Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club,
R,
as Claimant
against the club,
L FC,
as Respondent
regarding training compensation in connection with the player D
I.
Facts of the case
1.
According to the player passport issued by the Football Association B, the
player, D (hereinafter: player), born on 31 December 1987, was:
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registered as a professional with the club, A, as from 2004 until 16
August 2007;
loaned by A to the club, R (hereinafter: Claimant), as from 17 August
2007 until 7 July 2008;
re-registered with A on 8 July 2008.
2.
The football season in the country B during the period of time the player was
registered with the Claimant started on 1 July and ended on 30 June of the
following year.
3.
The Football Association B confirmed that the Claimant belonged to the club
category I during the period of time the player was registered with the
Claimant.
4.
According to the player passport issued by the Football Federation X (FFX), the
player’s International Transfer Certificate (ITC) was received from the Union
Football-Association B on 22 August 2008. Equally, the player passport
indicated that the player had signed a contract with the club, L FC (hereinafter:
Respondent), on 19 August 2008 and that the player was registered with the
Respondent as a professional.
5.
The Football Federation X confirmed that the Respondent belonged to the
club category I at the time the player was registered with the Respondent.
6.
On 20 October 2009, the Claimant lodged a claim in front of FIFA claiming the
payment of training compensation from the Respondent on the basis that the
player, in August 2008, was transferred as a professional from the club, A, to
the Respondent. In particular, the Claimant is claiming the amount of EUR
90,000 from the Respondent, plus 5% interest as of 31 August 2008.
7.
To its claim, the Claimant attached a decision of the Dispute Resolution
Chamber (DRC), which, in the Claimant’s opinion, proved that training
compensation is also due to clubs that have accepted a player on loan.
8.
In its reply to the claim lodged against it, the Respondent referred to art. 1
par. 1 and art. 6 par. 2 of Annexe 4 of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations), and argued that it was
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evident that the player already terminated his training period before joining
the Claimant, since:
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the player signed a professional contract with A already in the 04/05
season, which contract was, due to the player’s brilliant performances,
renewed on 30 July 2007 for four additional seasons. In other words,
even A considered that the player’s training period was already
terminated;
the Claimant and A had concluded a loan agreement for the player
according to which the Claimant would pay A EUR 5,000 per month for
the loan of the player;
the performances of the player with the Claimant in the 07/08 season
proved unequivocally that the player was no longer a player “in
training”. The player was an essential player for the Claimant; he
played in 40 matches, 37 of which he started in the starting line-up
and the player scored 12 goals. In this respect, the Respondent
referred to one of the attachments of the Claimant’s claim of 30
October 2009, by means of which the Claimant had indicated that “It
is true that the player D has been a key player in the [Claimant’s]
squad during the season 2007/2008. It is also true that the player
played 37 matches at [the Claimant], which only underlines his
importance in the squad”;
the player participated in the majority of all the matches of the
Claimant. In this context, the Respondent referred to the decision of
the Court of Arbitration for Sport (CAS) in CAS 2003/X/XXX, in which,
according to the Respondent, it was decided that a player who played
in the majority of a club’s matches, could no longer be considered to
be a player still “in training”.
9.
In the alternative, should the DRC decide that the player’s training period was
not yet terminated, the Respondent argued that the Claimant had not offered
the player a contract after the loan period. In this context, the Respondent
referred to art. 10 of the Regulations which stipulates that a loan is subject to
the same rules that apply to the definitive transfer of players, including the
provisions on training compensation and the solidarity mechanism.
Consequently, and in line with art. 6 par. 3 of Annexe 4 of the Regulations, the
Claimant should have made an offer to both the player and A in order to
obtain the player’s services on a definitive basis.
10.
In its replica, the Claimant, and hereby referring to DRC decision nr. 114556,
denied that the player’s training period was already terminated when the
player transferred to the Respondent, stating that this provision only applies to
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unusually talented young players. As to the points raised by the Respondent in
point I./8. above, the Claimant indicated that:
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the argument that A presumed that the training period of the player
was terminated is irrelevant;
by stating that the player was an important player for the Claimant
and played well with the Claimant as well as by arguing that,
therefore, the player had terminated his training period, the
Respondent implied that the training period of the player was
terminated only after the player’s loan period with the Claimant;
the argument of the Respondent that the Claimant paid a monthly
loan compensation to A, does, in line with the jurisprudence of the
DRC, not suffice to determine that in fact the player’s training period
was terminated;
the decision in CAS 2003/X/XXX cannot be compared to the case at
hand, since the relevant player in CAS 2003/X/XXX had, contrary to the
player in the current case, an exceptional status. The Claimant
recognized that the player played a substantial amount of matches for
it as well as that the player was important for the squad, however, at
the same time the Claimant pointed out that the DRC already decided
once that “being a key player” does not suffice to determine that a
player’s training period is terminated. In this context, the Claimant
emphasised that it had a significant contribution to the development
and the sport career of the player; prior to the loan the player played
only 6 matches with A and, due to the Claimant’s investment in the
player’s sportive development, he was able to play 37 matches and
perform very well.
11.
As to the contract offer, the Claimant argued that a club having a player on
loan is not obliged to offer the player a contract, as it is not the purpose of art.
6 par. 3 of Annexe 4 of the Regulations. Subsequently, the Claimant stated
that the requirements laid down in art. 6 par. 3 of Annexe 4 do not apply to
the current matter, since the player was not under contract with the Claimant
and, therefore, the Claimant was not in a position to offer a contract to the
player 60 days before the expiry of his “current contract”.
12.
In its duplica, the Respondent maintained its position that the player’s training
period was terminated before the player was registered with the Claimant,
stating that the player was already a professional with A, the Claimant paid A
EUR 5,000 per month for the loan, the player was already selected for the
under-19 and under-21 team and the player was the 15th best goal scorer of
the championship in the 07/08 season. Also, it maintained its position that the
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Claimant did not offer the player a contract and that it was, therefore, not
entitled to training compensation.
13.
Finally, the Respondent indicated that the player returned to A after the loan
with the Claimant had finished and played 8 matches with A. Hence, the
Claimant is not the former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4
of the Regulations. In this context, the Respondent argued that in case a player
is already a professional upon transferring internationally, only the former
club of the player is entitled to receive training compensation.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
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 20
October 2009. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf.
art. 21 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 in
combination with art. 22 lit. d) of the Regulations on the Status and Transfer
of Players (edition 2010) the Dispute Resolution Chamber is competent to deal
with the matter at stake relating to training compensation between clubs
belonging to different associations.
3.
Furthermore, 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 (editions 2008, 2009 and 2010), and considering that the player was
registered with the Respondent on 22 August 2008 as well as that the present
claim was lodged on 20 October 2009, the 2008 edition of the Regulations on
the Status and Transfer of Players (hereinafter: 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. The
members of the Chamber started by acknowledging the above-mentioned
facts of the case as well as the documentation on file.
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5.
In this regard, the Chamber recalled that the player, born on 31 December
1987, was registered on a loan basis with the Claimant for the period between
17 August 2007 and 7 July 2008. Equally, the Chamber observed that after the
loan with the Claimant had expired, the player returned to his club of origin,
A, i.e. the club with which the player was still contractually bound. Thereafter,
on 22 August 2008, the player was internationally transferred from A to the
Respondent on a definitive basis.
6.
In continuation, the Chamber took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount
of EUR 90,000.
7.
Equally, the Chamber noted that the Respondent rejected the claim of the
Claimant, arguing that the player had already terminated his training period
before joining the Claimant. Equally, the Respondent argued that the claim
should be rejected, since the Claimant was not the player’s former club in the
sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations.
8.
In this context, the Chamber highlighted that there are two issues to be
analysed in the present matter:
1) Is a club that accepts a professional on loan entitled to receive training
compensation when, after the expiry of the loan, the professional returns
to his club of origin, and, thereafter, transfers from the club of origin to a
club belonging to another association before the end of the season of the
player’s 23rd birthday?; and
2) Was the player’s training period already completed at the time the player
joined the Claimant?
9.
When addressing the first issue, the Chamber referred to the rules applicable
to training compensation and stated that, as established in art. 20 of the
Regulations as well as 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 a player is
registered for the first time as a professional before the end of the season of
the player’s 23rd birthday or when a professional is transferred between clubs
of two different associations before the end of the season of the player’s 23 rd
birthday. In case the latter occurs, art. 3 par. 1 sent. 3 of Annexe 4 of the
Regulations sets forth that training compensation will only be owed to the
player’s former club for the time he was effectively trained by that club.
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10.
Furthermore, according to art. 10 par. 1 of the Regulations, professionals may
be loaned to another club on the basis of a written agreement between the
professional and the clubs concerned. Moreover, the last sentence of said
provision stipulates that any such loan is subject to the same rules as apply to
the transfer of players, including the provisions on training compensation and
the solidarity mechanism.
11.
Following the above, the Chamber stressed that one of the aims of the last
sentence of art. 10 par. 1 of the Regulations is to ensure that training clubs
which register a player on a loan basis also benefit from the solidarity
mechanism and training compensation, provided that the relevant
prerequisites in the pertinent provisions of the Regulations are fulfilled. This
approach is also in line with the Chamber’s well-established jurisprudence that
all clubs which have in actual fact contributed to the training and education of
a player as from the age of 12 until the age of 21 (unless it is evident that the
player has already terminated his training period before the age of 21) are, in
principle, entitled to training compensation for the timeframe that the player
was effectively trained by them.
12.
In other words, the Chamber emphasised that the nature of a player’s
registration with a club claiming training compensation, i.e. on a definite or on
a temporary basis, is in fact irrelevant with respect to the question as to
whether such club would be entitled to receive training compensation for the
period of time that the player was effectively trained by that club.
13.
In this respect and for the sake of good order, the Chamber deemed it
essential to emphasise that, as to the liability to pay training compensation,
the analogy established in art. 10 par. 1 of the Regulations could not be
extended to the case in which players were loaned to other clubs and thus are
not being definitively transferred to a new club. In other words, the transfer of
a player from the club of origin to the club that accepts the player on loan as
well as the return of the player from the club that accepted him on loan to the
club of origin do not constitute a subsequent transfer in the sense of art. 3 par.
1 sent. 3 of Annexe 4 of the Regulations. The Chamber was eager to point out
that it could not have been the intention of the legislator of the relevant
regulatory provision (art. 10 par. 1 of the Regulations) to trigger the
consequences of art. 3 par. 1 of Annexe 4 of the Regulations on the occasion
of a transfer on a loan basis and, thus, potentially depriving the loan of its
essential flexibility.
14.
Following the above, the Chamber pointed out that the obligation to pay
training compensation thus arises in case a player is definitively transferred
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from one club to another club belonging to a different association, but not
when he is temporarily transferred to another club while still being
contractually bound to his club of origin (yet, with the effects of the relevant
contract being temporarily suspended), such as a loan. Hence, the relevant
entitlement can only be claimed towards a new club that acquires the services
of a player on a definitive and permanent basis subject to the fulfilment of the
prerequisites established in art. 20 and Annexe 4 of the Regulations.
15.
As to the argument of the Respondent that the Claimant is not the player’s
former club in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations,
the Chamber wished to recall that art. 3 par. 1 sent. 3 of Annexe 4 stipulates
that “In the case of subsequent transfers of the professional, training
compensation will only be owed to his former club for the time he was
effectively trained by that club”. In this context, the Chamber acknowledged
that the Claimant was not the player’s former club stricto sensu, however, the
Chamber pointed out that, within the framework of loans, the period of time
that the player was registered with A and the period of time that the player
was registered with the Claimant on loan, should be considered as one entire
timeframe. Any other interpretation would lead to the situation in which clubs
accepting a player on loan would never be entitled to receive training
compensation, even if they contributed to the training and education of
players.
16.
Bearing in mind the foregoing, the Chamber deemed that the Respondent’s
interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations would
clearly contravene the intention of the legislator of the Regulations according
to which all training clubs shall, in principle, be rewarded for their efforts
invested in training young players, including those clubs that have accepted a
player on a temporary basis.
17.
Consequently, taking into account the above-mentioned considerations, the
Chamber concurred that it had to reject the Respondent’s argumentation in
relation to art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations.
18.
In continuation, the Chamber went on to examine whether the player’s
training period had already been completed at the time the player joined the
Claimant.
19.
In this respect, the Chamber first referred to art. 6 of Annexe 4 of the
Regulations, which contains special provisions regarding players moving from
one association to another association inside the territory of the European
Union (EU)/European Economic Area (EEA).
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20.
More specifically, the members of the Chamber referred to art. 6 par. 2 of
Annexe 4 of the Regulations, which stipulates that, inside the EU/EEA, the final
season of training may occur before the season of the player’s 21st birthday if it
is established that the player completed his training before that time.
21.
In view of the above, the Chamber stated that it had to verify whether art. 6
par. 2 of Annexe 4 of the Regulations applies to the present case as lex
specialis.
22.
In this regard, the Chamber indicated that, since the player moved from one
association to another association inside the territory of the EU, said article is
applicable. Therefore, the Chamber concluded that art. 6 par. 2 of Annexe 4 of
the Regulations applies in the case at hand as lex specialis.
23.
In this context, the Chamber considered that cases involving a possible early
completion of a player’s training period have to be assessed on a case-by-case
basis, whereby all the circumstances and all the evidence produced have to be
taken into consideration. Hence, several factors and indications have to be
considered in order to assess and establish whether a particular player’s
training has indeed been completed before the season of his 21st birthday. For
the sake of completeness, the Chamber pointed out that, so far, both the
Chamber as well as the CAS have been very reluctant and have adopted a strict
approach in establishing that a player’s training had indeed been completed
before the season of a player’s 21st birthday.
24.
In light of the above, the Chamber took, once more, note of all the
circumstances of the present matter as well as of all the evidence produced.
The Chamber highlighted that the player had already signed two employment
contracts before joining the Claimant, which would indicate that A already
considered the player as a valuable and important player. Also, the Chamber
took note of the fact that the player had represented several country B
national youth teams, which was another indication of the level of the player’s
training, skills and experience.
25.
Furthermore, the Chamber observed that the player had played a substantial
amount of matches with the Claimant as well as that he was an important
player for the Claimant, a fact recognized by the Claimant itself. Thus, the
player, from the day he had joined the Claimant, was considered by the
Claimant as an important member of the squad, who, so the Chamber
deemed, must have had at least the same playing and training level as the
other members of the Claimant’s squad.
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26.
Finally, the Chamber pointed out that A had loaned the player against
compensation to the Claimant, a club which, like A, played at the highest
professional level. In this respect, the Chamber considered that A had, thus,
not merely loaned the player to the Claimant in order for the player to gain
personal and professional experience, but also wished to be compensated for
the “loss” of its player, i.e. A had already awarded a certain value to the
services of the player.
27.
While considering every single one of the aforementioned elements by itself
would not necessarily lead to the conclusion that a player’s training is
completed, the Chamber concurred that, in the specific matter at hand and
taking all the above-mentioned elements combined, it could, in accordance
with art. 6 par. 2 of Annexe 4 of the Regulations, be established that the
player had indeed already completed his training before joining the Claimant.
Hence, the Chamber deemed that the training period of the player had been
completed before the player reached the age of 21 and before he joined the
Claimant on a loan basis.
28.
On account of all the aforesaid, the Chamber decided to reject the Claimant’s
claim for training compensation.
29.
Lastly, the Chamber referred to art. 18 par. 1 of the Procedural Rules,
according to which, in proceedings before the DRC relating to disputes
regarding training compensation and the solidarity mechanism, costs in the
maximum amount of CHF 25’000 are levied. It is further stipulated that the
costs are to be borne in consideration of the parties’ degree of success in the
proceedings and, in accordance with Annexe A of the Procedural Rules, the
costs of the proceedings are to be levied on the basis of the amount in dispute.
30.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 90,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to CHF 15,000 (cf. table in
Annexe A of the Procedural Rules).
31.
As a result, taking into account the particularities of the present matter as well
as that the Claimant was the unsuccessful party in the present proceedings, the
Chamber determined the costs of the current proceedings to the amount of
CHF 6,000, which shall be borne by the Claimant.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is rejected.
2.
The final amount of costs of the proceedings in the amount of CHF 6,000 is to
be paid by the Claimant to FIFA, CHF 3,000 of which have already been paid as
advance of costs. Consequently, the amount of CHF 3,000 is to be paid by the
Claimant within 30 days of notification of the present decision, to FIFA to the
following bank account with reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
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:
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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
Enclosed: CAS directives
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