Training Compensation
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 June 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mick Mc Guire (England) , member
Michele Colucci (Italy) , member
Zola Majavu (South Africa), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim presented by the club
X, xxxx
represented by xxxxx,
as Claimant
against the club
Y, xxxx
as Respondent
regarding training compensation
for the player A
./…
I.
Facts of the case
1.
The xxxx confirmed that the player A, born on 2 May 1984, was registered with
the club X (hereafter: the X club) as from 28 June 2004 (season of his 20th
Birthday) until 19 March 2005 as amateur, and as from 20 March 2005 until 31
March 2005 as professional, then he was loaned to a third club until 5 August
2005, when he returned to the X club until 10 August 2005.
2.
On 25 August 2005, the player was transferred from the X club to the club Y.
(hereafter: the Y club). The season in xxxx starts in July and ends in June of the
following year.
3.
On 22 May 2007, the X club contacted FIFA claiming training compensation. The X
club explained that it had signed an employment contract with the player on 20
March 2005 valid until 20 March 2006. The player had requested the termination
of the employment contact on 10 August 2005 and the X club had agreed upon
the premature termination of the employment contract in order to not hinder the
player’s career. However, the Y club had failed to pay the relevant training
compensation.
4.
The X club requested the amount of EUR 106,040, since the Y club is a first
category club in the sense of art. 4 of the Annexe 4 to the Regulations on the
Status and Transfer of Players. In particular, the X club claimed the amount of
EUR 51,300 for the season of the player’s 20 birthday 2004 and the amount of EUR
54,740 for the season of the player’s 21 birthday 2005.
5.
On 15 November 2007, the Y club emphasized that the “federative rights” to the
player had been transferred to its “B” team by Mr xxxx and Mr xxxx (licensed
players’ agent), the owners of the “federative rights” to the player. In this
respect, the Y club pointed out that according to the said transfer contract Mr
xxxx and Mr xxxx, the owners of the “federative rights” to player had agreed to
pay any training compensation to any club. Thus, the Y club deemed that it was
not obliged to pay any amount at all to the X club.
6.
On 22 January 2008, the X club emphasised that according to the official register
of the xxxx the International Transfer Certificate of the player had been issued in
favour of the Y club, and not to its “B” team. Furthermore, the X club argued
that the transfer agreement to which the Y club referred could not, in any way,
interfere with its right to receive training compensation as provided for by the
FIFA Regulations on the Status and Transfer of Players. In particular, the
aforementioned Regulations clearly establish that the player’s new club must pay
the relevant training compensation within 30 days after the player’s registration.
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The X club, particularly, emphasised that a private agreement signed between the
player’s new club and a third party could not be used by the new club to excuse its
non-compliance with the FIFA Regulations.
7.
On 25 February 2008, the Y club provided a copy of the player’s registration with
the xxxx Football League according to which it can be noted that the player was
registered with its “B” team affiliated to the second division on 31 August 2005.
Moreover, the Y club referred to its previous correspondence.
8.
According to the information of the xxxx Football Federation remitted in 2005, Y
club was a category 1 (indicative amount of EUR 90,000 per year) club and its “B”
was a category 2 (indicative amount of EUR 60,000 per year) club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution 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 22 May 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. 18 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 and art. 22
lit. (d) of the Regulations on the Status and Transfer of Players (edition 2008) the
Dispute Resolution Chamber is competent to decide on the present litigation with
an international dimension concerning the training compensation claimed by the
X club for the training and education of the player A.
3.
Furthermore, and taking into consideration that the player was registered with his
new club in August 2005, 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 2008), and considering that the present claim was lodged on 22
May 2007, the previous version of the regulations (edition 2005; 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 that, on the one hand, the X club
claims the amount of EUR 106,040 as training compensation from the Y club for
having trained the player as from 28 June 2004 until August 2005.
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5.
On the other hand, the Chamber took due note that the Y club deems that the
owners of the “federative rights” to the player, Mr xxxx and Mr xxxx, who
transferred the player, agreed to pay any training compensation to any claiming
club and that the player was registered with its “B” team, which does not belong
to the first category in the sense of art. 4 of the Annexe 4 to the Regulations.
6.
First of all, the Chamber was eager to emphasise that since 1 September 2001, the
date of the entry into force of the completely reviewed version of the FIFA
Regulations for the Status and Transfer of Players (edition 2001), the concept of
the so-called “federative rights” to players does not exist anymore. It was replaced
by the principle of maintenance of contractual stability between the contracting
parties (cf. Chapter VIII, art. 21 and following of the Regulations edition 2001 and
Chapter IV, art. 17 and following of the Regulations).
7.
Equally, the Chamber deemed it appropriate to recall that in principle a transfer
of a player takes places between two clubs and implies, in case of an international
transfer, that an International Transfer Certificate has been issued by the former
association and received by the new association. Moreover, and considering the
involvement of Mr xxxx, the Chamber emphasized that as a general rule players
and clubs are forbidden from using the services of a non-licensed players’ agent
(cf. art. 1 par. 2 of the Players’ Agent Regulations edition 2000 as well as art. 2 par.
2 of the current edition of the Players’ Agent Regulations).
8.
Finally, the Chamber was eager to emphasise that the relevant transfer agreement
signed between the Y club, Mr xxxx and Mr xxxx is not binding for the X club,
which is not a contractual party to such agreement.
9.
Subsequently, the Chamber stated that, as established in art. 1 par. 1 of Annexe 4
in combination with art. 2 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 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.
10.
In this respect, the Chamber considered that the xxxx confirmed that the player
has been registered with the X club as from 28 June 2004 (season of his 20th
Birthday) until 19 March 2005 as amateur, and as from 20 March 2005 until 31
March 2005 as professional, as well as from 10 August 2005 until 25 August 2005,
when he was internationally transferred.
11.
In view of the above, the Chamber concluded that based on the documents at
disposal it can be established that the professional player in question, born on 2
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May 1984, was internationally transferred in August 2005, i.e. before the end of
the season of the player’s 23 birthday and thus the X club is entitled to receive
training compensation.
12.
For the sake of completeness, the Chamber referred to its established
jurisprudence, which has been confirmed by the Court of Arbitration for Sport
(CAS; CAS 2004/A/560), according to which a club that has trained a player as an
amateur for a certain period of time an thereafter concludes an employment
contract with the player shall be compensated for the entire time that it trained
the player.
13.
Moreover, the Chamber recalled that in accordance with art. 3 par. 1 of Annexe 4
of the Regulations, the new club with which the professional player is registered is
responsible to pay training compensation.
14.
As a result, and considering all of the above, the Chamber concluded to reject the
arguments of the Y club that Mr xxxx and Mr xxxx, who transferred the player,
were responsible to pay any training compensation to any claiming club.
15.
Subsequently, and considering art. 3 par. 1 of the Annexe 4 of the Regulations,
which stipulates that the amount payable is calculated on a pro rata basis
according to the period of training that the player spent with each club, the
Chamber concluded that the effective period of time to considered at the matter
at stake corresponds to 9 months (the months of July 2004 until March 2005),
during which the player was effectively trained and educated by the Brazilian
club.
16.
Turning its attention to the calculation of training compensation, the Chamber
referred to art. 5 par. 1 and 2 of Annexe 4 of the Regulations, which stipulates
that as a general rule, it is necessary to take the costs that would have been
incurred by the new club if it had trained the player itself and thus it is calculated
based on the training costs of the new club multiplied by the number of years of
training with the former club.
17.
In this respect, the Chamber duly noted that according to all the documents
remitted it can be established that the player had been transferred to the Y club
in August 2005, which according to the information received belonged to
category 1 in the season 2005/2006 (indicative amount EUR 90,000 per year).
18.
However, and in this context, the Chamber considered the arguments of the Y
club that the player had been transferred to its “B” team which belongs to
category 2. The Chamber also took due note that according to the player’s
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registration with the xxxx Football League, the player had been registered with
the “B” team affiliated to the second division on 31 August 2005.
19.
In this respect, the Chamber emphasized that various provisions related to the
training compensation always refer to the term “club”, and clearly establish that it
is the reasonability of the new club to pay the training compensation which is
calculated based on the categories into which all associations divide their clubs in
accordance with the clubs’ financial investments. Equally, the Chamber recalled
that the training costs are established on a confederation basis for each category
of clubs (emphasise added).
20.
Congruously, the Chamber reiterated that the clubs have to be allocated into four
categories and not the teams of the clubs. Therefore, the Chamber concluded that
the relevant training compensation due to the X club has to be calculated taking
into account the category of the Y club, i.e. category 1.
21.
As a result, the Chamber, taking into consideration all the above as well as art. 5
par. 1 and 2 of Annexe 4 to the Regulations, concluded that the X club is entitled
to receive the amount of EUR 67,500 from the Y club for the training and
education of the player concerned.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay the amount of EUR 67,500 to the Claimant within 30
days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline
interest of 5% p.a. as from expiry of the above-mentioned deadline until the
effective date of payment will apply and the present matter shall be submitted
upon the parties request to FIFA’s Disciplinary Committee so that the necessary
disciplinary sanctions may be imposed.
4.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
5.
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
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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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