Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 November 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Yy), Member
Zola Majavu (South Africa), Member
Michele Colucci (Yy), Member
Rinaldo Martorelli (Brazil), Member
on the claim presented by the club,
X, Xx,
as “Claimant”
against the club,
Y, Yy,
as “Respondent”
regarding a training compensation dispute related to the
transfer of the player R.
I.
Facts of the case
1.
According to the official player passport issued by the Xxn Football Federation,
the Xxn player R, born on 4 May 1985, was first registered with the Xxn club, X,
the Claimant, on 6 August 1991 as an amateur.
2.
The player in question signed on 7 May 2002 an employment contract with the
Claimant valid until 31 May 2005, providing both parties to the contract with an
option to extend the contractual relationship for another year.
3.
The said employment contract provided that the player is engaged as a contract
player. It was also agreed that the player should receive as allowance (costs for
training) each season the amount of EUR 3,500 and, should the player belong to
the main squad, he would receive a monthly net amount of EUR 1,000 plus
bonus as per match appearance.
4.
On 2 February 2004, the player was, according to the player passport, registered
as a professional with the Xxn club, …. (on a loan basis until 30 June 2004).
5.
On 19 June 2004, the player was again registered with the Claimant as a
professional.
6.
On 8 September 2006, the Xxn Football Federation issued the International
Transfer Certificate for the player R in favour of the Yy Football Federation.
7.
On 10 October 2006, the Claimant contacted FIFA and requested the payment of
EUR 300’000 in terms of training compensation from the Yy club, Y, the
Respondent, in accordance with the relevant applicable FIFA Regulations.
8.
According to the FIFA Circular no. 1031, dated 4 April 2006, which regards the
categorisation of clubs, the Claimant belongs to category 2 whereas the
Respondent belongs to category 3 (indicative amount EUR 30,000 per year).
9.
The Respondent, alleged that the Claimant did not pay the player’s salary during
the sporting season 2005/2006, i.e. the last sporting season of contract between
the Claimant and the player in question after the Claimant had exercised its
option for one additional year. Therefore, the player had demanded the
termination of the contract should the salaries not been paid until 26 May 2006.
10.
The Respondent concludes that the Claimant, by failing to pay the player’s
salaries, was no longer interested in the player’s services and consequently is not
entitled to receive training compensation.
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Training Compensation for the player R
(Club X, Xx / Club Y, Yy)
11.
Furthermore, the Respondent emphasized that the Claimant did not provide
proof for having offered the player a new contract at least 60 days before the
expiry of their employment contract, thereby forfeiting its right to claim for
training compensation.
12.
Finally, the Respondent underlines that the player was fielded on a regular basis
in the Xxn Division A. During the sporting season 2004/2005 he allegedly played
13 matches and during the sporting season 2005/2006 he allegedly played 14
matches. In order to corroborate its statements, the Respondent submitted a
copy of the player’s profile from the Claimant’s website to the file. According to
the Respondent, it is evident that the player in question had already terminated
his training before the age of 21.
13.
The Claimant remained of its conviction to be entitled to receive training
compensation amounting to EUR 300’000 from the Respondent.
14.
In this respect, it maintained in particular that the relevant provisions of the FIFA
Regulations do not exclude the entitlement for training compensation due to an
alleged delay in paying the player’s wages. Furthermore, the Claimant explains
that the player had not even terminated the contract due to delayed payments.
15.
Furthermore, the Claimant presented an affidavit of its chief-coach and the
assistant coach dated 11 January 2007, in order to confirm that a contract of at
least equivalent value was offered to the player. The said affidavit reads as
follows: “…hereby declare…that in the second half of March 2006 Mr R was
offered by the (Claimant) to continue to play for (the Claimant) under at least
the same conditions as previously. Furthermore, we declare in lieu of an oath
that the player R was given a written contract offer to this effect by us in our
presence, and in the presence of several other player, and that, at first, he
requested some time for consideration whether to accept the offer or not, and
eventually rejected the same”.
16.
Finally, the Claimant rejected the Respondent’s argument that the player had
terminated his training before his 21st birthday. In this regard, the Claimant
stressed that it does not automatically follow from the fact that a young player is
fielded in the highest division that his education is completed. Secondly, it
explained that it follows from the extracts of its web page that the player was
even not playing in nearly 50 per cent of the matches. In view of its statements,
the Claimant stressed that the player R was not one of its regularly fielded
players.
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Training Compensation for the player R
(Club X, Xx / Club Y, Yy)
17.
The Respondent reiterated that the Claimant failed to pay the player’s wages
and thereby showed its lack of interest in maintaining the relationship with the
player.
18.
Moreover, the Respondent stressed that the player’s contract with the Claimant
expired on 31 May 2006 and that the Claimant could not provide proof that it
offered the player a new contract via registered mail at least 60 days before the
expiry date of the contract. According to the Respondent, the declaration from
the chief-trainer and assistant trainer dated 11 January 2007 is false and
inadmissible because the Regulations admit only one proof to demonstrate the
offer of a new contract, i.e. the contract offer via registered mail. In this respect,
the Respondent further mentioned that no specific date is indicated in the
aforementioned declaration dated 11 January 2007, i.e. an indispensable
prerequisite for the correct calculation of the 60 days deadline. Moreover, the
circumstances reported in the said declaration do not correspond to the usual
procedure, since a new written contract is not an offer of the chief-trainer or
assistant-trainer but it is an offer made at the legal seat of the club in the
presence of the president and/or other managers.
19.
The Claimant submitted a third petition since it deemed necessary to comment
the Respondent’s statement. In order to corroborate its statement that the
contract between the player and the Claimant came to an end on its expiry date,
the Claimant remitted a copy of a confirmation letter to the file, issued by the
Xxn Football League according to which, between the seasons 2004/2005 until
2006/2007, no proceedings were dealt with by its arbitration body regarding the
termination of a contract between the player in question and the Claimant.
Moreover, the Claimant submitted a copy of a contract offer bearing the date of
12 March 2006 on which handwritten comments were included, allegedly made
by the legal representative of the player in question.
20.
The Respondent finally emphasized that the Claimant never provided proof of
having offered a new contract to the player via registered mail. Moreover, the
declaration dated 11 January 2007 is false and inadmissible since contradictory to
the statements made in the course of the present proceedings.
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
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Training Compensation for the player R
(Club X, Xx / Club Y, Yy)
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 10 October
2006, as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations for the Status and
Transfer of Players (edition 2005). In accordance with art. 24 par. 1 in
combination with art. 22 (d) of the Regulations 2005, the Dispute Resolution
Chamber shall adjudicate on disputes between two clubs belonging to different
Associations related to training compensation.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the training compensation claimed
by the Claimant for the training and education of the player R.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1
and 2 of the Regulations for the Status and Transfer of Players (edition 2005) in
accordance with the FIFA circular no. 995, dated 23 September 2005.
Furthermore, it acknowledged that the professional had been registered for his
new club, the Respondent, in September 2006. Equally the Chamber took note
that the claim of the Claimant was lodged at FIFA on 10 October 2006. In view of
the aforementioned, the Chamber concluded that the 2005 edition of the FIFA
Regulations for the Status and Transfer of Players is applicable on the case at
hand as to the substance.
5.
Entering 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 on the one hand, the Claimant requested training compensation amounting
to EUR 300,000 based on the number of years the player spent training with the
Claimant and, on the other hand, the Respondent mainly invoked that the
Claimant is not entitled to receive any training compensation by means of not
having offered 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.
6.
In this respect, the members of the Chamber took particular note that the
Claimant maintains having offered the player R a new contract. In this respect, in
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Training Compensation for the player R
(Club X, Xx / Club Y, Yy)
order to corroborate its statement, the Claimant presented an affidavit of its
chief-coach and the assistant coach dated 11 January 2007 as well as a copy of a
contract offer bearing the date 12 March 2006 on which handwritten comments
were included. Therefore, the Claimant deems having offered enough evidence
to demonstrate that it actually offered the player a contract.
7.
In continuation, and taking into account that, as established above, 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, 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, i.e. to offer the player an employment
contract of at least an equivalent value to the current contract and, in particular
that such offer has to be made at least 60 days before the expiry of the player’s
current contract.
9.
In this respect, first and foremost, the Chamber unanimously acknowledged that
uncontestedly the Claimant had not offered the player R a contract of at least
equivalent value to the current contract in writing via registered mail at least 60
days before the expiry of his existing contract.
10.
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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Training Compensation for the player R
(Club X, Xx / Club Y, Yy)
11.
Based on this considerations, the Chamber deemed it appropriate to clarify that,
contrary to the Respondent’s position, the written offer made via registered mail
is not the only possible evidence for a club to document the relevant offer and
thus its entitlement to training compensation. If the club is in a position to prove
by other means that an offer of at least equivalent value to the current contract
was actually made to the player in due time, this must be accepted and cannot
just be dismissed by the fact that it was not a registered letter.
12.
As a consequence, the Chamber went on to examine whether the Claimant had
provided other unambiguous documentary evidence for the offer to have been
made to the player in due time and for an adequate value.
13.
To this end, at first, the Chamber took note that the Claimant submitted an
affidavit to the file which was signed by its chief and assistant coach in order to
evidence that it had offered a contract to the player of at least equivalent value
to the existing contract.
14.
In this respect, and taking into account the fact that the said affidavit was signed
by persons firmly connected to the Claimant and thus not independent from the
Claimant in connection with the present matter, the deciding authority held that
this document does not constitute sufficient documentary evidence to
corroborate the allegations of the Claimant for having offered the player a
contract.
15.
In continuation, the Chamber referred to the document allegedly constituting a
contract that the Claimant offered to the player on 12 March 2006 and bearing
handwritten notes which allegedly “..show the wishes for changes to the
contract expressed by the player…”.
16.
In this regard, the Dispute Resolution Chamber held that the aforementioned
document as such, apparently containing certain remarks made by one of the
Claimant’s staff members at that time, does not sufficiently provide proof that
the Claimant in actual fact offered the player a contract in due time and for an
adequate value. In particular, the Chamber added that the said document does
nowhere contain the signature or remarks of the player himself.
17.
Taking into account the above, the Chamber reached the conclusion that the
Claimant by failing to produce evidence of having met the requirements in
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Training Compensation for the player R
(Club X, Xx / Club Y, Yy)
accordance with art. art. 6 par. 3 of Annex 4 of the Regulations is not entitled to
claim training compensation from the Respondent.
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 lodged by the Claimant, X, is rejected.
2.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives
issued by the CAS, copy of which we enclose hereto. Within another 10 days
following the expiry of the time limit for the filing of the statement of appeal,
the appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives). The full address and
contact numbers of the CAS are the following:
Château de Béthusy
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
General Secretary
Encl.
CAS directives
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Training Compensation for the player R
(Club X, Xx / Club Y, Yy)