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 I, from country B
as Claimant
against the club
Club K, from country T
as Respondent
regarding a dispute relating to training compensation in connection with
the transfer of the player S
I.
Facts of the case
1.
The player S (hereinafter: the player) was born in August 1983.
2.
As per the player passport issued by the country B Football Confederation, the
player was registered within said Confederation as from July 1999 as follows:
a)
as an amateur:
- 8 July 1999 – 20 December 2001
Club I
- 21 December 2001 – 20 January 2002
“No record found”
b)
as a professional:
- 21 January 2002 – 4 August 2002
- 5 August 2002 – 5 November 2002
- 6 November 2002 – 11 January 2004
- 12 January 2004 – 31 December 2004
- 1 January 2005 – 5 September 2005
- 6 September 2005 – 31 December 2005
Club I
loaned to Club E
Club I
loaned to Club S
Club E
loaned to Club J
- 1 January 2006 – 9 August 2006
Club I
- 9 August 2006 – 10 August 2006
Club O
3.
Upon specific request, the City P Football Federation informed FIFA, via the
country B Football Federation, that “Club I” is a civil association, affiliated to the
City P Football Federation but that, in May 2000, said affiliate hired the
commercial association “Club I Sociedade Civil de Futebol Ltda” to
administrate all the club’s activities related to football, thus substituting “Club I”
in its duties and charges with the City P Football Federation. Finally, in November
2006, due to the above-mentioned partnership’s dissolution, the duties and
charges with the City P Football Federation were “abdicated” by “Club I Civil de
Futebol Ltda” and once again re-established in favour of “Club I”.
4.
The country B sporting season follows the calendar year.
2
Training compensation for the player S
(Club I, from country B / Club K, from country T)
5.
According to the country T Football Federation, the player signed a professional
contract with its affiliated club, Club K (hereinafter: the Respondent), on 7 July
2006, and the issuance of his international transfer certificate (hereinafter: ITC)
was requested from the country B Football Federation on 11 July 2006. The
country T Football Federation maintained having received the relevant ITC from
the country B Football Federation on 18 July 2006 and having registered the
player for the Respondent on 4 August 2006.
6.
According to the country T Football Federation, the Respondent is classified as a
category 2 club (indicative amount of EUR 60,000 within UEFA).
7.
On 11 May 2007, the country B club, Club I (hereinafter: the Claimant), lodged a
claim before FIFA requesting that the Respondent be ordered to pay to it training
compensation in the total amount of EUR 250,685 for the period of time the
country B club trained and educated the player.
8.
In this regard, the Claimant explained that on 9 August 2006, the country B
Football Federation had recognised the termination of the employment contract
between the player and the Claimant, in accordance with a preliminary judicial
order issued by an ordinary country B labour court on 8 August 2006 upon request
of the player.
9.
Thereafter, according to the player passport issued by the country b Football
Federation, on 10 August 2006, the player had been transferred to the
Respondent, without any compensation having been paid by the Respondent to
the Claimant.
10.
Furthermore, the Claimant maintained that prior to the player’s transfer to the
Respondent and even prior to his release from the Claimant by the ordinary
country B labour court, the player had already been training in country T in the
facilities of the Respondent.
11.
The Claimant presented in this respect extracts from the Respondent’s webpage,
declaring, inter alia, that the player would arrive to the Respondent
at the end of June 2006.
12.
According to the Claimant, these circumstances demonstrated that in fact the
Respondent had induced the player to breach his contract with the Claimant.
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Training compensation for the player S
(Club I, from country B / Club K, from country T)
13.
Moreover, in order to avoid its obligation to pay training compensation as well as
the imposition of sporting sanctions according to the respective FIFA provisions
due to its inducement to a breach of contract, the Respondent had arranged for
the registration of the player with another country B club, in casu with Club O,
immediately prior to his transfer to country T.
14.
Consequently, the Claimant summarised that the player had his contract with the
Claimant terminated by an ordinary country B labour court on 8 August 2006, was
registered one day later with Club O, and again only one day later the country B
Football Federation apparently issued his ITC in favour of the Respondent. The
player himself had however allegedly already been training with the country T
club since 24 June 2006.
15.
Therefore, according to the Claimant, when the player concluded his agreement
with Club O, he had absolutely no intention of complying with it, as he was
already living in country T and training with the Respondent.
16.
The Claimant concluded that the Respondent had only registered the player with
Club O for a single day in order to prevent the Claimant from receiving its duly
earned training compensation. Such simulation would allow the Respondent,
instead of paying a considerable amount of training compensation to the
Claimant, to pay merely a derisory amount to Club O. Consequently, the Claimant
held that, since the registration of the player with Club O constituted an attempt
to circumvent the FIFA Regulations regarding training compensation, for the
purposes of the distribution of training compensation in the present matter, the
player’s registration with Club O shall be disregarded, particularly in view of the
dangerous precedent which would be created if such behaviour was admitted.
Therefore, the Claimant’s right to receive training compensation from the
Respondent for the training of the player shall not be curtailed by his one-day
registration for Club O.
17.
In its statement of defence, the Respondent firstly held that the player had been
transferred, upon the cancellation of his contract with the Claimant by the country
B labour court, to Club O and then to the Respondent in compliance with
applicable regulations.
18.
Moreover, the Respondent held that, whereas the Claimant alleges that the player
had been training with the Respondent since 24 June 2006, the contract between
the player and the latter club had only been signed on 7 July 2006. The player had
only participated in matches with the Respondent upon receipt of his ITC
by the country T Football Federation[, i.e. on 18 July 2006].
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Training compensation for the player S
(Club I, from country B / Club K, from country T)
19.
The Respondent also decidedly refuted any allegations that it had induced the
player to cancel his contract with the Claimant or that it had used Club O to
circumvent the rules governing the payment of training compensation. In any
event, the Respondent emphasised that such claims had not been proven by any
documentary evidence.
20.
The Respondent concluded that, in the event of the transfer of a professional,
training compensation shall only be paid to the player’s last club. Consequently,
only Club O is entitled to receive training compensation from the Respondent.
Moreover, the latter club stated that training compensation was only due if a
player had been transferred against payment of transfer compensation. As this
was not the case in the present matter, the Respondent deemed it had no
obligation to pay training compensation to the Claimant. Finally, in view of the
circumstances of the player’s departure from country B, the Respondent lent
emphasis to art. 2 par. 2 of Annex 4 of the Regulations for the Status and Transfer
of Players, stipulating that training compensation is, inter alia, not due if the
former club terminates the player’s contract without just cause. On account of all
the foregoing, the Respondent requested that the Claimant’s complaint be
rejected.
*****
5
Training compensation for the player S
(Club I, from country B / Club K, from country T)
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at stake. In this respect, it took note that the present matter
was submitted to FIFA on 11 May 2007. Consequently, the previous edition
(i.e. the edition 2005) 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 in hand (cf. art. 21 par. 2 and 3 of the
2008 edition of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of arts. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2010). In accordance with art. 24 par. 1 and
art. 22 lit. d) of the Regulations on the Status and Transfer of Players, the Dispute
Resolution Chamber is competent to decide on the present litigation relating to
training compensation between two clubs belonging to different associations.
3.
Furthermore, taking into consideration that the player was registered with his
new club, i.e. the Respondent – as confirmed by the country T Football Federation
– on 4 August 2006, and considering that the present claim was lodged on 11 May
2007, 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
2010, 2009 and 2008), the previous version of the Regulations for the Status and
Transfer of Players (i.e. the edition 2005; hereinafter: the Regulations) is applicable
to the matter in hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
5.
The members of the Chamber started by acknowledging the aforementioned facts
of the case as well as the documentation contained in the file. In particular, the
Chamber took due note that the Claimant requested training compensation from
the Respondent amounting to EUR 250,685. In particular, the Claimant
emphasised that irrespective from the fact that the player in question had already
been previously registered as a professional with another country B club, in casu
with Club O, it is entitled to receive the claimed training compensation from the
Respondent, since the players’ previous registration was aimed to circumvent the
Respondent’s obligation to pay training compensation.
6
Training compensation for the player S
(Club I, from country B / Club K, from country T)
6.
On the other hand, the deciding authority took note that the Respondent rejected
the complaint of the Claimant emphasising that the player had already been
registered as a professional with the country B club, Club O, and that only the
latter club would be entitled to receive training compensation from the
Respondent. The Respondent also refuted the allegation of the Claimant,
according to which the Respondent had induced the player to cancel his contract
with the Claimant or that it had used Club O to circumvent the rules governing
the payment of training compensation. As a result, the Respondent underlined
that it does not owe any amount at all to the Claimant since the matter at stake
has to be considered a subsequent transfer of a professional player.
7.
In this context, the Chamber recalled that, as a general rule, training
compensation for a player’s training and education is, in principle, due when a
player is registered as a Professional for the first time and in case of a subsequent
transfer of a Professional, Training Compensation will only be owed to his former
club for the time he was effectively trained by that club (cf. art. 3 par. 1 of
Annex 4 to the Regulations).
8.
Furthermore, in view of the diametrically opposed positions of the parties and the
contradictory information provided by both national associations, i.e. the country
b Football Federation and the country T Football Federation, the Chamber
deemed it necessary to examine the very specific circumstances of the matter at
stake in order to establish the player’s career history, and, a fortiori, to establish
whether the Claimant was entitled to receive any training compensation from the
Respondent. In other words, the DRC had to establish whether the Respondent
tried to circumvent FIFA’s applicable rules on training compensation so as to avoid
paying any such compensation for the player to the Claimant.
9.
First of all, the members of the Chamber turned their attention to the information
provided by the country B Football Federation and the country T Football
Federation throughout the present proceedings regarding the player’s registration
with Club O and the Respondent.
10.
It is undisputed that the player had signed an employment contract with the
Respondent on 7 July 2006.
11.
It is further not contested that the player had been transferred definitively from
the country B Football Federation to the country T Football Federation based on
an “IRTC” dated 18 July 2006, following an ITC request made by the country T
Football Federation on 11 July 2006.
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Training compensation for the player S
(Club I, from country B / Club K, from country T)
12.
13.
It is also undisputed that the player had been registered for the first time for the
Respondent on 4 August 2006.
And finally, it is not contested by the Respondent that the player was never
physically present at the premises of Club O.
14.
However, it is expressly disputed by the Claimant that the player was registered
for the Respondent on 10 August 2006, after having been registered for Club O
for one day from 9 until 10 August 2006.
15.
In view of the foregoing, the DRC highlighted the rather imprecise, even
contradictory information provided by the country B Football Federation and the
country T Football Federation regarding the player’s registration(s) with Club O
and with the Respondent.
16.
In continuation, the Chamber turned its attention to the Claimant’s position,
according to which the player had, upon his specific request, asked his contract
with the Claimant to be terminated by an ordinary country B labour court on
8 August 2006 and was registered one day later with Club O. The player had,
however, allegedly already been training with the Respondent since 24 June 2006,
fact that was not contested by the Respondent, and had already signed an
employment contract with the latter club on 7 July 2006. The Chamber equally
noted that the Claimant provided FIFA with several internet releases from the
Respondent’s website, which mentioned that the player had been transferred to
them at the end of June 2006 and gone to the pre-season camp at the end of July
2007. Once again, the Chamber reiterated that the presence of the player at the
Respondent was not contested by the latter club.
17.
Subsequently, the members of the Chamber took note once again of the
Claimant’s allegation that the player’s registration with the Club O, from country
B, was made only in order to circumvent its entitlement to receive training
compensation from the Respondent.
18.
In this regard, the Chamber turned its attention to the argumentation provided by
the Respondent regarding the registration of the player with Club O and noted
that the Respondent had remained rather vague, even contradictory, with regard
to the fact that the player was supposed to be registered with Club O for one day,
while he was already in country T since the end of June 2006, and had even signed
an employment contract there one month prior to said registration. In addition,
and recalling the general legal principle of the burden of proof contained in
art. 12 par. 3 of the Procedural Rules, the DRC noted that the Respondent never
tried to demonstrate with convincing documentary evidence that the player had
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Training compensation for the player S
(Club I, from country B / Club K, from country T)
ever been at the premises of Club O, not to speak about having participated to
training or even played matches for said club.
19.
In view of the foregoing, the DRC was eager to underline the fact that it could not
acquire the certainty that the player had indeed played for Club O. On the
contrary, the Chamber was of the opinion that Club O did not appear to have
benefited from the training efforts invested by the Claimant and that, in reality,
the player had always played for the Respondent since his registration already on
4 August 2006, i.e. 5 days prior to his alleged registration for Club O on
9 August 2006.
20.
In view of all the above-mentioned considerations, the Dispute Resolution
Chamber was unanimously of the opinion to be in the presence of clear attempt
to circumvent the Regulations relating to training compensation.
21.
In fact, after having been registered for several years with the Claimant, the player
was registered for one day only with a new country B club, i.e. Club O, before
being transferred to the Respondent.
22.
Equally, the Dispute Resolution Chamber deemed it important to emphasise once
again that the player has never physically been at Club O, that the employment
contract with the country T club was signed, the ITC requested and the player
registered for the country T club prior to the registration for the country B club,
Club O.
23.
Therefore, the Chamber concluded that the registration with Club O should be
disregarded and training compensation is due to the Claimant by the Respondent.
24.
As a final remark, and for the sake of good order, the Chamber turned its
attention to the Respondent’s last argument, according to which the Claimant
unilaterally terminated the employment contract with the player.
25.
In this respect, the Chamber recalled that on 9 August 2006, the country B Football
Federation had recognised the termination of the employment contract between
the player and the Claimant, in accordance with a preliminary judicial order issued
by an ordinary country B labour court on 8 August 2006 upon request of the
player, but that this judicial order does not refer to any fault or breach of contract
committed by the Claimant. What is more, said order was suspended by the same
judge eight days later.
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Training compensation for the player S
(Club I, from country B / Club K, from country T)
26.
In view of the above, the Chamber concluded that it had rather been the player
who terminated the relevant employment contract, and that therefore the
Respondent’s argument had also to be rejected.
27.
In continuation, the Dispute Resolution Chamber recalled that the player, born in
August 1983, was registered with the Claimant from 8 July 1999 until at the latest
7 July 2006 (date of the signature of the player’s contract with the Respondent)
first as an amateur and then as a professional, and that the latter club is
requesting training compensation in an amount of EUR 250,685 for the training
and education of the player incurred during six months of the season 1999, during
the full seasons 2000 and 2001, during eight months of the season 2002, as well as
during the complete season 2003.
28.
Turning its attention to the calculation of training compensation, the Chamber
referred to art. 3 par. 1 of Annex 4 to the Regulations, which stipulates that the
amount payable is calculated on a pro rata basis according to the period of
training that the player spent with the training club, as well as to art. 5 par. 1 and
2 of Annex 4 to the Regulations, which stipulates that as a general rule, it is
necessary to take the costs that would have been incurred by the new club if it
had trained the player itself and thus it is calculated based on the training costs of
the new club multiplied by the number of years of training with the former club.
29.
In continuation, the Chamber took due note that according to the information
provided by the country T Football Federation, the Respondent was a category 2
club at the time the player was registered for it during the season 2006/2007.
Consequently, the Chamber took into account that the indicative training costs for
a category 2 club and member of a national association affiliated to the “Union
des associations européennes de football” (UEFA) amount to EUR 60,000 (cf.
circular nr. 1085 dated 11 April 2007).
30.
Consequently and taking into account all the above-mentioned elements as well
as art. 5 par. 3 of Annex 4 to the Regulations, the Dispute Resolution Chamber
decided the Claimant was entitled to receive training compensation from the
Respondent in an amount of EUR 250,000 and hence, the complaint of the
Claimant, Club I, is partially accepted.
*****
10
Training compensation for the player S
(Club I, from country B / Club K, from country T)
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club I, is partially accepted.
2.
The Respondent, Club K, has to pay to the Claimant the amount of EUR 250,000
within 30 days as from the date of notification of this decision.
3.
Any further request filed by the Claimant is rejected.
4.
If the aforementioned amount is not paid within the above-mentioned deadline,
an interest rate of 5% per year will apply as of expiry of the fixed time limit and
the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and decision.
5.
The Claimant, Club I, is directed to inform the Respondent immediately and
directly of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
*****
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Training compensation for the player S
(Club I, from country B / Club K, from country T)
Note relating to the motivated decision (legal remedy):
According to article 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
Encl.
CAS directives
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Training compensation for the player S
(Club I, from country B / Club K, from country T)