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, Y
as Respondent
regarding a training compensation dispute related to the
transfer of the player C.
./…
I.
Facts of the case
1.
According to information provided by the football association of X, the player C,
born on 27 July 1985, was registered as an amateur player with the club, A
(hereinafter: the Claimant), for the sporting seasons 2000/01, 2001/02, 2002/03 and
2003/04, i.e. between the ages of 15 and 18.
2.
Furthermore, the above-mentioned association informed FIFA that as far as the
categorization of A is concerned, the training club is in category 4.
3.
Moreover, the said association informed FIFA that the sporting season in X is
mainly played each year from 1 August to 1 July of the following year.
4.
In the 2004 summer registration period, i.e. in August 2004, the player moved to
the club B from Y, where, according to the X football association, he signed a nonamateur contract. According to the information received from the Y football
association, in the meantime, the aforementioned club B, underwent a change of
name into B (hereinafter: the Respondent).
5.
By means of its correspondence dated 12 May 2005, the football association of X
lodged a formal claim before FIFA on behalf of the Claimant and demanded
training compensation from the Respondent in the amount of EUR 80’000. The
Claimant, in support of its claim, submitted a fax dated 22 November 2004 from
the Y football association addressed to the X football association, in which the
former informed, firstly, that according to the Respondent and the Y league the
player C had signed a contract with the Respondent, secondly, that in X a
differentiation between amateur and professional clubs does not exist and, finally,
that the Respondent is classified as a category 3 club.
6.
On 5 August 2005, the Respondent informed FIFA that in its view, the Claimant
had no claim for training compensation. The Respondent pointed out that the
player C had been registered with it as an amateur player and had never signed a
non-amateur contract. In this respect, the Respondent explained that its
administrative department had wrongly stated that the player had non-amateur
status in response to the initial request from the X football association. This
erroneous communication could probably be attributed to the fact that the player
had been registered with the social insurance scheme for insurance reasons.
7.
To support its position, the Respondent submitted two e-mails dated 17 June 2004
and 21 February 2005 from a certain Mr F, who apparently had introduced the
player to the Respondent. In these e-mails to the Respondent, Mr F outlined the
arrangements that had to be made for the player’s registration with the
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Respondent. In particular, Mr F explained that the contractual draft should contain
the player’s board and lodging, insurance and some pocket money only, that the
transfer of the player from X should occur on an amateur basis only and that after
several injuries during training sessions in October and November, the player
decided to end his football career in order to prevent an artificial hip in December
2005. .
8.
On 18 August 2005, the Claimant in its replication, adhered to its position. It
added that the e-mails from Mr F, submitted by the Respondent, could not be
taken into account, as he had no official position in the present procedure. The
Claimant deemed that the relevant declarations from Mr F could not prove that
the player had been registered with the Respondent as an amateur. Even more,
since Mr F was involved in the player’s transfer and therefore not an objective
party to the matter at hand.
9.
In its rejoinder of 7 November 2005, the Respondent again emphasized that the
player, at no time, signed a non-amateur contract with it and referred to its
previous statements. According to the Respondent, the player had been registered
as a “marginal part-time employee” for insurance reasons. In this respect, it
submitted a copy of the insurance acknowledgment to the file. In addition, the
Respondent informed that the player had merely signed a self-insurance
application and not an employment contract. A corresponding copy of this
application was remitted to the file by the Respondent. The said document
indicated that the player received from the Respondent a monthly remuneration
of EUR 316.19.
10.
On 2 March 2007, FIFA requested the Y football association to inform it on the
status (amateur or non-amateur) of the player C, with which the latter was
registered for the Respondent. In reply hereto, the Y football association stated
that the player was registered at the Y football league as a non-amateur.
11.
On 11 April 2007, FIFA requested the Y football association and the Y football
league to inform it if a written employment contract concluded between the
Respondent and the player has been deposited with the Y football association or
the Y football league. Furthermore, and since FIFA have come to learn that
apparently the Respondent is not any longer an affiliated member of the Y
football association and the Y football league, it asked them for the relevant
information also to that regard.
12.
In reply hereto, the Y f league explained that he player was registered as a
“contract player”, however, a relevant contract was not deposited with the Y
football league.
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13.
The Y football association further explained that the Respondent is still an
affiliated member of the said association and the Y football league, but does not
participate any longer in the national championship excepting in some regional
junior team competitions.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the 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 12 May 2005,
as a consequence the Chamber concluded that the previous Procedural Rules
(edition 2001) 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. 42 par. 1 lit. (b) (iv) of the
FIFA Regulations for the Status and Transfer of Players (edition 2001) establishes
that, disputes concerning training compensation, will be decided by the Dispute
Resolution Chamber.
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 the
modified version in accordance with the FIFA circular no. 995 dated 23 September
2005. Furthermore, it acknowledged that the player had been registered for his
new club in August 2004. Equally the Chamber took note that the claim was
lodged at FIFA on 12 May 2005. In view of the aforementioned, the Chamber
concluded that the former FIFA Regulations for the Status and Transfer of Players
(edition 2001, 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 exposed that, as established in Chapter VII of the Regulations,
training compensation for a player’s training and education is payable by the new
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club either when the player signs his first contract as a non-amateur or each time a
non-amateur player changes from one club to another up to the time his training
and education is complete, which, as a general rule, occurs when the player
reaches 23 years of age (cf. art. 14 and 15 of the Regulations).
6.
In this respect, the members of the Chamber acknowledged that, on the one hand,
the Claimant requests training compensation based on the number of years the
player spent training with the Claimant. On the other hand, the Respondent, by
maintaining that it did not sign any employment contract with the player in
question and thus the latter remained an amateur at the time he was registered
with it, rejects the claim put forward by the Claimant.
7.
Furthermore, the Chamber considered that the Claimant supported its claim in
particular by means of the confirmation it received from the Y football association
dated 22 November 2004, according to which the player in question had signed a
contract with the Respondent.
8.
Equally, the members of the Chamber took note that, for its part, the Respondent
pointed out having never signed any employment contract with the player in
question. However, the Respondent admitted that its administration had
erroneously confirmed in its reply to the initial request of the X football
association that the player had non-amateur status. According to the Respondent,
this fault could be attributed to the fact that the player C had been registered
with the social insurance scheme as part-time employee for insurance reasons.
Furthermore, it was noted by the Chamber that in support of its statement, the
Respondent submitted a copy of the player’s self-insurance application. According
to the said insurance, the player was supposed to receive from the Respondent a
monthly salary of EUR 316.19.
9.
On account of the divergent statements of the parties to the dispute, the members
of the Chamber acknowledged that the two clubs involved in the present matter
are arguing as to whether the player in question has to be considered an amateur
or a non-amateur for the period of time he was registered with the Respondent.
The Chamber stated that this question is crucial for the determination whether or
not the Claimant may be entitled to receive training compensation from the
Respondent.
10.
In this respect, the members of the Chamber declared that the question whether a
player has to be considered an amateur or a non-amateur must only be
established pursuant to the applicable Regulations, in particular Chapter I, art. 2 of
the Regulations. The Chamber emphasized that the relevant provisions of the
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aforementioned article of the Regulations are also binding at national level (cf.
Preamble, par. 2 of the Regulations).
11.
In view of the above, the Chamber concluded that in order to determine the status
of the player in question for the period of time he was registered for the
Respondent, it would have to analyse the specific situation of the player C in the
light of the aforementioned article. This irrespective of the contents of the e-mails
submitted to the file by someone not having an official position in the present
procedure or the divergent statements received from the clubs and the
associations involved throughout the investigations of the present case.
12.
The deciding body continued by stating that in accordance with Chapter I, art. 2
par. 3 and art. 4 par. 1 of the Regulations, a player shall be regarded as a nonamateur if he has a written employment contract with the club employing him
based on which he receives remuneration in excess of the expenses effectively
incurred in return for his footballing activity. Both elements need to be
cumulatively met.
13.
At this point, the Chamber deemed it appropriate to underline that, as a matter of
fact, neither one of the two clubs involved nor the associations concerned were
able to demonstrate with documentary evidence that a written employment
contract was effectively signed between the player C and the Respondent.
Actually, the Chamber noted that the Claimant is basing its claim mainly on the
information it initially received from the Y football association by means of the
latter’s correspondence dated 22 November 2004, indicating that the player signed
an employment contract with the Respondent. However, no signed employment
contract between the player and the Respondent was ever submitted to the file.
Moreover, the Chamber was eager to emphasize that the Y football league had
stated that it had registered the player as a “contract player”, however, a relevant
contract was not deposited with the Y football league. The deciding body recalled
that according to art. 4 par. 3 of the Regulations, a copy of the contracts
concluded between players and clubs shall be deposited with the association
concerned.
14.
On account of the above, the Chamber concluded that already the first element
required by the Regulations for a player to be regarded as non-amateur does not
appear to have been met in the case at hand.
15.
In addition, and confirming its aforementioned decision, the Chamber emphasized
that the denomination “contract player” in the present case by no means stands
for “a player having concluded a non-amateur contract”, since it is well known to
FIFA that in some football associations contracts were concluded between clubs
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and amateur players for whatsoever reasons. All the more in football associations,
as the Y football association, which do not make a differentiation between
amateur and professional clubs.
16.
Finally, the Chamber pointed out that the fact that the Respondent, although still
being an affiliated member of the Y football association and the Y football
league, does not participate any longer in the national championship excepting in
some regional junior team competitions, also confirms its above-established
decision.
17.
In continuation, the members of the Chamber noted that the Respondent
remitted a copy of the player’s self-insurance application from which it can be
learnt that the player apparently received from the Respondent a monthly
remuneration of EUR 316.19.
18.
Considering the remuneration envisaged in the player’s application for selfinsurance, the deciding body deemed that it is particularly low compared to the
average wages in Western Europe. Such monthly amount can indeed not be
considered as being in excess of the expenses of a player he effectively incurs in
return for his footballing activity.
19.
On account of all of the above, the Dispute Resolution Chamber concluded that
the player in question has to be considered as an amateur player for the time
when he was registered with the Respondent and this in conformity with the
applicable Regulations.
20.
In view of all the above, the Chamber deduced that the essential requirement in
order that training compensation has to be paid to the club(s) that has/have
trained a player in accordance with the Regulations has not been met, i.e. the
player has not acquired non-amateur status with his registration for the
Respondent.
21.
Therefore, the Dispute Resolution Chamber decided to reject the claim lodged by
the Claimant.
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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