Training Compensation
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the Dis pute
Res olution Cham ber (DRC)
passed on 19 September 2019,
by Mr Geoff Thom pson (England),
Single Judge of the sub-committee of the DRC,
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 Player E
I.
Facts of the cas e
1.
On 9 September 2014, Football Federation of Country B (hereinafter: the Football
Federation of Country B) submitted, through the Transfer Matching System (TMS),
a request for the approval by the sub-committee of the Players’ Status Committee
prior to the international transfer of the player, Player E (hereinafter: the player),
born on 26 January 1998, from a club affiliated to the Football Federation of
Country D (Football Federation of Country D) to register him as an amateur for its
affiliated club, Club F. In particular, the Football Federation of Country B based its
request on the exception outlined in art. 19 par. 2 b) of the Regulations on the
Status and Transfer of Players (hereinafter the Regulations), i.e. “The transfer takes
place within the territory of the European Union (EU) or the European Economic
Area (EEA) and the player is aged between 16 and 18”.
2.
Based on the information available within the aforementioned application, the
player holds the Country D and the Country B citizenship.
3.
On 23 September 2014, the Single Judge of the sub-committee of the Players’
Status Committee accepted the request made by the Football Federation of
Country B on behalf of its affiliated club, Club F, for the approval prior to the
request of the International Transfer Certificate of the Country D/Country B player,
Player E.
4.
According to the player passport issued by the Football Federation of Country B on
23 June 2018, the player was registered with its affiliated clubs, including Club A
(hereinafter: Club A or the Claimant), as follows:
Clubs
Club F
Club A
Regis tration dates
From 02.10.2014 until 24.08.2015
From 25.08.2015 until 23.07.2017
S tatus
Amateur
Amateur
5.
The football seasons in Country B during the period of time the player was
registered with the Claimant started on 1 July and ended on 30 June of the
following year.
6.
According to the information contained in the Transfer Matching System, the
player, coming from the Claimant, was registered as a professional with the
Country D club, Club C (hereinafter: Club C or the Respondent), on 25 July 2017.
7.
Pursuant to the information in the TMS, the Respondent belonged to the category
II (UEFA indicative amount of EUR 60,000 per year) at the moment the player was
registered with it.
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
2
8.
In this framework, on 26 April 2018, Club A contacted FIFA claiming its proportion
of training compensation on the ground of the first registration of the player as a
professional with a club of a different association, before the end of the season of
his 23rd birthday. In particular, the Claimant requested the amount of EUR 115,000
plus 5% interest p.a. as of “the due dates”. In particular, the Claimant indicated
that the training costs shall only be calculated based on the Respondent’s category
as the country where Club C is based, i.e. Country D, is not inside the territory of
the EU/EEA and therefore art. 6 par. 1 of Annexe 4 of the Regulations shall not
apply.
9.
In its reply to the claim, Club C indicated that the player was registered with the
Claimant under the specific “serial youngster” status, of amateur nature.
According to the Respondent, and despite the fact that the player and his
entourage had discussed his future together with the Claimant’s management, the
player “did not receive any concrete interest of [Club A] in proposing a professional
contract”. In this context, having been informed of the player’s situation, Club C
stated that it then offered a professional contract to the player, which the player
eventually signed on 10 July 2017. In this respect, the Respondent declared that
the player’s entourage duly informed Club A of the signature of said contract at
the time. Then, the Respondent declared that the Claimant offered to the player
on 13 July 2017 to enter into a “technical training relationship” (i.e. a further
registration type of amateur status) by way of a letter allegedly back dated to 1
July 2017, an offer the player formally declined on 24 July 2017.
10.
In this respect, the Respondent first explained that although Country D is neither
part of the EU nor of the EEA, the country has signed with the EU on 21 June 1999
“the Agreement on the Free Movement of Persons “, and has “officially entered
the Schengen Area” in 2008. In continuation, Club C emphasised that the freedom
of movement is at the core of the Regulations, and that in this respect “FIFA has
always equalized Country D players to EU players in the application of its
regulations”, in particular when applying the provisions of art. 19 par. 2 lit. b) of
said Regulations. Consequently, Club C stated that, despite the allegations of the
Claimant, the provisions of art. 6 of Annexe 4 of the Regulations have to be applied
to Country D clubs in general, and to this case in particular.
11.
Then, the Respondent declared that the Claimant did not offer a professional
contract to the player, and did not display any “genuine and bona fide interest to
retain the player” by allegedly offering him a new type of amateur registration
three days after having been informed of the player’s signature with Club C and
back dating it to 1 July 2017 in order to “retain training compensation”. In other
words, the Respondent stated that the Claimant did not fulfil the provisions set
out in art. 6 par. 3 of Annexe 4 of the Regulations.
12.
Based on all the above, the Respondent concluded that training compensation was
not due to the Claimant.
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
3
13.
In its replica, Club A stated, inter alia, that the jurisprudence of the FIFA DRC, which
has been confirmed by CAS, clearly indicates that “the FIFA Regulations have
supremacy over national laws in cases regarding transfers of players between
football clubs from different associations”. In this respect, the Claimant declared
that any of the agreements regarding the freedom of movement between Country
D and the EU mentioned by the Respondent are superseded by the Regulations
and that in consequence, as art. 6 par. 3 of Annexe 4 of the Regulations only applies
to cases between clubs within the EU/EEA and since Country D does not belong to
the EU/EEA, said provision does not apply to the case at hand. Finally, Club A
concluded by re-iterating its argumentation contained in its claim.
14.
In its duplica, Club C referred, inter alia, to the transfer of the player when he was
still a minor from his former club in Country D, club G, to the Country B club, Club
F. In particular, the Respondent underlined that the player transferred on the basis
of the exception set out in art. 19 par. 2 b) of the Regulations. In that sense, the
Respondent highlighted that, despite this exception being reserved for transfers
that take place within the EU/EEA and although the former club of the player was
located in Country D, the exception was granted. As such, Club C concluded that it
was a proof that the so-called EU/EEA exceptions contained with the Regulations
were to be applied to Country D, and as such the claim of the Claimant should be
rejected on the basis of its failure to comply with art. 6 par. 3 of Annexe 4 of the
Regulations.
II.
Cons iderations of the S ingle Judge of the s ub-com m ittee of the DRC
1.
First of all, the Single Judge of the sub-committee of the Dispute Resolution
Chamber (hereinafter also referred to Single Judge) analysed whether he was
competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 26 April 2018. Consequently, the 2018
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 Single Judge referred to art. 3 of the Procedural Rules, which
states that the Dispute Resolution Chamber shall examine its jurisdiction in light of
arts. 22 to 24 of the Regulations on the Status and Transfer of Players (edition
2019). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and
art. 22 lit. d) of the Regulations on the Status and Transfer of Players, the Single
Judge is competent to decide on the present dispute relating to training
compensation between clubs belonging to different associations handled through
TMS.
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
4
3.
Furthermore, and taking into consideration that the player was registered with the
Respondent on 25 July 2017, the Single Judge analysed which regulations should
be applicable as to the substance of the matter. In this respect, he confirmed that,
in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2016, 2018 as
well as June 2019), the 2016 edition of the said regulations is applicable to the
matter at hand as to the substance.
4.
The competence of the Single Judge and the applicable regulations having been
established, the Single Judge entered into the substance of the matter. The Single
Judge started by acknowledging the above-mentioned facts of the case as well as
the documentation on file. However, the Single Judge emphasized that in the
following considerations he will refer only to the facts, arguments and
documentary evidence which he considered pertinent for the assessment of the
matter at hand. In particular, the Single Judge recalled that, in accordance with
art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of
proceedings pertaining to the application of the Regulations, any documentation
or evidence generated or contained in the TMS.
5.
In this regard, the Single Judge recalled that, in accordance with the player
passport issued by the Football Federation of Country B, the player, born on 26
January 1998, was registered with the Claimant as an amateur from 25 August 2015
until 23 July 2017. Furthermore, the Single Judge took note that according to the
information contained in the TMS, the player moved from the Claimant to the
Respondent where he was registered as a professional for the first time.
6.
In continuation, the Single Judge took note that the Claimant requested the
payment of training compensation from the Respondent on the ground of the first
registration of the player as a professional with the Respondent before the end of
the season of his 23rd birthday. In particular, the Single Judge took note that the
Claimant requested the amount of EUR 115,000 plus 5% interest p.a. as of “the
due dates”.
7.
In this respect, the Single Judge observed that the Respondent dismissed the claim
of the Claimant, based on its view that the EU/EEA exceptions contained within the
Regulations are applicable to clubs based in Country D and that the Claimant has
failed to comply with the requirements of art. 6 par. 3 of Annexe 4 of the
Regulations.
8.
Furthermore, and hereby referring to the rules applicable to training
compensation, the Single Judge stated that, as established in art. 20 of the
Regulations in combination with art. 1 par. 1 and art. 2 par 1. 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
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
5
when a professional is transferred between clubs of two different associations
before the end of the season of the player’s 23rd birthday.
9.
In continuation, the Single Judge observed that, based on the documents at
disposal, it can be established that the player was registered with the Claimant
before the end of the season of his 21st birthday, i.e. as an amateur as from 25
August 2015 until 23 July 2017. Likewise, the Single Judge duly noted that the
player was registered as a professional for the first time with the Respondent on
25 July 2017, i.e. before the end of the season of his 23 rd birthday.
10.
In view of the above, the Single Judge concluded that the Respondent would, in
principle, be liable to pay training compensation to the Claimant, which is one of
the clubs with which the player has previously been registered and that has
contributed to his training in the sense of art. 3 par. 1 sent. 1 of Annexe 4 of the
Regulations.
11.
In this context, the Single Judge highlighted that the main issue that needed to be
assessed in this matter was of the applicability of art. 6 of Annexe 4 of the
Regulations as lex specialis.
12.
In this respect, the Single Judge underlined that the Respondent put forward the
argument that certain exceptions of the Regulations are applied to clubs based in
Country D, such as art. 19 par. 2 b) of the Regulations, and that as such all of said
exceptions shall be applied to Country D clubs, including art. 6 of Annexe 4 of the
Regulations.
13.
In fact, and as raised by the Respondent, the Single Judge recalled that on 23
September 2014, the Single Judge of the sub-committee of the Players’ Status
Committee approved the application submitted by the Football Federation of
Country B on behalf of its affiliated club, Club F, prior to the transfer of the player
from his former club, a club affiliated to the Football Federation of Country D, to
Club F. In particular, the Single Judge duly noted that the Football Federation of
Country B invoked the exception set out in art. 19 par. 2 b) of the Regulations, i.e.
“The transfer takes place within the territory of the European Union (EU) or the
European Economic Area (EEA) and the player is aged between 16 and 18”, and
that said application was accepted on the basis of this particular article. In this
respect, the Single Judge observed that based on the documentation submitted
within said application, the player was holder of the Country D and the Country B
citizenship.
14.
The Single Judge also recalled that, according to the jurisprudence of the subcommittee of the Players’ Status Committee, the exception of art. 19 par. 2 b) may
be applied to players who are EU/EEA nationals between the age of 16 and 18,
registered in a non-EU/EEA country and who wish to register with a club based in
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
6
an EU/EEA country, providing that all the other criteria set out in this particular
article of the Regulations are fulfilled.
15.
As such, the Single Judge determined that in view of the fact that the player was
both a Country D and Country B citizen when transferring from Country D to
Country B, it would de facto not demonstrate that the player benefited from one
of the EU/EEA exceptions of the Regulations solely based on territoriality, i.e. the
involvement of Country D, as stated by the Respondent.
16.
What is more, the Single Judge strongly emphasised that the provisions of art. 6 of
Annexe 4 of the Regulations are limited to a well-defined geographic scope. Since
the Claimant is a member of the Football Federation of Country D, and Country D
is neither a member of the European Union (EU), nor of the European Economic
Area (EEA), the Chamber found it evident that art. 6 of Annexe 4 of the Regulations
shall not apply to the present matter.
17.
Consequently, the Single Judge concluded that no further analysis regarding the
prerequisites for the application of art. 6 of Annexe 4 of the Regulations as a lex
specialis was required.
18.
In view of the foregoing, the Single Judge concluded that the Respondent is liable
to pay training compensation to the Claimant for the training of the player in
accordance with art. 20 as well as Annexe 4 of the Regulations.
19.
Turning his attention to the calculation of the training compensation, the Single
Judge referred to 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. As such, the Single
Judge concluded that the effective period of time to be considered in the matter
at stake corresponds to 10 months of the season of the player’s 18th birthday, the
entire season of his 19th birthday as well as 1 month of the season of his 20th
birthday.
20.
Furthermore, the Single Judge referred to art. 5 paras. 1 and 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.
21.
In this respect, the Single Judge took due note that, according to the information
contained in the TMS, the Respondent belonged to category II (indicative amount
of EUR 60,000 per year within UEFA) at the time the player was registered with it.
22.
Consequently, taking into consideration all the above, the Single Judge decided
that the Respondent is liable to pay the amount of EUR 115,000 to the Claimant
for the training and education of the player.
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
7
23.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of
Annexe 4 of the Regulations, the Single Judge decided that the Respondent has to
pay interest at 5% p.a. over the amount payable as training compensation as of 25
August 2017 until the date of effective payment.
24.
Lastly, the Single Judge 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.
25.
In respect of the above, the Single Judge held that the amount to be taken into
consideration in the present proceedings is EUR 115,000 related to the claim of the
Claimant. Consequently, the Single Judge concluded that the maximum amount of
costs of the present proceedings corresponds to CHF 15,000 (cf. table in Annexe A
of the Procedural Rules).
26.
As a result and taking into account that the Claimant is the successful party in the
proceeding, the Single Judge determined the costs of the current proceedings to
the amount of CHF 12,000, which shall be entirely borne by the Respondent.
*****
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
8
III.
Decis ion of the S ingle Judge of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, Club A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, the amount of EUR 115,000 + 5% p.a. interest
as from 25 August 2017 until the date of effective payment.
3.
In the event that the aforementioned sum plus interest are 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.
The final costs of the proceedings in the amount of CHF 12,000 are to be paid by
the Respondent, w ithin 30 day s as from the date of notification of the present
decision, as follows:
4.1.
The amount of CHF 9,000 has to be paid to FIFA to the following bank
account with reference to case no. XXX XXXX/XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2.
The amount of CHF 3,000 has to be paid back to the Claimant.
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
9
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance under point 2. above is to be made and
to notify the Single Judge of the sub-committee of the DRC of every payment
received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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
Country D
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Single Judge of the
sub-committee of the DRC
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Training compensation for the player Player E
(Club A, Country B / Club C, Country D)
10