Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 July 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Ivan Gazidis (England), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the club
E,
as Claimant
against the club
P,
as Respondent
regarding a training compensation dispute
related to the transfer of the player K
I.
Facts of the case
1.
The X Football Association confirmed that the player, K (hereinafter: the player),
born on 3 May 1989, was registered with its affiliated club, E, from
31 December 2002 until 1 February 2007 as an amateur and from 2 February 2007
until 11 November 2007 as a professional. Moreover, the X Football Association
confirmed that E belonged to the category IV (indicative amount of EUR 10,000
per year within UEFA) during the seasons when the player was registered with it.
2.
The football season in the country X runs from 1 June to 31 May of the following
year.
3.
The H Football Federation never informed FIFA about the date on which the
player was registered with the club P. However, due to a previous proceeding,
FIFA is in possession of the decision passed by the Single Judge of the Players’
Status Committee (PSC) on 12 November 2007 concerning the authorization of the
provisional registration of the player in question with the club P. Furthermore, the
H Football Federation confirmed that P belonged to the category II (indicative
amount of EUR 60,000 per year within UEFA) during the season of 2007/2008.
4.
On 14 October 2008, E contacted FIFA asking for its proportion of training
compensation from P. In particular, E is requesting training compensation in the
amount of EUR 135,000. Furthermore, E stated that on 17 December 2002 it had
signed a “training contract” with the player, which was valid from that date until
the end of the season of the player’s 18th birthday. Moreover, according to the
club E, on 8 July 2006 it had signed an employment contract with the player,
which was valid until the player reached the age of 18. The financial terms of the
said employment contract stipulate that E is obliged to pay the player the
following:
a.
b.
c.
d.
the amount of 100 in the event that the player participates in the
starting line up in an official match of the championship or the cup,
the amount of 50 in the event that the player participates in the group
of players for an official match for the championship or the cup,
the amount of 100 for every point the team wins in any official match
of the championship in the event that the player participates in that
match for at least one minute,
the amount of 50 for every point the team wins in any official match
of the championship in the event that the player does not play but sits
on the bench.
Furthermore, according to point 4 of the said agreement, E is obliged to cover all
medical expenses for the injuries the player may suffer due to his action as a
player of E. In addition to that, according to E, it had offered the player “a new
professional contract” on 3 August 2007, which the player did not sign. According
to its point 2, the validity of the contract would have been from 24 August 2007
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until 15 June 2012. The financial terms of the latter contract stipulated that E
would be obliged to pay the player the following:
a.
b.
c.
d.
e.
the amount of 7,000 for the season 2007/2008, paid in 10 equal
instalments of 700, the first paid on 15 September 2007 and the last
paid on 15 June 2008,
the amount of 8,000 for the season 2008/2009, paid in 10 equal
instalments of 800, the first paid on 15 September 2008 and the last
paid on 15 June 2009,
the amount of 9,000 for the season 2009/2010, paid in 10 equal
instalments of 900, the first paid on 15 September 2009 and the last
paid on 15 June 2010,
the amount of 10,000 for the season 2010/2011, paid in 10 equal
instalments of 1,000, the first paid on 15 September 2010 and the last
paid on 15 June 2011,
the amount of 11,000 for the season 2011/2012, paid in 10 equal
instalments of 1,100, the first paid on 15 September 2011 and the last
paid on 15 June 2012.
Furthermore, according to point 7 of the said agreement, E would be obliged to
cover any medical expenses of the player regarding injuries that the player may
suffer during official games and training.
5.
On 11 February 2009, P stated that the player moved to the city of S during the
summer of 2007 in order to attend lessons in a local college and that the player
“was a free of contract player”. Furthermore, the club stated that the player is
now again playing for E and therefore “it would not be appropriate for E to insist
asking [training] compensation”, because the club E is now receiving all benefits
from training and developing the player. Morevoer, P stated that the club E failed
to offer the player a contract “which would be acceptable from the side of the
player” according to the Regulations on the Status and Transfer of Players.
Therefore, according to the club, E “is not entitled to any training and
development compensation”.
6.
On 10 March 2009, the X Football Association confirmed that the player is again
registered with the Claimant since 1 September 2008 up to date.
7.
On 18 June 2009, E rejected in total the allegations made by P and asserted that
the player did not attend a local college in S but left country X in order to fulfil his
employment contract with P. With regard to the point brought up by P that the
claimant had not offered the player a contract according to art. 6 par. 3 of
Annex 4 of the Regulations on the Status and Transfer of Players, E stated that in
fact it had “offered the player a contract of employment dated 24 August 2007”.
8.
On 1 September 2009, P reiterated its position and stated again that the player K
was a player free of contract when he signed his contract with the club P.
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Furthermore, P again stated that E had failed to offer the player a contract “on
time” according to art. 6 par. 3 of Annex 4 of the Regulations on the Status and
Transfer of Players, because the club E had not offered such contract until
24 August 2007, whereas the employment contract of the player with E expired in
May 2007.
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. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 14 October 2008,
thus after the aforementioned Procedural Rules entered into force on 1 July 2008.
Therefore, the Dispute Resolution Chamber concluded that the 2008 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 2009). In accordance with art. 24 par. 1 and 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 took due note that on 12 November 2007, the
Single Judge of the PSC passed a decision concerning the authorization of the
provisional registration of the player as a professional with P. Therefore, the
Dispute Resolution Chamber concluded that the registration date of the player
with P had to be considered 12 November 2007. In continuation, the Chamber
referred, on the one hand, to art. 26 par. 1 and 2 in connection with art. 29 par. 2
of the Regulations on the Status and Transfer of Players (edition 2009) and, on the
other hand, to the fact that the present claim was lodged on 14 October 2008 and
that the player was registered for the Respondent on 12 November 2007. In view
of the aforementioned, the Dispute Resolution Chamber concluded that that the
2005 edition of the Regulations on 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.
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5.
In this respect, the Chamber recalled that the player, born on 3 May 1989, was
registered for the Claimant from 31 December 2002 to 1 February 2007 as an
amateur and from 2 February 2007 to 11 November 2007 as a professional.
6.
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 31 December 2002 and 11 November 2007, i.e. the seasons
comprehended between the player’s 14th and 19th birthday, in the amount of
EUR 135,000.
7.
The Chamber acknowledged that the H Football Federation confirmed that the
Respondent was a category II club at the time the player was registered for it on
12 November 2007 as a professional. Consequently, the Chamber took into
account that the indicative training costs for a category II club and member of a
national association affiliated to the Union des Associations Européennes de
Football (UEFA) amount to EUR 60,000.
8.
In continuation, 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.
9.
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
3 May 1989, was registered with the Claimant from 31 December 2002 to
1 February 2007 as an amateur and from 2 February 2007 to 11 November 2007 as
a professional and was registered as a professional for the Respondent on
12 November 2007, i.e. before the end of the season of the player’s 23rd birthday.
10.
In continuation, and with regard to the Respondent’s position, the Chamber
emphasized that art. 6 of Annex 4 of the Regulations contains special provisions
regarding players moving from one Association to another inside the territory of
the European Union (EU) / European Economic Area (EEA). Having stated this, the
Chamber turned its attention in particular to the third paragraph of the said
provision, regarding a training club’s general obligation to offer the relevant
player a contract in order to safeguard its entitlement to training compensation.
11.
In this respect, 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 if so, to determine if the club E had complied with the
said provision in order to be fundamentally entitled to training compensation.
12.
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 the
country X to the country S in November 2007, i.e. between two EU countries, art. 6
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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.
13.
On account of the aforesaid, the Chamber analysed if E had complied with the
prerequisites of art. 6 par. 3 of Annex 4 of the Regulations in order to be entitled
to training compensation.
14.
In this sense, the Chamber emphasized that in accordance with art. 6 par. 3 sent. 1
and 2 of Annex 4 of the Regulations, if the former club does not offer the player a
contract in writing via registered post at least 60 days before the expiry of his
current contract, no training compensation is payable unless the former club can
justify that it is entitled to such compensation.
15.
To that regard, the Chamber pointed out that on 3 August 2007, E allegedly
offered the player a contract, dated 24 August 2007 and with validity from
24 August 2007 until 15 June 2012. In continuation, the Chamber took due note
that the Respondent contested the fact that the Claimant would have offered the
player a contract 60 days before the expiry of his current contract, in accordance
with art. 6 par. 3 sent. 2 of Annex 4 of the Regulations.
16.
On account of the aforesaid, and in view of 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, the members of the Chamber furthermore
acknowledged that E did not provide evidence that it offered a contract to the
player in writing via registered post at least 60 days before the expiry of his
current contract. Indeed, the club E had explicitly mentioned that it had only
offered a new contract to the player on 3 August 2007, i.e. after the former
contract of the player had already expired.
17.
In view of the foregoing, the Chamber concluded that the condition of offering
the player a contract within a certain time limit, which is set in the Regulations, is
not fulfilled. Moreover, the Chamber concurred that the club E has failed to justify
that, in spite of not offering such contract in due time, it is entitled to training
compensation.
18.
On account of all the foregoing considerations, the Chamber decided that the club
E is not entitled to receive training compensation from P for the training and
education of the player K.
19.
Consequently, the members of the Chamber unanimously decided to reject the
present claim.
20.
In continuation, the Chamber referred to art. 18 par. 1 of the Procedural Rules,
according to which in the proceedings before the Dispute Resolution Chamber
relating to training compensation costs in the maximum amount of CHF 25,000 are
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levied. The costs are to be borne in consideration of the parties’ degree of success
in the proceedings, and are normally to be paid by the unsuccessful party.
21.
In this respect, the Chamber reiterated that the claim of the Claimant is rejected.
Therefore, the Claimant has to bear the costs of the current proceedings in front
of FIFA.
22.
According to Annexe A of the Procedural Rules, the costs of the proceedings are
to be levied on the basis of the amount in dispute.
23.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 135,000 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 20,000 (cf. table in Annexe A).
24.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, that the present case did not show particular factual difficulty and that
it did not involve specific legal complexity, Chamber determined the final amount
of costs of the current proceedings to the amount of CHF 10,000.
25.
In this respect, the Chamber took into account that the Claimant had paid the
advance of costs in the amount of CHF 5,000 in accordance with art. 17 of the
Procedural Rules.
26.
In view of all of the above, the Chamber concluded that the amount of CHF 10,000
has to be paid by the Claimant to cover the costs of the present proceedings.
Thereof the amount of CHF 5,000 remains to be paid by the Claimant to FIFA.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, E, is rejected.
2.
The final amount of costs of the proceeding amounts to CHF 10,000, of which CHF
5,000 have already been paid by the Claimant, E. Consequently, the amount of
CHF 5,000 is to be paid by the Claimant, E, within 30 days of notification of the
present decision to FIFA to the following bank account with reference to case no.
XX-XXXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
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
Enclosed: CAS directives
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