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 E. Gazidis (England), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the club
P,
as Claimant
against the club
S,
as Respondent
regarding a training compensation dispute
related to the transfer of the player W
I.
Facts of the case
1.
According to the player passport issued by the Football Confederation B (FCB) in
June 2008 – and rectified on 17 March 2010, the player W (hereinafter: the player),
born on 24 September 1989, was registered with its affiliated club L as an amateur
from 31 March 2005 to 31 January 2006, and then with its affiliated club P
(hereinafter: the Claimant), as a professional from 1 February 2006 to 31
December 2007.
2.
As a side note, the Football Confederation B confirmed that in January 2006 its
affiliated club L changed their registered name to the name of the Claimant.
3.
The Football Confederation B confirmed that the sporting season B follows the
calendar year. Therefore, it starts in January and ends in December of each year.
4.
On 14 September 2007, E, a company incorporated in accordance with law from
country D, with registered office in country D (hereinafter: the company), and the
club, Sport S (hereinafter: the Respondent), entered into an agreement for the
transfer of the sporting rights of the player (hereinafter: the agreement), whereas
the company is the holder of the sporting rights of the player, the rights
hereinabove are free from any onuses or encumbrances, and the Respondent
herein represents its interest in the temporary transfer of the player and eventual
definitive acquisition of the rights referred to.
5.
By means of number 1 of the clause one of this agreement, the company
temporarily transferred the services of the player to the Respondent, exempt of
any charge or financial consideration.
6.
On 8 November 2007, the Respondent and the player concluded an employment
contract, starting on 1 January 2008 and ending on 30 June 2008.
7.
On 21 January 2008, the player was transferred to the Respondent.
8.
On 23 January 2008, the player was registered as a professional by the Football
Federation P (FFP).
9.
By means of a written confirmation, the Football Federation P informed FIFA that
the Respondent is a category II club (indicative amount of training costs of EUR
60,000 per year within UEFA).
2
10.
On 19 March 2009, the Claimant lodged a claim in front of FIFA in order to obtain
the training compensation payment due, in connection with the international
transfer of the player to the Respondent. In particular, the Claimant alleged being
entitled to receive the amount of EUR 247,500 for training compensation.
11.
Furthermore, the Claimant asserted that despite having already contacted the
Respondent, the latter did not fulfil its obligations of paying the training
compensation. In particular, the Claimant alleged having sent a fax to the
Respondent to receive the payment of training compensation for the player on 28
March 2008, which remained unanswered.
12.
On 15 December 2009, the Claimant amended its claim requesting an interest rate
of 5% per annum on the aforementioned amount, calculated since the moment
the amount became due.
13.
On 28 April 2010, the Respondent replied asking to reject in full the claim
submitted by the Claimant. In particular, the Respondent argued that the
requested amount was clearly disproportionate. Indeed, according to the latter,
the Claimant’s request was only sustained with a copy of the player passport and
purely applied to hypothetical mathematical calculation, without any evidence or
mere allegation that the player was effectively trained by the Claimant.
Consequently, the Respondent asked for a reviewing of the amount of training
compensation as the requested amount clearly appeared too high, considering the
effective costs incurred by the Claimant.
14.
Furthermore, the Respondent also stressed the fact that it had entered into an
agreement with the company, under which the latter had granted to be the
holder of the sporting rights of the player. It was also secured by this company
that all the player’s rights were free from any onuses or encumbrances. In other
words, according to the Respondent, it was clear that this company had paid the
training compensation to the Claimant. In light of the above, the Respondent was
of the opinion that it had subrogated its responsibility, in case that a training
compensation dispute would eventually arise from the signing of the contract
between the player and the company. Thus, the Respondent was of the opinion to
be free of any economic responsibility, if any, as the one claimed by the Claimant.
15.
However, the Respondent declared to start the payment of the training
compensation into a nominated account in favour of the Claimant, as soon as the
company would reimburse the same amount to it.
3
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, it took note that the present matter
was submitted to FIFA on 19 March 2009. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: the Procedural Rules) are applicable to the matter at
hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and art. 22
lit. d) of the Regulations on the Status and Transfer of Players (edition 2009), the
Dispute Resolution Chamber is competent to decide on the present litigation with
an international dimension concerning the training compensation claimed by the
Claimant for the training and education of the player W.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 23 January 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 on the Status and Transfer
of Players (edition 2009), and considering that the present claim was lodged on 19
March 2009, the 2008 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 that, on the one hand, the Claimant
claims the amount of EUR 247,500, plus 5% interest per annum as from the
moment the amount became due, as training compensation from the Respondent,
for having trained the player as from 31 March 2005 until 31 December 2007.
5.
On the other hand, the Chamber took due note that the Respondent deems that
the claim should be rejected in full, arguing in particular that the requested
amount is clearly disproportionate, particularly considering the effective costs
incurred by the Claimant for the training of the player, and with regard to the fact
that the Claimant did not prove that if effectively trained the player during the
period of time he was effectively registered with it.
6.
As regards the Respondent’s allegation, according to which any compensation
would be clearly disproportionate, the Chamber emphasised that in accordance
with art. 5 par. 4 of Annexe 4 to the Regulations, “the Dispute Resolution
4
Chamber may review disputes concerning the amount of training compensation
payable and shall have the discretion to adjust the amount if it is clearly
disproportionate to the case under review”.
7.
To that regard, the Chamber took note that the Respondent maintained that any
amount of training compensation would be clearly disproportionate to the level
of training and education offered by the club.
8.
In this context, the Chamber referred to the legal principle of the burden of proof,
which is a basic principle in every legal system, according to which a party deriving
a right from an asserted fact has the obligation to prove the relevant fact (cf. 12
par. 3 of the Procedural Rules).
9.
Taking into account the above-mentioned provision (cf. above-mentioned point
II.6) and the legal principle of burden of proof, the members of the Chamber
concluded that the Respondent neither substantiated nor provided any
documentary evidence in order to corroborate exceptional circumstances or a
disproportionate outcome of the calculation in the present matter. Consequently,
the Chamber considered the allegation of the Respondent to be ungrounded and
therefore it decided that it has to be rejected due to the lack of probative force.
10.
In continuation, the members also noted that the Respondent asked to fully reject
the claim submitted by the Claimant, since according to the agreement entered
into with the company, E, it would appear that the latter had allegedly paid the
training compensation to the Claimant. However, the members of the Chamber
noted that the Respondent asserted to be prepared to start the payment of
training compensation into a nominated account in favour of the Claimant as
soon as the company would reimburse the same amount to it.
11.
In this respect, the Chamber was eager to emphasise that since 1 September 2001,
the day of the entry into force of the completely reviewed version of the FIFA
Regulations for the Status and Transfer of Players (edition 2001), the concept of
the so-called “federative rights” to players does not exist anymore. It was replaced
by the principle of maintenance of contractual stability between the contracting
parties (cf. Chapter VIII, art. 21 and following of the Regulations, edition 2001,
and Chapter IV, art. 17 and following of the Regulations).
12.
Furthermore, the Chamber was also eager to emphasise that the relevant transfer
agreement was signed between the company and the Respondent and thus is not
binding for the Claimant, who is not a contractual party to such agreement.
5
13.
Therefore, the Dispute Resolution Chamber concluded that said agreement had no
legal effect on the Claimant and would not hinder the latter from its entitlement
of training compensation.
14.
As a result, and considering all of the above, the Chamber concluded to reject the
arguments of the Respondent that the company, who transferred the player,
would have been responsible to pay any training compensation to the Claimant.
15.
Subsequently, 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 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 23rd birthday.
16.
In this respect, the Chamber considered that the Football Confederation B
confirmed that the player had been registered with the Claimant as from 31
March 2005 (season of his 16th birthday) until 31 January 2006 as an amateur, and
as a professional player as from 1 February 2006 until 31 December 2007 (season
of his 18th birthday), at the moment he was transferred internationally.
17.
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
24 September 1989, was transferred internationally on 21 January 2008, i.e. before
the end of the season of the player’s 23rd birthday, and thus the Claimant is
entitled to receive training compensation.
18.
For the sake of completeness, the Chamber referred to its established
jurisprudence, which has been confirmed by the Court of Arbitration for Sport
(CAS; CAS XXXX/X/XXX), according to which a club that has trained a player as an
amateur for a certain period of time and thereafter concludes an employment
contract with the player shall be compensated for the entire time that it trained
the player.
19.
Moreover, the Chamber recalled that in accordance with art. 3 par. 1 of Annexe 4
of the Regulations, the new club with which the professional player is registered is
responsible to pay training compensation.
20.
Subsequently, and considering art. 3 par. 1 of the Annexe 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
Chamber concluded that the effective period of time to consider in the matter at
6
stake corresponds to 33 months (the months of April 2005 until December 2007),
period during which the player was effectively trained and educated by the
Claimant.
21.
Turning its attention to the calculation of the training compensation, the
Chamber referred to art. 5 par. 1 and 2 of Annexe 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 this respect, the Chamber duly noted that according to all the remitted
documents, it can be established that the player had been transferred to the
Respondent on 21 January 2008, which according to the information received
belonged to the category II in the season 2007/08 (indicative amount of EUR
60,000 per year).
23.
As a result, the Chamber, taking into consideration all the above as well as art. 5
par. 1 and 2 of Annexe 4 of the Regulations, concluded that the Claimant is
entitled to receive the amount of EUR 165,000, plus 5% interest per annum as of
23 February 2008 until the effective date of payment, from the Respondent for
the training and education of the player concerned, and thus that the claim of the
Claimant is partially accepted.
24.
In continuation, the deciding authority referred to art. 25 par. 2 of the
Regulations in combination with art. 18 par. 1 of the Procedural Rules, according
to which in the proceedings before the Dispute Resolution Chamber relating to
disputes regarding training compensation solidarity mechanism costs in the
maximum amount of CHF 25,000 are levied. The costs are to be borne in
consideration of the parties’ degree of success in the proceedings.
25.
In this respect, the Chamber reiterated that the claim of the Claimant is partially
accepted. Therefore, the Respondent has to bear the costs of the current
proceedings in front of FIFA.
26.
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.
27.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 247,500 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 25,000 (cf. table in Annexe A of the Procedural Rules).
7
28.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, that the case was adjudicated by the Chamber, that the present case
did not show particular factual difficulty and that it did not involve specific legal
complexity, the Chamber determined the final amount of costs of the current
proceedings to the amount of CHF 10,000.
29.
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.
30.
In view of all of the above, the Chamber concluded that the amount of CHF 10,000
has to be paid by the Respondent to cover the costs of the present proceedings.
Thereof the amount of CHF 5,000 has to be paid by the Respondent to FIFA and
the amount of 5,000 to the Claimant.
*****
8
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, P, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant, P, the amount of EUR 165,000 plus
5% interest per annum as of 23 February 2008 until the date of the effective
payment, within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant, P, are rejected.
4.
If the aforementioned amount is not paid within the aforementioned deadline,
the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
5.
The final amount of costs of the proceedings in the amount of CHF 10,000 are to
be paid by the Respondent, S, within 30 days of notification of the present
decision as follows:
5.1.
The amount of CHF 5,000 to FIFA to the following bank account with
reference to case no. [XX-XXXXX/xxx]:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2.
6.
The amount of CHF 5,000 to the Claimant, P.
The Claimant, P, is directed to inform the Respondent, S, 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.
*****
9
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
10