Training Compensation
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thom as Grim m (Sw itzerland), Deputy Chairman
Johan v an Gaalen (S outh Africa), member
Eirik Mons en (Norw ay ), member
Moham ed Al-S aikhan (S audi Arabia), member
Mario Gallav otti (Italy ), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding training compensation in connection
with the player, Player E
I.
Facts of the cas e
1.
According to the player passport issued by the Football Association of Country B
confirmed that the player, Player E (hereinafter: the player), born on 13 January 1997,
was registered with its affiliated club, Club A (hereinafter: the Claimant), as follows:
Status
Registration dates
Category
Amateur
From 1 July 2008 until 30 June 2009
2
Amateur
From 1 July 2009 until 30 June 2010
2
Amateur
From 1 July 2010 until 30 June 2011
2
Amateur
From 1 July 2011 until 30 June 2012
2
Amateur
From 1 July 2012 until 30 June “2014”
2
Amateur
From 1 July 2013 until 28 April 2014
2
2.
The football season in Country B lasts from 1 July to 30 June of the following year.
3.
On 10 November 2014, the player was registered with the club of Country D, Club C
(hereinafter: the Respondent), as a professional player. Equally, according to the
information contained in the Transfer Matching System (TMS), the player’s last club
before his transfer to the Respondent was the Claimant.
4.
The Football Federation of Country D confirmed that the Respondent belonged to the
category 2 (indicative amount of EUR 60,000 per year within UEFA) at the time the
player was registered with it.
5.
On 15 September 2015, the Claimant contacted FIFA asking for its proportion of training
compensation for the first professional registration of the player with the Respondent.
In particular, the Claimant requested EUR 160,000.
6.
In this context, the Claimant provided a copy of the contract offer allegedly remitted on
28 April 2014 to the player via registered mail in accordance with art. 6 par. 3 of Annexe
4 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations),
in accordance with which, the player would receive during the next two seasons a
monthly salary of EUR 859, plus bonus for winning up to the amount of EUR 1,800 and
bonus for drawing up to the amount of EUR 600. However, the Claimant stated that the
player never collected the document containing the offer from the post office and
concluded that, in its opinion, since the contract was offered in accordance with the
Regulations it is entitled to receive training compensation from the Respondent.
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
2
7.
In this context, the Claimant provided an exchange of e-mails between the Claimant
and the Respondent and held that is of the opinion that the Respondent will reject its
obligation to pay on the basis of not having met the requirements stipulated in art. 6
par. 3 of Annexe 4 of the Regulations.
8.
On 9 December 2015, the Respondent rejected the Claimant’s claim by referring to the
player passport (cf. point 1 above) and stating that at the time the player was offered
the contract, he was no longer registered with the Claimant.
9.
Furthermore, the Respondent held that the special provisions contained in art. 6 of
Annexe 4 of the Regulations are applicable to the present matter and that the Claimant
did not meet the requirements to be entitled to training compensation. In particular,
the Respondent stressed that, although the player was registered as an amateur with
the Claimant, he concluded an amateur agreement with said club, which was
terminated on 28 April 2014, when the player was deregistered.
10.
In this context, the Respondent asserted that the Claimant remitted the offer on the
same day he cancelled his registration and that, in its opinion, it is clear that the
Claimant acted in bad faith when offering the player a contract since it was only trying
to fulfil the formal requirements in accordance with the Regulations in order to be
entitled to training compensation. However, the Respondent held that from the
abovementioned facts it is clear that the Claimant never had the intention to keep the
player.
11.
Moreover, the Respondent assessed that although his amateur contract was due to
expire on 30 June and the deregistration of the player with the Claimant will be
effective only as of said date in accordance with the Football Association of Country B’s
regulations, it is not acceptable to uphold the Claimant’s position of offering the player
a contract knowing he had resigned, with the sole intention of fulfilling the formal
requirements of art. 6 par. 3 of Annexe 4 of the Regulations.
12.
In this regard, the Respondent referred to the DRC and CAS jurisprudence and held that
accepting this behaviour would put the training club of the player in a position of
excessive power that would jeopardize the position of the amateur players and the new
clubs since the former club of an amateur player could always wait until the player
resigns his amateur agreement and still offer him a contract in order to be entitled to
training compensation.
13.
In addition, the Respondent rejected the Claimant’s claim by stating that the offer never
reached the player. In particular, the Respondent held that the Claimant remitted the
offer to the player via registered mail with acknowledgement of receipt and that,
consequently, the Claimant knew that the player never collected the documentation
containing the offer. However, the Respondent pointed out that the Claimant did not
react in order to make sure that the player indeed received the offer.
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
3
14.
In this context, the Respondent stressed that the offer remitted to the player was not
signed by the Claimant. In this respect, the Respondent further referred to the DRC and
CAS jurisprudence, in accordance with which an offer consists “of an expression of
willingness to contract on a specific set of terms, with a view that they are accepted by
its counterparty and that both sides will become contractually bound”. As a result, the
Respondent concluded that the Claimant’s “offer” was a draft with no binding effect
and that, consequently, it cannot be considered as an offer in accordance with art. 6
par. 3 of Annexe 4 of the Regulations.
15.
Moreover, the Respondent asserted that the Claimant failed to proactively show a real
and genuine interest in keeping the player. In particular, the Respondent stated that
the Claimant never approached him or his representative and that the offer was sent
only after he cancelled his registration with the Claimant on the basis of the regulations
of the Football Association of Country B. In this respect, the Respondent provided a
declaration of the player dated 9 December 2015, which reads as follows: “[the
Claimant] has never shown a genuine interest in keeping me in the club for season
2014/2015, since it was never offered to me any serious contract proposal by any of [the
Claimant’s] representatives, during all the years that I have spent in the club. Also, not
once I was contacted by club’s staff or directors with a view to discuss my situation in
the club so, I honestly can state that there was no professional football future to me in
[the Claimant] In fact, the club has shown no willingness in allowing me to prove my
value as a player, as the opportunities that I was have given with were hardly any.
Therefore, and since [the Claimant] has expressly and officially confirmed that they did
not plan to offer me a professional contract in the following season, I used my
resignation right as an amateur player with a view to find another club that could offer
me my first football contract”. As a result, the Respondent concluded that training
compensation is not due.
16.
Lastly, the Respondent concluded that should the DRC recognize the Claimant’s
entitlement to training compensation, the maximum amount payable should be EUR
149,643.84 and not EUR 160,000 since he was not registered with the Claimant for the
whole 2013/2014 season.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, 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 15 September
2015. Consequently, the 2015 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 of the Procedural
Rules).
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
4
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
2015), 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 on the Status and Transfer of Players (editions 2014 and 2015), and
considering that the player was registered with the Respondent on 10 November
2014, the 2014 edition of the Regulations on the Status and Transfer of Players
(hereinafter: 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. However, the Chamber emphasized 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.
5.
First of all, the DRC took note that the Claimant maintained that it is entitled to
receive training compensation from the Respondent in the amount of EUR 160,000,
indicating that the player had signed his first professional contract with the
Respondent, before the end of the season of his 23rd birthday, and that it had
offered the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the
Regulations.
6.
Likewise, the DRC noted that the Respondent argued that training compensation is
not due since i) when the Claimant offered the player a contract he had already left
the Claimant, ii) the Claimant is acting in bad faith since it offered the player a
contract on the same day the player was deregistered only in order to fulfil the
formal requirements of art. 6 par. 3 of Annexe 4 of the Regulations, iii) the
Claimant’s offer remitted via registered mail never reached the player, the Claimant
knew the player never collected it and it did not react, iv) the Claimant’s offer was
not signed and, therefore not binding on the Claimant and that v) the Claimant
failed to show genuine interest.
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
5
7.
After having carefully examined the parties’ positions, taking into consideration all
the aforementioned arguments, the Chamber observed that the parties, in
particular, disputed whether the Claimant fulfilled the requirements in art. 6 par. 3
of Annexe 4 of the Regulations in order to be entitled to training compensation.
8.
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. ii. 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 transferred between clubs of two different
Associations before the end of the season of the player’s 23 rd birthday
9.
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.
10.
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.
11.
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 D, i.e. moved from one Association to another Association inside the
territory of the EU, said article is applicable. Therefore, the Chamber concluded that
the aforementioned provision applies in the case at hand as lex specialis.
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 expiry of his current contract
(cf. art. 6 par. 3 sent. 2 of Annexe 4 of the Regulations).
13.
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. In doing so, the Chamber recalled
that the player was registered as an amateur with the Claimant and that the player
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
6
was deregistered on 28 April 2014, this is, on the same day the Claimant remitted
the offer to the player via registered mail. Equally, the DRC underscored that,
according to the Respondent, the player had concluded an amateur contract with
the Claimant, which was due to expire on 30 June.
14.
In light of the above, the members of the Chamber pointed out that the Claimant
provided evidence of having offered the player a contract via registered mail at least
60 days before the expiry of his current contract. Notwithstanding the foregoing,
the Claimant also acknowledged that it was aware of the fact that the player did
not collect the Claimant’s offer.
15.
Furthermore, the Chamber underscored that the offer provided by the Claimant
during the present proceedings and allegedly remitted to the player was not signed,
thus, did not bind the Claimant.
16.
In this context, the DRC recalled that the requirements provided for in art. 6 par. 3
sent. 2 and sent. 3 of Annexe 4 of the Regulations are set forth in order to ease the
evidence of the club’s real intention to keep the player. However, the DRC
emphasized that the fulfilment of the formal requirements in order to be entitled
to training compensation without the real intention of continuing the relationship
with the player concerned shall not be protected.
17.
Moreover, the DRC highlighted that the Claimant failed to prove de facto its
genuine interest on the player after having known that he did not collect the offer.
18.
As a consequence, the Chamber decided that the aforementioned considerations
could lead to no other conclusion than that the Claimant had not complied de facto
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.
19.
Furthermore, and for the sake of good order, the Chamber pointed out that the
Claimant had not made any efforts to justify that it would be entitled to training
compensation in accordance with art. 6 par. 3 sent. 1 in fine of Annexe 4 of the
Regulations, which, according to the well-established jurisprudence of the Chamber,
is limited to very exceptional circumstances. In this respect, the Chamber deemed it
important to underline that the Claimant had not brought forward the occurrence
of a very exceptional circumstance which, in the case at hand, had stopped the
Claimant from offering the player a contract after knowing that the player did not
collect the unsigned offer i.e. the Chamber had no reason to believe that very
exceptional circumstances had prevented the Claimant from showing a genuine
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
7
interest on the player. In this context, the Chamber reiterated that the mere
remittance of a document with an unsigned offer that the player never collected
could not be considered as a justification in the sense of art. 6 par. 3 sent. 1 and sent.
2 of Annexe 4 of the Regulations.
20.
Finally, and taking into account the above, the members of the Chamber did not
deem it necessary to enter into the substance of the other arguments brought up
by the parties to the present dispute, since the prerequisites in order for the
Claimant to be entitled to training compensation were not complied with.
21.
In view of all the above, the Dispute Resolution Chamber rejected the Claimant’s
claim for training compensation.
22.
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 CHF 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.
23.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 160,000 related to the claim of the
Claimant. Consequently, the Chamber concluded that the maximum amount of costs
of the proceedings corresponds to CHF 20,000 (cf. table in Annex A).
24.
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 in the amount of CHF 15,000.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the
Claimant to FIFA. Given that the latter already paid an advance of costs of CHF 5,000 at
the beginning of the present proceedings, the Claimant has to pay the amount of CHF
10,000, w ithin 30 day s of notification of the present decision, to the following bank
account with reference to case nr. XXX:
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
8
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the m otiv ated decis ion (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:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives
Training compensation for the Player E
(Club A, Country B / Club C, Country D)
9