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), President
Mario Gallavotti (Italy), Member
Zola Majavu (South Africa), Member
Michele Colucci (Italy), Member
Rinaldo Martorelli (Brazil), Member
on the claim presented by
Club A,
as Claimant
against the
Club B,
as Respondent,
regarding a dispute about the breach of an employment contract
and the inducement to breach of an employment contract,
and regarding a dispute about
training compensation for the player X.
I.
Facts of the case
1.
The player X (hereinafter; the player), born in January 1985, was registered with
the club A (hereinafter; club A) from 25 June 1999 to 1 May 2003 as an amateur.
2.
On 2 May 2003, the player and club A concluded an employment contract valid
until 2 May 2008, in consequence to which the player was registered with club A
as a professional from 2 May 2003 until 29 July 2005, except for the periods from
8 March to 8 June 2004 and from 18 June 2004 to 30 June 2005, during which he
was loaned to third clubs.
3.
On 2 July 2005, the player signed an employment contract with the club B
(hereinafter; club B), valid until the end of the season 2005/06.
4.
On 29 July 2005, on request of the player, a civil court, by means of a provisional
measure, dissolved the employment contract between club A and the player per
1 July 2005 and allowed the player to sign an employment contract with the club
of his choice.
5.
On 19 September 2005, the same civil court, in its final award, decided that the
player did not have a just cause to unilaterally breach his labour contract with
club A. A counterclaim of club A for compensation for unjustified breach of
contract was dismissed, since club A had made its claim on the wrong legal basis.
The player appealed this decision before the competent appeal court.
6.
On 19 January 2006, the appeal court confirmed the appealed decision.
7.
On 2 May 2006, FIFA received correspondence dated 28 April 2006 from the CBF,
by means of which it was provided with a claim of club A against club B.
8.
Club A claims against club B for training compensation in the amount of EUR
540,000 for the training of the player, in application of Annex 4 of the
Regulations for the Status and Transfer of Players (hereinafter; the Regulations).
According to club A, club B is a category 1 club.
9.
Furthermore, club A asks for the application of unspecified disciplinary measures
against club B for inducement to breach of contract in application of art. 17 par.
4 of the Regulations.
10.
On 4 July 2006, club B provided FIFA with its reply to club A’s claim.
Player X
(Club A/ Club B)
2/11
11.
Club B first of all outlines the circumstances of the conclusion of the employment
contract with the player on 2 July 2005. In this respect, club B maintains that
during the loan of the player from club A to a third club from 8 March to 8 June
2004, club A had been obliged to pay the player’s salaries, but had never paid
the player’s salaries. Despite that the player had set club A on default, the latter
had still not paid the outstanding amounts until June 2005. Consequently, the
player estimated that club A had breached the employment contract without just
cause. Therefore, he initiated a procedure against club A before a civil court in
July 2005 (the decisions of the respective procedure are outlined above). In
consequence to the initiation of such procedure, club A allegedly paid a part of
the outstanding amounts to the player. Furthermore, the player considered
himself free to sign an employment contract with the club of his choice. In view
of these circumstances, club B was of the opinion that club A had persistently
failed to comply with its obligations towards the player and therefore breached
the contract without just cause. Therefore, club B deemed being entitled to sign
an employment contact with the player.
12.
Club B is also of the opinion that since the civil court on 29 July 2005
provisionally released the player from his employment contract with club A per 1
July 2005, the player was entitled to conclude an employment contract with club
B.
13.
With respect to the decisions of the civil courts, club B maintains that the
decision that the employment contract between the player and club A had been
terminated on the initiative of the player does not have any incidence on the
notion of just cause such as provided by the Regulations of FIFA. Moreover, club
B is of the opinion that the court had only rejected the player’s claim for
compensation for breach of contract, since his claim was lodged only one year
after the claimed salaries had become due. Consequently, the player was also
not condemned to compensate club A in any way. In conclusion, club B deems
that the decisions of the courts do not object to a decision of FIFA that the player
had breached the employment contract with club A with just cause.
14.
In view thereof, club B refers to Annex 4 art. 2 of the Regulations, according to
which training compensation is not due if the former club terminates the player’s
contract without just cause.
15.
In case the DRC should not follow such argumentation, club B alternatively
underlines that the training compensation that would be payable to club A
amounts to EUR 140,000 only. In this respect, club B also indicates that it was
only a category 2 club during the season 2005/06.
Player X
(Club A/ Club B)
3/11
16.
With regard to the sanctions requested by club A against club B in application of
art 17 par. 4 of the Regulations, club B emphasises that in view of the given
circumstances in June 2005, it could validly consider that club A had breached the
employment contract with the player without just cause, and that it could
therefore conclude an employment contract with the player without violating
the applicable Regulations of FIFA.
17.
On 18 September 2006, FIFA was provided, via the CBF, with club A’s final
position on the matter.
18.
Club A first of all entirely rejects the argumentation of club B, and reiterates its
initial claims.
19.
It furthermore emphasises that the decisions of the civil courts clearly establish
that the player has breached the employment contract with club A without just
cause and that these decisions must be considered as binding for the deciding
bodies of FIFA. Consequently, it is also to be concluded that club B has induced
the player to breach the employment contract with club A.
20.
Finally, club A admits that the training compensation it is claiming from club B
shall amounts to EUR 380,000 only.
21.
On 30 May 2007, club B provided FIFA with its final position, and thereby
referred to the arguments it had submitted at an earlier stage of the present
procedure.
22.
NB: According to the information received from the FFF on 5 November 2007, at
the time of the conclusion of the employment contract between club B and the
player, club B was a category 1 club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) 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 Governing the Procedures of the Players’ Status
Committee and the DRC. The present matter was submitted to FIFA on 2 May
2006, as a consequence the DRC 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.
Player X
(Club A/ Club B)
4/11
2.
With regard to the competence of the DRC, art. 3 par. 1 of the above-mentioned
Rules states that the DRC shall examine its jurisdiction in the light of articles 22
to 24 of the 2005 edition of the Regulations for the Status and Transfer of
Players (hereinafter; the Regulations). In accordance with art. 24 par. 1 in
combination with art. 22 (a) of the Regulations, the DRC shall adjudicate on
disputes between clubs and players in relation to the maintenance of contractual
stability if there has been an ITC request and if there is a claim from an
interested party in relation to such ITC request, in particular regarding
compensation for breach of contract and sporting sanctions. Furthermore, in
accordance with art. 24 par. 1 in combination with art. 22 (d) of the Regulations,
the DRC shall adjudicate on disputes between two clubs belonging to different
Associations related to training compensation.
3.
As a consequence, the DRC is the competent body to decide on the present
litigation concerning on the one hand two clubs and a player from different
countries regarding a contractual dispute in relation to an ITC request, and on
the other hand a claim of a club for training compensation against another club
from a different country for the training and education of the player X.
4.
Subsequently, the members of the DRC 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 DRC referred to art. 26 par. 1 and 2
of the 2005 edition of the Regulations for the Status and Transfer of Players in
the modified version in accordance with the FIFA circular no. 995 dated 23
September 2005. Furthermore, as far as the contractual dispute at stake is
concerned, the DRC acknowledged that the relevant contract between the player
and club B, which is at the basis of this dispute, was signed on 2 July 2005.
Moreover, with respect to the claim at hand for training compensation, the DRC
acknowledged that the player had been registered for his new club B in July
2005. Finally, the DRC took note that the present matter was lodged at FIFA on
2 May 2006. In view of the aforementioned, the Chamber concluded that the
2005 edition of the Regulations for the Status and Transfers of Players are
applicable to the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the DRC started
by acknowledging the facts of the case as well as the documentation contained
in the file, and in view thereof, declared that in order to render a decision in the
matter at stake, the following questions need to be answered:
I.
Who was responsible for the early termination of the employment
contract between the player and club A, and did such termination
occur with or without just cause?
II.
Which are the consequences of the early termination of the
employment contract between the player and club A?
Player X
(Club A/ Club B)
5/11
III.
Does club B have to pay training compensation to club A for the
training of the player in question?
IV.
If yes, which is the amount of training compensation payable to club
A?
6.
As far as the early termination of the employment contract between the player
and club A is concerned, the DRC first of all took note of the fact that this
question had already been submitted and decided by a civil court, and that such
decision has become final and binding.
7.
In this respect, the DRC pointed at the introduction of art. 22 of the Regulations,
according to which any player or club has the right to seek redress before a civil
court for employment-related disputes, instead of submitting such a matter to
the competent bodies of FIFA. Consequently, the DRC emphasised that a decision
passed by an ordinary civil court in an employment-related dispute, which has
become final and binding, is also binding for the DRC, and the dispute concerned
has to be considered by the DRC as res iudicata.
8.
In view of the binding nature of the decisions which have been passed by the
civil courts in the dispute between the player and club A, the DRC had thus to
analyse the contents of the said decisions. In this respect, the DRC first of all took
note of the positions of club A and club B, which are completely antagonistic. In
fact, while club A emphasises that the decisions of the civil courts clearly
establish that the player has breached the employment contract with club A
without just cause, club B maintains that the decision of the civil court does not
have any incidence on the notion of just cause such as provided by the
Regulations of FIFA, particularly since the court had only rejected the player’s
claim for compensation for breach of contract due to the fact that his claim was
lodged only one year after the claimed salaries had become due.
9.
Therefore, the DRC proceeded to a careful analysis of the content and the
wording of the decisions which the civil courts had rendered in the dispute
between the player and club A. Thereby, the DRC came to the solution that the
relevant decisions do not leave any other possibility of interpretation than the
conclusion that the player was judged to be responsible for the termination of
the employment contract concluded between him and club A, and that he did
not have a just cause for such termination of the employment contract.
Moreover, the DRC noted that a claim of club A for compensation for the said
breach of contract was rejected for formal reasons only.
Player X
(Club A/ Club B)
6/11
10.
In view of these conclusions, the DRC stated that club B’s interpretation of the
decisions in question cannot be followed. Consequently, the DRC stressed that
the answer to the first of the questions mentioned at the outset of these
considerations is that the player has breached the employment contract
concluded with the club A without just cause.
11.
In continuation, the DRC turned to the second of the initially mentioned
questions, i.e. the question of the consequences of a possible breach of contract
without just cause.
12.
In this respect, as far as compensation for unjustified breach of contract is
concerned, the DRC emphasised on the one hand that the question of such
compensation has apparently already been taken into consideration by the civil
courts, which had been addressed by the player and club A, and that such a
request had been rejected by the said courts for formal reasons. On the other
hand, the DRC also noted that club A did not file any request to FIFA against the
player for compensation for an unjustified breach of contract. The question of
compensation for unjustified breach of contract was thus not further followed
up.
13.
However, as far as sporting sanctions for breach of contract are concerned, the
DRC noted that sporting sanctions for breach of contract were not an issue to be
dealt with by the civil courts in the procedures between the player and club A.
And moreover, the DRC noted that within the present procedure, club A asks for
the application of unspecified disciplinary measures against club B for
inducement to breach of contract in application of art. 17 par. 4 of the
Regulations. The question regarding possible sporting sanctions against club B
and the player was thus to be followed up. However, the DRC decided to refer
these matters back to the administration of FIFA, in particular the Players’ Status
Department, in order to allow the latter to carry out further investigation and
completely establish the facts pertaining to these issues. The parties will thus be
contacted by FIFA’s administration in this respect in due course.
14.
In continuation, the DRC turned to the question whether or not club B has to
pay training compensation to club A for the training of the player.
15.
In this respect, the DRC first of all took note of club B’s argument that in view of
Annex 4 art. 2 of the Regulations, according to which training compensation is
not due if the former club terminates the player’s contract without just cause, no
training compensation at all shall be payable in the present case by club B since
the player was not responsible for the termination of the employment contract
between him and club A. In this respect, the DRC referred to its former
conclusions, whereby it had stated that the player was responsible for the
Player X
(Club A/ Club B)
7/11
termination of the employment contract in question, and consequently rejected
this argument of club B.
16.
In continuation, the DRC stated that, as established in art. 20 of the Regulations
and art. 1 par. 1 of Annex 4 in combination with art. 2 of Annex 4 of the
Regulations, training compensation is payable, as a general rule, for training
incurred between the ages of 12 and 21, when the player concerned is registered
for the first time as a Professional, or when a Professional is transferred between
two clubs of two different Associations, before the end of the season of the
player’s 23 birthday.
17.
Moreover, the DRC stressed that, as a general rule, at the occasion of a player’s
first transfer as a professional, the player’s new club has to pay training
compensation to the player’s former club not only for the period of time during
which the player was registered with the former club as a professional, but also
for the seasons, if any, during which the player was trained by the former club as
an amateur player, if the player is not registered with a third club in between. In
this respect, the DRC referred to the constant and continuous jurisprudence of
the DRC and of the CAS (e.g. CAS 2005/A/891, CAS 2005/A/894).
18.
Taking into consideration these prerequisites, the DRC outlined that the player
was trained by club A from 25 June 1999 to 1 May 2003, from his age of 14 to
the age of 18, as an amateur, and as a professional from 2 May 2003 until 29 July
2005, from the age of 18 to the age of 20, except for the periods from 8 March
to 8 June 2004 and from 18 June 2004 to 30 June 2005, during which he was
loaned to third clubs. Moreover, the DRC took into consideration that the player,
after having been under contract with club A, subsequently was registered as a
professional with club B in July 2005, at the age of 20.
19.
In consequence, the DRC concluded that in the present case, the conditions for
training compensation to be payable are fulfilled, and that therefore, club A is
entitled to receive training compensation from club B for the training of the
player for the period of time from 25 June 1999 to 29 July 2005, with the
exception of the periods from 8 March to 8 June 2004 and from 18 June 2004 to
30 June 2005.
20.
Having said that, the DRC turned its attention to the fourth and final question of
the questions listed at the outset of these considerations, i.e. the calculation of
the relevant amount of training compensation.
21.
In this respect, the DRC first of all had to establish the number of seasons for
which club A is entitled to receive training compensation. In this respect, the
DRC took into consideration, on the one hand, the relevant training period such
as mentioned above in par. 18, and on the other hand, the fact that the sporting
Player X
(Club A/ Club B)
8/11
season in the country of the training club A, is played according to the calendar
year, i.e. it starts in January and ends in December of the same year.
22.
In view thereof, the DRC concluded that the player was trained by club A during
half of the season 1999, during the four entire seasons of 2000 to 2003, and
during the two first months, i.e. during 1/6 of the season 2004.
23.
In continuation, the DRC had to establish the applicable categories for the
calculation of the training compensation. In this respect, the DRC referred to art.
5 par. 1 of Annex 4 of the Regulations, according to which the costs that would
have been incurred by the new club of the player if it had trained the player
itself, are to be taken into consideration. Therefore, the DRC made reference to
the information that FIFA had received from the FFF on 5 November 2007,
according to which at the time of the conclusion of the employment contract
between club B and the player, club B was a category 1 club.
24.
Besides that, the DRC also took into consideration art. 5 par. 3 of Annex 4 of the
Regulations, according to which the training costs for players for the seasons
between their 12th and 15th birthday (i.e. four seasons) shall be based on the
training and education costs of category four.
25.
In view of these prerequisites, the DRC concluded that for the seasons 1999 and
2000, when the player was at the age of 14 and 15, category 4 is to be taken into
consideration, and for the other years of training, the calculation of the training
compensation shall be based on category 1.
26.
Finally, the DRC had to establish the amounts due per training season. In
accordance with the FIFA circular no. 959 dated 16 March 2005, the
corresponding indicative amounts for club B, being a club belonging to the
UEFA, are EUR 90’000 for category 1 and EUR 10’000 for category 4.
27.
Consequently, as stipulated in art. 5 par. 2 of Annex 4 of the Regulations, the
amounts mentioned in the previous paragraph of the present decision must be
multiplied by the number of years the player spent training with club A. In this
regard, the Chamber recalled that the player was trained by club A during half
of the season 1999, during the four entire seasons of 2000 to 2003, and during
the two first months, i.e. during 1/6 of the season 2004. In view of these facts, the
DRC made the following calculation:
•
•
•
•
•
Player X
(Club A/ Club B)
Season 1999
Season 2000
Seasons 2001 to 2003
Season 2004
Total
½ x EUR 10’000
1 x EUR 10’000
3 x EUR 90’000
1
/6 x EUR 90’000
=
=
=
=
EUR 5’000
EUR 10’000
EUR 270’000
EUR 15’000
EUR 300’000
9/11
28.
On account of the foregoing considerations, the DRC concluded that club B has
to pay the amount of EUR 300,000 to club A as training compensation for the
training of the player X. The issue of sporting sanctions against the player X for
breach of contract and club B for possible inducement to breach of contract is
referred back to the administration of FIFA for further investigations. All further
claims of club A are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club A is partially accepted.
2.
The club B has to pay the amount of EUR 300,000 to the club A.
3.
The amount due to the club A has to be paid by the club B within the next 30
days as from the date of notification of this decision.
4.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
5.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as from the first day after the
aforementioned deadline.
6.
The club A is directed to inform the club B immediately of the account number
to which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
7.
The issue of sporting sanctions against the player X for breach of contract and
club B for possible inducement to breach of contract is referred back to the
administration of FIFA for further investigations.
8.
All further requests of club A are rejected.
9.
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
Player X
(Club A/ Club B)
10/11
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
Secretary General
Encl.
CAS directives
Player X
(Club A/ Club B)
11/11