Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2011,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Jon Newman (USA), member
Thilina Panditaratne (Sri Lanka), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
V,
as Claimant
against the club,
R,
as Respondent
regarding training compensation in connection with the player A
I.
Facts of the case
1.
The Football Federation P (FFP) confirmed that the player, A (hereinafter:
player), born on 26 August 1989, was registered with its affiliated club, V
(hereinafter: Claimant), as from 26 April 1999 until 23 August 2010, initially as
an amateur and as from 28 August 2007 as a professional. The player passport
also indicated that the player’s registration with the Claimant was interrupted
as from 29 August 2007 until 30 June 2008, when the player was registered as a
professional with the club, F.
2.
Until the 2000/2001 season, the sporting season in country P ran as from 1
August to 31 July of the following year. As from the 2001/2002 season, the
sporting season in country P ran as from 1 July to 30 June of the following year.
3.
The Football Federation P confirmed that the Claimant is a club belonging to
club category III.
4.
The Football Federation E (FFE) confirmed that its affiliated club, R (hereinafter:
Respondent), belonged to club category III. The Football Federation E confirmed
as well that the player was registered with the Respondent on 25 August 2010.
5.
On 27 September 2010, the Claimant contacted FIFA requesting the payment of
training compensation from the Respondent stating that the player, being a
professional, had been transferred to the Respondent before the end of the
season of the player’s 23rd birthday. In particular, the Claimant requested
training compensation in the amount of EUR 490,000 plus interest and
procedural compensation.
6.
In its response, the Respondent rejected the Claimant’s claim asserting that the
player had the amateur status while registered with the Respondent and that
therefore, no training compensation was due to the Claimant.
7.
In this respect, the Respondent submitted a copy of the contract it had signed
with the player, which indicated that the player would provide his services to
the Respondent as an amateur player as from 1 July 2010 to 30 June 2012. The
said agreement stipulated as well that, in return, the player would receive a
yearly gross amount of EUR 30,000 as indemnities for the costs related to
moving, allowances, classes and other expenses. Furthermore, the contract, inter
alia, indicated that the player would be entitled to receive bonus payments in
case the player would play more than 10 matches with the Respondent’s
professional team and, in case the player would terminate the contract before
2/10
the expiration date, the player would have to pay the Respondent the amount
of EUR 3,000,000.
8.
In its replica, the Claimant asserted that it had information that the contract
signed between the player and Respondent was in fact a professional contract,
because the player was paid more for his footballing activity than the expenses
he effectively incurred and the contract contained a buy-out clause. In view of
the aforesaid, the Claimant argued that the player was in fact a professional
while being registered with the Respondent, and, hence, training compensation
is payable.
9.
In continuation, the Claimant contested that the Respondent is a club belonging
to the club category III. It asserted that the Respondent is one of the most
important clubs in country E and stressed that all clubs participating in country P
first division are clubs belonging to the club category II. Therefore, the Claimant
argued it was absurd that the Respondent belonged to the club category III and,
in that sense, could be compared with a club playing in country P second
division.
10. When asked by FIFA to provide its comments with respect to art. 6 par. 3 of
Annexe 4 of the FIFA Regulations on the Status and Transfer of Players within
the context of the present matter, the Claimant stated that it had complied with
the obligations deriving from the said article, as it had offered the player an
improved contract in writing via registered mail on more than one occasion. In
this respect, the Claimant indicated that it could not find a copy of the said
proposal in its archives, and, therefore, submitted a duly signed written
statement of the player, dated 11 April 2011, in which the player stated that the
Claimant had offered him, via registered post, a contract of a higher value 60
days before the expiry of his former contract.
11. In spite of having been invited to submit its final position with regard to the last
comments of the Claimant, the Respondent did not present a final position.
3/10
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 27
September 2010. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, edition 2008
(hereinafter: 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 in
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of
Players (edition 2010) the Dispute Resolution Chamber is competent to decide
on the present litigation concerning training compensation between clubs
belonging to different associations.
3.
Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of
Players (editions 2009 and 2010), and considering that the player was registered
with the Respondent on 25 August 2010 as well as that the present claim was
lodged on 27 September 2010, the 2009 edition of said regulations (hereinafter:
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 above-mentioned facts
of the case as well as the documentation on file.
5.
First of all, the Chamber recalled that the player was born on 26 August 1989
and was registered with the Claimant as from 26 April 1999 until 28 August
2007 as well as from 1 July 2008 until 23 August 2010. Equally, the Chamber
took note that the player was registered as a professional with the Claimant as
from 28 August 2007, with an interruption as from 29 August 2007 until 30 June
2008 when the player was registered as a professional with club F, until his
move to the Respondent.
6.
In continuation, the Chamber observed that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount
of EUR 490,000, as the player was transferred to a club belonging to a different
association before the end of the season of the player’s 23rd birthday.
4/10
7.
Equally, the Chamber took note that the Respondent rejected the Claimant’s
claim for the payment of training compensation, stating that the player was
registered with it as an amateur.
8.
In this respect, the Chamber firstly deemed it important to establish whether
the player held the amateur status or the professional status at the time he was
registered with the Respondent. To this end, the Chamber examined the
contract that the Respondent had submitted in the present proceedings.
9.
In this regard, the members of the Chamber duly noted that the contract
contained a provision stipulating that the player would render his services to
the Respondent as an amateur player and that, according to said contract, the
player was entitled to receive a yearly gross allowance of EUR 30,000 from the
Respondent as indemnities for the costs related to moving, allowances, classes
and other expenses. Furthermore, the members noted that the contract
indicated that the player would be entitled to receive bonus payments in case
the player would play more than 10 matches with the Respondent’s professional
team and that, should the player terminate the contract before the expiration
date, he would have to pay the amount of EUR 3,000,000 to the Respondent.
10. Thus, the player was entitled to receive at least EUR 30,000 per year, which
amount was due to increase in case the player would reach certain
predetermined objectives.
11. In this context, the Chamber referred to art. 2 par. 2 of the Regulations, which
stipulates that “A professional is a player who has a written contract with a club
and is paid more for his footballing activity than the expenses he effectively
incurs. All other players are considered to be amateurs”.
12. Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations
as well as the amounts payable to the player on the basis of the
aforementioned contract, the members of the Chamber unanimously concluded
that it was beyond a doubt that the player was in fact paid more for his
footballing activity than the expenses he effectively incurred. In this regard, the
Chamber was eager to emphasize that a player’s remuneration as per the
criteria set out in art. 2 par. 2 of the Regulations constitutes the decisive factor
in the determination of the status of the player and that the legal nature or the
designation of the contract is of no relevance in this regard. This approach has
been confirmed by the Court of Arbitration for Sport (CAS) in its decision CAS
2006/X/XXXX, whereby the Panel also emphasized that the definition contained
in the mentioned provision is the only ground to establish a player’s status. For
the sake of completeness, the Chamber pointed out that according to the said
5/10
decision the classification of a player made by the association of his club is not
decisive to determine the status of a player.
13. Equally, the Chamber highlighted that the second element contained in said art.
2 par. 2 of the Regulations, i.e. the existence of a written contract, is met.
14. On account of all the above, the Chamber concurred that the player was
registered as a professional with the Respondent.
15. Having established the above, the Chamber referred to the rules applicable to
training compensation. In this context, the Chamber started by stating that, as
established in art. 1 par. 1 of Annexe 4 in combination with art. 2 par. 1 lit. ii. 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 a professional is
transferred between clubs of two different associations before the end of the
season of the player’s 23rd birthday.
16. Moreover, the Chamber referred, in particular, to art. 6 of Annexe 4 of the
Regulations, which contains special provisions regarding players moving from
one association to another association inside the territory of the European
Union (EU)/European Economic Area (EEA).
17. In view of the above, the Chamber stated that it had to verify whether art. 6
par. 3 of Annexe 4 of the Regulations applies in the present case as lex specialis,
and, in the affirmative, to determine if the Claimant had complied with said
provision in order to be entitled to receive training compensation from the
Respondent.
18. As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is
concerned, the Chamber indicated that, since the player moved from country P
to country S, i.e. moved from one association to another association inside the
territory of the EU, the said article is applicable. Therefore, the Chamber
concluded that the aforementioned provision applies in the case at hand as lex
specialis.
19. On account of the aforesaid, the Chamber analysed whether the Claimant had
complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations
and took into consideration that the player, at the time he was registered with
the Claimant, had the professional status.
20. In this sense, the Chamber recalled that, in accordance with art. 6 par. 3 sent. 1
of Annexe 4 of the Regulations, if the former club does not offer the player a
6/10
contract, no training compensation is payable, unless the former club can justify
that it is entitled to such compensation. Art. 6 par. 3 sent. 2 and sent. 3 of
Annexe 4 of the Regulations stipulate that the former club must offer the player
a contract in writing via registered post at least 60 days before the expiry of his
current contract as well as that the offer shall be at least of an equivalent value
to the current contract.
21. The members of the Chamber pointed out that it thus first had to verify
whether the Claimant had offered the player a contract in accordance with art.
6 par. 3 sent. 2 and sent. 3 of Annexe 4 of the Regulations.
22. In this respect, the Chamber noted that the Claimant argued that it had offered
the player a new contract of a higher value in writing via registered post on
more than one occasion. The Chamber equally noted that the Claimant
indicated that it was unable to find a copy of such contract offers in its archives
and that, therefore, it had submitted a written statement of the player in which
the player confirmed that he “had received from V Club, before the last 60 days
of the contract that binds him to the club then and that ends on 30 June 2010,
in writing and via registered post, a proposal for a new contract of a higher
value than the contract mentioned”.
23. With due consideration to the above, the Chamber came, after a thorough
examination of the documentation on file and in consideration of the particular
surroundings of the present matter, to the conclusion that it was not
established to the satisfaction of the Chamber that the Claimant had in fact
offered the player a new contract. The Chamber found it difficult to believe
that the Claimant had offered the player, on more than one occasion, a contract
in writing by registered post, but that, for reasons not clarified, it was no longer
in possession of such contract offers. In particular, the Chamber found it difficult
to believe that, besides the statement of the player, there was not a single piece
of evidence available confirming that the said offers were indeed sent by
registered post to the player. In this regard, the Chamber pointed out that the
core purpose of sending such contract offers by registered post is the
obtainability of proof that such an offer has indeed been sent.
24. In this context, the Chamber realized that the only document submitted for the
consideration of the Chamber with regard to the offer of a new contract was
the statement of the player in question paraphrasing art. 6 par. 3 sent. 2 and
sent. 3 of Annexe 4 of the Regulations. The Chamber deemed it also essential to
underline that it was somehow troubled by the manner in which the
documentation relating to a contract offer was provided; it was not until the
second explicit request of FIFA to indicate whether or not the Claimant had
7/10
offered the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the
Regulations, that the Claimant brought forward the argument that it was no
longer in possession of the contract offers and therefore submitted the player’s
statement paraphrasing art. 6 par. 3 sent. 2 and sent. 3 of Annexe 4 of the
Regulations. In the Chamber’s opinion, the said statement lacked credibility in
view of the surroundings of the present matter.
25. As a consequence, whilst bearing in mind art. 12 par. 3 of the Procedural Rules,
the Chamber concluded that, in the absence of any credible evidence to the
contrary and taking into account the particularities of this case, the Claimant
had not unequivocally proven that it had offered the player a new contract in
accordance with art. 6 par. 3 of Annexe 4 of the Regulations. Equally, the
Chamber concluded that the Claimant had not brought any argument forward
which might have led to a justification in the sense of art. 6 par. 3 sent. 1 of
Annexe 4 of the Regulations. Hence, the Chamber found that the Claimant had
not complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the
Regulations and concluded that the Respondent was not liable to pay training
compensation to the Claimant for the training and education of the player.
26. Taking into account all the above, the members of the Chamber did not deem it
necessary to enter into the substance of the other arguments brought forward
by the parties to the present dispute during the investigation, since the
prerequisites in order for the Claimant to be entitled to training compensation
were not complied with.
27. In view of all the above, the Dispute Resolution Chamber decided to reject the
Claimant’s claim for training compensation.
28. Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in conjunction
with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings
before the DRC relating to disputes regarding training compensation and the
solidarity mechanism, costs in the maximum amount of CHF 25’000 are levied.
The relevant provision further states that the costs are to be borne in
consideration of the parties’ degree of success in the proceedings and that, in
accordance with Annexe A of the Procedural Rules, the costs of the proceedings
are to be levied on the basis of the amount in dispute.
29. In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 490,000 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum amount
of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A pf
the Procedural Rules).
8/10
30. As a result, and taking into account that the claim of the Claimant has been
rejected, the Chamber concluded that the Claimant has to bear the costs of the
current proceedings in front of FIFA.
31. Considering that the case at hand did not compose any complex factual or legal
issues, the Chamber determined the costs of the current proceedings to the
amount of CHF 5,000.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club V, is rejected.
9/10
2.
The final amount of costs of the proceedings in the amount of CHF 5,000 is to
be borne by the Claimant, which amount has already been paid by the
Claimant to FIFA as advance of costs.
*****
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
10/10