Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Taku Nomiya (Japan), member
Theo van Seggelen (Netherlands), member
on the claim presented by the club,
Club P, from country G
as Claimant
against the club,
Club X, from country I
as Respondent
regarding training compensation in
connection with the player S
I.
Facts of the case
1. According to the player passport issued by the Football Federation of country G on
16 June 2013, player S (hereinafter: the player), born on 3 April 1990, was
registered with its affiliated club P, from country G (hereinafter: the Claimant) as
from 22 September 2003 until 30 June 2012.
2.
Equally, the Football Federation of country G confirmed that Claimant belonged to
the category II (indicative amount of EUR 60,000 per year) at the time the player
was registered with said club.
3.
The football season in country G lasts from 1 July to 30 June of the following year.
4.
The Football Federation of country I confirmed that the player was registered with
the Club X, from country I (hereinafter: the Respondent), as a professional player
on 16 August 2012.
5.
According to the information contained in the Transfer Matching System (TMS) at
the time the player was registered with the Respondent, said club belonged to the
category I (indicative amount of EUR 90,000 per year).
6. On 18 August 2013, the Claimant contacted FIFA asking for its proportion of
training compensation for the subsequent transfer of a professional player from
the Respondent. In particular, the Claimant requested EUR 470,000 plus 5% p.a. as
of the due date as well as the advance and procedural costs.
7. In this respect, the Claimant stated that the player signed his first professional
contract with it on 2 February 2007. Equally, the Claimant stated that the player
signed a new employment contract on 3 July 2007 valid until 30 June 2012, and
that said contract was amended on 23 September 2008.
8. The employment contract dated 23 September 2008 provided for a salary of EUR
300,000 for the 2011/2012 season, as well as a bonus, by means of which if the
player participated in the 30% to 60% of the official matches he would receive the
corresponding percentage over the amount of EUR 200,000, or EUR 200,000 in the
event he participated in more than 60% of the official matches. In addition, the
player would receive a car, a mobile phone and a monthly house rent of EUR 1,500.
Furthermore, there was a buy-out clause of EUR 9,000,000, 2.5% of which would be
for the player in the event a third club exercised that option.
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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9. Equally, the Claimant held that, as of 16 December 2011, the country G media
started to report that the player was negotiating with the Respondent.
10. In this respect, the Claimant held having requested, on 21 and 22 December 2011,
both the Respondent and the player to stop the negotiations since that behaviour
was in breach of the FIFA Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) and was directly damaging the Claimant. In this
regard, the Claimant provided a copy of a correspondence dated 23 December 2011
allegedly sent from the Respondent to the Claimant in which the Club X supposedly
asserted that it had not had any contact with the player.
11. Furthermore, the Claimant alleged that on 11 January 2012 it was informed by the
Respondent that the Club X was going to propose an employment contract to the
player.
12. As a consequence, on 12 January 2012, the Claimant sent a registered mail to the
player offering him an employment contract. In this respect, the Claimant enclosed
a copy of an offer of a better value than the current contract of the player.
13. In this respect, the Claimant declared that the player replied on 27 January 2012
that he only started to negotiate with the Respondent on 1 January 2012 and
rejected the Claimant’s employment contract offer.
14. The Claimant concluded by holding that the Respondent acted on bad faith since it
denied to be negotiating with the player more than six months prior to the
expiration of the employment contract between the Claimant and the player and,
also did not reply the request of the Claimant to pay training compensation for the
transfer of the player.
15. On 27 September 2013, the Respondent rejected the claim of the Claimant by
stating that the media exaggerated and invented news and that the articles are,
therefore, not a substantial evidence to hold that the player and the Respondent
were negotiating before 11 January 2012 and that, hence, the Respondent had
acted in accordance with the Regulations.
16. Moreover, the Respondent rejected that the registered mail allegedly sent by the
Claimant to the player on 12 January 2012 contained an offer as per art. 6 par. 3
Annexe 4 of the Regulations. In particular, the Respondent stated that the wording
of said correspondence referred to a proposal and not to a formal offer.
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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17. In this respect, the Respondent also assessed that the Claimant only proved that the
correspondence was sent, but failed to provide any evidences as to whether the
player effectively received it.
18. In addition, the Respondent stated that it was obvious that the player had
terminated his training and education before being transferred to country I since
he was regularly playing with the Claimant, a club which participates in the Europa
League and the Champions League, and even obtained the acknowledgement as
Most Valuable Player (MVP) on his first match with the Club P from country G on 7
January 2007. In this respect, the Respondent also stated that the player played
three friendly matches with the U-19 national team and one with the U-21 national
as well as was selected by UEFA in the list of U-19 names to note. As a consequence,
and since the Respondent is of the opinion that the player terminated his training
in the 2006/2007 season (i.e. the season of the 17th birthday of the player), said club
asserted that, if any, only EUR 95,000 would be due as training compensation.
19. In light of the foregoing, the Respondent requested the rejection of the claim and,
on the alternative, the reduction of the compensation payable to the Claimant. In
addition, the Respondent requested that, in all cases, the Claimant bears the
expenses of the proceedings.
20. On 6 December 2013, the Claimant stated that the Respondent did not deny to
have negotiated with the player before 1 January 2012 but that, on the contrary,
the Claimant held that The Respondent only assessed that there are not enough
evidences supporting the Claimant’ statement.
21. In this respect, the Claimant also held that the timeline was clear, i.e. media
reported in December 2011 that the player and the Respondent were negotiating,
only on 11 January 2012 and after having denied it upon request of the Claimant in
December 2011, the Respondent informed the Club P from country G that there
were on-going negotiations with the player, and the player was eventually
registered for the Respondent. Therefore, it is a “common sense outcome” that the
Respondent indeed negotiated with the player more than 6 months prior to the
expiration of his employment contract with the Claimant.
22. As to the Respondent’s opinion regarding the alleged proposal which was not an
offer in accordance with art. 6 par. 3 of the Annexe 4 of the Regulations, the
Claimant stated that it is clear that it forwarded in writing an offer to the player
and that, in accordance with the CAS jurisprudence, the club was bound by this
offer since it was signed by the President of the Board of Directors.
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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23. In addition, the Claimant underlined that the player indeed replied to that
correspondence rejecting the offer, which means that he received it. Moreover, the
Claimant submitted a copy of a Court Bailiff’s Report as evidence of the delivery of
the correspondence to the player.
24. Furthermore, the Claimant denied that the player had terminated his training
when he was 16 years old. In this respect, it referred to the jurisprudence of the
Dispute Resolution Chamber and CAS and assessed that the player participated in
U-19 and U-21 national teams which indicates that his training period was not
complete and underscored that, in accordance with the jurisprudence, the number
of matches cannot determine whether or not the training period is completed.
25. In light of the foregoing, the Claimant concluded that training compensation was
due in accordance with the Regulations.
26. Lastly, on 4 February 2014, the Respondent reiterated in full its arguments and
conclusions.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 18 August
2013. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber, edition 2012 (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 in
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of
Players (edition 2014) the Dispute Resolution Chamber is competent to decide on
the present litigation concerning training compensation between clubs belonging
to different associations.
3.
Furthermore, and taking into consideration that the player was registered with the
Respondent on 16 August 2012, 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 Regulations on the Status and Transfer
of Players (editions 2009, 2010, 2012 and 2014), the 2010 edition of the said
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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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. The members
of the Chamber started by acknowledging the above-mentioned facts of the case
as well as the documentation on file.
5.
First of all, the Chamber recalled that the player, born on 3 April 1990, was
registered with the Claimant as from 22 September 2003 until 30 June 2012.
6.
In continuation, the Chamber took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount of
EUR 470,000, plus 5% p.a. as of the due date, since the player was transferred to a
club belonging to a different association before the end of the season of the
player’s 23rd birthday.
7.
Equally, the Chamber took note that the Respondent rejected the Claimant’s claim
for the payment of training compensation, stating that the offer made by the
Claimant to the player was not in accordance with the Regulations and that,
anyway player had completed his training at the age of 18 and that, therefore, no
training compensation was due and, on the alternative, only EUR 95,000 would be
due to the Claimant.
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 in
combination with art. 2 par. 1 lit. ii. 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 23 rd birthday.
9.
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 Association inside the territory of the European Union
(EU)/European Economic Area (EEA). More specifically, the Chamber turned its
attention to art. 6 par. 3 of Annexe 4 which stipulates, inter alia, that the former
club must offer the player a contract in writing via registered post at least 60 days
before the expiry of his current contract.
10. In view of the above, the Chamber stated that, first and foremost, it had to verify
whether art. 6 par. 3 of Annexe 4 of the Regulations applies in the present case as
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
6
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.
11. As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is
concerned, the Chamber stated that, as the player moved from a club in country G
to a club in country I, i.e. moved from one Association to another Association
inside the territory of the EU, the said article is applicable. Therefore, the Chamber
concluded that the aforementioned provision applies in the case at hand as lex
specialis.
12. On account of the aforesaid, the Chamber analysed whether or not the Claimant
had complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations
in order to be entitled to training compensation. In this context, the Chamber
recalled that the player was already contractually bound and registered as a
professional with the Claimant prior to his move to the Respondent.
13. 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 (cf. art. 6 par. 3 sent. 2 of Annexe 4 of the Regulations).
14. Moreover, the Claimant provided with a copy of the rejection remitted by the
player.
15. In this context, the members of the Chamber pointed out that the Claimant, on 12
January 2013, remitted an offer of a better value than the current one to the
player via registered mail, which was rejected by the player in writing on 14
January 2013. Thus, the DRC readily accepted that the player had indeed received
and rejected the Claimant’s offer.
16. Consequently, the Chamber noted that the Claimant had, thus, provided with
evidences that it had, in fact, offered the player a contract in accordance with art.
6 par. 3 sent. 2 and sent. 3 of Annexe 4 of the Regulations (cf. art. 12 par. 3 of the
Procedural Rules).
17. As a result, the Chamber, and hereby underlining that the Claimant had offered
the player, who was already a professional player when registered with the
Claimant, a new contract, decided that the aforementioned considerations could
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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lead to no other conclusion than that the Claimant had complied with the
prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations.
18. Furthermore, and turning its attention to the Respondent’s allegations regarding
the early termination of the training and education period of the player, the
Chamber emphasized that cases involving a possible early completion of a player’s
training period have to be assessed on a case-by-case basis, whereby all the specific
circumstances and all the evidence produced has to be taken into consideration.
Hence, several factors and indications have to be considered in order to assess and
establish whether a particular player’s training has indeed been completed before
the season of his 21st birthday. For the sake of completeness, the Chamber pointed
out that, so far, both the Chamber as well as the CAS have adopted a strict
approach in establishing that a player’s training had indeed been completed before
the season of a player’s 21st birthday, so as to not jeopardize the right of training
clubs to, in principle, receive training compensation.
19. In this respect, the Chamber took, once more, note of all the specific circumstances
of the present matter as well as of all the evidence produced by the parties of the
dispute. In continuation, the Chamber highlighted that, during the period of
registration with the Claimant, the player played three friendly games with his U19 national team and one with the U-21 national team. The Chamber outlined that
this may indeed be an indication of the player’s talent, skills and level of training,
however, such fact is in itself not conclusive in establishing that a particular player
indeed already completed his training period.
20. Finally, the Chamber outlined that even if a club is playing in top international
competitions, such as Europa League and the Champions League, this does not
necessarily mean that, every young player joining such club, is no longer in need of
training.
21. In view of the above, the Chamber concurred that, in the specific matter at hand
and taking all the above-mentioned elements combined, it could not be
established that the player had indeed already completed his training before
joining the Respondent. Hence, the Chamber deemed that the training period of
the player had not been completed before the season of his 21st birthday.
22. On account of all the above-mentioned 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.
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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23. Turning its attention to the calculation of training compensation, the Chamber
referred to the FIFA circular no. 1299 dated 27 April 2012 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.
Furthermore, the Chamber 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.
24. In continuation, the Chamber observed that according to the documentation on
file as well as the relevant circular, the Claimant belonged to the category II
(indicative amount of EUR 60,000 per year), whereas the Respondent belonged to
the category I (indicative amount of EUR 90,000 per year) and that the player was
registered with the Claimant as from 22 September 2003 until 30 June 2012.
25. Consequently, and in light of the above-mentioned considerations, the Chamber
decided to partially accept the Claimant’s claim and decided that the Respondent is
liable to pay training compensation to the Claimant in the amount of EUR 467,500.
26. 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
interest at 5% p.a. over the amount payable as training compensation as of 16
September 2012 until the date of effective payment.
27. Furthermore, the Dispute Resolution Chamber further decided that the Claimant’s
claim for legal expenses is rejected, in accordance with art. 18 par. 4 of the
Procedural Rules and the respective longstanding jurisprudence of the Chamber.
28. Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in conjunction
with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings
before the DRC relating to disputes regarding training compensation and the
solidarity mechanism, costs in the maximum amount of CHF 25’000 are levied. It is
further stipulated that the costs are to be borne in consideration of the parties’
degree of success in the proceedings and, in accordance with Annex A of the
Procedural Rules, the costs of the proceedings are to be levied on the basis of the
amount in dispute.
29. In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 470,000 related to the claim of the
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
9
Claimant. Consequently, the Chamber concluded that the maximum amount of
costs of the proceedings corresponds to CHF 25,000 (cf. table in Annex A).
30. As a result, and taking into account that the claim of the Claimant has been
partially accepted, 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 involved various particular factual difficulties
and involved a certain specific legal complexity, the Chamber determined the costs
of the current proceedings to the amount of CHF 25,000.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Club P, is partially accepted.
2. The Respondent, Club X, has to pay to the Claimant, Club P, within 30 days as of
the date of notification of the present decision, the amount of EUR 467,500 plus 5%
interest p.a. as of 16 September 2012.
3. If the aforementioned sum plus interests 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, Club P, is rejected.
5. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the
Respondent, Club X, within 30 days of notification of the present decision as
follows:
5.1 The amount of CHF 20,000 has to be paid by the Respondent, Club X, to
FIFA to the following bank account with reference to case nr.:
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 directly to the Claimant, Club P.
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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6. The Claimant, Club P, is directed to inform the Respondent, Club X, immediately and
directly of the account number to which the remittances under points 2 and 5.2 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 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
Enclosed: CAS directives
Training compensation in connection with the player S
(Club P, from country G / Club X, country I)
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