Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2013,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Alejandro Marón (Argentina), member
on the claim presented by the club,
Club L, from country S
as Claimant
against the club,
Club M, from country F
as Respondent
regarding training compensation in connection with the player V
I.
Facts of the case
1.
According to the player passport issued by the Football Association of country S
the player V (hereinafter: the player), born in February 1990, was registered with
Club L, from country S (hereinafter: the Claimant), as from 8 September 1998
until 30 June 2009 as an amateur, and from 1 July 2009 until “5 October 2011”
as a professional.
2.
The football seasons in country S during the period of time the player was
registered with the Claimant started on 1 July and ended on 30 June of the
following year.
3.
According to the aforementioned player passport, the Claimant belonged to the
category III (indicative amount of EUR 30,000 per year) during the period of time
the player was registered with it.
4.
The Football Federation of country F confirmed that the player was registered
with its affiliated club, Club M (hereinafter: the Respondent), on 5 October 2011
as a professional.
5.
Equally, the Football Federation F confirmed that the Respondent belonged to
the category I (indicative amount of EUR 90,000 per year) at the time the player
was registered with it.
6.
On 17 January 2012, the Claimant contacted FIFA claiming the payment of
training compensation from the Respondent, on the ground that the player, on
5 October 2011, was transferred as a professional from the Claimant to the
Respondent before the end of the season of his 23rd birthday. In particular, the
Claimant is claiming the amount of EUR 400,000.
7.
The Claimant stated that it had signed an employment contract with the player
on 1 February 2011, valid until 30 June 2014. Furthermore, the Claimant and the
player had signed an “agreement on settlement”, dated 31 March 2011, in which
they agreed upon the payment of outstanding salary as well as the
“indemnification for the departure of the player after the end of the season
2010/2011” in the amount of EUR 50,000. The Claimant indicated that the player
had left the club after having played a league match on 12 August 2011 and,
subsequently, the Respondent had paid the amount of EUR 50,000 to the
Claimant.
8.
On 26 June 2012, the Respondent stated in its reply that it assumed that the
training compensation was included in the amount of EUR 50,000 that it had
paid to the Claimant, on 17 August 2011, as indemnification for the early
termination of the player’s contract, in accordance with the abovementioned
settlement agreement concluded between the Claimant and the player. The
Training compensation in connection with the player V
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Respondent argued that no transfer of the player had transpired, but that the
player had terminated his contract with the Claimant in accordance with said
agreement. Therefore, the Respondent is of the opinion that the present
situation is not included in art. 20 and Annexe 4 of the Regulations on the Status
and Transfer of Players and that, thus, no training compensation is due.
9.
On 9 July 2012, the Claimant stated in its replica that it had agreed with the
player upon the compensation for breach of contract in the amount of EUR
50,000, without including training compensation. The Claimant referred to art.
1 par. 2 of Annexe 4 of the Regulations on the Status and Transfer of Players,
according to which training compensation is payable without prejudice to any
obligation to pay compensation for breach of contract. Furthermore, the
Claimant stated that only the two clubs in question can agree on the payment
of training compensation, thereby referring to two decisions of the Dispute
Resolution Chamber. Finally, the Claimant indicated that it had concluded an
employment contract with the player on 24 July 2009, valid until 30 June 2013,
and a second employment contract with more advantageous terms on 1
February 2011, valid until 20 June 2014, therewith showing its interest in
maintaining the services of the player.
10. On 26 March 2013, the Respondent submitted its duplica and reiterated the
arguments as set out in its response.
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 17
January 2012. 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 2008 and 2012 editions 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 2012), the Dispute Resolution Chamber is competent to deal
with the matter at stake relating to training compensation between clubs
belonging to different associations.
3.
At this stage, the Chamber wished to clarify that contrary to the information
contained in FIFA’s letter dated 19 April 2013 by means of which the parties
were informed of the composition of the Chamber, the members Philippe Diallo
and Joaquim Evangelista refrained from participating in the deliberations in the
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case at hand, due to the fact that the member Philippe Diallo has the same
nationality as one of the parties involved in the present proceedings. In order to
comply with the prerequisite of equal representation of club and player
representatives, also the member Joaquim Evangelista refrained from
participating and, thus, the Dispute Resolution Chamber adjudicated the case in
the presence of three members in accordance with art. 24 par. 2 of the
Regulations on the Status and Transfer of Players.
4.
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 2010 and
2012), and considering that the player was registered with the Respondent on 5
October 2011, the 2010 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.
5.
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.
6.
First of all, the DRC acknowledged that it is undisputed between the parties that
the Respondent paid the amount of EUR 50,000 to the Claimant in view of the
early termination of the player’s employment contract with the Claimant.
7.
In continuation, the DRC took note that the Claimant maintained that it is
entitled to receive training compensation from the Respondent in the amount
of EUR 400,000, indicating that the player was transferred as a professional from
the Claimant to the Respondent before the end of the season of his 23 rd
birthday.
8.
Likewise, the DRC took note of the Claimant’s argument that, in addition to the
employment contract signed with the player, it signed an “agreement on
settlement” dated 31 March 2011, in which it agreed with the player upon the
payment of outstanding salary as well as upon the indemnification for the
departure of the player at the end of the 2010/2011 season in the amount of
EUR 50,000, should the player terminate the contract at that time. Said amount
was eventually paid by the Respondent upon the player’s departure from the
Claimant after a match on 12 August 2011.
9.
Furthermore, the DRC noted that the Respondent confirmed the payment of the
indemnification for the early termination of the player’s employment contract
in the amount of EUR 50,000 to the Claimant on 17 August 2011. Equally, the
DRC took due note of the Respondent’s argument that it assumed that the
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training compensation was included in the aforementioned amount and that
the present situation is not included in art. 20 and Annexe 4 of the Regulations.
10.
The DRC went on to consider the Claimant’s submissions in this respect. By doing
so, it took due note that the Claimant interpreted the indemnification clause in
the “agreement on settlement” concluded with the player as not including
training compensation and that, according to the Claimant, only the two clubs
in question can agree on the payment of training compensation. Equally, the
DRC took note that the Claimant referred to art. 1 par. 2 of Annexe 4 of the
Regulations, according to which training compensation is payable without
prejudice to any obligation to pay compensation for breach of contract.
11.
Moreover, the DRC took note of the Claimant’s statement that it had shown its
interest in maintaining the services of the player by concluding an employment
contract on 1 February 2011, valid until 30 June 2014, with more favourable
terms than the player’s previous contract, concluded on 24 July 2009 and valid
until 30 June 2013.
12.
Finally, the DRC noted that the Respondent, in its final submission, reiterated its
aforementioned statements.
13.
After having carefully examined the parties’ positions, taking into consideration
all the aforementioned arguments, the Chamber observed that the parties, in
particular, disputed whether training compensation was included in the sum of
EUR 50,000 that was paid by the Respondent to the Claimant.
14.
In this context and considering that the player was registered with both the
Claimant and the Respondent as a professional, the Chamber first referred to
the rules applicable to training compensation and stated that, as established in
art. 1 par. 1 of Annexe 4 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 23rd birthday, either during or at the end of the player’s contract. Hence,
the Chamber emphasised that the present situation does fall under art. 20 and
Annexe 4 of the Regulations as it concerns the subsequent transfer of a
professional, which transfer took place during the term of the player’s contract.
15.
In this respect, the DRC was eager to point out that, according to the established
jurisprudence of the Chamber, a transfer compensation agreed between two
clubs includes training compensation, unless it has been explicitly excluded or
other elements lead to the conclusion that the training compensation was not
included. Hence, if two parties conclude a transfer agreement providing inter
alia for the respective financial obligations, i.e. the transfer compensation,
training compensation is considered as included in the transfer compensation.
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If the parties wish to stipulate the contrary to the aforementioned, i.e. training
compensation is due in addition to the agreed transfer compensation, they need
to explicitly stipulate it in the transfer agreement.
16.
However, the DRC emphasized that the matter at stake does not concern a
transfer agreement concluded between two clubs, but concerns an “agreement
on settlement” concluded between a club and player which regulates the
relationship between the player and club. The DRC further emphasized that the
relevant “agreement on settlement” contains a contractual clause which is
similar to a “buy-out clause”. Thus, according to the “agreement on settlement”
concluded between the Claimant and the player, the player could “buy himself
out of the contract” by paying a certain amount in exchange for which the club
would renounce to his services for the remaining time of the contract.
17.
In this respect, the DRC held that the training costs are not affected by the
aforementioned type of transaction. Therefore, the DRC concluded that training
compensation was not included in the amount of EUR 50,000 that the
Respondent paid to the Claimant in order to release the player and that thus, in
principle, training compensation is due.
18.
The aforementioned having been established, the Chamber then referred 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). In this regard, the
Chamber indicated that, since the player moved from country S to country F, i.e.
from one association to another inside the territory of the EU, said article is
applicable. Hence, the Chamber concluded that art. 6 par. 3 of Annexe 4 of the
Regulations applies in the case at hand as lex specialis, but established as well
that it did not have to further deliberate on the issue of the contract offer,
because of the particular circumstances of the present matter, i.e. the fact that
the employment contract would run until 30 June 2014 and that the player had
made use of the “buy-out clause” long before the original expiry date.
19.
In view of all the above, taking into consideration all the surrounding
circumstances of this specific matter as well as the documentation presented
during the present proceedings, the DRC concluded that the Claimant is entitled
to receive training compensation from the Respondent.
Turning its attention to the calculation of training compensation, the DRC
referred to art. 5 par. 1, par. 2 and par. 3 of Annexe 4 of the Regulations, which
stipulate, inter alia, that, as a general rule, to calculate the training
compensation due to a player’s former club, it is necessary to take the costs that
would have been incurred by the new club if it had trained the player itself and
that the training costs for players for the seasons between their 12th and 15th
birthdays shall be based on the training and education costs of category 4 clubs.
Furthermore, the DRC referred to art. 6 of Annexe 4 of the Regulations which
20.
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contains special provisions in case a player moves from a lower to a higher
category club or from a higher to a lower category club within the territory of
the EU/EEA.
21.
In continuation, the Chamber recalled that the player was born in February 1990
and was registered with the Claimant as from 8 September 1998 until 30 June
2009 as an amateur and from 1 July 2009 until “5 October 2011” as a
professional.
22.
Equally, the DRC recalled that the Football Federation of country F confirmed
that the player was registered with the Respondent on 5 October 2011 as a
professional.
23.
Furthermore, the DRC recalled that the football seasons in country S during the
period of time the player was registered with the Claimant started on 1 July and
ended on 30 June of the following year.
24.
Therefore, the DRC considered that the Claimant is, thus, entitled to receive
training compensation for the period as from 1 July 2001 until 30 June 2011, i.e.
for the full seasons of 2001/2002 until and including the 2010/2011 season.
25.
Moreover, the DRC took into account that the Claimant belonged to the
category III (indicative amount of EUR 30,000 per year) and the Respondent to
the category I (indicative amount of EUR 90,000 per year).
26.
In view of all of the above, the DRC decided to accept the claim of the Claimant
and held that the Respondent is liable to pay the amount of EUR 400,000 to the
Claimant as training compensation in relation to the registration of the player
with the Respondent.
27.
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 currency of country H 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.
28.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 400,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum amount
of costs of the proceedings corresponds to currency of country H 25,000 (cf. table
in Annex A).
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29.
As a result, considering that the case at hand allowed to be dealt with following
a reasonable procedure, but that the present case did show some particular
factual difficulties, the Chamber determined the costs of the current
proceedings to the amount of currency of country H 15,000, which shall be
borne by the Respondent.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club L, is accepted.
2.
The Respondent, Club M, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 400,000.
3.
In the event that the aforementioned sum is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall due as of expiry of the stipulated
time limit and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
The final costs of the proceedings in the amount of currency of country H 15,000
are to be paid by the Respondent within 30 days as from the date of
notification of the present decision as follows:
4.1. The amount of currency of country H 10,000 has to be paid to FIFA to
the following bank account with reference to case no. wit:
4.2. The amount of currency of country H 5,000 has to be paid to the
Claimant.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances under points 2. and 4.2. above are
to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Note relating to the motivated decision (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
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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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