Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Brendan Schwab (Australia), member
Alejandro Marón (Argentina), member
Theodoros Giannikos (Greece), member
on a claim presented by the club
L,
as Claimant
against the club
P,
as Respondent
regarding training compensation related to
the transfer of the player A
I.
Facts of the case
1.
The X Football Association (XFA) confirmed that the player, A (hereinafter: the
player), born on 17 November 1985, was registered for its affiliated club, L
(hereinafter: the Claimant), as from 19 July 2002 until 24 January 2006 and as from
27 January until 6 July 2007 first as an amateur and as from 2005 as a professional.
The XFA clarified that the player had been transferred on a loan basis from the
Claimant to the club, U as from 27 January 2006 until 2 January 2007.
2.
The sporting seasons in the XFA ran from January until December until the year of
2004. Since 2005, the sporting season in the XFA lasts from 1 August until 31 July
of the following year.
3.
The player had been transferred on a loan basis from the Claimant to P
(hereinafter: the Respondent) for a period comprehended from 1 July 2007 until
31 June 2008. According to the relevant transfer contract signed between the
parties to the dispute on 25 June 2007, the Respondent paid a loan fee of EUR
300’000, due seven days following the receipt of the International Transfer
Certificate (ITC; art. 2 of the transfer contract). The transfer agreement also
provided for an option for a definitive transfer of the player as well as “50% of
the economical rights” for an amount of EUR 1’500’000.
4.
According to the Football Federation of Y (FFY), the player was registered for the
Respondent as a professional player on 17 July 2007 and belonged to the category
II (indicative amount of EUR 60’000 within UEFA).
5.
On 2 February 2008, the Claimant lodged a complaint before FIFA against the
Respondent asking for its proportion of training compensation in connection with
the transfer of the player from the Claimant to the Respondent without
specifying, at this time, the nature of the transfer at the basis of the present
dispute. In particular, the Claimant requested the amount of EUR 210’000, plus 5%
of interest.
6.
On 10 February 2009, the Claimant informed FIFA that the player had been
transferred on a loan basis from it to the Respondent and provided FIFA with a
copy of the relevant transfer agreement. It further added that according to
general principles of law, allegedly in force in the country S, Y and X, any
renunciation to a right shall be made expressly and, consequently, cannot be
simply presumed. Thus, in the Claimant’s opinion, it cannot be assumed that it had
renounced to its right to receive training compensation based on the fact that it
had received another financial compensation, i.e. the loan fee. Moreover, the
Claimant underlined that the relevant transfer agreement provided for a loan fee
(EUR 300,000; art. 2) and an option for a definitive transfer (for an amount of EUR
1,500,000; art. 3) stipulating clearly different amounts. Therefore, the Claimant
2
stated that it could not be deduced from the pertinent transfer agreement that it
had agreed to renounce to its right to receive training compensation.
7.
On 7 April 2009, the Respondent rejected the claim lodged by the Claimant and
maintained that the loan fee stipulated in the transfer agreement was meant to
include both the loan fee and training compensation. In this respect, the
Respondent also remitted to FIFA a copy of a correspondence dated 22 June 2007
addressed by the Claimant, by means of which the latter accepted expressly the
player’s transfer and the conditions related thereto (cf. point no. I/3 and I/7).
8.
On 22 and 23 April 2009, the Claimant adhered to its position and reiterated that
it was not possible to deduce from the contents of the transfer agreement that the
parties to the dispute agreed to include the training compensation in the loan fee
or in the option for a definitive transfer of the player. In continuation, according
to the Claimant, in case it would have been the real intention of the parties to
include training compensation in the loan fee, it would have been expressly
mentioned in the transfer agreement.
9.
The Respondent did not submit any further comments despite having being
invited to do so by FIFA.
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
Committee and the Dispute Resolution Chamber (edition 2008). The present
matter was submitted to FIFA on 2 February 2008, 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 2009). In accordance with art. 24 par. 1 in connection
with art. 22 lit. d) of the Regulations on the Status and Transfer of Players, the
Dispute Resolution Chamber is competent to decide on the present litigation
relating to training compensation between clubs belonging to different
associations.
3
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 (editions 2009 and
2008) and, on the other hand, to the fact that the present claim was lodged on 2
February 2008 and that the player was registered for the Respondent on 17 July
2007. In view of the aforementioned, the Dispute Resolution Chamber concluded
that the 2005 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance (cf. art. 26 par. 1 and 2 of the Regulations).
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
5.
In doing so, the 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.
6.
In this respect, the Chamber acknowledged that, according to the information and
documentation provided by the Claimant, the player had been transferred on a
loan basis from the Claimant to the Respondent for an amount of EUR 300’000.
7.
Equally, the Chamber noted that, following the Claimant’s argumentation,
according to which training compensation was due on the basis of the player’s
transfer on a loan basis from it to the Respondent. Furthermore, the Chamber
observed that the Claimant asserted that, based on the fact that it had not
expressly renounced to its right to receive training compensation in the pertinent
transfer agreement, it cannot be presumed that it had renounced to such a right.
8.
On the other hand, the DRC went on to recall the Respondent’s opinion, which
contested the Claimant’s entitlement to receive any training compensation on
grounds that the loan fee stipulated in the transfer agreement concluded
between the parties to the dispute was meant to include both the loan fee and
training compensation.
9.
With regard to the foregoing, the Chamber deemed it appropriate to recall the
principles related to training compensation in connection with loans. In this
respect, in virtue of the principle jura novit curia, the DRC emphasised that
according to art. 10 par. 1 of the Regulations, any loan is subject to the same rules
as apply to the transfer of players, including the provisions on training
compensation and the solidarity mechanism. In this respect, the members of the
Chamber stated that on the basis of the Regulations a club is entitled to training
4
compensation, if the prerequisites of art. 20 of the Regulations as well as the
preconditions set out in Annex 4 of the said Regulations are fulfilled, for the
period during which the player has previously been registered with that club,
which has contributed to the player’s training incurred as from the season of his
12th birthday up to the season of his 21st birthday. Furthermore, and referring to
its established jurisprudence pertaining to the entitlement to training
compensation in relation to loans, the Chamber pointed out that, in principle, in
accordance with the provisions of art. 10 par. 1 of the Regulations, a training club
was equally entitled to training compensation for the relevant period of time of
training if the player was registered with the relevant club as a consequence of
him being loaned from another club.
10.
However, the members of the Chamber were eager to point out that the analogy
established in art. 10 par. 1 of the Regulations could not be extended to the case
in which players were loaned to other clubs and thus are not being definitively
transferred to a new club. Thus, the Chamber declared that the obligation to pay
training compensation solely arises in case a player is definitively transferred from
one club to another, but not when he is temporarily transferred to another club
while still being contractually bound to his club of origin (yet, with the effects of
the relevant contract being temporarily suspended), such as a loan. In other
words, the club which transferred the player on a loan basis to another club is
entitled to training compensation from the club that ultimately engages the
player on a definitive basis for the entire period of time during which it effectively
trained the player, however, excluding the period of time of the loan(s). The
afore-described approach also reflects another general principle, according to
which a training club will only profit once from the training compensation during
the career of a player, if at all.
11.
For the sake of completeness, the Chamber enlightened the fact that the objective
of art. 10 par. 1 in fine of the Regulations is rather to ensure that training clubs
which register a player on a loan basis also benefit from the training
compensation (and solidarity mechanism), provided that the relevant prerequisites
established in the pertinent provisions are fulfilled. Such aim is in line with the
long-standing jurisprudence of the DRC, according to which all clubs which have
actually contributed to the training of a player as from the season of his 12th
birthday are, in principle, entitled to training compensation for the time span that
the player was effectively registered for them.
12.
Moreover, the Chamber deemed it appropriate to recall that in connection with a
loan a loan agreement is normally concluded between the club of origin and the
club the player is joining on loan. The financial terms contained therein do not
aim at compensating the training efforts of the training club, but are meant to
indemnify the club of origin for renouncing to the services of a player for the
period of the loan despite having a valid contract with the player. Yet, in case of
5
loans of young players, regularly no such fee is asked, precisely for the fact that
the loan is seen as part of the education process of the player.
13.
Having stated the above, the DRC emphasised that the foregoing considerations
have already at least implicitly been confirmed and applied by the CAS, for
instance in the appeal arbitration procedure CAS XXXX/X/XXX club V v/ club M &
R. In this regard, it is worth mentioning that, although a previous version of the
Regulations for the Status and Transfer of Players was applicable to that matter,
the said Regulations did not change in the meantime with regard to the aspects in
question.
14.
Finally, the Chamber was eager to stress that it could not have been the intention
of the legislator of the relevant regulatory provision (art. 10 par. 1 of the
Regulations) to predetermine parts of a loan fee by establishing the obligation to
pay training compensation to former training clubs on the occasion of a loan and
thus potentially depriving the loan of its essential flexibility.
15.
In summary, the deciding authority clarified that a club that contributed to the
training of a player for a certain period of time sometime between the seasons of
the player’s 12th and 21st birthday, due to the player’s registration with the
relevant club on a loan basis, is entitled to training compensation for the
pertinent period. However, the relevant entitlement can only be claimed towards
a new club that requires the services of a player on a definitive and permanent
basis subject to the prerequisites established in art. 20 and Annex 4 of the
Regulations.
16.
On account of all of the above, in particular bearing in mind that the player had
been transferred from the Claimant to the Respondent, no training compensation
is due to the former club. Therefore, the Chamber decided to reject the claim of
the Claimant.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, L, is rejected.
*****
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
6
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
7