Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (the Netherlands), member
Rinaldo Martorelli (Brazil), member
Sofoklis Pilavios (Greece), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the club,
K,
as “Claimant”
against the club,
FC M,
as “Respondent”
regarding a training compensation dispute related to the
transfer of the player A.
I.
Facts of the case
1.
The H Football Federation confirmed that the player A, born on 12 July 1988, was
registered as an amateur with its member club, K (hereinafter: K), as from 1 July
2003 until 30 June 2006 (player passport). Moreover, the said Federation
confirmed that its football season runs from 1 July until 30 June the following year
and that the club is a club belonging to category 2 as regards the calculation of
training compensation.
2.
On 22 August 2006, the H Football Federation issued the International Transfer
Certificate (ITC) for the player A to the M Football Association. According to the
information received from the M Football Association, the player A was registered
as a Professional with its member club, P FC, on 24 August 2006 (player passport).
Furthermore, the said Association confirmed that the player was released by its
member club on 31 August 2006 and the ITC of the player was sent to the I
Football Federation on the same date. According to the M Football Association,
the player A, during his registration with its club, P FC, did not take part in any
competitive match. On file is also a confirmation from the M Football Association
that its member club concerned belongs to category 3 and that its football season
runs from 1 July until 30 June the following year.
3.
The M Football Association submitted a copy of the employment contract signed
between its member club, P FC, and the player in question. The relevant contract
was concluded on 24 August 2006 and was to be valid until 30 June 2007.
Furthermore, according to the contract, the player was engaged as a professional
player and was entitled to receive a monthly salary of 250.
4.
On 28 November and 14 December 2006 respectively, the club K via the H Football
Federation contacted FIFA and requested the payment of training compensation
in the amount of EUR 273,452 including late payment interest as from September
2006 from the I club, FC M (hereinafter: M), in accordance with the relevant
applicable FIFA Regulations. M belongs to category 1.
5.
K explained that in July 2006 it held several negotiations with M in relation to the
proposed transfer of the player in question from K to M. During those discussions
the parties apparently exchanged various draft transfer / loan contracts but then
failed to reach an agreement because M changed their position in the last phase
of the negotiations. What is more, K alleged that M’s representative mentioned
that should K fail to agree to the terms proposed by M they would seek to arrange
the players’ transfer to M through a certain M club.
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6.
According to K, the contract which the player A signed with the M club is null and
void because it did not reflect but rather disguised the parties’ real intentions. It
was actually only made in a way that K does not receive training compensation
corresponding to the category of M but only the compensation based on the
category of the M club. K requests that the training compensation shall be paid
directly by M in accordance with the relevant applicable FIFA Regulations and, in
view of the invalidity of the transfer of the player to the M club, the amount of
the compensation should be based on M’s category.
7.
M rejected the claim of K as unfounded and with the sole purpose to claim the
invalidity of the transfer agreement between K and P FC in order to claim a better
compensation for the training of the player. According to M, it entered into
negotiations with the M club which led to the signing of a transfer agreement
between the two clubs.
8.
K replied that it remains convinced that M has been acting in bad faith and the
representations they made in their submission are simply false. In particular, K
maintains that it never concluded a contract with the M club, P FC.
9.
M finally emphasized that contrary to what K argues, the player A was an amateur
player when he moved from K to the M club. Therefore, it is patent and clear that
there was no breach of contract when the player left K since he was not bound by
any employment contract. M therefore concludes that the player was free to sign
a contract with any club he intended to register with.
10.
M added that the player was transferred from the M club after ordinary
negotiations were held which eventually led to the signing of a transfer contract
between the two clubs (transfer agreement dated 25 August 2006 on file). For the
said transfer of the player, M paid an amount of EUR 90,000.
11.
Further, M as a subsidiary position, mentioned that no evidence was presented
that K offered the player an employment contract in accordance with art. 6 par. 3
of the Annex 4 of the FIFA Regulations for the Status and Transfer of Players. As a
consequence, K did not offer the player a contract and is thus not entitled to
receive training compensation.
12.
On the other hand and in case the Dispute Resolution Chamber should be of the
opinion that M must pay training compensation to K, M submits that the
calculation of K is not correct since it did not take into account that the seasons
between the players’ 12th and 15th birthday shall be based on the training and
education costs for category 4. Likewise, the calculation, if at all, should be based
on the average of the training costs of the two clubs since the player would have
moved from a lower to a higher category within the territory of the EU/EEA.
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13.
After having been asked by FIFA to provide certain additional
information/documentation, K maintained that in the summer 2006 it offered the
player a professional contract. In that period, they held a series of negotiations
with the player and his father.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 28 November
2006, as a consequence the Chamber concluded that 2005 edition of the Rules
Governing Procedures on matters pending before the decision making bodies of
FIFA are applicable to the matter at hand.
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 and art. 22
lit. (d) of the Regulations on the Status and Transfer of Players (edition 2008) the
Dispute Resolution Chamber is competent to decide on the present litigation with
an international dimension concerning the training compensation claimed by the
Claimant for the training and education of the player A.
3.
Furthermore, and taking into consideration that the player was registered with his
new club in August 2006, the Chamber analysed which regulations 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 (edition 2008), and considering that the present claim was lodged on 28
November 2006,
the previous version of the regulations (edition 2005;
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. The members
of the Chamber started by acknowledging the above-mentioned facts of the case
as well as all the documentation contained in the file. In particular, the Chamber
acknowledged that the Claimant requested training compensation from the
Respondent amounting to EUR 273,452 including late payment interest based on
the number of years the player in question spent training with the Claimant.
Particularly, the Claimant emphasized that irrespective from the fact that the
player in question had already previously been registered as a professional with
the club in M, it is entitled to receive the claimed training compensation from the
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Respondent, since the player’s previous registration with the club in M was aimed
to circumvent the Respondent’s obligation to pay training compensation.
5.
On the other hand, the deciding authority noted that the Respondent mainly
invoked that the Claimant is not entitled to received any training compensation
inter alia stressing that the Claimant did not offer the player a contract of at least
an equivalent value to his existing one within the deadline of 60 days as provided
for by art. 6 par. 3 of Annex 4 of the Regulations. Moreover, the Respondent
stressed that it held ordinary transfer negotiations with the club in M for the
transfer of the player which finally led to the signing of the transfer agreement
between the two clubs.
6.
Taking into account the above, the Chamber at first started by taking note that
the Claimant maintains having offered the player A a new contract.
7.
In continuation, and taking into account that the 2005 edition of the Regulations
is applicable on the matter at stake, the members of the Chamber referred to art.
6 of Annex 4 of the said Regulations, which contains special provisions regarding
players moving from one Association to another inside the territory of the EU/EEA.
According to par. 3 of the mentioned provision, training compensation is only
payable if the former club does offer the player a contract of at least an
equivalent value to the current contract in writing via registered mail at least 60
days before the expiry of his current contract, or if it can justify that it is entitled
to training compensation.
8.
At this point, the Chamber underlined that, considering the divergent statements
of the Claimant and the Respondent, one of the core issue between the parties to
the present dispute is therefore whether the Claimant has satisfied the formal
criteria of art. 6 par. 3 of Annex 4 of the Regulations in order to be entitled to
training compensation.
9.
However, in this context, the Chamber deemed it appropriate to emphasize that
due to the often experienced difficulties by the relevant clubs concerned to
demonstrate that they indeed had proceeded to offer a player a new contract
under the previous edition 2001 of the Regulations, when revising the Regulations
it was decided to integrate in the 2005 edition of the Regulations some formal
preconditions in order to facilitate the evidence that a contract offer was
effectively made. In particular, the Chamber emphasized that the implemented
new preconditions are not formal requirements stricto sensu but a requirement to
evidence the fact of having made such an offer to a particular player. This should,
therefore, ease the burden of proof laying on training clubs. This is the actual aim
of the relevant formalities.
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10.
In this respect, the members of the Chamber noted, however, that the Claimant
did not submit any documentary evidence in order to corroborate its allegations in
this respect.
11.
In view of the above, the Chamber emphasized that in accordance with the legal
principle of the burden of proof, which is a basic principle in every legal system, a
party deriving a right from an asserted fact has the obligation to prove the
relevant fact (cf. art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (DRC). Therefore,
due to the lack of proof with regard the Claimant’s allegations of having made an
offer for a new employment contract, the Dispute Resolution Chamber decided
that it cannot back the Claimant’s position.
12.
Taking into account the above, the Chamber reached the conclusion that the
Claimant by failing to produce evidence of having met the requirements in
accordance with art. 6 par. 3 of Annex 4 of the Regulations is not entitled to claim
training compensation from the Respondent.
13.
Subsequently, the members of the Chamber took note of the Claimant’s allegation
that the player’s registration with the club in M was made only in order to
circumvent its entitlement to receive training compensation from the Respondent.
14.
In view of the above, the members of the Chamber referred to the documents and
information contained in the file which show that the player A was transferred
from the H Football Federation to the M Football Association in August 2006 and
that, based on the employment contract the player signed with P FC on 24 August
2006 and valid until 30 June 2007, his International Transfer Certificate was issued
by the H Football Federation in favour of the M Football Association on 22 August
2006. Thereupon, on 24 August 2006, the player was, according to the
confirmation received from the M Football Association, duly registered at that
association for its aforementioned member club. The documents on file also show
that after one week of his registration with the M Football Association only, i.e.
on 31 August 2006, the player’s International Transfer Certificate was issued to the
I Football Federation.
15.
In view of the above, the Chamber held that, as a general rule, the applicable
Regulations do not prevent such transfers as the one at the basis of the present
dispute. In particular, the Chamber held that as long as the relevant provisions of
the Regulations relating to the registration periods (art. 6 of the Regulations),
minimum length of a contract (art. 18 par. 2 of the Regulations) and the maximum
amount of registrations during one season (art. 5 of the Regulations) are fully
respected, the transfer of a player only one week after having been registered for
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his previous club cannot per se be considered as invalid or being against the
pertinent regulations.
16.
Yet, the Chamber deemed it important to emphasize that should it become aware
of any blatant circumvention of the regulations or that a party makes abuse of its
legal rights, such stance would be severely punished.
17.
Without, however, going into further analysis of the circumstance surrounding the
player’s move from H to M and subsequently to I, the deciding body reiterated
that, as established above, the Claimant did not provide documentary evidence for
having offered the player an employment contract at all.
18.
In view of all of the above, the Dispute Resolution Chamber decided that the claim
of the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club K, is rejected.
*****
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
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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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