Training Compensation
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 February 2017,
in the following composition:
Thom as Grim m (Sw itzerland), Deputy Chairman
Eirik Mons en (Norw ay ), member
Taku Nom iy a (Japan), member
Todd Durbin (US A), member
Joaquim Ev angelis ta (Portugal), 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 case
1.
According to the player passport issued by the Football Federation of Country B (Football
Federation F), the player, Player E, born on 27 May 1995, was registered with Club A
(hereafter: the Claimant) as from 3 February 2010 until 19 January 2015 as a professional.
2.
The football season in Country B ran from 1 August to 30 July of the following year.
3.
Equally, according to the information contained in the Transfer Matching System (TMS), the
player was registered with the Club of Country D, Club C (hereinafter: the Respondent), on 10
February 2015.
4.
According to the information contained in the TMS, 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 19 July 2016, the Claimant contacted FIFA asking to be awarded training compensation
from the Respondent for the subsequent professional registration of the player. In particular,
the Claimant is requesting EUR 279,166.67, plus 5% interest p.a. as of 19 February 2015, as
well as that the Respondent bear all the costs of the proceedings and reimburse the advance
of costs paid.
6.
In this context, the Claimant argued that it had unsuccessfully tried to solve the matter
amicably.
7.
Furthermore, the Claimant alleged that the player had not terminated his training and
education period before joining the Respondent on 19 January 2015, as he only made 20
appearances for the Claimant, most of them as a substitute. In this respect, the Claimant
referred to the jurisprudence of the Dispute Resolution Chamber (DRC) and the Court of
Arbitration for Sport (CAS), according to which a few substitute appearances for a club’s first
team are not enough to consider that his training period had already terminated.
8.
Moreover, the Claimant submitted a copy of its letter dated 19 January 2015 (hereinafter: the
confirmation letter), addressed to the player, which reads as follows:
“With the authorization of the President of [the Claimant], and in the name of [the
Claimant], general manager of [the Claimant] hereby confirms the following conditions to be
valid for the transfer of the player, Player E (Nat: BiH), DOB: 27.05.1995 to the new football
club from [the Claimant].
With this document [the Claimant] confirms that:
a.
b.
the new club of the player, Player E agrees to pay 10% of the total net transfer fee,
should the player be transferred or loaned from new club to the third (next) club; and
the new club of the player, Player E, should the player return back to [the Claimant],
will not request any compensation or transfer fee or any other funds from [the
Claimant];
then [the Claimant] will not ask for training compensation from the new club”.
In this context, the Claimant stated that the confirmation letter cannot be considered a valid
waiver to training compensation as it does not constitute a binding agreement between the
parties since it is only signed by the Claimant. In the latter’s opinion, the confirmation letter is
a mere declaration given to the player as a courtesy that allows him to negotiate a transfer
with other clubs, preventing that his career is halted in Country B due to the fact that foreign
clubs are not willing to sign players for whom high amounts of training compensation may be
due.
Training compensation for the player, Player E
(Club A, Country B / Club C, Country D)
2
9.
In particular, the Claimant asserted that if a club that is willing to sign the player is relying on
this courtesy to the player, the only possible way is to conclude an agreement with the
Claimant, the provisions of which would match the terms of the waiver.
10.
In addition, the Claimant pointed out that the confirmation letter stipulates that it would not
ask for training compensation from a new club if two conditions are fulfilled: i) that the
Claimant is entitled to a sell-on fee of 10%, and ii) that the new club will not request training
compensation if the player is transferred back to the Claimant. In this context, the latter
stressed that neither the Respondent agreed to these terms nor the two conditions were
fulfilled. Consequently, the Claimant assessed that it did not waive its right to training
compensation.
11.
Equally, the Claimant stated that should the confirmation letter be considered a valid waiver,
it would be impossible for it to enforce its right to a sell-on fee of 10% on the subsequent
transfer of the player as the confirmation letter does not bind the Respondent. As a result,
the Claimant held that it was never its intention to waive its right to training compensation
without receiving anything in return.
12.
Furthermore, the Claimant referred to the jurisprudence of the DRC, according to which a
waiver can only be assumed in case it is unmistakable that the renouncing club had indeed
intended to waive its right to training compensation. Equally, in the same matter, the DRC
emphasized that the relevant document, which was an administrative document issued in
accordance with the procedure of a Football Federation related to the transfer of the relevant
player, did not constitute an agreement between the parties. In light of the foregoing, the
Claimant held that, as no agreement was concluded with the Respondent and the two
conditions stipulated in the confirmation letter (cf. point I.10. above) were not fulfilled, it
never intended to waive its right to training compensation.
13.
Moreover, the Claimant stated that during the one and a half years since the confirmation
letter was issued, the Respondent had the time to assess what option (paying training
compensation or paying the 10% of the future net transfer fee) is more profitable for it and
that now that it saw that paying training compensation is not profitable, it is willing to agree
upon the terms stipulated in the waiver.
14.
In addition, the Claimant provided a copy of its correspondence dated 20 June 2016,
addressed to the player, the translation into English of which reads as follows:
“We wish to inform you that the letter that you have received from the [Claimant] on the
date of 19 January 2015, in regards to your transfer to another Club ([the Respondent]), has
no longer any legal effect in any ways or grounds. The letter has no effect since the day you
have transferred out of the [Respondent] to another Club, therefore the letter from the date
of 19.01.2015 will no longer have any grounds”.
In this respect, the Claimant reiterated that at no point the parties concluded an agreement
including the terms stipulated in the confirmation letter, being therefore clear, in the
Claimant’s opinion, that the confirmation letter cannot be considered a waiver.
15.
Lastly, the Claimant referred to the CAS jurisprudence, according to which the new club of
the player cannot rely on a document between the player and his former club to establish
that the latter waived its right to claim training compensation from the new club.
16.
In its reply to the claim, the Respondent rejected having to pay training compensation to the
Claimant for the player by alleging that the player’s contract with the Club of Country B
Training compensation for the player, Player E
(Club A, Country B / Club C, Country D)
3
expired on 31 December 2014 and that negotiations between both clubs took place during
January 2015. As a result, on 19 January 2015 the Respondent received the confirmation letter
and on 31 January 2015, it concluded an employment contract with the player, who was
registered with it on 10 February 2015. Equally, the Respondent submitted a copy of the
waiver for training compensation it received on 2 February 2015 from Club G, the previous
club of the player, which in the Respondent’s view shows that it was aware that training
compensation may have been due for the player and therefore contacted the former clubs for
their express renouncement.
17.
In this respect, the Respondent stressed that this timeline and the fact that the Claimant
stated that the player was registered with the Club of Country D on 19 January 2015 (cf. point
I.7. above), i.e. on the same date as the confirmation letter was issued, is not a mere
coincidence. In the Respondent’s opinion, on the contrary, this shows that the parties
negotiated and were all aware that the new club would be the Respondent, for whom the
confirmation letter was a conditio sine qua non it would not have signed the player.
18.
Equally, the Respondent provided a copy of its letter dated 3 February 2015, allegedly sent
after the former General Manager of the Claimant, Mister H, and the Respondent’s advisor
confirmed that no training compensation would be due if the Respondent accepted the
conditions set in the confirmation letter, which reads as follows:
“[The Respondent] hereby confirms by written to agree with the conditions as written in the
document off 19.01.2015 from [the Claimant] concerning Player E and as discussed with
Mister H”.
19.
In this context, the Respondent further provided a copy of the Claimant’s confirmation
addressed to “Attn: Player E. [the Respondent]” dated 3 February 2015 declaring that its
employment relationship with the player had expired on 1 January 2015.
20.
In this regard, the Respondent further stated that, thereafter, in March 2016, the player and
the Respondent mutually terminated the employment contract and that, as a result, no
transfer fee was paid for the subsequent transfer of the player to Country J.
21.
In light of the foregoing, the Respondent concluded that, only when the Claimant became
aware that it would not be entitled to 10% of a transfer fee, it requested training
compensation from the Respondent, which refused to pay. As a result of the Respondent’s
refusal, on 20 June 2016, the Claimant addressed the player once again withdrawing its letter
of 19 January 2015 (cf. point I.14. above).
22.
As to the confirmation letter of 19 January 2015, the Respondent argued that the Claimant
waived its right to training compensation (cf. point I.8. above). In particular, the Respondent
referred to the DRC jurisprudence, according to which clubs are entitled to waive their right
to training compensation if i) it is unmistakable that the former club renounces to training
compensation, this is, that the wording of the waiver does not leave room for interpretation,
which means that explicit reference to training compensation is required, and ii) the waiver is
signed by a legal representative of the former club.
23.
In this respect, the Respondent pointed out that the confirmation letter, signed by the former
General Manager of the Claimant, clearly expresses the latter’s renouncement to training
compensation under certain conditions.
24.
Furthermore, the Respondent rejected that the CAS jurisprudence that the Claimant referred
to is applicable to the present matter, as in the referred case the document at the center of
Training compensation for the player, Player E
(Club A, Country B / Club C, Country D)
4
25.
the dispute was a termination agreement in which the club and the player established that
they do not have any claims towards each other.
In particular, the Respondent stressed that it is a basic legal principle that parties can
unilaterally renounce to a right they have and that this was also implied in the CAS
jurisprudence the Claimant relied on.
26.
Equally, the Respondent referred to the DRC jurisprudence, according to which waivers
should be signed by the former clubs, but no express acceptance of the new club is required.
In light of the foregoing, the Respondent asserted that the confirmation letter met all the
requirements of a waiver.
27.
Moreover, the Respondent stated that the conclusion of a contract requires the mutual
expression of the intent by the parties which, according to Swiss Law, can be express or
implied. In particular, the Respondent further pointed out that, in this particular case, its
acceptance was required due to the fact that the confirmation letter contained two
conditions, but there was no reference to the need to enter into a separate agreement. As a
result, the Respondent rejected the Claimant’s argument regarding the need to conclude a
new agreement and argued that it would not make sense to hand the confirmation letter to
the player, taking into account that the Claimant did not consider itself bound by its own
declarations.
28.
As to the Claimant’s letter dated 20 June 2016 (cf. point I.14. above), the Respondent held
that it shows that the Claimant was aware, at the time of signing the confirmation letter, that
his new club would be the Respondent. Equally, the latter referred to its wording, according
to which the confirmation letter would have no effect since 1st March 2016, and pointed out
that it clearly establishes that the confirmation letter was valid and that it was valid before
that date. In this context, the Respondent stated that one cannot withdraw an offer that has
already been accepted (cf. point I.18. above).
29.
As to the claim for interests, the Respondent argued that should the DRC decide that training
compensation is due, interests could only run as of 30 days after the registration of the player.
30.
Lastly, the Respondent requested that the present claim be rejected and that the Claimant
bear the costs of the proceedings and, alternatively, should the claim be accepted, that the
interest be reduced and that the costs be equally split between the parties.
II.
Cons iderations of the Dis pute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: 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 19 July 2016. Consequently, the 2015 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the 2015 and 2017 editions of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 of the Procedural Rules and confirmed that in
accordance with art. 24 par. 1 and 2 and art. 22 lit. d) of the Regulations on the Status and
Transfer of Players (edition 2016) it is competent to deal with the matter at stake relating to
training compensation between clubs belonging to different associations.
3.
Furthermore, and taking into consideration that the player was registered with his new club
on 10 February 2015, 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
Training compensation for the player, Player E
(Club A, Country B / Club C, Country D)
5
and 2 of the Regulations on the Status and Transfer of Players (editions 2014, 2015 and 2016),
the 2014 version of said Regulations is applicable to the present matter as to the substance.
4.
The competence of the Chamber and the applicable regulations having been established, the
DRC entered into the substance of the matter. The Chamber started by acknowledging the
facts of the case as well as the documentation contained in the file. However, the DRC
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.
In this respect, the DRC took note of the fact that the player, born on 27 May 1995, was
registered with the Claimant as from 3 February 2010 until 19 January 2015 as a professional.
6.
Furthermore, the DRC duly noted that the Claimant is requesting training compensation for
the training and education of the player concerned from the Respondent in the amount of
EUR 279,166.67 for his subsequent professional registration with the Respondent.
7.
Moreover, the Chamber noted that the Respondent rejected the claim of the Claimant,
arguing that, via its confirmation letter dated 19 January 2015, the Claimant waived its right
to training compensation.
8.
In this context, the DRC firstly underscored that it is undisputed that, on 10 February 2015, the
player was subsequently registered as a professional with the Respondent.
9.
In continuation, the DRC stated that, as established 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 the player
concerned is registered for the first time as a professional, or when a professional is
transferred between two clubs of two different Associations, before the end of the season of
the player’s 23rd birthday.
10.
Furthermore, the Chamber also referred to art. 3 par. 1 of Annexe 4 of the Regulations, in
accordance with which, as a general principle, in case of subsequent transfers of the
professional player, training compensation will only be owed to his former club for the time
he was effectively trained by that club.
11.
Subsequently, the DRC referred to art. 12 par. 3 of the Procedural Rules, which essentially
stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden
of proof and, in this respect, it concluded that the Respondent bears the burden of proving
that the Claimant had waived its right to claim training compensation.
12.
In this context, the DRC referred to the time-frame and, in particular, to the fact that before
the registration of the player with the Respondent on 10 February 2015, the latter received
the Claimant’s confirmation letter, a waiver for training compensation from Club G, the
previous club of the player (cf. point I.16. above), and a confirmation from the Claimant
addressed to the player, to the Respondent’s address, regarding the expiry of his employment
contract with the Claimant (cf. point I.19. above). In this respect, the Chamber stressed that
the Respondent, before registering the player and so as to act in compliance with its duty of
care, had requested a confirmation from the previous clubs of the player that no training
compensation would be due.
13.
In particular, the Chamber stressed that the confirmation letter received from the Claimant,
which was signed by its General Manager, expressly mentioned that the Claimant waived its
right to receive training compensation under two conditions: i) that the Claimant receives
Training compensation for the player, Player E
(Club A, Country B / Club C, Country D)
6
10% of the subsequent transfer fee, if the player is transferred or loaned to a third club, and
ii) that if the player returns to the Claimant, no training compensation shall be payable by the
latter to the player’s former club. Equally, the Chamber underscored that the Claimant itself
submitted that the objective of its confirmation letter was to avoid that the player’s career is
halted in Country B due to the fact that a high amount may be payable as training
compensation, which may result in the unwillingness of foreign clubs to sign the player (cf.
point I.8. above).
14.
In addition, the DRC found it important to note that, on 3 February 2015, the Respondent
confirmed that it accepted the aforementioned conditions (cf. point I.18. above).
15.
Equally, the Chamber pointed out that the two conditions stipulated in the confirmation
letter could not be met as the player never returned to the Claimant and he was apparently
subsequently transferred from the Respondent to a Club of Country J free of charge.
Notwithstanding the foregoing, the Chamber concluded that the confirmation letter did not
foresee the present situation and that, consequently, the non-fulfilment of the abovementioned conditions does not affect the validity of its content.
16.
Also, the DRC drew its attention to the fact that, on 20 June 2016, i.e. one year and four
months after the registration of the player with the Respondent, the Claimant informed the
player that the confirmation letter did no longer have legal effect as a result of his
subsequent transfer to a third club (cf. point I.14. above).
17.
Taking into account the above, the Chamber unanimously came to the conclusion that the
Claimant clearly and unmistakably waived its right to receive training compensation for the
player.
18.
What is more, the DRC emphasised that, the Respondent, based on the available
documentation at the time when it registered the player, had no reason to pay training
compensation. Consequently, the Chamber decided that the Respondent could not be obliged
to do so at a later stage.
19.
In light of the foregoing, the Chamber decided that the claim of the Claimant had to be
rejected.
20.
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 Annexe A of the Procedural
Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.
21.
In respect of the above, the DRC held that the amount to be taken into consideration in the
present proceedings is EUR 279,166.67 related to the claim of the Claimant. Consequently, the
Chamber concluded that the maximum amount of costs of the proceedings corresponds to
CHF 25,000 (cf. table in Annexe A).
22.
As a result, considering the complexity of the case at hand as well as the degree of success of
the parties, the DRC determined the costs of the current proceedings to the amount of CHF
20,000, which shall be borne by the Claimant.
III.
Decis ion of the Dispute Resolution Cham ber
1.
The claim of the Claimant, Club A, is rejected.
Training compensation for the player, Player E
(Club A, Country B / Club C, Country D)
7
2.
The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the
Claimant, w ithin 30 day s as from the date of notification of the present decision, to FIFA.
Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the
start of the present proceedings, the amount of CHF 15,000 is to be paid to FIFA to the
following bank account with reference to case no. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the motiv ated decis ion (legal remedy):
According to art. 58 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
Chief Legal & Integrity Officer
Enclosed: CAS directives
Training compensation for the player, Player E
(Club A, Country B / Club C, Country D)
8