Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 January 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Rinaldo Martorelli (Brazil), member
Jean-Marie Philips (Belgium), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club
A, X,
as Claimant
against the club
B, Y,
as Respondent
regarding a training compensation dispute
in connection with the transfer of the player C.
I.
Facts of the case
1.
According to a written statement of the football association of the country X the
player C from the country X, born on 2 May 1983, was registered for the club A,
the Claimant, from September 2002 to July 2004 as a professional player.
2.
In addition, the above-mentioned association informed FIFA that the national
championship in X is mainly played from August/September to March/April in
each year.
3.
Furthermore the said association informed FIFA that the player’s contract with A
expired on 30 June 2004 and that the national championship concluded on 13
March 2004.
4.
Finally, the said association informed FIFA that the professional player C was
transferred from A to the club B from the country Y on 27 July 2004.
5.
According to the FIFA circular no. 826 dated 31 October 2002, which regards the
categorisation of clubs, the Claimant belongs to category 2.
6.
On 23 November 2004, A, the Claimant, claims training compensation, in
accordance with the FIFA Regulations for the Status and Transfer of Players from
the B, the Respondent.
7.
The Respondent rejected the claim since the International Transfer Certificate
(ITC) which received the football association of the country Y from the national
league of country X, is allegedly different from the ITC, which was sent to FIFA in
copy, due to the fact that only the latter includes the condition that the Claimant
reserves its right to seek compensation.
8.
Furthermore, the Respondent maintained that no training compensation is due
since the dissolution of the Claimant as member of the elite playing competition
within X.
9.
Moreover, the Respondent argued that according to the Claimant’s failure and
inability to offer the player an improved or equivalent contract to his existing
one no amount of training compensation is due.
10.
The Respondent further stated that an amount is neither due, because according
to the collective agreement of the national league to which the player and the
Claimant are bound provides that the player is a free agent.
11.
In addition, the Respondent argued that any training compensation payable
pursuant to FIFA Regulations is clearly disproportionate to the level of training
and development offered by the Claimant as a) the Claimant has no capacity to
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continue developing the player at present and b) the ostensibly part-time nature
of the competition in which the player was engaged by the club.
12.
Finally, the Respondent was of the opinion that no compensation is due in
accordance with the precedent case of D in which training compensation was
dropped for the above-mentioned reasons.
13.
In reply thereto, the Claimant adhered to its position.
14.
In a further submission, the Respondent argued that at the end of the 2003/04
season the national championship in X was terminated and therefore, no
national competition was organized for the incoming season 2004/05. In April
2004, the player in question was left in uncertainty. The Claimant was not going
to participate in any national competition and therefore, his career in X was
doomed. After the player left X, the Claimant joined the n league, a regional
league where they currently play. Meanwhile, a new national professional league
commenced in August 2005 and now only comprises eight clubs. Therefore, the
relationship between the player C and the Claimant did not terminate because of
the player’s will, but either because of the club’s inability or its decision not to
organize with its fellow clubs a competition for the season 2004/05. According to
art. 5 par. 3 lit. b of the FIFA Application Regulations (edition 2001)
“compensation for training is not due: b) if a club unilaterally terminates a
player’s contract without just cause…”.
15.
Furthermore, the Respondent stated that in the case that the Dispute Resolution
Chamber would erroneously conclude that the Claimant is entitled to receive
training compensation, it should be decided when the player in question ceased
his training and education. In September 2002, when the player was 19 years old,
he signed his first professional contract with the Claimant and since that time was
regularly fielded with the first team during the 2002/03 season. At the end of
that season he played 16 first team matches starting with the first eleven. The
Respondent therefore affirmed that at the end of the 2002/03 season, after the
player turned 20, his training and education should be considered terminated.
Furthermore, the Respondent maintained that during the 2003/04 season, the
player was fielded 17 times with the first eleven and 3 times as substitute. As a
consequence, the Respondent affirmed being entitled to receive compensation
only for the training and education provided to the player during the single
2002/03 season.
16.
Upon FIFA’s request, the Respondent was not able to present FIFA a copy of the
cited precedent case of D.
17.
Upon FIFA’s request to explain the restructuring processes of the football clubs in
X, the football association of the country X confirmed that its affiliate refutes the
aforementioned submission of the Respondent club. It further explained that the
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player signed a contract with the Claimant valid until 30 June 2004 to play in the
national league which is the highest level of football available in X. The
aforementioned association affirms that the national league concluded on 13
March 2004, meanwhile the player was transferred to the Respondent on 27 July
2004. Moreover, the said association is of the opinion that the fact that it formed
a new league in August 2005 has no bearing on this training compensation claim.
18.
In its final submission, the Respondent adhered to its previous statements.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent
to deal with the matter at stake. In this respect, it referred to art. 18 par. 2 and 3
of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber. The present matter was submitted to FIFA on 23
November 2004 by the Claimant, as a consequence the Chamber concluded that
the previous Procedural Rules (edition 2001) on matters pending before the
decision making bodies of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 42 par. 1 lit. (b) (iv) of the
FIFA Regulations for the Status and Transfer of Players (edition 2001) establishes
that, disputes concerning training compensation, will be decided by the Dispute
Resolution Chamber.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the training compensation claimed by
the Claimant for the training and education of the player C.
4.
In continuation, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1
and 2 of the Regulations for the Status and Transfer of Players (edition 2005) in
the modified version in accordance with the FIFA circular no. 995 dated 23
September 2005. Furthermore, it acknowledged that the professional had been
registered for his new club on 27 July 2004. Equally the Chamber took note that
the claim was lodged at FIFA on 23 November 2004. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for
the Status and Transfer of Players (edition 2001, hereafter: the Regulations) are
applicable to the case at hand as to the substance.
5.
Subsequently, the Chamber emphasised that as established in chapter VII of the
Regulations training compensation for a player’s training and education is, in
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principle, payable by the new club either when the player signs his first contract
as a non-amateur or each time a player changes from one club to another up to
the time his training and education is completed, which, as a general rule, occurs
when the player reaches 21 years of age.
6.
In accordance with art. 5 of the FIFA Regulations governing the Application of
the Regulations, the training period to be taken into account for the calculation
of the training compensation, starts at the beginning of the season of the
player’s 12th birthday, or at a later age, as the case may be, and finishes at the
end of the season of the player’s 21st birthday.
7.
Subsequently, the Chamber considered that, on the one hand, the Claimant
requested training compensation from the Respondent due to the fact that the
player signed a new employment contract with the said club. On the other hand
the Chamber took due note that the Respondent contested the Claimant’s
entitlement for the following reasons: Firstly, since the relevant International
Transfer Certificate (ITC) which was received by the Y football association
differed from the one FIFA received in copy. Furthermore, since the dissolution of
the Claimant as a member of the elite playing competition within X and since the
Claimant failed to offer the player a contract. Moreover, since in accordance with
the collective agreement of the national league the player was a free agent.
Furthermore, since any training compensation would be clearly disproportionate.
Moreover, in accordance with an alleged precedent case of D and according to
art. 5 par. 3 lit. b of the FIFA Regulations governing the Application of the
Regulations. Finally, the Respondent maintained that in case the Dispute
Resolution Chamber would conclude that training compensation is due the
entitlement has to be limited to the 2002/03 season, since the player had
terminated his training and education at the age of 20 years already.
8.
With regard to the Respondent’s first argument, the Chamber considered that,
first and foremost, no remark regarding training compensation on the ITC is
needed in order to claim the said compensation. Consequently, the Chamber
decided to reject the Respondent’s argument to that regard.
9.
As regards the Respondent’s argument according to which no training
compensation is due since the dissolution of the Claimant as member of the elite
playing competition within X, the Chamber pointed out that the situation of the
Claimant in connection with the restructuring processes of the football clubs in X,
does not affect the entitlement to training compensation obligation. As a result,
the members of the Chamber decided to reject the Respondent’s argument to
that regard.
10.
Turning its attention to the Respondent’s argument according to which training
compensation is not due since the Claimant failed to offer the player a contract,
the Dispute Resolution Chamber emphasized that the obligation of a club having
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offered the player a contract when claiming training compensation is a
requirement only need to be met within the EU/EEA (cf. art. 5 par. 3 of the FIFA
Regulations governing the Application of the Regulations). Since the training
club, i.e. the Claimant, is not located within the EU/EEA, the Chamber concluded
that the aforementioned provision does not apply in the case at hand and
therefore rejected the Respondent’s argument to that regard.
11.
Furthermore, and with regard to the Respondent’s argument that training
compensation is not due since the collective agreement of the national league
establishes that the player is a free agent, the Chamber, first and foremost,
referred to the legal principle of the burden of proof, which is a basic principle in
every legal system, according to which a party deriving a right from an asserted
fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the FIFA
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber). In this context, the Chamber took note that the
Respondent did not present any documentary evidence regarding the abovementioned collective agreement. Yet, the Chamber deemed that this fact can be
disregarded since such a provision would not affect the entitlement to training
compensation neither. Therefore, the Chamber decided to reject the
Respondent’s argument.
12.
As regards the Respondent’s allegation, according to which any compensation
would be clearly disproportionate, the Chamber emphasized that in accordance
with its well established and confirmed jurisprudence when deciding on cases of
training compensation, the calculation mechanism set out in the Regulations
along with the explanations contained in the FIFA circular letter 826 dated 31
October 2002 is to be applied rigorously. Furthermore, the Chamber stated that
the amount calculated as per these rules will only be altered, if the circumstances
of the player in question are exceptional and the outcome of the calculation
were clearly disproportionate (cf. the aforementioned FIFA circular letter 826).
13.
To that regard, the Chamber took note that the Respondent maintained that any
amount of training compensation would be clearly disproportionate to the level
of training and development offered by the Claimant as a) the Claimant has no
capacity to continue developing the player at present and b) the ostensibly parttime nature of the competition in which the player was engaged by the club.
14.
Taking into account the above-mentioned jurisprudence (cf. above-mentioned
point II.12) and the legal principle of the burden of proof, the members of the
Chamber concluded that the Respondent neither substantiated nor provided any
documentary evidence in order to corroborate exceptional circumstances or an
disproportionate outcome of the calculation in the present matter. Consequently,
the Chamber considered the allegation of the Respondent to be ungrounded and
therefore it decided that it has to be rejected due to the lack of probative force.
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15.
In continuation, the Chamber turned its attention to the Respondent’s argument,
according to which training compensation is not due in accordance with the
alleged precedent case of D in which apparently a claim for training
compensation was denied for the same reasons as outlined by the Respondent. In
this context, the Chamber determined that upon FIFA’s explicit request to provide
it with a copy of the cited precedent D (cf. point I.16 of the facts), the
Respondent bearing again the burden of proof, omitted to present any
documentary evidence. Therefore, in virtue of the aforementioned legal principle
of the burden of proof, the Chamber decided to reject also this argument of the
Respondent.
16.
As regards the Respondent’s argument according to which no training
compensation is due pursuant to art. 5 par. 3 lit. b of the FIFA Regulations
governing the Application of the Regulations, the Chamber pointed out that the
aforementioned provision establishes that “compensation for training is not
due…if a club unilaterally terminates a player’s contract without just cause…”. As
a result, the Chamber decided to reject also this argument of the Respondent.
This is, since in accordance with an official confirmation of the football
association of the country X the contract between the Claimant and the player
ended on expiry of the term of the contract, i.e. on 30 June 2004 (cf. point I.3 of
the facts), and thus obviously not without any just cause.
17.
Finally, the Chamber turned its attention to the Respondent’s argument
according to which in the case that it would accept a claim for compensation for
having the Claimant trained and educated the player, such a compensation
should be limited to the 2002/03 season, since the player allegedly terminated his
training and education before he turned 21.
18.
In this respect, the Dispute Resolution Chamber pointed out that the period of
training to be taken into account shall only be reduced if it is evident that the
player has terminated his training period before the age of 21 (cf. art. 13 of the
Regulations). Furthermore, the Chamber stated that the Respondent carries the
burden of proof to that regard.
19.
The Chamber acknowledged that the main arguments put forward by the
Respondent are the fact that the player in question was fielded on a regular basis
for the first team since he was 19 years old and that he played for the first team
16 matches during the 2002/03 season and around 20 matches during the 2003/04
season and that the Respondent did not present any documentary evidence to
that regard.
20.
In this context, the Chamber emphasized that, in any case, more than just one
indication to the possible earlier termination of the training period needs to exist
in order to justify the application of the relevant exception, so as for example the
evidence that the player is the most talented player who played at all ages at the
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highest level and in the national teams at all different ages or that the transfer
involved imported significant amounts of money.
21.
Taking into account the aforementioned and referring to the above-mentioned
principle of the burden of proof, the members of the Chamber decided that it is
not evident that the player C terminated his training before reaching the age of
21. Consequently, the Chamber rejected the Respondent’s allegation also to that
regard.
22.
Subsequently, the Chamber emphasized that based on the official documentation
remitted by the football association of the country X it can be established that
the player C, born on 2 May 1983, was registered with the Claimant for 23
months as from September 2002 to July 2004 between the ages of 19 to 21 years.
23.
Furthermore, the Chamber took note of the fact that the player in question was
transferred at the age of 21 to the Respondent on 27 July 2004, where he
undisputedly signed a new employment contract with the Respondent as a
professional player.
24.
In view of the above, the Chamber concluded that the Claimant is entitled to
receive training compensation for the training and education of the player
concerned for the period of time as from September 2002 to July 2004 between
the ages of 19 to 21 years, i.e. for 23 months.
25.
Turning its attention to the calculation, the Chamber pointed out that in
accordance with the parameters provided for by art. 7 par. 3 of the FIFA
Regulations governing the Application of the Regulations, as a general principle,
compensation for training is based on the training and education costs of the
country in which the new club, i.e. the Respondent, is located.
26.
According to the FIFA circular no. 826 dated 31 October 2002, which regards the
categorisation of clubs, the Claimant belongs to category 2. Category 2 in the
UEFA corresponds to the yearly compensation amount of EUR 60,000.
27.
Consequently, in application of art. 7 par. 1 of the FIFA Regulations governing
the Application of the Regulations the indicative amount of EUR 60,000 must be
multiplied by the number of years of training of the player in case.
28.
Taking into account all of the above, the Chamber concluded that the
Respondent has to pay the amount of EUR 115,000 to the Claimant as training
compensation for the training and education of the player C.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is accepted.
2.
The Respondent has to pay the amount of EUR 115,000 to the Claimant, within
30 days following the date of the notification of the present decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the fixed time
limit and the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
4.
The Claimant is directed to inform the Respondent directly and immediately of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
5.
According to art. 61 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
General Secretary
Enclosed: CAS directives
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