apparently trained with the country F club.
4.
The country F Football Federation confirmed that, on 1 July 2011, the player
was registered with the Respondent as an “Aspirant”.
5.
The football season in country B runs from 1 July until 30 June of the following
calendar year.
6.
The country B Football Association confirmed that the Claimant belonged to
category II (indicative amount of EUR 60,000 per year within UEFA) during the
seasons when the player was registered with it.
7.
The country F Football Federation confirmed that the Respondent belonged to
category I (indicative amount of EUR 90,000 per year within UEFA) during the
period of training of the player concerned.
8.
On 30 August 2012, the Claimant contacted FIFA requesting training
compensation for the transfer of the player to the Respondent for an amount
of EUR 300,000 plus 5% interest p.a. as from the 31st day of registration with
his new club. In particular, the Claimant requests training compensation for
the seasons 2006/07, 2007/08, 2008/09 and 2009/10 for an amount of EUR
75,000 per season.
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
2/9
9.
In support of its claim, the Claimant holds that the regulations of the country B
Football Association state that all contracts between amateur players and clubs
shall be either signed or terminated between 1 April and 30 April of the
respective year, whereas the registration or deregistration shall come into
effect on the following 1 July of the respective year. In particular, said
regulations in art. 926 par. 1 stipulate the following:
Original French version:
“Afin de faire usage des possibilités offertes par la démission et la réaffiliation
de l’amateur démissionnant lors de la période du 1 jusqu’au 30 avril inclus,
l'affilié doit signifier, à peine de nullité, sa démission par lettre recommandée
au Secrétaire général et à son club d'affiliation et, à peine de déchéance, dans
la période du 1 avril au 30 avril inclus dans la période susmentionnée.“
Free English translation:
“To make use of the possibilities offered by the termination and re-affiliation
of an amateur resigning during the period between 1 and 30 April inclusively,
the affiliate must send, in order to avoid nullity, his resignation by registered
letter to the Secretary General and the affiliated club and, under penalty of
forfeiture, with the period from 1 April to 30 April.”
10.
Therefore, according to the Claimant, the player should be considered as still
having been registered with the Claimant until 1 July 2010 with the effect that
training compensation also has to be paid for the entire 2009/2010 season.
11.
Furthermore, the Claimant indicates that the 2010 edition of the Regulations
should be applicable, as only the exact date when the player signed his first
contract as a professional player should be the decisive point in time. Since the
player signed his first contract as an “Aspirant”, which should equally be
regarded as a professional contract, on 19 April 2011 and therefore after 1
October 2010, only the 2010 edition of the Regulations should apply.
12.
In its reply, the Respondent stated that only EUR 38,301 would be due, since
the player already deregistered from the Claimant on 29 April 2010, which is
why the Claimant could not claim training compensation for the full 2009/2010
season.
13.
In addition to that, the Respondent claims that the 2009 edition of the
Regulations should be applicable in order to calculate the training
compensation regarding the transfer of the player from the Claimant to the
Respondent, as art. 5 par. 3 of Annexe 4 does not apply retroactively. Hence,
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
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only an indicative amount of EUR 10,000 per year within UEFA should be
payable as training compensation to the Claimant.
14.
Moreover, the Respondent refers to an alleged correspondence from FIFA,
apparently transmitted to the Respondent by the country F Football
Federation, stating that at the occasion of an informal and general discussion,
and not connected to a specific case, the members of the chamber present for
this occasion held the opinion that the relevant provision in this case should
not be applied retroactively. Should this interpretation be confirmed, it seems
that the last sentence of art. 5 par. 3 of Annexe 4 of the Regulations should
only apply to the seasons after the entry into force of said stipulation.
15.
In its replica, the Claimant reiterates its previous position, indicating that
according to art. 2 par. 1 of Annexe 4 of the Regulations and the commentary
thereto as well as according to the jurisprudence of the Dispute Resolution
Chamber (i.e. DRC Decision 4111875 rendered on 7 April 2011), the date on
which the player signed his first contract as a professional should be the
decisive element when determining which edition of the Regulations is
applicable. The aforementioned decision indicates that training compensation
is due when the player is registered for the first time as a professional with his
new Association, or if a professional is transferred between clubs of two
different associations (whether during or at the end of his contract) before the
end of the season of his 23rd birthday and that any dispute must be assessed
according to the regulations that were in force when the player was registered
as a professional for the first time.
16.
As a consequence of the above, the Claimant held that that the 2010 edition
of the Regulations is to be applied to the present dispute retroactively,
stressing that, should the Dispute Resolution Chamber not apply art. 5 par. 3 of
Annexe 4 of the Regulations, the payable amount of training compensation
for the player, aged 12 to 15 during the seasons 2006/07 until 2009/2010,
would always be EUR 10,000. This, regardless of the circumstances, which
would stand in contrast to the ratio legis of said article, i.e. the protection of
minors.
17.
As to art. 6 par. 3 of Annexe 4 of the Regulations, the Claimant states that it
could not offer a professional contract to the player as he was only 15 years
old when deregistering from the Claimant and had thus not reached his 16th
birthday.
18.
In its final position, the Respondent reiterated its previous argumentation,
putting again focus on the non-retroactivity of art. 5 par. 3 of Annexe 4 of the
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
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Regulations as well as on the fact that the Claimant has not made a contract
offer to the player in accordance with art. 6 par. 3 of Annexe 4 of the
Regulations.
II.
Considerations of the Dispute Resolution Chamber
1.
In a first instance, the Dispute Resolution Chamber (hereinafter also referred
to as DRC or 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 30 August 2012. 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. art. 21 par. 2 and 3 of the 2008 and 2012 editions 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 (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.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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 (editions 2010 and 2012), and considering that the player
was registered with the Respondent as a professional on 1 July 2011, the 2010
edition of the Regulations is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC 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 facts of the case as
well as the documentation on file.
5.
First of all, the DRC took note that the Claimant stated that it is entitled to
receive training compensation from the Respondent in the amount of EUR
300,000, indicating that the player had signed a professional contract as an
“Aspirant” with the Respondent before the end of the season of his 23rd
birthday.
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
5/9
6.
Likewise, the DRC noted that the Respondent argued that the Claimant has
not made a contract offer to the player in accordance with art. 6 par. 3 of
Annexe 4 of the Regulations.
7.
In this respect, and hereby referring to the rules applicable to training
compensation, the Chamber stated that, as established in art. 1 par. 1 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 player is registered for the first time as a
professional before the end of the season of the player’s 23 rd birthday.
8.
Moreover, the Chamber referred, in particular, 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). More specifically, the Chamber
turned its attention to art. 6 par. 3 of Annexe 4 which stipulates, inter alia,
that 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.
9.
In view of the above, the Chamber stated that, first and foremost, it had to
verify whether art. 6 par. 3 of Annexe 4 of the Regulations applies in the
present case as lex specialis, and, in the affirmative, to determine if the
Claimant had complied with the said provision in order to be entitled to
training compensation.
10.
As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is
concerned, the Chamber stated that, as the player moved from a club in
country B to a club in country F, i.e. moved from one Association to another
Association inside the territory of the EU, the said article is applicable.
Therefore, the Chamber concluded that the aforementioned provision applies
in the case at hand as lex specialis.
11.
On account of the aforesaid, the Chamber analysed whether or not the
Claimant had complied with the prerequisites of art. 6 par. 3 of Annexe 4 of
the Regulations in order to be entitled to training compensation.
12.
In this sense, the Chamber emphasized 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 mail at least 60 days before the
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
6/9
expiry of his current contract (cf. art. 6 par. 3 sent. 2 of Annexe 4 of the
Regulations).
13.
In this context, the members of the Chamber pointed out that the Claimant
merely stated that it could not offer a professional contract to the player as he
was only a 15-year-old amateur player when deregistering from the Claimant
and had thus not reached his 16th birthday. In this regard, the Chamber firstly
recalled that in accordance with its well-established jurisprudence, which was
confirmed by the Court of Arbitration for Sport (CAS), art. 6 par. 3 sent. 1 of
Annexe 4 of the Regulations is applicable whether the player is registered as
an amateur or a professional with his former club (cf. Decision of the Dispute
Resolution Chamber of 27 April 2006, no. 461185, consideration no. II./10. et
sq. and CAS 2006/A/XXXX Av/N FC, considerations no. 8.6 et sqq.). Secondly,
reverting to the Claimants allegation of not having been in a position to offer
the player a contract due to his age, the Chamber emphasized that this
remained a mere assertion and had not been corroborated by any means with
documentary evidence. Therefore, referring to art. 12 par. 3 of the Procedural
Rules, the DRC deemed that the Claimant’s line of argument could not be
upheld as its allegation remained unsubstantiated.
14.
Based on the above, the Chamber noted that the Claimant had, thus, not
brought forward any indication that it had, in fact, offered the player a
contract in accordance with art. 6 par. 3 sent. 2 and sent. 3 of Annexe 4 of the
Regulations, nor was there any documentary evidence on file that the
Claimant had done so (cf. art. 12 par. 3 of the Procedural Rules). Therefore, the
Chamber only had to analyse if the Claimant could justify that it is nevertheless
entitled to training compensation.
15.
In continuation, the Chamber went on to examine whether the Claimant had
provided sufficient proof as regards the latter’s justification to claim training
compensation. The Chamber considered that such justification can, in general, be
manifested by a club by displaying a bona fide interest in keeping the player in
question in its team and by showing a proactive attitude vis-à-vis the respective
player, so as to clearly manifest that the club intends to count on the player for
the future. However, the Chamber, also referring to art. 12 par. 3 of the
Procedural Rules, first of all noticed that the burden of proof to demonstrate any
justification to receive training compensation notwithstanding not having offered
a contract to the player, i.e. a bona fide and genuine interest of the Claimant in
retaining the player, lies with the Claimant. Equally, the members of the Chamber
recalled, according to the well-established jurisprudence, that this justification is
limited to very exceptional circumstances.
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
7/9
16.
In this regard, the Chamber noted that the Claimant had not provided any
proof that it had in fact shown a bona fide and genuine interest in retaining
the player. As a consequence, the Chamber decided that the aforementioned
considerations could lead to no other conclusion than the Claimant having
failed to comply with the prerequisites of art. 6 par. 3 of Annexe 4 of the
Regulations. In view of the foregoing, the Chamber determined that the
Claimant is not entitled to receive training compensation from the Respondent
for the training and education of the player. Consequently, the Chamber
decided that the Claimant’s claim had to be rejected.
17.
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 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 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 300,000 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 consideration that the claim of the Claimant has
been rejected, the Chamber concluded that the Claimant has to bear the costs
of the current proceedings.
20.
Considering the above, and taking into account the complexity of the case, the
Chamber determined the costs of the current proceedings to the amount of
currency of country H 18,000, which shall be borne by the Claimant.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club G, is rejected.
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
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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. 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 has to pay the amount of currency of country
H 13,000, within 30 days of notification of the present decision, to FIFA to the
following bank account with reference to case no.:
*****
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
Training compensation in connection with the player O
(Club G, from country B / Club L, from country F)
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