Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the club,
A,
as Claimant
against
R,
as Respondent
regarding a training compensation dispute related to the
transfer of the player M.
./…
I.
Facts of the case
1.
The player, M (hereafter: the player), was born on 14 January 1985.
2.
According to written confirmation by the I Football Federation , the player was
registered as a professional player with the I club, A (hereafter: the Claimant),
from 29 July 2005 to 30 June 2006, on loan from the I club, T.
3.
In August 2006, T and the R Club (hereafter: the Respondent) signed a loan
agreement in respect of the player in question for the 2006/2007 season. The
said contract was also signed by the player. Under the loan agreement, the
employment contract between the player and the Respondent concluded for
the 2006/2007 season ceased to have effect on 1 July 2007 and the
employment contract between the player and T concluded for the period from
18 July 2005 to 30 June 2008 would re-enter into force on 1 July 2007.
4.
According to the S Football Federation, the Respondent has been a category 3
club since the 2006/2007 season. Further, according to his player passport,
issued by the S Football Federation, the player was registered with the
Respondent on 31 August 2006 as an amateur (“aficionado”).
5.
In addition, the I Football Federation has confirmed that the Claimant was also
a category 3 club during the 2006/2007 season. According to the player
passport issued by the I Football Association following his loan to the
Respondent, the player was registered again with T from 10 August 2007 to 28
January 2008. The football season in I begins on 1 July and ends on 30 June of
the following year.
6.
In a complaint submitted to FIFA on 16 November 2006, the Claimant
requested that the Respondent be made to pay EUR 30,000 in training
compensation and accrued interest.
7.
The Respondent replied to the complaint in a letter dated 10 May 2007, stating
that the player had been loaned temporarily and free of charge from T to the
Respondent and that such a loan did not entitle the Claimant to training
compensation. In addition, the Respondent alleges that the player was loaned
to them free of charge as a non-professional.
8.
The Claimant stresses that the player was transferred to the Respondent by
way of a loan for the 2006/2007 season and therefore as a professional player,
a status which they claim is confirmed by the I Football Federation. In this
connection, the Claimant refers to the provisions of art. 10 of the Regulations
for the Status and Transfer of Players (2005 edition, hereafter: the Regulations)
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which stipulate that “a Professional may be loaned to another club on the
basis of a written agreement between him and the clubs concerned. Any such
loan is subject to the same rules as apply to the transfer of players, including
the provisions on training compensation and solidarity mechanism.” Further,
the Claimant cites the provisions of the Regulations that supposedly stipulate
that a club to which a player has been loaned “is entitled to training
compensation calculated on a pro rata basis according to the period that the
player has spent at the club and it may request training compensation if the
player is transferred to another club, provided the player is under 23.”
Consequently, the Claimant maintains that whether or not the loan was free
of charge has no bearing on its entitlement to training compensation.
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 16 November 2006. Consequently,
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2005, hereafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 18 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
2008) the Dispute Resolution Chamber is competent to decide on the present
litigation with an international dimension concerning the training
compensation claimed by the I club against the S club for the training and
education of the player M.
3.
In this respect, for the sake of good order, the deciding authority also referred
to art. 24 par. 2 of the Regulations on the Status and Transfer of Players
(edition 2008), which states that the Chamber shall adjudicate in the presence
of at least three members, including the chairman. Thus, with the present
formation, the relevant formal prerequisite is met.
4.
Furthermore, and taking into consideration that the player was registered with
his new club, i.e. the Respondent, on 31 August 2006, 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 2008), and
considering that the present claim was lodged on 16 November 2006, the
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previous version of the regulations (edition 2005; hereafter: Regulations) is
applicable to the matter at hand as to the substance.
5.
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 entire documentation contained in the file.
6.
In this respect, the Chamber first of all duly noted that the Respondent
contests the Claimant’s entitlement to receive any training compensation
arguing that the player had been loaned temporarily and free of charge from
T to the Respondent as a non-professional and that such a loan did not entitle
the Claimant to training compensation.
7.
With regard to this allegation, the Chamber wished to stress that according to
art. 10 par. 1 of the Regulations, only a professional may be loaned to another
club on the basis of a written agreement between him and the clubs
concerned. Following an interpretation e contrario of this provision, the
Chamber reaffirmed that non-professionals (amateurs) may not be loaned to
other clubs. In fact, per definition amateurs are not bound by any employment
contract to a club (cf. art. 2 par. 2 of the Regulations). As a result, in case of an
amateur, there are no rights on the player that the club could agree to
temporarily grant to another club. Consequently, the Chamber pointed out
that following the nature of a loan the player had to be considered as having
been loaned from T to the Respondent as a professional and not, as claimed by
the Respondent, as an amateur player, despite the fact that he was registered
as an “aficionado” (amateur) with the Respondent and even though the
Respondent may not have paid any loan fee to T for the player’s temporary
transfer.
8.
In continuation, the Chamber also emphasised that according to the same art.
10 par. 1 of the Regulations, any such loan is subject to the same rules as apply
to the transfer of players, including the provisions on training compensation
and the solidarity mechanism. In this respect, the members of the Chamber
stated that on the basis of the Regulations a club is entitled to training
compensation, if the prerequisites of art. 20 of the Regulations as well as the
preconditions set out in Annex 4 of the said Regulations are fulfilled, for the
period during which the player has previously been registered with that club,
which has contributed to the player’s training incurred as from the season of
his 12th birthday up to the season of his 21st birthday. Furthermore, and
referring to its established jurisprudence pertaining to the entitlement to
training compensation in relation to loans, the Chamber pointed out that, in
principle, in accordance with the provisions of art. 10 par. 1 of the Regulations,
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a training club was equally entitled to training compensation for the relevant
period of time of training if the player was registered with the relevant club as
a consequence of him being loaned from another club.
9.
However, the members of the Chamber unanimously remarked that the
analogy established in art. 10 par. 1 of the Regulations could not be extended
to the case in which players were loaned to other clubs and thus are not being
definitely transferred to a new club. In other words, the Chamber declared
that the obligation to pay training compensation solely arises in case a player is
definitively transferred from one club to another, but not when he is
temporarily transferred to another club while still being contractually bound
to his club of origin (yet, with the effects of the relevant contract being
temporarily suspended), such as a loan.
10.
In summary, the deciding authority clarified that a club that contributed to the
training of a player for a certain period of time sometime between the seasons
of the player’s 12th and 21st birthday, due to the player’s registration with the
relevant club on a loan basis, is entitled to training compensation for the
pertinent period. However, the relevant entitlement can only be claimed
towards a new club that requires the services of a player on a definitive and
permanent basis subject to the prerequisites established in art. 20 and Annex 4
of the Regulations. Such approach also reflects another general understanding,
according to which a training club will only profit once from the training
compensation during the career of a player, if at all.
11.
Finally, the Chamber was eager to stress that it could not have been the
intention of the legislator of the relevant regulatory provision (art. 10 par. 1 of
the Regulations) to predetermine parts of a loan fee by establishing the
obligation to pay training compensation to former training clubs on the
occasion of a loan and thus potentially depriving the loan of its essential
flexibility.
12.
On account of all of the above, the Chamber decided to reject the claim of the
Claimant.
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III.
Decision of the Dispute Resolution Chamber
The claim lodged by the Claimant, A, 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:
__________________________________
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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