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,
A,
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 A (hereinafter:
the Claimant) as from 1 September 2006 until 1 January 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 season 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 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 asking for its proportion of training
compensation from the Respondent. In particular, the Claimant is requesting EUR 17,500
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 the Claimant and provided FIFA with a copy of a “Sports
Labour Agreement” (hereinafter: the labour agreement) signed between the Claimant
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 Claimant.
7.
Moreover, the Respondent pointed out that the Claimant 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 its reply, the Claimant stated that to its knowledge, it has never signed any sporting
employment contract with the player regarding the sporting season during which the
player remained with it. In addition, the Claimant emphasized that the player’s status is
always determined by the Association the player is registered with.
9.
Moreover, 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 FFP, EUR 450 per
month in 2009, but only EUR 385.90 per month in 2006 according to the Claimant).
10.
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. Furthermore, according to the
Respondent, there was indeed a contract between the Claimant and the player and
even in case the player would be considered as an amateur while registered with the
Claimant, the latter would not be entitled to claim training compensation since it did
not offer any new contract to the player as provided in art. 6 par. 3 of Annexe 4 of the
Regulations on the Status and Transfers of Players, but even agreed upon a termination
of the contract by mutual consent.
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).
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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
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 1 September 2006 until 1 January
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 for the training
and education of the player in the amount of EUR 17,500 plus 5% interests. The
Chamber also noted that the Respondent contested the Claimant’s entitlement to
receive any payment corresponding to training compensation.
7.
In this regard, 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 with the
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Claimant itself, i.e. referring to the labour agreement. 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 the Claimant and could verify that the player was
receiving a minimum monthly remuneration in the amount of EUR 500 without
bonuses.
8.
Moreover, the DRC took note of the Respondent’s statement, according to which the
Claimant 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 the Claimant and the player.
9.
In continuation, the Chamber took due note of the Claimant’s statement, in accordance
with which, to its knowledge, it has never signed any sporting employment contract
with the player and is therefore unaware of its contents.
10.
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.
11.
In continuation, the Chamber took due note of the Claimant’s argument, 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
Football Federation P 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.
12.
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”.
13.
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.
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14.
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.
15.
In particular, the panel acknowledged that the player was to receive, on the basis of
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.
16.
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.
17.
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 Claimant. 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
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.
18.
Finally, the Chamber particularly paid attention to the fact that, according to 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 Claimant.
19.
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 Claimant
was a contract of a professional football player.
20.
In addition, the Chamber concluded that the Respondent, by also providing a copy of
the termination agreement, which was obviously signed by one representative of the
Claimant, reinforced the belief that there had been an employment contract between
the Claimant and the player and showed that the Claimant had no more interest in the
player.
21.
Moreover, the Chamber referred 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 the country P to the country N in August 2007,
i.e. between two member countries 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.
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22.
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.
23.
In this respect, the DRC took note that, on the one hand, the Respondent repeatedly
stated that the Claimant did not fulfil its obligations according to ar. 6 par. 3 of Annexe
4 of the Regulations, and, on the other hand, that the Claimant never took position
concerning this disputed point. On the basis of these facts, the Chamber understood
that the Claimant had not offered the player a contract via registered post at least 60
days before the expiry of his current contract.
24.
In light of the foregoing, the Chamber formed the belief that the Claimant did not
propose any new contract to the player after the termination of the contract of
professional football player signed on 31 July 2006.
25.
In view of all the above, the Dispute Resolution Chamber concluded that the claim of
the Claimant was fully rejected.
26.
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.
*****
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, A, 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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