Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 24 October 2011,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the club,
A,
as Claimant
against the club,
S,
as Respondent
regarding training compensation in connection with the player B
I.
Facts of the case
1.
According to an official confirmation of the Football Federation W (FFW) the
player, B (hereinafter: player), born on 27 July 1992, was registered with B club,
(hereinafter: Claimant) as from 13 August 2008 until 30 June 2009 as an
amateur. The Football Federation W also submitted a copy of the player
passport of the player which indicated that the player was registered with
“Academy/Junior Club”, as from August 2004 until June 2008. In addition, the
Football Federation W indicated that the international clearance for the player
was granted to The Football Federation E (FFE) on 5 June 2009.
2.
Following a request of FIFA to clarify whether “Academy/Junior Club” was in
fact the same club as the Claimant, the Football Federation W explained that in
the time period 2004-2008 the player was registered with an unknown junior
club and attending development sessions with the Claimant. The Football
Federation W clarified that it was unable to obtain the information as to with
which clubs the player was registered prior to the 2008/2009 season and could
therefore only confirm that the player was registered with the Claimant as
from 13 August 2008 until 30 June 2009.
3.
The football season in country W 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.
4.
According to an official confirmation of the Football Federation W, the
Claimant belonged to the club category III.
5.
According to an official confirmation of The Football Federation E the player
was registered with its affiliated club, S (hereinafter: Respondent) on 29
January 2010, after receipt of the pertinent International Transfer Certificate
from the Football Federation W on the same day, as an amateur and as of 5
August 2010 as a professional.
6.
According to the information contained in the Transfer Matching System
(TMS), the Respondent belonged to the club category II.
7.
On 27 January 2011, the Claimant lodged a claim in front of FIFA claiming the
payment of training compensation from the Respondent asserting that, on 5
August 2010, the player had signed his first professional contract with the
Respondent. Initially, the Claimant claimed the amount of EUR 45,000 from the
Respondent, however, the Claimant amended its claim to EUR 85,000 after
having been provided with a copy of the player passport.
2/11
8.
To its claim, the Claimant enclosed a letter dated 24 May 2010 which it had
sent to the Respondent, by means of which it had informed the latter that the
player was offered a contract and that it, therefore, requested the payment of
training compensation from the Respondent. Also, the Claimant enclosed a
letter of the Respondent dated 3 June 2010, by means of which the
Respondent had replied that it would not make any payment to the Claimant
as it had not provided written evidence that it indeed had offered a contract
to the player.
9.
In this regard, the Claimant, while acknowledging that it did not put such offer
in writing, explained that it was anyhow entitled to receive training
compensation as it had offered the player a contract whereby the player could
continue his education at school for another year and play for the Claimant in
consideration of a weekly payment. The Claimant pointed out that,
notwithstanding the contract offer, the player decided to sign a contract with
the Respondent as it was the player’s last opportunity to become a full-time
professional player. Lastly, the Claimant indicated that the Respondent had at
no time enquired whether or not the Claimant had made an offer to the
player.
10. In its response, the Respondent rejected the Claimant’s claim for training
compensation arguing that the player had completed his contract with the
Claimant and was thus a “free agent”. In this respect, the Respondent
underlined that it was not made aware of any contract offered by the Claimant
to the player. In particular, the Respondent stated that no offer in writing was
ever made to the player and certainly not 60 days before the end of the
player’s existing contract. The Respondent indicated that “S on discussion with
B can confirm only a verbal offer was ever given in surroundings not fitting
such a proposal and there were no follow ups on the offer and certainly no
written contract was ever received. Verbal discussions as recognised by both
the claimant and within B statement do not constitute sufficient grounds to
satisfy the requirement”. Furthermore, the Respondent doubted that the
Claimant intended to make a formal written contract offer to the player, since,
apparently, the Claimant had arranged and agreed on a trial for the player
with a third club.
11. To its reply, the Respondent enclosed a duly signed written statement of the
player as well as of the player’s father, in which they both stated that in April
2009 the player was verbally offered a contract by the Claimant, however, the
offer was based on financial terms for up to two years, no contract was ever
received and nothing was ever signed.
12. In its replica, the Claimant pointed out that the player did not have a contract
during the 2008/2009 season and that, therefore, the second and third
3/11
sentence of art. 6 par. 3 of Annexe 4 of the Regulations on the Status and
Transfer of Players do not apply in the present matter. In this context, the
Claimant stressed that it did comply with the first sentence of art. 6 par. 3 of
Annexe 4 as it had trained the player and offered the player a contract, a fact
recognized by the written statements of the player and the player’s father. In
view of the fact that it trained the player and offered the player a contract, the
Claimant concluded it was entitled to receive training compensation from the
Respondent.
13. Lastly, the Claimant confirmed that it had some amateur players and some
professional players in its team as well as that it had arranged a trial with a
third club for the player.
14. In its duplica, the Respondent stated that “whilst it may be recognised that A
may have made adequate provision with regards the initial training contract, A
failed on all counts to provide a written offer of a contract within the 60 days
requirement before the players registration expired”. Furthermore, the
Respondent emphasized that the Claimant itself had stated that it had “some
amateur non-contract players and some professionals”, and, thus, confirmed
that it was obliged to comply with the requirement to offer a player a contract
in accordance with the “60 days requirement”.
II.
Considerations of the DRC judge
1.
First of all, the DRC 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 27 January 2011. Consequently, the 2008 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 par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and par. 2 lit. ii. in
conjunction with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2010) the DRC judge is competent to deal with the matter at
stake relating to training compensation between clubs belonging to different
associations.
3.
Furthermore, the DRC 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 par. 2 of the Regulations on the Status and
Transfer of Players (editions 2009 and 2010), and considering that the player
was registered with the Respondent as an amateur on 29 January 2010 and as
4/11
a professional on 5 August 2010 as well as that the present claim was lodged
on 27 January 2011, the 2009 edition of said regulations (hereinafter:
Regulations) is applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well
as the documentation on file.
5.
First of all, the DRC judge recalled that the player was born on 27 July 1992,
was registered with the Claimant as from 13 August 2008 until 30 June 2009 as
an amateur player and that the international clearance for the player was
granted to The Football Federation E on 5 June 2009. Equally, the DRC judge
recalled that the player was registered with the Respondent, first as an
amateur on 29 January 2010 and as a professional on 5 August 2010.
6.
In continuation, the DRC judge took note that the Claimant asserted that it
was entitled to receive training compensation from the Respondent in the
amount of EUR 85,000, since the player had signed his first professional
contract with the Respondent.
7.
Equally, the DRC judge took note that the Respondent rejected the Claimant’s
claim for training compensation, arguing that the Claimant had not offered
the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the
Regulations. More particularly, the DRC judge observed that although the
Respondent recognized that the Claimant had made a verbal offer to the
player, it stressed that such an offer was not made in writing and had not been
offered to the player 60 days before the end of the player’s existing contract.
In this respect, the DRC judge noted that the Respondent argued that, due to
the fact that the Claimant had both amateur players and professional players
in its squad, the Claimant was obliged to comply with the requirement to offer
the player a contract in accordance with the, as the Respondent puts it, “60
days requirement”.
8.
As to the argument of the Respondent that the Claimant had not offered a
contract to the player 60 days before the end of the player’s existing contract,
the DRC judge observed that the Claimant denied that it had concluded an
employment contract with the player and that the player passport issued by
the Football Federation W confirmed that the player, at all time during his
registration with the Claimant, was registered as an amateur. Furthermore,
and after a careful examination of the documentation on file, the DRC judge
noted that the Respondent had failed to corroborate its statement that the
player had an existing contract with the Claimant with documentary evidence
(cf. art. 12 par. 3 of the Procedural Rules). Consequently, the DRC judge
5/11
determined that the player was not under written contract with the Claimant
and was an amateur player while being registered with the Claimant.
9.
With due consideration to the above, and referring to the rules applicable to
training compensation, the DRC judge firstly stated 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.
10.
Moreover, the DRC judge 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).
11.
In view of the above, the DRC judge stated that he had to verify whether art. 6
par. 3 of Annexe 4 of the Regulations applies to the present case as lex
specialis, and, in the affirmative, to determine if the Claimant complied with
the said provision in order to be entitled to receive training compensation
from the Respondent.
12.
As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is
concerned, the DRC judge indicated that, since the player moved from country
W to country E, i.e. moved from one association to another association inside
the territory of the EU, the said article is applicable. Therefore, the DRC judge
concluded that the aforementioned provision applies in the case at hand as lex
specialis.
13.
In this context, the DRC judge recalled that, in accordance with art. 6 par. 3
sent. 1 of Annexe 4 of the Regulations, if the former club does not offer the
player a contract, no training compensation is payable unless the former club
can justify that it is entitled to such compensation. Art. 6 par. 3 sent. 2 and
sent. 3 of Annexe 4 of the Regulations stipulate that the former club must
offer the player a contract in writing via registered post at least 60 days before
the expiry of his current contract as well as that the offer shall be at least of an
equivalent value to the player’s current contract.
14.
The DRC judge pointed out that, thus, he had to examine whether the
Claimant had complied with art. 6 par. 3 of Annexe 4 of the Regulations, and,
in this regard, examined all the documentation provided in the present matter
as well as the arguments raised by both the Claimant and the Respondent.
6/11
15.
In this respect, the DRC judge noted that the Respondent had, in its
submission, recognized that the Claimant had offered a contract to the player.
Moreover, the DRC judge remarked that the witness statements of the player
and the player’s father, which were submitted by the Respondent itself,
further confirmed that the Claimant had offered the player a contract, albeit
orally.
16.
In connection with the above, the DRC judge also took note that the main
argument of the Respondent was that the Claimant’s contract offer to the
player was not made in writing and that such contract had not been offered to
the player 60 days before the player’s registration with the Claimant expired.
17.
In this context, the DRC judge first wished to outline that the general principle
of art. 6 par. 3 of Annexe 4 of the Regulations is that the former club has to
offer the player a contract in order to be entitled to training compensation.
18.
In continuation, the DRC judge emphasized that the requirement that a
contract offer shall be made “in writing via registered post”, as stipulated in
the second sentence of art. 6 par. 3 of Annexe 4 of the Regulations, was
established with the aim of facilitating the burden of proof of a club to
demonstrate that it had, indeed, made a contract offer to a player and that it
was, therefore, entitled to training compensation. E contrario, the DRC judge
concluded that a club, which does not meet said prerequisite, is not
automatically prevented from receiving training compensation, insofar as it
can demonstrate beyond doubt that an offer was indeed made to the player.
19.
Having established the above, the DRC judge considered that, in the present
matter, he did not have to further elaborate on this specific issue, as it was not
contested by the Respondent that the Claimant had offered the player a
contract.
20.
Bearing in mind the aforesaid, the DRC judge went on to consider the
requirement that the former club must offer the player a contract “60 days
before the expiry of his current contract”. The DRC judge found that it was
evident that the Claimant, in the specific matter at hand, was not in a position
to offer the player a contract at least 60 days before the expiry of his current
contract, since no such “current contract” existed. In this context, the DRC
judge wished to recall that, taking into account the player’s career history, the
player had at all times been registered as an amateur prior to his registration
as a professional with the Respondent. What is more, the player moved from
the Claimant to the Respondent as an amateur and was initially registered
with the Respondent as an amateur during six months, prior to signing his first
professional contract with the Respondent. Hence, the, as the Respondent puts
it, “60 days requirement”, is not applicable in the specific matter at hand, since
7/11
the player was at all time registered as an amateur prior to his registration as a
professional with the Respondent.
21.
In view of all the above, taking into consideration all the surrounding
circumstances of this specific matter as well as the documentation presented
during the present proceedings, in particular, the witness statements of the
player and the player’s father, which were provided by the Respondent and
confirmed that the Claimant had offered the player a contract, as well as
taking into consideration that the Respondent had explicitly recognized that
the player had been offered a contract by the Claimant, the DRC judge
concluded that it was proven that the Claimant had complied with art. 6 par. 3
of Annexe 4 of the Regulations and, thus, that the latter is entitled to receive
training compensation from the Respondent.
22.
On account of the above considerations, the DRC judge decided that the
Respondent is liable to pay training compensation to the Claimant in
accordance with art. 20 and Annexe 4 of the Regulations.
23.
Turning his attention to the calculation of training compensation, the DRC
judge 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, inter alia, 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 DRC judge 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.
24.
In continuation, the DRC judge took into account that the Claimant belonged
to the category III (indicative amount of EUR 30,000 per year) and the
Respondent to the category II (indicative amount of EUR 60,000 per year) as
well as that the player, born on 27 July 1992, was registered with the Claimant
as from 13 August 2008 until 4 June 2009, i.e. 10 months of the season of the
player’s 16th birthday, bearing in mind that according to the Football
Federation W the international clearance of the player was granted to The
Football Federation E on 5 June 2009.
25.
Consequently, taking into account the above-mentioned considerations, the
DRC judge decided to partially accept the Claimant’s claim and determined
that the Respondent is liable to pay training compensation to the Claimant in
the amount of EUR 37,500.
8/11
26.
The DRC judge concluded his deliberations as to the substance of the case by
rejecting any further claim of the Claimant.
27.
Furthermore, the DRC judge 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 judge relating to disputes regarding training
compensation and the solidarity mechanism 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.
28.
In this respect, the DRC judge reiterated that the claim of the Claimant was
partially accepted. Therefore, both the Claimant as well as the Respondent
have to bear a part of the costs of the current proceedings in front of FIFA.
29.
According to Annexe A of the Procedural Rules, the costs of the proceedings
are to be levied on the basis of the amount in dispute.
30.
The amount in dispute to be taken into consideration in the present
proceedings amounts to EUR 85,000 related to the claim of the Claimant.
Therefore, the DRC judge concluded that the maximum amount of costs of the
proceedings corresponds to CHF 10,000 (cf. table in Annexe A).
31.
Considering that the case at hand allowed to be dealt with following a
reasonable procedure, that the present case did not show particular factual
difficulty and that it did not involve specific legal complexity, the DRC judge
determined the final amount of costs of the current proceedings to the
amount of CHF 6,000.
32.
In view of all of the above, the DRC judge concluded that the amount of CHF
6,000 has to be paid to cover the costs of the present proceedings, CHF 2,970
of which shall be borne by the Claimant and CHF 3,030 of which shall be borne
by the Respondent.
III.
Decision of the DRC judge
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant the amount of EUR 37,500
within 30 days as from the date of notification of this decision.
9/11
3.
In the event that the aforementioned sum is not paid within the stated time
limit, interest of 5% p.a. falls due as of expiry of the stipulated time limit and
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 amount of costs of the proceedings in the amount of CHF 6,000 is to
be paid as follows:
5.1 CHF 3,030 by the Respondent within 30 days of notification of the
present decision to FIFA to the following bank account with reference
to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2 CHF 2,970 by the Claimant, which have already been paid by the
Claimant to FIFA as advance of costs.
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
DRC judge 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
10/11
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
CH-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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
11/11