Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 April 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Wilfried Straub (XX), Member
Mario Gallavotti (Italy), Member
Joaquim Evangelista (Portugal), Member
Gerardo Movilla (Spain), Member
on the claim presented by the club,
X, XX,
represented by Mr OO, attorney at law,
as “Claimant”
against the club,
Y, YY,
as “Respondent”
regarding a training compensation dispute related to the
transfer of the player Z.
I.
Facts of the case
1.
According to the official confirmation from the XX Football Association, the
player Z, born on 8 September 1983, was registered as a professional player with
the XX club, X (hereinafter: the Claimant), from 6 July 2002 until 21 August 2005,
i.e. between the ages of 18 and 21. The player in question had signed an
employment contract with the Claimant on 4 July 2002 which ran until 30 June
2005.
2.
A copy of the said employment contract was remitted to the Dispute Resolution
Chamber.
3.
On 3 July 2005, the player signed an employment contract as a professional with
the YY club, Y (hereinafter: the Respondent), and, according to the official
confirmation from the YY Football Federation, was registered with the
Respondent at the YY Football Federation on 23 August 2005.
4.
By means of its letter dated 25 April 2006, the Claimant submitted a complaint
with FIFA against the Respondent in which it requested training compensation of
EUR 180,000 plus five per cent interest accrued since 1 October 2005, in
accordance with FIFA circular no. 826, dated 31 October 2002. The Claimant
based its complaint on the allocation of the Respondent, a YY first-division club,
to Category 2, which corresponds to an amount of EUR 60,000 per year of
training. With regard to the interest charged, the Claimant asserted that it had
requested the Respondent to pay the training compensation in a letter dated 13
September 2005, setting a deadline until 30 September 2005.
5.
The Claimant also asserted that the Respondent had so far refused to pay
training compensation, objecting that the Claimant had not offered the player a
new contract with at lest equivalent terms than his previous contract with the
Claimant. In this connection, the Claimant submitted a contract offer dated 29
April 2005 signed by the Claimant, which it had apparently sent to the player by
registered post with recorded delivery. The Claimant added that the contract
offer was delivered to the player on 3 May 2005. According to the Claimant, the
player was informed beforehand that such an offer would be forthcoming. In
this regard, the Claimant is of the view that the FIFA Regulations for the Status
and Transfer of Players (edition 2005), in particular art. 6 par. 3 of Annex 4 of the
Regulations, do not stipulate that the 60-day term is only deemed to have been
met when the relevant letter reaches the player within the said term.
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)
6.
Finally, the Claimant is of the view that the former edition of the Regulations
(edition 2001) is applicable on the case at hand and not the revised edition of
the Regulations (edition 2005). In this connection, the Claimant emphasized that
its obligation to make a contract offer to the player, the breach of which the
Respondent asserts, had to be fulfilled by April 2005 at the latest, at which point
in time the old Regulations were unquestionably still in force. The Claimant
further asserts that the old Regulations set no term within which the relevant
contract offer had to be made to the player concerned.
7.
The Claimant further points out that in the FIFA circular no. 995, dated 23
September 2005, it is clearly stated that due to the transition from the former to
the revised edition of the Regulations, there should be no negative effect on
facts of a particular case that had already arisen before the entry into force of
the revised Regulations, as this would otherwise contravene the general legal
principle prohibiting retroactive effect.
8.
The Claimant further underlines that even if, contrary to its expectations, art. 6
par. 3 of Annex 4 of the revised Regulations should be considered applicable on
the case at stake and thus its letter dated 29 April 2005 would be deemed not to
have met the relevant deadline, it would still be entitled to training
compensation. The aforementioned article provides that the corresponding
amount of compensation is payable if the former club, i.e. the Claimant, can
justify that it is entitled to. In this regard, the Claimant has submitted a list of its
alleged expenditure on the player during the training period, i.e. from 4 July
2002 to 30 June 2005. According to this list, the Claimant had spent around EUR
520,000 on the player in salary, bonuses and social security contributions.
Commission in the amount of EUR 45,600 were allegedly also paid to the player’s
agent at the time of his transfer to the respondent as well as transfer
compensation amounting to EUR 150,000 to the player’s former club. Finally, the
Claimant also submitted a list of the general costs per year of its second team,
where the player in question mainly played. According to this list, EUR 87,707.64
per year and player is spent on the team’s operational costs.
9.
On 5 July 2006, the Respondent informed FIFA that in its opinion, the Claimant
had no right to receive training compensation. The Respondent further indicated
that, according to the information provided by the player at the time of his
transfer to the Respondent, the Claimant had not offered the player a new
contract within the 60-day term. The Respondent further indicated that the
Claimant did not raise any objections to his transfer to the Respondent at the
time of the issuance of the International Transfer Certificate for the player Z.
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)
10.
The Respondent further pointed out that it had only signed an employment
contract with the player because he was not contractually bound to any other
club. In this respect, the Respondent alleges that it was suffering financial
problems at that time and that it would not have been able to afford to pay
transfer compensation.
11.
The Respondent underlined that according to art. 26 par. 2 of the revised
Regulations, said regulations are applicable to cases brought after their entry
into force.
12.
In its second statement, the Claimant particularly confirmed its statements made
in its initial complaint. It also reiterated that even if the Respondent had been
under the impression that the player was a free agent, this would not affect the
Claimant’s entitlement to training compensation.
13.
In its second statement, the Respondent reiterated the position it had previously
adopted, i.e. that the new Regulations are applicable on the case at stake and
that the Claimant, having failed to offer the player a new contract within the 60day term, has no right to training compensation.
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 Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 26 April 2006,
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) 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. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the current version of the Regulations
for the Status and Transfer of Players (edition 2005). In accordance with art. 24
par. 1 in combination with art. 22 (d) of the Regulations 2005, the Dispute
Resolution Chamber shall adjudicate on disputes between two clubs belonging
to different Associations related to training compensation.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the training compensation claimed
by the Claimant for the training and education of the player Z.
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)
4.
Subsequently, the members of the Chamber analyzed 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 Regulations for the Status and Transfer of Players (edition 2005) in
the modified version in accordance with the FIFA circular no. 995, dated 23
September 2005. Furthermore, it acknowledged that the professional had been
registered for his new club on 23 August 2005. Equally the Chamber took note
that the claim of the Claimant was lodged at FIFA on 26 April 2006. In view of
the aforementioned, the Chamber concluded that the current FIFA Regulations
for the Status and Transfer of Players (edition 2005, hereafter: the Regulations)
are applicable on the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging the above-mentioned facts of the case as
well as all the documentation contained in the file. In particular, the Chamber
acknowledged that on the one hand, the Claimant requested training
compensation amounting to EUR 180’000 based on the number of years the
player spent training with the Claimant plus 5% interest accrued since 1 October
2005 and, on the other hand, the Respondent mainly invoked that the Claimant
is not entitled to receive any training compensation by means of not having
offered the player a contract of at least an equivalent value to his existing one
within the deadline of 60 days as provided for by art. 6 par. 3 of Annex 4 of the
Regulations (edition 2005).
6.
In this respect, the members of the Chamber acknowledged that the Claimant
offered, by means of its letter dated 29 April 2005, the player Z a better contract
than the existing one (in the sense of the value of the contract) in writing. The
Chamber took note that the Claimant provided a copy of the said letter as well
of its enclosures, containing a new contract offer for the season 2005/2006.
7.
In continuation, and taking into account that, as established above under point
II.4., the revised Regulations are applicable on the matter at stake, the members
of the Chamber referred to art. 6 of Annex 3 of the said Regulations, which
contains special provisions regarding players moving from one Association to
another inside the territory of the EU/EEA. According to par. 3 of the mentioned
provision, training compensation is only payable if the former club does offer the
player a contract of at least an equivalent value to the current contract in writing
via registered mail at least 60 days before the expiry of his current contract, or if
it can justify that it is entitled to training compensation.
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)
8.
At this point, the Chamber underlined that, considering the divergent
statements of the Claimant and the Respondent, the core issue between the
parties to the present dispute is therefore whether the Claimant had to satisfy
the formal criteria of art. 6 par. 3 of Annex 4 of the Regulations in order to be
entitled to training compensation, i.e. to offer the player an employment
contract of at least an equivalent value to the current contract and, in particular
that such offer has to be made at least 60 days before the expiry of the player’s
current contract.
9.
Subsequently, considering the fact that the player moved between two EU/EEA
countries, the Chamber took into consideration the Regulations 2001 (cf. art. 5
par. 5 of the Regulations governing the Application of the Regulations 2001 and
FIFA circular no. 769, dated 24 August 2001) and the Regulations 2005 (cf. art. 6
par. 3 of Annex 4 of the Regulations), in case a player moves within the territory
of the EU/EEA.
10.
In this context, the Chamber deemed it appropriate to emphasize that due to the
often experience difficulties by the relevant parties concerned to demonstrate
that they have proceeded to offer a player a new contract, the revised
Regulations (edition 2005) integrate some formal requirements in order to
facilitate the evidence that a contract offer was effectively made.
11.
In the present case, the Chamber emphasized, however, that at the time the
Claimant should have made the contractual offer to the player in question, the
formal requirements provided for by the Regulations (edition 2005) were not yet
in force. In fact, the player’s contract he signed with the Claimant on 4 July 2002
was valid until 30 June 2005. Thus, even by assuming that the Claimant would
have to comply with the term of 60 days as established by art. 6 par. 3 of Annex
4, the relevant decisive date for the proposal of a contract would unquestionably
had been before the entry into force of the Regulations (edition 2005), i.e. on 1
July 2005. To require that the Claimant should have had to comply with the
formal requirements of the Regulations (edition 2005) before their entry into
force would constitute a retroactive application of the said formal requirements.
12.
In view of the above, the deciding body concluded that these formal
requirements of 60 days do not apply on the case at hand. Therefore, the
entitlement of the Claimant to training compensation was not subject to the
formal time limit requirement established by art. 6 par. 3 of Annex 4 of the
Regulations.
13.
Furthermore, the members of the Chamber observed the argument raised by the
Respondent according to which, at the time of the player’s transfer from the
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)
Claimant to the Respondent, the Claimant did not make any objections against
such a transfer of the player. Moreover, the Respondent pointed out that it only
signed a contract with the player in question because the latter was not
contractually bound to any other club.
14.
To this regard, the Chamber stressed, however, that such a possible and, by the
way not evidenced, renouncement of the Claimant to claim for transfer
compensation from the Respondent does not affect or include the Claimant’s
entitlement to receive training compensation in accordance with the relevant
Regulations (it is us who emphasize). In this connection, the Chamber underlined
that the right of a club to claim transfer compensation from the player’s new
club is clearly to be distinguished from a club’s entitlement to training
compensation for the contribution of training and development it provided to a
specific player.
15.
The Dispute Resolution Chamber then referred to art. 20 and art. 2 of Annex 4 of
the Regulations and emphasized that, as a general rule, training compensation is
payable up to the age of 23. In this respect, it was noted that at the time of his
move to the Respondent, the player Z was 21 years old.
16.
As a result of all the above, and after having duly considered all the
documentation provided by both parties as well as their respective positions, the
members unanimously concluded that the Claimant offered a new employment
contract to the relevant player and is entitled to receive training compensation
for the training and education of the player Z.
17.
After having established the Respondent’s obligation to compensate the
Claimant for the training of the player in question, the members went on to
deliberate on the proper calculation of this compensation.
18.
In accordance with 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 23 birthday.
19.
In this respect, the Chamber acknowledged that, according to the relevant player
passport remitted by the XX Football Association, the player Z, born on 8
September 1983, was registered with the Claimant as a Professional from 6 July
2002 until 21 August 2005.
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)
20.
In light of all of the above, the Chamber decided that the Claimant is entitled to
training compensation for the period of 3 seasons (season 2002/2003, season
2003/2004 and season 2004/2005).
21.
The Chamber amplified that the player was moving between two Associations
inside the territory of the EU/EEA. Moreover, the Chamber took note of the fact
that the player was moving from a higher category club (the Claimant classified
in category 1) to a lower category club (the Respondent classified in category 2).
22.
Taking into account the above and in accordance with art. 6 lit. par. 1 lit. b) of
Annex 4 of the Regulations, as a general rule, in order to calculate training
compensation due to the player’s former club, i.e. the Claimant, the calculation
shall be based on the training costs of the lower category club. The established
lower amount is, according to the general rule of art. 5 par. 2 of Annex 4 of the
Regulations, to be multiplied by the number of years of training by the player’s
training club.
23.
According to the FIFA circular no. 959, dated 16 March 2005, which regards the
categorisation of clubs, the Claimant belongs to category 1, thus the
corresponding indicative amount for a first category club in Europe is EUR 90,000
and the Respondent belongs to category 2, for which the corresponding
indicated amount is EUR 60,000.
24.
Consequently, as mentioned above, the relevant amount of training costs of the
lower category is EUR 60,000, an amount which must be multiplied by the
number of years the player spent training with the Claimant , i.e. 3 seasons as
established under point II.20.
25.
Based on all the foregoing considerations, the Chamber concluded that the
Respondent has to pay the amount of EUR 180,000 to the Claimant as training
compensation for the training and education of the player Z.
26.
Consequently, in light of the fact that this payment is due since the thirty-first
day after the registration of the player Z with the Association of his new club, i.e.
23 August 2005, and considering that the Claimant asks application of interest as
from 1 October 2005, the Chamber established that a default interest payment
of 5% p.a. as from 1 October 2005 must be applied on the due amount.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, X, is accepted.
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)
2.
The Respondent, Y, shall pay the amount of EUR 180,000 to the Claimant, X,
within 30 days following the date of the notification of the present decision.
3.
On the aforementioned amount, a default interest payment of 5% p.a. as from 1
October 2005 until the date of the payment is applied.
4.
In the event that the above-mentioned amount is not paid within the stated
deadline, the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
5.
The Claimant, X, is instructed to inform the Respondent, Y, directly and
immediately of the account number to which the remittance is to be made and
to notify the Dispute Resolution Chamber of every payment received.
6.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives
issued by the CAS, copy of which we enclose hereto. Within another 10 days
following the expiry of the time limit for the filing of the statement of appeal,
the appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives). The full address and
contact numbers of the CAS are the following:
Château de Béthusy
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
General Secretary
Encl.
CAS directives
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Training Compensation for the player Z
(Club X, XX / Clube Y, YY)