Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club,
Club N, from country S
as Claimant
against the club,
Club O, from country T
as Respondent
regarding training compensation in connection with the player J
I.
Facts of the case
1.
According to the player passport issued by the country S Football Association
the player, J (hereinafter: player), was registered with Club N, from country S
(hereinafter: Claimant), as from 18 June 2002 until 14 July 2009 as an amateur.
2.
The football seasons in country S during the period of time the player was
registered with the Claimant started and ended as follows:
-
2002/2003:
2003/2004:
2004/2005:
2005/2006:
2006/2007:
2007/2008:
2008/2009:
2009/2010:
as from 13 July 2002 until 17 June 2003
as from 19 July 2003 until 8 June 2004
as from 8 August 2004 until 19 June 2005
as from 23 July 2005 until 13 May 2006
as from 15 July 2006 until 30 May 2007
as from 8 July 2007 until 14 June 2008
as from 19 July 2008 until 30 May 2009
as from 11 July 2009 until 29 May 2010
3.
According to the aforementioned player passport, the Claimant belonged to
the club category III during the period of time that the player was registered
with the Claimant.
4.
According to an official confirmation of the Football Association of country T
the player was registered with its affiliated club, Club O (hereinafter:
Respondent), on 21 July 2009 as an amateur and as from 28 May 2010 as a
professional.
5.
The Football Association of country T further confirmed that the Respondent
belonged to the club category III.
6.
On 30 June 2011, the Claimant lodged a claim in front of FIFA claiming the
payment of training compensation from the Respondent on the basis that the
player had signed his first professional contract with the Respondent. In
particular, the Claimant is claiming the amount of EUR 220,000 plus 5%
interest as well as legal expenses.
7.
The Claimant indicated that after various negotiations with the Respondent as
to the amount payable as training compensation, the Respondent had sent to
the Claimant an “Agreement for Settlement of Entitlement” offering the
Claimant the amount of EUR 82,984 in order to “settle the dispute”. The
Claimant enclosed a copy of said agreement, the translated version of which
stipulated that, amongst others, the Respondent “acknowledges the rights of
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the transferring club arising due to the compensation for the costs associated
with the training of the player identified as “training compensation” in the
regulations of FIFA/UEFA applicable to international transfers”. The Claimant
pointed out that it did not sign the agreement “reminding [the Respondent]
on current valid legislation”.
8.
In this context, the Claimant argued that the amount due to it is EUR 220,000,
since, in accordance with FIFA Circular nr. 769, both the Claimant as well as the
Respondent should have been allocated in the club category II. It is the
Claimant’s opinion that the country S Football Association and the Football
Association of country T wrongfully allocated the Claimant and the
Respondent in the category III. In support of its statement, the Claimant
referred to FIFA Circular nr. 1249, which, inter alia, stipulates that “In such a
case of manifest discrepancy, the DRC normally applies the training categories
in accordance with the guidelines, despite the fact that the member
association concerned had indicated a different categorisation”. In this respect,
the Claimant stated that it was evident that both clubs should have been
allocated in the category II and that, thus, the amount payable as training
compensation amounts to EUR 220,000.
9.
In reply to the claim lodged against it, the Respondent stated that “we
naturally do agree that [the Claimant] is entitled to receive the training
compensation for the professional football player (…)” and that “the matter
of dispute between the parties is just the high of the costs of this
compensation”. The Respondent emphasized that it belonged to the category
III and that, therefore, the amount due is merely EUR 130,000; an amount it
had already offered to pay to the Claimant. In this respect, the Respondent
added that according to FIFA Circular nr. 1223, the Football Association of
country T was required to allocate its affiliated clubs in the categories III and IV
only.
10.
After having asked the Claimant for its comments pertaining to art. 6 par. 3 of
Annexe 4 of the Regulations on the Status and Transfer of Players, the
Claimant firstly indicated that the Respondent had, on more than one
occasion, explicitly recognized that the Claimant was entitled to training
compensation.
11.
In continuation, the Claimant, and hereby underlining that the player was an
amateur when registered with it, referred to the decision passed by the Court
of Arbitration for Sport (CAS) in CAS 200X/X/XXX Club P vs Club Q and stated
that the player had always been considered by the Claimant as a great
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prospect for the future, something that, in the Claimant’s view, was proven by
the following facts:
a) The player had reached an “excellent footballing level” and had played
for the under -15, -16, -17 and -18 team of the national team of country
S;
b) In order to gain experience, the player had been given the opportunity
to accustom to the level of the Claimant’s 1st team and played in the
2008/2009 season in the last 4 games of the season;
c) In March 2009, the player had “firstly moved up” to the first team of
the Claimant, shortly after turning 18;
d) Between March 2009 and May 2009 several negotiations had taken
place between the player and the Claimant in order to negotiate the
conclusion of an employment contract and the player was offered a
contract on more than one occasion. The Claimant indicated that on “25
June 2011 [2009]”, it had offered the last contract to the player,
however, the player decided not to accept it.
12.
In view of all the above, the Claimant argued that it had shown a genuine
intention to retain the services of the player for the upcoming seasons and
that it, therefore, is entitled to receive training compensation from the
Respondent.
13.
Additionally, the Claimant referred to the decision of the CAS in CAS
200X/X/XXX Club R vs Club S and stated that it would be contra sensu to
suppose that the Claimant was not interested in keeping the player at the
club, i.e. it would be contra sensu to think that the Claimant would not like to
secure the services of the player who was an under-18 player for the country S
national team and who was considered as one of the most talented players of
his age in the club.
14.
Finally, the Claimant reiterated its earlier position on the categorisation of
both teams and, therefore, maintained its claim for the amount of EUR
220,000.
15.
In its duplica, the Respondent stated that there was no evidence whatsoever
on file which confirmed that the contract mentioned under point I./11.d) was
indeed offered to the player nor was there any evidence submitted that
several negotiations took place between the player and the Claimant. In
addition, the Respondent asserted that the contract allegedly offered to the
player was falsified and only created for the purpose of the current dispute.
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Moreover, the Respondent stressed that there was no evidence that the
contract was offered to the player via registered post.
16.
Finally, the Respondent refuted that it had recognised its debt towards the
Claimant stating that “the original negotiations between the Respondent and
the Claimant were not of the same character as this dispute” and “On the
grounds of the Agreement for Settlement of Entitlement, the Respondent just
aimed to suggest to the Claimant some kind of fair proposal. The Respondent
did not examined in details the regulations and legal rules of FIFA while
proposing that Agreement”.
17.
Therefore, the Respondent concluded that no training compensation is due to
the Claimant.
II.
Considerations of the Dispute Resolution Chamber
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 30 June 2011. 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 2010) 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 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 2 of the Regulations on the Status and Transfer of
Players (editions 2009 and 2010), and considering that the player was
registered with the Respondent on 21 July 2009 as an amateur and on 28 May
2010 as a professional as well as that the present claim was lodged on 30 June
2011, the 2009 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
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4.
The competence of the Chamber 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 above-mentioned
facts of the case as well as the documentation on file.
5.
First of all, the Chamber recalled that the player, born on 29 January 1991, was
registered with the Claimant as from 18 June 2002 until 14 July 2009 as an
amateur. Equally, the Chamber noted that the player was registered with the
Respondent on 21 July 2009 as an amateur and on 28 May 2010 as a
professional.
6.
In continuation, the Chamber took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount
of EUR 220,000, since the player had signed his first professional contract with
the Respondent.
7.
The Chamber observed as well that, after having been invited to submit its
comments in relation to art. 6 par. 3 of Annexe 4 of the Regulations, the
Claimant stressed that the Respondent had already recognized that the
Claimant was entitled to training compensation. Moreover, the Claimant
indicated that it had always seen the player as a great prospect for the future,
that it had shown a genuine intention to secure the player’s services for the
future and that it would be contra sensu to suppose that the Claimant did not
want to secure the services of the player. In this context, the Claimant referred
to the awards rendered by the CAS in CAS 200X/X/XXX Club P vs Club Q and
CAS 200X/X/XXXX Club R vs Club S.
8.
Equally, the Chamber took note that, initially, the Respondent only disputed
the amount of training compensation payable to the Claimant, but, at a later
stage during the proceedings, rejected the Claimant’s claim for training
compensation in full, arguing that the Claimant had not offered the player a
contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations.
9.
In this context, and hereby referring to the rules applicable to training
compensation, the Chamber stated 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 player is registered for the
first time as a professional before the end of the season of the player’s 23 rd
birthday.
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10.
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).
11.
In view of the above, the Chamber stated that it first 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 said provision in order to be entitled to receive training compensation
from the Respondent.
12.
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 country S to
country T, 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.
13.
In this context, the Chamber recalled 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.
14.
At this stage of the considerations, the Chamber found it important to recall
that in the decision rendered by the CAS in CAS 200X/X/XXX Club P vs Club P,
the Panel considered that “if a club wants to retain the right to training
compensation in respect of one of its amateur players, it must “justify” it
under Article 6 para. 3 by taking a proactive attitude vis-à-vis that individual
player so as to clearly show that the club still counts on him for the future
season(s). Accordingly, the training club must either offer the concerned player
a professional contract or, short of that, it must show a bona fide and genuine
interest in retaining him for the future. In other words, a training club not
immediately offering a professional contract to one of its trainees can still
justify its entitlement to training compensation if it proves that it desires to
keep the player on the club’s roster or in its youth academy, with a view to
keeping alive the option of granting him a professional contract at a later
stage”.
15.
With due consideration to the above, the DRC pointed out that, thus, it had to
examine whether the Claimant had complied with art. 6 par. 3 of Annexe 4 of
the Regulations, and, in this regard, examined all the documentation provided
in the present matter as well as the arguments raised by both the Claimant
and the Respondent.
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16.
First of all, the Chamber observed that the Claimant argued that it had always
considered the player as a great prospect for the future. In order to prove the
aforesaid, the Claimant indicated that it had, on more than one occasion,
offered a contract to the player, however, the player had decided not to
accept such contract offers. Taking into account the aforementioned, the
Chamber came, after a thorough examination of the documentation on file
and in consideration of the particular circumstances surrounding the present
matter, to the conclusion that it was not established to the satisfaction of the
Chamber that the Claimant had in fact offered the player a contract. In this
context, the Chamber stressed that the only document submitted for the
consideration of the Chamber with regard to the offer of a new contract was a
copy of one of the alleged employment contracts offered, i.e. no evidence
whatsoever was made available to the Chamber which would indicate that the
player had indeed received said contract offers.
17.
As a consequence, whilst bearing in mind art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the Chamber concluded that, in the absence of
any credible evidence to the contrary and taking into account the
particularities of this case, the Claimant had not unequivocally proven that it
had indeed offered the player a contract in accordance with art. 6 par. 3 of
Annexe 4 of the Regulations.
18.
Having established the above, the Chamber continued and analysed the
statements of the Claimant in relation to the genuine interest it had allegedly
shown to further retain the services of the player and its statement that it had
always considered the player as a great prospect for the future. The Chamber
understood that the Claimant asserted that, based on these statements, it
could justify that it was anyway entitled to training compensation in
accordance with art. 6 par. 3 sent. 1 in fine of Annexe 4 of the Regulations,
which is, according to the well-established jurisprudence of the Chamber,
limited to very exceptional circumstances.
19.
In the framework of analyzing as to whether or not the Claimant could justify
that it is entitled to training compensation, the Chamber noted that the
Claimant indicated that the player had played for the u-15, u-16, u-17 and u-18
national teams of country S, that the player had been given the opportunity to
accustom to the level of the 1st team and that the player played in the last 4
games of the 2008/2009 season. Furthermore, the Claimant indicated that,
between March 2009 and May 2009, several negotiations took place between
the player and the club.
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20.
As to the negotiations that allegedly took place between March 2009 and May
2009, the Chamber noted that no documentary evidence had been provided by
the Claimant which corroborated that indeed such negotiations had been
taking place. The Chamber referred once more to art. 12 par. 3 of the
Procedural Rules and considered that the statements in relation to the alleged
negotiations could, in the absence of any convincing documentary evidence,
not be considered as proof to unambiguously establish that the Claimant had
shown a bona fide and genuine interest in retaining the player for the future.
21.
Turning its attention to the statements in relation to the player’s participation
in the first team of the Claimant and the national youth teams of country S,
the Chamber recognized that this indeed may indicate that the player was
considered as a talent by the Claimant, however, it does not, as such, prove
that the Claimant had a bona fide and genuine interest in retaining the player
for the future, i.e. it does not prove that the Claimant had a pro-active stance
towards the player. In this context and in connection with the Claimant’s
argument that it would be “contra sensu” to suppose that the Claimant did
not want to secure the services of the player, it seems to the Chamber that the
Claimant is of the opinion that the mere and sole fact that a player is a
talented player would release a club of its obligation to offer such player a
contract, or alternatively, would release a club of showing its bona fide and
genuine interest in retaining the player’s services for the future. The Chamber
concurred that such interpretation is manifestly incorrect as it is clearly
incompatible with the ratio behind art. 6 par. 3 of Annexe 4 of the
Regulations.
22.
In light of the foregoing, the Chamber concluded that the Claimant had not
been able to justify that it was entitled to training compensation in accordance
with art. 6 par. 3 sent. 1 in fine of Annexe 4 of the Regulations, and that, thus,
the Claimant is not entitled to receive training compensation from the
Respondent.
23.
For the sake of completeness and as to the argument of the Claimant that the
Respondent had already recognized that training compensation was due to
the Claimant, the DRC emphasized that, inside the territory of the EU/EEA, the
general rule is that an employment contract has to be offered to the player.
The fact that the Respondent had recognized at a certain stage that the
Claimant was entitled to training compensation does, in the Chamber’s
unanimous opinion, not annul the application of this fundamental principle
contained in art. 6 of Annexe 4 of the Regulations.
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24.
Finally, in view of the above considerations, the members of the Chamber did
not deem it necessary to enter into the substance of the other arguments
raised 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.
25.
In view of all the above, the Chamber decided to reject the claim of the
Claimant.
26.
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
the proceedings before the Dispute Resolution Chamber relating to disputes
regarding training compensation and the solidarity mechanism costs in the
maximum amount of currency of country U 25,000 are levied. The costs are to
be borne in consideration of the parties’ degree of success in the proceedings.
27.
In this respect, the Chamber reiterated that the claim of the Claimant is
rejected. Therefore, the Claimant has to bear the costs of the current
proceedings in front of FIFA.
28.
According to Annexe A of the Procedural Rules, the costs of the proceedings
are to be levied on the basis of the amount in dispute.
29.
The amount in dispute to be taken into consideration in the present
proceedings amounts to EUR 220,000 related to the claim of the Claimant.
Therefore, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to currency of country U 25,000 (cf. table in Annexe A
of the Procedural Rules).
30.
Considering that the case at hand allowed to be dealt with following a
reasonable procedure, that the present case showed particular factual
difficulty as well as specific legal complexity, the Chamber determined the final
amount of costs of the current proceedings to the amount of currency of
country U 15,000.
31.
In view of all of the above, the Chamber concluded that the amount of
currency of country U 15,000 has to be paid by the Claimant to cover the costs
of the present proceedings, currency of country U 5,000 of which have already
been paid as advance of costs.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club N, is rejected.
2.
The final amount of costs of the proceedings in the amount of currency of
country U 15,000 is to be paid by the Claimant to FIFA, currency of country U
5,000 of which have already been paid as advance of costs. Consequently, the
amount of currency of country U 10,000 is to be paid by the Claimant within 30
days of notification of the present decision, to FIFA to the following bank
account with reference to case no. rov XX-XXXXX:
*****
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Note relating to the motivated decision (legal remedy):
According to art. 63 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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