Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 January 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
on a matter between the club
Z,
as Claimant
and the club
S,
as Respondent
regarding a dispute for training compensation in connection with
the player B.
I.
Facts of the case
1.
The player B (hereinafter: the player), born on 7 April 1987, was, according to the
player passport issued by the S Football Association, registered as an amateur for
the S club, FC Z (hereinafter: the Claimant), from 26 July 1998 to 3 October 2005.
2.
The S season runs from July to June of the following year.
3.
According to the player passport issued by the I Football Federation, the player was
registered for the club, M, as an amateur, from 4 October 2005 to 1 July 2006.
4.
According to the same player passport, the player was then registered for the
club, S (hereinafter: the Respondent), as a professional, from 19 September 2006,
that is, during the season of the player’s 20th birthday.
5.
According to details provided by the I Football Federation, the Respondent, being
a Serie C club at the time of the player’s registration, belongs to category 3, and
according to details provided by the S Football Association, the Claimant also
belongs to category 3 (indicative amount: EUR 30,000).
6.
On 27 June 2007, the Claimant lodged a claim with FIFA, claiming that the player,
whom it trained between the ages of 12 and 19, for seven football seasons, from 1
July 1998 until 30 June 2005, signed his first professional contract with the
Respondent, and that therefore the Respondent owed training compensation for
the training and education of the player by the Claimant in the amount of EUR
130,000.
7.
Upon receipt of the claim, the Respondent replied that the player, prior to being
registered with the Respondent on 19 September 2006, had signed a first
professional contract with the club M on 1 July 2005. Therefore, it asserted that it
did not owe training compensation to the Claimant.
8.
In reply thereto, the Claimant adhered to its claim and, in particular, stressed that
the player passport issued by the I Football Federation showed that the
Respondent was the club where the player had signed his first professional
contract.
9.
On 8 April 2008, the Respondent insisted on the fact that the player had signed a
first professional contract with the club M for EUR 6,000, without, however,
submitting a copy of such contract. Furthermore, it argued that the player had
signed a contract of a high amount with the club M and this should be an
indication that the player had terminated its training and education before the
age of 21.
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10. Finally, referring to Art. 6 par 3 of Annex 4 of the Regulations on the Status and
Transfer of Players, the Respondent argued that the Claimant should have offered
a contract to the player and that no documentary evidence showed that this had
been complied with.
11. On 1 and 4 July 2008, the Respondent submitted to FIFA an original copy and the
translation of a written agreement signed on 30 August 2005 between the club M
and the player.
12. From the contents of this agreement, it can be noted that:
-
the player, as a “non-professional”, commits to provide his services to M from
30 August 2005 until 30 June 2006, but at the same time, his sporting activity
excludes any kind of subordinate activity,
-
M “assures Mr B the sum of 6.000,00 (six thousand) Euro under par. 94 ter
point 6 N.O.I.F.”, together with the “necessary conditions for a proper
technical training in accordance with his non-professional status” (Art. 2 of the
agreement).
-
Art. 5 provides that M “will distribute the sum established in the economical
agreement, in ten monthly instalments”.
13. After the Claimant was informed of the contents of the aforementioned
agreement, it still upheld its position, and in particular, asserted that the contract
provided by the Claimant is not a professional contract but rather corresponds to
“some kind of scholarship which sometimes is paid to amateurs”, and that the
decisive factor in the documentation submitted is the player passport issued by the
I Football Federation, which states that the player was registered for M as an
amateur.
14. Furthermore, the Claimant emphasized that the Regulations on the Status and
Transfer of Players, edition 2001, are applicable to the dispute, and that when the
player left the Claimant club, in June 2005, the said Regulations did not provide
the obligation for the former club to offer a contract to the player.
15. In addition, the Claimant stressed that, in any case, it had showed some interest in
the player, and that it could produce a written statement from the President of the
club in order to confirm this fact. However, such evidence was never submitted to
FIFA.
16. Finally, on 13 October 2008, the Respondent upheld its position and submitted a
written statement from the player, whereby the latter certified that the Claimant
had never offered him a contract during the period of registration.
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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, it took note that the present matter
was submitted to FIFA on 27 June 2007. Consequently, the edition 2005 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at
hand (cf. art. 18 par. 2 and 3 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 art. 22
lit. (d) of the Regulations on the Status and Transfer of Players (edition 2005) the
Dispute Resolution Chamber is competent to decide on the present litigation with
an international dimension concerning the training compensation claimed by the
Claimant for the training and education of the player B.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 19 September 2006, the Chamber analysed which regulations 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 (edition 2008), and considering that the present claim was lodged on 27
June 2007, the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
In continuation, and entering into the substance of the present matter, the
members of the Chamber started by acknowledging the established facts of the
case and the arguments of the parties as well as the documents contained in the
file, and in this respect, in view of the circumstances of the present case, first of all
stated that the following questions had to be tackled:
5.
1)
Is the claimant entitled to receive training compensation from the
respondent?
2)
In the affirmative, which is the exact amount of the compensation?
With regard to the first of these questions, the Chamber stated that, as
established 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 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. In the latter case, training compensation is owed only to the
former club of the player, but not to the previous clubs (art. 3 par. 1 of Annexe 4
of the Regulations).
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6.
In this regard, the Dispute Resolution Chamber turned its attention to the
Respondent’s statement of defence, according to which the player had signed a
first professional contract with an other club, M. At the same time, the Chamber
took due note of the statements of the Claimant, according to which the said
contract was to be considered as a scholarship, and that the status of the player, as
confirmed by his player passport issued by the I Football Federation, was
therefore, at the time of this registration with the club M, that of an amateur.
7.
In view of the aforementioned, the Chamber established that the sole relevant
criteria to determine a player’s status are, on the one hand, the fact that the
player has a written contract, and, on the other hand, the player’s remuneration.
With regard to the latter criteria, the members of the Dispute Resolution Chamber
particularly pointed out that, according to art. 2 par. 2 of the Regulations, if such
remuneration exceeds the expenses and costs that he effectively incurs for his
footballing activity, the player shall be considered to be a professional.
8.
Furthermore, the Chamber deemed fundamental to emphasize that, for the
appreciation of a player’s status, the legal nature or the designation of the
agreement between a club and a player is irrelevant. In addition, the Chamber
strongly affirmed that the mention of a player’s status on a player passport issued
by the federation of the club for which he was registered does not, also, constitute
a relevant criterion.
9.
On account of the above, the Chamber first of all declared that the player and the
club M had signed a written contract. Having declared that, the Chamber
proceeded to an analysis of the contract signed between the club M and the
player on 1 July 2005. In particular, the panel acknowledged that the player was to
receive, on the basis of the said contract, an annual remuneration of EUR 6,000.
10.
Furthermore, the Chamber acknowledged the fact that, according to the said
agreement, the player’s sporting activity should exclude any kind of subordinate
activity.
11.
Therefore, in consideration of the aforementioned elements of the player’s
employment contract, the panel held that the player’s remuneration, in its
opinion, exceeded the expenses and costs effectively incurred by his footballing
activity.
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12.
In continuation, the members of the Dispute Resolution Chamber focused their
attention on other possible indications that could determine the player’s status
with regard to his registration with the club M. In this regard, the members
observed that, according to art. 18 par. 2 of the Regulations, the minimum length
of a contract is its effective date until the end of the season. In the light of the
aforementioned provisions, the panel emphasized that the litigious contract
referred to a predetermined duration, i.e. the season 2005-2006. Thus, the
members deemed that one of the essentiali negotii of a professional contract,
namely, the reference to a predetermined duration of the contract, was therewith
also met in the present case.
13.
Furthermore, the Chamber highlighted the fact that, according to art. 8 of the
Regulations, the application for registration of a professional must be submitted
together with a copy of the player’s contract. In this respect, it observed that,
although the player passport indicated that the status of the player was that of an
amateur, his contract with the club M had been deposited at the I Football
Federation. Thus, the panel deemed that this additional element should be a
further indication of the player’s status.
14.
The above considerations therefore led the Dispute Resolution Chamber to
conclude that, in the present case, the contract signed between the player and the
club M was, in spite of its denomination and of the terminology used by the
parties in the drafting thereof, a professional contract. In this regard, the Chamber
stressed that the player was not, under the said contract, entitled to exercise any
other activity than football, and that the latter consideration had convinced its
members even more that the player’s status was that of a professional.
15.
Moreover, the Chamber was eager to emphasize that the fact that the player’s
passport mentioned that he was registered for the club M as an amateur could not
be considered as a decisive factor in its appreciation of the player’s status at the
time of his registration with the said club. Additionally, the fact that the contract
had been deposited at the I Football Federation and that it referred to a
predetermined period of time were more indications that the litigious contract
was a professional contract.
16.
Consequently, the members of the Chamber established that the player’s move to
the Respondent should be considered as a subsequent transfer of a professional
player from the club M to the Respondent rather than a first registration as a
professional.
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17.
In view of all of the above, and, particularly, based on art. 3 par. 1 of Annexe 4 of
the Regulations, the Dispute Resolution Chamber ruled that the Claimant is not
entitled to receive any training compensation for the training and education of
the player B from the Respondent on the basis of a possible first registration as a
professional, in view of the fact that the player had signed a first professional
contract with an other club, M, and therefore, decided to fully reject the
Claimant’s claim.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, FC Z, is rejected.
*****
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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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