Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Jon Newman (USA), member
Rinaldo Martorelli (Brazil), member
Theodoros Giannikos (Greece), member
Essah M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the club,
Club H, from country C
as Claimant
against the club,
Club G, from country I
as Respondent
regarding training compensation in connection with the player Z
I.
Facts of the case
1.
According to the player passport issued by the Football Association of country C
the player Z (hereinafter: the player), born in January 1994, was registered as an
amateur with the country C clubs:
-
Club H
-
Club
as from 18 August 2004 until 17 August
2009;
as from 18 August 2009 until 2 September
2011 (on loan).
2.
The Football Association of country C explained that the player did not return
to Club H (hereinafter: the Claimant) because the loan period was intended to
expire on 30 June 2013. The Claimant added that the player started studying in
Prague and that therefore he went on loan to Club P from “18.8.2009 till
30.6.2013”. Club P, which is also involved in these proceedings, stated that the
loan was made pursuant to art. 8 of the country Z “Regulations of Transfer for
unprofessional player” and that there was no loan agreement concluded.
3.
According to the information contained in the Transfer Matching System (TMS),
the Club G, from country I (hereinafter: the Respondent), on 22 August 2011,
entered a transfer instruction into the TMS by means of which it “engaged the
player out of contract, free of payment” from Club P.
4.
The football seasons in the country Z Republic during the period of time the
player was registered with the Claimant started and ended as follows:
- 2004/2005 from 7 August 2004 until 11 June 2005;
- 2005/2006 from 7 August 2005 until 13 June 2006;
- 2006/2007 from 29 July 2006 until 8 May 2007;
- 2007/2008 from 4 August 2007 until 19 May 2008;
- 2008/2009 from 2 August 2008 until 30 May 2009;
- 2009/2010 from 25 July 2009 until 30 May 2010.
5.
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.
6.
The country I Football Federation confirmed that the player was registered with
the Respondent on 2 September 2011 as a professional.
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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7.
Equally, the country I Football Federation confirmed that the Respondent
belonged to the category I (indicative amount of EUR 90,000 per year) at the
moment the player was registered with it.
8.
On 7 February 2012, the Claimant contacted FIFA claiming the payment of
training compensation from the Respondent, on the ground that the player, on
2 September 2011, had signed his first professional contract with the
Respondent. In particular, the Claimant is claiming EUR 240,000.
9.
In reply to the Claimant’s claim, the Respondent stated that the Claimant had
not offered a contract to the player in accordance with art. 6 par. 3 of Annexe 4
of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) and that, therefore, it is not entitled to receive training
compensation.
10. In light of art. 6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer
of Players, the Claimant provided a letter, apparently sent to the player on 19
May 2011, by means of which it allegedly sent the player a contractual offer.
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 7
February 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.
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 2
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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September 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.
4.
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.
5.
First of all, the DRC took note that the Claimant maintained that it is entitled to
receive training compensation from the Respondent in the amount of EUR
240,000, indicating that the player had signed his first professional contract with
the Respondent before the end of the season of his 23rd birthday.
6.
However, the Chamber noted that the Respondent rebutted the claim of the
Claimant, alleging that the Respondent had not offered a contract to the player
in accordance with art. 6 par. 3 of Annexe 4 of the Regulations.
7.
Equally, the DRC took due note that, according to the Claimant, it had sent a
letter to the player on 19 May 2011, by means of which it allegedly sent the
player a contract offer.
8.
In this respect, and hereby referring to the rules applicable to training
compensation, the Chamber stated that, as established in art. 1 par. 1 of Annexe
4 in combination with art. 2 par. 1 lit. i. 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
before the end of the season of the player’s 23rd birthday. Therefore, the
Chamber concurred that indeed, in principle, training compensation is due
whenever a player is registered for the first time as a professional before the
end of the season of the player’s 23rd birthday.
9.
In continuation, the DRC 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 the country C Republic to country I, i.e. from one association to
another association inside the territory of the EU, said article is applicable.
Hence, the DRC concluded that art. 6 par. 3 of Annexe 4 of the Regulations
applies in the case at hand as lex specialis.
In continuation, the DRC pointed out that the obligation to offer the player a
contract in compliance with art. 6 par. 3 of Annexe 4 of the Regulations would
10.
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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in principle lie with the former club of the player. Consequently, and given the
particularities of the present matter, the DRC held that it had to establish which
club is to be considered the player’s former club.
11.
In this respect, the members of the Chamber recalled that the player was
registered as an amateur with the Claimant as from 18 August 2004 until 17
August 2009 and, thereafter, according to the Football Association of country
C, on loan with Club P as from 18 August 2009 until 2 September 2011, also as
an amateur.
12.
Equally, the DRC recalled that the Football Association of country C had
explained that the player did not return to the Claimant because the loan period
was intended to expire on 30 June 2013, as well as that Club P explained that
there was no loan agreement concluded with the Claimant.
13.
Likewise, the DRC recalled that, according to the information contained in the
Transfer Matching System (TMS), the Respondent, on 22 August 2011, entered
a transfer instruction into the TMS by means of which it “engaged the player
out of contract, free of payment” from Club P.
14.
Finally, the DRC noted that the ITC of the player, uploaded in TMS and issued by
the Football Association of country C, also stipulated that the player was
“formerly a member of Club P.”
15.
Taking into consideration all the aforementioned circumstances, the DRC
concluded that the player was transferred directly from Club P to the
Respondent and that, as a consequence, Club P is to be considered the former
club of the player. Indeed, the Chamber emphasised that the information
contained in TMS together with the absence of a loan agreement and the fact
that the player was at all times registered as an amateur can lead to no other
conclusion than that Club P was the former club of the player. Therefore, the
Chamber concluded that Club P should be considered the player’s former club
in light of art. 6 par. 3 of Annexe 4 of the Regulations.
16.
In this regard, the Chamber reiterated that the obligation to offer the player a
contract in compliance with art. 6 par. 3 of Annexe 4 of the Regulations would
in principle lie with the former club of the player and not with the Claimant,
which, as explained above, it not to be considered the former club of the player
in the sense of art. 6 par. 3 of Annexe 4 of the Regulations. As stated in art. 6
par. 3 of Annexe 4 of the Regulations, said provision is without prejudice to the
right of training compensation of the player’s previous club(s).
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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17.
On account of the above considerations, the Chamber decided that the
Respondent is liable to pay training compensation to the Claimant.
18.
Turning its attention to the calculation of training compensation, the Chamber
referred to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which
stipulate that as a general rule, to calculate the training compensation, it is
necessary to take the costs that would have been incurred by the new club if it
had trained the player itself. Furthermore, the Chamber referred to the
exception contained in the first sentence of art. 5 par. 3 of Annexe 4 of the
Regulations which stipulates that to ensure that training compensation for very
young players is not set at unreasonably high levels, the training costs for players
for the seasons between their 12th and 15th birthdays (i.e. four seasons) shall be
based on the training and education costs of category 4 clubs. Equally, the
Chamber referred to the second sentence of art. 5 par. 3 of Annexe 4 of the
Regulations which states that the aforementioned exception shall not be
applicable where the event giving rise to the right to training compensation
occurs before the end of the season of the player’s 18th birthday.
19.
In this context, the Chamber wished to refer to FIFA Circular no. 1190 dated 20
May 2009 by means of which the members of FIFA were, inter alia, informed
about the amended art. 5 par. 3 of Annexe 4, which came into force on 1
October 2009. Said FIFA Circular indicated that art. 5 par. 3 of Annexe 4 “now
stipulates that where the event giving rise to the right to training compensation
occurs before the end of the season of the player's 18th birthday, the training
costs for players for the seasons between their 12th and 15th birthdays (i.e. four
seasons) shall no longer be based on the training and education costs of
category 4 clubs, but on the category of the new club.”
20.
Against this background, in particular since the aforementioned amendment of
the pertinent article of Annexe 4 of the Regulations only came into force on 1
October 2009, the Chamber found that it cannot apply said amendment to the
years of training and education of the player prior to the coming into force of
the amended art. 5 par. 3 of Annexe 4, i.e. prior to 1 October 2009. In other
words, the Chamber concurred that the said provision could not be applied
retro-actively and, consequently, decided that the second sentence of art. 5 par.
3 of Annexe 4 of the Regulations does not apply to the seasons 2005/2006 to
2008/2009 during which the player was registered with the Claimant.
21.
Having established the above, the DRC referred to art. 6 of Annexe 4 of the
Regulations which 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.
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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22.
In continuation, the Chamber recalled that the player was born on 9 January
1994 and was registered with the Claimant as from 18 August 2004 until 17
August 2009 as an amateur.
23.
Equally, the DRC recalled that the country I Football Federation confirmed that
the player was registered with the Respondent on 2 September 2011 as a
professional.
24.
On account of the above and in accordance with art. 20 in combination with
Annexe 4 of the Regulations, the DRC considered that the Claimant is, thus,
entitled to receive training compensation for the period as from 1 August 2005
until 17 August 2009, i.e. for the full seasons of 2005/2006 until and including
the 2008/2009 season (seasons of the player’s 12th to 15th birthday), and 1 month
of the 2009/2010 season (season of the player’s 16th birthday).
25.
In view of all of the above, the DRC decided to partially accept the claim of the
Claimant and held that the Respondent is liable to pay the amount of EUR
45,000 to the Claimant as training compensation in relation to the registration
of the player with the Respondent.
26.
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 Annexe A of the
Procedural Rules, the costs of the proceedings are to be levied on the basis of
the amount in dispute.
27.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 240,000 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 Annexe A).
28.
As a result, and taking into account the particularities of the present matter, the
complexity of the case as well as the degree of success, the Chamber determined
the costs of the current proceedings to the amount of currency of country H
16,000, of which currency of country H 13,000 shall be borne by the Claimant
and currency of country H 3,000 by the Respondent.
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club H, is partially accepted.
2.
The Respondent, Club G, has to pay to the Claimant the amount of EUR 45,000,
within 30 days as from the date of notification of this decision.
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 the date 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.
Any further claim lodged by the Claimant is rejected.
5.
The final costs of the proceedings in the amount of currency of country H 16,000
are to be paid within 30 days as from the date of notification of the present
decision, as follows:
6
5.1
The amount of currency of country H 3,000 by the Respondent to FIFA
to the following bank account with reference to case nr. wit:
5.2
The amount of currency of country H 13,000 by the Claimant to FIFA.
Given that the Claimant has already paid the amount of currency of
country H 5,000 as advance of costs at the start of the present
proceedings, the amount of currency of country H 8,000 is to be paid to
FIFA to the above-mentioned bank account with reference to case nr.
wit.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 2. above 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
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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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
Training compensation in connection with the player Z
(Club H, from country C / Club G, from country I)
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