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,
S,
as Claimant
against the club,
B,
as Respondent
regarding a training compensation dispute
related to the transfer of the player L
I.
Facts of the case
1.
The Football Association of X (FAX) confirmed that the player, L (hereinafter: the
player), born on 21 May 1985, was registered with its affiliated club S (hereinafter:
the Claimant) as from 2 April 2003 until 4 August 2005 and as from
16 November 2005 until 9 February 2006 as a professional. As from 5 August 2005
until 15 November 2005 the player was on loan with club Y as a professional. The
player was then registered as an amateur with the club I (hereinafter: I) as from
10 February 2006 until 19 February 2006.
2.
The football season in the country X lasts as from 15 November until 14 November
of the following year.
3.
On 20 February 2006, the player was registered with the club, B (hereinafter: the
Respondent), as a professional.
4.
The Football Federation D (FFD) confirmed that the Respondent belonged to the
category I during the period of time when the player was registered with it.
5.
The Football Association X confirmed that the Claimant belonged to the category
III during the period of time when the player was registered with it.
6.
On 12 September 2007, the Claimant contacted FIFA asking for its proportion of
training compensation from the Respondent in connection with the transfer of
the player from club I to the Respondent.
7.
The transfer agreement for the transfer of the player from the Claimant to club I
was concluded on 20 January 2006. The Football Association X stated that the
player “did not play for club I all the time the Football Association D sent a
request for clearance already on February 2nd 2006”.
8.
In its reply, the Respondent rejected the Claimant’s claim and stated that the
player played his last game with the Claimant on 20 October 2005 and thus
assumed that the employment contract between the player and the Claimant
expired on that day.
9.
In addition, the Respondent held that the Claimant did not offer the player a new
contract in accordance with art. 6 par. 3 of Annex 4 of the Regulations on the
Status and Transfer of Players and that, therefore, it is not entitled to receive
training compensation. Furthermore, the Respondent argued that the Claimant
knew that it would not receive training compensation and transferred the player
to the club I, which was a fictitious transfer.
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10.
To that, the Claimant stated that the employment contract between “the
Claimant and the player was signed on 20 August 2004 for the period as from
1 June 2004 until 15 November 2008 and that the player had personal reasons to
request the Claimant to allow him to go as an amateur to club I”.
11.
In its reply, the Respondent stated that the player was registered for club I on
10 February 2006 although the transfer of the player to the Respondent was on
31 January 2006. Furthermore, the Respondent argued that according to the
statement of the Football Association X the Football Federation D requested the
player’s International Transfer Certificate (ITC) already on 2 February 2006.
Therefore, the Respondent considered it as unexplainable that the player was
registered for club I as an amateur, since the player never played for club I.
12.
Moreover, the Respondent stated that the training and education of the player
cannot be of a high value since the player left his former club as a professional
and was registered as an amateur for club I. In this respect, the Respondent
stressed that it appeared as if the player was registered pro forma as an amateur
and only for a few days with club I, in order to circumvent the principle of
subsequent transfer as stated in art. 3 of Annex 4 of the Regulations on the Status
and Transfer of Players.
13.
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 stated that the
player terminated his employment contract with the Claimant for personal
reasons. The Claimant emphasised that it had no intention to terminate the
contract. Equally, it stated that “It is a governance principle in club S to allow any
player to terminate his contract before the contract termination date to allow the
player to develop and take opportunities in other soccer clubs if he prefers so.”
14.
Furthermore, the Claimant provided a statement of the player dated 8 March 2011
in which the latter confirms that he requested to be released from the contract in
November 2005 for personal reasons because he wanted to leave country X to
settle in a smaller town or in the countryside.
15.
In its final position, the Respondent argued that by the Claimant’s acceptance of
the termination of the player’s contract it expressed that it was not interested in
keeping the services of the player and therefore the Claimant did not comply with
the obligations established in art. 6 par. 3 of Annex 4 of the Regulations for the
Status and Transfer of Players.
16.
Furthermore, it pointed out that the Claimant provided an alleged statement of
the player, dated 8 March 2011, i.e. five years after the termination of the contract
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and over three years after it lodged a claim in front of FIFA to avoid the obligation
established in art. 6 par. 3 of Annex 4 of the Regulations for the Status and
Transfer of Players. In continuation, the Respondent stressed that the argument
that the player left the Claimant because he wanted to live in a smaller town, i.e.
club I, seems implausible since club I is less than 50 km away from the city O in the
country X, which is not a valid reason for the termination of the contract with the
Claimant. Since the player never played for club I and gave up his intention to live
on the countryside when he moved to the city M in the country D, the argument
of the Claimant cannot be considered.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, it took
note that the present matter was submitted to FIFA on 12 September 2007.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2005, hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and par. 3
of the Procedural Rules, edition 2008, in combination with art. 18 par. 2 and par. 3
of the Procedural Rules).
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 20 February 2006 and that the present claim was lodged on
12 September 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 the above-mentioned facts of the case
as well as the documentation on file.
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5.
First of all, the Chamber started by acknowledging that, the player, born on
21 May 1985, was registered for the Claimant as from 2 April 2003 until
4 August 2005 and as from 16 November 2005 until 9 February 2006 as a
professional as well as that the football season in the country X lasts as from
15 November until 14 November of the following year.
6.
Moreover, the Chamber took note that the Claimant, on the one hand, asserted
that it was entitled to receive training compensation from the Respondent since
the player had signed a professional contract with the Respondent. Equally, the
Chamber recalled that the Respondent, on the other hand, rejected in full the
Claimant’s claim for the payment of training compensation, because the Claimant
did not offer the player a new contract in accordance with art. 6 par. 3 of Annex 4
of the Regulations.
7.
In continuation, and referring to the rules applicable to training compensation,
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 his 23rd birthday.
8.
Moreover, the Chamber referred, in particular, to art. 6 of Annex 4 of the
Regulations, which contains special provisions regarding players moving from one
Association to another inside the territory of the European Union (EU)/European
Economic Area (EEA). More specifically, 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 it is entitled to
such compensation.
9.
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 entitled to training compensation.
10.
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 the
country X to country D in February 2006, i.e. between two EEA countries, the said
article of the Regulations is applicable.
11.
Furthermore, the Chamber pointed out that the first sentence of the provisions of
art. 6 par. 3 of Annex 4 of the Regulations clearly stipulates that no training
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compensation must be paid to the player’s former club if the said club did not
offer the player a contract unless it can justify its entitlement to such
compensation. In this respect, the members of the Chamber emphasised that it is
the spirit and purpose of the said provision to penalise clubs which are obviously
not interested in the player’s services.
12.
On account of the aforesaid, the Dispute Resolution Chamber analysed whether or
not 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.
13.
In this respect, the members of the Chamber duly noted that the Claimant had
concluded an employment contract with the player, valid until 15 November 2008.
Equally, the Chamber noted that the Claimant alleged having a “governance
principle”, which allows any player to terminate the contract in order to allow him
to develop and take opportunities in other clubs and that it had no intention to
terminate the contract.
14.
In this context, the Chamber acknowledged that the Claimant did not offer a new
contract to the player. Having established the aforesaid, the Chamber went on to
analyse weather the Claimant could in any case justify its entitlement to training
compensation.
15.
By doing so, the Chamber first of all recalled the general principle of burden of
proof (cf. art. 12 par. 3 of the Procedural Rules), according to which a party
claiming a right on the basis of an alleged fact shall carry the burden of proof. In
this respect, the Chamber took into account the Claimant’s allegation that it had
no intention to terminate the contract, and noted that the latter did not provide
sufficient documentation proving the contrary in order to support its entitlement
to training compensation.
16.
Furthermore, the Chamber considered that the Claimant’s argument that the
employment contract was terminated because the player wished to be released
could not be considered as a justification in the sense of art. 6 par. 3 sent. 1 of
Annex 4 of the Regulations.
17.
Moreover, the members of the Chamber took note of the Claimant’s statement
that the player had personal reasons to request his release from the Claimant, i.e.
that he wanted to leave city O in country X and settle in a smaller town or in the
countryside.
18.
In this context, the Chamber pointed out that, eventually, the player moved to the
country D, only after few weeks from his release, and therefore, the argument of
the Claimant in this respect could not be taken into account.
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19.
In continuation, the Chamber noted that on 20 January 2006, the Claimant signed
a transfer agreement with the club I, for the transfer of the player from the
Claimant to the club I, and had, therefore, terminated the employment contract
with the player.
20.
Consequently, the members of the Chamber determined that, as the Claimant
agreed to terminate the employment contract with the player, it did not show any
interest in the services of the player and, therefore, keeping him in its team. In
view of the above, the Chamber came to the conclusion that the Claimant failed
to comply with the prerequisites of art. 6 par. 3 of Annex 4 of the Regulations, i.e.
it failed to justify its entitlement to training compensation.
21.
On account of all the foregoing considerations, the Chamber decided that the
Claimant is not entitled to receive training compensation from the Respondent for
the training and education of the player.
22.
Finally, and taking into account the above, the members of the Chamber did not
deem it necessary to enter into the substance of the other arguments brought up
by the parties to the present dispute during the investigation, since the
prerequisites in order for the Claimant to be entitled to training compensation
were not complied with.
23.
In view of all the above, the Dispute Resolution Chamber rejected the Claimant’s
claim for training compensation.
*****
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, S, 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 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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