Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on a matter between the club
A,
as Claimant
and the club
O,
as Respondent
regarding a training compensation dispute related to the transfer
of the player S
I.
Facts of the case
1.
The player S (hereinafter: the player) was born on 10 March 1984.
2.
The Football Federation X confirmed that the player was registered with its
affiliated club A (hereinafter: the Claimant), from 11 June 1999 until 28 August
2002 as an amateur, from 29 August 2002 until 28 April 2005 and from 9 July 2005
to 19 August 2007 as a professional. Furthermore, from 29 April 2005 to 8 July
2005 the player was registered with its affiliated club, G, on a loan basis.
3.
The football season in X follows the calendar year, this is starts on 1 January and
ends on 31 December.
4.
The Football Federation X confirmed that the player was registered on 31 August
2007 with the club O (hereinafter: the Respondent) as a professional and that the
Respondent belonged to the category 2 during the season 2007/2008.
5.
On 8 October 2007, the Claimant contacted FIFA asking for its proportion of
training compensation from the Respondent. In particular, is requesting the
amount of EUR 355,416 plus interest.
6.
On 6 November 2007, the Respondent rejected the claim lodged by the Claimant
and indicated that the transfer of the player to its club occurred on 30 August
2007, i.e. during the season 2007/2008. Therefore, according to the Respondent,
the relevant transfer occurred during the season of the player’s 24th birthday.
7.
Moreover, the Respondent alleged that the player was unemployed when signing
an employment contract with its club, since the player had allegedly terminated
his employment contract with the Claimant on 19 August 2007 and had not
received any offer from the Claimant to renew his contract. According to the
Respondent, the Claimant had no interest in signing another contract with the
player. In this regard, the Respondent referred to art. 23 of the Universal
Declaration of the Human Rights from the United Nations Council, which
stipulates that “everyone has the right to work, to free choice of employment, to
just and favourable conditions of work and to protection against unemployment”.
Finally, according to the Respondent, the amount of training compensation
requested by the Claimant is disproportionate and unjustified in view of the facts
of the present case.
8.
On 18 July 2008, the Claimant, in response to the arguments presented by the
Respondent, referred to art. 20 of the Regulations on the Status and Transfer of
Players and stated that the player signed an employment contract with the
Respondent during the season of his 23rd birthday, since the football season in X
runs from January until December. The Claimant stated that the relevant season to
be taken into account is the X football season. Furthermore, the Claimant rejected
the argument that the player had not received any offer to renew his contract,
since the Claimant had allegedly tried to renew the contract with the player
several times. Finally, the Claimant maintained that it had been responsible for the
player’s training and education since he was 15 years old, and consequently, its
request should not be considered as disproportionate.
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9.
On 16 April 2009, the Respondent reiterated that a specific transfer should be
analysed accordingly to the rules that the new club of the player has to comply
with, namely the national rules concerning the period allowed for the registration
of contracts, and consequently the duration of the sportive season. Therefore, the
Respondent concluded that “according to the Y definitions”, the transfer
occurred in the season of the player’s 24th birthday.
10.
Moreover, the Respondent argued that the Claimant had not presented any
documentary evidence demonstrating that it had offered a new employment
contract to the player. Thus, it must be considered that the Claimant tacitly
renounced to its entitlement to training compensation.
11.
Finally, the Respondent insisted on the disproportionality of the claim, and asked
the Dispute Resolution Chamber, subsidiarily, to review the amount of training
compensation payable, and to adjust this amount according to art. 5 par. 4 of
Annexe 4 of the Regulations on the Status and Transfer of Players.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber first referred to art. 21
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008). The present
matter was submitted to FIFA on 8 October 2007, thus before the aforementioned
Rules entered into force on 1 July 2008. Therefore, the Dispute Resolution
Chamber referred to art. 18 par. 2 and 3 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (DRC) (edition
2005; hereinafter: Procedural Rules) and concluded that the 2005 edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2009). In accordance with art. 24 par. 1 in connection
with art. 22 lit. d) of the aforementioned Regulations, the Dispute Resolution
Chamber shall adjudicate on disputes 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, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (editions 2009 and
2008) and, on the other hand, to the fact that the present claim was lodged on 8
October 2007 and that the player was registered for the Respondent on 31 August
2007. In view of the aforementioned, the Dispute Resolution Chamber concluded
that the 2005 edition of the Regulations on the Status and Transfer of Players
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(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
the members of the Chamber started to acknowledge the facts of the case as well
as the documents contained in the file.
5.
Furthermore, the Chamber stated that, as established in art. 20 of the Regulations
in combination with art. 1 par. 1 of Annex 4 and 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 23rd birthday.
6.
In this regards, the Dispute Resolution Chamber acknowledged that the player,
who was born on 10 March 1984, was registered for the Claimant as from 11 June
1999 until 28 August 2002 as an amateur and from 29 August 2002 to 28 April
2005 and from 9 July 2005 until 19 August 2007 as a professional.
7.
Furthermore, the Chamber duly noted that, on the one hand, the Claimant is
requesting training compensation from the Respondent in the amount of EUR
355,416, plus interest, and, on the other hand, that the Respondent contested the
Claimant’s entitlement to receive any training compensation.
8.
In this regard, the Dispute Resolution Chamber remarked that the Respondent was
of the opinion that no training compensation was due to the Claimant, since the
latter had supposedly not offered a new employment contract to the player.
Moreover, the Respondent invoked the Universal Declaration of the Human Rights
from the United Nations Council.
9.
In view of the above, and in particular in view of the fact that X is not a member
of the EU/EEA, the Chamber concluded that the pertinent transfer had not taken
place inside the territory of the EU/EEA and, thus, that art. 6 of Annex 4 of the
Regulations was not applicable to the matter at hand. Therefore, the Chamber
unanimously stated that the Claimant had no obligation to offer to the player a
new contract in accordance with the above-mentioned provision. For the sake of
completeness, the Chamber was of the opinion that the entitlement of a training
club to receive training compensation for a young player did not restrict the
freedom of movement or of employment beyond what is necessary. On the
contrary, this system proved that it was useful and necessary to foster the training
of young players, in particular in view of the considerable social importance of
sporting activity such as football.
10.
Equally, the Chamber noted that the Respondent held that the competent
deciding body should take into account the fact that the player was free at the
moment of his transfer to the Respondent.
11.
In this respect, the Chamber was eager to emphasize that, according to art. 2 par.
1 lit. ii) of Annex 4 of the Regulations, the transfer of the player can take place
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either during or at the end of his contract (emphasis added). Thus, the members of
the Chamber highlighted the fact that the relevant transfer of the player can occur
after the expiry, mutual or justified termination of the player’s previous
employment contract, without the training club losing its entitlement to training
compensation.
12.
In addition, the members of the Chamber took note of the Respondent’s
argumentation, according to which the player had been transferred during the
season of his 24th birthday. On the other hand, the Chamber recalled that the
Claimant was of the opinion that the player had been transferred during the
season of his 23rd birthday which ended in X, according to the Football Federation
X, on 31 December 2007.
13.
In that regard, the Chamber stressed that the player had been registered for the
Respondent on 31 August 2007, i.e. during the season of the player’s 23rd birthday
in X. In that context, the Chamber highlighted that the season of the player’s 23rd
birthday in the sense of art. 2 par. 1 lit. b) of Annex 4 to be taken into
consideration is the season of the Association of the last club for which the player
is registered prior to the event giving rise to training compensation, i.e. in casu the
season of the Association of the Claimant.
14.
In view of the above, the Chamber concluded that the Claimant was entitled to
receive training compensation from the Respondent, since, based on the
documents at its disposal, it could be established that the player in question, born
on 10 March 1984, was transferred as a professional to the Respondent on 31
August 2007, i.e. before the end of the season of the player’s 23 birthday in X,
which ended, according to the Football Federation X, on 31 December 2007.
15.
In continuation, for the sake of completeness, and even if it was not an issue
raised by the parties to the dispute, the Chamber deemed it appropriate to
recall its jurisprudence, confirmed by the Court of Arbitration for Sport,
according to which a club that has trained the player as an amateur for a
certain period of time before concluding an employment contract with him
shall be compensated for the entire time that it trained the player and not only
for the time it trained him as a professional.
16.
Furthermore, on a side note, the Chamber declared that the obligation to pay
training compensation arises in case a player is definitively transferred from
one club to another, with the effect that the club which transferred the player
on a loan basis to another club is entitled to training compensation for the
period of time during which it effectively trained the player, however,
excluding the period of time of the loan. The deciding authority clarified that a
club that contributed to the training of a player for a certain period of time
sometime between the seasons of the player’s 12th and 21st birthday is,
notwithstanding the fact that it temporarily transferred the player to another
club on a loan basis, entitled to training compensation for the pertinent
period, i.e. for the whole period of time if effectively trained the player (prior
to and after the respective loan).
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17.
As a result, and considering the above points II. 5 and II. 6 as well as art. 3 par. 1 of
Annex 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 Chamber concluded that the effective period of time to be
considered at the matter at stake corresponds to the period comprehended
between 11 June 1999 until 28 August 2002 as well as from 29 August 2002 to 28
April 2005, and from 9 July 2005 to 19 August 2007, i.e 7 months of the season of
the player’s 15th birthday, the seasons 2000, 2001, 2002, 2003 and 2004 which
correspond to the seasons of the player’s 16th to 20th birthday and 10 months of
the season of the player’s 21st birthday.
18.
Turning its attention to the calculation of the amount of training compensation,
the Chamber referred to art. 5 par. 1 and 2 of Annex 4 of the Regulations, which
stipulates that, as a general rule, it is necessary to take into consideration the costs
that would have been incurred by the new club if it had trained the player itself
and thus, it is calculated based on the training costs of the new club multiplied by
the number of years of training with the former club.
19.
Furthermore, the Chamber took due note that according to the information
provided by the Football Federation P the Respondent belonged to category 2
during the season 2007/2008. Moreover, the Chamber took into account that the
indicative training costs for a category 2 club and member of a national
association affiliated to the Union des Associations Européennes de Football
(UEFA) amount to EUR 60’000 per season (cf. FIFA Circular nr. 1085 dated 11 April
2007).
20.
In continuation, the Dispute Resolution Chamber observed that the Respondent
alleged, in case training compensation was due to the Claimant, that the amount
of training compensation should be adjusted considering to the facts of the
present case.
21.
In this respect, the Chamber referred to art. 5 par. 4 of Annexe 4 of the
Regulations, according to which “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” (emphasis added).
22.
Equally, and with regard to the foregoing, the Chamber referred to the contents
of art. 12 par. 3 of the Procedural Rules, which stipulates that any party deriving a
right from an alleged fact shall carry the burden of proof and pointed out that the
Respondent had not provided FIFA with any substantial documentary evidence
establishing that the amount claimed by the Claimant was clearly disproportionate
and that, consequently, the Chamber had no reason to deviate from the indicative
amounts stipulated in the aforementioned FIFA Circular.
23.
Consequently, and taking into account all the above-mentioned elements, the
Dispute Resolution Chamber decided that the Claimant was entitled to receive
training compensation from the Respondent in an amount of EUR 355,416.
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24.
Therefore, the Chamber concluded that the Respondent, Club O, was liable to pay
to the Claimant, A, training compensation amounting to EUR 355,416, plus 5% of
interest, and, hence, the claim of the Claimant, A, is accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, O, has to pay to the Claimant, A, the amount of EUR 355,416, as
well as 5% interest per year on the said amount as from 1 October 2007 until the
date of effective payment, within 30 days as from the date of notification of this
decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted upon the party’s request to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
The Claimant, A, is directed to inform the Respondent, O, immediately and directly
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
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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 Dispute Resolution Chamber
Jérôme Valcke
Secretary General
Encl.
CAS directives
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