Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 June 2011,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club,
R,
as Claimant
against the club,
K,
as Respondent
regarding training compensation in connection with the player J
I.
Facts of the case
1.
According to the player passport issued by the Football Association of S (FAS) the
player, J (hereinafter: player), born on 21 April 1992, was registered with the club,
R (hereinafter: Claimant), as from 19 September 2001 until 2 September 2009 as an
amateur.
2.
The relevant football seasons in the country S, during the period of time the player
was registered with the Claimant, started and ended as follows:
The 2003/2004 season: as from 9 August 2003 to 15 May 2004
The 2004/2005 season: as from 7 August 2004 to 28 May 2005
The 2005/2006 season: as from 6 August 2005 to 6 May 2006
The 2006/2007 season: as from 4 August 2006 to 26 May 2007
The 2007/2008 season: as from 11 August 2007 to 25 May 2008
The 2008/2009 season: as from 16 August 2008 to 30 May 2009
The 2009/2010 season: as from 15 August 2009 to 16 May 2010
3.
According to the official confirmation of the Football Association B (FAB) the
player was registered with its affiliated club K (hereinafter: Respondent) on 21
April 2010.
4.
According to the information contained in the Transfer Matching System (TMS)
the Respondent belonged to the club category II at the time the player was
registered with the Respondent.
5.
On 7 October 2010, the Claimant lodged a claim in front of FIFA claiming the
payment of training compensation from the Respondent, asserting that the player
was registered as a professional for the first time with the Respondent. In
particular, the Claimant requested payment in the amount of EUR 160,000 plus 5%
interest per year.
6.
The Respondent rejected the Claimant’s claim for training compensation, arguing
that the Claimant had terminated the player’s contract without just cause. In the
Respondent’s view, the fact that it was given a letter signed by the director of the
football school of the Claimant which stipulated that the Claimant was not
planning to offer the player a new contract as well as the fact that the Claimant
had not offered the player the possibility to continue his career with the Claimant,
proved that the Claimant had terminated the player’s contract without just cause.
Therefore, the Respondent stressed that, as long as the Claimant did not prove
that the contract was terminated with just cause, the Claimant was not entitled to
receive training compensation from the Respondent.
2/12
7.
Furthermore, the Respondent, and hereby referring to art. 6 of Annexe 4 of the
Regulations on the Status and Transfer of Players, underlined that the Claimant’s
claim should be rejected based on art. 26 of the International Covenant on Civil
and Political Rights, the different basis on which training compensation is
calculated with regard to clubs who are both members of the UEFA, but where the
calculation is dependent on their membership of the EU/EEA, is an unjustified
discrimination. In this context, the Respondent emphasised that would art. 6 of
Annexe 4 of the Regulations on the Status and Transfer of Players be applicable to
the present matter, the Claimant would not be entitled to training compensation,
since it did not offer the player a contract.
8.
Moreover, the Respondent argued that the amount claimed by the Claimant is
disproportionate, since, during the negotiations of the Respondent with the
player, the Respondent was given the aforementioned letter signed by the
director of the football school of the Claimant, which stipulated that only a sum of
1,622,400 would fall due in case the player would transfer to another club. In this
context, the Respondent submitted the letter from the Claimant, dated 2
September 2008, which was addressed to the father of the player and stipulated
the following:
“Dear Sir,
With reference to your verbal request, we are hereby informing you that your
son, J, has been registered with our football club since 2002 and that his
official compensation, as calculated from the moment he was 12 years of age
until present, being the period of 52 months amounts to; 1,352,000. In view of
the fact that R is J’s parent club, the sum stated above is increased by 20% as
provided for in the Rules governing monetary compensation for players
registered with the FAS, which amounts to the final sum of 1,622,400, being
the compensation sum, which may be requested, under the applicable law, by
the club to be paid for the above named player.
We are further informing you that this case has been discussed by the
management of the club and it has been decided to make a motion before
the Board of Directors seeking reduction of the above sum to the optimum
amount as it is neither in our interest to have a dissatisfied player and his
parents in the club. The next meeting of the Board of Directors when the
above mentioned matter is to be discussed will be held at the end of
September and immediately thereafter we shall inform you, in writing, of the
decisions made and further steps to be taken by the club regarding the
matter.”
9.
Additionally, the Respondent submitted a statement of the father of the player
who confirmed that he had received the above-mentioned letter from the
Claimant indicating that approximately EUR 20,000 would be due for any transfer
of the player.
3/12
10.
In its replica, the Claimant first of all stated that the Respondent’s assertion that
the Claimant itself had given the said letter to the Respondent during the
Respondent’s negotiations with the player was false. In fact, the Claimant
indicated that it was not aware of any negotiations between the Respondent and
the player. Furthermore, the Claimant asserted that the letter had only “inner
character”; the letter was issued on the explicit request of the father of the player
who wanted to know the amount payable in case the player would transfer to a
club competing in the country S Super or First League i.e. if the player would
transfer domestically. The Claimant emphasized that the letter had therefore no
legal relevance in case of an international transfer and, thus, the amount payable
as training compensation cannot be limited to the amount outlined in the letter.
In support of its argument, the Claimant submitted a written statement of the
director of its football school who stated that the letter was issued on the request
of the father of the player who was unhappy with the status of his son with the
Claimant. For the sake of completeness, the Claimant specified that the letter was
not addressed to any club in country S or abroad and served merely as information
on the amount of costs for the training of the player in case the player would find
a new club within country S, calculated in accordance with the FAS Regulations.
11.
Furthermore, the Claimant stressed that it did not terminate the player’s contract
without just cause, since the player and the Claimant had never concluded any
contract; the player was an amateur for the entire period of time during which the
player was registered with the Claimant.
12.
In its duplica, the Respondent reiterated that the Claimant had terminated the
contract with the player without just cause, since it had excluded the player from
its team selection for several matches and it had not offered the player a new
contract.
13.
Moreover, the Respondent reiterated that the amount claimed by the Claimant
was disproportionate. According to the Respondent, the amounts payable for
training compensation need to be in accordance with the actual training costs,
since the purpose of training compensation is to give a financial reward to clubs
that invest in the training of the player. Taking into account that the player was
an amateur player, that the Claimant is an amateur club and considering that the
director of the training academy of the Claimant declared that the compensation
for the player amounted to 1,352,000, it is evident that the amount claimed by the
Claimant is disproportionate. The Respondent also emphasized that the amount
stipulated in the said letter did not refer exclusively to internal transfers, since at
the time the letter was issued, the player was on trial with the club, L, a fact
known by the Claimant. Hence, the letter should be considered as a legally binding
4/12
document preventing the Claimant from demanding a higher amount of training
compensation.
14.
As to the written statement of the director of the football school of the Claimant,
the Respondent requested that such statement should be disregarded, since the
director is an employee of the Claimant and has thus an interest in the matter at
stake.
15.
Also, the Respondent submitted an additional statement of the father of the
player, which mentioned that “R did not invest more than 1,000 euro” and “the
management of R did not recalled their letter. That was deliberate manipulation
with intention to mislead us as family and club K. R have had a big period of time
to recall that letter before signing of the contract”.
16.
Finally, the Respondent argued that if interest would be payable, such interest
could only start as from 7 October 2010, i.e. as from the start of the proceedings,
and that there were no reasons to depart from the legal interest rate, which is
3,5%.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 7
October 2010. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber, edition 2008 (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 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 in
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of
Players (edition 2010), the Dispute Resolution Chamber is competent to deal with
the matter at stake 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 21 April 2010, 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 (edition 2010), and considering that the present claim was lodged on 7
5/12
October 2010, the 2009 edition of the Regulations on the Status and Transfer of
Players (hereinafter: 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 on file.
5.
First of all, the Chamber recalled that the player was born on 21 April 1992 and
was registered with the Claimant as from 19 September 2001 until 2 September
2009 as an amateur.
6.
In continuation, the Chamber took note that the Claimant maintained that it is
entitled to receive training compensation from the Respondent in the amount of
EUR 160,000, indicating that the player was registered for the first time as a
professional with the Respondent.
7.
Furthermore, the Chamber noted that the Respondent rejected the claim of the
Claimant, arguing that the Claimant had terminated the employment contract
allegedly concluded with the player without just cause. In addition, the
Respondent stated that the claim should be rejected based on art. 26 of the
International Covenant on Civil and Political Rights, The Chamber equally noted
that, in the alternative, the Respondent argued that the amount claimed by the
Claimant was disproportionate to the case at hand.
8.
In this context, the Chamber was eager to emphasize that the player passport
issued by the Football Association S indicated that the player was registered with
the Claimant as an amateur for the entire period of time the player was registered
with the Claimant. Furthermore, the Claimant asserted that no employment
contract had been concluded between the Claimant and the player. Equally,
referring to art. 12 par. 3 of the Procedural Rules, which stipulates that any party
claiming a right on the basis of an alleged fact shall carry the burden of proof, the
Chamber observed that the Respondent had not submitted any documents which
demonstrated that the player was contractually bound to the Claimant and/or a
professional player during his registration with the Claimant. In continuation, it
has furthermore remained undisputed that the player moved from the Claimant
to the Respondent.
9.
In light of the foregoing consideration, the Chamber concluded that art. 2 par. 2
lit. i) of Annexe 4 of the Regulations is not applicable to the present matter, since
no contractual relationship existed between the player and the Claimant. In other
6/12
words, the Chamber found the assertion of the Respondent that the Claimant had
allegedly terminated the player’s employment contract without just cause to be
groundless, for the obvious reason that no employment contract existed between
the player and the Claimant.
10.
Furthermore, the Chamber took into consideration that the Respondent referred
to art. 6 of Annexe 4 of the Regulations and argued that the Claimant’s claim
should be rejected based on art. 26 of the International Covenant on Civil and
Political Rights, the different basis on which training compensation is calculated
with regard to clubs who are both members of the UEFA, but where the
calculation is dependent on their membership of the EU/EEA, is, according to the
Respondent, an unjustified discrimination. In this respect, the Chamber remarked
that the membership of an association to the UEFA is fundamentally irrelevant
with regard to the applicability of art. 6 of Annexe 4 of the Regulations. Said
provision is limited to a well-defined geographic scope. Since country S is neither a
member of the European Union (EU), nor of the European Economic Area (EEA),
the Chamber found it evident that art. 6 of Annexe 4 of the Regulations does not
apply in the present case as lex specialis. In fact, neither the transfer of the player
from country S to country B nor the transfer of the player from country B to
country S would constitute a transfer from one association to another association
inside the territory of the EU/EEA.
11.
In continuation, and hereby referring to the rules applicable to training
compensation, the Chamber stated that, as established in art. 1 par. 1 of Annexe 4
in combination with art. 2 par. 1 lit. i. 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.
12.
Following the above, the Chamber pointed out that the Football Association B
had confirmed that the player was registered as a professional with the
Respondent on 21 April 2010. Equally, the Chamber stressed that, taking into
account the player’s career history provided by the Football Association S, the
player had at all times been registered as an amateur prior to his registration as a
professional with the Respondent.
13.
On account of the above considerations, the Chamber decided that the
Respondent is liable to pay training compensation to the Claimant in accordance
with art. 20 and Annexe 4 of the Regulations.
14.
Turning its attention to the calculation of the training compensation payable by
the Respondent to the Claimant, the Chamber referred to the FIFA circular no.
1185 dated 22 April 2009 which provides details for the calculation of training
7/12
compensation as well as to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations,
which stipulate that as a general rule, to calculate the training compensation due
to a player’s former club, it is necessary to take the costs that would have been
incurred by the new club if it had trained the player itself.
15.
In continuation, the Chamber took into account that according to the
documentation on file, the Respondent belonged to the category II and that the
player, born on 21 April 1992, was registered with the Claimant as from 19
September 2001 until 2 September 2009.
16.
Consequently, taking into account the above-mentioned considerations, the
Chamber pointed out that, in principle, the Respondent is liable to pay training
compensation to the Claimant in the amount of EUR 160,000 as claimed by the
Claimant. However, the Chamber noted that the Respondent challenged this
amount indicating that it was clearly disproportional in the case at hand. In view
of the foregoing, the Chamber deemed it necessary to examine the alleged
disproportionality of the amount payable as training compensation taking into
account the arguments and documentation presented by the Respondent in this
regard.
17.
In this context, the Chamber firstly turned its attention to the Respondent’s
argument that the amount claimed by the Claimant, i.e. EUR 160,000, was
disproportionate, asserting that the amount payable as training compensation
needs to be in accordance with the real training costs. In this regard, the
Respondent argued that the player passport of the player indicated that the
player was an amateur, the Claimant was an amateur club and that, undeniably, a
difference exists between a professional training academy and an amateur
football club. Also, the Chamber gave due consideration to the argument of the
Respondent that the letter dated 8 September 2008 should be qualified as a
binding offer, in which the Claimant had renounced its right to demand a higher
compensation and that, thus, the amount claimed as training compensation was
disproportionate, since the Claimant had already indicated in the said letter what
the real training costs of the player were.
18.
In this respect, the members of the Chamber started by carefully examining the
letter dated 2 September 2008 and deliberated whether or not the letter had a
legally binding character, which would limit the Claimant’s entitlement to training
compensation to the amount stipulated in the letter. By the same token, the
Chamber had to examine whether the letter had given the Respondent a
legitimate expectation that the training compensation payable to the Claimant
would, at the maximum, be 1,622,400.
8/12
19.
In this regard, the Chamber took note that the letter was not addressed to the
Respondent nor did it give any indications as to the amount of training
compensation payable in case the player would be transferred internationally. On
the contrary, the letter explicitly mentioned the applicable rules of the Football
Association S, a detail which, in the Chamber’s view, led to no other conclusion
that the letter was referring to an amount of money in case of a transfer of the
player within S. Hence, the Chamber decided that the letter could not be regarded
as a legally binding document.
20.
Moreover, the Chamber underlined that the relevant letter was issued on 2
September 2008, while the player was registered with the Respondent on 21 April
2010. The Chamber observed that, apparently, the Respondent had never
contacted the Claimant in order to verify the contents of the said letter. In view of
the foregoing, the Chamber took particular interest in the Respondent’s argument
that “If the Respondent could have foreseen that the Claimant would demand a
higher compensation, the Respondent would never have registered the player”. In
the Chamber’s opinion, the Respondent could in fact have foreseen that a higher
amount was to be demanded, if the Respondent had acted with due diligence; in
view of the period of time that had elapsed since the date on which the letter was
issued and the date of the player’s registration with the Respondent as well as in
view of the contents of the letter, the Respondent could, at the least, have
contacted the Claimant requesting a confirmation with regard to the amount of
training compensation payable. This, in the Chamber’s view, could in all
reasonableness be expected from the Respondent in the present circumstances.
However, the Chamber noted that the Respondent apparently chose to rely on a
letter that was issued approximately 1,5 years prior to the registration of player,
without seeking any further clarifications.
21.
In view of the above, the Chamber deemed that the Respondent had not met his
standard of care and could therefore not reasonably rely on the assumption that
the letter of 8 September 2008 was a legally binding document, by means of
which the Claimant had unequivocally established the maximum amount of
training compensation payable in the event of an international transfer.
Therefore, the Chamber found that it could not be determined that the
Respondent had a legitimate expectation that the amount payable as training
compensation for the player would, at the maximum, be 1,622,400.
22.
Furthermore, the Chamber acknowledged that the second argument of the
Respondent with regard to the alleged disproportionate amount of training
compensation claimed by the Claimant, was that the player passport of the player
indicated that the player was an amateur, the Claimant was an amateur club and
that a difference existed between a professional training academy and an
9/12
amateur football club. In this respect, the members of the Chamber referred to
art. 5 par. 1 of Annexe 4 of the Regulations which stipulates that: “As a general
rule, to calculate the training compensation due to a player’s former club(s), it is
necessary to take the costs that would have been incurred by the new club if it
had trained the player itself”. The arguments of the Respondent, which focus
exclusively on the status of the Claimant as well as on the costs allegedly incurred
by the Claimant for the training of the player, are therefore irrelevant, as the
calculation is based on the costs that would have been incurred by the Respondent
as if it had trained the player itself. In this regard, taking into consideration that
the Football Association B had allocated the Respondent in the club category II
and the Respondent had never contested its allocation to this club category, the
Chamber had no reason to believe that the amount payable was disproportionate.
23.
Consequently, taking into account the above-mentioned considerations, the
Chamber found the amount of EUR 160,000 not disproportionate, accepted the
Claimant’s claim and decided that the Respondent is liable to pay training
compensation to the Claimant in the amount of EUR 160,000.
24.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of
Annexe 4 of the Regulations, the Chamber decided that the Respondent has to
pay, in conformity with its longstanding practice, interest at 5% p.a. over the
amount payable as training compensation as of the 31st day of the registration of
the player with the Respondent, i.e. as of 21 May 2010, until the date of effective
payment.
25.
Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in combination
with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings
before the DRC relating to disputes regarding training compensation costs in the
maximum amount of 25’000 are levied. It is further stipulated that the costs are to
be borne in consideration of the parties’ degree of success in the proceedings and
that, in accordance with Annex A of the Procedural Rules, the costs of the
proceedings are to be levied on the basis of the amount in dispute.
26.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 160,000 related to the claim of the
Claimant. Consequently, the Chamber concluded that the maximum amount of
costs of the proceedings corresponds to CHF 25,000 (cf. table in Annex A).
27.
As a result, and taking into account that the claim of the Claimant has been
accepted as well as the complexity of the case, the Chamber determined the costs
of the current proceedings to the amount of CHF 8,000, which shall be borne by
the Respondent.
10/12
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is accepted.
2.
The Respondent, K, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 160,000 plus 5% interest
p.a. due as from 21 May 2010 until the date of effective payment.
3.
In the event that the aforementioned sum is not paid within the stated time
limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
The final amount of costs of the proceedings in the amount of CHF 8,000 is to
be paid by the Respondent within 30 days of notification of the present
decision, as follows:
4.1.
The amount of CHF 4,000 to FIFA to the following bank account with
reference to case no. xxx XX-XXXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2.
The amount of CHF 4,000 to the Claimant.
5. The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
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
11/12
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
12/12