Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 May 2014,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club,
Club A, from country A
as Claimant
against the club,
Club P, from country M
as Respondent
regarding training compensation in connection
with the player G
I.
Facts of the case
1.
According to the player passport issued by the Football Association of country A,
the player G (hereinafter: the player), born on 3 May 1991, was registered with its
affiliated Club A (hereinafter: the Claimant), as an amateur player as from 9 March
2005 until 18 March 2009.
2.
Equally, according to a confirmation and the player passport issued by the Football
Association of country A, the player was registered as an amateur with the Club S
from country A, as of 18 March 2009, during the 2009 season.
3.
The sporting season in country A runs as follows:
a) for amateurs (under 20 years of age) from January to December of the
relevant year; and
b) for amateurs (more than 20 years of age) and professionals from 1 July until
30 June of the following year.
4.
According to a written confirmation of the Football Federation of country M, the
player was registered as a professional with its affiliated Club P sub 20
(hereinafter: “P Sub 20”), on 14 January 2010. Moreover, it informed that the
Respondent Club P Sub 20 belonged to category IV (indicative amount of USD
2,000 per year) and Club P (hereinafter: the Respondent) belonged to category II
(indicative amount of USD 40,000 per year) at the time of the registration of the
player.
5.
According to the player passport issued by the Football Federation of country M, it
can be noted the following:
Club
P
Category
Sub 20
Status
Professional
Season
2009-2010
6.
On 24 February 2011, the Claimant contacted FIFA claiming the payment of
training compensation for an amount of USD 124,000 plus interests in connection
with the first professional registration of the player with the Respondent.
7.
The Respondent submitted its response, rejecting the Claimant’s claim and stated
that, according to the Regulations on the Status and Transfer of Players, no
training compensation is due since the player was registered with Club P Sub 20,
which allegedly belonged to category IV.
8.
Upon FIFA’s request for clarification, the Football Federation of country M
informed that Club P Sub 20 belongs to the Respondent, which is affiliated to the
Football Federation of country M and plays in the first professional division.
Moreover, it stated that Club P Sub 20 does not participate in the first professional
division, only in the sub 20 tournaments; therefore, the Football Federation of
country M categorizes it as category IV.
9.
Furthermore, the Respondent, with its unsolicited correspondence dated 12
September 2011, provided a copy of the employment contract concluded between
Training compensation for the player G
(Club A, from country A / Club P, from country M)
2
the Respondent and the player and asserted that the player was hired by Club P
Sub 20 and received the monthly salary in the of amount of 1,644. Therefore, it
deems that the player was clearly an amateur, since such amount does not cover
basic life expenses.
10.
The Claimant rejected the Respondent’s arguments. In particular, the Claimant
asserted that the Respondent admitted that it had signed a professional
employment contract with the player and, in this respect, the Claimant stated that
the salary agreed upon in said employment contract exceeded the minimum salary
set forth in the country M legislation. As a result, the Claimant concluded that the
Respondent did not present any evidence that the relevant monthly salary paid to
the player does not cover basic life expenses. Therefore, the Claimant deems that
the player indeed signed an employment contract with the Respondent as
professional and the amount of training compensation is due to the Claimant.
11.
Moreover, the Claimant stated that the Respondent pretended, in order to avoid
paying training compensation, that the latter and Club P Sub 20 are two different
entities when in reality they are the same.
12.
The Claimant lastly assessed that in the Transfer Matching System (TMS) it is
written that the player was hired by the Respondent and not by Club P Sub 20.
Moreover, it is well known that the players whose transfer is made and registered
at TMS are professional players.
13.
The Respondent reiterated its position and requested the rejection of the
Claimant’s claim. In particular, it stated that FIFA divided the players participating
in organised football into two categories (i.e. amateurs and professionals) and that
the referred definition is based upon two main criteria: the written contract and
the remuneration of the player, which have to be cumulatively fulfilled in order to
classify a player. Therefore, in Club P’s opinion, the player might not be considered
professional since the remuneration he received from Club P Sub 20 (i.e.1,644 per
month) was less than the expenses effectively incurred and actually, it is also the
minimum salary established by the country M Government.
14.
Finally, the Respondent stated that the Football Federation of country M classified
Club P Sub 20 as a category club IV. Therefore, 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
Chamber or DRC) 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 24 February 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).
Training compensation for the player G
(Club A, from country A / Club P, from country M)
3
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 decide
on the present litigation concerning 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 par. 2 of the Regulations on the Status and Transfer of
Players (editions 2012, 2010 and 2009), and considering that the player was
registered with the Respondent on 14 January 2010, the 2009 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at 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. In this
respect, the members of the Chamber started by acknowledging the abovementioned facts as well as the arguments and the documentation submitted by
the parties. However, the Chamber emphasized that in the following
consideration it will refer only to the facts, arguments and documentary
evidence which it considered pertinent for the assessment of the matter at
hand.
5.
First of all, the Chamber recalled that the player was born on 3 May 1991 and
was registered with the Claimant as from 9 March 2005 until 18 March 2009.
Equally, the Chamber took note that the player was registered as an amateur
with Club M as from 18 March 2009, during the season 2009.
6.
In continuation, the Chamber observed that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount
of USD 124,000, as the player was transferred to a club belonging to a different
association before the end of the season of his 23rd birthday.
7.
Equally, the Chamber took note that the Respondent rejected the Claimant’s
claim for the payment of training compensation, stating that the player was
registered with Club P Sub 20 team, which according to the Football Federation
of country M belonged to category IV, as well as that when registering the
player he did not acquire the professional status.
8.
In this respect, the Chamber 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
Training compensation for the player G
(Club A, from country A / Club P, from country M)
4
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.
9.
As a result, the DRC firstly deemed it important to establish whether the player
held the amateur status or acquired the professional status when he was
registered with the Respondent. In this regard, first of all, the members of the
DRC took note that the Football Federation of country M confirmed that the
player was registered with its affiliated club as professional (cf. point I.4). In
continuation and considering that the Respondent held that the player
remained amateur when registered with it, the Chamber proceeded to examine
the employment contract that the Respondent had submitted in the present
proceedings.
10. In this regard, the members of the Chamber duly noted that the contract
contained a provision stipulating that the player would render his services to
the Respondent as a professional player and that, according to said contract, the
player was entitled to receive a monthly gross allowance of 1,644 from the
Respondent.
11. In this context, the Chamber referred to art. 2 par. 2 of the Regulations, which
stipulates that “A professional is a player who has a written contract with a club
and is paid more for his footballing activity than the expenses he effectively
incurs. All other players are considered to be amateurs”.
12. Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations
as well as the amounts payable to the player on the basis of the
aforementioned contract, the members of the Chamber unanimously concluded
that the player was in fact paid more for his footballing activity than the
expenses he effectively incurred as well as that the player was paid the
minimum salary established in country M.
13. Equally, the Chamber highlighted that the second element contained in said art.
2 par. 2 of the Regulations, i.e. the existence of a written contract, is met.
14. In addition, the Chamber referred to the general legal principle of the burden
of proof and highlighted that, according to art. 12 par. 3 of the Procedural
Rules, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof. In this context, the Respondent had failed to provide with
documentary evidence demonstrating that the player remained amateur when
registered with it.
Training compensation for the player G
(Club A, from country A / Club P, from country M)
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15. On account of all the above, the Chamber concurred that the player was
registered as a professional with the Respondent.
16. Subsequently, the DRC deemed appropriate to recall that, according art. 2 par. 2
lit. ii) of Annexe 4 of the Regulations, training compensation is not due if the
player is transferred to a category IV club.
17. In this respect, the Chamber duly noted that according to the Football
Federation of country M the player was registered with Club P Sub 20 on 14
January 2010, which according to the information received belonged to
category 4 in the season 2009/2010.
18. However, and in this context, the Chamber also considered the arguments of
the country M club that the player had been registered for Club P Sub 20, which
belonged to category IV since it plays in the sub 20 tournaments, and not with
Club P, which belonged to category II since it participated in the first
professional division. Equally, the DRC duly noted that the Football Federation
of country M confirmed that Club P Sub 20 belongs to Club P.
19. In this respect, the Chamber emphasized that various provisions related to the
training compensation always refer to the term “club”, and clearly establish
that it is the reasonability of the new club to pay the training compensation
which is calculated based on the categories into which all associations divide
their clubs in accordance with the clubs’ financial investments. Equally, the
Chamber recalled that the training costs are established on a confederation
basis for each category of clubs (emphasis added).
20. Congruously, the Chamber reiterated that the clubs have to be allocated into
four categories and not the teams of the clubs. Therefore, the Chamber
concluded that the relevant training compensation due to the country A club
has to be calculated taking into account the category of the country M club, i.e.
category II.
21. In view of all the above, in accordance with art. 5 par. 1 and par. 2 of Annexe 4
of the Regulations, the Dispute Resolution Chamber concluded that the
Claimant is entitled to receive the amount of USD 93,666 from the Respondent
for the training and education of the player and, thus, the claim is partially
accepted.
22. Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2
of Annexe 4 of the Regulations, the Chamber decided that the Respondent has
to pay interest at 5% p.a. over the amount payable as training compensation as
of as of 24 February 2011 until the date of effective payment.
Training compensation for the player G
(Club A, from country A / Club P, from country M)
6
23. Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in conjunction
with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings
before the DRC relating to disputes regarding training compensation and the
solidarity mechanism, costs in the maximum amount of CHF 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 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.
24. In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is USD 124,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum amount
of costs of the proceedings corresponds to CHF 15,000 (cf. table in Annexe A pf
the Procedural Rules).
25. As a result, and taking into account that the claim of the Claimant has been
partially accepted as well as that the case at hand did not compose any complex
factual or legal issues, the Chamber concluded that both the Claimant and the
Respondent have to bear the costs of the current proceedings in front of FIFA in
the amount of CHF 10,000.
*****
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club P, has to pay to the Claimant, within 30 days as of the
date of notification of the present decision, the amount of USD 93,666 plus 5%
interest p.a. on said amount as of 24 February 2011 until the date of effective
payment.
3.
If the aforementioned sum plus interest is not paid within the stated time limit,
the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The final costs of the proceedings in the amount of CHF 10,000 are to be paid,
within 30 days as of the date of notification of the present decision, as follows:
5.1. The amount of CHF 3,000 has to be paid by the Claimant to FIFA. Given
that the Claimant has already paid said amount as advance of costs at the
start of the present proceedings, the Claimant does not have to pay any
additional amount.
Training compensation for the player G
(Club A, from country A / Club P, from country M)
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5.2. The amount of CHF 7,000 has to be paid by the Respondent to FIFA to the
following bank account with reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
The Claimant 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.
*****
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
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
Training compensation for the player G
(Club A, from country A / Club P, from country M)
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Secretary General
Enclosed: CAS directives
Training compensation for the player G
(Club A, from country A / Club P, from country M)
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