Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 February 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on the claim presented by the club
C,
as Claimant
against the club
P,
as Respondent
regarding a training compensation dispute related to
the transfer of the player D.
I.
Facts of the case
1.
The Football Federation B (FFB) confirmed that the player, D (hereinafter: the
player), born on 17 June 1988, was registered for its affiliated club, C (hereinafter:
the Claimant), as from 3 January 2002 until 17 October 2004 as an amateur and as
from 18 October 2004 until 31 January 2006 as a professional. For the period
comprehended between 1 February until 30 August 2006, the player passport
mentions “no record found”.
2.
The football season in B lasts from 1 January until 31 December.
3.
The Football Federation P informed FIFA that the player had been registered for
the club, P (hereinafter: the Respondent) on 1 September 2006 as a professional
player and that the Respondent belonged to category II (indicative amount of EUR
60,000 per year within UEFA) during the seasons 2006 until 2009.
4.
On 31 July 2008, the Claimant lodged a complaint against the Respondent before
FIFA asking for its proportion of training compensation, on the basis that the
player had been transferred internationally from the Claimant to the Respondent,
upon expiry of the employment contract concluded between the player and the
Claimant, without any transfer compensation being paid.
5.
In particular, the Claimant requested the payment of an amount of EUR 145,000,
plus default interest.
6.
On 14 August 2009, in its response, the Respondent rejected the claim.
7.
In this respect, the Respondent argued that, in accordance with art. 2 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber, FIFA shall take into consideration all relevant arrangements,
laws and collective bargaining agreements that exist at national level, in particular
the Treaty of Friendship (hereinafter: the Treaty) celebrated between P and B
which provides for the principle of freedom of movement of workers and gives
mutual employment and equal work conditions to citizens of both countries.
Therefore the hiring of a B player to work in P shall not be governed by the
Regulations on the Status and Transfer of Players, but by the Treaty. Therefore,
the Respondent held that no training compensation had to be paid, in the event
that a P club concluded an employment contract with a B player.
8.
Furthermore, according to the Respondent, at the end of the players’ first
professional contract, the Claimant was not interested in signing a new
employment contract with the player, who was, therefore, unemployed from
1 February until 30 August 2006.
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II.
9.
Moreover, the Respondent pointed out that there had not been any transfer from
the Claimant to the Respondent.
10.
The Respondent finally argued that, in case training compensation was due to the
Claimant, it should be taken into consideration that the player was free at the
moment of his transfer to the Respondent and that the amount of training
compensation should be adjusted in accordance with art. 5 par. 4 of Annexe 4 of
the Regulations on the Status and Transfer of Players.
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; hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 31 July 2008, thus
after the aforementioned Rules entered into force on 1 July 2008. Therefore, the
Dispute Resolution Chamber concluded that the 2008 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 Regulations on the Status and Transfer of Players, the
Dispute Resolution Chamber is competent to decide on the present litigation
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 31
July 2008 and that the player was registered for the Respondent on 1 September
2006. In view of the aforementioned, the Dispute Resolution Chamber concluded
that the 2005 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance (cf. art. 26 par. 1 and 2 of the Regulations).
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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 Annexe 4 and 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.
6.
In this respect, the Chamber recalled that the player, born on 17 June 1988, was
registered, according to a statement from the FFB, with the Claimant as from 3
January 2002 until 17 October 2004 as an amateur as well as from 18 October 2004
until 31 January 2006 as a professional and that the Claimant requested the
payment of training compensation in the amount of EUR 145,000, plus interest, on
the basis that the player had been transferred internationally, upon expiry of the
employment contract concluded between the player and the Claimant, without
any transfer compensation having been paid by the Respondent to the Claimant.
7.
Equally, the Chamber noted that the Respondent contested the Claimant’s
entitlement to receive training compensation.
8.
In this regard, the Chamber took due note that the Respondent stated that
according to art. 2 of the Procedural Rules, the Dispute Resolution Chamber shall
take into account all relevant arrangements and laws that are in connection with
the litigation. In this context, the Respondent stated that the Treaty celebrated
between B and P must be taken into consideration in the matter at hand and that
consequently, the hiring of a B player shall not be governed by the Regulations.
The Respondent, therefore, maintained that no training compensation had to be
paid by a P club, when it concludes an employment contract with a B player.
9.
In this respect, the members of the Chamber firstly considered the jurisprudence of
the Court of Arbitration for Sport (CAS), in particular CAS 2005/X/XXX, which
states that the FIFA Regulations have supremacy over national laws in cases
regarding transfers of players between football clubs from different associations.
10.
Furthermore, the Chamber referred to the understanding reached between FIFA
and UEFA on the one hand and the European Union (EU) on the other hand in
March 2001 and, in this respect, emphasized that a similar agreement that exists
between countries within the EU and the European Economic Area (EEA) does not
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give grounds to have the Regulations on training compensation deemed
inapplicable to clubs affiliated to associations that are within the territory of the
EU/EEA.
11.
Furthermore, and after an analysis of the documents provided by the parties, in
particular the Treaty, the Chamber noted that the rights granted by the Treaty
apply to individuals. This is corroborated by the text of art. 1 of the Treaty, which
stipulates that “This Agreement applies to citizens of the P Republic and the
citizens of the Republic of B […]”. Thus, according to the Chamber, the Treaty is
meant to give rights to individual workers that are willing to enter into an
employment relationship on the territory of the contracting parties (cf. art. 8 of
the Treaty). Consequently, the clubs employing the beneficiaries of the Treaty
cannot draw any right from these provisions. Therefore, and bearing in mind the
foregoing, the Chamber deemed that the Treaty concluded between P and B did
not have supremacy over the Regulations in the context of the present dispute,
and that, in principle, it would not remove the obligation to pay training
compensation in accordance with art. 20 and Annex 4 of the Regulations. As a
consequence, the Chamber held that training compensation is governed by the
Regulations and not by the Treaty invoked by the Respondent.
12.
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.
13.
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
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.
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 17 June 1988, was transferred as a professional to the Respondent on 1
September 2006, i.e. before the end of the season of the player’s 23 birthday in B.
15.
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
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between 3 January 2002 until 31 January 2006, i.e. from the beginning of the
season of the player’s 14th birthday until the end of the season of the player’s 18th
birthday. In this respect, the Dispute Resolution Chamber recalled that, according
to the well-established jurisprudence, a club that had trained a player first as an
amateur then as a professional shall be compensated for the entire period of time
that it trained the player (cf. CAS 2004/X/XXX).
16.
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.
17.
Furthermore, the Chamber took due note that according to the information
provided by the FFP, the Respondent belonged to category II during the seasons
2006 until 2009. Moreover, the Chamber took into account that the indicative
training costs for a category II club and member of a national association affiliated
to the Union of European Football Associations (UEFA) amount to EUR 60’000 per
season (cf. FIFA Circular nr. 959 dated 16 March 2005).
18.
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.
19.
In this respect, the Chamber referred to art. 5 par. 4 of Annex of 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).
20.
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 and convincing
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.
21.
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 145,000.
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22.
Therefore, the Chamber concluded that the Respondent, P, was liable to pay to
the Claimant, club C, training compensation amounting to EUR 145,000, plus 5%
of interest, and, hence, the claim of the Claimant, club C, is accepted.
23.
Finally, the Chamber referred to art. 18 par. 1 of the Procedural Rules, according to
which in the proceedings before the Dispute Resolution Chamber relating to
disputes regarding the solidarity mechanism costs in the maximum amounts of
25,000 are levied. The costs are to be borne in consideration of the parties’ degree
of success in the proceedings.
24.
In this respect, the Chamber reiterated that the claim of the Claimant is accepted.
Therefore, the Respondent has to bear the costs of the current proceedings in
front of FIFA.
25.
According to Annex A of the Procedural Rules, the costs of the proceedings are to
be levied on the basis of the amount in dispute.
26.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 145,000 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 25,000 (cf. table in Annex A).
27.
Considering that the case at hand did not show particular factual difficulty but, on
the other hand a certain legal complexity, the Chamber determined the final
amount of costs of the current proceedings to the amount of CHF 20,000.
28.
In this respect, the Chamber took into account that the Claimant paid the advance
of costs in the amount of CHF 5,000 in accordance with art. 17 of the Procedural
Rules.
29.
In view of all the above, and bearing in mind that the claim of the Claimant was
fully accepted, the Chamber concluded that the amount of CHF 20,000 has to be
paid by the Respondent to cover the costs of the present proceedings. Thereof, the
amount of CHF 15,000 has to be paid by the Respondent to FIFA and the amount
of CHF 5,000 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club C, is accepted.
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2.
The Respondent, club P, has to pay to the Claimant, club C, the amount of EUR
145,000, as well as 5 % interest per year on the said amount as from 1 October
2006 until the date of effective payment, within 30 days as from the date of
notification of this decision.
3.
In the event that the amount of EUR 145,000 plus interest is not paid by the
Respondent within the aforementioned time limit, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for its consideration
and decision.
4.
The costs of the proceeding in the amount of CHF 20,000 are to be paid by the
Respondent, club P, within 30 days of notification of the present decision as
follows:
4.1
The amount of CHF 15,000 to FIFA to the following bank account with
reference to case no. [XX-XXXXX]:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2
5.
The amount of CHF 5,000 to the Claimant, club C.
The Claimant, club C, is directed to inform the Respondent, club P, 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
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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