Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 November 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Johan van Gaalen (South Africa), member
on the claim presented by the club,
A, country U,
represented by Mr xxxxxx
as Claimant
against the club,
B, country P
as Respondent I
and the club,
C, country P
as Respondent II
regarding training compensation in connection with the player Z
I.
Facts of the case
1.
According to the player passport issued by the Football Association of country
U, the player, Z (hereinafter: the player), born on 26 November 1989, was
registered with the club from country U, Club A (hereinafter: the Claimant), as
from 16 March 2007 until 30 September 2009 as an amateur and as of 1
October 2009 until 30 August 2012 as a professional.
2.
The football seasons in country U ran as follows:
- for amateurs: as of 1 January until 31 December;
- for professionals: as of 1 August until 31 July.
3.
The Football Association of country P (FAP) confirmed that the player was
registered with its affiliated club, C (hereinafter: the Respondent II) on 31
August 2012 and with B (hereinafter: the Respondent I) on 26 September 2012,
on both occasions as a professional.
4.
Equally, the FAP confirmed that the Respondent I belonged to the category II
(indicative amount of EUR 60,000 per year) and the Respondent II to category
IV at the time the player was registered with either club.
5.
On 14 March 2014, the Claimant contacted FIFA claiming the payment of
training compensation from the Respondent I.
6.
In support of its claim, the Claimant states that the player signed a contract
with the Respondent II on 20 August 2012, valid for the 2012-13 season.
However, according to the Claimant, the player was then, on 21 August 2012,
loaned to the Respondent I until 30 June 2013 without ever having attended a
match or a training session with the Respondent II. In addition, the Claimant
points out that no loan compensation was paid and that the loan duration
equated to the duration of the contract concluded with the Respondent II. In
this respect, the Claimant refers to a decision of the Court of Arbitration for
Sport (2009/A/xxxxxxx) in which the parties had used a similar construction to
circumvent the payment of training compensation, and states that the
Respondent I should be considered as the player’s new club which is liable to
pay training compensation.
7.
In light of the above, the Claimant requests the Respondent I to be held liable
for the payment of EUR 327,616, plus 5% interest p.a. as of 1 October 2012
until the date of effective payment, as training compensation, as well as
Training compensation in connection with the player Z (Club A, country U / Club B and Club C, country P)
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disciplinary sanctions to be imposed on the Respondent I and the Respondent
II.
8.
Subsidiarily, and should the DRC not consider that the transfer was simulated,
the Claimant requests the Respondent II to be condemned to pay the amount
of EUR 163,807, plus 5% interest p.a. as of 1 October 2012 until the date of
effective payment, as training compensation since the latter club allegedly
belonged to category III at the time the player was registered with it.
9.
In its reply, the Respondent II sustains that in August 2012 while the player was
on trial at its facilities, he captured the attention of the Respondent I’s
scouting department. Subsequently, the three parties decided that the player
would sign a contract with the Respondent II but would subsequently be sent
on loan to the Respondent I. According to the Respondent II, this situation
would allow to maintain a permanent link between the Respondent II and the
player but would also give to the player the opportunity to develop his skills.
10.
As to the Claimant’s Allegations, the Respondent II maintains that since both
clubs are located in xxxxx, they have a long-standing institutional relationship,
which, inter alia, involves the reciprocal loan of players and the sharing of
costs. Regarding the specific loan of the player, the Respondent II alleges that
it was responsible for the player’s wages while the Respondent I was in charge
of the accommodation expenses.
11.
In continuation, the Respondent II asserts that the player did not live up to the
Respondent I’s expectations and therefore the latter club decided to revoke
the temporary transfer in January 2013. Simultaneously, and due to the
player’s homesickness, the Respondent II explains that it decided to rescind the
player’s employment contract.
12.
Finally, the Respondent II holds that it belongs to the category IV.
13.
In its response to the claim, the Respondent I rejects the assertion of
simulation. In this respect, the Respondent I outlines that the peculiarities of
the CAS jurisprudence referred to by the Claimant, i.e. transfer of a prospective
player, prior failure of the negotiations between the claimant and the
respondent and succession of transfers between clubs, are not present in the
case at hand. In support of its assertion, and in particular in order to justify
that the pattern of movement of the player was not unusual, the Respondent I
repeats the arguments submitted by the Respondent II previously (cf. points 10
and 11 above). Furthermore, the Respondent I highlights that it voluntarily
provided the Claimant with a copy of the loan agreement, which a club trying
to circumvent the regulations would not have done.
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14.
In continuation, the Respondent I points out the DRC’s jurisprudence,
according to which training compensation is not due in case of a temporary
transfer.
15.
In light of the foregoing, the Respondent I concludes that the Claimant should
claim the payment of training compensation from the Respondent II. However,
according to the Respondent I, no training compensation is due since the
Respondent II belongs to category IV club.
16.
In its replica, the Claimant asserts that on 13 August 2012, the Respondent I
and the player entered into an employment contract but then decided the
next day, i.e. on 14 August 2014, to terminate the latter mutually. According
to the Claimant, such a situation can only be explained by the fact that after
signing the contract with the player, the Respondent I realised that a
significant amount was due as training compensation and therefore tried to
avoid the payment.
17.
The Claimant further highlights the incoherence of the Respondent II’s
attitude of apparently paying the player’s salary in spite of knowing that it
would never benefit from his services since its employment contract with the
player was due to expire at the end of the loan period.
18.
In continuation, the Claimant sustains that the simultaneous termination of
the loan and of the employment contract with the Respondent II constitutes
an additional evidence of the simulation.
19.
Finally, the Claimant contests the Respondent II’s categorisation made by the
FAP. According to the Claimant, considering that it is one of the best training
clubs in xxxxx, participates as a professional club in the Second Division of the
League and owns sporting facilities with a crowd capacity of 3,500, the
Respondent II must belong to category III.
20.
In its duplica, the Respondent II rejects the assertion and facts provided by the
Claimant in order to challenge its categorisation. In particular, the Respondent
II asserts that it never took part in the Second League and that it does not own
the sporting facilities described by the Claimant.
21.
In its final comments, the Respondent I reiterates its previous argumentation.
22.
According to the information uploaded in the Transfer Matching System
(TMS), the Respondent I and the player, on 14 August 2012, mutually agreed
to terminate the employment contract concluded between them on 13 August
2012 and valid as of the 2012-13 season until the 2015-16 season.
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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 14 March 2014. Consequently, the 2012 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 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 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 2012 and
2014), and considering that the player was registered with the Respondent II
on 31 August 2012 and with the Respondent I on 26 September 2012, the 2012
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. However, the Chamber emphasised that in
the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In continuation, the DRC took note that the Claimant maintained that it is
entitled to receive training compensation from the Respondent I in the
amount of EUR 327,616, 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.
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6.
Likewise, the DRC took note of the Claimant’s argument that on 13 August
2012, the Respondent I and the player entered into an employment contract
but then decided the next day, i.e. on 14 August 2014, to terminate the latter
mutually.
7.
Furthermore, the DRC noted that the Claimant stated that the Respondent II
had signed an employment contract with the player on 20 August 2012 and
that subsequently, on 21 August 2012 the Respondent I and the Respondent II
had signed an agreement for the loan of the player from the former to the
latter without the player ever having attended a match or a training session
with the Respondent II. In this respect, the Claimant pointed out that no loan
compensation was paid, that the duration of the loan from the Respondent II
to the Respondent I was equivalent to the duration of the employment
contract signed between the player and the Respondent I and also that the
loan to the Respondent I and the employment contract with the Respondent II
were both terminated in January 2013. In view of this, the Claimant stated that
the Respondent I should be considered the player’s new club which is liable to
pay training compensation.
8.
In continuation, the DRC noted that both Respondents rebutted the claim of
the Claimant, stating that the player was first transferred to the Respondent II
but then while training with the latter, he captured the Respondent I’s
attention and therefore due to the longstanding institutional relationship
between both clubs, they agreed upon a temporary transfer from the former
to the latter. According to them, this situation would allow to maintain a
permanent link between the Respondent II and the player but would also give
to the player the opportunity to develop his skills.
9.
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 I or the Respondent II, is to be
considered the new club of the player in light of the provisions regarding
training compensation.
10.
In this context, the Chamber referred to the documentation in its possession,
more in particular to the termination agreement dated 14 August 2012 by
means of which the Respondent I and the player decided to terminate the
employment contract concluded the day before, from which it could be
established that the Respondent I was interested in the services of the player
prior to the latter’s signature with the Respondent II.
11.
Furthermore, the Chamber referred to the employment contract signed
between the player and the Respondent II, dated 20 August 2012, and to the
Training compensation in connection with the player Z (Club A, country U / Club B and Club C, country P)
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loan agreement signed between the Respondent I and the Respondent II,
dated 21 August 2012.
12.
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 the Respondent
II and when he was loaned to the Respondent I. Furthermore, the player was
transferred from the Respondent II to the Respondent I free of payment and
for a duration equivalent to the duration of the player’s employment contract
with the Respondent I. In this respect, the DRC also stressed that the loan to
the Respondent I and the employment contract with the Respondent II were
terminated simultaneously.
13.
In addition, the Chamber considered that the Respondent I and the
Respondent II are from the same island, that the Respondent II belonged to a
lower club category than the Respondent I, and that the player has never been
playing for the Respondent II.
14.
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 I. Indeed,
the Chamber emphasised that the fact that the Respondent I had signed a
contract with the player on 13 August 2012 which had been terminated the
following day, the fact that the player had never played with the Respondent
II, that there was only a very short period of time between the moment that
the player was transferred to the Respondent II and when he was loaned from
the Respondent II to the Respondent I for free, can lead to no other conclusion
than that the Respondent I was the new club of the player in the sense of the
Regulations. Therefore, the Chamber held that the Respondent I should be
considered the player’s new club.
15.
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 23 rd
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.
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16.
In continuation, the DRC recalled that the player, who was a professional, was
transferred and registered to a club belonging to a different association, i.e.
the Respondent I, before the end of the season of his 23rd birthday. In view of
the foregoing, the DRC decided that the Respondent I is liable to pay training
compensation to the Claimant in accordance with art. 20 and Annexe 4 of the
Regulations.
17.
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.
18.
In continuation, the Chamber recalled that the player was born on 26
November 1989 and was registered with the Claimant as from 16 March 2007
until 30 September 2009 as an amateur and as from 1 October 2009 until 30
August 2012 as a professional.
19.
Therefore, the DRC considered that the Claimant is, thus, entitled to receive
training compensation for the period as from 16 March 2007 until 31 July 2011,
i.e. for a period of 52 months between the seasons of his 18th and 21st birthday.
20.
Moreover, the DRC took into account that the Respondent I belonged to the
category II (indicative amount of EUR 60,000 per year).
21.
In view of all of the above, the DRC decided to partially accept the claim of the
Claimant and held that the Respondent I is liable to pay the amount of EUR
225,000 to the Claimant as training compensation in relation to the
registration of the player with the Respondent I.
22.
In addition, and considering the Claimant's request for interest as well as the
date of registration of the player with the Respondent I, the DRC decided that
the Claimant is entitled to receive interest at the rate of 5% p.a. as of 27
October 2012 until the date of effective payment.
23.
In continuation, the Dispute Resolution Chamber established that any further
claims lodged by the Claimant are rejected
24.
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
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Annex A of the Procedural Rules, the costs of the proceedings are to be levied
on the basis of the amount in dispute.
25.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 327,616 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).
26.
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,
which shall be borne by the Respondent I.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent I, B, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 225,000 plus 5%
interest p.a. as of 27 October 2012 until the date of effective payment.
3.
In the event that the aforementioned amount 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.
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
by the Respondent I within 30 days of notification of the present decision, to
FIFA to the following bank account with reference to case nr. 14-00735/gbo:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
The Claimant is directed to inform the Respondent I 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.
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*****
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:
Jérôme Valcke
Secretary General
Encl: CAS directives
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