Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the
Club A,
as Claimant
against the club
F,
as Respondent
regarding a training compensation dispute
related to the transfer of the player X.
I.
Facts of the case
1.
The country A player, X (hereinafter: the player), was born on 25 May 1990.
2.
According to the player passport issued by the Football Association A (hereinafter:
the FAA), the player was registered with the country A club, Y, from the season
2002 until 27 March 2005 as an amateur, and with another country A club,
A (hereinafter referred to as the Claimant), as an amateur from
28 March 2005 until 20 October 2009.
3.
The sporting season in country A runs as follows:
a)
for amateurs (under 20 years of age) from January to December of the
relevant year, and
b)
for amateurs (over 20 years of age) and professionals from 1 July until
30 June of the following year.
4.
On 10 July 2009, the player signed his first (professional) employment contract
with the country B club, F (hereinafter referred to as the Respondent).
5.
On 30 September 2009, the B Football Federation ( hereinafter: the BFF) then
requested the International Transfer Certificate (hereinafter: ITC) for the player
from the Football Association A, since the player had signed a professional
contract with the Respondent.
6.
On 16 October 2009, the player was registered for the Respondent with
retroactive effect as from 10 July 2009.
7.
As a matter of fact, according to the player passport issued by the B Football
Federation, the player was registered as a professional from 10 July 2009 to 31
December 2010 with the Respondent.
8.
Upon specific request, the B Football Federation also informed FIFA that its
affiliate is a category I club (indicative amount of USD 50,000 within the
framework of the “Confederation”; hereinafter: CONFEDERATION).
9.
On 12 February 2010, the Claimant contacted FIFA, via the Football Association A,
in order to reserve its right to lodge a claim against the Respondent for the
payment of training compensation due to the transfer of the player to the
Respondent. According to the Claimant, the player joined its club at the age of 14,
integrating the inferior divisions between the years 2005 and 2009; this is, the
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player was trained by the Claimant during the seasons of his 15th, 16th, 17th, 18th
and 19th birthdays. The player then allegedly signed a professional contract with
the Respondent in October 2009. In view of the applicable provisions, the
Claimant should be entitled to a total amount of USD 202,000 in case that the
Respondent would be classified as category I club or to an amount of USD 122,000
in case it would be classified in category II club.
10.
On 17 March 2010, the Claimant concretised and formalised its complaint,
requesting from the Respondent the sum of USD 202,000 along with the
corresponding interest as from the date on which the 30 days payment deadline
elapsed until the date of effective payment, as well as the imposition of
procedural costs on the Respondent.
11.
In its statement of defence, the Respondent firstly requested to fully dismiss the
claim of the Claimant since no evidence (i.e. invoices, costs of training centre,
budget, reimbursement of expenses, etc.) was presented in order to prove that the
effective costs for the player’s education are really proportionate to the training
and education of the player with the Claimant.
12.
Secondly, the Respondent required the Dispute Resolution Chamber (DRC) to
confirm that the category as established by the B Football Federation is not
grounded on the necessary legal and financial basis pursuant to the evidence
produced by the Respondent. In this regard, the Respondent submitted a copy of a
document which is allegedly the latter club’s financial report, however, only in P
language. Despite several attempts to receive a translation into one of the four
official FIFA languages (English, Spanish, French or German), the Respondent
never sent any.
13.
The Respondent alleged in this respect to be able to prove based upon concrete
evidentiary documents, duly audited by independent auditors, that the real
training costs for the player are of USD 30,000. Therefore, the Respondent
deemed that it should be classified as a category II club. In this case, the total
amount due as training compensation by the latter club to the Claimant should be
of USD 92,000.
14.
Thirdly, the Respondent requested to accept the proofs brought by it, evidence
which would confirm that the player (through his parents) was, in effect, the one
who bore his education and health expenses during the period he was an amateur
player for the Claimant.
15.
According to the Respondent, it is unquestionable, therefore, that during this
period, both the player and the Claimant actually shared the expenses concerning
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the training and education of the player. So, it would be fair to conclude, bearing
in mind that the applicable club category should be category II, that the Claimant
is entitled to receive USD 46,000 as training compensation.
16.
Subsidiary, only in case the above would be rejected, the Respondent required the
DRC to ratify that the calculation presented by the Claimant is not in accordance
with the FIFA Regulations on the Status and Transfer of Players. In this context,
even in the hypothetical scenario in which the Respondent would be classified as a
category I club, the correct amount due as training compensation should be of
USD 120,000 and, since no interest on training compensation had allegedly been
claimed for in the submissions filed by the Claimant, the training compensation
in casu shall be awarded without interest. In this regard, the Respondent referred
to the award rendered by the Court of Arbitration for Sport (CAS) in the
Arbitration with the reference CAS 2003/X/XXX.
17.
In its replica, the Claimant requested the rejection of all arguments put forth by
the Respondent. In particular, the Claimant alleged that it is expressly recognised,
on the one hand, by the current regulations, that the system created by FIFA is
meant to compensate the clubs for the important work done in training young
players and not simply to refund to the club the costs it incurred administering
young teams. On the other hand, the Claimant also insisted on the fact that
whichever club alleges the disproportionality of the calculation of the costs of the
training compensation is the one that carries the burden of proof. Moreover, the
Claimant amended its claim alleging that the total of the due compensation is of
USD 193,667.
18.
Finally, with regard to the alleged “disproportionality” of the (training) costs, the
Claimant quoted several CAS awards (notably the ones with reference
CAS 2004/X/XXX, CAS 2009/X/XXXX and CAS 2003/X/XXX), insisting on the fact that
the FIFA Regulations on the Status and Transfer of Players are known by all the
clubs that are its members, as well as on the fact that the amounts established in
the FIFA Circulars 1085 and 1142 reflect the principle of solidarity and apply
globally to all the cases without the claiming club having to prove the amount of
the effective training.
19.
The Claimant thus concluded that in casu, the alleged evidence brought by the
Respondent is not clear or convincing enough to establish that the amounts
established in the aforementioned circulars are evidently disproportionate. In view
of the above, the Claimant requested the rejection of the “disproportionality”
alleged by the Respondent.
20.
In its rejoinder, the Respondent mainly reiterated its previous arguments and
required in particular to fully dismiss the amount claimed for training
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compensation and education by the Claimant (i.e. the amount of USD 193,667),
and that in case the Respondent would be classified as a category II club, the total
amount due as training compensation by the latter club should be of USD 81,500.
Only in case the above would be rejected, the club F required to ratify, even in the
hypothetical scenario in which it would be classified as a category I club, that the
correct amount due as training compensation should be not higher than USD
120,000 and repeated, finally, that since no interest on training compensation had
been claimed for in the submissions lodged by the Claimant, the training
compensation shall be awarded in casu without interest.
*****
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at hand. In this
respect, the DRC took note that the present matter was submitted to FIFA on
12 February and 17 March 2010 respectively. Consequently, the Chamber
concluded that the edition 2008 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) are applicable to the matter at stake (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 with an international dimension, concerning the training
compensation claimed by the country A Club A from the country B club, F, for the
training and education of the country A player, X.
3.
Furthermore, and taking into consideration that the player was registered with his
new club, i.e. the Respondent, on 16 October 2009, 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 2010), the previous version of the
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regulations (edition 2009; 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 established facts of the case and
the arguments of the parties, as well as the documentation on file.
5.
First of all, the Chamber stated that, as established in art. 1 par. 1 of Annexe 4 in
combination with art. 2 of Annexe 4 to the Regulations, training compensation is,
inter alia, 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.
6.
In this respect, the DRC recalled that the player was born on 25 May 1990, and
that, as confirmed by the Football Association A, he was registered with the
Claimant from 28 March 2005 until 20 October 2009 as an amateur. The sporting
season in country A for under-20 amateur players lasts from January to December;
i.e. it follows the calendar year.
7.
The members of the Chamber also acknowledged that prior to being registered
with the Claimant, the player was registered with one other country A club, Y, as
an amateur.
8.
In continuation, the members of the Chamber took note that the Claimant
asserted that it is entitled to receive training compensation from the Respondent
in the amount of USD 193,667 on the basis that the player was registered for the
first time as a professional with the Respondent.
9.
Furthermore, the DRC noted that the Respondent first and foremost rejected the
complaint of the Claimant, arguing that the latter club did not present any
documentary evidence in order to prove that the effective costs for the player’s
education are really proportionate to the indicative amounts stated in the FIFA
Regulations and Circulars.
10.
Moreover, the Chamber also took into account that the Respondent, in an
alternative motion, contested the amount claimed by the Claimant, and deemed
that the DRC should adjust the relevant amount since it is clearly disproportionate.
11.
In particular, the Respondent pointed out that the category as established by the
B Football Federation is not grounded on the necessary legal and financial basis
pursuant to the evidence provided by the Respondent, and that the latter club
should be classified as a category II club.
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12.
What is more, the Respondent also considered that it was the player himself –
through his parents – that bore part of his education (and health) expenses during
the period when he was an amateur player with the Claimant.
13.
Finally, the members of the Chamber also noted that the Respondent contested
the Claimant’s entitlement to receive default interest since it was allegedly not
claimed by the Claimant.
14.
In this context, the Chamber concluded that the Respondent does actually not
deny the Claimant’s entitlement to training compensation, but rather expresses
the view that such compensation should be reduced in view of certain particular
circumstances.
15.
Having stated the aforementioned – and given that the player had always been
registered as an amateur prior to his registration for the Respondent – the
Chamber concluded that the player was in fact registered as a professional for the
first time with the Respondent. In this regard, the DRC recalled the provisions set
out under art. 20 of the Regulations, art. 2 par. 1 lit. i) as well as art. 3 par. 1 of
Annexe 4 to the Regulations regarding training compensation, and ruled that the
Respondent is undoubtedly liable to pay training compensation to the Claimant.
16.
Thus, the Chamber held that the Claimant was entitled to receive training
compensation for the training and education of the player for nine months of the
season 2005, for the entire seasons 2006, 2007 and 2008, as well as for ten months
of the season 2009.
17.
Having established the time frame of the player’s training and education by the
Claimant in view of the latter’s entitlement to training compensation, the
Chamber then paid particular attention to the amount of training compensation
due for each season.
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18.
In this respect, the DRC recalled that the Respondent challenged the amount
claimed by the Claimant indicating that it was disproportionate as the Claimant
did allegedly not present any evidence to prove that the effective costs for the
player’s education are really proportionate to the indicative amounts stated in the
FIFA Regulations and its Circulars. Furthermore, the Respondent asserted that it
could prove that the training costs for the player amounted to USD 30,000, and
thus that it should be classified as a category II club, relying on documents which
were only submitted in P language. In this regard, the Respondent submitted that
the DRC has discretion to adjust the amount payable as training compensation.
19.
In this respect, the Chamber recalled that, according to art. 5 par. 4 of Annexe 4 to
the Regulations, the Dispute Resolution Chamber may review disputes concerning
the amount of training compensation payable and shall have discretion to adjust
this amount if it is clearly disproportionate to the matter under review. In this
regard, the members of the Chamber were, however, eager to emphasise that
such possibility allowed by the Regulations would, in any case, have to be analysed
on a case-by-case basis.
20.
In this context, the members of the Chamber underlined that the Respondent had
not substantiated its request with any pertinent documentary evidence in
accordance with the general legal principle contained in art. 12 par. 3 of the
Procedural Rules, which stipulates that any party claiming a right on the basis of
an alleged fact shall carry the burden of proof. Indeed, the documentation
brought by the Respondent in support of its allegation that the training costs
under category II should be considered was submitted in P language only and thus
could not be considered by the deciding body (cf. art. 9 par. 3 in connection with
art. 9 par. 1 lit. e) of the Procedural Rules). What is more, the DRC unanimously
concluded that the Respondent attempted to overturn said principle trying to
allege that it was the Claimant that had to prove said proportionality, while – as
stated before – it is up to the Respondent to prove the disproportionality of the
indicative amount fixed in the relevant FIFA Circulars.
21.
Consequently, the Chamber had no alternative but to conclude that the provisions
of art. 5 par. 4 of Annexe 4 to the Regulations could not be applied in the present
matter and, therefore, decided that the amount of training compensation payable
by the Respondent to the Claimant could not be adjusted.
22.
For the sake of good order, the DRC was also eager to emphasise that as a general
rule, the classification of a club as established and confirmed by the relevant
association to which the club is affiliated, is the only one which can be taken into
account by the deciding body, that is, the national associations are responsible for
the categorisation of their member clubs. In this regard, the DRC recalled that in
casu the B Football Federation had confirmed that the Respondent was a category
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I club and thus it could not see any reason to doubt such information, all the more
so in view of the fact that the Respondent could not provide any evidence to the
contrary.
23.
Equally, the Chamber stressed that the fact that the player allegedly had to
support part of his training costs is completely irrelevant to the present matter.
24.
Therefore and in view of all of the above, the DRC came to the conclusion that the
calculation of the training compensation due by the Respondent to the Claimant
must be assessed in consideration of the applicable rules outlined hereafter.
25.
First of all, the members of the Chamber deemed fundamental to recall the
specific provisions of art. 5 par. 3 of Annexe 4 to the Regulations, which provide
that to ensure that training compensation for very young players is not set at
unreasonably high levels, the training costs for players for the seasons between
their 12th and 15th birthday shall be based on the training and education costs for
category IV clubs.
26.
In view of the above, the Chamber decided that the training costs for the nine
months of the 2005 season, i.e. the season of the player’s 15th birthday, was
indeed to be based on the training and education costs of a category IV club.
27.
In this respect, the Chamber recalled that according to the FIFA circular letter
no. 1085 dated 22 April 2009, the indicative amount per season for a category IV
club within the Confederation was of USD 2,000.
28.
In continuation and turning their attention to the 2006 and the following seasons,
the members of the Chamber referred to art. 5 par. 1 and par. 2 of Annexe 4 to
the Regulations, which state that, as a general rule, to calculate the training
compensation due to a player’s former club, it is necessary to take the costs, that
would have been incurred by the new club if it had trained the player itself,
multiplied by the number of years of training.
29.
In this regard, the members of the Chamber recalled that the B Football
Federation had confirmed that the Respondent was a category I club.
Consequently, the indicative amount per season was of USD 50,000. In this regard,
the DRC made particular reference to the FIFA circular letter no. 1085 dated 22
April 2009.
30.
In view of the applicable provisions and of the facts of the present matter, and
having proceeded to the relevant calculation in view of the date of registration of
the player with the Claimant, the members of the Chamber concluded that the
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amount of USD 193,167 is due by the Respondent to the Claimant as training
compensation.
31.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2 of
Annexe 4 to the Regulations, the DRC also decided that the Respondent has to
pay, in conformity with its longstanding practice, interest at 5% per annum over
the amount payable as training compensation as of the 31st day of the registration
of the player with the latter, i.e. as of 16 November 2009, until the date of
effective payment.
32.
Therefore, taking into account the above-mentioned considerations, the members
of the Chamber decided to partially accept Claimant’s claim and recalled that the
Respondent is liable to pay training compensation to the Claimant in the amount
of USD 193,167.
33.
In continuation, the Chamber referred to article 25 par. 2 of the Regulations in
combination with article 18 par. 1 of the Procedural Rules, according to which in
the proceedings before the Dispute Resolution Chamber relating to disputes
regarding training compensation, 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.
34.
In this respect, the DRC reiterated that the claim of the Claimant is indeed
partially, but almost fully accepted. Therefore, the Respondent has to bear the
costs of the current proceedings in front of FIFA.
35.
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.
36.
The amount in dispute to be taken into consideration in the present proceedings
amounts to USD 193,667 related to the claim of the Claimant, as decreased in its
replica. Therefore, the members of the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to CHF 20,000 (cf. table in
Annexe A to the Procedural Rules).
37.
Considering that the matter at stake allowed to be dealt with following a
reasonable procedure, that the matter was adjudicated by the Chamber, that the
present matter 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 15,000.
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38.
In this respect, the DRC took into account that the Claimant had paid an advance
of costs in the amount of CHF 5,000 in accordance with art. 17 of the Procedural
Rules.
39.
In view of all of the above, the Chamber concluded that the amount of CHF 15,000
has to be paid by the Respondent to cover the costs of the present proceedings.
Thereof the amount of CHF 10,000 has to be paid by the Respondent to FIFA and
the amount of CHF 5,000 to the Claimant.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club F, has to pay to the Claimant, within 30 days as of
notification of the present decision, the amount of USD 193,167 plus 5%
interest on said amount as from 16 November 2009 until the effective date of
payment.
3.
If the aforementioned sum plus interest 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.
4.
Any further request filed by the Claimant is rejected.
5.
The final amount of costs of the proceedings in the amount of CHF 15,000 are
to be paid by the Respondent within 30 days of notification of the present
decision as follows:
5.1. The amount of CHF 10,000 to FIFA to the following bank account with
reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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5.2. The amount of CHF 5,000 to the Claimant.
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6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance in accordance with the above
points 2 and 5.2 are to be made and to notify the Dispute Resolution Chamber
of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 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
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