Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (England), Chairman
Carlos González Puche (Colombia), member
Theo van Seggelen (Netherlands), member
Guillermo Saltos Guale (Ecuador), member
Alejandro Marón (Argentina), 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 Association of country B, the player from country B, Player
E (hereinafter: the player), born on 19 November 1993, was registered with the
following clubs from country B:
Club
Registration dates
Status
From 1 December 2010 until 31 January 2011
Professional
From 1 July 2011 until 27 August 2012
Professional
From 1 June 2013 until 15 August 2013
Professional
Club G
From 1 February 2011 until 31 May 2011
Professional
Club A
From 28 August 2012 until 31 May 2013
Amateur
Club H
from 16 August 2013 until 31 December 2013
Professional
Club F
Basis
Definitive
On loan from
Club F
2.
The Football Association 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 June until 31 May of the following year.
3.
According to the information contained in the Transfer Matching System (TMS), the
player was transferred out of contract free of payment from the club from country B,
Club F (hereinafter: the involved club or Club F), to the club from country D, Club C
(hereinafter: the Respondent), and registered for the latter on 26 February 2014 as a
professional.
4.
Also according to the information contained in the 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 12 November 2014, the Claimant lodged a claim before FIFA claiming the
payment of training compensation on the basis of the subsequent professional
registration of the player with the Respondent. In particular, the Claimant requested
from the Respondent the amount of EUR 44,547, plus 5% interest p.a. as of the 31st
day after the player’s registration with the Respondent, plus the procedural costs,
legal costs and other costs “at the discretion of the DRC”.
6.
In this respect, the Claimant held that, on 1 December 2010, the involved club
concluded an employment contract with the player valid as from the date of
signature until 31 December 2013.
7.
Furthermore, the Claimant provided copies of the loan agreements concluded
between the involved club and, amongst other clubs from country B, the Claimant,
during the length of the contract between the player and the involved club.
Training compensation for the Player E
(Club A, country B / Club C, country D)
2
8.
In this context, the Claimant referred to the jurisprudence of both the DRC and CAS
and asserted that it is entitled to receive training compensation from the Respondent
for the period in which the player was effectively trained by the Claimant since (i) it
has contributed to the training of the player, (ii) the loan of the player does not
constitute a subsequent transfer in the sense of art. 3 par. 1 of Annexe 4 of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) and,
consequently, (iii) loans, for training compensation purposes, shall be understood as a
continuous period.
9.
On 10 and 20 February 2015, the Respondent rejected the claim lodged against it by
stating that the player was an amateur while registered with the Claimant and,
consequently, he could not be on loan and that, as a result, the loan to the Claimant
is invalid.
10.
Furthermore, the Respondent held that since (i) the player was an amateur with the
Claimant, (ii) there was no valid loan to the Claimant and (iii) the player did not go
back to the involved club after the registration with the Claimant, it is of the opinion
that the player was registered on a definitive basis as a “free agent” with Club H
(hereinafter: Club H). Alternatively, the Respondent asserted that the transfer of the
player from the involved club to Club H was a definitive transfer since Club F could
not call the player back, it did no longer pay his remuneration, the duration of the
loan mirrored the remaining part of the player’s employment contract with Club F
and the loan agreement was called “transfer agreement” (cf. point I.6 above). In this
respect, the Respondent provided a confirmation issued by the player stating that he
had never entered into an employment contract with the Claimant.
11.
Moreover, the Respondent held that the player, at the time he entered into the
employment contract with the involved club, was 17 years old and that, according to
art. 18 par. 2 of the Regulations, the maximum length of the employment contract
could be 3 years and any clause referring to a longer period shall not be recognised.
In light of the foregoing, the Respondent concluded that since the player was
registered on loan with Club H for 1 month (i.e. from 1 December 2013 until 31
December 2013) without having a valid employment contract with Club F, it has to be
understood as a definitive transfer from the involved club to Club H.
12.
Lastly, the Respondent rejected the claim for interests due to the lack of contractual
or regulatory basis. Equally, it referred to art. 18 par. 4 of the Procedural Rules to
conclude that no procedural compensation shall be awarded, and rejected the claim
for the costs of the proceedings.
13.
In its replica, the Claimant rejected the application of the FIFA Regulations to an
employment relationship between a club from country B and a player from country B
as well as the Respondent’s interpretation regarding an alleged early termination of
said employment relationship, and the consequent conversion of a loan agreement
Training compensation for the Player E
(Club A, country B / Club C, country D)
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into a definitive transfer. In particular, the Claimant asserted that, even assuming the
end of the employment contract on 1 December 2013, it does not imply that the loan
agreement automatically becomes a transfer agreement.
14.
As to the amateur status of the player while being registered with the Claimant, the
latter assessed that it received the player on loan and that, consequently, the player
kept his professional registration on a definitive basis with the involved club. In this
context, the Claimant reiterated that both the employment agreement and the loan
agreements were subject to the Football Association of country B’s regulations only
and that, as a result, the Regulations do not apply. In light of the foregoing, the
Claimant rejected the Respondent’s conclusion that the loan was actually a definitive
transfer.
15.
As to the confirmation of the player (cf. I.10 above), the Claimant stated that the
player is still registered for the Respondent and that his answer is not impartial. As a
result, the Claimant is of the opinion that his statement should be carefully
considered by the DRC and that, in addition, it only confirms that the player was not
under a labour contract with the Claimant and that he did not receive a salary, but he
was under a professional contract with the involved club. In this respect, the Claimant
reiterated that the player’s status during the period he was loaned to the Claimant is
irrelevant.
16.
Moreover, the Claimant rejected that the player did not come back to the involved
club after his loan to the Claimant and that he was subsequently registered with Club
H as a “free agent”. In this respect, the Claimant reiterated that the player was under
an employment contract with the involved club and that the Football Association of
country B confirmed that the player indeed returned to Club F for the period
between 1 June and 15 August 2013 (cf. point 1 above).
17.
Furthermore, the Claimant added that the involved club and Club H, in their loan
agreement, did not include an “option clause”, the loan was for free, it was a fixed
loan and it is a legitimate option that the receiving club does not have to pay the
remuneration of the player during the loan. In this context, the Claimant stated that
the “transfer agreement for a temporary period” used was the Football Association
of country B’s template and that the involved club offered the player a new contract
in order to keep him, a copy of which was provided, but he refused.
18.
In its duplica, the Respondent held that the Claimant failed to prove that the latter
and the player concluded an employment contract and that art. 2 of the Regulations
applies at national level as well. Consequently, the Respondent reiterated that the
employment relationship between the involved club and the player was tacitly
terminated upon the registration of the player with the Claimant as an amateur.
19.
Furthermore, the Respondent underlined that the Claimant failed to provide
evidence of the return of the player to the involved club upon the expiry of his loan
Training compensation for the Player E
(Club A, country B / Club C, country D)
4
to the Claimant. As a result, the Respondent asserted that the player has not been
registered for the involved club since 28 August 2012, which should be considered the
termination date of the employment contract concluded between the involved club
and the player. In particular, the Respondent held that it is contradictory to state that
the player was registered as an amateur with the Claimant on loan and that the
player kept his professional registration with the involved club during the whole
duration of the employment contract.
20.
In this context, the Respondent referred to the jurisprudence of CAS and reiterated
that the alleged loan from the involved club to Club H was a simulation as well as
that the player was a minor at the date of the signature of the contract and that the
employment contract had no effect after 1 December 2013.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
Chamber or 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 12 November 2014. Consequently, the 2014 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is 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 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 deal with
the matter at stake relating to 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 2 of the Regulations on the Status and Transfer of Players
(editions 2014 and 2015), and considering that the player was registered with the
Respondent on 26 February 2014, the 2012 edition of the Regulations on the
Status and Transfer of Players (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. However, the Chamber emphasized that in
the following considerations it will refer only to the facts, arguments and
Training compensation for the Player E
(Club A, country B / Club C, country D)
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documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In this regard, the Chamber recalled that the player, born on 19 November 1993,
was registered on a loan basis with the Claimant for the period between 28
August 2012 and 31 May 2013. Equally, the Chamber observed that after the loan
with the Claimant had expired, the player returned to his club of origin, i.e. Club
F, the club with which the player was still contractually bound and subsequently
loaned to Club H. Thereafter, the player was internationally transferred out of
contract free of payment from the involved club to the Respondent.
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 44,547.
7.
Equally, the Chamber noted that the Respondent rejected the claim of the
Claimant, arguing that the chain of entitlement was broken since i) the player
was an amateur with the Claimant, ii) the loan to the Claimant was not valid due
to the fact that only professional players can be on loan, and thus it could only be
a definitive transfer, iii) the transfer to Club H was also a definitive transfer and
iv) neither the Claimant nor the involved club are the player’s former club in the
sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations since the loan from
Club F to Club H should be considered a definitive transfer.
8.
In view of the foregoing, the Chamber began to analyse whether the
Respondent’s objections to the Claimant’s entitlement to training compensation
could in fact be upheld.
9.
At this point, the Chamber referred to 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.
10.
Bearing in mind the foregoing, the Chamber noted that in accordance with the
information contained in TMS, with the clarifications provided by the Football
Association of country B and with the loan contracts provided by the Claimant,
the player had an employment contract with Club F and was, during the course
of it, transferred on loan to several clubs from country B. In this context, the DRC
recalled the contents of art. 10 par. 1 of the Regulations and, in this respect, it
observed that the player was a professional while registered with the involved
club and that he was loaned on the basis of three written agreements to a club
from country B, subsequently to the Claimant and thereafter to Club H. In this
respect, the DRC formed the belief that regardless of what the status of the
player was with each of these clubs, the player was under an employment
contract with the involved club and, therefore has to be considered as a
professional during the whole period.
Training compensation for the Player E
(Club A, country B / Club C, country D)
6
11.
In continuation of its analysis of the Respondent’s arguments, the DRC deemed it
appropriate to point out that art. 18 par. 2 of the Regulations regulates the
relationship between professional players and clubs. In this regard, the Chamber
underscored that, in accordance with this provision, no third party to such a
relation is entitled to claim that the length of the contract freely concluded
between and fully executed by the player and the involved club contravened the
aforementioned provision since such a claim would necessarily need to be put
forward by one of the parties to the relationship.
12.
Moreover, the Chamber referred to the ITC contained in the TMS (cf. point I.3
above), according to which the last club of the player was the involved club.
13.
In light of the above, the Chamber concluded that the player’s move to Club H
constituted a loan and not a definitive transfer as alleged by the Respondent.
14.
Having established the foregoing, the Chamber referred to art. 20 of the
Regulations as well as to art. 1 par. 1 of Annexe 4 in combination with art. 2 of
Annexe 4 of the Regulations, according to which 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.
15.
Furthermore, 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.
16.
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 E
(Club A, country B / Club C, country D)
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17.
In other words, the Chamber emphasised that the nature of the player’s
registration with a club claiming 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.
18.
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.
19.
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.
20.
As to the argument of the Respondent that the Claimant is not the former club in
the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, the Chamber
wished to recall that art. 3 par. 1 sent. 3 of Annexe 4 stipulates that “In the case
of subsequent transfers of the professional, training compensation will only be
owed to his former club for the time he was effectively trained by that club”. In
this context, the Chamber acknowledged that the Claimant was not the player’s
former club stricto sensu, however, the Chamber pointed out that, within the
framework of loans, the period of time that the player was registered with the
involved club and the period of time that the player was registered with the
Claimant on loan, should be considered as one entire timeframe. Any other
interpretation would lead to the situation in which clubs accepting a player on
Training compensation for the Player E
(Club A, country B / Club C, country D)
8
loan would never be entitled to receive training compensation, even if they
contribute to the training and education of players.
21.
Bearing in mind the foregoing, the Chamber deemed that the Respondent’s
interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations would
clearly contravene the intention of the legislator of the Regulations according to
which all training clubs shall, in principle, be rewarded for their efforts invested
in training young players, including those clubs that have accepted a player on a
temporary basis.
22.
Consequently, taking into account all the above-mentioned considerations, the
Chamber concurred that it had to reject the Respondent’s arguments and decided
that the Respondent is liable to pay training compensation to the Claimant for
the training of the player in accordance with art. 20 of the Regulations and art. 2
par. 1 lit. ii. and art. 3 par. 1 of Annexe 4 of the Regulations.
23.
As a result, and considering art. 3 par. 1 sent. 2 of 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 in the
matter at stake corresponds to 9 months of the 2012/2013 season, i.e. as from 28
August 2012 until 31 May 2013.
24.
Furthermore, 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. In this respect, the Chamber took into
account that according to the documentation on file, the Respondent belonged
to the club category 2.
25.
Consequently, the Chamber decided that the Respondent is liable to pay training
compensation to the Claimant in the amount of EUR 44,547.
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, 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 on a definitive basis, i.e. as of 29 March 2014,
until the date of effective payment.
27.
Furthermore, the Chamber rejected any claim for legal expenses and procedural
compensation in accordance with art. 18 par. 4 of the Procedural Rules and the
Chamber’s respective longstanding jurisprudence in this regard.
Training compensation for the Player E
(Club A, country B / Club C, country D)
9
28.
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 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 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 DRC held that the amount to be taken into
consideration in the present proceedings is EUR 44,547 related to the claim of the
Claimant. Consequently, the Chamber concluded that the maximum amount of
costs of the proceedings corresponds to CHF 10,000 (cf. table in Annexe A of the
Procedural Rules).
30.
As a result, and taking into account the complexity of the case, the Chamber
determined the costs of the current proceedings to the amount of CHF 6,000,
which shall be borne by the Respondent.
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 44,547 plus 5% interest
p.a. as of 29 March 2014.
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 6,000 are to be paid by the
Respondent within 30 days of notification of the present decision as follows:
5.1 The amount of CHF 4,000 has to be paid to FIFA to the following bank
account with reference to case nr. XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
Training compensation for the Player E
(Club A, country B / Club C, country D)
10
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2 The amount of CHF 2,000 has to be paid directly to the Claimant.
6. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance 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. 63 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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