Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 November 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Theodore Giannikos (Greece), member
Mohamed Al-Saikhan (Saudi Arabia), 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 E
I.
Facts of the case
1.
According to the player passport issued by the Football Federation from country
B the Player E (hereinafter: the player), born on 13 July 1990, was registered with
the club from country B, Club A (hereinafter: the Claimant), as from 29 January
2010 until 24 August 2010 as an amateur and, after the conclusion of a loan
agreement between the Claimant and the club from country G, Club F
(hereinafter: Club F), as from 25 August 2010 until 14 July 2011 as a professional.
2.
On 19 August 2010, the player and the Claimant signed an employment contract
valid as from the date of signature until 30 June 2011.
3.
On 20 August 2010, Club F and the Claimant signed the aforementioned
agreement for the loan of the player from Club F to the Claimant until 30 June
2011. The loan agreement stipulated inter alia that the loan was free of payment
and that the relevant International Transfer Certificate (ITC) would be returned
to Club F upon expiry of the loan. The employment contract between the player
and Club F was set to expire on 30 June 2015.
4.
According to the aforementioned player passport, the Claimant belonged to the
category II (indicative amount of EUR 60,000 per year) during the period of time
the player was registered with it.
5.
The football seasons in country B 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.
6.
The Football Federation from country D confirmed that the player was
registered with its affiliated club, Club C (hereinafter: the Respondent), on 22
July 2011 as a professional.
7.
According to the information contained in the Transfer Matching System (TMS),
the Respondent belonged to the category III (indicative amount of EUR 30,000
per year) at the time the player was registered with it.
8.
On 18 July 2013, the Claimant contacted FIFA claiming the payment of training
compensation from the Respondent, on the ground that the player, in July 2011,
was transferred as a professional from the Claimant to the Respondent before
the end of the season of his 23rd birthday. The Claimant explained that it had
transferred the player on loan from Club F on 20 August 2010, for the duration
of one sporting season, until 30 June 2011. However, according to the Claimant,
“the player in the end of May 2011 disappeared for some period of time without
informing anybody of his whereabouts”. Subsequently, according to the
Claimant, the player signed an employment contract with the Respondent in July
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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2011. In particular, the Claimant is claiming training compensation for the full
2010/2011 season in the amount of EUR 90,000 plus 5% interest p.a. as of 31
August 2011.
9.
In its reply to the claim, the Respondent explained that the player had indicated
that he had signed a pre-contract with Club F on 1 August 2010, but that said
contract had never been registered and, consequently, he had signed an
employment contract with the Claimant for one sportive season on 19 August
2010. Furthermore, the player had confirmed that, upon expiry of his
employment contract with the Claimant, he was a free agent and that the
Claimant had never offered him a new employment contract.
10. Furthermore, the Respondent stated that it had concluded an employment
contract with the player on 7 July 2011 and that the Claimant had only lodged
its claim in front of FIFA on 18 July 2013. Thus, with reference to art. 3 par. 3 of
Annexe 4 of the Regulations on the Status and Transfer of Players, the
Respondent argued that the Claimant’s claim is prescribed. Moreover, the
Respondent referred to art. 10 of the Regulations on the Status and Transfer of
Players and stated that a loan agreement is only valid when it is signed by the
clubs involved as well as the player. According to the Respondent, the player did
not sign the loan agreement between Club F and the Claimant. In this respect,
the Respondent submitted a letter from the FIFA administration, sent to the
player on 6 July 2012 in the course of the investigation in a labour proceeding
opposing the player and Club F, by means of which the player was informed that
the relevant loan agreement concluded between Club F and the Claimant could
not be forwarded to him due to confidentiality reasons. Consequently, the
Respondent considers the loan agreement null and void.
11. In continuation, the Respondent referred to “art. 8.4” of Annexe 3 of the
Regulations on the Status and Transfer of Players and stated that the player was
in fact never registered for Club F, since the Football Federation from country G
had never requested the ITC for the player in order to be registered with Club F.
This is confirmed by the fact that the ITC was delivered by the Football
Federation from country B to the Football Federation from country D, upon the
player’s registration with the Respondent. Furthermore, the Respondent
referred to the player passports of the Football Federation from country B and
the Football Federation from country D, according to which the player was never
registered with Club F. The Respondent then referred to “art. 6 of Annexe 3” of
the Regulations on the Status and Transfer of Players and stated that the
Claimant had failed to offer the player a new employment contract and,
therefore, it is not entitled to training compensation. Finally, the Respondent
stated that, in the event the DRC decides that the Claimant is entitled to training
compensation, the correct amount should be EUR 30,000 in light of art. 6 of
Annexe 4 of the Regulations on the Status and Transfer of Players.
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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12. In its unsolicited replica dated 9 May 2014, the Claimant stated that art. 3 par. 3
of Annexe 4 of the Regulations on the Status and Transfer of Players is not
applicable to the present case. Furthermore, the Claimant reiterated its
statements with regard to the loan transfer of the player from Club F and
submitted a letter, addressed to and signed by the player and dated 19 August
2010, by means of which the player was informed of the loan agreement
reached between Club F and the Claimant. Moreover, with reference to art. 10
par. 1 of the Regulations on the Status and Transfer of Players, the Claimant
argued that the player’s signature is not mandatory in order for the loan
agreement to be binding. Finally, the Claimant stated that the Respondent was
playing in the first division of country D and, therefore, shall be considered a
category I club. In this respect, the Claimant reiterated its claim and amended its
claim for interest to apply as of 14 July 2011.
13. In light of art. 6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer
of Players, the Claimant stated that it was not in a position to offer the player a
contract since he was playing for the club on loan. However, the Claimant stated
that it had inquired with Club F on 11 February 2011 if the loan agreement could
be extended, to which the club from country G responded negatively. According
to the Claimant, it had shown a genuine interest in retaining the services of the
player.
14. In its duplica, the Respondent reiterated its argument regarding the prescription
of the case, while referring to art. 3 par. 3 of Annexe 4 of the Regulations on
the Status and Transfer of Players. With regard to “art. 6 of Annexe 3”, the
Respondent argued that the Claimant’s proposal to extend the loan period
should have been addressed to the player, not to Club F. Furthermore, the
Respondent stated that the letter dated 19 August 2010 refers to a transfer of
the player, not to a loan. In this respect, the Respondent referred again to the
labour dispute between the player and Club F, and argued that a valid
employment contract was never concluded between the two parties. Moreover,
the Respondent stated that Club F and the Claimant have the same owner, which
leads to illegal arrangements between the two clubs.
II.
Considerations of the Dispute Resolution Chamber
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 18
July 2013. Consequently, the 2012 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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2.
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art.
21 of the 2012 and 2014 editions of the Procedural Rules).
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 2014), 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, 2012 and
2014), and considering that the player was registered with the Respondent in
July 2011, 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 reverted to the argument of the Respondent,
according to whom the present matter is barred by the statute of limitations
with reference to art. 3 par. 3 of Annexe 4 of the Regulations. In this regard, the
members of the Chamber referred to art. 25 par. 5 of the Regulations, according
to which, inter alia, the Dispute Resolution Chamber shall not hear any case
subject to the said Regulations if more than two years have elapsed since the
event giving rise to the dispute. The present claim having been lodged in front
of the DRC on 18 July 2013 and the event giving rise to the dispute, that is, the
player’s registration with the Respondent having occurred, according to a
correspondence from the Football Federation from country D, either on 14 July
2011 when it received the International Transfer Certificate (ITC) for the player,
or on 22 July 2011 when the professional football league of country D approved
the employment contract signed between the player and the Respondent, the
members of the Chamber had to reject the respective argument of the
Respondent and confirmed that the present petition was lodged in front of the
DRC within said two years’ period of time. The matter is, thus, not barred by the
statute of limitations in accordance with art. 25 par. 5 of the Regulations. For
the sake of good order, the DRC stressed that even if it would consider the date
of 7 July 2011 to be the correct date, the claim would not be time-barred since
art. 3 par. 2 of Annexe 4 of the Regulations stipulates that the deadline to pay
training compensation is 30 days following the registration of the professional
with the new association. Hence, the event giving rise to the dispute would be
the non-payment of training compensation 30 days after 7 July 2011.
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5.
Having established the aforementioned, 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.
However, the DRC emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand.
6.
First of all, the DRC took note that the Claimant maintained that it is entitled to
receive training compensation from the Respondent in the amount of EUR
90,000, indicating that the player was transferred as a professional from the
Claimant to the Respondent before the end of the season of his 23rd birthday.
7.
Equally, the DRC noted that the Respondent argued that the Claimant had failed
to offer the player a new employment contract and, therefore, it is not entitled
to training compensation.
8.
In continuation, the DRC took note of the Claimant’s submission that it was not
in a position to offer the player a contract since he was playing for the club on
loan.
9.
After having carefully examined the parties’ positions, taking into consideration
all the aforementioned arguments, the Chamber observed that the parties, in
particular, disputed whether the Claimant should have offered the player a
contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations.
10.
First of all, 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 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 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.
11.
Furthermore, according to art. 10 par. 1 of the Regulations, professionals may
be loaned to another club on the basis of a written agreement between the
professional and the clubs concerned. Moreover, the last sentence of said
provision stipulates that any such loan is subject to the same rules as apply to
the transfer of players, including the provisions on training compensation and
the solidarity mechanism.
Training compensation in connection with the Player E
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12.
Following the above, the Chamber stressed that one of the aims of the last
sentence of art. 10 par. 1 of the Regulations is to ensure that training clubs which
register a player on a loan basis also benefit from the solidarity mechanism and
training compensation, provided that the relevant prerequisites in the pertinent
provisions of the Regulations are fulfilled. This approach is also in line with the
Chamber’s well-established jurisprudence that all clubs which have in actual fact
contributed to the training and education of a player as from the age of 12 are,
in principle, entitled to training compensation for the timeframe that the player
was effectively trained by them.
13.
In other words, the Chamber emphasised that the nature of the player’s
registration with a club claiming training compensation, i.e. on a definite or on
a temporary basis, is in fact irrelevant with respect to the question as to whether
such club would be entitled to receive training compensation for the period of
time that the player was effectively trained by that club.
14.
In this respect and for the sake of good order, the Chamber deemed it essential
to emphasise that, as to the liability to pay training compensation, the analogy
established in art. 10 par. 1 of the Regulations could not be extended to the case
in which players were loaned to other clubs and thus are not being definitively
transferred to a new club. In other words, the transfer of a player from the club
of origin to the club that accepts the player on loan as well as the return of the
player from the club that accepted him on loan to the club of origin do not
constitute a subsequent transfer in the sense of art. 3 par. 1 sent. 3 of Annexe 4
of the Regulations. The Chamber was eager to point out that it could not have
been the intention of the legislator of the relevant regulatory provision (art. 10
par. 1 of the Regulations) to trigger the consequences of art. 3 par. 1 of Annexe
4 of the Regulations on the occasion of a transfer on a loan basis and, thus,
potentially depriving the loan of its essential flexibility and function of
providing young players the opportunity to gain practical experience in another
club in order to develop in a positive way, personally and, eventually, also for
the benefit of the player’s new club.
15.
Following the above, the Chamber pointed out that the obligation to pay
training compensation thus arises in case a player is definitively transferred from
one club to another club belonging to a different association, but not when he
is temporarily transferred to another club while still being contractually bound
to his club of origin (yet, with the effects of the relevant contract being
temporarily suspended), such as a loan. Hence, the relevant entitlement can only
be claimed towards a new club that acquires the services of a player on a
definitive and permanent basis subject to the fulfilment of the prerequisites
established in art. 20 and Annexe 4 of the Regulations.
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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16.
Consequently, taking into account the above-mentioned considerations, the
Chamber concurred that the Claimant is, in principle, entitled to receive training
compensation from the Respondent.
17.
In continuation, the DRC referred 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). In this regard, the Chamber indicated that, since the player
moved from country B to country D, i.e. from one association to another
association inside the territory of the EU, said article is applicable. Hence, the
DRC concluded that art. 6 par. 3 of Annexe 4 of the Regulations applies in the
case at hand as lex specialis.
18.
At this point, the members of the Chamber wished to recall that, in case of a
loan transfer, the player is temporarily transferred to another club while still
being contractually bound to his club of origin (yet, with the effects of the
relevant contract being temporarily suspended). Equally, the Chamber recalled
that, in casu, the player was transferred on loan from Club F to the Claimant
until 30 June 2011 and still had a valid employment contract with Club F until
30 June 2015.
19.
In view of the foregoing, the members of the Chamber held that art. 6 par. 3 of
Annexe 4 of the Regulations, i.e. the obligation to offer a professional contract
to the player, does not apply to clubs with which the player is registered on loan,
since said clubs are per se not in a position to do so considering that the player
is still contractually bound to the club of origin.
20.
In view of all the above, taking into consideration all the surrounding
circumstances of this specific matter, the DRC concluded that the Claimant is
entitled to receive training compensation from the Respondent.
21.
In continuation, the Chamber turned its attention to the Claimant’s submission
that “the player in the end of May 2011 disappeared for some period of time
without informing anybody of his whereabouts”. As a result, and considering
art. 3 par. 1 of the 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, the Chamber concluded that the
effective period of time to be considered in the matter at stake corresponds to
9 months of the 2010/2011 season, i.e. from September 2010 until May 2011.
22.
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
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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necessary to take the costs that would have been incurred by the new club if it
had trained the player itself.
23.
Having established the above, the DRC referred to art. 6 par. 1 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. In this respect, the Chamber stressed that the
Football Federation from country D had allocated the Respondent as a category
III club and that the Claimant was a category II club.
24.
In continuation, the Chamber recalled that the player was born on 13 July 1990
and was registered with the Claimant on loan from Club F as from 25 August
2010 until “the end of May 2011”.
25.
Equally, the DRC recalled that the Football Federation from country D confirmed
that the player was registered with the Respondent on 22 July 2011.
26.
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
22,500 to the Claimant as training compensation in relation to the registration
of the player with the Respondent.
27.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2
of Annexe 4 of the Regulations, the Chamber decided that the Respondent has
to pay, in conformity with its longstanding practice, interest at 5% p.a. over the
amount payable as training compensation as of the 31st day of the registration
of the player with the Respondent on a definitive basis, i.e. as of 22 August 2011,
until the date of effective payment
28.
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 Annexe A of the Procedural Rules, the
costs of the proceedings are to be levied on the basis of the amount in dispute.
29.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 90,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum amount
of costs of the proceedings corresponds to CHF 15,000 (cf. table in Annexe A).
30.
As a result, taking into account the particularities of the present matter as well
as the degree of success, the DRC determined the final costs of the current
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
9/11
proceedings to the amount of CHF 10,000, of which CHF 8,000 shall be borne by
the Respondent and CHF 2,000 by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 22,500 plus 5%
interest p.a. on said amount as of 22 August 2011 until the date of effective
payment.
4.
In the event that the aforementioned sum plus interest is 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
The final costs of the proceedings in the amount of CHF 10,000 are to be paid
within 30 days as from the date of notification of the present decision, as
follows:
6.1.
The amount of CHF 7,000 has to be paid by the Respondent to FIFA to
the following bank account with reference to case nr.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.2.
The amount of CHF 1,000 has to be paid by the Respondent to the
Claimant.
6.3.
The amount of CHF 2,000 has to be paid by the Claimant to FIFA. Given
that the Claimant has already paid the amount of CHF 3,000 as advance
of costs at the start of the present proceedings, no additional amount
has to be paid by the Claimant.
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7.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances under points 3. and 6.2. above are
to be made and to notify the Dispute Resolution Chamber of every payment
received.
*****
Note relating to the motivated decision (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]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Enclosed: CAS directives
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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