Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 June 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
Theo van Seggelen (the Netherlands), member
John Didulica (Australia), member
on the claim presented by the club,
A, X
as Claimant
against the club,
B, X
as Respondent
regarding a training compensation dispute related to the
transfer of the player C.
./…
I.
Facts of the case
1.
According to a written statement of the X football association, the player C
(hereinafter: the player), born on 18 September 1986, was registered for A, the
Claimant, as of 1 March 2001 for the 2000/01 sporting season and for the 2004/05
sporting season as an amateur. During the sporting season 2003/04 the player was
loaned to the club D as an amateur.
2.
Moreover, the player was allegedly registered for the Claimant during the
sporting seasons 1995/96, 1996/97, 1997/98, 1998/99 and 1999/2000. In this respect,
the Claimant presented copies of the player’s I.D. cards. The registration of the
player for the aforementioned seasons is not confirmed by the X football
association, since these juvenile players’ I.D. cards were dealt with by a local body
of the said association that apparently destroys all documents every five years. For
the sporting seasons 2001/02 and 2002/03 no information regarding the player’s
registration was provided by the aforementioned association.
3.
Furthermore, the X football association confirmed that as far as the categorisation
of its affiliated club is concerned, A is a category 1 club.
4.
Finally, the X football association informed FIFA that the player was transferred
from the Claimant to Y on 21 July 2005. A copy of the relevant international
transfer certificate was presented by the said football association.
5.
On 11 November 2005, the Claimant contacted FIFA claiming training
compensation in the amount of EUR 220,000 for the seven sporting seasons
1998/1999 until 2004/05, in accordance with the FIFA Regulations for the Status
and Transfer of Players (edition 2005).
6.
The Claimant maintains that the player signed his first professional contract with
the Y club B, the Respondent, on 21 July 2005.
7.
In addition, the Claimant outlined that the Respondent has rejected to pay
training compensation, since A did not offer the player a contract at the end of his
training in accordance with art. 6 par. 3 of annex 4 of the Regulations for the
Status and Transfer of Players. In this respect, the Claimant argued that the
aforementioned provision does not apply to the present matter, since there was
no current contract existing which would have obligated it to offer a new one.
8.
According to the Claimant, the said provision does neither assume some fictional
contract in this context nor is it drafted for young players with no previous
contract.
9.
Finally, the Claimant is of the opinion that it can “justify that it is entitled to such
compensation” as stipulated in the afore-mentioned provision, since it indeed
trained this player.
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10.
In reply thereto, the Respondent affirmed that it signed a professional contract
with the player on 21 July 2005. Furthermore, the Respondent is of the opinion
that no training compensation is due, since the Claimant did not offer a
professional contract to the player nor did it correspond with him at the end of his
training period to indicate that it would be retaining compensation on his
registration.
11.
The Respondent underlined that it enquired with the player and his
representatives that no payment would be due to the Claimant, prior to offering
an employment contract, and this was confirmed by all parties. In view of this, the
Respondent asserted that the player was clearly signed on the basis that training
compensation was not due to the Claimant. If the Dispute Resolution Chamber
does not agree with this view, then the Respondent considers the registration and
contract of the player null and void as he was signed under total misapprehension.
12.
The Claimant rejected the Respondent’s position and adhered to its claim. In
addition, it maintained that at the meeting on 5 July 2005 in Nyon between FIFA,
UEFA and the EPFL (European Professional Football League) it was confirmed that
the above-mentioned provision applies only to the renewal of a contract. In this
respect, the Claimant presented a copy of an annex 1 of a handout.
13.
The Respondent also adhered to its position. In addition, it underlined that it
made enquiries with other clubs, the league, the football association of Z and the
Y football association, together with the player and his representatives prior to
the player being offered a professional contract with it. The Respondent further
maintained that it was advised that training compensation would not be due as
the player was not offered a professional contract by the Claimant, nor did it offer
him a further period of training or correspond with him at the end of his training
period to indicate its future intentions. Finally, the Respondent affirmed that it is
not in a position to pay such training compensation and would never have offered
the player a contract of employment if in fact the Dispute Resolution Chamber’s
interpretation of the applicable regulations differs from its interpretation.
14.
The Y football association informed FIFA that the Respondent is placed as a
category 2 club.
15.
The indicative training costs for UEFA category 1 and 2 clubs amount to EUR
90,000 or EUR 60,000, respectively (cf. FIFA circulars no. 959 and 959a dated 16
March 2005).
16.
Upon FIFA’s request, the X football association informed that the Respondent has
also professional players.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber. The present matter was submitted to FIFA on 11
November 2005, as a consequence the Chamber concluded that the revised Rules
Governing Procedures (edition 2005) on matters pending before the decision
making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Disputes Resolution Chamber shall examine its
jurisdiction in light of articles 22 to 24 of the current version of the Regulations for
the Status and Transfer of Players (edition 2005). In accordance with art. 24 par. 1
in combination with art. 22 (d) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes between two clubs belonging to
different Associations related to training compensation.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the training compensation claimed by
the Claimant for the training and education of the player C.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1 and
2 of the Regulations for the Status and Transfer of Players (edition 2005) in their
modified version in accordance with the FIFA circular no. 995 dated 23 September
2005. Furthermore, it acknowledged that the player had been registered for the
first time as a professional for his new club in July 2005. Equally the Chamber took
note that the claim was lodged at FIFA on 11 November 2005. In view of the
aforementioned, the Chamber concluded that the current version of the FIFA
Regulations for the Status and Transfer of Players (edition 2005, hereinafter: the
Regulations) are applicable to the case at hand as to the substance.
5.
In continuation, and entering 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.
6.
In this respect, the Chamber took note of the fact that in accordance with a
written statement of the X football association, the player was registered for the
Claimant as of 1 March 2001 for the 2000/01 sporting season and for the 2004/05
sporting season as an amateur, that is for 2 sporting seasons between the ages of
13 to 14 years or 17 to 18 years, respectively.
7.
Equally, the Chamber duly noted that, on the one hand, the Claimant is requesting
training compensation for the training and education of the player concerned
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from the Respondent in the amount of EUR 220,000 for the seven sporting seasons
1998/1999 until 2004/05. On the other hand, the Chamber took into account that
the Respondent contests the Claimant’s entitlement to receive any training
compensation arguing that the Claimant did not offer the player a professional
contract, nor did it offer him a further period of training or correspond with him
at the end of his training period to indicate its future intentions.
8.
Continuing, 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 the player’s 23rd birthday.
9.
Moreover, the Chamber referred 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). According to par. 3 sent. 1 of the mentioned provision, training
compensation is only payable if the former club does offer the player a contract or
if it can justify that it is entitled to training compensation.
10.
In view of the above, 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 and, in the
affirmative, finally, to calculate the amount of training compensation payable by
the Respondent to the Claimant, if any would be due.
11.
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 X to Y,
i.e. between two EU countries, art. 6 par. 3 of annex 4 of the Regulations is
applicable. This fact does not appear to be contested by any of the parties.
Therefore, the Chamber concluded that the aforementioned provision applies in
the case at hand as lex specialis.
12.
In this sense, the Chamber emphasised once again that in accordance with art. 6
par. 3 sent. 1 of annex 4 of the Regulations, 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.
13.
To that regard, the Chamber acknowledged that it is uncontested by both, the
Claimant and the Respondent, that no professional contract was offered to the
player by the Claimant prior to his transfer to the Respondent.
14.
In this context, the Chamber turned its attention to the Claimant’s argument,
according to which the above-mentioned provision does not apply in casu, since
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there was no current contract existing which would have obligated it to offer the
player a new one. Furthermore, the Chamber noted that, according to the
Claimant, the said provision does neither assume some fictional contract in this
context nor is it drafted for young players with no previous contract. Finally, the
Chamber acknowledged that the Claimant therefore is of the opinion that art. 6
par. 3 of annex 4 of the Regulations applies only to the renewal of a contract.
15.
Considering the position of the Claimant, the Chamber referred to the decision
CAS 2006/A/1152 taken by the Court of Arbitration for Sport (CAS) on 7 February
2007, by means of which the CAS confirmed the existing jurisprudence of the
Dispute Resolution Chamber as far as the applicability of art. 6 par. 3 of annex 4 of
the Regulations is concerned. In particular, the CAS corroborated that the first
sentence of art. 6 par. 3 of annex 4 of the Regulations does cover both amateur
and professional players (cf. point 8.8 of the aforementioned decision). In fact,
according to the Chamber’s jurisprudence and as confirmed by the CAS in the
relevant decision, the second and third sentence of the provision in question,
however, do only apply “to situations when a professional contract is already in
existence, setting out certain requirements which the training club must meet in
order to retain a right to compensation if a player moves to another club” (cf.
point 8.9 of the aforementioned CAS-decision).
16.
Subsequently, the Chamber specified that according to its jurisprudence, art. 6 par.
3 sent. 1 of annex 4 of the Regulations, i.e. the obligation to offer a professional
contract to the player, does not apply to pure amateur clubs, which are per se not
in a position to do so, but does definitively apply to clubs, which have amateur
and professional players.
17.
In this respect, the Chamber stressed that the football association of X confirmed
that the Respondent has also professional players (cf. point I.16. of the abovementioned facts). Consequently, the Chamber concluded that the Claimant had to
meet the prerequisites of the above-mentioned art. 6 par. 3 sent. 1 of annex 4 of
the Regulations in order to be entitled to training compensation. As a result, the
Chamber decided to reject the Claimant’s argumentation with regard to the
applicability of the relevant provision.
18.
In continuation, the Chamber analysed if the Claimant had complied with art. 6
par. 3 sent. 1 of annex 4 of the Regulations in order to be entitled to training
compensation.
19.
At first, the Dispute Resolution Chamber emphasised again that in accordance
with art. 6 par. 3 sent. 1 of annex 4 of the Regulations, 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.
20.
In this context, the Chamber recalled that it is undisputed by the parties that the
Claimant did not offer the player a contract (cf. point II.13. of the above6
established considerations). Consequently, the Chamber only had to analyse if the
Claimant could justify that it is nevertheless entitled to training compensation.
21.
In this respect, the Chamber acknowledged that the Claimant explained that it
could justify such an entitlement, since it indeed trained the player concerned (cf.
point I.9. of the above-mentioned facts).
22.
To that regard, the Chamber referred again to the aforementioned decision of the
CAS, according to which such a justification means to show a bona fide and
genuine interest in retaining the player for the future (cf. point 8.16 of the said
CAS-decision). In other words, besides training the player, the club needs to have a
proactive stance towards the player, in order to show him that his services are
appreciated and a further relationship welcomed, despite no contract being (yet)
offered.
23.
In this respect, the Chamber noticed that the Claimant, carrying the burden of
proof (cf. art. 12 par. 3 of the FIFA Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber), did not provide any
indications at all which would show that it had somehow communicated to the
player that it had an interest in retaining him for the future. Consequently, the
Chamber deemed that the Claimant did not provide any documentary evidence
corroborating such a bona fide and genuine interest in retaining the player for the
future. In this respect, the Chamber stressed that the Claimant’s argument that it is
entitled to training compensation, since it indeed trained the player concerned,
does clearly not constitute such a justification. Consequently, the Chamber decided
to reject the Claimant’s argument.
24.
In view of all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the Claimant neither offered the player a contract
nor justified that it is entitled to such compensation although it did not offer any
contract at all to the player.
25.
As a consequence, the Chamber decided that the requirements of art. 6 par. 3
sent. 1 of annex 4 of the Regulations were not met by the Claimant.
26.
On account of all the foregoing considerations, the Chamber concluded that the
Claimant is not entitled to receive any training compensation for the training and
education of the player C from the Respondent and, therefore, decided to fully
reject the Claimant’s claim.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is rejected.
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2.
According to art. 61 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
General Secretary
Enclosed: CAS directives
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