Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 7 December 2011,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the club,
C,
as Claimant
against the club,
Y,
as Respondent
regarding training compensation in connection with the player M
I.
Facts of the case
1.
According to the player passport issued by the Football Association of S (FAS)
the player, M (hereinafter: player), born on 30 June 1991, was registered with
the club, C (hereinafter: Claimant) as from 7 January 2006 until 8 September
2008. Furthermore, the player passport indicated that the player was registered
with the country S clubs:
Club E:
as from 22 February 2002 until 23 August 2004;
Club A:
as from 24 August 2004 until 22 March 2005;
Club B:
as from 23 March 2005 until 6 January 2006;
Club D:
as from 9 September 2008 until 17 July 2009.
2.
In addition, the player passport indicated that the player was registered as an
amateur with all the above-mentioned clubs, including the Claimant.
3.
The relevant football seasons in country S during the period of time the player
was registered with the Claimant started and ended as follows:
- 2005/2006 season: as from 6 August 2005 until 6 May 2006;
- 2006/2007 season: as from 4 August 2006 until 26 May 2007;
- 2007/2008 season: as from 11 August 2007 until 25 May 2008;
- 2008/2009 season: as from 16 August 2008 until 30 May 2009.
4.
According to the official confirmation of the Football Federation Y (FFY) the
player was registered with its affiliated club Y (hereinafter: Respondent) on 12
August 2009 as a professional.
5.
According to the information contained in the Transfer Matching System
(TMS), the Respondent belonged to the club category III at the time the player
was registered with the Respondent.
6.
On 16 March 2011, the Claimant lodged a claim in front of FIFA claiming the
payment of training compensation from the Respondent on the basis that the
player had signed his first professional contract with the Respondent in August
2009. In particular, the Claimant is claiming training compensation from the
Respondent in the amount of EUR 70,548 plus 5% interest.
7.
In its response, the Respondent first of all stated that the Claimant had lodged
its claim nineteen months and four days after the player’s registration with the
Respondent as a professional and, therefore, taking into consideration art. 3
par. 3 of Annexe 4 of the FIFA Regulations on the Status and Transfer of
Players, the Claimant is not entitled to training compensation, since it did not
make itself known within 18 months after the player’s first registration as a
professional.
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8.
Secondly, the Respondent indicated that its lawyer had been representing the
player and the Respondent since 2008 and that “in order to terminate the
player’s contract with the club, [the Claimant] sought a compensation of costs
invested in the development of the player”. The Respondent indicated that, as
a result, its lawyer had paid, on 5 September 2008, training compensation to
the Claimant in the amount of 750,000. In this context, the Respondent
submitted a payment receipt which was stamped by the Claimant, the
translated version of which stipulated the following: “750,000 received from
the Attorney at Law N. A., on behalf of M, in the name of: article 27 of the
Book of Regulations on Player Status – compensation of costs invested in the
development of the player M (training compensation)”. Equally, the
Respondent submitted a “membership resign record” dated 5 September 2008
which was stamped by the Claimant, the translated version of which stipulated
that it did not request a training compensation fee.
9.
Lastly, the Respondent indicated that the amount of training compensation
sought by the Claimant was disproportionate.
10. In its replica, the Claimant indicated that the payment made by the lawyer to
the Claimant was based on the rules of the Football Association of S which
contain provisions “regarding the country S internal system of compensation of
the expenses in the development of players”. In this respect, the Claimant
pointed out that the system of “compensation of the expenses invested in the
development of players” is an internal regulation of the Football Association
of S and, therefore, only applicable in country S. The Claimant stated that said
rules bare no relevance to the assessment of whether or not training
compensation is payable according to the FIFA Regulations on the Status and
Transfer of Players. Equally, the Claimant stressed that, in casu, the only
relevant criteria to take into account is the first registration of the player as a
professional.
11. As to the alleged disproportionality of the amount claimed, the Claimant
indicated that the costs incurred by the Claimant for the training of the player
are irrelevant, since training compensation is calculated taking into account
the costs that the new club would have incurred if it had trained the player
itself. Finally, the Claimant pointed out that the player was registered with it as
an amateur.
12. In its duplica, the Respondent merely stated that the Dispute Resolution
Chamber has discretion to adjust the amount payable as training compensation
if it is clearly disproportionate and that the Claimant “haven’t invested any
financial assets into the development of the player”
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II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he
was competent to deal with the case at hand. In this respect, he took note that
the present matter was submitted to FIFA on 16 March 2011. Consequently,
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber, edition 2008 (hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural
Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and par. 2 lit. ii. in
combination with art. 22 lit. d) of the Regulations on the Status and Transfer
of Players (edition 2010), the DRC judge is competent to deal with the matter
at stake relating to training compensation between clubs belonging to
different associations.
3.
Furthermore, the DRC judge analysed which regulations should be applicable
as to the substance of the matter. In this respect, he confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2008, 2009 and 2010), and considering that the
present claim was lodged on 16 March 2011 as well as that the player was
registered with the Respondent on 12 August 2009, the 2008 edition of the
Regulations on the Status and Transfer of Players (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the facts of the case as well as the
documentation on file.
5.
First of all, the DRC judge recalled that the player was born on 30 June 1991
and was registered with the Claimant as from 7 January 2006 until 8
September 2008 as an amateur.
6.
In continuation, the DRC judge took note that the Claimant asserted that it is
entitled to receive training compensation from the Respondent in the amount
of EUR 70,548, on the basis that the player was registered for the first time as a
professional with the Respondent.
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7.
Furthermore, the DRC judge noted that the Respondent rejected the claim of
the Claimant, arguing that the claim was barred by the statute of limitations.
Moreover, the Respondent referred to a “membership resign record” issued by
the Claimant as well as to a payment receipt which indicated that the lawyer
of the Respondent had paid an amount to the Claimant as “training
compensation”. The DRC judge equally noted that the Respondent argued
that the amount claimed by the Claimant was disproportionate.
8.
In light of the above, the DRC judge concluded that he first and foremost had
to verify as to whether or not the claim of the Claimant was brought to FIFA in
a timely manner.
9.
In doing so, the DRC judge first turned to the contents of art. 3 par. 3 of
Annexe 4 of the Regulations which was invoked by the Respondent and which,
inter alia, stipulates that if a link between the professional and any of the
clubs that trained him cannot be established, or if those clubs do not make
themselves known within 18 months of the player’s first registration as a
professional, training compensation shall be paid to the Association(s) of the
country (or countries) where the professional was trained.
10.
Furthermore, the DRC judge referred to art. 25 par. 5 of the Regulations,
which, in completion to the general procedural terms outlined in the
Procedural Rules, clearly establishes that the decision-making bodies of FIFA
shall not hear any dispute if more than two years have elapsed since the event
giving rise to the dispute arose and that the application of this time limit shall
be examined ex officio in each individual case.
11.
In this context, the DRC judge stressed that the Respondent’s interpretation of
art. 3 par. 3 of Annexe 4 of the Regulations is incorrect. The DRC judge wished
to clarify that art. 3 par. 3 of Annexe 4 contains the possibility for a national
association to claim for training compensation when a link between the
professional and any of the clubs that trained him cannot be established, or if
those clubs do not make themselves known within 18 months of the player’s
first registration as a professional. In this regard, the Single judge emphasised,
however, that the aforementioned possibility for a national association to
claim for training compensation is issued strictly subsidiarily and is to be made
within the two years’ time limit contained in art. 25 par. 5 of the Regulations.
12.
Following the above, when a club which has trained the player does not make
itself known within 18 months of the player’s first registration as a
professional, but does make itself known prior to the expiry of the two year
time limit stipulated in art. 25 par. 5 of the Regulations, the claim of the
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training club is, contrary to the interpretation of the Respondent, not barred
by the statute of limitations.
13.
In addition, the DRC judge wished to stress that art. 3 par. 3 of Annexe 4 of the
Regulations merely deals with the possible entitlement of an Association to
receive the training compensation if the pertinent requirements set out in the
Regulations are fulfilled.
14.
On account of the aforesaid, the DRC judge acknowledged that FIFA had
received the claim from the Claimant on 16 March 2011 and duly noted that
the Football Federation Y had registered the player as a professional on 12
August 2009.
15.
In continuation, the DRC judge established that the event giving rise to the
present dispute was indisputably the registration by the Football Federation Y
of the player as a professional on 12 August 2009.
16.
In light of the foregoing considerations, in particular taking into account that
the claim was lodged on 16 March 2011 and the player was registered with the
Respondent on 12 August 2009, the DRC judge concluded that the claim of the
Claimant was lodged within said two years’ time limit and, thus, was not
barred by the statute of limitations. Consequently, the claim of the Claimant is
admissible.
17.
Having established the above, the DRC judge noted that the Respondent
referred to art. 2 par. 2 lit. i. of Annexe 4 of the Regulations in support of its
position that no training compensation is due to the Claimant. In this respect,
the DRC judge was eager to emphasize that the player passport issued by the
Football Association of S indicated that the player was registered as an
amateur for the entire period of time while the player was registered in
country S, including the period of time the player was registered with the
Claimant. Moreover, the Claimant asserted that no employment contract had
been concluded between the Claimant and the player and also the
“membership resign record” submitted by the Respondent in the present
proceeding indicated that the player was registered with the Claimant as an
amateur. In this respect, referring to art. 12 par. 3 of the Procedural Rules,
which stipulates that any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the DRC judge observed that the Respondent
had not submitted any documents which demonstrated that the player was
contractually bound to the Claimant and/or a professional player during his
registration with the Claimant.
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18.
On account of the above, the DRC judge concluded that art. 2 par. 2 lit. i. of
Annexe 4 of the Regulations is not applicable to the present matter, since no
contractual relationship existed between the player and the Claimant.
19.
As to the “membership resign record” as well as to the payment receipt
provided by the Respondent and its statement that “in order to terminate the
player’s contract with the club, [the Claimant] sought a compensation of costs
invested in the development of the player, the DRC judge stressed that the
Respondent had not proven to his comfortable satisfaction that, on the basis
of said documents, no training compensation is payable to the Claimant. In
particular, the DRC judge found it peculiar that the Respondent argued that its
lawyer was representing the player and the Respondent since 2008 and that,
on 5 September 2008, he had paid training compensation to the Claimant. In
this context, the DRC judge highlighted that the Respondent did not clarify in
any way why such payment was already made on 5 September 2008, while,
according to the career history provided by the Football Association of S, the
player was, on 9 September 2008, registered as an amateur with the club, D,
and was only registered with the Respondent approximately one year later, on
12 August 2009. Equally, and with reference to points II./17. and II./18. above,
the DRC judge did not understand why a payment was made in order to
“terminate the player’s contract with the club”, if no such contract existed.
20.
What is more, the DRC judge noted the absence of any conclusion in relation
to the relevance of the two above-mentioned documents. Taking into
consideration that the “membership resign record” dated 5 September 2008
was not addressed to the Respondent, was written in the S language and
indicated that the player was registered as an amateur with the Claimant as
well as taking into consideration the absence of any substantiated
clarifications from the Respondent in regards to the relevance of said
documents, the DRC judge was led to believe that the “membership resign
record” was issued in relation to the national transfer of the player from the
Claimant to Club C and that the payment apparently made by the
Respondent’s lawyer to the Claimant was made on the basis of the internal
regulations of the Football Association of S.
21.
In view of the foregoing and considering all the elements of the present
matter, the DRC judge was of the opinion that said documents did not
unequivocally establish that the Claimant had waived its entitlement to
training compensation in accordance with the FIFA Regulations in connection
with the registration of the player as a professional with the Respondent.
22.
In continuation, and hereby referring to the rules applicable to training
compensation, the DRC judge stated that, as established in art. 1 par. 1 of
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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.
23.
Following the above, the DRC judge pointed out that the Football Federation
Y had confirmed that the player was registered as a professional with the
Respondent on 12 August 2009. Equally, the DRC judge stressed that, taking
into account the player’s career history provided by the Football Association of
S, the player had at all times been registered as an amateur prior to his
registration as a professional with the Respondent.
24.
On account of the above considerations, the DRC judge decided that the
Respondent is liable to pay training compensation to the Claimant in
accordance with art. 20 and art. 2 par. 1 lit. i. and art. 3 par. 1 of Annexe 4 of
the Regulations.
25.
Turning his attention to the calculation of the training compensation payable
by the Respondent to the Claimant, the DRC judge referred to the FIFA circular
no. 1185 dated 22 April 2009 which provides details for the calculation of
training compensation as well as to art. 5 par. 1 and par. 2 of Annexe 4 of the
Regulations, which stipulates that as a general rule, to calculate the training
compensation due to a player’s former club, it is necessary to take the costs
that would have been incurred by the new club if it had trained the player
itself.
26.
In continuation, the DRC judge took into account that the Respondent
belonged to the category III and that the player, born on 30 June 1991, was
registered with the Claimant as from 7 January 2006 until 8 September 2008,
i.e. during 7 months of the season of the player’s 15th birthday, during the
complete season of the player’s 16th and 17th birthday as well as during 1
month of the season of the player’s 18th birthday. In view of the foregoing, the
DRC judge decided that the Respondent has to pay the amount of EUR 68,333
as training compensation to the Claimant.
27.
Having established the above, the DRC judge noted, however, that the
Respondent challenged the amount claimed by the Claimant indicating that it
was disproportional as the Claimant allegedly “haven’t invested any financial
assets into the development of the player”. In this regard, the Respondent
submitted that the DRC has discretion to adjust the amount payable as
training compensation. In view of the foregoing, the DRC judge recalled that,
according to art. 5 par. 4 of Annexe 4 of the Regulations, the Dispute
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Resolution Chamber may review disputes concerning the amount of training
compensation payable and shall have discretion to adjust this amount if it is
clearly disproportionate to the case under review. In this regard, the DRC
judge was, however, eager to emphasize that such possibility allowed by the
Regulations would, in any case, have to be analysed on a case-by-case basis.
28.
The DRC judge underlined that the Respondent had not substantiated its
request with any pertinent documentary evidence in accordance with art. 12
par. 3 of the Procedural Rules, which stipulates that any party claiming a right
on the basis of an alleged fact shall carry the burden of proof. In fact, the
Respondent merely alleged that the Claimant had not made any financial
investment in the player’s development without having produced any evidence
to corroborate such allegation.
29.
Consequently, the DRC judge had no alternative but to conclude that the
provisions of art. 5 par. 4 of Annexe 4 of the Regulations could not be applied
in the present case and, therefore, decided that the amount of training
compensation payable by the Respondent to the Claimant could not be
adjusted.
30.
Therefore, taking into account the above-mentioned considerations, the DRC
judge decided to partially accept the Claimant’s claim and decided that the
Respondent is liable to pay training compensation to the Claimant in the
amount of EUR 68,333.
31.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2
of Annexe 4 of the Regulations, the Chamber decided that the Respondent has
to pay, in conformity with its longstanding practice, interest at 5% p.a. over
the amount payable as training compensation as of the 31st day of the
registration of the player with the Respondent, i.e. as of 9 September 2009,
until the date of effective payment.
32.
Lastly, the DRC judge referred to 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 Annexe A of the Procedural Rules, the costs of the
proceedings are to be levied on the basis of the amount in dispute.
33.
In respect of the above, the DRC judge held that the amount to be taken into
consideration in the present proceedings is EUR 70,548 related to the claim of
the Claimant. Consequently, the DRC judge concluded that the maximum
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amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in
Annexe A).
34.
As a result, and taking into account the particularities of the present matter,
the DRC judge determined the costs of the current proceedings to the amount
of CHF 7,500, which shall be borne by the Respondent.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Club C, is partially accepted.
2.
The Respondent, Club Y, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 68,333 plus 5%
interest p.a. due as from 9 September 2009 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 amount of costs of the proceedings in the amount of CHF 7,500 is to
be paid by the Respondent within 30 days of notification of the present
decision, as follows:
5.1.
The amount of CHF 5,500 to FIFA to the following bank account with
reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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5.2.
6.
The amount of CHF 2,000 to the Claimant.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
DRC judge of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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 DRC judge:
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Jérôme Valcke
Secretary General
Enclosed: CAS directives
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