Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 April 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Michele Colucci (Italy), member
Jon Newman (USA), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on the claim presented by the club
A,
as Claimant
against the club
H,
as Respondent
regarding a training compensation dispute
related to the transfer of the player C
I.
Facts of the case
1.
According to the player passport, issued by the Football Federation D (FFD), the
player C (hereinafter: the player), born on 10 August 1987, was registered with the
club A (hereinafter: the Claimant), as from 1 June 2002 until 31 May 2004 as an
amateur player.
2.
According to a written confirmation of the Football Federation D, the football
season in the country D lasts from 1 July each year until 1 July of the following
year.
3.
The Claimant belonged to the category IV at the time the player was registered
with it (indicative amount of training costs of EUR 10,000 per year within UEFA).
4.
According to a confirmation of the Football Association M (FAM), the player was
registered as a professional with its affiliated club H (hereinafter: the Respondent)
on 2 January 2009, being a club of the First Division at the time and, consequently,
a category III club (indicative amount of training costs of EUR 30,000 per year
within UEFA).
5.
On 26 March 2010, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting payment of its share of training compensation, claiming
an amount of EUR 30,000 as well as interest at a rate of 5 % per year as of 1
February 2009.
6.
In its response, the Respondent rejected the claim lodged against it and stated
that both the player and his agent had ascertained the Respondent that no
compensation was due to any club.
7.
Furthermore, the Respondent explained that it had only participated in in the top
division in the season 2008/2009, when the player was registered with it.
According to the Respondent, it had not obtained a “licence at UEFA level” for the
season 2008/2009 and for the season 2010/2011, but only a “domestic” one.
8.
The Respondent added that it was relegated at the end of the season 2008/2009,
and that it had only remained in the top division for the season 2009/2010 because
of the relegation of two other clubs having been found guilty of corruption. In
view of this, the Respondent argued that it was, from a financial point of view, a
very small club. It held that if it had known about any amount due to former clubs,
it would never have registered the player.
9.
Besides, the Respondent argued that if the player and/or his representative had (as
it allegedly appeared) mislead the Respondent in bad faith, the contract signed
between the Respondent and the player would be null and void and that, in this
case, no training compensation was due.
10.
Furthermore, the Respondent held that the claimed amounts were clearly
disproportionate and that the Chamber should, in any case, use its discretion to
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reduce them adequately. The Respondent referred to the principle that training
compensation had to be calculated according to the costs which the new club of a
player would have had if it had trained the player itself. In this respect, the
Respondent submitted documentation displaying its average training costs of EUR
400 for a player per year, taking into consideration for such calculation the salary
of a coach, administration costs, transport expenses and other expenses. Club H
also recalled that the monthly salary of the player amounted to EUR 700.
11.
Furthermore, the Respondent stated that the player had been registered with it
for a period of 6 months only.
12.
In addition, the Respondent held that, since the use of the Transfer Matching
System (TMS) was not mandatory at the time of the transfer, it could not have
been aware of the player’s history.
13.
In its replica, the Claimant rejected the Respondent’s comments and reiterated its
claim.
14.
It stated that any nullity of the contract between the player and the Respondent
would not affect its clubs’ entitlement to training compensation.
15.
As to the alleged disproportionality of the claimed amounts, the Claimant referred
to the official categorisation of the Football Association M, and it assumed that
this classification (i.e. the categorisation of the Respondent as a category III club)
was correct. Moreover, the Claimant referred to CAS jurisprudence, according to
which any party alleging that such a classification was not accurate carried the
respective burden of proof. According to the Claimant, the Respondent had not
provided evidence in this respect.
16.
Overall, the Claimant reiterated its initial claim, however requesting interests as
from 2 January 2009 as well as reimbursement of the relevant advance of costs.
17.
In its final comments, the Respondent reiterated its argument regarding the nullity
of the contract between it and the player. It submitted several witness statements
confirming that such a contract would not have been concluded if the Respondent
had been aware of any amounts due to former clubs and that the player’s agent
had confirmed that there was no training compensation due.
18.
Finally, the Respondent held that it had provided enough evidence to prove the
disproportionality between its financial assets and the amounts claimed. In this
respect, the Respondent furthermore submitted various balance sheets displaying
the financial dimension of its business activities.
19.
Overall, the Respondent argued that no compensation was due, since the contract
between it and the player was null and void. Subordinately, according to the
Respondent, any amount due should be proportionate to the actual training costs
incurred by the Respondent.
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II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed which procedural rules were applicable to the
case at hand. In this respect, it took note that the present matter was submitted to
FIFA on 26 March 2010. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), is applicable to the matter at hand (cf. article 21
par. 2 and 3 of the Procedural Rules).
2.
Furthermore, the Chamber analysed which regulations were applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26
par. 1 and 2 and art. 29 of the 2008, 2009 and 2010 edition of the Regulations on
the Status and Transfer of Players, and considering that the present claim was
lodged on 26 March 2010 and that the player was registered with the Respondent
on 2 January 2009, the 2008 edition of said regulations (hereinafter: the
Regulations) was applicable to the matter at hand as to the substance.
3.
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, the Dispute Resolution Chamber
was competent to adjudicate on a dispute relating to training compensation
between a club and a club.
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 and the
documentation contained in the file.
5.
In particular, the Chamber noted that the Claimant claimed its share of training
compensation in the amount of EUR 30,000 based on the alleged first registration
of the player as a professional with the Respondent, as well as interests at a rate of
5% p.a. as from 2 January 2009.
6.
On the other hand, the Chamber took note that the Respondent rejected the claim
lodged against it, stating that the player had ascertained it that no compensation
was due to any club. Equally, the Chamber acknowledged that the Respondent
argued that the player was registered with it for a period of six months only, that
the Respondent could not have been aware of the player’s history and that, in any
case, the claimed amounts were disproportionate.
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7.
Subsequently, in view of the circumstances of the present case, the Chamber
considered that the following questions had to be tackled:
- Is the Claimant entitled to receive training compensation from the Respondent?
- In the affirmative, which is the exact amount of the compensation?
8.
With regard to the first of these questions, the Dispute Resolution Chamber stated
that, as established in art. 1 par. 1 of Annex 4 in combination with art. 2 of Annex 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 Annex 4 of the
Regulations).
9.
In view of the aforementioned, the Chamber recalled that the Claimant based its
claim for training compensation on the alleged first registration of the player as a
professional. Equally, the Chamber acknowledged that, in principle, it was not
disputed that the player was registered with the Respondent for the first time as a
professional on 2 January 2009.
10. Likewise, the Chamber noted that the present matter was linked to the transfer of
the player from a club affiliated to the Football Federation D (the Claimant) to a
club affiliated to the Football Association M (the Respondent), i.e. to a transfer
between two Associations within the territory of the European Union. Therefore,
the Chamber established that art. 6 of Annex 4 of the Regulations was applicable to
the matter at hand.
11. Since it was, in principle, not contested that the player was registered with the
Respondent for the first time as a professional, the Chamber deemed that the
triggering element for the entitlement of the Claimant to claim training
compensation, as established in art. 2 of Annex 4 of the Regulations, was fulfilled.
12. In this context, the Chamber turned its attention to the argument of the
Respondent, according to which the contract concluded with the player should be
considered null and void, since the latter had allegedly deceived the Respondent
about the obligation of having to pay training compensation.
13. In this respect, the Chamber was eager to emphasise that any possible dispute
regarding the validity of the contractual relationship between the player and the
Respondent could not be detrimental to the Claimant’s entitlement to claim
training compensation from the Respondent, since the Regulations clearly define
the triggering element for the entitlement to training compensation as being the
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registration of the player with the Respondent, but not the conclusion of a valid
employment contract.
14. The Chamber then focussed its attention on the argument of the Respondent
according to which the player and his agent had ascertained the Respondent that
no compensation would be due to any club.
15. In this respect, the Chamber recalled that, according to art. 3 par. 1 of Annex 4 of
the Regulations, it is the responsibility of the club with which a player is registered
to pay training compensation and, therefore, also to establish the player’s previous
career, in order to evaluate the clubs which are entitled to training compensation.
Therefore, the Chamber deemed any statement the player and/or his agent may
have made towards the Respondent irrelevant for the latter’s obligation to pay
training compensation.
16. Subsequently, the Chamber turned to the argumentation of the Respondent
according to which the player was only registered with it for six months and that,
had TMS already been mandatory at the time of registration of the player, the
Respondent would have been aware of the player’s history.
17. In this respect, the Chamber emphasised that the Regulations do not provide for a
minimum duration of a contract and/or registration for the obligation to pay
training compensation, but that the triggering element for the obligation to pay
training compensation was, according to art. 2 par. 1 of Annex 4 of the Regulations,
the player’s first registration as a professional. Equally, the Chamber again referred
to the content of art. 3 par. 1 of Annex 4 of the Regulations, according to which the
new club with which a player is registered is responsible to pay training
compensation and, therefore, also to establish the player’s previous career and to
evaluate the clubs which are entitled to training compensation.
18. In light of all of the above, the Chamber concluded that indeed, the Respondent
was obliged to pay training compensation to the Claimant, based on the first
registration of the player with the Respondent as a professional.
19. Turning its attention to the calculation of the amount due, the Chamber referred to
art. 5 par. 1 and 2 of Annex 4 of the Regulations, which stipulate that in order to
calculate the specific amount of training compensation, 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. Equally, said article states that training
compensation has to be calculated based on the training costs of the new club
multiplied by the number of years of training with the former club.
20. Furthermore, the members of the Chamber referred to the content of art. 6 par. 1
lit. a) of Annex 4 of the Regulations, according to which, in case a player moves
from a lower to a higher category club, the calculation shall be based on the
average training costs of the two clubs. Therefore, the Chamber recalled that the
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Claimant belonged to the category IV (indicative amount of EUR 10,000 within
UEFA) and that the Respondent belonged to category III (indicative amount of EUR
30,000 within UEFA) when the player was registered with the latter.
21. In this respect, and as regards the argument of the Respondent that it had only
participated in the top division in the season 2008/2009, when the player was
registered with it, and that it was relegated at the end of that season, the Chamber
was eager to underline that the decisive moment to establish the relevant category
of the club is the date of registration of the player with the Respondent. In this
respect, the Chamber recalled that it was undisputed that the Respondent belonged
to the top division within the Football Association M and that it was therefore
categorised as a category III club when the player was registered with it.
22. Having established the relevant amounts at the basis of the calculation, the
Chamber referred to 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. In this regard, the Chamber concluded
that the effective period of time to be considered in the matter at stake
corresponds to the period comprehended between 1 June 2002 and 31 May 2004,
i.e. 1 month of the season of the player’s 14th birthday, the entire season of the
player’s 15th birthday as well as 11 month of the season of the player’s 16th birthday.
23. Consequently, taking into account the above, the Chamber established the relevant
share of training compensation at an amount of EUR 29,166.
24. Subsequently, the Chamber focussed its attention on the argumentation of the
Respondent, according to which the Chamber should use its discretion to reduce the
amount of training compensation adequately since the relevant amounts were,
allegedly, clearly disproportionate.
25. In particular, the Chamber took due note that the Respondent held that it had, for
the season 2008/2009 and 2010/2011 only obtained a “domestic” license and that it
should, from a financial point of view, be considered as a very small club. Equally,
the Chamber noted that the Respondent argued that, if it had known about the
obligation to pay training compensation, it would have never registered the player.
In addition, the Chamber carefully studied the documentation submitted by the
Respondent, in particular the various balance sheets attached to the Respondent’s
submission as well as the information about the alleged training costs of the
Respondent, which allegedly corroborated that the Respondent was indeed a small
club and that the indicative amounts of training compensation, as well as the
claimed amount, were clearly disproportionate.
26. Bearing in mind the above, the Chamber recalled the regulatory provisions which it
deemed relevant in this respect. First of all, the Chamber referred to art. 4 par. 1 of
Annex 4 of the Regulations, according to which National Associations are instructed
to divide their clubs into categories in accordance with the clubs’ financial
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investment in training players. In this respect, the Chamber recalled that the
Football Association M had confirmed without reservation that the Respondent
belonged to the category 3 at the time the player was registered with it.
27. Furthermore, the Chamber referred to art. 5 par. 4 of Annex 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.
28. In this respect, the Chamber was eager to emphasise that said provision does not
stipulate the obligation of the Chamber to reduce amounts which are, allegedly,
disproportionate, but only the possibility to do so on a case-by-case basis. Equally,
the Chamber underlined that this possibility exists only in cases of clear
disproportionality and that, in any case, the party invoking such disproportionality
had to carry the respective burden of proof (cf. art. 12 par. 3 of the Procedural
Rules).
29. Equally, the Chamber deemed fit to underline that the burden for a party to prove
the disproportionality of the relevant amounts and/or the respective categorisation
had to be set at a high level, in order to provide and safeguard legal certainty for
all the clubs involved in the world of football. The Chamber considered that it is of
high interest for all the stakeholders in the world of football to be able to rely on
indicative amounts and the relevant categorisations in order to calculate the
relevant shares of training compensation in a specific case. Therefore, the Chamber
was of the opinion that only if there are strong indications pointing towards a clear
disproportionality, the Chamber could possibly review and/or reduce the payable
amounts of training compensation.
30. Bearing in mind all the aforementioned, and after a careful examination of the
documentation provided by the Respondent, the Chamber came to the conclusion
that the Respondent did not submit sufficient proof in order to corroborate the
clear disproportionality neither of the indicative amounts nor of the categorisation
according to the Football Association M, as it would have been necessary according
to art. 5 par. 4 of Annex 4 of the Regulations in order for the Chamber to be in a
position to use its discretion to reduce the amount due.
31. Consequently, and taking into account all the above-mentioned elements, the
Chamber established that the Claimant is indeed entitled to receive training
compensation from the Respondent in the amount of EUR 29,166.
32. As to the interests claimed, the Chamber referred to art. 3 par. 2 of Annex 4 of the
Regulations, according to which the deadline for payment of training compensation
is 30 days following the registration of the professional with the new association.
Consequently, and bearing in mind that the player was registered with the
Respondent on 2 January 2009, the Chamber decided to grant default interest at a
rate of 5% p.a. as from 2 February 2009.
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33. Consequently, overall, the Chamber decided to partially accept the Claimant’s claim
and that the Respondent had to pay training compensation to the Claimant in the
amount of EUR 29,166 as well as interest at a rate of 5% p.a. on said amount as
from 2 February 2009. The Chamber concluded its deliberations by rejecting all
further claims lodged by the Claimant.
34. Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in combination
with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings
before the Dispute Resolution Chamber, costs in the maximum amount of CHF
25’000 are levied. The relevant provision further states that the costs are to be
borne in consideration of the parties’ degree of success in the proceedings (cf. art.
18 par. 1 of the Procedural Rules).
35. In respect of the above, and taking into account that the claim of the Claimant has
been partially accepted, the Chamber concluded that the Respondent has to bear
the costs of the current proceedings in front of FIFA.
36. 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.
37. On that basis, the Chamber held that the amount to be taken into consideration in
the present proceedings is EUR 30,000, based on the claim of the Claimant.
Consequently, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to CHF 5,000.
38. Considering that the case at hand allowed to be dealt with following a reasonable
procedure and did not pose particular factual difficulty, but that it was adjudicated
by the Dispute Resolution Chamber in corpore, the Chamber determined the costs
of the current proceedings to the amount of CHF 2,500.
39. In view of all of the above, the Chamber concluded that the amount of CHF 2,500
has to be paid by the Respondent to cover the costs of the present proceedings.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, H, has to pay to the Claimant, A, the amount of EUR 29,166, plus
interest at a rate of 5% p.a. as from 2 February 2009 until the date of effective
payment, within 30 days as from the date of notification of the present decision.
3.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and decision.
4.
Any further claims lodged by the Claimant, A, are rejected.
5.
The final amount of costs of the proceedings amounting to CHF 2,500 is to be paid
by the Respondent, H, 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
6.
The Claimant, A, is directed to inform the Respondent, H, immediately and directly
of the account number to which the remittances are 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
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