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
Club L FC,
as Claimant
and the club
Club D FC,
as Respondent
regarding a training compensation dispute related to the
transfer of the player T.
I.
Facts of the case
1.
The player T (hereinafter: the player) was born on 12 November 1986.
2.
According to a statement of the I Football Association, the player was registered
with its affiliated club, L FC (hereinafter: the Claimant), as from 12 September 2006
until 31 May 2008 as a professional.
3.
The football season in N runs from 1 September to 31 August of the following
year.
4.
The I Football Association confirmed that the Claimant was a category III club
(indicative amount of EUR 30,000) during the period when the player was
registered with it.
5.
On 1 July 2008, the player was registered with D FC (hereinafter: the Respondent),
which is affiliated to the Football Association of I, as a professional.
6.
The Football Association of I confirmed that the Respondent belonged to the
category II (indicative amount of EUR 60,000 per year) when the player was
registered with it.
7.
On 29 September 2008, the I Football Association contacted FIFA on behalf of its
affiliated club, requesting the payment of the proportion of training
compensation due to its affiliate from the Respondent. The I Football Association
did not specify an amount of training compensation allegedly due to the Claimant.
8.
In this respect, the I Football Association stated that around December 2007 or
January 2008, the Claimant gave the player a verbal confirmation that an offer of
a contract extension would be made at the end of the current season. The I
Football Association added that a verbal offer was made in May 2008 during a
meeting held between the player and representatives of the Claimant. However,
according to the I Football Association, the player left N during this time for
holidays without having given any answer to the aforementioned offer prior to
the expiry of his employment contract, which was to occur on 31 May 2008.
9.
Furthermore, according to the Claimant, the Respondent had verbally
acknowledged “the applicability of the training and development compensation
principles in this case and made a verbal offer in lieu of a verbalisation of the case
to FIFA”.
10.
In reply to the Claimant’s claim, the Respondent held that no training
compensation was due to the Claimant. The Respondent further stated that the
player was out of a contract with his previous club at the time he was transferred
2
to the Respondent and that no formal offer of a new and improved contract had
been made 60 days prior to the expiry of the current contract by the Claimant to
the player via registered post, in accordance with art. 6. par. 3 of Annexe 4 of the
Regulations on the Status and Transfer of players.
11.
Finally, the Respondent denied having ever proposed any agreement to settle the
matter with the Claimant.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the 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 29 September 2008. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par.
2 and 3 of the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 and art. 22 lit. d) of the
Regulations on the Status and Transfer of Players (edition 2008; hereinafter:
Regulations), it was competent to decide on the present litigation with an
international dimension concerning the training compensation claimed by the
Claimant, L FC, for the training and education of the player T.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 1 July 2008, 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, and considering that the
present claim was lodged on 29 September 2008, the current version of the
regulations (edition 2008) 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. First and
foremost, 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 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 a professional is transferred between clubs of two different Associations
before the end of the season of the player’s 23rd birthday.
3
6.
In continuation, the Chamber recalled that the player was born on 12 November
1986 and was registered with the Claimant as from 12 September 2006 until 31
May 2008 as a professional.
7.
Moreover, the Chamber referred, in particular, to art. 6 of Annexe 4 of the
Regulations, which contains special provisions regarding players moving from one
Association to another one inside the territory of the European Union (EU) or the
European Economic Area (EEA).
8.
In this respect, the Dispute Resolution Chamber stated that it had to verify
whether art. 6 par. 3 sent. 1 of Annexe 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 fundamentally entitled to training compensation.
9.
As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is
concerned, the members of the Chamber first of all stated that, as the player
moved from N to I , i.e. from one Association to another inside the territory of the
EU, art. 6 par. 3 of Annexe 4 of the Regulations is undoubtedly applicable to the
case at hand. Indeed, this fact did not appear to be even contested by the parties
of the present dispute. Therefore, the Chamber concluded that the
aforementioned provision applies to the case at hand as lex specialis.
10.
On account of the aforesaid and taking into consideration the position put
forward by the Respondent, the Chamber analysed if the Claimant had complied
with the prerequisites of article 6 paragraph 3 of Annexe 4 of the Regulations in
order to be entitled to training compensation.
11.
In this sense, the Chamber emphasized that, in accordance with art. 6 par. 3 sent. 1
of Annexe 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. The former club must offer the player a
contract in writing via registered mail at least 60 days before the expiry of his
current contract (art. 6 par. 3 sent. 2 of Annexe 4 of the Regulations).
12.
In view of the above, the Chamber examined the allegations of the Claimant.
13.
The members of the Chamber first of all acknowledged that the Claimant had
asserted having made a verbal offer to the player during a meeting held between
the player and representatives of the Claimant in May 2008. However, the player
requested more time in order to consider the offer but, according to the Claimant,
he neither reverted to the said offer nor responded to the said verbal offer prior
to the expiry of the contract on 31 May 2008.
4
14.
In this respect, the Chamber was eager to emphasize that art. 6 par. 3 sent. 1 of
Annex 4 of the Regulations explicitly stipulates that the former club must offer a
contract in writing, without providing for any exception to that principle. As a
consequence, the Chamber stressed that a verbal offer could not be considered as
fulfilling the prerequisites provided for in art. 6 par. 3 sent. 1 of Annexe 4 of the
Regulations.
15.
Therefore, the panel came to the conclusion that the Claimant had failed to offer
a new contract to the player in accordance with the aforesaid provision.
16.
In light of the foregoing, the panel held that, by failing to produce evidence of
having met the requirements of art. 6 par. 3 of Annexe 4 of the Regulations, or at
least by failing to have unambiguously demonstrated that an offer as stipulated in
the just said provision had been made, the Claimant is not entitled to claim
training compensation from the Respondent.
17.
Besides, and for the sake of good order, the Chamber recalled that the Claimant
stated that the Respondent acknowledged the applicability of the training
compensation mechanism and even tried to amicably solve the matter by making
a verbal offer regarding the payment of such training compensation.
Simultaneously, the panel acknowledged that, on the contrary, the Respondent
had asserted that it had never proposed any agreement in order to settle the
matter.
18.
In this regard, the Chamber deemed it appropriate to recall the general principle
of burden of proof provided 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. Moreover, the Chamber referred to par.1 of the aforementioned
article concerning the evidence of relevance before the Chamber.
19.
In particular, the Chamber acknowledged that the Claimant asserted that a verbal
offer had been made by the Respondent. In this respect, the panel established
that a verbal offer could not constitute sufficient evidence in order to prove an
allegation.
20.
Therefore, the Chamber maintained that the Claimant had failed to sufficiently
prove its assertion and consequently held that the Claimant’s argument as to the
existence of an offer made by the Respondent for the payment of training
compensation should be rejected.
21.
On account of all the foregoing considerations, the Chamber decided that the
Claimant is not entitled to receive training compensation from the Respondent for
the training and education of the player T, and that the claim of the Claimant is
therefore rejected.
5
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, L FC, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 63 paragraph 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
6