Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 July 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
John Bramhall (England), member
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
Player E
I.
Facts of the case
1.
On 1 July 2010, the Club of Country B, Club A (hereinafter: Club A or Claimant),
lodged a claim in front of FIFA against the Club of Country D, Club C (hereinafter:
Club C or Respondent) regarding training compensation in connection with the Player
E (hereinafter: player).
2.
The proceedings regarding said training compensation claim have remained
suspended until a final and binding decision was passed on the employment-related
claim lodged by Club A, in March 2010, in front of FIFA against the player and Club
C.
3.
On 30 August 2013, the Dispute Resolution Chamber (DRC) passed a decision in the
employment-related matter, which was subsequently appealed in front of the Court
of Arbitration for Sport (CAS).
4.
On 10 November 2014, the CAS rejected the appeal, as a result of which the decision
passed by the DRC on 30 August 2013 became final and binding.
5.
According to said DRC decision, the player was held liable for breach of the
employment contract he had signed with Club A and for payment of compensation
for breach of contract in the amount of EUR 300,000 in joint liability with Club C.
6.
On 20 February 2015, Club A, Club C and the player signed an agreement in
accordance with which Club C undertook to pay to Club A the amount of EUR 160,000
in instalments falling due until in July 2015 and the player undertook to pay to Club
A the amount of EUR 140,000 plus interest (hereinafter: agreement).
7.
The agreement refers to the award issued by the CAS in the above-mentioned
employment-related dispute and stipulates in its clause 5: “Subject to full compliance
with the terms of this Agreement, the Parties herewith waive any and all other or
further claims against each other, including, but not limited to, those arising from the
Award and cases CAS ... “.
8.
According to the player passport issued by the Football Federation of Country B, the
player, born on 21 May 1987, was registered with Club A as from 23 August 2002 until
12 January 2009. As from 30 March 2004 onwards, the player was registered with Club
A as a professional.
9.
The sporting season in Country B starts in January and ends in December of each year.
Training compensation in connection with Player E
(Club A, Country B / Club C, Country D)
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10.
On 23 January 2009, the player was registered with Club C as a professional.
11.
According to the information contained in the Transfer Matching System (TMS), Club
C was allocated UEFA club category 2 at the time when the player was registered with
it.
12.
Club A asks that it be awarded training compensation payable by Club C in the
amount of EUR 365,561.64 plus 5% interest p.a. as of 22 February 2009.
13.
In reply, Club C rejects the claim referring to the agreement and, in particular, to its
clause 5 and points out that Club A’s claim “will naturally be withdrawn” once Club
C has complied with the payments outlined in the agreement.
14.
Club A, for its part, rejects such position and highlights that the agreement solely
relates to the employment-related dispute and clearly refers to the CAS award in
connection with the employment-related dispute. Furthermore, according to Club A,
the amount included in the agreement is the amount decided by the DRC in the
employment-related dispute on 30 August 2013 and no amounts regarding training
compensation were discussed between the parties.
15.
In support of its position, Club A submitted a written declaration from the lawyers
who represented the player and Club A in the aforementioned labour dispute and in
the drafting of the agreement, stating inter alia that they were not aware of the
existence of a claim regarding training compensation before FIFA and that such
matter was never discussed during the drafting of the agreement nor was it intended
to settle a training compensation claim by the agreement.
16.
In addition, Club A presented a copy of the e-mail correspondence exchanged
between said lawyers and Club C prior to the conclusion of the agreement, which
allegedly demonstrates that the issue of training compensation was never referred
to.
17.
Club C disagrees with such position and highlights that the waiver contained in the
agreement is not limited to claims that arise from the CAS decision. According to Club
C, the agreement explicitly defines that in case there was any reservation or
exception, it should have been explicitly agreed upon and signed.
18.
In addition, Club C stresses that during the employment-related dispute in front of
the DRC and the subsequent appeal in front of the CAS, Club A considered that the
amount of compensation sought includes both compensation for breach and training
compensation or that it was used by Club A in order to increase the amount of
compensation awarded by the DRC.
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19.
Furthermore, Club C points out that, on 19 January 2015, Club A’s president signed a
power of attorney with respect to Club A’s training compensation claim in front of
FIFA and two weeks later the agreement, which demonstrates that Club A was aware
of the training compensation claim when it signed the agreement.
20.
Club C further asks that the documents presented by Club A (cf. points I./15. and I./16.
above) are not taken into account as these were not solicited.
21.
Apart from the aforementioned arguments, Club C holds that the player’s training
was already terminated long before his registration with Club C, in particular, long
before 2007, for the following reasons:
a. According to a decision passed by the CAS, the number of times a player
played for a club’s A team after signature of a first professional contract and
the number of years that a player had already spent at the club are to be
considered;
b. The player’s training at Club A started in 2002 and until 31 December 2006
he had in fact been trained for 6 years (in 2001 with another club), 5 of which
with Club A;
c. Until mid-2007, the player had already signed at least 3 professional contracts
involving a significant amount of money. In this regard, the club presented a
copy of relevant contracts or refers to the facts relating to the
aforementioned employment-related dispute;
d. Mid-2007 the player signed an image rights contract involving a significant
amount of money;
e. In the 2nd and 3rd employment contract with Club A, the amount of
compensation agreed was very high;
f. The player participated 15 times in Club A’s matches in the 2007 season.
22.
In addition, while referring to art. 5 par. 4 of the FIFA Regulations on the Status and
Transfer of Players, according to which the DRC has discretion to adjust the amount
of training compensation if it is clearly disproportionate, Club C highlights that the
costs that it would have incurred per season if it had trained the player itself are
approximately EUR 4,794 per season. It points out that the calculation is based on the
“academy costs – youth football player” in the club’s financial statement of the 200607 season and the number of registered players in said academy for the same season.
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 1 July 2010.
Consequently, the Rules governing the procedures of the Players’ Status Committee
Training compensation in connection with Player E
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and the Dispute Resolution Chamber, edition 2008 (hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 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 par. 2 in combination
with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition
2015), the Dispute Resolution Chamber is competent to decide on the present
litigation concerning training compensation between clubs belonging to different
associations.
3.
Furthermore, the DRC 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 par. 2 of the Regulations on the Status and Transfer of Players (edition
2015), and considering that the player was registered with the Respondent on 23
January 2009, the 2008 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand. In this regard, the Chamber took note of the
Respondent’s request that certain documents presented by the Claimant not be taken
into account (cf. points I./15. and I./16. above) and concluded that since the relevant
documents were, in fact, presented prior to the closure of the investigation-phase in
the present matter they can be admitted to the file.
5.
The DRC recalled that the player was born on 21 May 1987 and was registered with
the Claimant as from 23 August 2002 until 12 January 2009. Within this period of
time, as from 30 March 2004 onwards, the player was registered with Club A as a
professional. It was further noted that, on 23 January 2009, the player was registered
with the Respondent as a professional.
6.
In continuation, the Dispute Resolution Chamber took note that the Claimant
asserted that it was entitled to receive training compensation from the Respondent
in the amount of EUR 365,561.64, plus 5% interest p.a. as of 22 February 2009, since
the player was registered as a professional with the Respondent.
7.
The Respondent, for its part, rejected the claim arguing that the Claimant had waived
its right to training compensation by signing the agreement following the award
Training compensation in connection with Player E
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issued by the CAS in connection with the aforementioned employment-related
dispute, in particular, taking into account clause 5 of said agreement.
8.
In addition, the Respondent held that the player’s training had already ended before
2007 and, thus, prior to the registration of the player with the Respondent.
9.
The Respondent further invoked art. 5 par. 4 of the Regulations and stated that the
costs it would effectively have incurred per season if it had trained the player itself
amount to EUR 4,794.
10.
Having said this, the DRC highlighted that the following issues needed to be analysed
in the present matter:
1) When is, in general, training compensation due?
2) Did the Claimant waive its alleged right to training compensation by signing the
agreement?
3) Was the player’s training already completed at the time the player joined the
Respondent?
4) Is the amount of training compensation established in accordance with the
Regulations disproportionate in the case under review?
11.
When addressing the first issue, the Chamber referred to the rules applicable to
training compensation and stated that, as established in art. 20 of the Regulations in
combination with art. 1 par. 1 of Annexe 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 player is registered for the first time
as a professional before the end of the season of the player’s 23rd birthday or when a
professional is transferred between clubs of two different associations before the end
of the season of the player’s 23rd birthday. In case the latter occurs, art. 3 par. 1 sent.
3 of Annexe 4 of the Regulations sets forth that training compensation will only be
owed to the player’s former club for the time he was effectively trained by that club.
12.
In this context, the DRC emphasised that, in general, training compensation is thus
payable in case of the subsequent transfer of a professional before the end of his 23 rd
birthday.
13.
Following the above, the Chamber recalled that the player was registered as a
professional with the Respondent on 23 January 2009, this is, during the season of his
22nd birthday. Equally, the Chamber stressed that, according to the player passport
issued by the Football Federation of Country B, the player was registered with the
Claimant as from 23 August 2002 until 29 March 2004 as an amateur and as from 30
March 2004 until 12 January 2009 as a professional.
Training compensation in connection with Player E
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14.
On account of the above considerations, the DRC concluded that the Respondent
would, in principle, be liable to pay training compensation to the Claimant, which is
the player’s former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the
Regulations, in accordance with art. 20 and Annexe 4 of the Regulations.
15.
In continuation, the Chamber had to establish, as alleged by the Respondent, as to
whether the Claimant had waived its right to training compensation by signing the
agreement with the player and the Respondent following the award issued by the
CAS in the employment-related dispute between the Claimant, the player and the
Respondent.
16.
After careful examination of the pertinent elements on file, the members of the
Chamber concluded that the Claimant had not waived its right to training
compensation by signing the tripartite agreement on 20 February 2015 (cf. number
I./6. above).
17.
Indeed, the Chamber deemed that the tripartite agreement dated 20 February 2015
was negotiated and signed with a view to finding agreement on the terms of
payment of the amount of compensation for breach of the employment contract to
the Claimant, which amount had been established in a final and binding manner after
the CAS rendered its award in the employment-related dispute. In this respect, the
Chamber recalled that according to the decision passed by the DRC on 30 August
2013, the player was ordered to pay to the Claimant compensation for breach of the
employment contract in the amount of EUR 300,000 in joint liability with Club C. In
this context, the Chamber highlighted that the agreement of 20 February 2015 was
indeed signed by and between the Claimant, the Respondent and the player,
whereby both the Respondent and the player committed to pay a share of the
amount of EUR 300,000 to the Claimant within a certain time limit. The due execution
of the contractual obligations with respect to the payment of the compensation for
breach of contract amounting to EUR 300,000, thus, depended on the player as well.
18.
What is more, the Chamber noted that the DRC decision passed in the employmentrelated dispute on 30 August 2013 and confirmed by the CAS explicitly excludes
training compensation, since training compensation was the object of separate
proceedings presently under examination by this Chamber.
19.
For these reasons, the Chamber could not back the viewpoint of the Respondent that
the Claimant had waived its right to training compensation by signing the tripartite
agreement of 20 February 2015 with its clause 5. This argument was, thus, rejected
by the members of the Chamber.
20.
Consequently, the Chamber concluded that there is no proof or indication on file that
the tripartite agreement would include a claim concerning training compensation
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and that the Claimant had waived its right to receive training compensation from the
Respondent.
21.
Having established the above, the Chamber turned its attention to the Respondent’s
argument linked to the training period of the player. In this regard, the Chamber first
referred to art. 1 par. 1 sent. 2 of Annexe 4 of the Regulations which stipulates that
training compensation shall be payable, as a general rule, up to the age of 23 for
training incurred up to the age of 21, unless it is evident that a player has already
terminated his training period before the age of 21. In this respect, the DRC
emphasised that cases involving a possible early completion of a player’s training
period have to be analysed on a case-by-case basis, taking into consideration all the
specific circumstances and all the evidence produced. Thus, several factors and
indications have to be considered in order to establish whether a particular player’s
training has indeed been completed before the age of 21, as the Respondent stated.
For the sake of completeness, the members of the Chamber stressed that both the
DRC and the CAS have adopted a strict approach in establishing the early completion
of the player’s training before the age of 21, so as to not jeopardize the right of
training clubs to, in principle, receive training compensation.
22.
In this regard, the Chamber noted, once more, all the specific circumstances of the
present matter as well as all the evidence produced by the Respondent. The members
of the Chamber highlighted that the mere facts that the player had been a
professional with the Claimant since 2004 on the basis of various employment
contracts allegedly earning substantial amounts and allegedly having participated in
15 matches of the Claimant during the 2007 season, do not allow to conclude that
the player had already completed his training period before the age of 21. The
Chamber agreed that the Respondent club has not sufficiently substantiated its claim
that the player’s training had already ended before his 21st birthday and concluded,
therefore, that this argument cannot be upheld.
23.
On account of the above considerations, the Chamber decided that the Respondent
is liable to pay training compensation to the Claimant in accordance with art. 20 and
Annexe 4 of the Regulations.
24.
Turning its attention to the calculation of the training compensation payable by the
Respondent to the Claimant, the Chamber referred to the FIFA circular no 1142 dated
15 April 2008 which provides details for the calculation of training compensation as
well as 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 due to a player’s former
club, it is necessary to take the costs that would have been incurred by the new club
if it had trained the player itself.
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25.
In continuation, the Chamber took into account that the Respondent belonged to the
club category 2 within UEFA and that the player, born on 21 May 1987, was registered
with the Claimant as from 23 August 2002 until 12 January 2009.
26.
Consequently, taking into account the above-mentioned considerations, the
Chamber pointed out that, in principle, the Respondent is liable to pay training
compensation to the Claimant in the amount of EUR 363,333. However, the Chamber
noted that the Respondent challenged the amount of training compensation claimed
by the Claimant referring to art. 5 par. 4 of Annexe 4 of the Regulations.
27.
In this respect, the DRC recalled that, according to art. 5 par. 4 of Annexe 4 of the
Regulations, the Dispute Resolution Chamber may review disputes concerning the
amount of training compensation payable and shall have discretion to adjust this
amount if it is clearly disproportionate to the case under review. In this regard, the
DRC was, however, eager to emphasise that such possibility allowed by the
Regulations would, in any case, have to be analysed on a case-by-case basis.
28.
In this regard, the Respondent held that the costs that it would have incurred per
season if it had trained the player itself are approximately EUR 4,794 and based on
the “academy costs – youth football player” in the club’s financial statement of the
2006-07 season and the number of registered players in said academy for the same
season. The Chamber, however, considered that the documents presented by the
Respondent in this regard do not constitute objective and convincing evidence that
the amount of training compensation of EUR 363,333 is to be considered clearly
disproportionate in the matter at hand.
29.
On account of all of the above, the Chamber decided that the Respondent is liable to
pay training compensation to the Claimant in the amount of EUR 363,333.
30.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of
Annexe 4 of the Regulations, the Chamber decided that the Respondent has to pay,
in conformity with its longstanding practice, interest at 5% p.a. over the amount
payable as training compensation as of the 31st day of the registration of the player
with the Respondent, i.e. as of 23 February 2009, until the date of effective payment.
The Chamber concluded its deliberations in the present matter by rejecting any
further request of the Claimant.
31.
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
DRC relating to disputes regarding training compensation 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 that, in
Training compensation in connection with Player E
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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.
33.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 365,561.64 related to the claim of the
Claimant. Consequently, the Chamber concluded that the maximum amount of costs
of the proceedings corresponds to CHF 25,000 (cf. table in Annex A).
34.
As a result, and taking into account the particularities of the present matter, the
number of issues that had to be addressed, and the complexity of the case, the
Chamber determined the costs of the current proceedings to the amount of CHF
25,000, which shall be borne by the Respondent.
35.
In this respect, the DRC took into account that the Claimant had paid the advance of
costs to FIFA in the amount of CHF 5,000 in accordance with art. 17 of the Procedural
Rules.
36.
Consequently, the DRC decided that the amount of CHF 20,000 has to be paid by the
Respondent to FIFA and the amount of CHF 5,000 to the Claimant.
*****
Training compensation in connection with Player E
(Club A, Country B / Club C, Country D)
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 363,333 plus 5% interest p.a. as of
23 February 2009 until the date of effective payment.
3.
In the event that the aforementioned sum plus interest is not paid within the stated
time limit, 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 amount of costs of the proceedings in the amount of CHF 25,000 is to be
paid by the Respondent within 30 days as from the date of notification of the
present decision as follows:
5.1 The amount of CHF 20,000 has to be paid to FIFA to the following bank account:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2 The amount of CHF 5,000 has to be paid to the Claimant.
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6. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances under points 2. and 5.2 above are to be made
and to notify the Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
Acting Secretary General
Encl.: CAS directives
Training compensation in connection with Player E
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