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 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 dated 25 March 2014, issued by the Football
Association of country B, Player E (hereinafter: the player), born on 11 November
1992, was registered with its affiliated club, Club A (hereinafter: the Claimant)
as of 1 August 2004 until 31 December 2008 as an amateur.
2.
The relevant seasons in country B ran from 1 August until 31 July of the
following year.
3.
Furthermore, according to the player passport issued by the Football Association
of country D, the player was registered with the club from country D, Club C
(hereinafter: the Respondent) on 31 January 2011 as a professional and said club
belonged to category I (UEFA indicative amount of EUR 90,000 per year), when
the player was registered with it. The Football Association of country D and the
Respondent subsequently confirmed this information.
4.
In this framework, on 23 August 2012, by means of a communication dated 22
August 2012, the Claimant contacted FIFA regarding “Improper registration and
request for return of ITC, and additionally Training Compensation and Solidarity
Pay” while referring to an alleged previous claim lodged by the Football
Association of country B on 13 January 2012. On 7 September 2012, the FIFA
administration invited the Claimant to split and complete its claims for training
compensation and solidarity contribution.
5.
On 2 April 2014, the Claimant lodged an amendment of the claim while
referring to its communication dated 22 August 2012, requesting training
compensation from the Respondent, on the ground of the player’s first
registration as a professional before the end of the season of his 23 rd birthday.
In particular, the Claimant requested EUR 360,000 plus 5% interest p.a. as from
2 March 2011 until the date of effective payment.
6.
In its claim, the Claimant explained that on 12 July 2008, with the player as part
of the squad, the Claimant travelled to country F to participate in an
international tournament. In relation, the Claimant stated that the player’s
parents, who lived in the country G at the time, provided parental consent for
him to travel with the Claimant.
7.
The Claimant then explained that the player’s parents had arranged for the
player to stay in the country H for one more month after the tournament, with
an uncle of his. In this respect, the Claimant outlined that it agreed with the
player staying, provided that the player returned on 20 August 2008. Moreover,
the Claimant claimed that his uncle effectively collected the player after the
tournament.
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8.
Subsequently, the Claimant argued it lost all contact with the player and that
the player never came back.
9.
In its reply to the claim, the Respondent rejected the Claimant’s claim, arguing
that “as you will see from the supporting information provided we are of the
opinion that no training compensation is payable or solidarity and which is a
view held by the Football Association of country D and has been communicated
to FIFA previously back in 2010 following the arrival of the player in the country
H”.
10.
In this respect, the Respondent stressed that the player was the subject of a
Border Agency Investigation from country H into the “trafficking” of young
players into the country H. Furthermore, the Respondent argued that while the
facts of how the player first arrived into the country H remain unclear, it
explained that the player attended trials with it in July 2010, and afterwards
“efforts were made through communication with the Border Agency of country
H” in order to resolve the player’s immigration status.
11.
According to the documentation enclosed, the Football Association of country
D supports the position of the Respondent, where it is stated by the Football
Association of country D that it received confirmation from both the Football
Association of country B and the Football Association of country G informing it
that they held no previous record of the player, and therefore, the player was
free to register in country D without the need for an International Transfer
Certificate.
12.
Finally, the Football Association of country D argued that the Claimant’s claim
is time barred.
13.
The Claimant submitted unsolicited correspondence on 27 June 2014, in which
it argued that “it is evident that since lodging the claim i.e. 22 August 2012,
until the registration of the player at the Football Association of country D of
country D (31 January 2011) the period of two years had not yet elapsed.
Consequently, the present claim is not time-barred”.
II.
Considerations of the Dispute Resolution Chamber
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 23
August 2012. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
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Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 21 of the 2008, 2012, 2014 and 2015 editions 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 and 2 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 (editions 2010, 2012,
2014 and 2015), and considering that the player was registered with the
Respondent on 31 January 2011, the 2010 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.
However, and although the Chamber underlined that the following argument
was not raised by the Respondent itself, the Chamber reverted to the argument
brought by the Football Association of country D, according to whom “it is also
pertinent to raise the delay in making the claim which is clearly well over two
years since the player first registered on a professional contract with [the
Respondent] in January 2011”. In this regard, the members of the Chamber
referred to art. 25 par. 5 of the Regulations, according to which, inter alia, the
Dispute Resolution Chamber shall not hear any case subject to the said
Regulations if more than two years have elapsed since the event giving rise to
the dispute. The present claim having been lodged in front of the DRC on 23
August 2012 and the registration of the player with the Respondent having
occurred on 31 January 2011, the members of the Chamber had to reject the
respective argument brought by the Football Association of country D on behalf
of the Respondent and confirmed that the present petition was lodged in front
of the DRC within said two years’ period of time. In this regard, the Chamber
wished to recall that, according to art. 3 par. 1 and 2 of Annexe 4 of the
Regulations, the deadline for payment of training compensation is 30 days
following the registration of the professional with the new association. Hence,
the event giving rise to the dispute is the non-payment of training compensation
30 days after 31 January 2011. The matter is, thus, not barred by the statute of
limitations in accordance with art. 25 par. 5 of the Regulations.
5.
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
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as the documentation on file. However, the DRC emphasised 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.
6.
First of all, the DRC took note that the Claimant maintained that it is entitled to
receive training compensation from the Respondent in the amount of EUR
360,000, indicating that the player had signed his first professional contract with
the Respondent before the end of the season of his 23rd birthday.
7.
Likewise, the DRC noted that the Respondent argued that due to the fact that
the player was the subject of a Border Agency Investigation from country H into
the “trafficking” of young players into the country H, the Respondent was of
the opinion that no training compensation is payable in respect to the
registration of the player. The Chamber noted that this position was supported
by the Football Association of country D.
8.
At this stage, the DRC considered it appropriate to remark that, as a general
rule, it does not have jurisdiction to decide upon matters of criminal law, such
as the ones of “trafficking” of young players. Therefore, the Chamber cannot
consider the abovementioned argument from the Respondent.
9.
Subsequently, after having carefully examined the parties’ positions, and the
documentation submitted in support of them, the Chamber observed the
documentation that the Respondent enclosed to its reply, where it is stated that
the Football Association of country D received confirmation from both the
Football Association of country B and the Football Association of country G
informing it that they held no previous record of the player, and therefore, the
player was free to register in country D without the need for an International
Transfer Certificate.
10.
In this respect, the Chamber recalled the basic principle of the burden of proof,
as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective burden
of proof.
11.
In this context, the Chamber highlighted that according to the documentation
on file, and submitted by the Respondent, there are no such documents to
support that the Football Association of country D received a confirmation from
both the Football Association of country B and the Football Association of
country G regarding the absence of a previous record of the player, besides the
statement from the Football Association of country D itself.
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12.
Consequently, the Chamber considered that the Respondent had not presented
any conclusive documentary evidence which could corroborate the absence of a
previous record of the player and therefore could not conclude that the
Respondent could rely in good faith and reasonably assume that the player had
not been trained by the Claimant.
13.
In this context and considering the documentation on file in particular the
player passport issued by the Football Association of country D which indicated
that the player was registered as a professional with the Respondent, the
Chamber first referred to the rules applicable to training compensation and
stated that, as established in art. 1 par. 1 of Annexe 4 in combination with art.
2 par. 1 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
his 23rd birthday. Thus, in the absence of any information to the contrary, the
Chamber concluded that the player was registered with the Respondent for the
first time as a professional before the end of his 23rd birthday and that,
therefore, in principle training compensation is due.
14.
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. Furthermore, the Chamber referred to the
exception contained in the first sentence of art. 5 par. 3 of Annexe 4 of the
Regulations which stipulates that to ensure that training compensation for very
young players is not set at unreasonably high levels, the training costs for players
for the seasons between their 12th and 15th birthdays (i.e. four seasons) shall
be based on the training and education costs of category 4 clubs. Equally, the
Chamber referred to the second sentence of art. 5 par. 3 of Annexe 4 of the
Regulations which states that the aforementioned exception shall not be
applicable where the event giving rise to the right to training compensation
occurs before the end of the season of the player’s 18th birthday.
15.
In this context, the Chamber wished to refer to FIFA Circular no. 1190 dated 20
May 2009 by means of which the members of FIFA were, inter alia, informed
about the amended art. 5 par. 3 of Annexe 4, which came into force on 1
October 2009. Said FIFA Circular indicated that art. 5 par. 3 of Annexe 4 “now
stipulates that where the event giving rise to the right to training compensation
occurs before the end of the season of the player's 18th birthday, the training
costs for players for the seasons between their 12th and 15th birthdays (i.e. four
seasons) shall no longer be based on the training and education costs of
category 4 clubs, but on the category of the new club.”
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16.
Against this background, in particular since the aforementioned amendment of
the pertinent article of Annexe 4 of the Regulations only came into force on 1
October 2009, the Chamber found that it cannot apply said amendment to the
years of training and education of the player prior to the coming into force of
the amended art. 5 par. 3 of Annexe 4, i.e. prior to 1 October 2009. In other
words, the Chamber concurred that the said provision could not be applied
retro-actively and, consequently, decided that the second sentence of art. 5 par.
3 of Annexe 4 of the Regulations does not apply to the seasons 2004/2005 to
2008/2009 during which the player was apparently registered with the Claimant.
17.
Having established the above, the Chamber recalled that the player was born
on 11 November 1992 and, according to the player passport issued by the
Football Association of country B, was registered with the Claimant as from 1
August 2004 until 31 December 2008, as an amateur.
18.
It was further noted by the DRC, that the Claimant acknowledged that “since
the player was not present at [the Claimant], the Claimant does not claim
training compensation for the referred semester (first half of the 2008/2009
season).
19.
Equally, the DRC recalled that the Football Association of country D confirmed
that the player was registered with the Respondent on 31 January 2011, as a
professional.
20.
On account of the above and in accordance with art. 20 in combination with
Annexe 4 of the Regulations, and taking into account the Claimant’s statement
regarding the absence of the player for the period starting from 1 August 2008,
the DRC considered that the Claimant is, thus, entitled to receive training
compensation for the period as from 1 August 2004 until 31 July 2008, i.e. for
the full seasons of 2004/2005, 2005/2006, 2006/2007 and 2007/2008 (seasons of
the player’s 12th to 15th birthday).
21.
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
40,000, plus default interest at a rate of 5% p.a. on said amount as of 3 March
2011 until the date of effective payment, to the Claimant as training
compensation in relation to the registration of the player with the Respondent.
22.
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
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proceedings and that, in accordance with Annex A of the Procedural Rules, the
costs of the proceedings are to be levied on the basis of the amount in dispute.
23.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 360,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum amount
of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annex A).
24.
As a result, and taking into account the particularities of the present matter as
well as the degree of success, the Chamber determined the costs of the current
proceedings to the amount of CHF 15,000, of which the amount of CHF 10,000
shall be borne by the Claimant and the amount of CHF 5,000 by the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant within 30 days as from the
date of notification of this decision, the amount of EUR 40,000 plus 5% interest
p.a. as of 3 March 2011 until the date of effective payment.
4.
In the event that the aforementioned sum and interest are 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
The final costs of the proceedings in the amount of CHF 15,000 are to be paid
within 30 days as from the date of notification of the present decision, as
follows:
6.1.
The amount of CHF 10,000 has to be paid by the Claimant. Given that
the Claimant has already paid the amount of CHF 5,000 as advance of
costs at the start of the present proceedings, the additional amount of
CHF 5,000 as costs of the proceedings has to be paid by the Claimant.
6.2.
The amount of CHF 5,000 has to be paid by the Respondent.
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6.3.
The above-mentioned amounts have 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
7.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 3. above is 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:
Training compensation in connection with the Player E
(Club A, country B / Club C, country D)
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Markus Kattner
Acting Secretary General
Enclosed: CAS directives
Training compensation in connection with the Player E
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