Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 April 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (The Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on a matter between the club
C,
as Claimant
and the
M,
as Respondent
regarding training compensation related to
the transfer of the player B
I.
Facts of the case
1.
According to a written statement of the P Football Association (hereinafter: the
PFA), the player B (hereinafter: the player), born on 4 February 1986, was registered
for the P club, C (hereinafter: the Claimant), from 6 July 2001 to 17 October 2005 as
an amateur.
2.
The sporting season in P starts on 1 January and ends on 31 December each year.
3.
Equally, the P Football Association informed FIFA that the player was transferred
from the Claimant to M (hereinafter: the Respondent) on 17 October 2005.
4.
On 1 December 2005, the Claimant claimed training compensation in the amount of
USD 12,000. The Claimant maintained, in this respect, that the player signed his first
professional contract with a club pertaining to the Respondent.
5.
On 27 December 2005, the Respondent, via the U Soccer Federation (hereinafter:
the USF), informed FIFA that it was unable to reach a contractual agreement with
the player. It further maintained that when the player’s International Transfer
Certificate (hereinafter: the ITC) was requested, the player and the Respondent
were hopeful that a contract could have been finalized, but that, eventually, they
could not agree. Finally, the Respondent argued that the player was not under
contract, thus free to sign an employment contract with another club, and that the
USF should issue the player’s ITC, if requested.
6.
In reply hereto, the Claimant asserted, on 30 January 2006, that the Respondent
consisted of professional clubs only. Consequently, by requesting the ITC for the
player, it was obvious that it registered the player in order for him to play as a
professional in a professional club. Furthermore, the Claimant argued that the
Respondent could not hold that it requested the relevant ITC for the player without
having concluded any employment contract with the player, since it would
constitute a proceeding contrary to the Regulations for the Status and Transfer of
Players, edition 2005, in particular its art. 2 of the Annex 3. The Claimant was
convinced that without presenting such employment contract, the Respondent was
not in a position and should not have requested the relevant ITC for the player. On
account of the foregoing, and by requesting the relevant ITC, the Claimant
concluded that it must be presumed that the employment contract was already
signed. Therefore, the payment of training compensation was due.
7.
Upon FIFA’s request, the USF presented a copy of the ITC for the player which was
issued on 17 October 2005 in favour of the USF. The ITC indicated the Claimant as
the last club of the player in P.
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8.
On 10 April 2006, the USF informed FIFA that the player in question was currently
not registered for any club and was never registered for any amateur or
professional club at the USF. Thus, the USF and the Respondent confirmed that the
Respondent never entered into a contractual agreement with the player.
Furthermore, it was unaware of the current whereabouts of the player. The USF
added that the ITC was requested on the player’s behest, as it was believed that an
employment contract could be concluded with the Respondent at that time. The
USF and the Respondent rejected the Claimant’s claim, since no employment
contract could be finalized.
9.
On 20 March 2007, the Claimant presented a further communication reiterating its
position.
10. Upon request, the USF informed FIFA that the player’s ITC was sent to P on 13 April
2007.
11. On 9 April 2008, FIFA invited the USF to explain the reason why it requested the
relevant ITC without being in possession of any signed employment contract
between the player and the Respondent, in particular with regard to art. 2 par. 1 of
Annex 3 of the Regulations for the Status and Transfer of Players, edition 2005.
However, the USF did not react.
12. On 23 April 2008, the Claimant adhered to its position and added that, if the USF
requested the ITC without verifying the existence of an employment contract
between the player and one of its affiliates, this negligence should not affect its
entitlement to training compensation, since the player was registered in a
professional championship for the first time. Furthermore, the Claimant modified its
complaint and claimed at this stage an amount of USD 161,000 as training
compensation.
13. On 9 March 2009, the USF adhered to its previous position and added that it
committed an administrative mistake, when it requested the issuance of the
relevant ITC without having an employment contract signed between the player
and the Respondent. It explained once more that the player had never been
registered for any of its affiliated clubs, that he had never concluded an
employment contract with the Respondent, that he had never played for any team
of the Respondent and that the relevant ITC was sent back to P.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber first referred to art. 21
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
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Committee and the Dispute Resolution Chamber (edition 2008). The present
matter was submitted to FIFA on 1 December 2005, thus before the
aforementioned Rules entered into force on 1 July 2008. Therefore, the Dispute
Resolution Chamber referred to art. 18 par. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(DRC) (hereinafter: Procedural Rules; edition 2005) and concluded that the 2005
edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2008). In accordance with art. 24 par. 1 in connection
with art. 22 lit. d) of the aforementioned Regulations, the Dispute Resolution
Chamber shall adjudicate on disputes relating to training compensation.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 1 December
2005 and that the player was transferred to the Respondent on 17 October 2005.
In view of the aforementioned, the Dispute Resolution Chamber concluded that
the 2005 edition of the Regulations for the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
the members of the Chamber started by acknowledging the fact that the ITC of
the player was issued by the P Football Association in favour of the USF on 17
October 2005.
5.
In continuation, the members of the Dispute Resolution Chamber noted that the
player and the Respondent had, as a matter of fact, not signed any employment
contract when the relevant ITC was issued upon request of the USF in October
2005. Indeed, at that time, the Respondent and the player only hoped to finalize a
contractual agreement. However, they never succeeded to reach such an
agreement. Thus, the Respondent and the player never concluded any
employment agreement. Furthermore, the Chamber observed that, in view of the
foregoing, the player had never been registered for one of the clubs pertaining to
the Respondent and affiliated to the USF. As a consequence, the player never
joined one of these clubs and never took part in matches of one of the USF’s
affiliates in the MLS.
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6.
Subsequently, the Chamber pointed out that the Claimant claimed the payment of
training compensation for the reason that the player had allegedly signed his first
professional contract with the Respondent. Thus, the Dispute Resolution Chamber
referred to art. 2 par. 1 lit. i) of Annex 4 of the Regulations, which stipulates that
training compensation is due when a player is registered for the first time as a
professional. The Chamber also pointed out that according to art. 3 par. 1 of
Annex 4 of the Regulations, “When a player is registering as a Professional for the
first time, the club for which the player is being registered is responsible for
paying Training Compensation within 30 days of registration to every club for
which the player was registered […] and that has contributed to his training
starting from the Season in which he had his 12th birthday […]”
7.
On account of the aforementioned provisions, the members of the Dispute
Resolution Chamber were eager to emphasize that training compensation could
only be due if the player was effectively registered at the new association.
8.
In casu, the Dispute Resolution Chamber considered that it was patent that the
parties to the dispute had not signed any employment contract and that the
player had never been registered neither for the Respondent directly nor for any
club belonging to the latter and affiliated to the USF. The Chamber recalled, in
this respect, the application of the principle of the burden of proof, provided for
in art. 12 par. 3 of the Procedural Rules, and had no other alternative but to
conclude that the Claimant failed to submit the proof that the player and the
Respondent had concluded an employment contract and that the player had been
effectively registered at the USF.
9.
As a consequence, the Chamber concluded that the Respondent could not be held
liable for paying training compensation to the Claimant in accordance with art. 2
par. 1 lit. i) and art. 3 par. 1 of Annex 4 of the Regulations, since the necessary
condition to be held responsible in that respect, i.e. the registration of the player,
is not fulfilled.
10.
For all these reasons, the Dispute Resolution Chamber rejected the claim lodged
by the Claimant.
11.
Finally, the Dispute Resolution Chamber deemed it appropriate to make a remark,
without consequences whatsoever for the substance of the case, with regard to
the request for the ITC of the player made by the USF. In this respect, the Chamber
referred to art. 2 par. 1 of Annex 3 of the Regulations, which stipulates that all
applications to register a professional must be submitted by the new club to the
new association, along with a copy of the employment contract signed by and
between the player and the club.
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12.
In the present case, the Chamber observed that the USF requested the issuance of
the ITC for the player, even though the Respondent did not provide it with a valid
employment contract. Therefore, the members of the Chamber were eager to
enlighten the fact that the USF did not comply with the provisions related to the
administrative procedure governing the transfer of players between associations
and should not have requested the relevant ITC for the player in the absence of a
valid employment contract.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, C, is rejected.
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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
Enclosed: CAS directives
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