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 from the country D (hereinafter: the player), born on 10 August 1987, was
registered with the club A from the country D (hereinafter: the Claimant) as from 1
August 2004 until 25 June 2008 as an amateur.
2.
Pursuant to a written confirmation of the Football Federation D, the football
season in country D lasts from 1 July until 1 July of the following year.
3.
The Claimant belonged to the category III at the time the player was registered
with it (indicative amount of training costs of EUR 30,000 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 with FIFA against the Respondent,
requesting payment of its share of training compensation in the amount of EUR
120,000 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 argued that
both the player and his agent had ascertained the Respondent that no
compensation was due to any club. Furthermore, the Respondent explained that it
had only participated 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.
7.
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.
8.
Besides, the Respondent argued that if the player and/or his representative had
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.
9.
Furthermore, the Respondent held that the claimed amount was clearly
disproportionate and that the Chamber should, in any case, use its discretion to
reduce it 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
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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. The
Respondent also recalled that the monthly salary of the player amounted to EUR
700.
10. Finally, the Respondent referred to art. 6 par. 3 of Annex 4 of the Regulations, and
it held that the Claimant did not offer the player a contract, despite being a
professional club competing in the country D second-highest division. The
Respondent argued that the Claimant, too, would have to prove that it had offered
a contract to the player, or at least that it had shown a bona fide interest in the
player, in order to be entitled to training compensation.
11. Furthermore, the Respondent stated that the player had been registered with it for
a period of six 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 adhered to its claim and stated that any nullity of the
contract between the player and the Respondent would not affect its entitlement
to training compensation.
14. The Claimant also held that the obligation to offer a contract to the player would
not be applicable to it, since it had not been the player’s last club before his
registration as a professional with the Respondent.
15. As to the alleged disproportionality of the claimed amounts, the Claimant referred
to the official categorisation of the FAM, 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. Furthermore, the Respondent held that, even if the Claimant was not the player’s
last club before being registered as a professional, the Claimant should still have
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displayed a bona fide interest in the player in order to be entitled to training
compensation.
19. 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.
20. Overall, the Respondent argued that no compensation was due, since the contract
between it and the player was null and void. Subordinately, it held that no training
compensation was due because it had never offered a contract to the player.
Subordinately, according to the Respondent, any amount due should be
proportionate to the actual training costs incurred by the Respondent.
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 120,000 based on the alleged first registration
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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 also noted that the Respondent rejected the claim
lodged against it since the Claimant did not offer a contract to the player, despite
being a professional club competing in the second-highest division of the country D.
The Chamber also acknowledged that the Respondent furthermore held that it had
been ascertained that no compensation would be due to any club, because it had
been misled by the player and that, therefore, the contract concluded with the
player should be considered void and that, in any case, the amounts claimed were
disproportionate.
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 members of 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. Furthermore, the Chamber also underlined that art. 6 of Annex 4 of the Regulations
contained special provisions regarding players moving from one Association to
another Association inside the territory of the European Union (EU) and/or the
European Economic Area (EEA).
11. Considering 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, the Chamber established
that art. 6 of Annex 4 of the Regulations was applicable to the matter at hand.
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12. The Chamber deemed it fit to underline that it was not disputed by either party
that the case at hand involved a professional player being transferred between
clubs of two different associations and that art. 6 of Annex 4 of the Regulations was
applicable to the present dispute.
13. The Chamber then recalled the content of art. 6 par. 3 of Annex 4 of the
Regulations according to which no training compensation is payable if the former
club does not offer the player a contract, unless the former club can justify that it is
entitled to such compensation. Equally, the Chamber noted that the Respondent
argued that the Claimant had never offered a contract to the player and that
therefore, no training compensation was due.
14. In this respect, taking into account the content of art. 6 par. 3 of Annex 4 of the
Regulations, the Chamber was eager to underline that, according to said provision,
only the former club of the player had, in principle, to offer a contract to the
player, in line with the prerequisites laid out in the cited article. Since the Claimant
was not to be considered the player’s last club before his first registration as a
professional with the Respondent, the Chamber decided that art. 6 par. 3 of Annex
4 of the Regulations was not applicable to the Claimant. Consequently, the
Claimant did not have the obligation to offer a contract to the player in order to be
entitled to claim training compensation.
15. Having established the aforementioned, the Chamber recalled that it was
undisputed that the player was registered for the first time as a professional with
the Respondent. Consequently, based on art. 3 par. 1 of Annex 4 of the Regulations,
the Chamber concluded that the Claimant was entitled to receive training
compensation from the Respondent on the basis of a first registration as a
professional.
16. In this context, the Chamber turned its attention to the argument of the
Respondent, according to which the contract concluded between it and 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.
17. 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
registration of the player with the Respondent, but not the conclusion of a valid
employment contract.
18. 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.
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19. 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.
20. 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.
21. In this respect, the Chamber again 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.
22. Equally, 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 also deemed it irrelevant that, allegedly, the player and his
agent had ascertained the Respondent that no compensation would be due.
23. 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.
24. 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 stipulates 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.
25. Equally, the Chamber referred to art. 6 par. 1 of the Regulations, which establishes
a special provision for the calculation of the relevant amount of training
compensation for players moving from one association to another inside the
territory of the EU/EEA. In this respect, the Chamber recalled that both the Claimant
and the Respondent belonged to the category III (indicative amount of EUR 30,000
within UEFA) when the player was registered with the latter.
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26. Having established the relevant amount 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 August 2004 and 25 June 2008, i.e. 11 months
during the season of the player’s 17th birthday, as well as the entire seasons of the
player’s 18th, 19th and 20th birthdays.
27. Consequently, taking into account the above, the Chamber established the relevant
share of training compensation at an amount of EUR 117,500.
28. 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.
29. 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.
30. 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
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 III at the time the player was registered with it.
31. 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.
32. 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
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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).
33. 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.
34. 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.
35. 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 underlined 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.
36. Consequently, and taking into account all the above-mentioned elements, the
Chamber established that the Claimant is entitled to receive training compensation
from the Respondent in the amount of EUR 117,500.
37. As to the interests claimed by the Claimant, 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.
38. 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
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amount of EUR 117,500 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.
39. 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.
40. 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.
41. 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.
42. On that basis, the Chamber held that the amount to be taken into consideration in
the present proceedings is EUR 120,000, based on the claim of the Claimant.
Consequently, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to CHF 15,000.
43. 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 10,000.
44. In this respect, the Chamber took into account that the Claimant had paid the
advance of costs in the amount of CHF 4,000 in accordance with art. 17 of the
Procedural Rules.
45. In view of all of the above, the Chamber concluded that the amount of CHF 10,000
has to be paid by the Respondent to cover the costs of the present proceedings.
Thereof, the amount of CHF 6,000 has to be paid by the Respondent to FIFA and the
amount of 4,000 directly to the Claimant.
*****
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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 117,500,
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 10,000 is to be
paid as follows:
5.1.
The amount of CHF 6,000 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
5.2.
6.
The amount of CHF 4,000 is to be paid directly to the Claimant, A.
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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