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 26 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.
According to the player passport issued by the Football Federation of Country B
(hereinafter: the Football Federation of Country B) on 17 August 2017, the player,
Player E (hereinafter: the player), born on 4 May 1994, was registered with its
affiliated club, Club A (hereinafter: the Claimant), (a) as an amateur from 15 June
2009 until 30 June 2010 and (b) as a professional from 1 July 2010 until 1 August
2017.
2.
Pursuant to the information provided by the Football Federation of Country B, the
football seasons in Country B follow the calendar year.
3.
According to the information available on the Transfer Matching System (TMS),
the football seasons in Country D start in July of one year and end in June of the
following year.
4.
Based on the information contained in the TMS, the Claimant concluded a transfer
agreement (hereinafter: the transfer agreement) with the club of Country D, Club
C (hereinafter: the Respondent), for the registration of the player on a permanent
basis with the Respondent on 11 August 2017.
5.
In particular, clause 2. of the transfer agreement states as follows:
“Transfer Fee: in order to make the transfer feasible, [the Respondent] agrees to
pay [the Claimant] the net amount of EUR 5,500,000 (five million five hundred
thousand Euros), payable within 05 (five) days as from the effective transfer and
registration of the player to [the Respondent]”.
6.
Furthermore, clause 2. par. 1. of the transfer agreement stipulates that “the
referred definitive transfer fee amount is net, free of tributes, solidarity mechanism
FIFA, training compensation FIFA, taxes or other deductions, which costs shall be
paid by [the Respondent]”.
7.
Pursuant to the information in the TMS, the Respondent belonged to the category
I (UEFA indicative amount of EUR 90,000 per year) at the moment the player was
registered with it.
8.
In this framework, on 20 October 2017, the Claimant contacted FIFA claiming its
proportion of training compensation on the ground of the transfer of the player
as a professional to 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
545,479.45 plus “default interest as from 27 August 2017 in a fair rate, in any case
no less than 5% per year”.
Training compensation for the player Player E
(Club A, Country B /Club C, Country D)
2
9.
In its reply to the claim, the Respondent highlighted that in its statement of claim,
the Claimant wrongfully indicated that it lodged its complaint in front of the
Players’ Status Committee. In this respect, the Respondent declared that disputes
regarding training compensation have to be lodged in front of the Dispute
Resolution Chamber (hereinafter: the DRC), and that in consequence the claim of
the Claimant should be deemed inadmissible.
10.
In the event of the claim being deemed admissible, the Respondent indicated that
the jurisprudence of the DRC with regard to training compensation “considers that
a transfer fee is supposed to contain the eventual training compensation that
would be due to the ‘selling’ club, unless if a contradictory and explicit clause
exists”.
11.
In this respect, the Respondent stated that the spirit of clause 2. par. 1. of the
transfer agreement was to emphasise that any deductions that would potentially
be due to third parties, including training compensation, were included in the
transfer fee of EUR 5,500,000 received by the Claimant.
12.
Then, the Respondent argued that at the time of the transfer of the player, the
season of the player’s 23rd birthday had already ended in Country D.
13.
Finally, should it be deemed that training compensation is due in the present
matter, the Respondent indicated that the amount awarded for training
compensation should be reduced considering that the player terminated his
training period prior to the end of the season of his 21 st birthday. In this respect,
in view of the fact that the player had already signed a professional contract with
the Claimant on 1 July 2010, the Respondent concluded that his training period
should be considered completed on 30 June 2010. As such, the Respondent argued
that in this scenario the Claimant should not be awarded more than EUR 50,475.45.
14.
In its replica, the Claimant stated, inter alia, that the wording of clause 2. and
clause 2. par. 1. were “self-explanatory”, and clearly stating that “the transfer fee
does not include the Training Compensation value”.
15.
In addition, the Claimant declared that the season of the player’s 23rd birthday was
still running in Country B at the time of the transfer of the player to the
Respondent, and that therefore training compensation was effectively due.
16.
With regards to the early termination of the training period of the player before
his 21st birthday, the Claimant provided, inter alia, detailed information evidencing
that the player never participated in official matches for its first team until the end
of the season 2013, only competing with its youth teams. Then, the Claimant stated
that the player participated (a) in less than 25% of its first team matches during
the season 2014; (b) in or around 68% of its first team matches during the season
Training compensation for the player Player E
(Club A, Country B /Club C, Country D)
3
2015, and (c) in or around 89% of its first team matches during the season 2016
and during season 2017 until his transfer to the Respondent. Furthermore, the
Claimant stated that the player only started to earn a salary equivalent to the
average salary paid to its first team players on 17 July 2017. As such, the Claimant
maintained that the player had not completed his training before the end of the
season of his 21st birthday and consequently reiterated its request for relief.
17.
In its duplica, the Respondent reiterated its arguments detailed above.
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 20 October 2017. Consequently, the 2017
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.
3.
Furthermore, and taking into consideration that the player was registered with the
Respondent on 11 August 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 on the Status and
Transfer of Players (editions 2016, January and June 2018 as well as edition June
2019), the 2016 edition of the said regulations (hereinafter: 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
Training compensation for the player Player E
(Club A, Country B /Club C, Country D)
4
proceedings pertaining to the application of the Regulations, any documentation
or evidence generated or contained in the TMS.
5.
First of all, the Single Judge observed that the claim of the Claimant was lodged
on 20 October 2017 via the TMS, in line with art. 5 of Annexe 6 of the Regulations.
Consequently, the Single Judge declared the claim admissible.
6.
Then, the Single Judge recalled that, in accordance with the player passport issued
by the Football Federation of Country B, the player, born on 4 May 1994, was
registered with the Claimant (a) as an amateur from 15 June 2009 until 30 June
2010 and (b) as a professional from 1 July 2010 until 1 August 2017. Furthermore,
the Single Judge recalled that according to the information contained in the TMS,
the player was subsequently transferred to the Respondent on 11 August 2017,
with which he was also registered as a professional on the same date.
7.
In continuation, the Single Judge took note that the Claimant requested the
payment of the training compensation from the Respondent on the ground of the
definitive transfer of the player as a professional to 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 545,479.45 plus “default interest as from
27 August 2017 in a fair rate, in any case no less than 5% per year”.
8.
The Single Judge acknowledge that the Respondent argued, inter alia, that the
claim of the Claimant should be rejected on the basis that training compensation
was already included in the transfer agreement, and that in any case the season of
the player’s 23rd birthday had already ended in Country D at the time of his
registration in August 2017. What is more, the Respondent declared that should
training compensation be deemed due, the amount attributed should be lowered
to EUR 50,475.45 in view of the fact that the player had completed his training
period on 30 June 2010.
9.
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
when a professional is transferred between clubs of two different associations
before the end of the season of the player’s 23rd birthday.
10.
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. (a) as an amateur from 15
June 2009 until 30 June 2010 and (b) as a professional from 1 July 2010 until 1
Training compensation for the player Player E
(Club A, Country B /Club C, Country D)
5
August 2017. Likewise, the Single Judge duly noted that the player was
subsequently registered with the Respondent as a professional on 11 August 2017.
11.
In this regard, the Single Judge acknowledged that the Respondent stated that the
player transferred to the Respondent after the end of the football season of his
23rd birthday.
12.
Recalling the constant jurisprudence of the DRC in this respect, the Single Judge
indicated that training compensation is calculated upon the football seasons of the
Claimant, not of the Respondent, in order to prevent clubs not being rewarded for
their work in training players when they move to associations which have different
season dates.
13.
Paying particular attention to the facts of the present matter, the Single Judge
noted that the football season in Country B follows the calendar year, whilst the
season in Country D starts in July of one year and ends in June of the following
year. In addition, the Single Judge highlighted that the player, born on 4 May 1994,
transferred to the Respondent on 11 August 2017, that is to say during the course
of the season of the player’s 23rd birthday in Country B. Therefore, the Single Judge
decided to set aside this particular argument of the Respondent.
14.
The Single then turned his attention to the transfer agreement that the Claimant
and the Respondent concluded with regard to the transfer of the player. In fact,
the Single Judge observed that the transfer agreement stipulated that the
Respondent had to pay the Claimant EUR 5,500,000 as “transfer fee” payable
within five days after the registration of the player with the Respondent.
15.
Furthermore, the Single Judge observed that, according to clause 2. par. 1 of the
transfer agreement, “the referred definitive transfer fee amount is net, free of
tributes, solidarity mechanism FIFA, training compensation FIFA, taxes or other
deductions, which costs shall be paid by [the Respondent]”.
16.
The Single Judge stated that, the Single Judge stated that, according to the wellestablished jurisprudence of the DRC, if two clubs conclude a transfer agreement
providing for the respective financial obligations, i.e. transfer compensation,
training compensation is considered as being included in the transfer
compensation. However, if the parties wish to stipulate the contrary to the
aforementioned, i.e. training compensation being due in addition to the agreed
transfer compensation, they need to explicitly mention it in the transfer
agreement.
17.
Bearing the aforementioned in mind, the Single Judge thoroughly analysed the
contents of the transfer agreement, and in particular of clause 2. and clause 2. 1.
Training compensation for the player Player E
(Club A, Country B /Club C, Country D)
6
18.
In this respect, the Single Judge acknowledged that the Respondent committed to
pay to the Claimant a transfer fee of EUR 5,500,000 within five days of the player’s
registration with the Respondent. In addition, the Single Judge duly observed that
the transfer agreement stipulates that the aforementioned transfer fee is “net,
free of (…) training compensation FIFA”.
19.
In view of the above, the Single Judge had no other option but to conclude that
the Claimant and the Respondent agreed that training compensation in the sense
of the Regulations was not included within the transfer fee, and that the payment
of said training compensation had to be covered by the Respondent in addition to
the aforementioned net transfer fee. In this respect, the Single Judge strongly
emphasised that the contents of the aforementioned clauses were unambiguous
in that sense and left no room for interpretation, and that both the Claimant and
the Respondent signed the transfer agreement in good knowledge of its contents.
20.
In view of the foregoing, the Single Judge concluded that the Respondent is, in
principle, 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.
21.
Then, with reference to art. 1 par. 1 of Annexe 4 of the Regulations, the Single
Judge emphasised that training compensation for a player is generally payable up
to the age of 23 for training that occurred form the age of 12 up until the age of
21, unless it is evident that said player has completed his training period before the
age of 21. What is more, the Single Judge noted that in such instance, the
calculation of training compensation would be based on the years between the
age of 12 up until the age when it is established that said player ended his training
period.
22.
In this regards, the Single Judge remarked that the Respondent declared that the
player had terminated his training period upon signing his first professional
contract with the Claimant on 1 July 2010.
23.
Having considered the Respondent’s position about the player’s completion of his
training period before his 21st birthday, the Single Judge concluded that the
Respondent did not provide evidence within the meaning of art. 12 para. 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. The Single Judge remarked that the
Respondent only relied upon the fact that the player signed his first professional
contract with the Claimant on 1 July 2010 in order to arrive to the conclusion that
his training period had been completed by then.
24.
In that regard, the Single Judge pointed out that in the absence of any supporting
evidence, he was not in a position to determine whether or not the player had
indeed already ended his training period when turning professional with the
Training compensation for the player Player E
(Club A, Country B /Club C, Country D)
7
Claimant. As such, the Single Judge concluded that the player’s training period had
not been completed prior to the end of the season of his 21st birthday.
25.
Consequently, the Single Judge determined 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.
26.
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, Judge
concluded that the effective period of time to be considered in the matter at stake
corresponds to the following:
-
7 months of the season of the player’s 15th birthday;
The full the season of the player’s 16th birthday;
The full the season of the player’s 17th birthday;
The full the season of the player’s 18th birthday;
The full the season of the player’s 19th birthday;
The full the season of the player’s 20th birthday; and
The full the season of the player’s 21st birthday.
27.
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.
28.
In this respect, the Single Judge took due note that, according to the information
contained in the TMS, the Respondent belonged to category I (indicative amount
of EUR 90,000 per year within UEFA) at the time the player was registered with it.
29.
Consequently, taking into consideration all the above as well as the amount
claimed by the Claimant, the Single Judge decided that the Respondent is liable to
pay the amount of EUR 545,479.45 to the Claimant for the training and education
of the player.
30.
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 10
September 2017 until the date of effective payment.
31.
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
Training compensation for the player Player E
(Club A, Country B /Club C, Country D)
8
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.
32.
In respect of the above, the Single Judge held that the amount to be taken into
consideration in the present proceedings is EUR 545,479.45 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 25,000.
33.
As a result, the Single Judge determined the costs of the current proceedings to
the amount of CHF 25,000 which should be entirely borne by the Respondent in
view of the outcome of the case.
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 partially 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 545,479.45 + 5% interest p.a.
as from 10 September 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 25,000 are to be paid by the
Respondent, w ithin 30 day s of notification of the present decision, as follows:
4.1 The amount of CHF 20,000 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: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2 The amount of CHF 5,000 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
Switzerland
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