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,
W,
as Claimant
against the club,
B,
as Respondent
regarding a training compensation dispute
related to the transfer of the player M
I.
Facts of the case
1.
The Football Federation N (hereinafter: the FFN) confirmed that the player, M
(hereinafter: the player), born on 27 May 1987, was registered with its affiliated club, W
(hereinafter: the Claimant), from 2 August 1999 until 8 September 2005 as an amateur.
2.
The sporting season in the country N runs from 1 August to 31 July of the following
year.
3.
The player was registered with the club B (hereinafter: the Respondent) on 20
September 2005 as an amateur.
4.
The Football Federation P (hereinafter: the FFP) confirmed that the Respondent
belonged to the category II (indicative amount of EUR 60,000 per year within UEFA)
during the season 2005/2006 when the player was registered with the said club.
5.
The FFN confirmed that the Claimant belonged to the category IV (indicative amount of
EUR 10,000 per year within UEFA) during the seasons 1999/2000, 2000/2001, 2001/2002
and to the category II (indicative amount of EUR 60,000 per year within UEFA) during
the seasons 2002/2003, 2003/2004 and 2004/2005.
6.
On 9 January 2007, the Claimant contacted FIFA asking for its proportion of training
compensation from the Respondent since the player allegedly signed his first
professional contract with the Respondent. The Claimant enclosed a copy of the
employment contract the player signed with the Respondent and according to which he
is is entitled to receive EUR 1,500 per month during the season 2005/2006.
7.
In its reply, the Respondent rejected the claim lodged by the Claimant and held that it
never signed any professional employment contract with the player. According to the
Respondent, the player was only registered for the “junior category” and not as a
professional and therefore no training compensation is due to the Claimant.
8.
On 3 June 2008, the Claimant informed FIFA that it maintains its position. In this
respect, it pointed out that the monthly remuneration received by the player is an
amount which exceeds his actual expenses incurred for the footballing activities, as per
the contents of art. 2 par. 1 and 2 of the Regulations on the Status and Transfer of
Players. According to the Claimant, irrespective of the registration records from the FFP,
the player must be considered as a professional.
9.
In its final position, the Respondent stated that it is faced with a complicated financial
phase and is waiting for a favourable court decision in order to pay all its debts. In this
respect, the Respondent asked to wait with the proceedings until July 2010. On account
2
of the above-mentioned, the Claimant requested from the Respondent a proposal for a
payment plan, which has not been presented by the Respondent.
10.
On 9 April 2010, FIFA asked the Claimant to make comments with regard to the
contents of art. 6 par. 3 of Annex 4 of the Regulations and, in particular, requested to
be informed by the Claimant as to whether it had offered the player a new contract by
registered mail at least 60 days before the expiry of the player’s former contract with it.
11.
In this respect, the Claimant replied that the player had never been registered with it as
a professional but always had an amateur status. Therefore, according to the Claimant,
it could not provide FIFA with evidence that it had offered a contract to the player.
12.
Furthermore, the Claimant alleged that it intended to keep the player in its youth
academy for the following season and “showed this by offering the player (in writing) a
place in its youth academy”. The Claimant explained that by doing so, it tried to keep
the option of granting him a professional contract at a later stage.
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 9
October 2007, 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 (edition 2005; hereinafter: the Procedural Rules) 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
(editions 2008 and 2009). 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 between clubs belonging to different
associations.
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
3
Regulations on the Status and Transfer of Players (editions 2008 and 2009) and, on the
other hand, to the fact that the present claim was lodged on 9 October 2007 and that
the player was registered for the Respondent on 20 September 2005. In view of the
aforementioned, the Dispute Resolution Chamber concluded 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. In doing so, the
members of the Chamber started to acknowledge the facts of the case as well as t he
documents contained in the file.
5.
The Dispute Resolution Chamber took note that the Claimant had requested training
compensation based on the fact that the player had been registered with it for the
period comprehended between 2 August 1999 (season of the player’s 12th birthday) and
8 September 2005 (season of the player’s 18th birthday) as an amateur.
6.
In continuation, the Chamber stated that, as established in art. 20 of the Regulations in
combination with art. 1 par. 1 of Annex 4 and 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 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 23 rd birthday.
7.
Moreover, the Chamber referred, in particular, to art. 6 of Annex 4 of the Regulations,
which contains special provisions for clubs which belong to an association inside the
territory of the EU/EEA.
8.
In view of the above, the Chamber stated that, first and foremost, it had to verify
whether art. 6 par. 3 of Annex 4 of the Regulations applies in the present case as lex
specialis, and, in the affirmative, to subsequently determine as to whether the Claimant
had complied with the aforesaid 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 the country N to the country
P in September 2005, i.e. between two countries members of the EU, art. 6 par. 3 of
Annex 4 of the Regulations is applicable. Therefore, the Chamber concluded that the
aforementioned provision applies in the case at hand as lex specialis.
4
10.
On account of the aforesaid, the Chamber analysed as to whether the Claimant had
complied with the prerequisites of art. 6 par. 3 of Annex 4 of the Regulations in order
to be entitled to receive training compensation.
11.
According to art. 6 par. 3 of Annex 4 of the Regulations, training compensation is only
payable if the former club can justify that it offered the player a contract in writing via
registered post at least 60 days before the expiry of his current contract.
12.
In this respect, the Chamber was eager to emphasize that art. 6 par. 3 of Annex 4 of the
Regulations stipulates explicitly that such an offer shall be at least of an equivalent
value to the current contract.
13.
With regard to the remittance of such offer, the Chamber consequently analysed as to
whether the Claimant offered the player a contract via registered post 60 days before
the expiry of his current contract. The Chamber noted that the Claimant had not
offered the player a contract via registered post.
14.
In this regard, the members of the Chamber pointed out that the Claimant asserted that
it intended to keep the player in its youth academy for the following season and
“showed this by offering the player (in writing) a place in its youth academy” and that
the aforementioned was, in the Claimant’s point of view, fulfilling the prerequisites
provided for in art. 6 par. 3 of Annex 4 of the Regulations.
15.
In this context, the members of the Chamber wished to refer to the principle in
accordance with which any party claiming a right on the basis of an alleged fact shall
carry the burden of proof and that, in this particular aspect, no evidence of such a
written proposal to stay in the said academy had been made available by the Claimant,
who consequently failed to comply with the Rules regarding the burden of proof (art.
12 par. 3 of the Procedural Rules).
16.
In continuation to the above, the Chamber also noted that the Claimant asserted that it
intended to keep the option open to grant the player a professional contract at a later
stage. From this assertion, the Chamber understood that the Claimant would have been
in a position to sign a professional contract with the player, if the Claimant wished so,
but eventually decided not to do so.
17.
In light of the foregoing, the Chamber concluded that, by failing to provide any
evidence of having presented an offer to the player in writing to keep the latter in the
youth academy, in combination with the fact that the Claimant did not propose a
written contract 60 days before the expiry of his current contract, whereas it
acknowledged the actual possibility of such a proposal, the Claimant is not entitled to
claim any training compensation from the Respondent.
5
18.
Finally, and concluding its deliberations in the present affair, the members of the
Chamber did not deem appropriate to enter into the substance of the other arguments
brought up by the parties to the present dispute.
19.
In view of all the above, the Dispute Resolution Chamber concluded that the claim of
the Claimant for training compensation was to be rejected.
6
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, W, is rejected.
*****
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
Encl. CAS directives
7