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
A,
as Claimant
and the club
F,
as Respondent
regarding training compensation related to
the transfer of the player L
I.
Facts of the case
1.
The player L (hereinafter: the player), was born on 26 June 1987.
2.
According to the player passport provided by The Football Association, the player
was registered with the club A (hereinafter: the Claimant), as from 10 August 2004
until 16 September 2004 as a scholar and as a professional from 16 September
2004 until 18 August 2006. The player was loaned by the Claimant to the club D
for the 2006/2007 season, more precisely from 18 August 2006 until 30 June 2007.
3.
According to The Football Association, the Claimant is a category 1 club and the
sporting season in E runs from 1 July until 31 May of the following year.
4.
Upon the expiry of the contract concluded between the Claimant and the player
on 30 June 2007, the player was transferred to the club F (hereinafter: the
Respondent).
5.
According to the Football Federation I, the player was registered with the
Respondent on 6 July 2007. The Respondent is a category 1 club.
6.
On 7 January 2008, the Claimant contacted FIFA, via The Football Association, and
requested the payment of training compensation in connection with the transfer
of the player amounting to EUR 270,000, i.e. the payment of training
compensation amounting to EUR 90,000 for each of the following seasons:
2004/2005, 2005/2006 and 2006/2007.
7.
On 29 March 2008, the Respondent held that no training compensation was owed
to the Claimant for the following reasons:
the player terminated his training period at the end of the 2005/2006
season,
the transfer chain was interrupted by an internal loan between the
Claimant and the club D and
the Claimant never offered a contract, as prescribed in art. 6 par. 3 of
Annexe 4 of the Regulations on the Status and Transfer of Players.
8.
The Respondent added that no training compensation was in any case due to the
Claimant for the 2006/2007 season, since the Claimant loaned the player to the
club D and therefore did not effectively train him.
9.
On 13 October 2008, the Claimant maintained its position and, in particular, held
that the player was registered for it from the 2004/2005 until the 2006/2007
season, i.e. for a total of 3 seasons.
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10.
With regard to the first argument of the Respondent, the Claimant held that
training compensation would in any case be due for the seasons 2004/2005 and
2005/2006. Furthermore, the Claimant explained that the player did not terminate
his training period at the end of the 2005/2006 season, since the player appeared
only once in a Premier League game at the end of the 2005/2006 season.
Therefore, the Claimant loaned the player for the season 2006/2007 to the Club,
which was playing in Second Division, in order for the player to gain experience
and continue his training and education. In this respect, the Claimant provided
FIFA with two media releases stating that the player was loaned, so that he could
have more playing time.
11.
With regard to the Respondent’s argument that the transfer chain was
interrupted by an internal loan, the Claimant maintained that it was entitled to
receive training compensation for the 2004/2005 and 2005/2006 seasons, since the
Regulations on the Status and Transfer of Players do not stipulate that a club loses
its right to training compensation in case a club loans a player. Furthermore, the
Claimant maintained that it was entitled to receive training compensation for the
2006/2007 season, since the player was still registered with the Claimant during
that season, although he was loaned. Thus, the Claimant would still be the
“former club” for the purpose of the Regulations on the Status and Transfer of
Players.
12.
Finally, and with regard to the third argument of the Respondent, the Claimant
stated that it had first offered verbally a new and improved contract to the player
in early 2007. In this respect, as a matter of proof, the Claimant provided FIFA with
a press release dated 23 February 2007, where the player declares: “A offered me
an important contract extension but I didn’t think about it. I’m already looking for
a house in I.” The Claimant held that a formal written offer was remitted on 27
April 2007, i.e. more than 60 days before the ending of the employment contract
on 30 June 2007, to the player by B, the Head of Youth Development of the
Claimant, in person at the club D training ground. As a matter of proof, the
Claimant produced a non-signed copy of the alleged offer. Upon request of FIFA,
the Claimant affirmed that the only signed copy of the offer was the one given to
the player. In this context, the Claimant held that registered mail is not the only
option open to clubs to offer a new contract. Thus, according to the Claimant, to
provide a player with a written offer in person fulfils the purpose intended by art.
6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players, since
it ensures that the player effectively received the said offer.
13.
With regard to its value, the said alleged offer, made for 3 years, mentioned a
basic salary of 200,000 per annum, whereas the player’s former contract with the
Claimant stipulated a basic salary of 106,600 per annum.
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14.
In its extra position dated 11 November 2008, the Respondent adhered to its
previous position and concluded that the Claimant was not entitled to any
training compensation, alternatively that it was entitled to receive an amount of
EUR 90,000 in connection with the training of the player for the 2006/2007 season.
15.
The Respondent held that the Claimant was not entitled to any amount due in
connection with training compensation, since the latter omitted to offer the
player a new contract fulfilling the requirements of art. 6 par. 3 of the Regulations
on the Status and transfer of Players. Indeed, according to the Respondent, the
verbal offer, the value of which was unknown, made in February 2007 by the
Claimant had no legal effect under the aforementioned provision. Furthermore,
the Claimant did not prove that the written offer it produced was sent by
registered mail. Finally, the Respondent held that the Claimant omitted to prove
that the said offer would have at least an equivalent value as the contract that
was expiring. Thus, the Claimant did not demonstrate its interest in the player’s
services.
16.
Furthermore, the Respondent held that no training compensation was due for the
2004/2005 and 2005/2006 seasons, since the Claimant loaned the player for the
season 2006/2007. According to the Respondent, the loan interrupted the transfer
chain. Thus, the Claimant was not the former club in the sense of art. 3 par. 1 in
fine of the Regulations on the Status and Transfer of Players.
17.
Finally, the Respondent maintained that the Claimant would not be entitled to
claim training compensation for the 2006/2007 season, since the player terminated
his training period at the end of the 2005/2006 season, i.e. before the occurrence
of the loan of the player to D, and since the player was effectively trained by D
during this period. With regard to the first argument, the Respondent held that
the player took part in almost all the games played by D, scoring a sixth of all the
goals scored by the team, playing an important role in the promotion of the club
to the Premier League. According to the Respondent, D shall be subjectively
considered as a Premier League club, as it played 7 of the last 12 championships
until the 2007/2008 season. Finally, the player appeared 5 times in I U21
representative team.
18.
On 27 November 2008, and after the closure of the investigation by the FIFA
administration, the Claimant provided FIFA with a correspondence signed by its
General Secretary, stating that the player confirmed by phone to its Head of
Youth Development that he had received a written offer of a new contract when
he met Mr. B at the training ground.
19.
The Respondent was offered the right to answer and adhered to its position in
that respect. In particular, it recalled that the conditions provided in art. 6 par. 3
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of Annexe 4 of the Regulations on the Status and Transfer of Players are
cumulative and need to be strictly complied with.
20.
On 19 February 2009, the Dispute Resolution Chamber decided to send back the
case to the FIFA administration, in order to allow a last exchange of
correspondence between the parties due to the very exceptional circumstances of
the case.
21.
On 27 February 2009, the Claimant provided FIFA with its final statement. In this
respect, the Claimant adhered to its previous position and recalled its arguments
mentioned in its correspondence dated 13 October 2008. With regard to the
alleged offer of a new and improved contract made to the player, the Claimant
submitted a written statement of B, Head of Youth Development, dated 26
February 2009. In this statement, B affirms to have offered a new contract to the
player first verbally in early 2007 and then in writing in the first week of May
2007. In this respect, B declared to have handed in person a written offer of a
new, improved employment contract to the player in D and that the offer
proposed the conclusion of a 3 year contract providing for a salary of 200,000 plus
bonuses. Finally, the Claimant submitted a previous decision of the Dispute
Resolution Chamber stating that the written offer made via registered mail was
not the only possible evidence for a club to document the relevant offer.
22.
On 8 March 2009, the Respondent adhered to its previous positions. It maintained
that the conditions stipulated in art. 6 par. 3 of Annexe 4 of the Regulations on
the Status and Transfer of Players were necessary and cumulative, in the sense that
they had all to be fulfilled as it is prescribed in the Regulations. In this respect, the
Respondent noted that the Claimant admitted that the alleged offer of a new,
improved employment contract had not been sent via registered mail to the
player. Furthermore, it contested the admissibility and the relevance of Mr. B
statement, since it came from a person linked to the Claimant.
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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 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 7 January 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 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 7 January
2008 and that the player was transferred to the Respondent on 30 June 2007. In
view of the aforementioned, the Dispute Resolution Chamber concluded 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.
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.
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.
The Chamber recalled that the player was born on 26 June 1987 and was
registered with the Claimant as from 10 August 2004 until 16 September 2004 as a
scholar and as a professional from 16 September 2004 until 18 August 2006.
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7.
Moreover, the Chamber referred, in particular, to art. 6 of Annex 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)/European Economic Area (EEA).
8.
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, in the affirmative, to determine if the Claimant had
complied with the said provision in order to be entitled to training compensation.
9.
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 E to I in
July 2007, 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.
10.
Equally, the Chamber recalled that the Respondent contested the Claimant’s
entitlement to receive any training compensation arguing, inter alia, that the
Claimant did not offer the player a contract in accordance with article 6 par. 3 of
Annex 4 of the Regulations.
11.
On account of the aforesaid, the Chamber analysed if the Claimant had complied
with the prerequisites of art. 6 par. 3 of Annex 4 of the Regulations in order to be
entitled to training compensation, this being the core issue of the present dispute.
12.
In this sense, the Chamber emphasized 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. 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 Annex 4 of the Regulations).
13.
To that regard, the Chamber examined the allegations of the Claimant.
14.
The members of the Chamber first of all pointed out that the Claimant stated that
it had first offered verbally a new and improved contract to the player in early
2007, which was allegedly corroborated by a press release dated 23 February 2007,
submitted by the Claimant, according to which the player declares: “A offered me
an important contract extension but I didn’t think about it. I’m already looking for
a house in I.”
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15.
In this respect, the Chamber was eager to emphasize that art. 6 par. 3 sent. 1 of
Annex 4 of the Regulations stipulates explicitly that the former club must offer a
contract in writing, without providing for any exception to that principle. As a
consequence, the Chamber did not consider the offer made verbally in early 2007
as fulfilling the prerequisites provided for in the aforementioned provision,
adding, for the sake of completeness, that, as a general rule, press releases do not
constitute appropriate documentary evidence.
16.
With regard to the remittance of the offer, the Chamber pointed out that the
Claimant had never alleged to have offered the player the contract via registered
mail. Therefore, the Chamber unanimously acknowledged that the Claimant had
not offered the player a contract by this mean of communication.
17.
Based on this consideration, the Chamber deemed it appropriate to clarify that, in
certain exceptional circumstances like the present one, the written offer made via
registered mail is not the only possible evidence for a club to document the
relevant offer and thus its entitlement to training compensation. Indeed, if the
club is in a position to prove unambiguously by other means that an offer of at
least equivalent value to the current contract was actually made to the player in
due time, this must be accepted and cannot just be dismissed by the fact that it
was not a registered letter. However, the members of the Chamber deemed it
appropriate to point out that registered mail eases the burden of proof laying on
training clubs in that respect, since the evidence of the existence of an offer could
be difficult to bring otherwise.
18.
As a consequence, the Chamber went on to examine whether the Claimant had
provided other unambiguous documentary evidence for the offer to have been
made to the player in due time and for an adequate value. In this respect, the
members of 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.
19.
Bearing in mind the foregoing remarks, the Chamber firstly noted that the
Claimant did not provide FIFA with any written declaration or acknowledgement
of receipt of the alleged offer made by the player himself. According to the
Chamber, this evidence, if it had been brought by the Claimant, could have
replaced the registered letter - provided that the other prerequisites of art. 6 par.
3 of Annex 4 of the Regulations are fulfilled - and, thus, demonstrate that the
player had effectively received an offer of a contract.
20.
In continuation, the Chamber analysed the allegations of the Claimant with
regard to the written offer apparently made in May 2007 and remitted by Mr B in
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person, Head of Youth Development of the Claimant, to the player at D training
ground.
21.
In this respect, the Chamber noted that, as a matter of proof, the Claimant firstly
produced only a non-signed copy of the offer, and no other documentary
evidence, since the Claimant affirmed that the only signed copy of the offer was
the one given to the player.
22.
In continuation, the Chamber took note that, after the closure of the investigation
by the FIFA administration, the Claimant provided FIFA with a correspondence
signed by its General Secretary stating that the player had allegedly confirmed on
the phone to its Head of Youth Development that he had received a written offer
of a new contract, when he was in D.
23.
In this respect, the members of the Chamber considered that these statements,
along with no documentary evidence, could not be considered as sufficient in
order to establish unambiguously that the player had received the relevant offer.
24.
Furthermore, the Chamber analyzed the Claimant’s final statement, submitted
after the Dispute Resolution had decided to send the case back to the
administration on 19 February 2009, by means of which it submitted a written
statement emanating from B, Head of Youth Development of the Claimant, dated
26 February 2009, by means of which he affirms to have offered a new contract to
the player first verbally in early 2007 and then in writing in the first week of May
2007. In this respect, B declared to have handed in person a written offer of a
new, improved employment contract to the player in D.
25.
In this regard, and taking into account the fact that the said declaration was
signed by a person firmly connected to the Claimant and thus not independent
from it in connection with the present matter, the Chamber declared that this
document did not constitute sufficient documentary evidence to corroborate the
allegations of the Claimant, i.e. for having offered a contract to the player.
26.
In light of the foregoing, the Chamber concluded that, by failing to produce
evidence of having met the requirements in accordance with art. 6 par. 3 of Annex
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.
27.
Furthermore, and for the sake of good order, the Chamber pointed out that the
Claimant did not try to justify that it would be entitled to training compensation
in accordance with art. 6 par. 3 sent. 1 in fine of Annex 4 of the Regulations. The
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members of the Chamber also recalled that, according to the well-established
jurisprudence, this justification is limited to very exceptional circumstances.
28.
Finally, and taking into account the above, the members of the Chamber did not
deem it appropriate to enter into the substance of the other arguments brought
up by the parties to the present dispute during the investigation, since one of the
cumulative prerequisites in order for the Claimant to be entitled to training
compensation was not complied with.
29.
In view of all the above, the Dispute Resolution Chamber rejected the claim of the
Claimant.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, A, is rejected.
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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
Jérôme Valcke
Secretary General
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