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, born on 12 October 1983, was registered for the club A from 1 October
1999 to 30 June 2000 as an amateur and from 1 July 2002 to June 2004 as a
professional player. From July 2000 to June 2002 the player was selected for an
institute of Sport.
2.
In addition, the aforementioned association informed FIFA that the championship in
X is mainly played from August/September to March/April in each year. The
association of X also informed FIFA that the championship concluded on 13 March
2004.
3.
Finally, the above-mentioned informed FIFA that the professional player C was
transferred from A to the B of the country Y on 27 July 2004.
4.
According to the FIFA circular no. 826 dated 31 October 2002, which regards the
categorisation of clubs, the Claimant belongs to category 2.
5.
On 21 September 2004, A, the Claimant, claims training compensation, in accordance
with the FIFA Regulations for the Status and Transfer of Players from B of the
country Y, the Respondent.
6.
The Respondent rejected the claim since the Claimant allegedly failed and was not
able to contract the player in question any longer as a result of the fact that there
was uncertainty whether there would be a professional league to play in and
whether the Claimant would cease to exist. In the end there was no competitor for
the player to play in.
7.
Furthermore, the Respondent maintained that any compensation would be clearly
disproportionate to the level of training and education offered by the club and to
award a claim like this under the given circumstances would unfairly hinder players
like C in their free movement and would create an undesirable precedent.
8.
Moreover, the Respondent affirmed that the training and education of the player C
already terminated before he turned 21. He entered into a long term contract with
the Claimant before he turned 21 and was fielded on a regular basis for the first
team. Furthermore, he appeared in the highest national team of X.
9.
In reply thereto, the Claimant ascertained that the issue of whether the club offered
a contract is not relevant to a claim for training compensation which reflects the
investment a club places on the development of the player.
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10.
Furthermore, the Claimant explained that it is a founding member of the national
league in X and was a member from 1977 until May 2004.
11.
Moreover, the Claimant pointed out that awarding a club training compensation in
no way hinders the movement of a player. The receiving club benefits from the
development undertaken by clubs such as the Claimant, which delivers to clubs such
as the Respondent a player of such ability that the club is prepared to offer him a
contract.
12.
The Claimant added that until the age of 18 years the player obtained amateur
status. At 19 years he turned to the Claimant and signed his first contract. He only
made 55 first team appearances for the Claimant. The national league ceased to
exist from May 2004 with FFA establishing a new league which commenced in
August 2005.
13.
Finally, the Claimant affirmed that C played for X in the Confederation World Cup
qualification tournament Phase 1 in P in June 2004. He only started in 2 games and
“came on as a substitute in one other in a 5 match competition”. As of this time,
those appearances remain the only time C has been selected for the national senior
team. Therefore, the Claimant asserted that the player did not terminate his training
and education before 21 years of age.
14.
The Respondent adhered to its position and added that the case is prescribed.
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 21 September
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.
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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, and before being able to enter into the substance of the matter, the
Chamber needed to verify whether the competent FIFA body could deal with this
affair or not for formal reasons. In particular, with respect to the Respondent’s
objection that the claim is to be considered as forfeited.
5.
To this regard, the Chamber referred to the art. 44. of the FIFA Regulations for the
Status and Transfer of Players (edition 2001) in connection with art. 4 of the FIFA
Rules governing the Practice and Procedures of the Dispute Resolution Chamber
(edition 2002), which stipulate that the deciding body will not hear any dispute if
more than two years have elapsed since the facts leading to the dispute arose.
6.
In this context, the members of the Chamber took into account that based on the
documentation at their disposal it can be established that the relevant claim was
lodged with FIFA on 21 September 2004 and that the facts leading to the dispute
arose in July 2004 when the player concerned transferred to the Respondent. As a
result, the Chamber rejected the Respondent’s objection.
7.
Subsequently, 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 21 September 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.
8.
In continuation, the Chamber emphasised that as established in chapter VII of the
Regulations training compensation for a player’s training and education is, in
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.
9.
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
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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.
10.
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 Claimant did not offer the player a new
contract as a result of the fact that there was uncertainty whether there would be a
professional league to play in and whether the Claimant would cease to exist.
Secondly, since any compensation would be clearly disproportionate and finally since
the player already terminated his training and education before he turned 21.
11.
With regard to the Respondent’s first argument, the Chamber considered that, first
and foremost, the obligation of a club having 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. Furthermore, and regarding the above-mentioned “uncertainty” whether
there would be a professional league to play in and whether the Claimant would
cease to exist put forward by the Respondent, the Chamber pointed out that this
fact does not affect the entitlement to training compensation. Consequently, the
Dispute Resolution Chamber decided to reject the Respondent’s allegation also to
that regard.
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 education offered by the club, since this under the “given
circumstances” would unfairly hinder players like C in their free movement and
would create an undesirable precedent without specifying the alleged “given
circumstances” or the way in which players would be hindered in their free
movement.
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14.
In this context, the Chamber 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).
15.
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.
16.
In continuation, the Chamber turned its attention to the Respondent’s argument,
according to which training compensation is not due, since the player allegedly
terminated his training and education before he turned 21.
17.
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.
18.
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 and that he appeared in the highest national team of X and that the
Respondent did not present any documentary evidence to that regard. On the other
hand, the Claimant had affirmed that the player only made 55 first team
appearances for the Claimant and only started in 2 games and “came on as a
substitute in one other in a 5 match competition” representing the X national senior
team.
19.
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
highest level and in the national teams at all different ages or that the transfer
involved imported significant amounts of money.
20.
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
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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.
21.
Subsequently, the Chamber deemed that based on the official documentation
remitted by the association of X it can be established that the player C, born on 12
October 1983, was registered with the Claimant for 2 ¾ sporting seasons as from 1
October 1999 to 30 June 2000 and from 1 July 2002 to June 2004 between the ages
of 15 to 16, respectively 18 to 20 years.
22.
Furthermore, the Chamber took note of the fact that the player in question was
transferred at the age of 20 to the Respondent on 27 July 2004, where he
undisputedly signed a new employment contract with the Respondent as a
professional player.
23.
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 1 October 1999 to 30 June 2000 and from 1 July 2002 to
June 2004 between the ages of 15 to 16, respectively 18 to 20 years, i.e. for 2 ¾
sporting seasons.
24.
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.
25.
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.
26.
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.
27.
Taking into account all of the above, the Chamber concluded that the Respondent
has to pay the amount of EUR 165,000 to the Claimant as training compensation for
the training and education of the player C.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is accepted.
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2.
The Respondent has to pay the amount of EUR 165,000 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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