Training Compensation
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
Joaquim Evangelista (Portugal), member
Johan Van Gaalen (South Africa), member
on the claim presented by the club
L,
as Claimant
against the club
H,
as Respondent
regarding a training compensation dispute
related to the transfer of the player B
I.
Facts of the case
1.
The Football Federation O (hereinafter: the FFO) confirmed that the player, B
(hereinafter: the player), born on 4 March 1989, was registered with its affiliated
club L (hereinafter: the Claimant) as from 31 January 2005 until 31 January 2007 as
an amateur.
2.
The sporting season in country A runs from 1 July until 30 June of the following
year.
3.
On 1 February 2007, the player was registered with the club, H (hereinafter: the
Respondent), as a professional.
4.
The X Football Association (hereinafter: the XFA) confirmed that the Respondent
belonged to the category II (indicative amount of EUR 60,000 per year within
UEFA) during the season 2006/2007.
5.
The FFO confirmed that the Claimant belonged to the category II (indicative
amount of EUR 60,000 per year within UEFA) during the season 2004/2005 until
the season 2006/2007.
6.
On 3 October 2007, the Claimant contacted FIFA claiming for its proportion of
training compensation in connection with the transfer of the player from the
Claimant to the Respondent.
7.
In particular, the Claimant is requesting the amount of EUR 95,000 plus 5%
interest p.a. to be applied on the said amount as of 30 days after the player’s
registration with the Respondent.
8.
In its reply, the Respondent informed FIFA that it had signed an “Agency
Agreement” (hereinafter: the agreement) with the player’s agent P, also being
the father of the player. According to clause 2.2 of the said agreement “The
Agent guarantees that should the club decide to conclude a contract of
employment with the player, in such case the club’s expenses will not exceed
20,000 including the agency fee, training compensations and solidarity fees to
other clubs, taxes and any other payment to third parties (if applicable). In case
any third parties would have a right to demand any such payments. The agent
hereby undertakes to pay any such sums on behalf of the club […]”.
9.
Furthermore, the Respondent stated that it fulfilled its obligation and paid the
amount of 20,000 to the player’s agent and therefore, according to the
Respondent, it is the player’s agent’s obligation to pay the training
compensation to the Claimant.
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10.
Moreover, the Respondent explained that the player’s agent asserted that the
player was a free agent, which appears to be incorrect and misleading. The
amount paid to the player’s agent constituted an unjust enrichment of the
player’s agent and he failed to act in good faith.
11.
Upon specific request of FIFA, with regard to the question as to whether it offered
the player a contract in writing via registered mail at least 60 days before the
expiry of the aforementioned player’s contract, the Claimant held firstly that,
according to the existing trainee contract of the player with the Claimant valid as
from 1 July 2004 until 30 June 2008, the player would receive a financial
remuneration once he is called-up for an official match of the first team. The
Claimant further would also pay boarding school fees as well as a monthly
remuneration of EUR 150 to the player.
12.
Furthermore, the Claimant explained that the father of the player terminated the
trainee contract between it and the player ex parte in December 2005 allegedly
due to the player’s problems at school. Furthermore, the Claimant argued that it
tried to keep the player, but remained unsuccessful. Moreover, the Claimant
found out beginning of 2006, that the player was training with the Respondent. In
addition, the Claimant presented a copy of a letter dated 23 February 2006 from
the Respondent, in which the latter offered to pay EUR 12,786 as compensation if
the Claimant waives any future claims.
13.
The Claimant rejected the said offer, since it did not want to waive the right to
claim training compensation. Therefore, according to the Claimant, it would have
been useless to offer the player a professional contract 60 days before the expiry
of the trainee contract, i.e. 30 June 2008, as the player had an employment
contract with the Respondent at that time.
14.
Furthermore, the Claimant pointed out that on 30 January 2007 it received a letter
from the Respondent, in which the latter was willing to pay EUR 32,786 plus 10%
of any future transfer which, however, was never paid. The Claimant provided
FIFA with a copy of the said letter.
15.
In the alternative, and in case the Dispute Resolution Chamber would deem that it
would not be entitled to receive training compensation since it did not offer the
player a contract, the Claimant deemed that the Respondent should pay the
amount of EUR 32,786 plus 10% of any future transfer as offered on
30 January 2007 plus default interest.
16.
Despite having been invited to do so, the Respondent did not provide FIFA with
any further comments.
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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, 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 3 October 2007, 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 (edition 2005,
hereinafter: Procedural Rules) 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 and confirmed that in accordance with art. 24 par. 1 and art. 22
lit. d) of the Regulations on the Status and Transfer of Players (editions 2008 and
2009) the Dispute Resolution Chamber is competent to decide on the present
litigation relating to training compensation between clubs belonging to different
associations.
3.
Furthermore, and taking into consideration that the player was registered with
the Respondent on 1 February 2007 and that the present claim was lodged on
3 October 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 art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2009 and 2008), 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.
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 that, the player, born on 4 March 1989,
was registered for the Claimant as from 31 January 2005 until 31 January 2007 as
an amateur and that the sporting season in Austria lasts from 1 July to 30 June of
the following year.
5.
In continuation, 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
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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.
The Chamber recalled that the player was, according to the player passport,
registered as from 31 January 2005 until 31 January 2007 as an amateur with the
Claimant.
7.
The Chamber emphasized that art. 6 of Annex 4 of the Regulations contains
special provisions regarding players moving from one Association to another
inside the territory of the European Union (EU)/European Economic Area (EEA).
Having stated this, the Chamber turned its attention in particular to the third
paragraph of the said provision, which stipulates inter alia that if the former club
does not offer the player a contract, no training compensation is payable unless
the former club can justify that is entitled to such compensation.
8.
In this respect, the Chamber stated that, first and foremost, it had to verify
whether art. 6 par. 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 art. 6 par. 3 of Annex 4 of the Regulations is
concerned, the Chamber first of all stated that, as the player moved from country
A to country S in January 2007, i.e. between two countries, art. 6 par. 3 of Annex 4
of the Regulations is applicable.
10.
On account of the aforesaid, the Chamber analysed if the Claimant had complied
with the prerequisites of art. 6 par. 3 of Annex 4 of the Regulations in order to be
entitled to training compensation.
11.
The Chamber firstly noted that the Claimant had concluded a trainee contract
valid until 30 June 2008, by means of which the player was entitled to the
following remuneration and benefits: pocket money in the amount of EUR 150
per month and the boarding school fees.
12.
Furthermore, the members of the Chamber acknowledged that the player’s father
and agent terminated the trainee contract concluded between the Claimant and
the player ex parte in December 2005. Furthermore, the Chamber acknowledged
that the Claimant unsuccessfully tried to keep the player with its club.
13.
In that regard, the Chamber considered that, in line with the CAS award
CAS XXXX/X/XXXX, the Claimant showed bona fide and genuine interest in the
player’s services, by offering such a “trainee contract” valid until 30 June 2008 and
providing for substantial remuneration and benefits, and therefore justified its
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entitlement to training compensation in accordance with art. 6 par. 3 1st set of
Annex 4 of the Regulations.
14.
In continuation, the Chamber remarked that the Respondent claimed having paid
an amount of 20,000 to the player’s agent and therefore, considers that the latter
would be responsible for the payment of training compensation to the Claimant.
In this respect, the DRC deemed it appropriate to recall that in virtue of art. 1 par.
1 and art. 3 par. 1 of Annex 4 of the Regulations training compensation is to be
paid to clubs which had effectively trained a player. In other words, any amount
paid to third party in virtue of an agreement, which in any case shall have effect
inter partes, i.e. between the parties to this agreement, cannot discharge the new
club of its only obligation to distribute training compensation to the training(s)
club(s). As a result, the Chamber concluded that the amount of 20,000, which the
Respondent allegedly paid to the player’s agent K, cannot be considered as a
training compensation related payment.
15.
Consequently, having rejected the Respondent’s objections in this respect, the
Chamber considered that training compensation was due to the Claimant, which,
as stated above, justified its entitlement to receive training compensation. As a
result, and considering the above points II. 5 and II. 6 and 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, the Chamber concluded that the effective period of time to be considered in
the matter at stake corresponds to 11 months as from February 2005 until
December 2005. In this respect, the Chamber noted that the player passport
mentioned that the player was registered for the Claimant as from
31 January 2005 until 31 January 2007. However, in view of the Claimant’s
allegations, it appears that the player terminated the trainee contract in
December 2005 already.
16.
Turning its attention to the calculation of training compensation, the Chamber
referred to art. 5 par. 1 and 2 of Annex 4 of the Regulations, which stipulates that,
as a general rule, it is necessary to take the costs that would have been incurred by
the new club if it had trained the player itself and thus it is calculated based on
the training costs of the new club multiplied by the number of years of training
with the former club.
17.
In this respect, the Chamber took due note that according to the information at
disposal by the time the player was registered as a professional with the
Respondent, in January 2007, the latter belonged to category II (indicative amount
of EUR 60,000 per year within UEFA). By the time the player was registered with
the Claimant, the latter belonged to category II (indicative amount of EUR 60,000
per year within UEFA).
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18.
Moreover, the Chamber referred to art. 3 par. 1 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 and
emphasised that based on the information provided the player was registered for
the Respondent on 1 February 2007.
19.
In view of the above, the Chamber concluded that the Claimant is entitled to
receive training compensation from the Respondent in the amount of EUR 55,000,
as well as 5% default interest per year as from 4 March 2007, and hence, the claim
of the Claimant, L, is accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, L, is accepted.
2.
The Respondent, H, has to pay to the Claimant, L, the amount of EUR 55,000 plus
5%
of
interest
per
year
on
the
said
amount
as
from
3 March 2007 until the date of effective payment, within 30 days as from the
date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
4.
The Claimant, L, is directed to inform the Respondent, H, immediately and directly
of the account number to which the remittance is 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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