Labour Disputes
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 the claim presented by the club
FC L,
as Claimant
against the club
M FC,
as Respondent
regarding a training compensation dispute
related to the transfer of the player F
I.
Facts of the case
1.
The S Football Federation confirmed that the player, F (hereinafter: the player),
born on 20 November 1992, was registered with its affiliated club, FC L
(hereinafter: the Claimant), from 20 July 2005 until 12 December 2008 as an
amateur.
2.
The sporting season in country S runs from 1 July to 30 June of the following year.
3.
According to the information provided by The E Football Association (The EFA) on
28 April and 8 October 2009, the player was registered for M FC (hereinafter: the
Respondent) on 12 December 2008 as an amateur and on 9 September 2009 as a
professional with the mention “scholar”. Furthermore, The E Football Association
confirmed that the Respondent belonged to the category I during the season
when the player was registered with it as a professional, i.e. 2009/2010.
4.
On 19 February 2009, the Claimant contacted FIFA asking for its proportion of
training compensation from the Respondent. In particular, the Claimant is
requesting EUR 65,753.40 for the period comprehended between 1 July 2005 and
22 November 2008, plus 5% interest p.a. since 1 February 2009, as well as 3,000 for
costs incurred in the present proceeding. Furthermore, the Claimant stated that by
a letter dated 8 July 2008 it had invited the player to take part in the training
session of the “Team U18” on 21 July 2008, however, according to the Claimant,
the player refused to join the FC L . Yet, according to the Claimant, the player was
trained by the Respondent since July or August 2008 and had signed an
employment contract until 30 June 2012 with the Respondent. In this respect, the
Claimant provided FIFA with a press article and extracts from internet websites.
Moreover, the Claimant stated that, according to art. 19 of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations), the player could not
have been internationally transferred before 22 November 2008, i.e. when the
player would have reached the age of 16. In addition to that, the Claimant states
that the Respondent could not deny its obligation to pay training compensation
due for the period between 1 July and 22 November 2008, allegedly amounting to
EUR 35,753.40, because according to the Claimant, the Respondent was “instigator
and accomplice of the player’s decision” to leave the Claimant in July 2008, with
the only goal to reduce the training compensation due to the Claimant and to
allow the player to take part immediately in the trainings of the Respondent and
before being able to register the player, since he was under 16.
5.
On 28 April 2009, The E Football Association informed FIFA that, on
12 December 2008, it had received the International Transfer Certificate (ITC) of
the player from the S Football Federation. Moreover, The E Football Association
stated that at that moment, the player was registered with the Respondent as an
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amateur and that the player had not signed any employment contract yet. To
corroborate this position, The E Football Association provided FIFA, on
30 April 2009, with several documents, such as “The Premier League Student
Registration Application”, signed on 12 December 2008 by the player and which
stipulates that the player will be registered at the Football Academy of the
Respondent for one year.
6.
On 12 August 2009, the Respondent informed FIFA that it was ready to pay
EUR 30,000 to the Claimant as training compensation. However, the Respondent
disputed “the final period” of the player’s training, “due to the information
provided by the player’s parents stating that he did not attend their club [the
Claimant] during that period”.
7.
On 31 August 2009, the Claimant reiterated its position and stated that it was
improbable that the Respondent registered the captain of the U16 National Team
as amateur and that it would be impossible for the player to live in country E
without any salary. Furthermore, the Claimant stated that the fact, that “the
player is working with a FIFA player’s agent such as C” showed “the
professionalism of the player’s environment”.
8.
On 8 September 2009, upon request of FIFA, The E Football Association provided
FIFA with a copy of “The Premier League and the Football League Scholarship
Agreement” dated 1 July 2009 and signed between the Respondent and the
player. According to its clause 3.1, the agreement was valid from 1 July 2009 until
30 June 2011, with the option of extension of one year according to clause 4.2, to
be executed by the Respondent. According to its clause 3.2, the Respondent can
offer the player an employment contract during the currency of the agreement,
but only on the condition that the player continues his education programme. The
financial terms of the mentioned agreement, according to its clause 6.3 in
connection with Schedule One, state that the player should receive a “Scholarship
Allowance” of 105 per week from 1 July 2009 to 30 June 2010 and of 115 per
week from 1 July 2010 to 30 June 2011. In case the agreement is extended
according to clause 4.2, the allowance will be of 150 per week from 1 July 2011 to
30 June 2012. Furthermore, the Schedule One provides that “the club [the
Respondent] shall reimburse to the scholar legitimate travel expenses incurred,
provided such costs represent the most economical and convenient mode of
transport.”
9.
On 8 September 2009, the Claimant stated that the Respondent never hid its will
to sign a “professional” employment contract with the player, as it appears from
their proposal dated 11 March 2008, in which the Respondent allegedly recognised
the right of the Claimant to receive training compensation. Furthermore, the
Claimant informed FIFA that during its exchange of correspondence with the
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Respondent, the right of the Claimant to receive training compensation was
allegedly never contested by the Respondent. Only the period comprehended
between 1 July and 20 November 2008 was apparently disputed. Moreover, the
Claimant reiterates its position that the player must be considered as professional
according to art. 2 of the Regulations, in view of the fact that, according to the
Claimant, the Respondent is paying for accommodation and for any assistance
necessary for life in country E. Therefore, the Claimant held that all the financial
terms of the player’s transfer to the Respondent correspond to a transfer of a
professional.
10.
On 8 October 2009, the Respondent adhered to its previous position without
adding any new elements.
11.
On 13 November 2009, the Claimant reiterated that the player left the club in July
2008 in order to join the Respondent before his 16th birthday and before the
formal request of a transfer made on 1 December 2008. Therefore, according to
the Claimant, this proves the strategy of the Respondent, which tried to avoid to
pay the whole amount of training compensation by receiving the player for
several months without being able to register him. The Claimant also states that it
never opposed the formal request for the transfer of the player to the
Respondent.
12.
On 1 December 2009, the Claimant once again held that the player signed a
contract with the Respondent at the age of 16 and that the player had a
professional status.
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. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 19 February 2009,
thus after aforementioned Procedural Rules entered into force on 1 July 2008.
Therefore, the Chamber concluded that the above-mentioned edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber 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 and 2 in
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connection with art. 22 lit. d of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes relating to training compensation
between clubs belonging to different associations.
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 in connection with art. 29 par. 2 of the Regulations on the Status and
Transfer of Players (edition 2009) and, on the other hand, to the fact that the
player was registered for the Respondent as a professional on 9 September 2009.
In view of the aforementioned, the Chamber concluded that that the 2008 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 the facts of the case as well as the
documentation contained in the file.
5.
In this respect, the Chamber recalled that the player, born on 20 November 1992,
was registered for the Claimant from 20 July 2005 until 12 December 2008 as an
amateur.
6.
In continuation, the Dispute Resolution Chamber duly noted that the Claimant is
requesting training compensation for the training and education of the player
incurred between 1 July 2005 and 22 November 2008, i.e. between the seasons
comprehended between the player’s 13th and 16th birthday, in the amount of
EUR 65,753.40, as well as the payment of 5% interest per year since
1 February 2009 and 3,000 for costs incurred in the present proceeding.
7.
The Chamber acknowledged that The E Football Association confirmed that the
Respondent was a category I club at the time the player was registered as a
professional for it on 9 September 2009. Furthermore, in accordance with art. 5
par. 3 of Annexe 4 of the Regulations, the Chamber recalled that the training costs
for players for the seasons between their 12th and 15th birthday shall be based on
the training and education costs of category IV clubs. Consequently, the Chamber
took into account that the indicative training costs for a category IV club and
member of a national association affiliated to the Union des Associations
Européennes de Football (UEFA) amount to EUR 10,000.
8.
In view of the above, the Chamber concluded that based on the documents at
disposal it can be established that the professional player in question, born on
20 November 1992, was registered with the Claimant from 20 July 2005 to
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12 December 2008 and registered as a professional for the first time with the
Respondent on 9 September 2009, i.e. before the end of the season of the player’s
23 birthday.
9.
In continuation, the Chamber stated that, as established in art. 1 par. 1 of
Annexe 4 in combination with art. 2 of Annexe 4 of the Regulations, training
compensation is payable, as a general rule, for training incurred between the ages
of 12 and 21 when a player is registered for the first time as a professional before
the end of the season of the player’s 23rd birthday.
10.
On account of the foregoing, the Chamber concluded that the Claimant was
entitled to receive training compensation from the Respondent.
11.
Turning its attention to the calculation of training compensation, the Chamber
first of all recalled that the Claimant stated on several occasions, that the player
had left the Claimant in July 2008 and was allegedly trained by the Respondent
since then.
12.
The Chamber then referred to art. 5 par. 1 and 2 of Annexe 4 of the Regulations,
which stipulate 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. Furthermore, the Chamber was eager to
emphasize that, according to the jurisprudence of the Court of Arbitration for
Sport (CAS), training compensation is only due to the previous club of the player
for the period the player was effectively trained by that club (CAS 2004/X/XXX,
2004/X/XXX, 2006/XXXX).
13.
In view of the above-mentioned, the Dispute Resolution Chamber concluded that
the player was not trained by the Claimant during the period comprehended
between 1 July and 12 December 2008, when the player was registered for the
Respondent as amateur.
14.
As a result and considering the aforementioned points II.11 to II.13 as well as art. 3
par. 1 of Annexe 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 the Claimant, the Dispute Resolution Chamber concluded that the
effective period of time to be considered in the matter at stake corresponds to the
period comprehended between 20 July 2005 and 1 July 2008.
15.
Turning its attention to the date on which the player became professional, the
Dispute Resolution Chamber recalled, on the one hand, the position of the
Claimant, according to which the player had to be considered as professional since
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when he joined the Respondent, allegedly in July 2008, and on the other hand the
information of The E Football Association dated 28 April 2009, according to which
the player was registered for the Respondent as amateur on 12 December 2008
and the player had not signed any employment contract until then. Furthermore,
the Chamber recalled that The E Football Association had provided a copy of “The
Premier League Football Student Registration Application” on 30 April 2009 as
well as a copy of “The Premier League and the Football League Scholarship
Agreement”, concluded between the Respondent and the player, on
8 September 2009.
16.
In this respect, the members of the Chamber analysed “The Premier League
Student Registration Application”, which was signed by the player on
12 December 2008, as well as “The Premier League and the Football League
Scholarship Agreement” dated 1 July 2009 and signed between the player and the
Respondent. In order to establish the player’s status (i.e. amateur or professional)
after having signed said agreements, the Chamber analysed both copies and under
the light of art. 2 par. 2 of the Regulations.
17.
According to “The Premier League Student Registration Application”, the player
would be registered at the Football Academy of the Respondent for one year.
Furthermore, the Chamber took due note that no financial compensation for the
player was mentioned in the said registration application. Consequently, the
Chamber concluded that the said agreement cannot be considered an employment
contract under the terms of art. 20 and art. 2 par. 1 lit. i of Annexe 4 of the
Regulations and therefore, the player could not be considered a professional as
from 12 December 2008.
18.
With regard to “The Premier League and the Football League Scholarship
Agreement”, the Chamber analysed the said agreement under the light of art. 2
par. 2 of the Regulations and took due note that a weekly financial compensation
of 105 was agreed upon for the period comprehended between 1 July 2009 and
30 June 2010. Based thereupon, the Chamber determined that the agreement
satisfied the requirements of the mentioned article and that, therefore, the player
had to be considered a professional as from its entry into force.
19.
Consequently, and considering that the Claimant did not provide any evidence in
order to corroborate its position, according to which the player would have signed
a professional contract earlier than on 1 July 2009, the Chamber concluded that
the Claimant’s allegation is not substantiated and the player is to be considered a
professional as from 1 July 2009.
20.
In continuation, the Chamber took due note that according to the information at
disposal the Respondent belonged to category I in the season 2009/2010
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(indicative amount within UEFA: EUR 90,000) and that the relevant period to be
taken into account falls under the provision of art. 5 par. 3 of Annexe 4 of the
Regulations, which stipulates that for the seasons between the player’s 12th and
15th birthday, training costs of category IV clubs (indicative amount within UEFA:
EUR 10,000) are applicable as to the calculation of training compensation.
21.
In this respect, the Chamber took duly note that on 12 August 2009, the
Respondent offered to pay the Claimant EUR 30,000 as training compensation,
which is approximately what the Claimant would be entitled to according to the
calculation of the Dispute Resolution Chamber on the basis of the above
considerations, in particular the player’s effective training period with the
Claimant from 20 July 2005 until 1 July 2008.
22.
Consequently and taking into account all the above-mentioned elements, the
Dispute Resolution Chamber decided that the claim of the Claimant is partly
accepted and that the Claimant is entitled to receive training compensation from
the Respondent in the amount of EUR 30,000, with 5% interest per year on the
said amount as from 1 August 2009 until the effective date of payment.
23.
Turning its attention to the procedural compensation of 3,000 requested by the
Claimant, the members of the Chamber referred to art. 18 par. 4 of the Procedural
Rules, which states that in proceedings of the Dispute Resolution Chamber, no
procedural compensation shall be awarded. Therefore, the Chamber decided that
the Claimant is not entitled to receive any procedural compensation in the present
matter.
24.
In continuation, the Chamber referred to art. 18 par. 1 of the Procedural Rules,
according to which in the proceedings before the Dispute Resolution Chamber
relating to disputes regarding training compensation costs in the maximum
amount of 25,000 are levied. The costs are to be borne in consideration of the
parties’ degree of success in the proceedings.
25.
In this respect, the Chamber reiterated that the claim of the Claimant is only
partially accepted and that the outcome of the present decision is equal to the
offer made by the Respondent on 12 August 2009. Therefore, the Claimant has to
bear the costs of the current proceedings in front of FIFA.
26.
According to Annexe A of the Procedural Rules, the costs of the proceedings are to
be levied on the basis of the amount in dispute.
27.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 65,753.40 related to the claim of the Claimant. Therefore, the
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Chamber concluded that the maximum amount of costs of the proceedings
corresponds to 10,000 (cf. table in Annexe A of the Procedural Rules).
28.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure and it did not involve specific legal complexity, the Chamber
determined the final amount of costs of the current proceedings at 1,000.
29.
In this respect, the Chamber took into account that the Claimant had paid the
advance of costs in the amount of 2,000 in accordance with art. 17 of the
Procedural Rules.
30.
In view of all the above, the Chamber concluded that the amount of 1,000 has to
be paid by the Claimant to cover the costs of the present proceedings. Therefore,
FIFA will reimburse the amount of 1,000 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, FC L, is partially accepted.
2.
The Respondent, M FC, has to pay to the Claimant, FC L, the amount of EUR 30,000
plus 5% interest per year on the said amount as from 1 August 2009 until the date
of the effective payment, within 30 days as from the date of notification of this
decision.
3.
If the aforementioned sum plus interest 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 final amount of costs of the proceeding, to be borne by FC L, are in the
amount of 1,000.
5.
The Claimant, FC L, is directed to inform the Respondent, M FC, 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.
6.
Any further claims lodged by the Claimant, FC L, are rejected.
*****
Note relating to the motivated decision (legal remedy):
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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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