Training Compensation
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 31 October 2013,
in the following composition:
Geoff Thom ps on (England), Chairman
Joaquim Ev angelis ta (Portugal), member
Iv an Gazidis (England), 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, Player E
I.
Facts of the cas e
1.
According to the player passport issued by the Football Federation of Country B
(Football Federation F) the player, Player E (hereinafter: the player), born on 1
May 1989, was registered with the Club of Country B, Club A (hereinafter: the
Claimant), as from 30 August 2005 until 1 January 2012 as a professional.
2.
The football seasons in Country B during the period of time the player was
registered with the Claimant ran as follows:
- from 31 July 2005 until 9 May 2006;
- from 29 July 2006 until 20 May 2007;
- from 10 August 2007 until 20 May 2008;
- from 14 September 2008 until 23 May 2009
- from 2 August 2009 until 20 May 2010;
- from 15 August 2010 until 22 May 2011;
- from 7 August 2011 until 20 May 2012.
3.
The Football Federation of Country D (Football Federation G) confirmed that the
player was registered with its affiliated club, Club C (hereinafter: the
Respondent), on 1 March 2012 as a professional. Also, the Football Federation G
confirmed that the player signed a contract with the Respondent on 29 February
2012.
4.
Equally, the Football Federation G confirmed that the Respondent belonged to
the category II (indicative amount of EUR 60,000 per year) at the time the player
was registered with it.
5.
On 29 May 2012, the Claimant contacted FIFA claiming the payment of training
compensation from the Respondent, on the ground that the player, on 1 January
2012, was transferred as a professional from the Claimant to the Respondent before
the end of the season of his 23rd birthday.
6.
The Claimant stated that the player had signed a pre-contract with the Respondent
in August 2011, which would come into force on 1 January 2012. However,
according to the Claimant, it was the Club of Country D, Club C, which signed an
employment contract with the player on 10 February 2012 and requested the
issuance of an ITC for the player from the Football Federation F in February 2012.
The Claimant argued that the Respondent and Club C had, subsequently, on 29
February 2012 signed an agreement for the loan of the player from Club C to the
Respondent for a loan fee of EUR 575, without the player ever having attended a
match or a training session with Club C. In this respect, the Claimant referred to a
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
2/11
decision of the CAS (2009/XXX) in which the parties had used a similar construction
to circumvent the payment of training compensation, and stated that the
Respondent should be considered the player’s new club which is liable to pay
training compensation.
7.
In order to corroborate its position, the Claimant submitted an extract of the
Respondent’s website dated 20 August 2011 indicating that the player had
signed a 4-year contract with the Respondent as well as various internet extracts
which indicated that the player had been on a training camp with the
Respondent in January 2012. Furthermore, it submitted a letter from the
Respondent in which the latter indicated that it was “obviously not refusing the
obligation to pay the training compensation (…)” but merely disputed the
amount of training compensation due.
8.
In particular, the Claimant is claiming EUR 380,000 plus compensation for damages.
9.
On 27 August 2012, the Respondent stated in its reply that it had indeed discussed
the terms of a potential employment contract with the player, but the parties had
not reached an agreement or signed any pre-contract. The Respondent confirmed
that it transferred the player on loan from Club C, but denied the existence of any
“direct relationship” with Club C. The Respondent stated that Club C is to be
considered the player’s new club and is therefore responsible for the payment of
training compensation.
10.
With regard to the CAS jurisprudence referred to by the Claimant, the Respondent
stated that such case is different from the case at hand, since the Respondent did
not enter into negotiations with the Claimant regarding the transfer of the player,
the player in the present case was already a professional and he was only transferred
on loan, as opposed to the referred CAS case.
11.
Finally, in case FIFA decides that the Respondent is liable to pay training
compensation, the Respondent stated that the calculation of training compensation
made by the Claimant is erroneous, since the player was never registered with the
Claimant for a full season (12 months). Additionally, the Respondent argued that
the player had already completed his training at the end of the 2007/2008 season
when he was 19, since the player played 10 matches for the Claimant in that season
and was called the best player of Country B in the 2010/2011 season. In this respect,
the Respondent referred to CAS jurisprudence (2003/XXX).
12. According to the information contained in the Transfer Matching System (TMS), the
player was “engaged out of contract, free of payment” by the instructing club, Club
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
3/11
C. The ITC was delivered on 24 February 2012 and received by Club C on 5 March
2012.
13. On 10 June 2011, Club C’s category was changed in TMS from category IV to category
III.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or 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 29
May 2012. 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 2008 and 2012 editions 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 2012), 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 edition of the Regulations on the
Status and Transfer of Players 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 2010 and
2012), and considering that the player was registered with the Respondent on 1
March 2012, the 2010 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 DRC 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 facts of the case as well
as the documentation on file.
5.
In continuation, the DRC took note that the Claimant maintained that it is
entitled to receive training compensation from the Respondent in the amount
of EUR 380,000, indicating that the player was transferred as a professional from
the Claimant to the Respondent before the end of the season of his 23 rd
birthday.
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
4/11
6.
Likewise, the DRC took note of the Claimant’s argument that the player had
signed a pre-contract with the Respondent in August 2011, which would come
into force on 1 January 2012.
7.
Furthermore, the DRC noted that the Claimant stated that the Club of Country
D, Club C, had signed an employment contract with the player on 10 February
2012 and requested the issuance of an ITC for the player from the Football
Federation F in February 2012. Subsequently, on 29 February 2012 the
Respondent and Club C had signed an agreement for the loan of the player from
Club C to the Respondent for a loan fee of EUR 575, without the player ever
having attended a match or a training session with Club C. In view of this, the
Claimant stated that the Respondent should be considered the player’s new club
which is liable to pay training compensation.
8.
The DRC went on to consider the Claimant’s submissions in this respect. By doing
so, it took due note that the Claimant provided a copy of the employment
agreement signed between the player and Club C on 10 February 2012, as well
as a copy of the loan agreement signed between the Respondent and Club C on
29 February 2012.
9.
Moreover, the DRC took note of the Claimant’s statements that the player
participated in a training camp with the Respondent in January 2012, and that
the Respondent informed the Claimant that it would pay training compensation
for the transfer of the player. Furthermore, the DRC took note of the Claimant’s
reference to a decision of the CAS (2009/XXX) and its statement that in said case
the parties had used a similar construction to circumvent the payment of
training compensation.
10.
Furthermore, the DRC noted that the Respondent rebutted the claim of the
Claimant, stating that it had indeed discussed the terms of a potential
employment contract with the player, but that the parties had not reached an
agreement or signed any pre-contract. The Respondent confirmed that it
transferred the player from Club C, but denied the existence of any “direct
relationship” with said club.
11.
Equally, the DRC noted that the Respondent argued that the abovementioned
decision of the CAS is not applicable to the present case, since the Respondent
did not enter into negotiations with the Claimant regarding the transfer of the
player, the player in the present case was already a professional and he was only
transferred on loan, as opposed to the referred CAS case.
12.
Finally, the DRC took note of the Respondent’s submission that in case it decides
that the Respondent is liable to pay training compensation, the Respondent stated
that the calculation of training compensation made by the Claimant is erroneous,
since the player was never registered with the Claimant for a full season (12
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
5/11
months). Additionally, the Respondent argued that the player had already
completed his training at the end of the 2007/2008 season when he was 19, since
the player played 10 matches for the Claimant in that season and was called the
best player of Country B in the 2010/2011 season.
13.
After having carefully examined the parties’ positions, taking into consideration
all the aforementioned arguments, the Chamber held that it first had to
establish which club, i.e. the Respondent or Club C, is to be considered the new
club of the player in light of the provisions regarding training compensation.
14.
In this context, the Chamber referred to the evidence provided by the Claimant,
more in particular the extract of the Respondent’s official website dated 20
August 2011, from which it could be established that the player was, at least, in
contact with the Respondent since August 2011. Furthermore, the Chamber
noted that the player participated in a training camp with the Respondent in
January 2012, and that the Respondent informed the Claimant in a letter dated
7 February 2012 that “as a conclusion, training compensation is due to [the
Claimant] for the seasons 2005/2006, 2006/2007 and 2007/2008 only”. Moreover,
the DRC considered in particular that the Respondent confirmed that it had
discussed the terms of a potential employment contract with the player.
15.
Furthermore, the Chamber referred to the employment contract signed
between the player and Club C, dated 10 February 2012, and to the loan
agreement signed between the Respondent and Club C, dated 29 February 2012.
16.
In this respect, the Chamber pointed out that there was a very short period of
time between the moment that the player was transferred to Club C and when
he was loaned to the Respondent. Furthermore, the player was transferred from
Club C to the Respondent for a very low amount of money, i.e. 6,000
(approximately EUR 575).
17.
In addition, the Chamber considered that the Respondent and Club C are from
the same city, that Club C belonged to a lower club category than the
Respondent, and that the player has been playing for the Respondent ever since
his loan transfer from Club C to the Respondent and did not play a single match
for Club C.
18.
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, the DRC concluded that there were numerous
elements speaking in favour of a situation of circumvention of the Regulations
regarding the payment of training compensation by the Respondent. Indeed,
the Chamber emphasised that the fact that the Respondent, according to its
own website, had already signed a contract with the player in August 2011, the
fact that the player went on a training camp with the Respondent in January
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
6/11
2012, that there was only a very short period of time between the moment that
the player was transferred to Club C and when he was loaned from Club C to
the Respondent for a very low amount, can lead to no other conclusion than
that the Respondent was the new club of the player in the sense of the
Regulations. Therefore, the Chamber held that the Respondent should be
considered the player’s new club.
19.
The aforementioned having been established, and hereby referring to the rules
applicable to training compensation, the Chamber stated that, as established in
art. 1 par. 1 of Annexe 4 in combination with art. 2 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. 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.
20.
In continuation, the Chamber referred to art. 1 par. 1 sent. 2 of Annexe 4 of the
Regulations which stipulates that training compensation shall be payable, as a
general rule, up to the age of 23 for training incurred up to the age of 21, unless
it is evident that a player has already terminated his training period before the
age of 21. In this respect, the DRC emphasised that cases involving a possible
early completion of a player’s training period have to be analysed on a case-bycase basis, taking into consideration all the specific circumstances and all the
evidence produced. Thus, several factors and indications have to be considered
in order to establish whether a particular player’s training has indeed been
completed before the age of 21, as the Respondent stated. For the sake of
completeness, the members of the Chamber stressed that both the DRC and the
CAS have adopted a strict approach in establishing the early completion of the
player’s training before the age of 21, so as to not jeopardize the right of
training clubs to, in principle, receive training compensation.
21.
In this regard, the Chamber noted, once more, all the specific circumstances of
the present matter as well as all the evidence produced by the parties. According
to the Respondent, the player completed his training period at the end of the
2007/2008 season, since he had played 10 matches with the Claimant’s first team
in that season and he was called the best player of Country B in the 2010/2011
season. However, from the evidence produced by the Claimant, it can be
established that the player had also played 5 matches for the Claimant’s second
team during the 2007/2008 season. Hence, contrary to the opinion of the
Respondent, the Chamber considered that it could not be established that the
player was a regular first team player during the 2007/2008 season with the
Claimant. The Chamber also held that the fact that the player was voted the
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
7/11
best player of Country B in the 2010/2011 season does not imply that his training
period had been completed.
22.
In light of the above, the Chamber concurred that, taking into account all the
above-mentioned elements and circumstances, it could not be established that
it was evident that the player had indeed completed his training period before
his 21st birthday. Consistently with all the above, the Chamber concluded that
training compensation is due.
23.
On account of the above considerations, the Chamber decided that the
Respondent is liable to pay training compensation to the Claimant.
24.
Turning its attention to the calculation of training compensation, the Chamber
referred 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, it is
necessary to take the costs that would have been incurred by the new club if it
had trained the player itself.
25.
In continuation, the Chamber recalled that the player was born on 1 May 1989
and was registered with the Claimant as from 30 August 2005 until 1 January
2012 as a professional.
26.
In this respect and in relation to the argument of the Respondent that the player
had never been registered with the Claimant for the duration of 12 months
during a particular season, the Chamber found it vital to point out that it bases
its calculation on the effective time of registration with the training club as per
the information received by the association where the training club is affiliated.
The Chamber further stressed that it is an established and incontestable
principle and fact that the training of a player occurs during the entire cycle of
a year, i.e. already prior to and after the first and last match of the season
(national league championship). Consequently, if the player was registered
during a specific season for a club, a period of 12 months, and not only the
period during which the national championship is being played, has to be taken
into account when calculating the training compensation due.
27.
Therefore, the DRC considered that the Claimant is, thus, entitled to receive
training compensation for the period as from 30 August 2005 until 31 July 2010,
i.e. for a period of 59 months between the seasons of his 17th and 21st birthday.
Moreover, the DRC took into account that the Respondent belonged to the
category II (indicative amount of EUR 60,000 per year).
28.
29.
In view of all of the above, the DRC decided to partially accept the claim of the
Claimant and held that the Respondent is liable to pay the amount of EUR
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
8/11
295,000 to the Claimant as training compensation in relation to the registration
of the player with the Respondent.
30.
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, 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 Annex A of the Procedural Rules, the
costs of the proceedings are to be levied on the basis of the amount in dispute.
31.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 380,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum amount
of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annex A).
32.
As a result, and taking into account the particularities of the present matter, the
complexity of the case as well as the degree of success, the Chamber determined
the costs of the current proceedings to the amount of CHF 20,000, of which CHF
15,000 shall be borne by the Respondent and CHF 5,000 by the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
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 295,000.
3.
In the event that the aforementioned sum is not paid within the stated time
limit, interest at the rate of 5% p.a. will fall 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 costs of the proceedings in the amount of CHF 20,000 are to be paid
w ithin 30 day s as from the date of notification of the present decision, as
follows:
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
9/11
5.1. The amount of CHF 10,000 has to be paid to FIFA to the following bank
account with reference to case no. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2. The amount of CHF 5,000 by the Claimant to FIFA. Given that the
Claimant has already paid the amount of CHF 5,000 as advance of costs
at the start of the present proceedings, no additional amount has to be
paid by the Claimant.
6.
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 Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 67 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]
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
10/11
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
Training compensation in connection with the player, Player E
Country B / Club C, Country D)
(Club A,
11/11