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 (Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
on the claim presented by the club
P,
as “Claimant”
against the club
R,
as “Respondent”
regarding a dispute for training compensation in connection with
the transfer of the player M.
I.
Facts of the case
1.
The I Football Association confirmed that the player, M, born on 6 March 1985,
was registered with its affiliate, P FC (hereafter: the Claimant), as from 31 August
2005 until 30 May 2006 and as from 7 August 2006 until 4 August 2007 as a
professional player.
2.
The football seasons 2005-06 and 2006-07 in N lasted from 17 September 2005 to
29 April 2006 and from 23 September 2006 until 28 April 2007 respectively.
3.
On 6 August 2007, the I Football Association issued the International Transfer
Certificate (ITC) to the B Societies of Football-Association for the N player.
4.
According to the player passport issued by the B Societies of Football-Association
on 31 October 2008, the player was registered with its affiliate, A FC (hereafter:
the Respondent), as a professional player from 27 July 2007 until 31 January 2008.
5.
The I Football Association confirmed that the Claimant is a category III club.
6.
The B Societies of Football-Association confirmed that the Respondent belonged
to the category III (indicative amount of EUR 30,000 per year) during the season
when the player was registered with it, i.e. 2007/2008.
7.
On 28 August 2007, the I Football Association contacted FIFA forwarding the claim
of the Claimant, dated 15 August 2007, asking for its proportion of training
compensation from the Respondent. In particular, the Claimant is requesting
training compensation for the two seasons the player spent with the Claimant.
8.
On 11 December 2007, the Respondent replied that it had no intention of paying
any compensation towards the Claimant for the said player, and that any claim by
the Claimant is wholly unfounded. In particular, the Respondent emphasised that
the player was born on 6 March 1985, and that, at the moment he signed for the
Respondent, he was therefore 22 years old. Furthermore, the Respondent asserted
that, according to the player passport issued by the I Football Association, the
player was registered with the Claimant as having professional status during the
season 2006/2007, and that, even in the season before, i.e. 2005/2006, the player
was already under professional contract with the Claimant. Finally, the
Respondent also stressed that the Claimant failed to clarify the grounds or the
rules on which its claim would be based, and that it does not even mention the
amount of its false claim.
9.
The Respondent evaluated that the player has beneficiated of training and
education with the club, L FC, where he was registered from 2000 until 2005, that
he was under contract with the Claimant from 31 August 2005 until 30 May 2006
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and from 7 August 2006 until 4 August 2008, and that the Claimant did not
propose a new contract to the player. Consequently, the training period of the
player was already terminated before he signed a contract with the Claimant.
Therefore, the Claimant was not entitled to receive any training compensation,
since it did not offer a new contract to the player.
10.
On 8 February 2008, the I Football Association reacted on behalf of the Claimant
and provided FIFA with the following comments:
a.
under article 20 of the FIFA Regulations on the Status and Transfer of
Players, training and development compensation is claimable up until the
player’s 23rd birthday, which had not occurred on 25 July 2007 when the
player signed a professional contract with the Respondent;
b.
the player was registered as a professional with both the Claimant and the
Respondent, however again article 20 affords training and development
compensation “each time a professional is transferred until the end of the
season of his 23rd birthday”.
11.
On 1 July 2008, the Claimant asserted that it made numerous attempts from
December 2006 until August 2007 to extend the player’s contract with a new and
improved offer, but that these offers were rejected by the player and therefore
not formalised.
12.
On 31 October 2008, the B Societies of Football-Association emphasised the
contents of article 6 paragraph 3 of Annexe 4 of the FIFA Regulations on the
Status and Transfer of Players, according to which “the former club must offer the
player a contract in writing via registered post at least 60 days before the expiry of
his current contract. Such an offer shall furthermore be at least of an equivalent
value to the current”. Furthermore, the B Societies of Football-Association
asserted that the Claimant did not bring any proof of this alleged fact, and that
the latter should provide it with a copy of this agreement offer as well as of the
proof of its sending via registered post.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 28 August 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005; hereinafter: the Procedural Rules) are applicable to the matter at
hand (cf. article 18 paragraphs 2 and 3 of the Procedural Rules and article 21
paragraphs 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber, edition 2008).
2.
Subsequently, the members of the Chamber referred to article 3 paragraph 1 of
the Procedural Rules and confirmed that in accordance with article 24 paragraph 1
and article 22 lit. d) of the Regulations on the Status and Transfer of Players
(edition 2008) the Dispute Resolution Chamber is competent to decide on the
present litigation with an international dimension concerning the training
compensation claimed by the Claimant for the training and education of the
player M.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 27 July 2007, the Chamber analysed which regulations should be
applicable as to the substance of the matter. In this respect, it confirmed that in
accordance with article 26 paragraphs 1 and 2 of the Regulations on the Status
and Transfer of Players (edition 2008), and considering that the present claim was
lodged on 28 August 2007, the previous version of the regulations (edition 2005;
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. The members
of the Chamber started by acknowledging the facts of the case as well as the
documentation contained in the file.
5.
Furthermore, the Chamber stated that, as established in article 1 paragraph 1 of
Annex 4 in combination with article 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 a professional is transferred between clubs of two different
Associations before the end of the season of the player’s 23rd birthday.
6.
The Chamber recalled that the player was born on 6 March 1985 and registered
with the Claimant as from 31 August 2005 until 30 May 2006 and as from
7 August 2006 until 4 August 2007 as a professional player.
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7.
Moreover, the Chamber referred in particular also to article 6 of Annex 4 of the
Regulations, which contains special provisions for players moving from one
Association to another inside the territory of the European Union (EU).
8.
In view of the above, the Chamber stated that, first and foremost, it had to verify
whether article 6 paragraph 3 sent. 1 of Annex 4 of the Regulations applies in the
present case as “lex specialis”, and if so, to determine if the Claimant had
complied with the said provision in order to be fundamentally entitled to training
compensation.
9.
As far as the applicability of article 6 paragraph 3 of Annex 4 of the Regulations is
concerned, the Chamber first of all stated that, as the player moved from N to B,
i.e. from one Association to another inside the territory of the EU, on 6 August
2007, article 6 paragraph 3 of Annex 4 of the Regulations is applicable. This fact
does not appear to be contested by any of the parties. Therefore, the Chamber
concluded that the aforementioned provision applies in the case at hand as “lex
specialis”.
10.
On account of the aforesaid and taking into consideration the position put
forward by the Respondent, the Chamber analysed if the Claimant had complied
with the prerequisites of article 6 paragraph 3 of Annex 4 of the Regulations in
order to be entitled to training compensation.
11.
Equally, the Chamber recalled that the Respondent contests the Claimant’s
entitlement to receive any training compensation arguing, inter alia, that the
Claimant did not offer the player a contract in accordance with article 6
paragraph 3 of Annex 4 of the Regulations.
12.
In this sense and without detailing the other prerequisites required, the Chamber
emphasised that in accordance with article 6 paragraph 3 sent. 1 of Annex 4 of the
Regulations, if the former club does not offer the player a contract, no training
compensation is payable unless the former club can justify that it is entitled to
such compensation.
13.
To that regard, the Chamber pointed out that the Claimant claims to have offered
the player a contract, asserting that it made numerous attempts from
December 2006 until August 2007 to extend the player’s contract with a new and
improved offer, but that these offers were rejected by the player and therefore
not formalised.
14.
In this respect, the Chamber insisted on the fact that the Claimant did not provide
FIFA with any proof that it had offered a new employment contract to the player.
In this regard, the Chamber was eager to underline that, in accordance with the
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principle of burden of proof and also to article 12 paragraph 3 of the Procedural
Rules, it would have fallen upon the Claimant to prove that it had offered a new
employment contract to the player.
15.
On account of the aforesaid, the members of the Chamber concluded that the
Claimant did not offer a new employment contract to the player in accordance
with article 6 paragraph 3 of Annex 4 of the Regulations.
16.
Consequently, the Chamber concluded that the condition of offering the player a
new employment contract, which is set in article 6 paragraph 3 of Annex 4 of the
Regulations, is not fulfilled. Moreover, the Chamber concurred that the Claimant
has failed to justify that it would be entitled to training compensation, even if it
had not offer to the player a new employment contract.
17.
Following this argumentation, the Chamber concluded that the Claimant is not
entitled to receive training compensation in connection with the move of the
player from the Claimant to the Respondent.
18.
Besides that and for the sake of good order, the Chamber also recalled that the
Respondent had stated that the claim of the Claimant was wholly unfounded,
because the player was born on 6 March 1985, and, at the moment he signed for
the Respondent, he was therefore 22 years old.
19.
To that regard, the Chamber reminded once again the contents of article 1
paragraph 1 of Annex 4 in combination with article 2 of Annex 4 of the
Regulations (cf. point II.5.), according to which training compensation is payable,
as a general rule, for training incurred between the ages of 12 and 21 when a
professional is transferred between clubs of two different Associations before the
end of the season of the player’s 23rd birthday.
20.
In this respect, the Chamber maintained that the argument of the Respondent,
according to which no training compensation is due when a professional is
transferred after his 21st birthday, is not valid in this case.
21.
On account of all the foregoing considerations, the Chamber decided that the
Claimant is not entitled to receive training compensation from the Respondent for
the training and education of the player M, and that the claim of the Claimant is
therefore rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, P FC, is rejected.
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*****
Note relating to the motivated decision (legal remedy):
According to article 63 paragraph 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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