Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 June 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Mohamed Mecherara (Algeria), member
on a matter between the club
C FC,
as Claimant
and the club
A,
as Respondent
regarding a training compensation dispute related to the transfer
of the player R
I.
Facts of the case
1.
The B Football Federation confirmed that the B player, R (hereinafter: the player),
born on 16 May 1985, was registered for its affiliated club C FC (hereinafter: the
Claimant) as from 17 March 2003 until 19 January 2004 as an amateur and from 20
January 2004 until 10 July 2007 as a professional.
2.
The sporting season in B lasts from 1 January to 31 December.
3.
On 14 August 2007, the player was registered for the P club A (hereinafter: the
Respondent) as a professional player.
4.
The P Football Federation confirmed that the Respondent belonged to the
category 2 during the season 2007/2008.
5.
On 26 June 2008, the Claimant contacted FIFA asking for the payment of its
proportion of training compensation from the Respondent. In particular, the
Claimant requested the payment of a total amount of EUR 227,500, with interests,
composed as the following:
- EUR 47,500 for the period comprehended between 17 March and 31
December 2003;
- EUR 60,000 for the 2004 season;
- EUR 60,000 for the 2005 season;
- EUR 60,000 for the 2006 season.
6.
On 30 January 2009, the Respondent rejected the claim of the Claimant. In this
respect, the Respondent alleged that no training compensation was due to the
Claimant, since the player had not been registered as a professional for the first
time with the Respondent in accordance with art. 2 par. 1 lit. i) of Annexe 4 of the
Regulations on the Status and Transfer of Players. Furthermore and according to
the Respondent, the player had already signed four “professional contracts” with
the Claimant before signing an employment contract with the Respondent on 11
August 2007.
7.
Moreover, the Respondent asserted that no training compensation was due for
the reason that the player had not been internationally transferred between the
parties to the dispute during or at the end of the player’s contract with the
Claimant. In this respect, the Respondent stated that, on 10 July 2007, the
Claimant and the player had agreed on the early termination of the employment
contract signed between them. Thus, the Respondent affirmed that the player was
unemployed when they signed an employment contract on 11 August 2007. In this
context, the Respondent highlighted the fact that the player passport mentioned
“no record found” with regard to period of time as from 11 July until 12 August
2007. Therefore, the Respondent was of the opinion that the Claimant could not
claim the payment of training compensation on the basis of art. 2 par. 1 lit. ii) of
Annexe 4 of the Regulations on the Status and Transfer of Players.
8.
Additionally, according to the Respondent, the Claimant was not entitled to claim
training compensation for the seasons of the player’s 20th and 21st birthdays, i.e.
the 2005 and 2006 seasons. In this respect, the Respondent held that the player
had allegedly terminated his training period in the year 2004, when he signed his
first professional contract with the Claimant, i.e. on 20 January 2004, and also
stated that the player had already played in the “A” team of the Claimant and
cited, in this regard, an internet website, www.soccerassociation.com, without,
however, providing FIFA with further documentary evidence.
9.
Finally, the Respondent claimed that no training compensation was due to the
Claimant, since the latter had not offered a new contract to the player in
accordance with art. 6 par. 3 of Annexe 4 of the Regulations on the Status and
Transfer of Players.
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, the Chamber first referred to art. 21
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008). The present
matter was submitted to FIFA on 26 June 2008, thus before the aforementioned
Rules entered into force on 1 July 2008. Therefore, the Dispute Resolution
Chamber referred to art. 18 par. 2 and 3 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (DRC)
(hereinafter: Procedural Rules; edition 2005) and concluded that the 2005 edition
of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2008). In accordance with art. 24 par. 1 and par. 2 in
connection with art. 22 lit. d) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes relating to training
compensation.
3.
Furthermore the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2008)
and, on the other hand, to the fact that the present claim was lodged on 26
June 2008 and that the player was registered for the Respondent on 14 August
2007. In view of the aforementioned, the Dispute Resolution Chamber concluded
that that the 2005 edition of the Regulations for 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 facts of the case as well as the
documentation contained in the file.
5.
Furthermore, 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 a professional is transferred between clubs of two different Associations
before the end of the season of the player’s 23rd birthday.
6.
In this respect, the Chamber recalled that the player, born on 16 May 1985, was
registered for the Claimant as from 17 March 2003 until 19 January 2004 as an
amateur and as from 20 January 2004 until 10 July 2007 as a professional.
7.
Equally, the members of the Chamber noted that the Respondent contested the
Claimant’s entitlement to receive training compensation.
8.
In this respect, the Chamber took note that the Respondent argued that the player
had not been registered for the first time as a professional with it in the sense of
art. 2 par. 1 lit. i) of Annex 4 of the Regulations, since he had already signed
several “professional contracts” with the Claimant and that the player had not
been transferred between clubs of two different Associations in the sense of art. 2
par. 1 lit. ii) of Annex 4 of the Regulations, since the latter had been unemployed
during approximately one month before signing an employment contract with the
Respondent.
9.
On account of the aforesaid, the Chamber noted that the relevant player passport
issued by the B Football Federation, and submitted by the Claimant, establishes
that the player was first registered for the Claimant as an amateur before being
registered for the latter as a professional on 20 January 2004. As a consequence,
the Chamber pointed that art. 2 par. 1 lit. ii) of Annex 4 of the Regulations was the
applicable provision to the matter at stake, since the player had been transferred
as a professional player.
10.
In this regard, the Chamber deemed it appropriate to recall its jurisprudence,
confirmed by the Court of Arbitration for Sport, according to which a club that has
trained a player as an amateur for a certain period of time before concluding an
employment contract with him shall be compensated for the entire time that it
trained the player and not only for the time it trained him as a professional.
11.
In continuation, the Chamber referred to the wording of art. 2 par. 1 lit. ii) of
Annex 4 of the Regulations, which stipulates that the transfer of the player can
take place either during or at the end of his contract (emphasis added). Thus, the
members of the Chamber highlighted the fact that the relevant transfer of the
player can occur after the expiry, mutual or justified termination of the player’s
previous employment contract, without the training club losing its entitlement to
training compensation. Therefore, the Chamber had no other alternative but to
reject the Respondent’s statement, according to which no training compensation
was due since the player had not been transferred internationally between the
parties to the dispute during or at the end of the player’s contract with the
Claimant.
12.
In continuation, the Chamber acknowledged that the Respondent was of the
opinion that the Claimant was not entitled to receive training compensation for
the training education incurred between the season of the player’s 20th and 21st
birthday, i.e. the 2005 and 2006 seasons. The Chamber took note that the
Respondent alleged, in this respect, that the player terminated his training period
in the year 2004, when he signed his first professional contract with the Claimant
on 20 January 2004 and that the player played in the “A” team of the Claimant,
citing in this regard, an internet website, www.soccerassociation.com, without,
however, providing FIFA with further documentary evidence.
13.
In this regard, the Chamber deemed it appropriate to recall the general principle
of burden of proof stipulated in art. 12 par. 3 of the Procedural Rules, according to
which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof, and, pointed out that the Respondent did not submit any
documentary evidence in support of its allegations that the player had terminated
his training period before the age of 21.
14.
Furthermore, the Chamber recalled that art. 1 par. 1, 1st sentence in fine of Annex
4 of the Regulations stipulates that it shall be evident (emphasis added) that the
player had already terminated his training period before the age of 21. In
continuation, the members of the Chamber referred to its well-established
jurisprudence in this respect and recalled that the exception provided for in the
aforementioned provision shall be strictly examined by the Chamber. In particular,
the only fact to sign an employment contract is not per se sufficient to
demonstrate that the player’s training period had effectively ended before the
age of 21, without analyzing further elements, such as, inter alia, the technical
skills of the player or the number of matches played with the “A” team.
15.
In view of the above, the Chamber considered that the Respondent failed to prove
that the player had terminated his training period in the year 2004, and, thus, had
no other alternative but to reject the Respondent’s argumentation in this regard.
16.
Eventually, the Dispute Resolution Chamber acknowledged that the Respondent
contested the Claimant’s entitlement to receive training compensation on the
basis that the Claimant had not offered a new and improved contract in
accordance with art. 6 par. 3 of Annex 4 of the Regulations.
17.
In this respect, the Chamber highlighted the fact that the aforementioned
provision only applies when a player is moving from one Association to another
inside the territory of the EU/EEA. Consequently, B not being a country inside the
territory of the EU/EEA, art. 6 par. 3 of Annex 4 of the Regulations is not
applicable to the matter at hand and that, consequently, the Claimant had no
obligation to offer a new and improved contract to the player.
18.
On account of the foregoing, the Chamber concluded that the Claimant was
entitled to receive training compensation from the Respondent.
19.
In continuation, the Dispute Resolution Chamber duly noted that the Claimant is
requesting training compensation for the training and education of the player
incurred between 17 March 2003 until 31 December 2006, i.e. the seasons
comprehended between the player’s 18th and 21st birthday, in an amount of EUR
227,500, as well as the payment of interests.
20.
In view of the aforementioned points II. 5. and II. 6. as well as art. 3 par. 1 of
Annex 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 Dispute Resolution Chamber concluded that the effective period of
time to be considered in the matter at stake corresponds to the period
comprehended between 17 March 2003 until 31 December 2006.
21.
Turning its attention to the calculation of training compensation, the Chamber
referred to art. 5 par. 1 and 2 of Annex 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.
22.
In continuation, the Chamber took due note that according to the information
provided by the P Football Federation, the Respondent was a category 2 club at
the time the player was registered for it on 14 August 2007. Consequently, the
Chamber took into account that the indicative training costs for a category 2 club
and member of a national association affiliated to the Union des Associations
Européennes de Football (UEFA) amount to EUR 60,000 (cf. FIFA Circular nr. 1085
dated 11 April 2007).
23.
Consequently and taking into account all the above-mentioned elements, the
Dispute Resolution Chamber decided that the Claimant was entitled to receive
training compensation from the Respondent in an amount of EUR 225,000, with
5% interest p.a. as from 15 September 2007.
24.
Therefore, the Chamber decided that the Respondent shall pay to the Claimant
training compensation amounting to EUR 225,000 and, hence, the claim of the
Claimant, C FC, is partially accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, C FC, is partially accepted.
2.
The Respondent, Club A, has to pay the amount of EUR 225,000, as well as 5 %
interest per year on the said amount as from 15 September 2007 until the date of
effective payment, to the Claimant, C FC, within 30 days as from the date of
notification of this decision.
3.
Any further claims lodged by the Claimant, C FC, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
5.
The Claimant, C FC, is directed to inform the Respondent, A, 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.
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
________________________________
Markus Kattner
Deputy Secretary General
Encl.
CAS directives