Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Johan van Gaalen (South Africa), member
Essa M. Saleh Al Housani (United Arab Emirates), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
S,
as Claimant
against the club,
B,
as Respondent
regarding a training compensation dispute
related to the transfer of the player R
I.
Facts of the case
1.
The Football Association K confirmed that the player, R (hereinafter: the
player), born on 27 March 1987, was registered with its affiliated club, S
(hereinafter: the Claimant), from 28 February 2003 until 30 January 2009 as a
professional.
2.
The sporting season in the Republic K runs from 1 March until the end of the
month of February of the following year.
3.
According to the Football Federation T (hereinafter: the FFT), the player was
registered with its affiliated club B (hereinafter: the Respondent) on 26
January 2009 as a professional.
4.
The FFT confirmed that the Respondent belonged to the category II
(indicative amount of EUR 60,000 per year within UEFA) during the season
2009/2010, i.e. when the player was registered with the said club.
5.
On 3 April 2009, the Claimant contacted FIFA asking for its proportion of
training compensation from the Respondent. In particular, the Claimant is
requesting the payment of EUR 360,000.
6.
Furthermore, the Claimant forwarded to FIFA a copy of a correspondence
dated 10 June 2009 it received from the Respondent, by means of which the
latter “absolutely agree[s] for the payment and total value of the fee”, but
requested to proceed with the said payment in instalments due to its
financial difficulties. The Respondent further asserts that “as soon as we
receive instalment conditions and value, we will send [to the Claimant] first
payment immediately.”
7.
In its reply, the Respondent informed FIFA that the player had allegedly left
the city of B on 6 October 2009, claiming the termination of his employment
contract on the basis of the apparent non-payment of a signing-on fee that
was due by the Respondent. In this respect, the Respondent states it
performed all financial obligations it has towards the player.
8.
In spite of having been repeatedly invited by FIFA to proceed with the
payment of training compensation or to present its position with regard to
the claim, no statement or reply regarding the substance of the present
matter was ever received from the Respondent to date.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution 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 3 April 2009. Consequently, the
2008 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules,
which states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (editions 2008 and 2009). In accordance with art. 24 par. 1
in connection with art. 22 lit. d) of the aforementioned Regulations, the
Chamber shall adjudicate on disputes relating to training compensation
between clubs belonging to two different associations.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2008 and 2009) and, on the other hand, to the fact that the player was
registered for the Respondent as a professional on 26 January 2009. In view
of the aforementioned, the Chamber concluded that that the 2008 edition of
the Regulations on the Status and Transfer of Players (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. In doing
so, the members of the Chamber started to acknowledge the facts of the case
as well as the documents contained in the file.
5.
In this respect, the members of the Chamber started by acknowledging that,
the player, born on 27 March 1987, was registered for the Claimant as from
28 February 2003 until 30 January 2009 as a professional football player and
that the sporting season in Republic K lasts from 1 March to the end of the
month of February of the following year.
6.
In continuation, the Chamber stated that, as established in art. 1 par. 1 of
Annex 4, in combination with art. 2 of Annex 4 of the Regulations, training
compensation is payable, as a general rule, for training incurred between the
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ages of 12 and 21, when the player concerned is registered for the first time
as a professional, or when a professional is transferred between two clubs of
two different associations, before the end of the season of the player’s 23 rd
birthday.
7.
In view of the above, the DRC concluded that on the basis of the documents
at its disposal, it can be established that the player of the reference, who was
born on 27 March 1987, was registered with the Respondent on 26 January
2009, i.e. before the end of the season of his 23rd birthday and thus, entitling
the Claimant to receive training compensation from the Respondent.
8.
Turning its attention to the absence of statement or reply from the
Respondent with regard to the substance of the matter at hand, the Chamber
could verify that, within the frame of the investigation phase related to the
matter at hand, FIFA contacted the Respondent in writing several times. In
continuation, in the contents of its last two correspondences, it explicitly
referred the Respondent to the stipulations of art. 9 par. 3 of the Procedural
Rules, which terms entitle the DRC to consider and decide on a claim only
upon the basis of the documents already on file if no statement or reply is
received before the time limit expires from the Respondent.
9.
Finally, the Chamber regretted the Respondent’s behaviour, consisting in not
presenting its position in relation with the dispute despite having been
repeatedly asked to do so by FIFA. In this regard, the Chamber considered
that by doing so, the Respondent renounced to its right to defence and
implicitly accepted the Claimant’s allegations.
10.
Also, the Chamber has taken due note of the Respondent’s submissions
concerning the issue involving the player of the reference and the
Respondent. In this respect, the members of the Chamber considered that an
existing or a potential labour dispute between the Respondent and the
player has no effects whatsoever on a distinct dispute regarding the payment
of training compensation between the Respondent and the Claimant. With
regard to this particular issue, the Chamber noted that FIFA had informed in
writing the Respondent that the documents provided will not be forwarded
to the Claimant since they were not related to the case at hand.
11.
Then, the Chamber recalled that according to the legal principle of the burden
of proof, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
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12.
In view of the above, the Chamber unanimously concluded that any club which is
obliged to pay training compensation for the transfer of the player and alleges
that it has paid the relevant training compensation, shall carry the burden of
proof that the training compensation had indeed been paid to the entitled
parties. As a result, the members of the Chamber deduced that the
Respondent could not prove that it paid any training compensation to the
Claimant.
13.
On account of all the above, the Chamber concluded that the Respondent’s
right to be heard had been duly respected and that the absence of statement
or reply from the Respondent with regard to the claim at hand had to lead
the Chamber to pass its decision on the basis on the documents on file.
14.
Consequently and bearing in mind the above-mentioned considerations, the
Chamber reverted to its previous considerations in accordance with which it
considered that training compensation was due to the Claimant, who
justified its entitlement to receive training compensation (cf. point II. 5., 6.
and 7. above).
15.
As a result, and once more considering the points II. 5., 6. and 7. above, as
well as art. 3 par. 1 of Annex 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 71 months as from March 2003 until the end of January 2009.
16.
In this respect, the Chamber wished to recall that the player passport
mentioned that the player was indeed registered for the Claimant as from
28 February 2003 until 30 January 2009, date on which the player’s
International Transfer Certificate was issued by the Football Association K in
favour of the Football Federation´s T affiliated club, i.e. the Respondent.
17.
Turning its attention to the calculation of the amount of training
compensation due to the Claimant, the Chamber referred to art. 5 par. 1 and
2 of Annex 4 of the Regulations, which stipulates that, as a general rule, it is
necessary to take the costs that would have been incurred by the new club if
it had trained the player itself and is therefore calculated on the basis on the
training costs of the new club multiplied by the number of years of training
with the former club.
18.
In this respect, the Chamber took due note that according to the information
at its disposal, by the time the player was registered as a professional with
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the Respondent, i.e. on 26 January 2009, the latter belonged to category II
(indicative amount of EUR 60,000 per year within UEFA).
19.
In view of the above, the Chamber concluded that the Claimant is entitled to
receive training compensation from the Respondent in the amount of
EUR 355,000, and hence, the claim of the Claimant, S, is partially accepted.
20.
In continuation, the Chamber referred to art. 18 par. 1 of the Procedural
Rules, according to which in the proceedings before the Dispute Resolution
Chamber relating to disputes regarding training compensation costs in the
maximum amount of CHF 25,000 are levied. The costs are to be borne in
consideration of the parties’ degree of success in the proceedings.
21.
In this respect, the Chamber reiterated that the claim of the Claimant is
partially accepted. Therefore, the Respondent has to bear the costs of the
current proceedings in front of FIFA.
22.
According to Annex A of the Procedural Rules, the costs of the proceedings
are to be levied on the basis of the amount in dispute.
23.
The amount in dispute to be taken into consideration in the present
proceedings amounts to EUR 355,000 related to the claim of the Claimant.
Therefore, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to CHF 25,000 (cf. table in Annex A).
24.
Considering that the case at hand did not show particular factual difficulty
but, on the other hand a certain legal complexity, the Chamber determined
the final amount of costs of the current proceedings to the amount of CHF
20,000.
25.
In this respect, the Chamber took into account that the Claimant paid an
advance of costs in the amount of CHF 5,000 in accordance with art. 17 of the
Procedural Rules.
26.
In view of all of the above, the Chamber concluded that the amount of CHF
20,000 has to be paid by the Respondent to cover the costs of the present
proceedings. Thereof the amount of CHF 15,000 has to be paid by the
Respondent to FIFA and the amount of CHF 5,000 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, S, is partially accepted.
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2.
The Respondent, B, has to pay to the Claimant, S, the amount of EUR 355,000
within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline,
interest at the rate of 5% p.a. will apply as of expiry of the stipulated time
limit and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and a formal decision.
4.
The final amount of costs of the proceedings in the amount of CHF 20,000 are
to be paid by the Respondent, B, within 30 days of notification of the
present decision as follows:
4.1
The amount of CHF 15,000 to FIFA to the following bank account with
reference to case no. xxx XX-XXXXX:
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 5,000 to the Claimant, S.
5.
Any further claims lodged by the Claimant, S, are rejected.
6.
The Claimant, S, is directed to inform the Respondent, B, 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.
*****
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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
Deputy Secretary General
Encl. CAS directives
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