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 issued by the Football Federation of country
B, the player, Player E (hereinafter: the player), born on 21 January 1994, was
registered with its affiliated club, Club A (hereinafter: the Claimant), as from 1
September 2012 until 30 June 2013 as a professional on loan from the club
from country F, Club G (hereinafter: Club G).
2.
The football season in country B lasts from 1 July until 30 June of the following
year.
3.
According to the information contained in the Transfer Matching System
(TMS), the Claimant belonged to the category II (indicative amount of EUR
60,000 per year within UEFA) during the season when the player was
registered with the club.
4.
Furthermore, with respect to the information contained in the TMS, the player
was permanently registered with the club from country D, Club C (hereinafter:
the Respondent) on 16 July 2013 as a professional and said club belonged to
the category II (indicative amount of EUR 60,000 per year within UEFA) during
the season when the player was registered with the club.
5.
On 13 July 2015, the Claimant contacted FIFA requesting training
compensation for the subsequent transfer of the player as a professional from
Club G to the Respondent. In particular, the Claimant is requesting the
payment of the amount of EUR 30,000 plus 5% interest p.a. as of 16 August
2013. In this respect, the Claimant explained that the loan agreement was
terminated on 1 March 2013.
6.
In its reply, the Respondent firstly argued that if the claim was received only
after 16 July 2015, it is prescribed and consequently inadmissible.
7.
Moreover, the Respondent highlighted that according to Art. 3 of Annexe 4 of
the Regulations on the Status and Transfer of Players only the former club is
entitled to training compensation in case of a subsequent transfer, which in
this case is Club G.
8.
Furthermore, the Respondent stated that the player transferred between two
countries belonging to the European Union and consequently the conditions of
Art. 6 of Annexe 4 of the Regulations on the Status and Transfer for Players
have to be met. Therefore, no training compensation is due as both, the
employment contract between the Claimant and the player, as well as the loan
agreement between Club G and the Claimant were terminated before their
expiry and no contract offer was made to the player by the Claimant.
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9.
Additionally, the Respondent pointed out that the special provisions for
transfers within the EU/EEA have to be applied in a strict way as they were
implemented in order to protect the free movement of workers within the
European Union.
10. Alternatively, the Respondent stressed that if the FIFA Dispute Resolution
Chamber should come to the result that training compensation is due, the
amount should be reduced as it is clearly disproportionate with respect to the
current financial situation of the Respondent. In this respect, the Respondent
highlighted that even though it played in the second division at the time the
player was registered with the Respondent, it got relegated to the third league
for the 2014/2015 season which resulted in a significant decrease of its income.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: 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 13 July
2015. Consequently, the 2015 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of
the 2015 edition of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the DRC shall examine its jurisdiction in
light of art. 24 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2015). In accordance with art. 24 par. 1 and par. 2 lit. ii. in
connection with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players, the DRC is competent to decide on the present matter 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 2012, 2014
and 2015), and considering that the player was registered with the Respondent
on 16 July 2013, the 2012 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.
However, the Chamber reverted to the argument of the Respondent,
according to whom the present matter is barred by the statute of limitations
on the basis of art. 25 par. 5 of the Regulations. In this regard, the members of
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the Chamber recalled the content of 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 13 July 2015 and the registration of the player
with the Respondent having occurred on 16 July 2013, the members of the
Chamber had to reject the respective argument of the Respondent and
confirmed that the present petition was lodged in front of the DRC within said
two years’ period of time. 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 DRC entered into the substance of the matter. The Chamber
started by acknowledging the above-mentioned facts of the case as well as the
documentation on file. However, the DRC emphasized 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.
In this regard, the members of the Chamber recalled that the player, born on
21 January 1994, was registered with the Claimant as a professional on a loan
basis from Club G for the period between 1 September 2012 and 1 March 2013,
date on which the loan agreement was terminated.
7.
In continuation, the DRC took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount
of EUR 30,000 indicating that the player was transferred as a professional from
Club G to the Respondent before the end of the season of his 23 rd birthday and
that the period that the player was registered with Club G as well as with the
Claimant itself on loan should be considered as one entire timeframe.
8.
Equally, the DRC noted that the Respondent rejected the claim of the
Claimant, arguing that the Claimant was not the player’s former club. Also, the
Respondent stated that the Claimant did not comply with the conditions
established in art. 6 par. 3 of Annexe 4 of the Regulations as it terminated the
loan contract before the expiry and did not offer the player a new
employment contract.
9.
In this context, the DRC highlighted that the main issue in the present matter
is whether or not a club that accepted a professional on loan is entitled to
receive training compensation when, after terminating the contract of the
loan, the professional returns to his club of origin, and thereafter, is
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transferred from the club of origin to a club belonging to another association
before the end of the season of the player’s 23rd birthday.
10.
In consideration of the above-mentioned issue, the DRC referred to the rules
applicable to 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
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.
11.
Furthermore, the DRC referred to art. 10 par. 1 of the Regulations, which
stipulates that professionals may be loaned to another club on the basis of a
written agreement between the professional and the clubs concerned.
Moreover, the last sentence of said article stipulates that any such loan is
subject to the same rules as apply to the transfer of players, including the
provisions on training compensation and the solidarity mechanism.
12.
With due consideration to the above, the DRC stressed that one of the aims of
the last sentence of art. 10 par. 1 of the Regulations is to ensure that training
clubs which register a player on a loan basis also benefit from the solidarity
mechanism and training compensation, provided that the relevant
prerequisites in the pertinent provisions of the Regulations are fulfilled. This
approach is also in line with the DRC’s well-established jurisprudence that all
clubs which have in actual fact contributed to the training and education of a
player as from the age of 12 are, in principle, entitled to training
compensation for the timeframe that the player was effectively trained by
them.
13.
In other words, the Chamber emphasised that the nature of the player’s
registration with a club claiming training compensation, i.e. on a definite or on
a temporary basis, is in fact irrelevant with respect to the question as to
whether such club would be entitled to receive training compensation for the
period of time that the player was effectively trained by that club.
14.
In this respect and for the sake of good order, the DRC deemed it essential to
emphasise that, as to the liability to pay training compensation, the analogy
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established in art. 10 par. 1 of the Regulations could not be extended to the
case in which a player is loaned to a club and thus is not being definitively
transferred to the latter club. In other words, the transfer of a player from the
club of origin to the club that accepts the player on loan, as well as the return
of the player from the club that accepted him on loan to the club of origin, do
not constitute a subsequent transfer in the sense of art. 3 par. 1 sent. 3 of
Annexe 4 of the Regulations. The DRC was eager to point out that it could not
have been the intention of the legislator of the relevant regulatory provision
(i.e. art. 10 par. 1 of the Regulations) to trigger the consequences of art. 3 par.
1 of Annexe 4 of the Regulations on the occasion of a transfer on a loan basis
and, thus, potentially deprive the loan of its essential flexibility and, in
connection with the training and education of players, its purpose of providing
young players with the opportunity to gain practical experience in another
club in order to develop in a positive way, personally and, eventually, also for
the benefit of the player’s new club.
15.
Following the above, the Chamber pointed out that the obligation to pay
training compensation thus arises in case a player is definitively transferred
from one club to another club belonging to a different association, but not
when he is temporarily transferred to another club while still being
contractually bound to his club of origin (yet, with the effects of the relevant
contract being temporarily suspended), such as a loan. Hence, the relevant
entitlement can only be claimed towards a new club that acquires the services
of a player on a definitive and permanent basis subject to the fulfilment of the
prerequisites established in art. 20 and Annexe 4 of the Regulations.
16.
What is more, and while recalling that art. 3 par. 1 sent. 3 of Annexe 4 of the
Regulations stipulates that “In the case of subsequent transfers of the
professional, training compensation will only be owed to his former club for
the time he was effectively trained by that club”, the DRC acknowledged that
the Claimant was not the player’s former club stricto sensu, however, the DRC
pointed out that, within the framework of loans and for the purposes of the
rules governing training compensation, the period of time that the player was
registered with the Claimant on loan and the period of time that the player
was registered with Club G, should be considered as one entire timeframe. Any
other interpretation would lead to the situation in which clubs accepting a
player on loan would never be entitled to receive training compensation, even
if they contribute to the training and education of players.
17.
The aforementioned having been established, the Chamber then referred to
art. 6 of Annexe 4 of the Regulations, which contains special provisions
regarding players moving from one association to another association inside
the territory of the European Union (EU) /European Economic Area (EEA). In
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this regard, the Chamber indicated that, since the player moved from one
association to another association inside the territory of the EU, said article is
applicable. Hence, the Chamber concluded that art. 6 par. 3 of Annexe 4 of the
Regulations applies in the case at hand as lex specialis.
18.
However, in this regard, the Chamber pointed out that, in casu, a possible
obligation to offer the player a contract in compliance with art. 6 par. 3 of
Annexe 4 of the Regulations would in principle lie with the former club of the
player and not with the Claimant. As stated in art. 6 par. 3 of Annexe 4 of the
Regulations, said provision is without prejudice to the right of training
compensation of the player’s previous club(s).
19.
On account of all the above-mentioned considerations, the Chamber decided
that the Respondent is liable to pay training compensation to the Claimant in
accordance with art. 20 and Annexe 4 of the Regulations.
20.
Turning its attention to the calculation of training compensation, the DRC
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.
21.
In continuation, the members of the Chamber recalled that the player was
born on 21 January 1994 and was registered with the Claimant as from 1
September 2012 until 1 March 2013.
22.
Equally, the DRC recalled that according to the information contained in the
TMS, the player was registered with the Respondent on 16 July 2013.
23.
Furthermore, and considering art. 3 par. 1 sent. 2 of Annexe 4 of the
Regulations, which stipulates that the amount payable is calculated on a pro
rata basis according to the period of training that the player spent with each
club, the DRC concluded that the effective period of time to be considered in
the matter at stake corresponds to 6 months of the 2012/2013 season.
24.
Consequently, in light of the above-mentioned considerations and considering
the amount claimed by the Claimant, the DRC decided to accept the Claimant’s
claim and held that the Respondent is liable to pay the amount of EUR 30,000
to the Claimant as training compensation in relation to the registration of the
player with the Respondent.
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25.
However, the Chamber acknowledged that the Respondent had, on a
subsidiary note, requested the Chamber to consider a possible reduction of the
amount of training compensation payable to the Claimant. In particular, the
Respondent is of the opinion that the payment of training compensation
amounting to EUR 30,000 would not be proportionate given that the
Respondent relegated to a lower division for the 2014/2015 season.
26.
In this respect, the Chamber recalled that, according to art. 5 par. 4 of Annexe
4 of the Regulations, the Dispute 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 members of the Chamber were, 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.
27.
In this context, the DRC 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 its income decreased significantly in the
2014/2015 due to its relegation to a lower league. In this respect, the DRC was
eager to point out that the player was registered with the Respondent on 16
July 2013, i.e. during the 2013/2014 season, and that, therefore, the obligation
to pay training compensation arose during the 2013/2014 season and not
during the 2014/2015 season.
28.
On account of these considerations and in the absence of any well-founded
arguments and documentation in support of the Respondent’s request to
adjust the amount, bearing in mind art. 12 par. 3 of the Procedural Rules, the
Chamber had no alternative but to decide that the amount of training
compensation payable by the Respondent to the Claimant could not be
adjusted and that therefore the amount of EUR 30,000 is payable.
29.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2
of Annexe 4 of the Regulations, the DRC 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 on a definitive basis, i.e. as of 16 August
2013, until the date of effective payment.
30.
Lastly, the Chamber referred to art. 18 par. 1 of the Procedural Rules,
according to which, in proceedings before the DRC relating to disputes
regarding training compensation and the solidarity mechanism, costs in the
maximum amount of CHF 25’000 are levied. It is further stipulated that the
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costs are to be borne in consideration of the parties’ degree of success in the
proceedings and, 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.
31.
In respect of the above, the DRC held that the amount to be taken into
consideration in the present proceedings is EUR 30,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in
Annexe A of the Procedural Rules).
32.
As a result, taking into account the particularities of the present matter as well
as that the claim of the Claimant is accepted, the DRC determined the costs of
the current proceedings to the amount of CHF 3,000, which shall be borne 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 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 30,000 plus 5%
interest p.a. on said amount as of 16 August 2013 until the date of effective
payment.
4.
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.
5.
The final costs of the proceedings in the amount of CHF 3,000 are to be paid
by the Respondent within 30 days as from the date of notification of the
present decision, 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: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 2. 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:
Markus Kattner
Acting Secretary General
Enclosed: CAS directives
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