Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2015,
in the following composition:
Geoff Thompson (England), Chairman
John Bramhall (England), member
Leonardo Grosso (Italy), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), 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 Association of country
B, the Player E (hereinafter: the player), born on 12 November 1993, was
registered with the club from country B, Club A (hereinafter: the Claimant),
as from 1 January 2008 until 28 August 2012 as an amateur.
2.
Furthermore, the aforementioned player passport indicated that between
2005-2006 to 2007-2008, there was “no records” found for said period of
time.
3.
The sporting season in country B, as from 2007, runs as from 1 July to 30 June
of the following year.
4.
Pursuant to the information contained in the Transfer Matching System
(TMS), the player was registered with the club from country D, Club C
(hereinafter: the Respondent), on 28 August 2012 as a professional.
5.
Furthermore, TMS indicates that the Respondent belonged to category III
(indicative amount of EUR 30,000 per year) during the season when the player
was registered with said club.
6.
On 24 July 2014 and only completed on 25 June 2015, the Claimant contacted
FIFA asking for training compensation from the Respondent based on the first
registration of the player as a professional with the Respondent. In this
respect, the Claimant is claiming training compensation in the amount of EUR
117,424, plus 5% interest p.a.
7.
In its reply to the claim, the Respondent alleged that, at the time it hired the
player, it was told that the player was a “free agent” and was not aware of
the player having played for the Claimant before. In particular, the
Respondent pointed out that TMS does not give any indication in this respect.
The Respondent also provided a document issued by the alleged “FIFA
licensed agents” company of the player, dated 23 August 2012 and which
states the following:
“To whom it may concern
This is to inform you that Player E is a free agent after amicably terminating
his contract with Club F of country G.
I hereby indemnify Club C of any dispute that might arise in future in respect
of the training compensation on Player E.
Any issue should be directed to us, his FIFA licensed agents (Company H).”
Training compensation in connection with the Player E
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8.
Moreover, the Respondent sustained that, in any event, prior to his transfer
to the said club from country D, the player had a “training contract” with the
club from country G, Club F. In this regard, the Respondent provided a
document named “Agreement of Breach of Sporting Training Contract in
Common Accordance”, dated “14 May 2011”, signed by Club F and the player,
by means of which the relevant parties agreed to “rescind by mutual
agreement the sporting training contract with effects from 1 July 2011 until
30 June 2012” and “to retroact the effects of this agreement as from 29
February 2012”.
9.
Clause 2 of said document states that Club F is to pay the player a
compensation amounting to EUR 1,500, which corresponds to his salary for
December 2011, January and February 2012.
10.
Pursuant to clause 3 of said document, “this agreement does not affect the
right of Club F to “Training Compensation” (…)”.
11.
The Respondent further argues that the Claimant’s claim is time-barred since
it was notified to it in July 2015 only.
12.
Finally, the Respondent questioned whether the player had been offered a
new contract by his previous clubs.
13.
In view of the foregoing, the Respondent deemed that the Claimant is not
entitled to training compensation from itself.
14.
In its replica, the Claimant refuted all of the Respondent’s allegations. In
particular, the Claimant recalled that for a first registration as a professional,
the player is deemed a “free agent”, but that this is not a ground to refuse
to pay training compensation.
15.
Furthermore, the Claimant refers to the correspondence of the Football
Association of country B dated 16 June 2015 by means of which said
association confirmed the dates of registration of the player with the
Claimant.
16.
As to the alleged professional contract signed by the player and Club F, the
Claimant underlined that the document provided by the Respondent is in fact
a draft of a potential contract as it is signed by only one party. The Claimant
further emphasised that said document stipulates “training contract” and not
professional contract. In any event, the Claimant provided a correspondence
Training compensation in connection with the Player E
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dated 4 June 2014 from the Football Association of country G, addressed to
the legal representative of the Claimant, by means of which the relevant
association confirmed that the player “was never registered with [Club F] as
amateur or professional” and also that he “was never registered within [the
Football Association of country G]”.
17.
Regarding the allegation of prescription, the Claimant recalled that it lodged
the claim before FIFA in July 2014, which is less than two years after the event
given rise to the dispute, which is, in casu, the first registration as a
professional in August 2012.
18.
Finally, the Claimant recalled that art. 6 of Annex 4 of the Regulations on the
Status and Transfer of Players is not applicable to non-EU countries, including
country B.
19.
In its final comments, the Respondent reiterated its position. In particular, it
maintained that it relied on the only information available in TMS, according
to which it appears that the player transferred from country B to the
Respondent with the caption “no previous club, country B”. The Respondent
also underlines that the Claimant did not provide an undoubtable evidence,
such as a contract, which could confirm that it is entitled to training
compensation.
20.
The Respondent also provided the aforementioned document named
“Agreement of Breach of Sporting Training Contract in Common
Accordance” in the language of country G and deemed being the contract
allegedly signed between the player and Club F. Based on the said document,
the Respondent further explained that the player concluded a contract with
the relevant club from country G, valid as from 1 July 2011 until 30 June 2012,
which was terminated on 14 March 2012.
21.
The Respondent also alleged “after we [it] talked to the player, we [it] also
understand that he had been in Club F once before 2011, actually in 2010”.
In this respect, the Respondent referred to a visa issued for the player for the
period from 18 January 2010 until 17 May 2010.
22.
Upon FIFA’s request, the Football Association of country D provided the
updated player passport which indicates the following information:
from 2005 to 2008, there is no record of the player;
from 2008 to 2012, the player was registered with the Claimant as an
amateur;
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on 3 September 2012, the player was registered with the Respondent as a
professional;
on 3 April 2015, the player was registered with the club from country D, Club
I, as a professional.
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 24 July 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 2015), 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 (edition 2015), and
considering that the player was registered with the Respondent on 28 August
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.
However, the Chamber reverted to the argument raised by the Respondent,
according to which the claim of the Claimant would be time-barred since the
Respondent was only notified about the relevant claim in July 2015. 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 24 July 2014, and the registration
of the player with the Respondent having occurred on 28 August 2012, the
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members of the Chamber had to reject the respective argument brought up
by the Respondent and thus confirmed that the present petition was lodged
in front of the DRC within said two-year period of time. In this regard, the
Chamber wished to recall that, according to ar.t 3 par. 1 and 2 of Annex 4 of
the Regulations, the deadline for the payment of training compensation is 30
days following the registration of the professional with the new association.
Hence, the event giving rise to the dispute is the non-payment of training
compensation 30 days after 28 August 2012. The matter is, thus, not timebarred by the statute of limitations in accordance with art. 25 par. 5 of the
Regulations.
5.
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.
6.
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 117,242, plus interest, indicating that the transfer of the
player to the Respondent before the end of the season of his 23rd birthday
was the first registration of the player as a professional.
7.
In continuation, the DRC noted that the Respondent rebutted the claim of
the Claimant, mainly stating that there was no information as to the player’s
prior registration with the Claimant in TMS and also that the player was first
registered as a professional with Club F prior to being transferred to the
Respondent.
8.
After having carefully examined the parties’ positions, the Chamber held that
it first of all had to establish whether the player held the amateur status or
the professional status at the time he was registered with the Respondent. To
this end, the Chamber referred to art. 2 par. 2 of the Regulations, which
stipulates that “A professional is a player who has a written contract with a
club and is paid more for his footballing activity than the expenses he
effectively incurs. All other players are considered to be amateurs”.
9.
In this context, the Chamber examined the document referred to as the
“Agreement of Breach of Sporting Training Contract in Common
Accordance” that was provided by the Respondent, in its original version
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from country G together with its English translation, as the alleged
employment contract concluded by the player and Club F. In this regard, the
members of the Chamber duly noted that, according to said document, the
relevant parties had agreed to “rescind by mutual agreement the sporting
training contract (…)”.
10.
Taking into consideration the aforementioned, the Chamber unanimously
concluded that said document was not the alleged written contract
concluded between the player and Club F for the period from 1 July 2011
until 30 June 2012, as asserted by the Respondent.
11.
Further to the above, the Chamber pointed out that the Football Association
of country G had confirmed that the player was never registered with Club F
as a professional or an amateur.
12.
The DRC thereafter referred to the player passport provided by the Football
Association of country D, which clearly indicated that prior to the registration
with the Respondent, the player only held the amateur status and became
professional as from his registration with the Respondent.
13.
Additionally, the members of the Chamber highlighted that, in the
information contained in the TMS, the transfer instruction from Club F to the
Respondent was cancelled on 27 August 2014 due to the fact that “the player
was not under contract with Club F”. The DRC also considered that the
International Transfer Certificate (ITC) was received by the Football
Association of country D from the Football Association of country B.
14.
On account of the aforementioned elements, and in the absence of any
conclusive evidence from the Respondent to support its allegations, the
Chamber concluded that the player had always been registered as an amateur
prior to his registration with the Respondent, with which he was registered
as a professional for the first time.
15.
Having established the above, the Chamber referred to the rules applicable
to training compensation. In this context, the Chamber started by stating
that, as established in art. 20 of the Regulations as well as 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. In this instance, art. 3 par. 1 sent. 1 and 2 of Annexe 4 of the
Regulations sets forth that training compensation will be owed to every club
Training compensation in connection with the Player E
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with which the player has previously been registered and that has contributed
to his training as of his 12th birthday.
16.
In continuation, the Chamber alluded to art. 5 par. 1 and par. 2 of Annexe 4
of the Regulations, which stipulated 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.
17.
In this context, the Chamber recalled that the player was born on 12
November 1993 and was registered with the Claimant as from 1 January 2008
until 28 August 2012 as an amateur.
18.
Therefore, the DRC considered that the Claimant was entitled to receive
training compensation for the period as from 1 January 2008 until 28 August
2012, i.e. for a period of 56 months between the season of his 14th and 19th
birthday.
19.
Moreover, the DRC took into account that the Respondent belonged to
category III (indicative amount of EUR 30,000 per year).
20.
In view of all of the above, the DRC decided that the Respondent was liable
to pay the amount of EUR 110,000 to the Claimant as training compensation
in relation to the first registration of the player as a professional with the
Respondent.
21.
In addition, and considering the Claimant’s request for interest as well as its
well-established jurisprudence, the DRC decided that the Claimant was
entitled to receive interest as the rate of 5% p.a. as of 25 June 2015 until the
date of effective payment.
22.
In continuation, the Dispute Resolution Chamber established that any further
claims lodged by the Claimant are rejected.
23.
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.
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24.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 117,424 related to the claim
of the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponded to CHF 15,000 (cf. table in
Annex A).
25.
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 8,000
which shall be borne by the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 110,000 plus 5% interest
p.a. as of 25 June 2015 until the date of effective payment.
3.
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.
4.
Any further claim lodged by the Claimant is rejected.
5.
The final costs of the proceedings in the amount of CHF 8,000 are to be paid
by the Respondent within 30 days as from the date of the notification of
the present decision, to FIFA to the following bank account with reference to
case nr. XXXX:
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 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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
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