Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 July 2012
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Alejandro Marón (Argentina), member
on a matter between the club,
Club A, from country M
as Claimant
and the club,
Club M, from country P
as Respondent
regarding a training compensation dispute
related to the transfer of the player B
I. Facts of the case
1.
According to the player’s passport issued by the country M Football Federation, the
country M player, Player B, born in June 1987, was registered in country M, as an
amateur, as follows:
- from 24 September 2000 to 10 September 2008 with Club A (hereinafter:
Claimant) ;
- from 11 September 2008 to 9 February 2009 on loan with Club S
the
2.
According to the country M Football Federation, the relevant sportive seasons ran for the
season 2000/01 until 2003/04 as from 1 September to 30 August of the following year,
and for the seasons 2004/05 until 2008/09 as from 1 July to 30 June of the following year.
3.
On 25 February 2009, the player was registered with the Club M, from country P
(hereinafter: the Respondent), as a professional.
4.
The country P Football Federation confirmed that the Respondent belonged to the
category II (indicative amount of EUR 60,000 within UEFA) during the season when the
player was registered with it.
5.
On 2 July 2009, the Claimant contacted FIFA claiming for the payment of the training
compensation in connection with the first professional contract of the player with the
country P club, the Respondent and requests the payment of EUR 390,000 plus 5%
interest as of 26 March 2009, as well as the reimbursement of advance of costs paid in the
amount of EUR 3,310 plus 5% interests per annum as of the date of payment of the
advance of costs, i.e. as of 18 November 2009.
6.
In its reply, the Respondent alleges that it was not the first time that the player signed a
professional contract since the player had previously been transferred on loan from the
Claimant to Club S, from country M, a first division club, on 11 September 2008. Also, the
information provided in the player’s passport is wrong, since the player has played and
was trained in several other clubs in country B, country U, as well as country M before
joining the Respondent.
7.
The Respondent added that it should be considered as a fourth category club because the
player was allegedly playing with its second team, which competes in the country P’s 3rd
division. There are indeed two different clubs under only one apparent “skin”.
8.
In this respect, the Respondent provided a fax received from the country P League of
Professional Football on 29 September 2009, which states that “[…] in that same sport
season the said player did not participate in official matches at the service of The
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
2/11
Respondent Club M - in competitions organized under the country P League of
Professional Football”.
9.
In addition, the Respondent submitted a letter received from the country P Football
Federation dated 6 October 2009, stating that: “[…] it further informs that, during the
previously mentioned registry period, the player B only participated in the following
official matches for The Respondent Club M “B” […]”.
10. The Respondent further provided a statement of Club S, dated 28 December 2008, which
confirms that the player received a monthly salary of currency of country M 3,000 at the
time he was playing with it.
11. The Respondent also submitted a termination agreement to the employment contract,
dated 17 April 2009, signed by the Respondent, the player and the agent, according to
which:
“Clause Three
1.
The Player agrees to pay Club M the amount of one hundred
and twenty thousand Euros (€120.000,00) if by June 30, 2011, he represents a
club of the country U. […]
Clause Four
[…]
3.
The PLAYER and the AGENT assume, jointly and severally, as primary
payers, the obligation to pay to Club M any and all amounts that may be
required of Club M because of the player’s transfer to Club M, especially
regarding the possible training compensation to be claimed by the player’s
previous clubs.
4.
The PLAYER and the AGENT also state that they jointly undertake to
solve and settle the claim referred to in paragraph 1 of this clause, and send
to Club M, within 15 days, a statement signed by Club A declaring that it has
nothing more to receive or claim from Club M, in any capacity whatsoever.”
12. In its replica, the Claimant explained that the player was transferred to the Club S, from
country M as an amateur since he never signed a contract with the Claimant nor with
Club S and, therefore his employment contract with the country P Club is the first
professional contract signed by the player.
13. Furthermore, the Claimant argued that as to the argument of the Respondent that the
player was playing for its second team which is to be regarded as a category IV club, the
Respondent could have registered him as an amateur instead of offering him a
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
3/11
professional contract if the Respondent was convinced that the player was not good
enough to join its first team.
14. The Claimant also added that despite the termination agreement provided by the
Respondent, the player and his agent are not supposed to take part in the present matter
and that, consequently it is not relevant.
15. Furthermore, the termination agreement shows that the Respondent was fully aware of
its obligation to pay training compensation and that the only goal was to make money
out of the player.
16. Finally, the Respondent maintained its previous position and insisted that it was not the
first professional contract of the player and referred to the official Commentary of art. 10
par. 1 of the Regulations on the Status and the Transfer of Players, according to which
“Only professionals can be loaned. The loan of an amateur is not possible, since the club
loaning the player must be in possession of a valid employment contract at the moment
the player leaves on loan”.
17. The Respondent also added that even though they are not in a position to submit a copy
of the player’s contract with Club S, because no contract was presented by the latter,
they insist on the fact that the player, during his loan, was paid currency of country M
3,000, which appears to be “more than twice the minimum wage in country M”.
Therefore, due to the fact that the player was receiving a salary during his loan, his
transfer to the Respondent should be considered as a “subsequent transfer of a
professional”.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (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 2 July 2009. 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. 18 par. 2 and
3 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 and 2 and art. 22 lit. (d) of the
Regulations on the Status and Transfer of Players (edition 2009 and 2010), the Dispute
Resolution Chamber is competent to decide on the present litigation with an
international dimension concerning the training compensation claimed by the country M
club for the training and education of the player, Player B.
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
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3.
Furthermore, and taking into consideration that the player was registered with the
Respondent on 25 February 2009, 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 2 of the edition 2008 of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations), and considering that the present
claim was lodged on 2 July 2009, the 2008 edition of 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
DRC entered into the substance of the matter. The members of the DRC started by
acknowledging the above-mentioned facts of the case as well as the documentation
contained in the file.
5.
In this respect, the DRC firstly recalled that the player, born in June 1987, was registered
with the Claimant as from 24 September 2000 until 10 September 2008, as an amateur.
6.
Equally, the DRC duly noted that the Claimant is requesting training compensation for
the training and education of the player concerned from the Respondent in the amount
of EUR 390,000 plus 5% interest as of 26 March 2009, as well as the reimbursement of
advance of costs paid in the amount of EUR 3,310 plus 5% interests per annum as of the
date of payment of the advance of costs, i.e. as of 18 November 2009.
7.
On the other hand, the DRC took due note that the Respondent contested its obligation
to pay any training compensation to the Claimant arguing that the player was already
registered as a professional when he was registered for the Club S, from country M and
provided a statement, signed by the country M club concerned and indicating that the
player was receiving a monthly amount of currency of country M 3,000 while rendering
his services to this club. Moreover, the Respondent added that it should be regarded as a
category IV club, since the player was playing with its second team, which competes in
the country P 3rd division. There are indeed two different clubs, but appear only under
one apparent “skin”.
8.
Furthermore, the Chamber noted that the Respondent submitted a termination
agreement dated 17 April 2009 signed by it, the player and the agent, according to which
“Clause Four
[…]
3.
The PLAYER and the AGENT assume, jointly and severally, as primary
payers, the obligation to pay to Club M any and all amounts that may be
required of Club M because of the player’s transfer to Club M, especially
regarding the possible training compensation to be claimed by the player’s
previous clubs.”
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
5/11
9.
In view of the above, the DRC stated that, as established in art. 20 of the Regulations in
combination with art. 1 par. 1 of Annexe 4 and 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 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.
10. In this regard, the Chamber emphasized that, in strict application of the rules pertaining
to training compensation, it is thus the new club of the player who is responsible for the
payment of training compensation to the previous clubs of the player that have in fact
trained the player. The DRC found it vital to underline that the obligation of the new
club towards the previous club(s) in relation to the payment of training compensation
cannot be transferred to a player by means of a private agreement. In other words, the
DRC considered that the agreement that the Respondent had concluded with the player
and the agent in the present matter could not set aside the relevant provisions regarding
training compensation contained in the Regulations.
11. Furthermore, the DRC duly noted that the Respondent contests the Claimant’s
entitlement to receive any training compensation arguing that the player had been
loaned to the Club S, from country M, and that such loan would need to be classified as a
subsequent transfer in the sense of the Regulations, reason for which the transfer of the
player to the Respondent would allegedly not constitute a valid basis for the Claimant to
claim training compensation from the Respondent.
12. In this respect, the Chamber, first of all, considered that it is uncontested by the parties
involved in the present affair that the player was registered for a third club, the Club S,
from country M, from 11 September 2008 until 9 February 2009 on loan, before being
transferred to the Respondent.
13. In view of this, according to art. 10 par. 1 of the Regulations, professionals may be loaned
to another club on the basis of a written agreement between the professional and the
clubs concerned. Moreover, the last sentence of said provision stipulates that any such
loan is subject to the same rules as apply to the transfer of players, including the
provisions on training compensation and the solidarity mechanism.
14. Following the above, the Chamber stressed that one of the aims of the last sentence of
art. 10 par. 1 of the Regulations is to ensure that training clubs which register a player on
a loan basis also benefit from the solidarity mechanism and training compensation,
provided that the relevant prerequisites in the pertinent provisions of the Regulations
are fulfilled. This approach is also in line with the Chamber’s well-established
jurisprudence that all clubs which have in actual fact contributed to the training and
education of a player as from the age of 12 are, in principle, entitled to training
compensation for the timeframe that the player was effectively trained by them.
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
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15. In other words, the Chamber emphasised that the nature of the player’s registration with
a club aiming training compensation, i.e. on a definite or on a temporary basis, is in fact
irrelevant with respect to the question as to whether such club would be entitled to
receive training compensation for the period of time that the player was effectively
trained by that club.
16. In this respect and for the sake of good order, the Chamber deemed it essential to
emphasise that, as to the liability to pay training compensation, the analogy established
in art. 10 par. 1 of the Regulations could not be extended to the case in which players
were loaned to other clubs and thus are not being definitively transferred to a new club.
In other words, the transfer of a player from the club of origin to the club that accepts
the player on loan as well as the return of the player from the club that accepted him on
loan to the club of origin do not constitute a subsequent transfer in the sense of art. 3
par. 1 sent. 3 of Annexe 4 of the Regulations. The Chamber was eager to point out that it
could not have been the intention of the legislator of the relevant regulatory provision
(art. 10 par. 1 of the Regulations) to trigger the consequences of art. 3 par.1 of Annexe 4
of the Regulations on the occasion of a transfer on a loan basis and, thus, potentially
depriving the loan of its essential flexibility and function of providing young players the
opportunity to gain practical experience in another club in order to develop in a positive
way, personally and, eventually, also for the benefit of the player’s new club.
17. Following the above, the Chamber pointed out that the obligation to pay training
compensation thus arises in case a player is definitively transferred from one club to
another club belonging to a different association, but not when he is temporarily
transferred to another club while still being contractually bound to his club of origin (yet,
with the effects of the relevant contract being temporarily suspended), such as a loan.
Hence, the relevant entitlement can only be claimed towards a new club that acquires
the services of a player on a definitive and permanent basis subject to the fulfilment of
the prerequisites established in art. 20 and Annexe 4 of the Regulations.
18. Furthermore, the Chamber noted that the Respondent argued that the player has been
registered as a professional before being transferred with it in country B, country U and
country M.
19. In this regard, the members of the Chamber recalled 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. The members observed that the Respondent had not
submitted any documentation which demonstrated that the player was registered as a
professional in any of the above-mentioned countries and therefore had to reject such
argument.
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
7/11
20. Turning its attention to the Respondent’s final argument to reject the Claimant’s request
for training compensation, since the player had been transferred to its second “B” team
which is allegedly competing in the country P 3rd division and should therefore be
considered, according to the Respondent, as a fourth category club, 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).
21. 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 Claimant has to be calculated taking into
account the category of the country P club, i.e. category 2.
22. In view of the above, the members of the Chamber decided that the Claimant is entitled
to receive training compensation from the Respondent for the transfer of the player.
23. Subsequently and considering art. 3 par. 1 of the Annexe 4 of the Regulations, which
stipulates that the amount payable is calculated on a pro rata basis according to the
period of training that the player spent with each club, the Chamber concluded that the
effective period of time to be considered at the matter at stake corresponds to the
period between 24 September 2000 until 10 September 2008, during which the player
was effectively trained and educated by the Claimant.
24. Turning its attention to the calculation of training compensation, the Chamber referred
to art. 5 par. 1 and 2 of Annexe 4 of the Regulations, which stipulates that as a general
rule, it is necessary to take the costs that would have been incurred by the new club if it
had trained the player itself and thus it is calculated based on the training costs of the
new club multiplied by the number of years of training with the former club.
25. In this respect, the Chamber duly noted that according to all the documents remitted it
can be established that the player had been transferred to the country P club in February
2009, which according to the information received by the country P Football Federation
belonged to category II (indicative amount EUR 60,000 per year).
26. Moreover, the Chamber referred to art. 3 par. 2 of Annexe 4 of the Regulations
according to which the deadline for payment of training compensation is 30 days
following the registration of the professional with the new association and emphasized
that based on the information provided, the player concerned was registered for the
Respondent on 25 February 2009.
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
8/11
27. As a result, the Chamber, taking into consideration all the above as well as art. 5 par. 1
and 2 of Annexe 4 of the Regulations, concluded that the Claimant is entitled to receive
the amount of EUR 379,166 plus 5 % interest per year as from 28 March 2009.
28. Lastly, the DRC 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 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 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.
29. In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 379,166 related to the claim of the
Claimant. Consequently, the DRC concluded that the maximum amount of costs of the
proceedings corresponds to currency of country H 25,000 (cf. table in Annexe A).
30. As a result, and taking into account that the Claimant is the successful party in the
proceeding, the Chamber concluded that the Respondent has to bear the costs of the
current proceedings in front of FIFA.
31. Considering that the case at hand showed a degree of factual difficulty, the DRC
determined the costs of the current proceedings to the amount of currency of country H
25,000.
32. In this respect, the Chamber took into account that the Claimant had paid the advance of
costs in the amount of currency of country H 4,000 in accordance with art. 17 of the
Procedural Rules.
33. In view of all the above, the DRC decided that the Respondent is liable to pay the
amount of EUR 379,166 plus 5% interests p.a. as from 28 March 2009 until the date of
effective payment, to the Claimant for the training and education of the player as well as
the amount of currency of country H 25,000 to cover the cost of the present proceedings.
Thereof, the amount of currency of country H 21,000 has to be paid by the Respondent
to FIFA and the amount of currency of country H 4,000 to the Claimant.
34. Finally, the Chamber concluded its deliberations by deciding that any further claim of
the Claimant is rejected.
******
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
9/11
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club M, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of EUR 379,166 plus
5% interest per year as
from 28 March 2009 until the date of effective payment.
3.
Any further claims lodged by the Claimant are rejected.
4. If the aforementioned sum, plus interest, is not paid within the aforementioned deadline,
the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee, for
consideration and a formal decision.
5.
The final amount of costs of the proceedings, amounting to currency of country H
25,000, are to be paid, within 30 days as from the date of notification of the present
decision as follows:
5.1. Currency of country H 21,000 by the Respondent to FIFA to the following
bank account with reference to case no. XX-XXXXX:
5.2. Currency of country H 4,000 by the Respondent to the Claimant.
6. The Claimant is directed to inform the Respondent directly and immediately of the
account number to which the remittances are to be made in accordance with the above
points 2 and 5.2 and to notify the Dispute Resolution Chamber of every payment
received.
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
10/11
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
Secretary General
Encl.
CAS directives
Training Compensation for the player B, from country M
(Club A, from country M / Club M, from country P)
11/11