Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 November 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mohamed Al-Saikhan (Saudi Arabia), member
Rinaldo Martorelli (Brazil), 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, Player E, born on 19 October 1992, was registered as an amateur with its affiliated
clubs as follows:
Club
Status
Registration dates
Club F
Amateur
from 11 August 2004 until 6 August 2006
Club G
Amateur
from 9 August 2006 until 10 August 2009
Club A
Amateur
from 11 August 2009 until 21 June 2011
2. On 21 October 2013, the Football Association of country B confirmed that Club A
(hereinafter: the Claimant) is the legal successor of Club F and that “as such is registered
with the Football Association of country B from 22.02.2006”.
3.
The football season in country B ran as follows:
Season
Dates
2004/2005
from 14 August 2004 until 1 June 2005
2005/2006
from 15 August 2005 until 2 June 2006
2009/2010
from 19 August 2009 until 6 June 2010
2010/2011
from 20 August 2010 until 7 June 2011
4. According to the information contained in the Transfer Matching System (TMS), the
player was transferred from the club from country H, Club I (hereinafter: the involved
club), to the club from country D, Club C (hereinafter: the Respondent), on 26 February
2013.
5. Furthermore, according to the player passport issued by the Football Association of
country H, the player was registered with the involved club as an amateur.
6. The Football Union of country D confirmed that the player was registered with Club C on
26 February 2013.
7.
According to the information contained in the TMS at the time the player was registered
with Club C, said club belonged to the category 2 (indicative amount of EUR 60,000 per
year).
Training compensation for the Player E
(Club A, country B / Club C, country D)
2
8. On 24 September 2013, the Claimant contacted FIFA asking for its proportion of training
compensation for the first registration as professional of the player with the Respondent.
In particular, the Claimant requested EUR 137,583 plus 5% p.a. as from 30 March 2013, as
well as the procedural costs and all the costs in relation to the present procedure,
including the attorney’s fees.
9. In this respect, the Claimant stated that the player was previously registered with the
involved club as an amateur from 20 July 2011 until 22 February 2013, enclosing a copy of
the player passport issued by the Football Association of country H. According to the
Claimant, during the 2013 winter registration period, the player then was transferred to
the Respondent, with which he signed his first professional contract.
10. On 30 December 2013, the Respondent rejected the Claimant’s claim by referring to art. 2
of the FIFA Regulations on the Status and Transfer of Players. In particular, the
Respondent stated that the player had a written contract with the involved club, which
should be understood as an employment contract, and that, as a result, the employment
contract entered into with the Respondent is not the player’s first employment contract.
In particular, the Respondent held that it entered into a transfer agreement with the
involved club for the transfer of the player, thus, clearly accepting an early termination of
the employment contract between the involved club and the player.
11. In this respect, the Respondent provided a copy of the transfer agreement entered on 22
February 2013 between said club and the involved club by means of which the former
paid EUR 100,000 to the latter for the transfer of the player.
12. Furthermore, and as to the alleged amateur status of the player while registered for the
involved club, the Respondent referred to the jurisprudence of the DRC, according to
which, the formal status of the player registered by a national association “shall not be a
critical factor to determine whether the player is amateur or professional”.
13. On 4 April 2014, the Claimant rejected the Respondent’s arguments. In particular, the
Claimant asserted that the player passport is a public document issued by the Football
Association of country B and by the Football Association of country H and that, therefore,
“it is legal to presume that the document proves what it is confirmed by it”.
14. In this respect, the Claimant referred to the Commentary to the Regulations on the Status
and Transfer of Players and, in particular, to art. 7 par. 1 and 3, stating inter alia that the
info contained in the player passport is “crucial when calculating training compensation
and the solidarity contribution payable to those clubs that have invested in training this
player”.
15. Furthermore, the Claimant referred to clause 2.3 of the transfer agreement entered into
between the involved club and the Respondent, which reads as follows:
“Should [the involved club] fail to submit the international transfer certificate and the
transfer contract for the registration of the player till 25 February 2013 (inclusive) the
present Agreement shall be deemed null and void and not granting any rights or
imposing any obligations upon de Parties”.
Training compensation for the Player E
(Club A, country B / Club C, country D)
3
16. In this respect, the Claimant assessed that said transfer agreement only binds the signing
parties and, therefore, no provision is effective against any third party such as the
Claimant. Consequently, the latter is of the opinion that, since the ITC was issued on 26
February 2013, it should be undisputed that an international transfer of the player from
the involved club to the Respondent indeed occurred.
17. Moreover, and as to the status of the player when registered with the involved club, the
Claimant referred to the art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber and held that the
Respondent failed to provide any evidence supporting that the player was a professional
at the time he was registered with the involved club, although the burden of proof was
on the Respondent. As a result, the Claimant is of the opinion that the information
contained in the player passport issued by the Football Association of country H (i.e. that
the player was registered with the involved club as an amateur) should be considered as
accurate.
18. On 18 June 2014, the Respondent referred to the wording of the transfer agreement
entered between the latter and the involved club (cf. point I.11 above), and stated that it
repeatedly refers to the employment contract of the player with the involved club.
19. In this respect, the Respondent also referred to the DRC decisions no. 191126 and no.
99140 and asserted that the DRC has repeatedly accepted that the status in the player
passport cannot be considered as irrefutable information.
20. Furthermore, the Respondent assessed that a transfer agreement is concluded whenever a
club wants to register a player who is currently registered with another club, and whose
employment contract with said club is valid.
21. In this respect, the Respondent held that it had paid EUR 100,000 to the involved club in
order to release the player, thus, the Respondent concluded the player was not an
amateur. In particular, the Respondent referred to the CAS jurisprudence, according to
which, “the amateur status can also be corroborated by the fact that it is only because the
Player was amateur that he was able to leave his previous club to join another club,
without being hindered from being engaged in other professional activities or
occupations”.
22. In light of the foregoing, the Respondent concluded that the player had entered into a
contract with the involved club and that he was bound by said contract, thus, he was
already a professional player before being transferred to the Respondent. Consequently,
the Respondent requested the rejection of the claim.
23. Upon request, Football Association of country H and the involved club confirmed to TMS
Compliance, in the context of their investigation on the subject, that on 24 June 2011 the
Football Association of country H informed the Football Association of country B that the
player was going to be registered as an amateur. Furthermore, the Football Association of
country H held that “after 17 July 2011, Football Association of country H had no any kind
of connection with this transfer or with the aforementioned player, because the
jurisdiction for the registration of the player was on Regional Registration Body in the
City J. After we checked it, we can confirm that the Player E has been registered as the
Training compensation for the Player E
(Club A, country B / Club C, country D)
4
member of [the involved club] in amateur status since 20 July 2011 (…). We can confirm
that we have no knowledge of the existence of any employment contract between the
club and the player”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, it
referred to art. 21 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was submitted to
FIFA on 24 September 2013. As a consequence, the Chamber concluded that 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 in hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural Rules
states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of
arts. 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2012,
2014 and 2015). In accordance with art. 1 par. 1 of the aforementioned Regulations,
which describes the scope of the relevant Regulations, in connection with articles 24
par. 1 and 22 d) of said Regulations, the Dispute Resolution Chamber is competent to
decide on the present litigation with an international dimension concerning the
training compensation claimed by the club from country B for the training and
education of the player in connection with the alleged first registration of said player as
a professional for the club from country D.
3.
Furthermore, and taking into consideration that the player was registered for the
Respondent on 26 February 2013, 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, 2014
and 2015), 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 Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and started by
acknowledging the facts of the case, as well as the documentation contained in the file.
However, the Chamber emphasized 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.
5.
In this respect, the members of the Chamber first of all acknowledged that the Claimant
requested the amount of EUR 137,583 as training compensation from the Respondent
Training compensation for the Player E
(Club A, country B / Club C, country D)
5
plus interest as from 30 March 2013. Particularly, the Claimant insisted that its claim was
based on the first registration of the player as a professional.
6.
The Chamber took also note, on the other hand, that the Respondent contested the
claim of the Claimant emphasising that the player had already been registered as a
professional with the club from country H, Club I. In order to corroborate its position,
the Respondent provided a copy of the transfer agreement signed with the involved
club on 22 February 2013, according to which the parties had agreed upon a transfer
compensation of EUR 100,000.
7.
Equally, the members of the Chamber considered that the Football Association of
country H confirmed that the player had been registered as an amateur with the
involved club.
8.
Thereafter, the DRC maintained that, as a general rule, training compensation for a
player’s training and education is, in principle, due when a player is registered as a
professional for the first time and in case of a subsequent transfer of a professional,
training compensation will only be owed to his former club for the time he was
effectively trained by that club (cf. art. 3 par. 1 of the Annexe 4 to the Regulations).
9.
Subsequently, the Chamber referred to the general legal principle of the burden of
proof, which is a basic principle in every legal system, according to which a party
deriving a right from an asserted fact has the obligation to prove the relevant fact (cf.
art. 12 par. 3 of the Procedural Rules).
10.
In this respect, the DRC turned its attention to the rare evidence on file and considered
the relevant transfer agreement as the most convincing element. According to said
agreement, the involved club and the Respondent had agreed upon a transfer
compensation amounting to EUR 100,000. Said payment, so the members of the
Chamber, symbolises the amount payable to the former club in order to enable the
transfer of a player to a new club during the validity of his employment contract.
Consequently, the members of the Dispute Resolution Chamber unanimously concluded
that a transfer compensation would clearly speak for a professional status of the player
with his previous club.
11.
Taking into account the above and due to the lack of proof with regard to the amateur
status of the player with the involved club, the DRC did not uphold the Claimant’s
position in this regard.
12.
Thus, and bearing in mind all the above-mentioned points, the members of the
Chamber underlined that in accordance with the clear wording of the Regulations in
case of subsequent transfers of a professional, training compensation will only be owed
to his former club for the time he was effectively trained by that club (cf. art. 3 par. 1 of
Annexe 4 to the Regulations).
Training compensation for the Player E
(Club A, country B / Club C, country D)
6
13.
In light of the above, the Chamber concluded that the Claimant is not entitled to
receive training compensation from the Respondent since the transfer of the player
from the club from country B to the club from country D has to be considered as a
subsequent transfer of a professional player, and, therefore, only the previous club of
the player would be entitled to receive training compensation.
14.
Taking into account all of the above, the Chamber concluded that the Claimant’s
demand for training compensation has to be rejected.
15.
In continuation, the Chamber referred to art. 18 par. 1 of the Procedural Rules,
according to which in the proceedings before the Dispute Resolution Chamber relating
to disputes regarding training compensation costs in the maximum amount of
CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree
of success in the proceedings.
16.
In this respect, the Chamber reiterated that the claim of the Claimant is rejected.
Therefore, the latter club has to bear the costs of the current proceedings in front of
FIFA.
17.
According to Annexe A of the Procedural Rules, the costs of the proceedings are to be
levied on the basis of the amount in dispute.
18.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 137,583 related to the claim of the Claimant. Therefore, the Chamber
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 20,000 (cf. table in Annexe A of the Procedural Rules).
19.
Considering that the matter at stake allowed to be dealt with following a reasonable
procedure, the Chamber determined the final amount of costs of the current
proceedings to the amount of CHF 15,000
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the
Claimant to FIFA. Given that the latter already paid an advance of costs of CHF 4,000 at
Training compensation for the Player E
(Club A, country B / Club C, country D)
7
the beginning of the present proceedings, the Claimant has to pay the amount of CHF
11,000, within 30 days of notification of the present decision, 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
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
Training compensation for the Player E
(Club A, country B / Club C, country D)
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