Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 August 2015,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Jon Newman (USA), 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 the Player E
I.
Facts of the case
1.
According to the Football Federation of country B, the Player E (hereinafter: the player),
born on 9 November 1994, was registered as an amateur with the following clubs from
country B:
Club
Registration dates
Category
from 14 November 2005 until 30 June 2006
4
from 12 October 2006 until 30 June 2007
4
from 24 September 2007 until 30 June 2008
4
from 15 October 2008 until 30 June 2009
4
from 6 October 2009 until 30 June 2010
4
from 21 October 2010 until 30 June 2011
4
Club G
from 20 September 2011 until 30 June 2012
4
Club H
from 10 August 2012 until 30 June 2013
-
Club F
Club A
2.
The Football Federation of country B confirmed that the football season in country B during
the time the player was registered with Club A (hereinafter: the Claimant) ran from 1 July
until 30 June of the following year.
3.
According to the player passport issued by the Football Federation of country D (Football
Federation of country D), the player was registered for Club C (hereinafter: the Respondent)
on 29 August 2013 as an amateur.
4.
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 2
(indicative amount of EUR 60,000 per year within UEFA).
5.
On 29 July 2014, the Claimant contacted FIFA asking for its proportion of training
compensation for the first professional registration of the player with the Respondent. In
particular, the Claimant requested the amount of EUR 35,170, plus 5% p.a. over the
requested amount “since August 2013” and the reimbursement of all the costs incurred.
6.
In this respect, the Claimant provided FIFA with a copy of the alleged employment contract
concluded between the player and the Respondent on 14 August 2013 (hereinafter: the
employment contract), which reads as follows: the B team of the Respondent and the player
“agree to enter into the present employment contract for a fixed-term”.
7.
Art. 2 of the employment contract stipulates that “considering the professional field in
which the player must perform his duties and the level of confidence required and available
in the field of sport, the parties assume that under the national law of country D the length
of the contract is fixed-term and / or seasonal. Equally, it is a full-time contract so the
remuneration and conditions are set out in this condition”.
8.
Furthermore, art. 3 of the employment contract stipulates that the contract runs for the
season 2013/2014 until the season 2014/2015, i.e. for two seasons.
Training compensation for the Player E
(Club A, country B / Club C, country D)
2
9.
Equally, art. 4 of the employment contract stipulates that the player would receive EUR
20,000 during the season 2013/2014 and EUR 20,000 plus the 10% of all the amounts due
during the season 2014/2015. In addition, the club will cover the accommodation and
maintenance expenses.
Moreover, the parties agreed upon the following bonuses:
EUR 110,000 if during the season 2014/2015 the player plays in the second league of
country D,
EUR 500 per goal scored with the B team of the Respondent and EUR 750 per goal scored
with the first team,
EUR 15,000 if the player is fielded in 20 matches for more than 45 minutes per match in
the second league of country D during the season 2014/2015, and
EUR 15,000 if the player is fielded in 30 matches for more than 45 minutes per match in
the second league of country D during the season 2014/2015.
10.
On 10 June 2015, the Respondent rejected the claim lodged against it by stating that the
employment contract concluded between the player and the Respondent is a simulation
since i) none of the parties ever executed it, ii) despite the wording of the contract, the
player’s dedication was part-time and iii) the player was registered as an amateur and not as
a professional player.
11.
In this respect, the Respondent held that the person acting on behalf of the club, Mr I, is
involved in criminal proceedings in country D for alleged corporate crimes.
12.
In this context, the Respondent asserted having entered on 23 August 2013 (i.e. nine days
after concluding the employment contract) into a contract with the player in accordance
with which, the amateur player will not receive any remuneration (hereinafter: the amateur
contract).
13.
In light of the foregoing, the Respondent stressed that the amateur contract superseded the
employment contract and that, hence, the player did not acquire the professional status
upon his registration with the Respondent.
14.
Notwithstanding the foregoing, the Respondent acknowledged having compensated the
player for the expenses incurred in his football activity in the amount of EUR 500 gross per
month (i.e. EUR 458.25 net per month) from October to December 2013 and EUR 398,25 net
per month from January until July 2014. In particular, the Respondent pointed out that the
total compensation paid to the player amounted to EUR 4,162.25. As a result, the
Respondent underscored that the amounts compensated cannot be understood as salary.
15.
Alternatively, the Respondent stated that the amounts set as training compensation are
disproportionate. In particular, the Respondent held that no club would undertake to pay
EUR 20,000 per year as remuneration and, on top of that, having to pay more than EUR
70,000 as training compensation, to terminate the contract with the player at the end of the
season.
16.
On 24 June 2015, the Claimant reiterated the validity of the employment contract and
stated that it accepted that “FIFA proclaims the rights of the claimant based on the fact that
the club is a 3rd category”.
17.
On 2 July 2015, the Respondent once again rejected the claim by reiterating that the
employment contract was a simulation which was never effectively executed and that the
player never acquired the professional status.
Training compensation for the Player E
(Club A, country B / Club C, country D)
3
18.
Lastly, the Respondent referred to art. 6 par. 3 of Annexe 4 of the Regulations on the Status
and Transfer of Players and, in this regard, held that the Claimant failed to provide evidence
of the contract offered to the player.
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 29 July 2014. 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 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 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and
2015), and considering that the player was registered with the Respondent on 29 August
2013, the 2012 edition of said regulations (hereinafter: the 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.
However, the Dispute Resolution Chamber emphasized that in the following considerations it
will refer only to the facts, arguments and documentary evidence which he considered
pertinent for the assessment of the matter at hand.
5.
First of all, the Chamber recalled that the player was born on 9 November 1994 and was
registered with the Claimant as from 15 October 2008 until 30 June 2009, as from 6 October
2009 until 30 June 2010 as well as from 21 October 2010 until 30 June 2011. Equally, the
Chamber took note that the player was subsequently registered as an amateur with the clubs
from country B Club G and with Club H before his registration with the Respondent.
6.
In continuation, the Chamber observed that the Claimant asserted that it was entitled to
receive training compensation from the Respondent in the amount of EUR 35,170, plus 5%
interest p.a. over said amount “since August 2013” and the reimbursement of all the costs
incurred, as the player was registered as a professional for the first time with a club
belonging to a different association before the end of the season of his 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 player was registered with it as an
amateur.
8.
In this respect, the Chamber firstly deemed it important to establish whether the player held
the amateur status or the professional status at the time he was registered with the
Respondent. To this end, the Chamber examined the employment contract as well as the
amateur contract that the parties had submitted in the present proceedings. Equally, the
Training compensation for the Player E
(Club A, country B / Club C, country D)
4
Chamber thoroughly analysed the submission of the parties in this respect and, in particular,
the statement of the Respondent (cf. I.14 above).
9.
In this regard, the members of the Chamber referred to the two contracts concluded between
the player and the Respondent on 13 and 23 August 2013, respectively (cf. points I.6 and I.12
above).
10. In particular, the Chamber duly noted that the Respondent stated in point I.14 that the player
was paid de facto a compensation in the amount of EUR 500 gross per month (i.e. EUR 458.25
net per month) from October to December 2013 and EUR 398.25 net per month from January
until July 2014.
11. Thus, the Chamber concluded that, irrespective of the contract at the basis of the relationship
between the player and the Respondent, as informed by the latter, the player periodically
received from the Respondent a fixed monthly amount regardless of the expenses he indeed
incurred in and with no obligation to justify these alleged expenses.
12. In this context, the Chamber referred to art. 2 par. 2 of the Regulations, which stipulates that
“A professional is a player who has a written contract with a club and is paid more for his
footballing activity than the expenses he effectively incurs. All other players are considered to
be amateurs”.
13. In light of the foregoing and taking into consideration the criteria set out in art. 2 par. 2 of
the Regulations as well as the amounts payable to the player, the members of the Chamber
unanimously concluded that, in the present case, the player was in fact paid more for his
footballing activity than the expenses he effectively incurred. In this regard, the Chamber was
eager to emphasize that a player’s remuneration as per the criteria set out in art. 2 par. 2 of
the Regulations constitutes the decisive factor in the determination of the status of the player
and that the legal nature or the designation of the contract is of no relevance in this regard.
This approach has been confirmed by the Court of Arbitration for Sport (CAS) in its decision
CAS XXXXXX, whereby the Panel also emphasized that the definition contained in the
mentioned provision is the only ground to establish a player’s status. For the sake of
completeness, the Chamber pointed out that according to the said decision the classification
of a player made by the association of his club is not decisive to determine the status of a
player.
14. Equally, the Chamber highlighted that the second element contained in said art. 2 par. 2 of
the Regulations, i.e. the existence of a written contract, is met.
15. On account of all the above, the Chamber concurred that the player was registered as a
professional with the Respondent.
16. Having established the above, the Chamber referred to the rules applicable to training
compensation. In this context, the Chamber started by stating that, as established in art. 1
par. 1 of Annexe 4 in combination with art. 2 par. 1 lit. i. of Annexe 4 of the Regulations,
training compensation is payable, as a general rule, for training incurred between the ages of
12 and 21, when a player is registered for the first time as a professional before the end of
the season of the player’s 23rd birthday.
17. 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).
Training compensation for the Player E
(Club A, country B / Club C, country D)
5
18. In view of the above, the Chamber stated that it had to verify whether art. 6 par. 3 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 said provision in order to be entitled to receive
training compensation from the Respondent.
19. As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is concerned, the
Chamber indicated that, since the player moved from country B to country D, 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.
20. However, in this regard, the Chamber pointed out that, in casu, a possible obligation to offer
the player a contract in compliance with art. 6 par. 3 of Annexe 4 of the Regulations would in
principle lie with the former club of the player and not with the Claimant. As stated in art. 6
par. 3 of Annexe 4 of the Regulations, said provision is without prejudice to the right of
training compensation of the player’s previous club(s).
21. Turning its attention to the calculation of training compensation, the Chamber referred to
the FIFA circular no. 1223 dated 29 April 2010 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.
22. The members of the Chamber recalled that the player, born on 9 November 1994, was
registered for the Claimant as from 15 October 2008 until 30 June 2009, as from 6 October
2009 until 30 June 2010 and as from 21 October 2010 until 30 June 2011 as an amateur and
that the Claimant is requesting training compensation in the amount of EUR 35,170 for the
training and education of the player incurred during said period. Equally, the Chamber noted
that the seasons in country B ran as from 1 July until 30 June of the following year.
23. In continuation, the DRC took due note that according to the Football Federation of country
B, the Claimant belonged to category 4, and according to the Football Federation of country
D, the Respondent was a category 2 club at the time the player was registered with it.
Consequently, the Chamber took into account that the indicative training costs for a category
4 club and member of a national association affiliated to the Union des Associations
Européennes de Football (UEFA) amounts to EUR 10,000, whereas the training costs for a club
which belongs to the category 2 and member of a national association affiliated to UEFA
amounts to EUR 60,000. In this respect, the DRC further underscored that the Claimant was
requesting training compensation on the basis of a lower categorisation of the Respondent.
In particular, although the Claimant was informed that the Respondent belongs to the
category 2, the Claimant requested training compensation of the allocation of the
Respondent in the category 3, the indicative training costs of which amount to EUR 30,000).
24. In this respect, the Chamber considered that the player was registered with the Claimant for
the period between 15 October 2008 and 30 June 2009, between 6 October 2009 and 30 June
2010 as well as between 21 October 2010 and 30 June 2011.
Training compensation for the Player E
(Club A, country B / Club C, country D)
6
25. Consequently, and taking into account all the above-mentioned elements, the Chamber
decided that the Claimant is entitled to receive training compensation from the Respondent
in the amount of EUR 35,170.
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 29 September 2013 until the date of
effective payment.
27. The Chamber concluded its deliberations by rejecting any further claim of the Claimant.
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. 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 35,170 related to the claim of the Claimant. Consequently, the
Chamber concluded that the maximum amount of costs of the proceedings corresponds to
CHF 5,000 (cf. table in Annexe A of the Procedural Rules).
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 did not compose any complex factual or legal issues, the
Chamber determined the costs of the current proceedings to the amount of CHF 3,000.
*****
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 of the date of
notification of the present decision, the amount of EUR 35,170 plus 5% interest p.a. as of 29
September 2013 until the date of effective payment.
3. If 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 costs of the proceedings in the amount of CHF 3,000 are to be paid by the
Respondent, within 30 days of notification of the present decision to FIFA to the following
bank account with reference to case nr. xxxxxxxxxx:
Training compensation for the Player E
(Club A, country B / Club C, country D)
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UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6. The Claimant is directed to inform the Respondent immediately and directly of the account
number to which the remittance is to be made and to notify the Dispute Resolution Chamber
of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent 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
Enclosed: CAS directives
Training compensation for the Player E
(Club A, country B / Club C, country D)
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