Training Compensation
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the Dis pute
Res olution Cham ber (DRC)
passed on 22 May 2018,
by Roy Verm eer (Netherlands),
Single Judge of the sub-committee of the DRC,
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 cas e
1.
According to the player passport issued by the Football Federation of Country B, the
player, Player E (hereinafter: player), born on 10 January 2000, was registered with its
affiliated club, Club A (hereinafter: Claimant), as from 27 August 2010 until 9 August
2016 as an amateur.
2.
The football season in Country B runs as from 1 July until 30 June of the following
year.
3.
Equally, according to the player passport issued by the Football Federation of Country
B, the Claimant belonged to the club category 2 at the time the player was registered
with it.
4.
According to the information contained in the Transfer Matching System (TMS), the
player was registered with Club C from country D (hereinafter: Respondent), as a
professional player on 9 August 2016.
5.
Also according to the TMS, the Respondent belonged to the club category 1 at the
time the player was registered with it.
6.
On 21 November 2017, the Claimant lodged a claim against the Respondent before
FIFA asking to be awarded training compensation in connection with the first
professional registration of the player with the Respondent. In particular, the Claimant
requested EUR 115,000, plus interest.
7.
In this context, the Claimant submitted a copy of the Respondent’s correspondence
dated 14 June 2016, which reads as follows: “[the Respondent] hereby confirm that, in
consideration for the registration of [the player], the Club is committed to paying the
requisite amount of Training Compensation due to [the Claimant]. This will be done in
accordance with the period of the Player’s registration with [the Claimant] as
confirmed by the [Football Federation of Country B] and pursuant to the provisions of
Annexe 4 of the FIFA Regulations on the Status and Transfer of Players”. In particular,
the Claimant stated that initially the Respondent confirmed its intention to pay
training compensation, but that, on 3 November 2017, it refused to pay training
compensation on the basis that the Claimant had not offered the player a contract.
8.
In this respect, the Claimant held that art. 6 par. 3 of Annexe 4 of the Regulations on
the Status and Transfer of Players only applies to players who already had a
professional contract during the previous season before leaving the club.
9.
In its reply, the Respondent rejected the Claimant’s claim by stating that the Claimant
did not make the player any offer, either verbally or in writing, of a professional
Training compensation Player E
(Club A, Country B / Club C, Country D)
2
contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations on the Status
and Transfer of Players and that the Claimant does not dispute that fact.
10.
The Respondent argued that, where the player does not currently hold a professional
contract, the 60-day deadline does not apply, but that, in order to retain its
entitlement to training compensation for the first professional registration of the
player, the former club has the obligation to offer him a contract.
II. Cons iderations of the S ingle Judge of the s ub-com m ittee of the DRC
1.
First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber
(hereinafter also referred to Single 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 21 November 2017. Consequently, the 2017 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states
that the Dispute Resolution Chamber shall examine its jurisdiction in light of arts. 22 to
24 of the Regulations on the Status and Transfer of Players (edition 2018). In accordance
with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the
Regulations on the Status and Transfer of Players, the Single Judge is competent to
decide on the present dispute relating to training compensation between clubs
belonging to different associations handled through TMS.
3.
Furthermore, and taking into consideration that the player was registered with the
Respondent on 9 August 2016, the Single Judge analysed which regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2018), the 2016 edition of the said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Single Judge and the applicable regulations having been
established, the Single Judge entered into the substance of the matter. The Single
Judge started by acknowledging the above-mentioned facts of the case as well as the
documentation on file. However, the Single 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. In particular,
the Single Judge recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA may use, within the scope of proceedings pertaining to the
Training compensation Player E
(Club A, Country B / Club C, Country D)
3
application of the Regulations, any documentation or evidence generated or contained
in the Transfer Matching System (TMS).
5.
Having established the above, the Single Judge recalled that the player, born on 10
January 2000, was registered with the Claimant as from 27 August 2010 until 9 August
2016 as an amateur, until his move from the Claimant to the Respondent.
6.
In continuation, the Single Judge took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount of EUR
115,000, on the basis that the player had signed his first professional contract with the
Respondent.
7.
Equally, the Single Judge took note that the Respondent rejected the Claimant’s claim,
stating that the Claimant failed to offer the player a contract in accordance with art. 6
par. 3 of Annexe 4 of the Regulations.
8.
Having said that, the Single Judge took into account that it has remained uncontested
that the player signed his first professional contract with the Respondent.
9.
In this respect, and hereby referring to the rules applicable to training compensation,
the Single Judge recalled that, as established in art. 1 par. 1 in combination with art. 2
par. 1 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 player is registered for
the first time as a professional or when a professional is transferred between clubs of
two different associations before the end of the season of the player’s 23rd birthday.
10. Moreover, the Single 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 Single Judge turned his
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 Single Judge stated that, first and foremost, he 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 Single 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 Single Judge concluded that the
aforementioned provision applies in the case at hand as lex specialis.
Training compensation Player E
(Club A, Country B / Club C, Country D)
4
13. On account of the aforesaid, the Single 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.
14. In this sense, the Single 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.
15. In this context, the Single Judge noted from the Claimant’s statement of claim that it
implicitly acknowledged not having offered the player a contract. Indeed, the Claimant
had not disputed the Respondent’s allegation that the Claimant had not offered a
contract to the player, when it submitted that the Respondent refused to pay training
compensation on such basis.
16. Furthermore, the Single Judge turned his attention to the Claimant’s argument,
according to which the above-mentioned provision does not apply in casu, since it
allegedly only applies to players who already had a professional contract during the
previous season before leaving the club.
17. Considering the position of the Claimant, the Single Judge referred to the decision CAS
2006/A/XXX Club X v/Club Y taken by the Court of Arbitration for Sport (CAS) on 7
February 2007, by means of which the CAS confirmed the existing jurisprudence of the
Dispute Resolution Chamber as far as the applicability of art. 6 par. 3 of Annexe 4 of the
Regulations is concerned. In particular, the CAS corroborated that the first sentence of
art. 6 par. 3 of Annexe 4 of the Regulations does cover both amateur and professional
players (cf. point 8.8 of the aforementioned decision). In fact, according to the
Chamber’s jurisprudence and as confirmed by the CAS in the relevant decision, the
second and third sentence of the provision in question, however, do only apply “to
situations when a professional contract is already in existence, setting out certain
requirements which the training club must meet in order to retain a right to
compensation if a player moves to another club” (cf. point 8.9 of the aforementioned
CAS-decision).
18. Subsequently, the Single Judge specified that according to the jurisprudence of the
Dispute Resolution Chamber, art. 6 par. 3 sent. 1 of Annexe 4 of the Regulations, i.e. the
obligation to offer a professional contract to the player, does not apply to pure
amateur clubs, which are per se not in a position to do so, but does definitively apply to
clubs, which have amateur and professional players.
19. Consequently, the Single Judge concluded that the Claimant had to meet the
prerequisites of the above-mentioned art. 6 par. 3 sent. 1 of Annexe 4 of the
Training compensation Player E
(Club A, Country B / Club C, Country D)
5
Regulations in order to be entitled to training compensation. As a result, the Single
Judge decided to reject the Claimant’s argumentation in this regard.
20. Subsequently, the Single Judge proceeded to analyse whether the Claimant had
justified that it is nevertheless entitled to training compensation for the player’s first
professional registration with the Respondent. In this respect, the Single Judge referred
to the pertinent constant jurisprudence of the Dispute Resolution Chamber, which was
confirmed by the Court of Arbitration for Sport (CAS), and considered that such
justification can, in general, be manifested by a club by displaying a genuine and bona
fide interest in keeping the player in question in its team and by showing a proactive
attitude vis-à-vis the respective player, so as to clearly manifest that the club intends to
count on the player for the future.
21. In this context, the Single Judge, and hereby referring to art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact shall
carry the burden of proof, highlighted that the burden of proof to demonstrate any
justification to receive training compensation notwithstanding not having offered a
contract to the player, i.e. a genuine and bona fide interest of the Claimant in retaining
the services of the player, lies with the Claimant. Equally, the Single Judge recalled that,
according to the well-established jurisprudence, this justification is limited to very
exceptional circumstances and shall be analysed on a case-by-case basis.
22. Having said that, the Single Judge underscored that the Claimant did not submit any
piece of evidence in this respect. As a result, the Single Judge concluded that the
Claimant had not demonstrated a proactive attitude vis-à-vis the player, so as to clearly
manifest that it intended to keep the player.
23. Consequently, the Single Judge decided 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 Single Judge determined that the Claimant is not entitled to receive training
compensation from the Respondent for the training and education of the player.
24. Lastly, the Single 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 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 Annex A of the Procedural Rules, the costs of the
proceedings are to be levied on the basis of the amount in dispute.
25. As a result, and taking into account that the claim of the Claimant has been rejected,
the Single Judge concluded that the Claimant has to bear the costs of the current
proceedings in front of FIFA.
Training compensation Player E
(Club A, Country B / Club C, Country D)
6
26. Considering that the case at hand did not compose any complex factual or legal issues,
the Single Judge determined the costs of the current proceedings to the amount of CHF
3,000.
III.
Decision of the S ingle Judge of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of CHF 3,000 are to be borne by the
Claimant, which amount has already been paid by the Claimant to FIFA as advance of
costs.
*****
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 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 Single Judge of the
sub-committee of the DRC:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Training compensation Player E
(Club A, Country B / Club C, Country D)
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