Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 12 May 2015,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the club,
Club A, country B,
as Claimant
against the club,
Club C, country D,
as Respondent
regarding training compensation in connection
with the Player E
I.
Facts of the case
1.
According to the player passport issued by the Football Association of country B, the
player from country F, Player E (hereinafter: the player), born on 12 November 1992,
was registered with its affiliated Club A (hereinafter: the Claimant) as from 1 October
2013 until 18 February 2014 as an amateur, having been previously registered with the
club from country G, Club H (hereinafter: Club H).
2.
According to the information contained in the Transfer Matching System (TMS), the
player was registered with Club H as an amateur. According to the International
Transfer Certificate (ITC) issued on 14 March 2013 by the Football Association of
country F in favour of the Football Association of country G, the player was previously
registered with the club from country F, Club I (hereinafter: Club I), as a “nonamateur”. According to the information contained on file and to TMS, the player’s
career developed as follows: Club I (country F, non-amateur)-> Club H (Germany,
amateur)-> Claimant (country B, amateur)-> Club C (country D, professional).
3.
According to the documentation contained in TMS, the player and the Claimant
signed a professional employment contract on 31 August 2013, uploaded in the
context of the Claimant’s request for the player’s ITC via the Football Association of
country B to the Football Association of country F. This transfer instruction, however,
was cancelled, upon the objection of the Football Association of country F since the
ITC had been issued in favour of the Football Association of country G on 14 March
2013.
4.
The Football Association of country B confirmed that the Claimant belonged to the
category IV (indicative amount of EUR 10,000 per year within UEFA) at the time the
player was registered with said club.
5.
The Football Association of country B confirmed that the football season in country B
at the time the player was registered with the Claimant ran from “14 September 2013
to 12 April 2014”.
6.
According to the information contained in TMS, the player was registered with the
club from country D, Club C (hereinafter: the Respondent) as a professional player on
19 February 2014.
7.
According to the information contained in TMS, at the time the player was registered
with the Respondent, said club belonged to the category III (indicative amount of EUR
30,000 per year within UEFA).
8.
On 20 March 2014, the Claimant contacted FIFA asking for its proportion of training
compensation for the first professional registration of the player with the Respondent.
In particular, the Claimant requested EUR 75,000, stating that it is a category II club
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
2
since it played in the second division of the league of country B and that the
Respondent is a category I since it played in the first league of country D.
9.
In this respect, the Claimant held that while the player was registered for it he only
“offered his services to [the Claimant], in exchange of fully covering his living and/or
other expenses” and that it had entered into a verbal agreement with the Respondent
for the transfer of the player.
10. In its reply, the Respondent rejected the claim of the Claimant by stating that the
player’s agent, at the moment of the signature of the employment contract, ensured
that he had not received an offer to enter into a contract with the Claimant and that,
thus, no training compensation is due.
11. Furthermore, the Respondent referred to art. 2 par. 2 i) of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) and, in this regard, stated
that it is clear from the documents on file that the player and the Claimant had some
kind of contractual arrangements. In particular, the Respondent referred to the
Claimant’s correspondence dated 6 September 2013 remitted to the Football
Association of country B, which reads as follows: “we hereby confirm you that the
contract which has been signed with our Football Club and [the player] has been
cancelled and has no longer valid”.
12. In this context, the Respondent referred to art. 6 par. 3 of Annexe 4 of the Regulations
and emphasized that the Claimant neither offered a contract to the player of at least
an equivalent value to the current contract nor showed interest in keeping him. On
the contrary, the Claimant “refused” the contractual relationship with the player. As a
result, the Respondent held that the aforementioned correspondence should be
understood as a termination of the employment contract without just cause and that,
consequently, no training compensation shall be payable.
13. Furthermore, the Respondent denied having entered into any verbal agreement with
the Claimant for the transfer of the player. In particular, the Respondent held that it
has neither been in contact with any representatives of the Claimant nor undertaken
to pay training compensation. In this respect, the Respondent pointed out that the
Claimant did not provide any evidence supporting its statement.
14. In addition, the Respondent held that at the time the player was transferred, it
belonged to category III (indicative amount of EUR 30,000 per year) and that the
player was only registered for the Claimant for a third of the season. In light of the
foregoing, the Respondent is of the opinion that the Claimant would be entitled to
receive at the maximum EUR 10,000 for the first professional registration of the player,
if at all.
15. Lastly, the Respondent requested that the Claimant pay all the expenses incurred in
connection with the present matter.
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
3
16. On 9 March 2015, after the closure of the investigation-phase, the Claimant rejected
the Respondent’s arguments by stating that it had officially offered a non-amateur
contract to the player. In this respect, however, the Claimant held that the player had
received an offer from the Respondent and that the player rejected the Claimant’s
offer.
17. In light of the above, the Claimant asserted that it had entered into negotiations with
the Respondent regarding the payable training compensation for the player, which
were allegedly concluded with an oral agreement.
18. Furthermore, the Claimant stated that, following the player’s rejection of its offer as
well as the alleged oral agreement with the Respondent regarding the training
compensation payable to it, it had issued a confirmation letter in order to allow the
player to sign a contract with the Respondent. Consequently, the Claimant stressed
that the contract with the player was not terminated without just cause and that,
thus, it is entitled to receive training compensation from the Respondent.
19. In light of the foregoing, the Claimant amended its claim and requested the amount
of EUR 30,000 and that the Respondent be condemned to pay the procedural costs.
20. In spite of having been invited to provide its comments on such correspondence, the
Respondent did not further reply to the claim of the Claimant.
II. Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect, he
took note that the present matter was submitted to FIFA on 20 March 2014.
Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules)
are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 and art. 22 lit. d) of the
Regulations on the Status and Transfer of Players (edition 2012, 2014 and 2015) he
is competent to deal with the matter at stake relating to training compensation
between clubs belonging to different associations.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 19 February 2014, the DRC judge 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
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
4
Players (editions 2012, 2014 and 2015), the 2012 version of the said Regulations is
applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC judge
started by acknowledging the facts of the case as well as the documentation
contained in the file. However, the DRC judge emphasized that in the following
considerations he will refer only to the facts, arguments and documentary evidence
which he considered pertinent for the assessment of the matter at hand.
5.
First of all, the DRC judge recalled that the player, born on 12 November 1992, was
registered with the Claimant as from 1 October 2013 until 18 February 2014, until his
move from the Claimant to the Respondent.
6.
In continuation, the DRC judge took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount of EUR
75,000, since the player was registered as a professional for the first time with a club
belonging to a different association before the end of the season of the player’s 23rd
birthday.
7.
Equally, the DRC judge took note that the Respondent rejected the Claimant’s claim
for the payment of training compensation, essentially stating that not only did the
Claimant failed to offer a contract to the player, but that the Claimant even cancelled
the existing employment contract with the player. The DRC judge further noted that
the Respondent consequently argued that in light of art. 6 par. 3 of Annexe 4 of the
Regulations, the Claimant lost its entitlement to training compensation.
8.
In this regard, the DRC judge further noted that after the parties were informed of the
closure of the investigation phase, the Claimant argued that it had offered a nonamateur contract to the player. However, the DRC judge also noted that the Claimant
did not provide any evidence of said argumentation. In this context, the DRC judge
deemed it necessary to first address the issue of the aforementioned unsolicited
position received from the Claimant. In this regard, after duly having taken note of
the exchange of correspondence and documents between the parties, the DRC judge
concluded that the Claimant’s right to be heard had been duly respected on the basis
of and after one exchange of correspondence only (cf. art. 9 par. 3 of the Procedural
Rules). Consequently, the DRC judge agreed that it could not back the Claimant’s
assertions received after the investigation phase was concluded.
9.
In this respect, and hereby referring to the rules applicable to training compensation,
the DRC judge stated that, as established in art. 1 par. 1 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.
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
5
10. Moreover, the DRC judge 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). More specifically, the DRC judge turned its
attention to art. 6 par. 3 of Annexe 4 which stipulates, inter alia, that the former club
must offer the player a contract in writing via registered post at least 60 days before
the expiry of his current contract.
11. In view of the above, the DRC judge stated that, first and foremost, it 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 the
said provision in order to be entitled to training compensation.
12. As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is concerned,
the DRC judge stated that, as the player moved from a club in country B to a club in
country D, i.e. moved from one Association to another Association inside the territory
of the EU, the said article is applicable. Therefore, the DRC judge concluded that the
aforementioned provision applies in the case at hand as lex specialis.
13. On account of the above, the DRC judge analysed whether or not the Claimant had
complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations in order
to be entitled to training compensation. In this context, the Chamber recalled that the
player, despite being registered as an amateur, appeared to be already contractually
bound with the Claimant prior to his move to the Respondent.
14. In this sense, the DRC judge emphasized 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. The former club must offer the player a contract in
writing via registered mail at least 60 days before the expiry of his current contract (cf.
art. 6 par. 3 sent. 2 of Annexe 4 of the Regulations).
15. In this context, the DRC judge referred to art. 12 par. 3 of the Procedural Rules, which
stipulates that any party claiming a right on the basis of an alleged fact shall carry the
burden of proof, and, in this respect, he pointed out that the Claimant failed to
provide any proof that a contract offer in accordance with art. 6 par. 3 of Annexe 4 of
the Regulations was made.
16. Consequently, the DRC judge formed the belief that the aforementioned
considerations could lead to no other conclusion than that the Claimant had not
complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations. In view
of the foregoing, the DRC judge determined that the Claimant is not entitled to
receive training compensation from the Respondent for the training and education of
the player.
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
6
17. Furthermore, and for the sake of completeness, the DRC judge pointed out that the
Claimant had not made any efforts to justify that it would be entitled to training
compensation in accordance with art. 6 par. 3 sent. 1 in fine of Annexe 4 of the
Regulations, which, according to the well-established jurisprudence of the DRC judge,
is limited to very exceptional circumstances. In this respect, the DRC judge deemed it
important to underline that the Claimant had not brought forward the occurrence of
a very exceptional circumstance which, in the case at hand, had stopped the Claimant
from offering the player a contract i.e. the DRC judge had no reason to believe that
very exceptional circumstances had prevented the Claimant from offering the player a
contract 60 days before the expiry of his employment contract.
18. Finally, and taking into account the above, the members of the DRC judge did not
deem it necessary to enter into the substance of the other arguments brought up 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.
19. In view of all the above, the DRC judge rejected the Claimant’s claim for training
compensation.
20. Lastly, the DRC judge 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 judge relating to disputes regarding training compensation and the solidarity
mechanism, costs in the maximum amount of CHF 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, 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.
21. In respect of the above, the DRC judge held that the amount to be taken into
consideration in the present proceedings is EUR 75,000 related to the claim of the
Claimant. Consequently, the DRC judge concluded that the maximum amount of costs
of the proceedings corresponds to CHF 10,000 (cf. table in Annexe A).
22. As a result, and taking into account that the claim of the Claimant has been rejected,
the DRC judge concluded that the Claimant has to bear the costs of the current
proceedings in front of FIFA.
23. Considering that the case at hand did not compose any complex factual or legal issues,
the DRC judge determined the costs of the current proceedings to the amount of CHF
5,000.
III. Decision of the DRC judge
1.
The claim of the Claimant, Club A, is rejected.
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
7
2.
The final costs of the proceedings in the amount of CHF 5,000 are 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. XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
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 DRC judge:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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