Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 May 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
on the claim presented by the club,
M,
as Claimant
against the club,
Z,
as Respondent
regarding a training compensation dispute
related to the transfer of the player G
I.
Facts of the case
1.
The Football Federation P (hereinafter: FFP) confirmed that the player, G (hereinafter:
the player), born on 25 July 1987, was registered with its affiliated club M (hereinafter:
the Claimant) as from 23 October 2001 until 2 September 2002 and as from 2 January
2007 until 23 August 2007 as an amateur.
2.
The football season in the country P over the relevant period of time ran as of 1 July
until 30 June of the following year.
3.
The Football Federation P confirmed that the Claimant belonged to the category IV
(indicative amount of EUR 10,000 per year within UEFA) during the seasons when the
player was registered with said club.
4.
According to a written confirmation of the Football Association D (hereinafter: FAD),
the player was registered with its affiliated club FC Z (hereinafter: the Respondent) on
24 August 2007 as a professional player. The Football Association D also confirmed that
the Respondent belonged to the category II (indicative amount of EUR 60,000 per year
within UEFA) during the season when the player was registered with said club.
5.
On 5 March 2008, the Claimant contacted FIFA claiming for its proportion of training
compensation from the Respondent. In particular, the Claimant is requesting EUR 27,500
plus 5% interests p.a. to be applied on this amount as from the due date of payment, as
well as the reimbursement of the legal costs related to the proceedings at stake.
6.
In its reply, the Respondent informed FIFA that it is of the opinion that it is not obliged
to pay training compensation since the player had already signed his first professional
contract on 31 July 2006 with another club, A, and provided FIFA with a copy of a
“Sports Labour Agreement” (hereinafter: the labour agreement) signed between club A
and the player. This labour agreement stipulated a monthly remuneration for the player
of EUR 500 (which included vacation payment funds, as well as vacation allowance and
Christmas bonus) plus a special premium of EUR 750 if the player scored ten goals
during the sporting season and EUR 250 for each successive series of five goals. Hence,
according to the Respondent, who referred to art. 2 par 1 of the FIFA Regulations on
the Status and Transfer of Players, the player was paid more than the expenses he
effectively incurred to practice football and therefore had already signed his first
professional football player contract with the club A.
7.
Moreover, the Respondent pointed out that the club A and the player had mutually
agreed upon a termination of the aforesaid labour agreement and provided FIFA also
with a copy of this termination agreement dated 14 December 2006 and coming into
force on the same day (hereinafter: the termination agreement).
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8.
In view of the above, the Respondent asserted club A.
9.
Furthermore, according to Respondent, the transfer of the player from the Claimant to
the Respondent cannot be considered as a subsequent transfer of a professional, as the
player was registered as an amateur with the Claimant. What is more, and even if the
transfer was considered as a subsequent transfer of a professional player, the
Respondent referred to art. 6 par. 3 of the Annexe 4 of the Regulations and pointed out
that the Claimant was not in a position to claim training compensation since it had not
offered a new contract to the player as its requested by the aforementioned provisions.
10.
In its reply, the Claimant stated that it is neither aware of the content of the alleged
labour agreement nor of the content of the termination agreement. However, the
Claimant pointed out that, even if the player’s monthly remuneration was of EUR 500,
this could not permit to consider he had a professional employment contract as the
Regulations of the Football Federation P provide for a mandatory minimum monthly
salary of EUR 771.80 for professional players in the season 2006/2007 (i.e. on a yearly
basis this would correspond to EUR 10,805.20, based on 14 months). In this respect, the
Claimant transmitted a confirmation issued by the Football Federation P stating that
professional sports contract must fulfil the minimum criteria established in the collective
bargaining agreement and provided FIFA also with the “Official Release No.1 – Season
2006/2007” issued by the Football Federation P, but which was not fully translated by
the Claimant into one of the official FIFA languages. Concerning the salary, the
Claimant asserted that the minimum salary in the 2nd National Division in 2006 was the
double of the national minimum wage (which was, according to the Football Federation
P, EUR 450 per month in 2009, but only EUR 385.90 per month in 2006 according to the
Claimant).
11.
Furthermore, the Claimant stated that, even if it was considered that the player was a
professional whilst registered with the club A, the Claimant, at least for the player’s
second registration period with it, would still be entitled to receive training
compensation since the player would then have been re-registered as a professional
with the Respondent before reaching the age of 23 and within 30 months after having
been reinstated as an amateur player with the Claimant on “2 February 2007” (sic).
12.
In its reply to the statements of the Claimant, the Respondent informed FIFA that it
remained of the opinion that it is not obliged to pay training compensation to the
Claimant since the case falls under the FIFA Regulations and that the regulations of the
Football Federation P do not apply to this dispute.
13.
Finally, the Respondent pointed out that in the second registration period with the
Claimant, the player did not play until 23 August 2007, but was only formally registered
with the Claimant.
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14.
On 14 October 2009, the Claimant highlighted that it did not offer any employment
contract to the player due to the fact that the player was always registered with it as an
amateur, without any employment contract. Furthermore, the club was participating in
the P III Division and was a category IV club, playing in a non-professional league.
Therefore, it did not and could not have any professional players in its team.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the
Chamber 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 Rules) and noted that the present matter was submitted to FIFA on
5 March 2008, thus before the aforementioned Rules entered into force on 1 July 2008.
Therefore, the Dispute Resolution Chamber concluded that the 2005 edition of the
Rules is applicable to the matter at hand (cf. art. 18 of the Rules; edition 2005).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the 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 (editions 2008 and
2009). In accordance with art. 24 par. 1 in combination with art. 22 lit. d) of the
aforementioned Regulations, the Dispute Resolution Chamber is competent to decide
on the present litigation concerning the training compensation between clubs
belonging to different associations for the training and education of the player.
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 2008 and 2009) and, on the
other hand, to the fact that the player was registered for the Respondent on 24 August
2007 as a professional. 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 this respect, the
members of the Chamber started by acknowledging the facts of the case as well as the
documentation contained in the file.
5.
First and foremost, the Chamber stated that, as established in art. 20 of the Regulations
in combination with art. 1 par. 1 and art. 2 of Annexe 4 of the Regulations, training
compensation is payable, as a general rule, for training incurred between the age of 12
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and 21, when a player 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. In the latter case, training compensation
is owed only to the former club of the player, but not to the previous clubs (art. 3 par. 1
of Annexe 4 of the Regulations).
6.
In continuation, the members of the Chamber recalled that, on the basis of the fact that
the player was registered with the Claimant as from 23 October 2001 until 2 September
2002 and as from 2 January 2007 until 23 August 2007 according to the Player’s Passport
issued by the Football Federation P, the Claimant is claiming the payment of training
compensation from the Respondent in the amount of EUR 27,500 plus 5% interests. The
Chamber also noted that Respondent contested the Claimant’s entitlement to receive
any payment corresponding to training compensation.
7.
In this respect, the Chamber noted that the player was registered with the Claimant
during two periods of time, i.e. as from 23 October 2001 until 2 September 2002 and as
from 2 January 2007 until 23 August 2007 as an amateur. In view of this, the Chamber
started to analyse said periods of time separately.
8.
Concerning the first period of time during which the player was registered with the
Claimant, i.e. as from 23 October 2001 until 2 September 2002, the Dispute Resolution
Chamber turned its attention to the Respondent’s statement, according to which no
training compensation was due to the Claimant since the player had already signed his
first contract as a professional football player, i.e. referring to the labour agreement
signed with another country P club, club, A. In this respect, the Chamber took due note
that the Respondent provided FIFA with a copy of said labour agreement signed
between the player and club A and could verify that the player was receiving a
minimum monthly remuneration in the amount of EUR 500 without bonuses.
9.
Moreover, the DRC took note of the Respondent’s statement, according to which the
club A mutually agreed with the player upon a termination of the aforesaid labour
agreement, i.e. referring to the termination agreement. In this respect, the Chamber
also took due note that the Respondent provided FIFA with a copy of this termination
agreement dated 14 December 2006, signed between club A and the player.
10.
In continuation, the Chamber took due note of the Claimant’s statement, in accordance
with which, to its knowledge, club A has never signed any sporting employment
contract with the player and is therefore unaware of its contents.
11.
In view of the above, the Chamber referred to art. 12 par. 3 of the Rules which
establishes that any party claiming a right on the basis of an alleged fact shall carry the
burden of proof. In this respect, the members of the Chamber concluded that the
Respondent, by providing a copy of the labour agreement, which was obviously signed
by two representatives of the Claimant, the President of the Division and the Councillor
of the Division, as well as by the player, proved that the labour agreement existed.
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12.
Furthermore, the Chamber took due note of the Claimant’s statements, according to
which, in any case, a monthly remuneration in the amount of EUR 500 could not permit
to consider the player had a professional employment contract as the Regulations of the
FFP provide for a mandatory minimum monthly salary of EUR 771.80 for professional
players (i.e. on a yearly basis this would correspond to EUR 10,805.20, based on 14
months). In this respect, the Chamber also took note that the Claimant transmitted a
confirmation issued by the Football Federation P, stating that professional sports
contract must fulfil the minimum criteria established in the collective bargaining
agreement, as well as a copy of the “Official Release No. 1 – Season 2006/2007” also
issued by the Football Federation P, but which was not fully translated by the Claimant
into one of the official FIFA languages.
13.
In view of the aforementioned, the Chamber wished to recall that the only relevant
criteria to determine a player’s status are enounced in art. 2 par. 2 of the Regulations,
which mentions that: “A professional is a player who has a written contract with a club
and is paid more for his footballing activity than the expenses he effectively incurs”.
14.
Furthermore, the Chamber deemed fundamental to emphasise that, for the
appreciation of a player’s status, the designation given to an agreement between a club
and a player is irrelevant. In addition, the Chamber affirmed that the mention of a
player’s status on a player passport issued by the federation of the club for which he
was registered does not, also, constitute a decisive criterion.
15.
On account of the above, the Chamber analysed the contents of the labour agreement
dated 31 July 2006, which was then terminated via the termination agreement dated
14 December 2006, both signed by the player and club A.
16.
In particular, the panel acknowledged that the player was to receive, on the basis of the
said labour agreement, a minimum monthly remuneration in the amount of EUR 500
(which included vacation payment funds, as well as vacation allowance and Christmas
bonus) plus a special premium of EUR 750 if the player scored ten goals during the
sporting season and EUR 250 for each successive series of five goals.
17.
Therefore, in consideration of the aforementioned elements, the DRC held that the
player’s remuneration clearly exceeded the expenses and costs effectively incurred by his
footballing activity.
18.
In continuation, the members of the Dispute Resolution Chamber focused their
attention on other possible indications that could determine the player’s status with
regard to his registration with the club A. In this regard, the members observed that,
according to art. 18 par. 2 of the Regulations, the minimum length of a contract is as
from its effective date until the end of the season. In the light of the aforementioned
provisions, the DRC emphasised that the labour agreement referred to a predetermined
duration, i.e. the season 2006/2007. Thus, the members deemed that another element of
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the essentiali negotii of a professional contract, namely the reference to a
predetermined duration of the contract, was therewith also met in the present case.
19.
Finally, the Chamber particularly paid attention to the fact that, according to the said
labour agreement, the player was not allowed to perform any other sports activity or
any labour or business activity except with a written authorization from the club A.
20.
The above considerations led the Dispute Resolution Chamber to conclude that the
labour agreement dated 31 July 2006 and signed between the player and the club A
was a contract of a professional football player.
21.
In view of all of the above, and based on art. 3 par. 1 of Annexe 4 of the Regulations,
the Dispute Resolution Chamber concluded that the Claimant is not entitled to receive
any training compensation for the training and education of the player for the first
period of time as from 23 October 2001 until 2 September 2002 from the Respondent,
since the player had already signed his first contract as a professional football player
with the club A. Therefore the Chamber decided to reject the Claimant’s claim based on
the period of time of the player’s registration with it as from 23 October 2001 until 2
September 2002.
22.
Concerning the second period of time during which the player was registered with the
Claimant, i.e. as from 2 January 2007 until 23 August 2007, the Dispute Resolution
Chamber turned its attention to the Respondent’s statement, according to which the
transfer of the player from the Claimant to the Respondent cannot be considered as a
subsequent transfer of a professional, as the player was registered as an amateur with
the Claimant. Additionally, and even if the transfer was considered as a subsequent
transfer of a professional player, the Respondent referred to art. 6 par. 3 of the
Annexe 4 of the Regulations and pointed out that the Claimant had not offered the
player a new contract.
23.
In this respect, the Chamber took due note of the Claimant’s statements, according to
which even if it was considered that the player was a professional whilst registered with
the club A, the Claimant, at least for the second period of time during which the player
was registered with it, would still be entitled to training compensation, since the player
would then have been re-registered as a professional with the Respondent before
reaching the age of 23 and within 30 months after having been reinstated as an
amateur player with the Claimant on “2 February 2007” (sic).
24.
Furthermore, the Chamber took due note that the Claimant was asked to provide FIFA
with its comments with regard to the contents of art. 6 par. 3 of Annexe 4 of the
Regulations.
25.
The members of the Chamber duly noted that in the Claimant’s statement, it
highlighted that it did not offer any employment contract to the player due to the fact
that the player had always been registered with it as an amateur, without any
employment contract. Furthermore, according to the Claimant, the club was
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participating in the P III Division (corresponding to a category IV club), playing in a nonprofessional league, and did not and could not have any professional players in its team.
26.
Analysing the documents at hand, the Chamber noted that the Claimant’s statements
were in contradiction with the Regulations of the Football Federation P in accordance
with which clubs playing in the P III Division may also have professional players based on
minimum salaries applicable. According to point 26 of the aforementioned “Official
Release No. 1 – Season 2006/2007” issued by the Football Federation P and submitted by
the Claimant, the minimum salary for professional players in the P III Division is 1,5 times
the minimum national wage.
27.
Moreover, the Chamber referred, in particular, to art. 6 of Annexe 4 of the Regulations,
which contains special provisions for clubs which belong to an association inside the
territory of the EU/EEA. As the player moved from country P to the country N in August
2007, i.e. between two countries members of the EU, art. 6 par. 3 of Annexe 4 of the
Regulations is applicable. Therefore, the Chamber concluded that the aforementioned
provision applies in the case at hand as lex specialis.
28.
On account of the aforesaid, the Chamber analysed as to whether the Claimant had
complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations in order
to be entitled to receive training compensation.
29.
On the basis of the claimant’s statement in accordance with which it admitted that it
did not offer any employment contract to the player, the Chamber considered that the
Claimant had not offered the player a contract via registered post at least 60 days
before the expiry of his current contract.
30.
In light of the foregoing, the Chamber formed the belief that since the Claimant never
proposed any written contract, whereas, according to the Regulations of the Football
Federation P, it is possible for clubs playing in the P III Division to have professional
players, the Claimant is not entitled to receive any training compensation from the
Respondent.
31.
In view of all the above, the Dispute Resolution Chamber concluded by rejecting the
claim of the Claimant for training compensation related to the period of time between
2 January 2007 until 23 August 2007 during which the player was registered with it.
32.
In addition, the DRC took note that the Claimant requested as well the reimbursement
of the legal costs related to the proceedings at stake. In this respect, the Chamber
referred to art. 18 par. 4 of the Rules and underlined that no procedural compensation
shall be awarded in proceedings of the Players’ Status Committee and the DRC.
Therefore, the Claimant has to bear its legal costs.
III.
Decision of the Dispute Resolution Chamber
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The claim of the Claimant, club M, 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 to the CAS
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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