Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Essa M. Saleh al Housani (UAE), member
Ivan Gazidis (USA), member
on a matter between the club
P,
as Claimant
and the club
M,
as Respondent
regarding training compensation in connection with
the player R.
I.
Facts of the case
1.
The player R (hereafter; the player), born on 1 February 1987, was registered
with the club P (hereafter; the claimant) from January 2000 to 30 June 2004, at
his age of 12 to 17.
2.
On 3 November 2004, he signed his first non-amateur contract with the club M
(hereafter; the respondent).
3.
According to the classification of clubs outlined in circular 826 dated 31 October
2002, both clubs belong to category 1.
4.
In January 2005, the claimant lodged a claim before FIFA against the respondent
for training compensation. Thereby, it contested the application of the indicative
amounts specified in circular 826 and put forward its own individual calculation,
resulting to EUR 1,356,300.
1st decision of the DRC
5.
On 1 June 2005, the Dispute Resolution Chamber (DRC) decided to partially
accept the claimant’s claim, i.e. decided that the respondent has to pay to the
claimant the amount of EUR 205’000, being the amount of training
compensation calculated in accordance with the indicative amounts such as
stipulated in the above-mentioned circular. With respect to the remaining part
of the claim, the DRC decided that, due to the lack of documentary evidence
supporting the calculation presented by the claimant, it is not in a position to
follow the individual calculation, and therefore decided to reject all further
claims of the claimant.
1st decision of the Court of Arbitration for Sport (CAS)
6.
The claimant appealed the decision of the DRC before the CAS. The decision of
the DRC was set aside by the CAS on 19 December 2005, and the matter was
referred back to the DRC, which was ordered to request the claimant to provide
all the documents, such as invoices, accounts, training centre budgets, etc.,
considered necessary to evidence and calculate the training compensation it
claims for the training of the player. Furthermore, the DRC was ordered to
determine, on the basis of the evidence received from the claimant, whether or
not it deems the training compensation calculated on the basis of the indicative
amounts to be disproportionate, and, if so, to adjust the amounts for the
training compensation so as to reflect the specific situation of the present case.
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7.
In the following, the respondent paid to the claimant the amount of EUR
205’000.
2nd procedure before the DRC
8.
In reply to FIFA’s request to provide the DRC with all documents considered
necessary to evidence and calculate the training compensation it claims, the
claimant sent to FIFA, on 16 March 2006, official balance sheets of the seasons
2001/02, 2002/03 and 2003/04, lists of various expenses related to the claimant’s
football teams, and copies of the invoices of all the listed expenses. All those
documents were written in I language.
9.
In reply to FIFA’s request to provide a translation of all these documents in one
of the official languages of FIFA, the claimant provided on 23 May 2006 an
English translation of the lists of the various expenses related to the claimant’s
football teams, but not of the other documents, particularly not of the official
balance sheets.
10.
On 14 December 2006, in reply to the claimant’s submission, the respondent
pointed out that the claimant had failed to present English translations of the
invoices, that some invoices are expressed in I lire and without conversion in EUR,
which is the currency of the claim, and that for some of the expenses, no
invoices, but only a printout of data in I appears to have been submitted. In view
thereof, the respondent submitted that the claimant has failed to discharge the
burden of proof upon it in this case.
11.
However, without prejudice to the arguments above, the respondent proceeded
to analyse the submitted documents on its best interpretation of them, and in
this respect, concluded first of all that expenses submitted by the claimant for
players’ agents, talent scouts, the organisation of training sessions and/or
refresher courses, the staff retirement pension fund, and for some board and
lodging expenses, such as restaurant receipts, totalling to EUR 3,232,778.21,
should be disregarded, since these items where not mentioned by circular 799
dated 19 March 2002, which listed the expenses that may be taken into account
by national associations when establishing the cost of training of young players.
12.
Furthermore, the respondent emphasised that it is not clear whether the costs
claimed by the claimant are solely attributable to amateur players of the
claimant or to the claimant in general and thus also to its professional team.
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13.
In addition, the respondent emphasised that some figures presented by the
claimant are excessive and not reasonable, due to which also the claimed
training costs are not reasonable. The respondent particularly refers to the
following figures:
•
•
•
•
•
Expenses for sports equipment totalling to EUR 1,386,659.39.
Expenses for coaches totalling to EUR 2,149,272.27.
Expenses for players’ agents’ services totalling to EUR 2,016,356.58.
Tenancy of training centre totalling to EUR 1,065,374.96.
Managers’ salaries totalling to EUR 3,779,828.31.
14.
The respondent also referred to the differences of the costs of training claimed
in each of the three seasons concerned, which would demonstrate the
inconsistencies of the claim and undermine the reliability of the figures.
15.
Finally, the respondent pointed out that the claimant did not demonstrate
particular circumstances that would enable the DRC to adjust the indicative
amounts. On the contrary, the respondent underlined that the DRC should not
depart from the indicative amounts. By referring to circular 769 of 24 August
2001, which provides that “…in order to render the [Training Compensation]
system manageable and to ensure predictability as to the amount of training
compensation due, the training and education costs will not be calculated for
each individual club”, the respondent stated that a departure from the indicative
amounts to calculate the individual costs of a club would undermine the entire
compensation system as it would be a precedent for all clubs to reconsider
whether or not they should accept the indicative amounts.
16.
On 5 November 2007, the claimant provided FIFA with its reply to the
respondent’s answer, and thereby firstly alleged that the player was, in the
meantime, transferred from the respondent to a third club for an amount of EUR
9,995 Mio., and considered this to be already an exceptional circumstance which
would justify deviation from the indicative amounts.
17.
Furthermore, the claimant submitted that the DRC, in its first decision, applied
the indicative amount for category 4 for the season of the player’s 15 birthday
on a wrong interpretation of the applicable regulations. According to the
claimant, category 4 would apply only for three seasons, i.e. the seasons of the
player’s 12, 13 and 14 birthday. In the present case, category 4 should therefore
only apply for the seasons of the player’s 13 and 14 birthday. For the three
following seasons, category 1 should apply. In this respect, the claimant referred
to the Regulations for the Status and Transfer of Players, in both their editions
2001 and 2005, and to some previous decisions of the DRC. As a result, the
claimant claimed that it is entitled to EUR 285’000 on account of training
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compensation calculated on the basis of the indicative amounts, and not only to
EUR 205’000, such as decided by the DRC in its first decision.
18.
In continuation, the claimant underlined that according to circular 826, the DRC
“can adjust the amounts for the training compensation so as to reflect the
specific situation of a case”, and refused the respondent’s interpretation of
circular 769.
19.
Furthermore, the claimant opposed to the respondent’s view that expenses for
players’ agents, talent scouts and/or the staff retirement pension fund could not
be taken into consideration in view of circular 799, since the said circular
explicitly mentions “salaries of coaches, medical staff, nutritionists and other
professionals” (emphasis added). Moreover, the claimant emphasises that the
said circular mentions that the listed expenses that can be taken into account are
to be considered as “guidelines, [that] are not intended to be exhaustive”.
20.
The claimant then presented its individual calculation of training compensation,
starting from the average annual amount it has spent on training young players
in recent years, i.e. EUR 3,752,257.
21.
Furthermore, the claimant mentioned that it has an average of around 150
players per year in training, out of which 9 (season 2001/02), 6 (season 2002/03),
respectively 4 (season 2003/04) players reached professional status, i.e. an
average of 6.4 players per season. Dividing the number of trained players (150)
by that number, a player factor of 23,4 is obtained.
22.
Finally, the claimant divided the amount of EUR 3,752,257 by 8.5 (sic!), which
results in an amount of annual training costs of EUR 441,442.04. The value of
three years of training amounts thus to EUR 1,324,326.12. For the first and a half
season of training, during which the claimant deems that category 4 should
apply, only 1/9 of the annual amount is payable, because the indicative amount
for category 4 is reduced to 1/9 of the amount for category 1. The individual
amount per season of training at category 4 shall therefore be EUR 52,973.04.
This figure is multiplied by 1.5, resulting to an amount of EUR 79,459.56. The
total amount of training costs is therefore EUR 1,403,785.60.
23.
On 14 January 2008, the respondent filed its final position on the matter, and
thereby, in view of the change of the amount of the claimant’s claim, questioned
the credibility of the claimant’s submission and documentation.
24.
Furthermore, the respondent stated that the claimant’s interpretation of the
applicable Regulations, according to which category 4 is applied i.c. only for the
seasons of the player’s 12, 13 and 14 birthday, is wrong.
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25.
The respondent also challenged the application of the player’s factor, as the
application of this factor was reserved, by circular 799, to FIFA and the national
associations. In this respect, the respondent pointed out that by dividing the
total of training costs invoked by the claimant with the average number of
players trained by the claimant, the costs of the training of the player concerned
for the seasons in question amounts to EUR 75,045, which is less than what the
claimant was granted based on the indicative amounts.
26.
Finally, the respondent emphasised that the claimant’s arguments with regard to
the player’s transfer from the Respondent to a third club are of no relevance in
the present case, since training compensation has nothing to do with a player’s
ability or future transfer market value.
27.
In view of this, the respondent requested that the claimant’s claim be rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the 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 2005
edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber. The present matter was submitted to FIFA
in January 2005, as a consequence the Chamber concluded that the Procedural
Rules in their edition of 2001 on matters pending before the decision making
bodies of FIFA are applicable to 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 training compensation claimed by
the claimant for the training and education of the player R.
4.
Subsequently, the members of the Chamber analysed 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 2005 edition of the Regulations for the Status and Transfer of
Players. Furthermore, it acknowledged that the player had been registered for
the first time as a professional between November 2004 and January 2005.
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Equally the Chamber took note that the claim was lodged at FIFA in January
2005. In view of the aforementioned, the Chamber concluded that the FIFA
Regulations for the Status and Transfer of Players in their edition 2001
(hereafter: the Regulations) are applicable to the case at hand as to the
substance.
5.
In continuation, 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 documentation contained in the file,
and in this respect, in view of the circumstances of the present case, first of all
stated that the principal question to be answered in this case was, whether or
not the claimant should be entitled to receive from the respondent any amount
on account of training compensation for the training of the player that
exceeded, on the basis of Art. 42 par. 1 lit. b. (iv) of the Regulations, the amount
of EUR 205’000, being the amount of training compensation for the player to be
payable and that was already paid by the respondent as calculated based on the
applicable indicative amounts of training costs.
6.
In order to answer this question, the members of the Chamber first of all
thoroughly examined each of the claimant’s arguments.
7.
The Chamber firstly noted that the claimant considered it to be an exceptional
circumstance that the player was transferred from the respondent to a third club
for an amount of EUR 9,995 Mio., and that this would already justify deviation
from the indicative amounts.
8.
In this respect, the Chamber mentioned that the value of a future transfer of a
player is not an element that shall be taken into consideration when adjusting
the training compensation on the basis of Art. 42 par. 1 lit. b. (iv) of the
Regulations. As a matter of fact, between the moments in time when, on the
one hand, training compensation became due and, on the other hand, the player
was transferred from the respondent to a third club, the player had been trained
and had played for a considerable period of time with the respondent’s team.
Therefore, it is rather a result of the respondent’s training efforts that the value
of the player’s services, such as established in the transfer of the player from the
respondent to a third club, has reached the amount such as alleged by the
claimant, and not primarily an achievement of the claimant.
9.
Furthermore, the Chamber referred to the institution of the solidarity
mechanism, which is part of the Regulations, and underlined that it is based on
this concept that a club that has trained a player may benefit from a rising value
of the services of a player that it has trained, in case this player is transferred at a
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later stage during the course of an employment contract between two clubs
belonging to different associations.
10.
In continuation, the Chamber noted the claimant’s opinion that the DRC, in its
first decision, applied the indicative amount for category 4 for the season of the
player’s 15 birthday on a wrong interpretation of the applicable regulations, as
category 4 would apply only for three seasons, i.e. the seasons of the player’s 12,
13 and 14 birthday. In the present case, category 4 should therefore only apply
for the seasons of the player’s 13 and 14 birthday. For the three following
seasons, category 1 should apply. Therefore, the claimant claimed that it is
entitled to EUR 285’000 on account of training compensation calculated on the
basis of the indicative amounts, and not only to EUR 205’000.
11.
The Chamber first of all stated that the part of its first decision in the present
case that concerned the calculation of the training compensation based on the
indicative amounts was not an issue in the appeal procedure before the CAS. In
other words, when appealing the first decision of the Chamber in the present
case, the claimant did not challenge the application of category 4 for the season
of the player’s 15 birthday. Therefore, the Chamber concluded that this part of
the first decision of the Chamber has become final and binding and can thus not
be reviewed anymore.
12.
Besides the above, and without prejudice thereto, the Chamber also substantially
refuted the interpretation of the Regulations of the Claimant that category 4
should not be applied for the season of the player’s 15 birthday. In this respect,
the Chamber referred to the clear wording of Art. 7 par. 2 of the Regulations
governing the Application of the Regulations for the Status and Transfer of
Players, according to which the amount of training compensation for players
aged 12 to 15 shall be based on the training and education costs for category 4.
In view of this wording, it was clear for the members of the Chamber that for the
season of the player’s 15 birthday, the indicative amount for category 4 shall
apply. Any other interpretation of the Regulations would be in lack of a
justifying basis and therefore not supportable.
13.
With regard to the subsequent argument of the claimant that the DRC can adjust
the amounts for the training compensation to reflect the specific situation of a
case according to circular 826, the Chamber perfectly agreed with the claimant.
In this respect, the Chamber referred again to Art. 42 par. 1 lit. b. (iv) of the
Regulations, which basically had the same content, i.e. empowered the Chamber
to adjust the amount of training compensation if the amount such as calculated
on the basis of the indicative amount is clearly disproportionate in a specific case.
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14.
The Chamber was, however, eager to emphasise that neither circular 826 nor
Art. 42 par. 1 lit. b. (iv) of the Regulations contained an obligation to the
Chamber to deviate from the indicative amounts in every case a club entitled to
receive training compensation makes a respective request. In fact, the Chamber
deemed important to underline that such jurisprudence would lead to a serious
legal uncertainty. It is of a high interest for all clubs in the world of football to
be able to rely on indicative amounts in order to calculate training compensation
in a specific case. This allows a simple and fast dealing of issues regarding
training compensation, whereas it would lead to innumerable and long legal
disputes and procedures in the event the Chamber would have to deviate from
the indicative amounts in every case a club would allege and document to have
had higher costs of training. Therefore, the applicable provisions are only to be
understood as giving the Chamber the possibility to deviate from the indicative
amounts, in a case where the application would be clearly disproportionate, as
the Regulations say, or, in other words, totally inappropriate.
15.
With regard to its specific costs of training, the claimant insisted that expenses
for players’ agents, talent scouts and/or the staff retirement pension fund should
be taken into consideration, as circular 799 explicitly mentions “salaries of
coaches, medical staff, nutritionists and other professionals” (emphasis added)
and indicates that the expenses listed in circular 799 are “guidelines, [that] are
not intended to be exhaustive”.
16.
In this respect, the Chamber emphasised that the costs for the personnel of a
club were indeed taken into consideration to a certain degree when the
indicative amounts were established. The Chamber, however, also emphasised
that an important part of the work of a club’s personnel is not dedicated to the
players that are in training of such club, but also to other employees of the club.
And finally, the Chamber once again emphasised that it is not only due to the
fact that a claiming club submits the costs of its personnel, that such costs would
have to be taken into consideration, but also that the indicative amounts would
be totally disproportionate to properly reflect such costs of personnel. In this
respect, the Chamber was eager to emphasise that a diligent management of a
club would indeed allow that the costs of personnel do not rise to an amount
beyond the amount on which the establishment of the indicative amounts was
based.
17.
Finally, the Chamber turned its attention to the individual calculation of
training compensation presented by the claimant, which resulted in an
amount of EUR 1,403,785.60 of training costs for the player in question. In
this respect, the Chamber first of all expressed its regret that despite having
submitted an extensive documentation to demonstrate its effective training
costs in I language, such documentation was only translated by the claimant
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in parts into one of the official languages of FIFA (English, Spanish, French
and German; Art. 8 par. 1 of the FIFA Statutes). Particularly the central
document to comprehend the claimants calculation, i.e. the balance sheet,
had not been translated into one of the said languages, despite FIFA’s
request that the entire documentation be translated.
18.
The Chamber was thus not in a position to decide whether the numbers
given by the claimant in its individual calculation of the training costs would
correlate with any amount indicated in the I balance sheet.
19.
Notwithstanding this, on the basis of the presumption that the numbers
indicated by the claimant in its written submission would be correct, particularly
with regard to the average number of players reaching professional status per
year (i.e. 6.4) and the average annual amount it has allegedly spent on training
young players (i.e. EUR 3,752,257), the Chamber concluded that the application
of the indicative amounts cannot be considered as totally disproportionate.
20.
In fact, considering that a European first category club pays an amount of EUR
580’000 for the training of a player from the season of his 12 to the season of his
21 birthday (4 x EUR 10’000 plus 6 x EUR 90’000), and multiplying this amount
with 6.4, i.e. the average number of players of the claimant allegedly reaching
professional status per year, this results in an amount of EUR 3’712’000. The
difference between this amount and the annual amount the claimant allegedly
spent on training young players (i.e. EUR 3,752,257) is thus a negligible amount.
As a result thereto, the Chamber stated that the application of the indicative
amounts in the present case is not clearly disproportionate.
21.
Therefore, the Chamber decided that the request of the claimant for a deviation
from the indicative amounts to calculate the training costs shall be rejected.
Furthermore, the Chamber noted that the respondent has already paid to the
claimant the amount of EUR 205’000, which reflects the amount of training
compensation as calculated on the basis of the indicative amounts.
Consequently, all issues between the claimant and the respondent with regard to
training compensation for the player in question are thus settled.
*****
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, P, 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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