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 (did not take part in the deliberations)
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
Club A, from country F
as Claimant
against the club,
Club N, from country E
as Respondent
regarding training compensation
in connection with the player T
I.
Facts of the case
1.
According to the player passport issued by the country F Football Federation, the
player T (hereinafter: the player), born in February 1991, was registered with its
affiliated club, Club A (hereinafter: the Claimant), as an amateur as from 1 July
2005 until 2 August 2006, and as a “non amateur (aspirant)” as from 3 August
2006 until 30 June 2008.
2.
The football season in country F runs from 1 July until 30 June of the following
calendar year.
3.
On 28 July 2008, the player was registered with Club N, from country E
(hereinafter: the Respondent), as a professional. The respective ITC was delivered
on 21 August 2008.
4.
The country F Football Federation confirmed that the Claimant belonged to
category I (indicative amount of EUR 90,000 per year within UEFA) during the
period of training of the player concerned.
5.
The Football Association (The FA) confirmed that the Respondent belonged to
category II (indicative amount of EUR 60,000 per year within UEFA) at the time the
player was registered with it.
6.
On 10 June 2009, the Claimant contacted FIFA requesting the training
compensation for the transfer of the player to the Respondent for an amount of
EUR 270,000.
7.
The Claimant indicated that, on 1 August 2008, by mutual agreement between the
parties (player, his legal representative and the Claimant), the Claimant and the
player terminated the “contrat d’aspirant” by signing an “avenant de résiliation”
(hereinafter: the termination agreement), after which the player was registered as
a professional with the Respondent. According to this agreement “le joueur est
libre de signer avec n’importe quel club de son choix et sous quelque statut que ce
soit sans aucune indemnité de transfert”, (NB: in English): “the player is free to
sign with any club holding whatever status without any transfer compensation”.
8.
In its reply, the Respondent stated that no training compensation would be due,
since the player’s contract with the Claimant was terminated on 30 June 2008 and
since the Claimant did not offer the player a new contract in writing via registered
post at least 60 days before the expiry of the player's current contract in
connection with art. 6 par. 3 of Annex 4 of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations).
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
2
9.
Furthermore, the Respondent provided a letter it received from the Claimant
dated 28 March 2008 in which the Technical Director latter declared “Je soussigné,
Monsieur Mr L, Directeur Technique du Club A, certifie que le joueur T né le
08.02.1991 à pays F est libre de tout engagement envers le Club A au 30.06.2008”,
(NB: in English): “the undersigned, Mister L, Technical Director of Club A, certify
that the player T born in 1991 in country F is free of any obligation towards Club A
as of 30.06.2008”.
10.
In its replica, the Claimant confirmed that the letter sent on 28 March 2008 (cf.
point I.9) shall not mean that the Claimant would waive any rights to obtain
training compensation, as the president’s statement only concerned the relation
between the club and the player. In this regard, the Claimant emphasized that it
never renounced its right to obtain training compensation.
11.
Furthermore, the Claimant asserted that within the frame of his training, the
player did not have the status of “professional player”, in the sense of the
provisions of art. 2 par. 2 of the Regulations. As to the termination agreement
dated 1 August 2008, which was signed between the Claimant and the player,
there is no stipulation that the Claimant would renounce to receive training
compensation.
12.
Moreover, as to the provisions of art. 6 par. 3 of Annexe 4 of the Regulations, the
Claimant considered that these provisions should only apply to players already
having the status of a professional player with their previous club. However, in
casu, the player did not have the status of a professional player with the Claimant,
where he was under a “convention de formation” and only concluded his first
professional contract with the Respondent. Finally, the Claimant emphasised that
the Respondent is a category I club.
13.
In its comments thereto, the Respondent explained that the player received a
salary of EUR 550 per month by the Claimant and that the latter paid EUR 8,000 to
the player’s parents. Therefore, the player is to be considered a professional
player.
14.
Furthermore, the Respondent refers to an email from the player´s father dated 8
June 2010, who refers to “repeated incidents from the director of the training
facilities against the player”, which is why the termination agreement between
the Claimant and the player was not mutual, but that, instead, the Claimant
breached the contract without just cause.
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
3
15.
In addition to that, the Respondent held that the Claimant, by signing the
termination agreement which allegedly stated that “the player is free to sign with
any club of his choice holding whatever status”, waived its right to receive
training compensation, as “the term “status” is only relevant to training
compensation”.
16.
Finally, the Respondent stated that the amount the Claimant would be entitled to,
if at all, is not EUR 270,000 but EUR 180,000, since the training of the player was
between 3 August 2006 and 1 August 2008.
17.
Replying to this, the Claimant pointed out that only the amounts paid to the
player directly should be taken into account, in contrast to the EUR 8,000 which
was paid to the player’s parents. In this regard, the Claimant claims that the
amounts paid to the player were not sufficient for the player to cover his
expenses, which is why he could not be regarded as a professional. Therefore, the
Claimant stressed that the contract signed by the player with the Respondent was
his first contract as a professional.
18.
In addition to that, the Claimant held that it would have been impossible to offer
a contract to the player in accordance with art. 6 par. 3 of Annexe 4 of the
Regulations, as the Claimant and the player had just terminated the contract
amicably. In any case, the Claimant stressed that none of the e-mails between the
player’s father and the Claimant could affect the amicable termination.
19.
Finally, the Claimant insisted to receive EUR 270,000 as training compensation
from the Respondent.
20.
In its response thereto, the Respondent explained that the player’s status is not
relevant for art. 6 par. 3 of Annexe 4 of the Regulations and that it is applicable in
any case. Moreover, the burden of proof that the player was not a professional is
with the Claimant as they are seeking to rely on this exception.
21.
Furthermore, the Respondent refers to the CAS case Club V v Club C (CAS
2006/A/1177) as an example in which not only direct payments to the player have
been taken into account, but also other benefits and payments to establish that
he was a professional.
22.
Finally, the Respondent insists that the termination of the player’s contract with
the Claimant was not amicable, as well as that the Claimant’s interpretation of the
wording of the contract termination, according to which “[the Claimant] only
agreed not to claim transfer compensation” is misconceived and therefore has to
be rejected. According to the Respondent “there is no transfer compensation for a
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
4
17 year old player” which is why all compensations in conjunction with the
transfer shall be deemed to be excluded.
23.
In its final position, the Claimant, besides reiterating its previous arguments,
indicated that the player only received a remuneration of EUR 4,620 (EUR 385 per
month) during the season 2006/2007 and EUR 5,830 (EUR 485 per month) during
the season 2007/2008. These amounts allegedly result from a strict application of
the “Charte du Football Professionnel”, which was mandatory for the Claimant.
24.
In this context, the Claimant held that it was impossible to judge if the
remuneration received by the player was sufficient to cover for his daily expenses
as this would require exact information about what the player needed and spent
on a daily basis. Furthermore, the Claimant alleges that this strong interpretation
of art. 2 par. 2 of the Regulations was not intended by FIFA and was against its
ratio legis, which is why the player should be regarded as an amateur while he
was registered with the Claimant.
25.
In addition to that, the Claimant states again that it was impossible for it to offer
a new contract to the player 60 days before expiry of his current contract since the
latter was terminated by mutual agreement between the player and the Claimant.
In this context, the Claimant stressed again that it was the player and his legal
representatives who urged the Claimant to terminate the player’s contract.
26.
As regards the alleged breach of contract by the Claimant, the latter quotes from
the termination agreement, stating “Club A en accord avec le Joueur T et ses
parents, résilie le contrat d’aspirant à compter du 1er août 2008. Le joueur est
libre de signer avec n’importe quel club de son choix et sous quelque statut que
soit sans aucune indemnité de transfert”, (NB: in English): “Club A in accordance
with the player T and his parents, terminate the “contrat d’aspirant” on the
effective date of 1 August 2008. The player is free to sign with any club of his
choice without any transfer fees falling due”. Given that this termination
agreement was signed by the Claimant, the player and the player’s father acting
as his legal representative, these circumstances shall prove the mutuality of the
termination agreement.
27.
In its final reply, the Respondent held that the provisions of art. 6 par. 3 of Annexe
4 of the Regulations shall in any case apply to this case and reiterated that the
Claimant admittedly never intended to continue the contractual relationship with
the player. On this basis, the Respondent concludes that it was unessential
whether the employment contract between the player and the Claimant had been
terminated by mutual agreement or not.
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
5
28.
Moreover, the Respondent argues that art. 6 par. 3 of Annexe 4 of the Regulations
would equally apply to amateur and professional players, according to the
jurisprudence of CAS (CAS 2006/A/1152 on 7 February 2007).
29.
Nonetheless, the Respondent reiterated its opinion that the player was in fact a
professional while being signed with the Claimant, as the player had signed an
“aspirant contract” which has been regarded as a non-amateur, professional
contract by the DRC (DRC on 27 August 2009, DRC on 4 February 2005) and CAS
(CAS 2006/A/1152 on 7 February 2007, CAS 2004/A/791 on 27 October 2005) in its
past jurisprudence, which is why the Claimant allegedly lots its right to obtain
training compensation (DRC on 15 June 2011).
30.
Finally, the Respondent states that the Claimant was “the driving force behind the
termination of the player’s employment contract”. The fact that the player had
counter-signed the termination agreement should not mean that it was in fact a
mutual decision between the parties.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber first referred to art. 21
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (editions 2008 and 2012). The
present matter was submitted to FIFA on 10 June 2009, thus before the 2012
edition of the aforementioned Rules entered into force on 1 December 2012.
Therefore, the Dispute Resolution Chamber referred to art. 18 par. 2 and 3 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC) (hereinafter: Procedural Rules; edition 2008) and
concluded that the 2008 edition of the Procedural Rules is applicable to the matter
at hand.
2.
The Chairman made reference to art. 24 par. 1 and par. 2 of the regulations on the
Status and Transfer of Players (edition 2012; hereinafter: the Regulations) and
stated that the he would refrain from participating in the deliberations of the
present case due to the fact that the Respondent is affiliated to The FA, the
national association of the country E.
3.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations (edition 2012). In
accordance with art. 24 par. 1 and par. 2 in connection with art. 22 lit. d) of the
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
6
aforementioned Regulations, the Dispute Resolution Chamber shall adjudicate on
disputes between two clubs belonging to different Associations elating to training
compensation.
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, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations (editions 2012, 2010, 2009 and 2008) and, on the other
hand, to the fact that the present claim was lodged on 10 June 2009 and that the
player was transferred to the Respondent on 28 July 2008. In view of the
aforementioned, the Dispute Resolution Chamber concluded that the 2008 edition
of the Regulations for the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging the facts of the case as well as the
documentation contained in the file.
6.
In this respect, the Chamber recalled that the player was born in February 1991
and was registered with the Claimant as from 1 July 2005 until 2 August 2006 as
an amateur and as a “non amateur (aspirant)” as from 3 August 2006 until 30
June 2008.
7.
Furthermore, the Chamber took note that on 10 June 2009, the Claimant
contacted FIFA requesting the training compensation for the transfer of the player
to the Respondent for an amount of EUR 270,000.
8.
Furthermore, the members of the Chamber pointed out that the Claimant stated
that on 1 August 2008, by mutual agreement between the parties (player, his legal
representative and the Claimant), the Claimant and the player terminated the
“contrat d’aspirant” by signing the termination agreement, following which the
player was registered as a professional with the Respondent.
9.
In its reply, the Respondent stated that no training compensation would be due,
since the player’s contract with the Claimant was terminated on 30 June 2008 and
since the Claimant did not offer the player a new contract in writing via registered
post at least 60 days before the expiry of the player's current contract in
connection with art. 6 par. 3 of Annex 4 of the Regulations.
10.
In this respect, the Chamber also took note of the reasoning of the Claimant that
it could not offer a new contract to the player 60 days before expiry of his current
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
7
contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations since the
latter was terminated by mutual agreement between it and the player.
11.
Sequentially, the Chamber stated that, as established in art. 1 par. 1 of Annex 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 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.
12.
Moreover, the Chamber referred, in particular, to art. 6 of Annexe 4 of the
Regulations, which contains special provisions regarding players moving from one
Association to another one inside the territory of the European Union
(EU)/European Economic Area (EEA).
13.
In view of the above, the Chamber stated that, first and foremost, it had to verify
whether art. 6 par. 3 sent. 1 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.
14.
As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is
concerned, the Chamber first of all stated that, as the player moved from country
F to country I in July 2008, i.e. between two EU countries, art. 6 par. 3 of Annex 4
of the Regulations is applicable. This fact does not appear to be contested by any
of the parties. Therefore, the Chamber concluded that the aforementioned
provision applies in the case at hand as lex specialis.
15.
Equally, the Chamber recalled that the Respondent contested the Claimant’s
entitlement to receive any training compensation arguing, inter alia, that the
Claimant did not offer the player a contract in accordance with article 6 par. 3 of
Annexe 4 of the Regulations.
16.
On account of the aforesaid, the Chamber analysed if 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, this being the core issue of the present
dispute.
17.
In this sense, the Chamber 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 (art. 6 par. 3 sent. 2 of Annex 4 of the Regulations).
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
8
18.
To that regard, the Chamber acknowledged that it is uncontested by both parties,
that no professional contract was offered to the player by the Claimant prior to
his transfer to the Respondent.
19.
In this context, the Chamber turned its attention to the Claimant’s argument,
according to which the above-mentioned provision does not apply in casu, since
there was no current contract existing which would have obligated it to offer the
player a new one. Furthermore, the Chamber noted that, according to the
Claimant, the said provision cannot be applied since the contract was mutually
terminated by it and the player. Finally, the Chamber acknowledged that the
Claimant therefore is of the opinion that art. 6 par. 3 of Annexe 4 of the
Regulations does not apply in its case.
20.
Considering the position of the Claimant, the Chamber referred to the decision
CAS 2006/A/1152 Club D v/Club M 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).
21.
Subsequently, the Chamber specified that according to its jurisprudence, 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.
22.
Consequently, the Chamber concluded that the Claimant had to meet the
prerequisites of the above-mentioned art. 6 par. 3 sent. 1 of Annexe 4 of the
Regulations in order to be entitled to training compensation. As a result, the
Chamber decided to reject the Claimant’s argumentation with regard to the
applicability of the relevant provision.
23.
In continuation, the Chamber analysed if the Claimant had complied with art. 6
par. 3 sent. 1 of Annexe 4 of the Regulations in order to be entitled to training
compensation.
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
9
24.
At first, the Dispute Resolution Chamber emphasised again that in accordance
with art. 6 par. 3 sent. 1 of annex 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.
25.
In this context, the Chamber recalled that it is undisputed by the parties that the
Claimant did not offer the player a contract (cf. point II.17. of the aboveestablished considerations). Consequently, the Chamber only had to analyse if the
Claimant could justify that it is nevertheless entitled to training compensation.
26.
In this respect, the Chamber acknowledged that the Claimant explained that the
employment contract between it and the player was terminated mutually which
should justify its omission to propose a contract to the player in accordance with
art. 6 par. 3 of Annexe 4 of the Regulations.
27.
To that regard, the Chamber referred again to the aforementioned decision of the
CAS, according to which such a justification means to show a bona fide and
genuine interest in retaining the player for the future (cf. point 8.16 of the said
CAS-decision). In other words, besides training the player, the club needs to have a
proactive stance towards the player, in order to show him that his services are
appreciated and a further relationship welcomed, despite no contract being (yet)
offered.
28.
In this respect, the Chamber noticed that the Claimant, carrying the burden of
proof (cf. art. 12 par. 3 of the FIFA Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber), did not provide any
indications at all which would show that it had somehow communicated to the
player that it had an interest in retaining him for the future. Consequently, the
Chamber deemed that the Claimant did not provide any documentary evidence
corroborating such a bona fide and genuine interest in retaining the player for
the future. In this respect, the Chamber stressed that the Claimant’s argument that
it is entitled to training compensation, since it indeed trained the player
concerned, does clearly not constitute such a justification. Consequently, the
Chamber decided to reject the Claimant’s argument.
29.
In view of all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the Claimant neither offered the player a contract
nor justified that it is entitled to such compensation although it did not offer any
contract at all to the player.
30.
In light of the foregoing, the Chamber concluded that, by failing to produce
evidence of having met the requirements in accordance with art. 6 par. 3 of
Annexe 4 of the Regulations, or at least by failing to have unambiguously
demonstrated that an offer as stipulated in the just said provision had been made,
the Claimant is not entitled to claim training compensation from the Respondent.
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
10
31.
In view of all the above, the Dispute Resolution Chamber rejected the claim of the
Claimant.
32.
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 Dispute Resolution Chamber in relation to disputes regarding training
compensation, costs in the maximum amount of currency of country H 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 (cf. art. 18 par. 1
of the Procedural Rules).
33.
In respect of the above, and taking into account that the claim of the Claimant has
been rejected, the Chamber concluded that the Claimant has to bear the costs of
the current proceedings in front of FIFA.
34.
According to Annexe A of the Procedural Rules, the costs of the proceedings are
to be levied on the basis of the amount in dispute.
35.
On that basis, the Chamber held that the amount to be taken into consideration
in the present proceedings is EUR 270,000, based on 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.
36.
Considering the particularities of the case at hand as well as the complexity of the
case, and taking into account that the claim of the Claimant has been rejected, the
Chamber determined the costs of the current proceedings to the amount of
currency of country H 16,000, which shall be borne by the Claimant. Given that the
Claimant has already paid the amount of currency of country H 5,000 as advance
of costs at the beginning of the present proceedings, the amount of currency of
country H 11,000 is to be paid to FIFA.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of currency of country H 16,000
are to be paid by the Claimant, Club A, within 30 days as from the date of
notification of the present decision. Given that the Claimant, Club A, has already
paid the amount of currency of country H 5,000 as advance of costs at the
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
11
beginning of the present proceedings, the amount of currency of country H 11,000
is to be paid to FIFA to the following bank account with reference to case nr. XXXXXXX:
****
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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Training compensation in connection with the player T
(Club A, from country F / Club N, from country E
12