Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 December 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the club,
Club A, country B,
as Claimant
against the club,
Club G, country D
as Respondent
regarding training compensation in connection with
the Player E
I.
Facts of the case
1.
The Football Association of country B confirmed that the player, Player E
(hereinafter: the player), born on 17 October 1992, was registered with its
affiliated club, Club A (hereinafter: the Claimant), from 4 August 2010 until 14
August 2012 as an amateur and as from 15 August 2012 until 15 December
2012 as a professional.
2.
The aforementioned player passport also states that the player was registered
with the club from country B, Club F, from 1 January 2004 until 3 August 2010
as an amateur.
3.
The football season in country B follows the calendar year.
4.
According to a written confirmation of the Football Federation of country D,
the player was registered with its affiliated Club C (hereinafter: Club C) on 6
March 2013 as a professional.
5.
The Football Federation of country D further confirmed that Club C belonged
to the club category III (indicative amount of EUR 30,000 per year within UEFA)
at the time the player was registered with the latter club.
6.
On 20 February 2015, and then amended on 31 March 2015, the Claimant
contacted FIFA and requested to be awarded with the amount of EUR
71,095.89, plus 5% interest as of 23 March 2013, as training compensation in
connection with the registration of the player with Club C.
7.
In a first correspondence addressed to FIFA on 23 April 2015, Club G
(hereinafter: Club G) stated that “[t]he highest division the club ever
participated was the second division (last season played was 2012/2013)” and
that “due to restructuring the national competitions of country D [it is] playing
in the 3rd division since season 2013/2014”.
8.
In a subsequent correspondence, Club G explains that it never signed a
contract with the player, stressing that it only participates in the competitions
organised by the Football Federation of country D since 1st July 2013.
According to Club G, the player entered in a contract with Club C, which
constitutes a different legal entity, i.e. a “youth training club”, with a different
chairman. Club G further asserts that the player prior to signing with Club C,
informed the latter club that he was professional in country B and that
therefore no training compensation would be due.
Training compensation for the Player E
(Club A, country B / Club G, country D)
2
9.
In addition, Club G asserts that from December 2010 until December 2011, the
player was in Europe and thus not training with the Claimant. In this regard,
Club G insists that the Claimant misused the player’s name to obtain undue
compensation. To this end, Club G submitted a statement from the player
dated 11 May 2015, in which the latter player states that between December
2010 and December 2011, he was in Europe and that on 15 December 2012,
since the Claimant was not complying with the professional contract signed on
15 August 2012, the parties “cancelled” the contract. Moreover, Club G
presented the passport of the player according to which the player arrived at
city H on 8 December 2010, but the passport seems to indicate that his visa was
cancelled and that he left on 19 December 2010. Furthermore, Club G
submitted documents from Club I, according to which the player was invited to
a trial test on 16 December 2010 and was then informed on 29 December 2010
that he would be recontacted in case Club I would be interested.
10.
In continuation, Club G alleges that Club C did not need the player and
therefore sent him on loan to a third-division club on 19 February 2013. Finally,
Club G asserts that in June 2013, the player and Club C terminated the
contract.
11.
In its replica, the Claimant sustains that Club C and Club G are the same club. In
support of its assertion, the Claimant refers to the documentation submitted
by the Football Federation of country D, according to which Club C is an entity
owner and founder of Club G
12.
As duplica, Club G submitted the same documentation as presented previously.
13.
On 20 May 2015, the Football Federation of country D stated, inter alia, the
following:
“Club C and Club G are two different legal entities. Club C is a sport club while
Club G is a company which conducts sport-related activities.
Club C participated in the 2nd division of season 2012/2013 in country D. Since
then it is no longer affiliated to the Football Federation of country D.
Club G participates in the 3rd division of country D since the season of
2013/2014 and it is still affiliated to the Football Federation of country D.
[…]
Exhibit 3: Company registration document of Club G where Club C appears as
owner and founder”.
II.
Considerations of the Dispute Resolution Chamber
Training compensation for the Player E
(Club A, country B / Club G, country D)
3
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 20 February 2015. Consequently, the 2014 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 6 March
2013, 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 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.
5.
In continuation, the DRC took note that the Claimant maintained that it is
entitled to receive training compensation based on the first registration of the
player as a professional with Club C, allegedly the club to which Club G legally
succeeded to.
6.
On the other hand, the members of the Chamber acknowledged the position
of Club G, which stresses that it does not have standing to be sued in the
present proceedings, since the player entered into a professional contract with
Club C, which constitutes a different legal entity from Club G, i.e. a “youth
training club”, with a different chairman.
7.
Having stated the above, the members of the Chamber took note of the
statement provided by the Football Federation of country D, which states the
following:
Training compensation for the Player E
(Club A, country B / Club G, country D)
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“Club C and Club G are two different legal entities. Club C is a sport club while
Club G is a company which conducts sport-related activities.
Club C participated in the 2nd division of season 2012/2013 in country D. Since
then it is no longer affiliated to Football Federation of country D.
Club G participates in the 3rd division of country D since the season of
2013/2014 and it is still affiliated to Football Federation of country D.
[…]
Exhibit 3: Company registration document of Club G where Club C appears as
owner and founder”.
8.
With the above-mentioned considerations in mind and in relation to the
position of Club G, the DRC referred to previous decisions of FIFA’s decisionmaking bodies related to this particular issue as well as to the CAS Award
2013/A/3425 which mutatis mutandis can be applied to the present matter.
Indeed, in said Award, CAS, while confirming a previous decision of the
Players’ Status Committee of FIFA, established that a club is a sporting entity
identifiable by itself, which is formed by a combined set of elements that
constitute its image.
9.
In particular, the DRC fully adopted the reasoning of the Sole Arbitrator in the
aforementioned Award that reads as follows:
“The Sole Arbitrator highlights that the decisions that had dealt with the
question of the succession of a sporting club in front of the CAS (CAS
2007/A/1355; TAS 2011/A/2614; TAS 2011/A/2646; TAS 2012/A/2778) and in front
of FIFA’s decision-making bodies (…), have established that, on the one side, a
club is a sporting entity identifiable by itself that, as a general rule, transcends
the legal entities which operate it. Thus, the obligations acquired by any of the
entities in charge of its administration in relation with its activity must be
respected; and on the other side, that the identity of a club is constituted by
elements such as its name, colours, fans, history, sporting achievements, shield,
trophies, stadium, roster of players, historic figures, etc. that allow it to
distinguish from all the other clubs. Hence, the prevalence of the continuity
and permanence in time of the sporting institution in front of the entity that
manages it has been recognised, even when dealing with the change of
management companies completely different from themselves” (original text
in Spanish).
10.
Having said this, the members of the Chamber focused their attention on the
following facts:
a. Club G is registered at the same address as Club C;
b. The official website of Club G is XXXX;
c. The official e-mail address of Club G is XXXX;
Training compensation for the Player E
(Club A, country B / Club G, country D)
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d. Club G started to participate in the competitions organised by the
Football Federation of country D, the season immediately after the
season when Club C ceased to participate in the aforementioned
competitions;
e. Club G started to participate in the division immediately inferior to the
one in which Club C was participating during the 2012-13 season and
finished in a position leading to relegation.
11.
Regarding said last consideration, the Chamber was eager to emphasise Club
G’s statement, according to which “[t]he highest division the club ever
participated was the second division (last season played was 2012/2013)”.
12.
In addition, the members of the Chamber deemed of utmost importance to
point out that on 30 October 2013, Club G took over the TMS account of Club
C.
13.
In sum, and in consideration of the above-mentioned facts, the DRC was of the
unanimous opinion that the new club’s argument that it constituted a
different entity from Club C cannot be upheld.
14.
Consequently, the DRC decided that Club G (hereinafter: the Respondent) is
one and the same club as Club C and has standing to be sued in the present
proceedings and it can therefore, in principle, be liable for the payment of
training compensation in connection with the alleged first registration of the
player as a professional.
15.
Having established the foregoing, the DRC noted that the Respondent
maintained that no training compensation is due, considering that:
- The player informed it that the was professional in country B;
- The Claimant did not train the player between December 2010 and December
2011;
- The Claimant and the player “cancelled” their contract due to the Claimant’s
failure to comply with its obligations;
- It did not need the player and sent him on loan to a third-division club on 19
February 2013;
- The contractual relationship with the player was mutually terminated in June
2013.
16.
In this respect, the Chamber first referred to the rules applicable to cases
regarding training compensation and stated 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 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 or when a professional is transferred
Training compensation for the Player E
(Club A, country B / Club G, country D)
6
between clubs of two different associations before the end of the season of
the player’s 23rd birthday. In case the latter occurs, art. 3 par. 1 sent. 3 of
Annexe 4 of the Regulations sets forth that training compensation will only be
owed to the player’s former club for the time he was effectively trained by
that club.
17.
In connection with the above, the DRC duly noted the argument raised by the
Respondent that, in fact, the player was already a professional. In this respect,
the DRC stressed that the Football Association of country B had unequivocally
confirmed that the player’s former club before being transferred to the
Respondent was the Claimant and that therefore training compensation is due
in accordance with art. 2 par. 1 lit. ii of the Annexe 4 of the Regulations.
18.
Turning its attention to the Respondent’s argument that the Claimant was in
Europe between December 2010 and December 2011 and was thus not trained
by the Claimant, the Chamber first recalled the content of art. 12 par. 3 of the
Procedural Rules according to which according to which any party claiming a
right on the basis of an alleged fact shall carry the burden of proof. Having
recalled the principle, the DRC noted that the documentation submitted by the
Respondent in support of its assertion, in particular the player’s passport,
demonstrates that after arriving at city H on 8 December 2010, the player had
his visa cancelled and had to leave on 19 December 2010. In addition, the
members of Chamber pointed out that the Respondent did not present any
document evidencing that the player would have been in contact with Club I
after December 2010. In view of the above, the Chamber concluded that the
Respondent failed to carry the burden of proof regarding the player’s physical
absence from country B between December 2010 and December 2011.
19.
Furthermore, and as to the ambiguous reference made by the Respondent to
art. 2 par. 2 lit. i of the Annexe 4 of the Regulations, the Chamber observed
that the Respondent submitted, in support of its assertions, a statement made
by the player himself. In this regard, the Chamber deemed it fit to outline that
the player’s interest in the dispute put in doubt the impartiality of his
statement and therefore, after making reference to the abovementioned art.
12 par. 3 as well as par. 6 of the Procedural Rules, according to which the
evidence shall be considered with free discretion, concluded that the
Respondent did not satisfactorily carry the burden of proof regarding the
Claimant’s termination of the contract without just cause.
20.
In continuation, the members of the Chamber recalled the well-established
jurisprudence of the Chamber according to which events that occurred after
the registration of the player, such as his subsequent loan or the premature
termination of the employment contract, do not have any influence on the
former club(s)’ right to receive training compensation.
Training compensation for the Player E
(Club A, country B / Club G, country D)
7
21.
On account of the above considerations, and in particular considering that the
player, who was a professional, was transferred and registered to a club
belonging to a different association, i.e. the Respondent, before the end of
the season of his 23rd birthday, the DRC decided that the Respondent is liable
to pay training compensation to the Claimant in accordance with art. 20 and
Annexe 4 of the Regulations.
22.
Turning its attention to the calculation of training compensation, the Chamber
referred to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which
stipulate 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.
23.
In continuation, the Chamber recalled that the player was born on 17 October
1992 and was registered with the Claimant as from 4 August 2010 until 14
August 2012 as an amateur and as from 15 August 2012 until 15 December
2012 as a professional.
24.
Therefore, the DRC considered that the Claimant is, thus, entitled to receive
training compensation for the period as from 4 August 2010 until 15 December
2012, i.e. for a period of 28 months between the seasons of his 18th and 20th
birthday.
25.
Moreover, the DRC took into account that the Respondent belonged to the
category III (indicative amount of EUR 30,000 per year).
26.
In view of all of the above, the DRC decided to partially accept the claim of the
Claimant and held that the Respondent is liable to pay the amount of EUR
70,000 to the Claimant as training compensation in relation to the registration
of the player with the Respondent.
27.
In addition, and considering the Claimant's request for interest as well as the
date of registration of the player with the Respondent, the DRC decided that
the Claimant is entitled to receive interest at the rate of 5% p.a. as of 6 April
2013 until the date of effective payment.
28.
In continuation, the Dispute Resolution Chamber established that any further
claim lodged by the Claimant is rejected.
29.
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
Training compensation for the Player E
(Club A, country B / Club G, country D)
8
Annex A of the Procedural Rules, the costs of the proceedings are to be levied
on the basis of the amount in dispute.
30.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 71,095.89 related to the claim
of the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in
Annex A).
31.
As a result, and taking into account the particularities of the present matter,
the number of issues that had to be addressed, as well as the complexity of the
case, the Chamber determined the costs of the current proceedings to the
amount of CHF 10,000, which shall be borne by the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club G, has to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 70,000 plus 5%
interest p.a. as of 6 April 2013 until the date of effective payment.
3.
In the event that the aforementioned amount 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 final costs of the proceedings in the amount of CHF 10,000 are
to be paid by the Respondent, within 30 days as from the date of
notification of the present decision, as follows:
5.1. The amount of CHF 8,000 has to be paid 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
5.2. The amount of CHF 2,000 has to be paid directly to the Claimant.
Training compensation for the Player E
(Club A, country B / Club G, country D)
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6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances under points 2. and 5.2. are to be
made and to notify the Dispute Resolution Chamber of every payment received.
*****
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 G, country D)
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