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
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
Michele Colucci (Italy), member
Johan van Gaalen (South-Africa), member
on the claim presented by the club,
Club J, from country F
as Claimant
against the club,
Club K, from country S
as Respondent
regarding a training compensation dispute
related to the transfer of the player G
I.
Facts of the case
1.
According to the country F Football Federation, the player G (hereinafter: the
player), born in March 1992, was registered for its affiliated club J (hereinafter:
the Claimant) as follows:
- Club J:
- Club T
as from 5 February 2003 until 31 December 2008 as
an amateur player;
:
as from 15 February 2008 until 31 December 2009 as
an amateur player;
- Club H.:
as from 20 August 2008 until 30 June 2010 as a
professional player;
- Club J:
as from 31 July 2010 until 31 December 2010 as an
amateur player.
2.
On 25 October 2010, an ITC was issued for the player from the country F Football
Federation to the country S Football Association.
3.
According to a written confirmation from the country F Football Association, the
Claimant participated in the “Ligue Réunionnaise de Football”, the sporting
season of which follows the calendar year, i.e. it runs from 1 January until 31
December.
4.
According to the country S Football Association, the player was registered with its
affiliated club, Club K (hereinafter: the Respondent) on 5 November 2010 as an
amateur and on 14 January 2011 as a professional.
5.
According to the country F Football Federation, the Claimant was a category IV
club (indicative amount of EUR 10,000 per year in training costs) for the seasons in
which the player was registered with it.
6.
According to the country S Football Association, the Respondent was a category II
club (indicative amount of EUR 60,000 per year in training costs) at the time the
player was registered with it.
7.
On 23 March 2011, the Claimant contacted FIFA to claim its proportion of training
compensation. In his respect, the Claimant alleged that the player had signed a
professional contract with Club K on 25 December 2010.
Training compensation in connection with the player G
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8.
In particular, the Claimant claimed an amount of EUR 60,000 pertaining to the
season 2010, since the player was re-qualified as an amateur with the Claimant in
2010 and that, consequently, the player’s registration with the Respondent as a
professional triggered the latter’s obligation to pay training compensation.
9.
In its reply, the Respondent rejected the claim and stated that the Claimant had
signed a waiver concerning a potential claim for training compensation.
10.
In support of this, the Respondent submitted a document dated 4 October 2010
and entitled “Attestation” with the following wording:
“The undersigned, members of the bureau of [the Claimant] certify that the club
obliges itself not to claim training compensation if Player G (…) signs a
professional contract with the country S club [the Respondent]”.
11.
The aforementioned document bears the stamp of the Claimant, and it is signed,
inter alia, by Mr R and Mr T.
12.
On a document entitled “Organigramme 2010”, submitted by the Claimant, Mr R
is listed as “Delegate President”, Mr T as “Treasurer” of the Claimant.
13.
In its comments thereto, the Claimant adhered to its claim and rejected the
validity of the aforementioned document. In this respect, the president of the
Claimant (Mr C) stated that he had never been informed about such a waiver and
that he would have opposed it with all his force.
14.
Furthermore, the president of the Claimant added that the signatories of the
waiver did not have the power to sign such a document, and he alleged that they
did so under pressure of the agent of the player.
15.
In its final comments, the Respondent insisted on the validity of the waiver. In
particular, the Respondent pointed out that Mr R and Mr T were listed on the
organigram provided by the Claimant.
16.
Equally, the Respondent held that the player had already been registered as a
professional with the Club H, from country F, and that it would have been the
obligation of the latter to pay training compensation to the Claimant.
17.
Finally, the Respondent also stated that, should the alleged waiver have been
obtained fraudulently, the player’s contract and registration should be void ab
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initio and therefore cancelled without any requirement to pay training
compensation.
18.
As regards the question of whether the Claimant had offered a contract to the
player in accordance with art. 6 par. 3 of Annexe 4 of the Regulations, the
Claimant stated that since the player was an amateur player during the entire
season when he was with the Claimant, it did not have the obligation to offer a
contract “in advance” to the player. The country F Football Federation confirmed
that the Claimant is a purely amateur club.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution 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 on 23 March 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. art. 21 par. 2 and 3 of the Procedural Rules).
2.
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 edition of the Regulations on the Status and
Transfer of Players, and considering that the present claim was lodged on 23 March
2011 and that the player was registered with the Respondent as a professional
player on 14 January 2011, the 2010 edition of said regulations (hereinafter: the
Regulations) was applicable to the matter at hand as to the substance.
3.
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, the Dispute Resolution Chamber
was competent to adjudicate on a dispute relating to training compensation
between two clubs belonging to two different associations.
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 and the
documentation contained in the file.
5.
In this respect, the Chamber took due note that the Claimant lodged a claim in
front of FIFA, claiming its proportion of training compensation from the
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Respondent, based on the alleged registration of the player with the Respondent as
a professional player.
6.
Likewise, the Chamber noted that the Respondent rejected the claim lodged
against it, mainly based on the argumentation that the Claimant had waived its
right to claim training compensation.
7.
Consequently, the Chamber was of the opinion that, before examining whether,
according to the applicable regulations, the Claimant was entitled to receive
training compensation, it had to be established whether the Claimant had waived
its right to claim such compensation.
8.
In this respect, and first of all, the Chamber recalled the basic principle of burden of
proof, according to which a party deriving a right from an alleged fact carried the
respective burden of proof (art. 12 par. 3 of the Procedural Rules). Consequently,
the Chamber was of the opinion that the Respondent had to prove that the
Claimant had waived its right to claim training compensation from the Respondent.
9.
Bearing in mind the aforementioned, the Chamber acknowledged that the
Respondent submitted a document dated 4 October 2010 which was entitled
“Attestation” and which stated that “The undersigned, members of the bureau of
[the Claimant] certify that the club obliges itself not to claim training compensation
if Mr G (…) signs a professional contract with the country S club [the Respondent]”.
10. Equally, the Chamber noted that the aforementioned document bore the stamp of
the Claimant and that it was signed, inter alia, by Mr R and Mr T.
11. Furthermore, the Chamber acknowledged that on a document entitled
“Organigramme 2010”, submitted by the Claimant, Mr R was listed as “Delegate
President” and Mr T as “Treasurer” of the Claimant.
12. In this context, the Chamber equally noted the argumentation of the Claimant and,
in particular, a statement of its president, according to which he was never
informed about such a waiver and that he would have opposed it with all his force.
Likewise, the Chamber noted that the Claimant held that the signatories of the
waiver did not have the power to sign such a document and that they did so under
the pressure of the agent of the player.
13. In view of all of the above, the Chamber deemed it crucial to establish whether the
Respondent could in good faith assume that the Claimant, by means of the
document in question, had validly waived its right to claim training compensation.
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14. In doing so, the Chamber carefully studied the documentation on file and,
eventually, came to the conclusion that the Claimant had, for various reasons,
indeed validly waived its right to claim training compensation from the
Respondent.
15. Firstly, the Chamber was of the opinion that the Respondent could in good faith
assume that a person who is listed on the organisational chart of the Claimant as
“delegate president” can, in principle, be assumed to be have the necessary power
to legally bind the Claimant by signing a declaration on the latter’s behalf.
16. Moreover, the Chamber was eager to point out that the Claimant had to bear the
legal responsibility for actions carried out by its personnel, such as of its “delegate
president” and of its “treasurer”, and that the good faith of third parties, relying
on the relevant persons’ power to validly represent the Claimant, had to be
protected.
17. Therefore, the Chamber was of the opinion that Mr R’s signature on the alleged
waiver was indeed legally binding for the Claimant.
18. Furthermore, the Chamber highlighted that the relevant document indicated that
[the Claimant] “obliges itself not to claim training compensation” in case the player
signs a professional contract with the Respondent. The Chamber was of the
unanimous opinion that such a wording left no scope of discretion and that it was
unambiguously clear and could in good faith be understood as a waiver of the right
to claim training compensation.
19. Therefore, the Chamber was convinced that the document, signed on behalf of the
Claimant and stating the obligation not to claim training compensation from the
Respondent, had to be considered as a legally binding waiver of the Claimant.
Consequently, the Chamber decided that the Respondent had indeed provided
sufficient proof to corroborate its allegation that the Claimant had waived its right
to claim training compensation.
20. As a consequence, the Chamber decided to reject the Claimant’s claim for training
compensation.
21. 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 Dispute Resolution Chamber, costs in the maximum amount of currency
of country H 25’000 are levied. The relevant provision further states that the costs
are to be borne in consideration of the parties’ degree of success in the proceedings
(cf. art. 18 par. 1 of the Procedural Rules).
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22. In respect of the above, 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.
23. 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.
24. On that basis, the Chamber held that the amount to be taken into consideration in
the present proceedings is EUR 60,000, based on the claim of the Claimant.
Consequently, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to currency of country H 10,000.
25. Considering that the case at hand allowed to be dealt with following a reasonable
procedure and did not pose particular factual difficulty, but that it was adjudicated
by the Dispute Resolution Chamber in corpore, the Chamber determined the costs
of the current proceedings to the amount of currency of country H 5,000.
26. In this respect, the Chamber took into account that the Claimant had paid the
advance of costs in the amount of currency of country H 2,000 in accordance with
art. 17 of the Procedural Rules.
27. In view of all of the above, the Chamber concluded that the amount of currency of
country H 3,000 has to be paid by the Claimant to FIFA in order to cover the costs of
the present proceedings.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club J, is rejected.
2.
The final amount of costs of the proceedings in the amount of currency of country
H 5,000 is to be paid by the Claimant to FIFA, currency of country H 2,000 of which
have already been paid as advance of costs. Consequently, the amount of currency
of country H 3,000 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.:
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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
Encl.: CAS directives
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