Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 August 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Carlos Soto (Chile), member
Caio Cesar Vieira Rocha (Brazil), member
Essa Saleh Al Housani (United Arab Emirates), member
on a matter between the club
C,
as Claimant
and the club
M,
as Respondent
regarding a training compensation dispute related to
the transfer of the player L.
I.
Facts of the case
1.
The X Football Confederation confirmed that the player, L (hereinafter: the
player), born on 18 May 1985, was registered for its affiliated club C (hereinafter:
the Claimant), as from 1 March 2005 until 31 December 2007 as a professional.
2.
The football season in X lasts from 1 January until 31 December.
3.
The P Football Federation informed FIFA that the player had been registered for
the club, M (hereinafter: the Respondent), on 30 January 2008 as a professional
player and that the Respondent belonged to category 2 (indicative amount of EUR
60,000 per year within UEFA) during the season 2007/2008.
4.
On 25 June 2008, the Claimant lodged a complaint against the Respondent before
FIFA asking for its proportion of training compensation, on the basis that the
player had been transferred internationally from the Claimant to the Respondent,
upon expiry of the employment contract concluded between the player and the
Claimant, without any transfer compensation being paid.
5.
In particular, the Claimant requested the payment of an amount of EUR 110,000,
plus default interest, divided as follows: EUR 50,000 allegedly due for the season
2005 and EUR 60,000 allegedly due for the season 2006.
6.
On 27 January 2009, in its response, the Respondent rejected the claim.
7.
In this respect, the Respondent argued that, in accordance with art. 2 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber and art. 19 of the Swiss Federal Act on Private Law, FIFA must
take national laws and foreign mandatory rules into consideration, in particular
the Friendship Treaty (hereinafter: the Treaty) celebrated between P and X which
provides for the principle of freedom of movement of workers and gives mutual
employment and equal work conditions to citizens of both countries. Furthermore,
the Respondent stated that, in virtue of art. 47 of the Treaty, European Treaties
are applicable to X workers. Thus, according to the Respondent, X workers must
be given the same treatment as their P counterparts and the rules concerning the
access and the exercise of a profession stipulated in European Treaties are
applicable to X citizens, i.e. the player has to be assimilated to a worker from the
European Union.
8.
In continuation, the Respondent alleged that the rules governing the payment of
training compensation are linked to the principle of freedom of movement of
workers as provided for in the European multilateral Treaties and that,
consequently, in line with its foregoing argumentation, art. 6 of Annexe 4 of the
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Regulations on the Status and Transfer of Players was applicable to the matter at
hand. Thus, according to the Respondent, bearing in mind that the Claimant had
allegedly not offered to the player a new contract in accordance with art. 6 par. 3
of Annexe 4 of the aforementioned Regulations, no training compensation was
due to the Claimant.
9.
The Respondent finally argued that, in case training compensation was due to the
Claimant, it should be taken into consideration that the player was free at the
moment of his transfer to the Respondent and that the amount of training
compensation should be adjusted in accordance with art. 5 par. 4 of Annexe 4 of
the Regulations on the Status and Transfer of Players, since the player had played
for the Respondent only for a few months, having participated in a few games,
without submitting any documentary evidence in this respect.
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 25 June 2008, 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 (DRC)
(hereinafter: Procedural Rules; edition 2005) 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 (edition 2008). 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.
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 Regulations on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 25 June 2008
and that the player was registered for the Respondent on 30 January 2008. In view
of the aforementioned, the Dispute Resolution Chamber concluded that the 2008
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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 the documents contained in the file.
5.
Furthermore, the Chamber stated that, as established in art. 20 of the Regulations
in combination with 1 par. 1 of Annexe 4 and 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.
6.
In this respect, the Chamber recalled that the player, born on 18 May 1985, was
registered for the Claimant as from 1 March 2005 until 31 December 2007 as a
professional and that the Claimant requested the payment of training
compensation in the amount of EUR 110,000, plus interest, on the basis that the
player had been transferred internationally, upon expiry of the employment
contract concluded between the player and the Claimant, without any transfer
compensation having been paid by the Respondent to the Claimant.
7.
Equally, the Chamber noted that the Respondent contested the Claimant’s
entitlement to receive training compensation.
8.
In this regard, the Chamber took due note that the Respondent stated that
according to art. 2 of the Procedural Rules, the Dispute Resolution Chamber shall
take into account all relevant arrangements and laws that are in connection with
the litigation. In this context, the Respondent stated that the Treaty celebrated
between X and P must be taken into consideration in the matter at hand. Equally,
the Chamber took note of the Respondent’s argumentation in virtue of which the
Treaty provides for, inter alia, the application of the rules concerning the access of
X citizens to the labour market as established in the relevant European Treaties.
9.
The Chamber acknowledged that, based on the foregoing argumentation, the
Respondent was of the opinion that art. 6 par. 3 of Annexe 4 of the Regulations
was applicable to the matter at hand and that the Claimant had not complied with
the prerequisites stipulated in the aforementioned provision, since it had
apparently not offered a new employment contract to the player in the sense of
the aforesaid provision.
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10.
In this respect, the members of the Chamber firstly considered the jurisprudence of
the Court of Arbitration for Sport (CAS), in particular CAS 2005/A/983, which states
that the FIFA Regulations have supremacy over national laws in cases regarding
transfers of players between football clubs from different associations.
11.
Furthermore, the Chamber took note of the understanding reached between FIFA
and UEFA on the one hand and the European Union (EU) on the other hand in
March 2001 and, in this respect, emphasized that a similar agreement that exists
between countries within the EU and the European Economic Area (EEA) does not
give grounds to have the Regulations on training compensation deemed
inapplicable to clubs affiliated to associations that are within the territory of the
EU/EEA. Therefore, a fortiori, the Chamber deemed that the Treaty concluded
between P and X did not have supremacy over the Regulations, and that, in
principle, it would neither remove the obligation to pay training compensation in
accordance with art. 20 and Annexe 4 of the Regulations nor extend the
application of art. 6 of Annexe 4 of the Regulations to players moving from/to an
Association outside the EU/EEA.
12.
In view of the above, and in particular in view of the fact that X is not a member
of the EU/EEA, the Chamber concluded that the pertinent transfer had not taken
place inside the territory of the EU/EEA and, thus, that art. 6 of Annex 4 of the
Regulations was not applicable to the matter at hand. Therefore, the Chamber
unanimously stated that the Claimant had no obligation to offer the player a new
contract in accordance with the above-mentioned provision.
13.
Equally, the Chamber noted that the Respondent held that the competent
deciding body should take into account the fact that the player was free at the
moment of his transfer to the Respondent.
14.
In this respect, the Chamber was eager to emphasize that, according to art. 2 par.
1 lit. ii) of Annexe 4 of the Regulations, the transfer of the player can take place
either during or at the end of his contract (emphasis added). Thus, the members of
the Chamber highlighted the fact that the relevant transfer of the player can occur
after the expiry, mutual or justified termination of the player’s previous
employment contract, without the training club losing its entitlement to training
compensation.
15.
In view of the above, the Chamber concluded that the Claimant was entitled to
receive training compensation from the Respondent, since, based on the
documents at its disposal, it could be established that the player in question, born
on 18 May 1985, was transferred as a professional to the Respondent on 30
January 2008, i.e. before the end of the season of the player’s 23 birthday in X,
which ended, according to the X Football Federation, on 31 December 2008.
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16.
As a result, and considering the above points II. 5 and II. 6 as well as art. 3 par. 1 of
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
be considered at the matter at stake corresponds to the period comprehended
between 1 March 2005 until 31 December 2006, i.e 10 months of the season of the
player’s 20th birthday and the whole season of the player’s 21st birthday.
17.
Turning its attention to the calculation of the amount of 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 into consideration 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.
18.
Furthermore, the Chamber took due note that according to the information
provided by the P Football Federation, the Respondent belonged to category 2
during the season 2007/2008. Moreover, the Chamber took into account that the
indicative training costs for a category 2 club and member of a national
association affiliated to the Union des Associations Européennes de Football
(UEFA) amount to EUR 60’000 per season (cf. FIFA Circular nr. 1085 dated 11 April
2007).
19.
In continuation, the Dispute Resolution Chamber observed that the Respondent
alleged, in case training compensation was due to the Claimant, that the amount
of training compensation should be adjusted, since the player played for it only for
a few months, having participated in a few matches only.
20.
In this respect, the Chamber referred to art. 5 par. 4 of Annexe 4 of the
Regulations, according to which “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 case under
review” (emphasis added).
21.
Equally, and with regard to the foregoing, the Chamber referred to the contents
of art. 12 par. 3 of the Procedural Rules, which stipulates that any party deriving a
right from an alleged fact shall carry the burden of proof and pointed out that the
Respondent had not provided FIFA with any substantial documentary evidence
establishing that the amount claimed by the Claimant was clearly disproportionate
and that, consequently, the Chamber had no reason to deviate from the indicative
amounts stipulated in the aforementioned FIFA Circular.
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22.
Consequently, and taking into account all the above-mentioned elements, the
Dispute Resolution Chamber decided that the Claimant was entitled to receive
training compensation from the Respondent in an amount of EUR 110,000.
23.
Therefore, the Chamber concluded that the Respondent, club M, was liable to pay
to the Claimant C, training compensation amounting to EUR 110,000, plus 5% of
interest, and, hence, the claim of the Claimant C, is accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant C, is accepted.
2.
The Respondent, Club M, has to pay to the Claimant, C, the amount of EUR
110,000, as well as 5 % interest per year on the said amount as from 1 March 2008
until the date of effective payment, within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
4.
The Claimant C, is directed to inform the Respondent, Club M, 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.
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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
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