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 M. Saleh Al-Housani (U.A.E.), member
on a matter between the club
Sport Club C,
as Claimant
and the club
S,
as Respondent
regarding a dispute for training compensation in connection with
the transfer of the player R.
I.
Facts of the case
1.
The B Football Association confirmed that the B player, R (hereinafter: the player),
born on 11 May 1986, was registered with its affiliated club, Sport Club C
(hereinafter: the Claimant), from 5 December 2000 until 31 January 2006 (from 5
December 2000 to 27 August 2002 as an amateur and from 28 August 2002 until
31 January 2006 as a professional).
2.
The B sporting season follows the calendar year and runs from January until
December.
3.
On 31 July 2006, the player transferred from B to the P club, S (hereinafter the
Respondent).
4.
The player was registered with the Respondent, on 24 August 2006, as confirmed
by the P Football Association.
5.
The P Football Association confirmed that the Respondent belonged to the
category II (EUR 60,000 per year) during the season 2006/2007.
6.
On 30 July 2008, the Claimant contacted FIFA asking for its proportion of training
compensation from the Respondent. In particular, the Claimant is requesting EUR
255,000.
7.
On 19 March 2009, the Respondent, responded and argued that no training
compensation is due for the following reasons:
− In accordance with art. 2 of the Procedural Rules, FIFA must take the
national laws of P into consideration, in particular the Treaty celebrated
between P and B giving mutual employment and equal work conditions
to citizens of both countries. Therefore B players must be treated the
same as their P counterparts, “without the burden of training
compensation”. Therefore the Regulations on training compensation are
not compatible with the aforementioned Treaty, and cannot be
considered.
− The player had ended his training on 10 May 2005 as he had won the u19
Cup, and begun training with the first team. He also went on to feature
in 5 first team games between 12 June 2005 and 21 August 2005.
− After the termination of the player’s contract on 28 August 2005, the club
showed no enthusiasm in keeping the player.
− The amount claimed by the Claimant is disproportionate, as the
employment contract celebrated between the club and the player
contained a buy-out clause equivalent to only EUR 187,161.44, plus the
player allegedly trained on a “dirt field” instead of grass which indicates
that the Claimant did not care about the player.
II.
Consideration of the Dispute Resolution Chamber
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1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter 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 30 July 2008, thus after 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)
concluded that the 2008 edition of the Rules Governing the Procedures of the
Player Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) are 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 30 July 2008
and that the player was registered with the Respondent on 5 December 2000. In
view of the aforementioned, the Dispute Resolution Chamber concluded that the
2008 edition of the Regulations for 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 Dispute Resolution Chamber started to acknowledge the facts of the case as
well as the documentation contained in the file.
5.
Furthermore, the Chamber stated that, as established in art. 1 par. 1 of Annex 4 in
combination with art. 2 of Annex 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 Dispute Resolution Chamber recalled that the player, born on
11 May 1986, was registered with the Claimant as from 5 December 2000 until 27
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August 2002 as an amateur player, and 28 August 2002 until 31 January 2006 as a
professional player and that the Claimant claimed the payment of an amount of
EUR 255,000.
7.
Equally, the members of the Chamber noted that the Respondent contested the
Claimant’s entitlement to receive training compensation.
8.
In this respect, the Chamber took note that, the Respondent states 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 respect the Respondent states that the Treaty celebrated
between B and P , must be taken into consideration in the matter at hand. The
aforementioned Treaty stipulates that B people working in P (and vice versa) shall
have the same working conditions and rights as nationals and that the Treaty shall
prevail over the Regulations in the case of a B player, employed by a club in P. The
Respondent further alleges that training compensation imposes a burden on B
players, employed in P that is otherwise not suffered by national workers. Thus,
the Respondent claims, the regulations on training compensation discriminate
against B players, and therefore they contravene the terms of the Treaty.
Consequently, the Respondent states that the Regulations on training
compensation cannot apply in these circumstances.
9.
In this respect the member of the Chamber, first considered the jurisprudence of
the Court of Arbitration for Sport (CAS), in particular CAS 2005/A/983, in which it is
held that the FIFA Regulations have supremacy over national laws in cases
regarding transfers of players between football clubs from different associations.
10.
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 in March
2001, and in this respect emphasized that a similar agreement that exists between
countries within the EU and 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, in light of the above, the Chamber deemed that the Treaty concluded
between P and B did not have supremacy over the Regulations, and that, in
principle, it would not remove the obligation to pay training compensation in
accordance with art. 20 and Annex 4 of the Regulations.
11.
In continuation, the Chamber turned its attention to the Respondent’s argument,
according to which training compensation is not due for the period claimed, as
the player’s formation had ended earlier in 2005.
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12.
In this respect, the members of the Chamber pointed out that the period of
training to be taken into account shall only be reduced if it is evident that the
player has terminated his training period before the age of 21 (cf. art. 1 par. 1 of
Annexe 4 of the Regulations). Furthermore, the Chamber stated that the
Respondent carries the burden of proof to that regard (c.f. art. 12 par. 3 of the
Procedural Rules).
13.
The Chamber acknowledged that the main arguments put forward by the
Respondent are the fact that the player had signed a professional contract in
2002, which was then renegotiated with a salary increase in 2004. That the player
had participated in every match of the 2005 U-19 Cup, and subsequently began
training with the senior team. And finally that the player participated in 5 first
team matches between June and August 2005.
14.
In this context, the Chamber, considering the well established jurisprudence,
acknowledged that more than just one indication as to the possible early
termination of the training period needs to exist in order to justify the application
of the relevant exception, such as for example evidence that the player is the most
talented player who played at all ages at the highest level and in the national
teams at all different ages or that a transfer of the player involved significant
amounts of money.
15.
Taking into account the aforementioned and referring to the above-mentioned
principle of the burden of proof, the members of the Chamber decided that it is
not evident that the player terminated his training before reaching the age of 21.
Consequently, the Chamber rejected the Respondent’s allegation also to that
regard.
16.
Finally the Chamber, in consideration of the allegation that the Claimant had not
shown sufficient interest or enthusiasm towards keeping the player, referred to
art. 6 par. 3 of Annex 4 of the Regulations where it is stipulated that if the former
club does not offer the player a contract, no training compensation is payable
unless the former club can justify that it is entitled to such compensation.
However, the Chamber were keen to point at that this provision applies only
when the player moves from one association to another inside the territory of the
EU or EEA. Thus the Chamber concluded that this provision does not apply to the
matter at hand which concerns the movement of a player from B to P .
17.
On account of the foregoing, the Chamber concluded that the Claimant was
entitled to receive training compensation from the Respondent, since, based on
the documents at disposal, it could be established that the player, born on 11 May
1986, was registered with the Claimant, from 5 December 2000 until 31 January
2006.
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18.
Turning its attention to the calculation of training compensation, the Chamber
referred to art. 3 par. 1 of Annex 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. Furthermore the Chamber referred
to art. 5 par. 1 and 2 of Annex 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 as 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.
19.
In continuation, the Chamber took due note that, according to the information
provided by the P Football Association, the Respondent was a category 2 club at
the time the player was registered for it on 24 August 2006. 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.
20.
In this context, the Dispute Resolution Chamber observed that the Respondent
contested the amount claimed and considered it as disproportionate, due to an
alleged buy out clause contained in an employment contract signed between the
player and the Claimant which allowed the player to leave for an amount
equivalent to EUR 187,161. Additionally, the Chamber acknowledged that the
Respondent alleges that the player trained on a dirt pitch during his formation
with the Claimant.
21.
Consequently, the Chamber referred to art. 5 par. 4 of Annex 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).
22.
Equally, 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 was clearly disproportionate and, consequently, that the Chamber should
deviate from the indicative amounts.
23.
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 255,000.
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24.
Therefore, the Chamber decided that the Respondent was liable to pay to the
Claimant training compensation amounting to EUR 255,000 and, hence, the claim
of the Claimant, Sport Club C, is accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sport Club C, is accepted.
2.
The Respondent, S, has to pay to the Claimant, Sport Club C, the amount of EUR
255,000 within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the party’s request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
4.
The Claimant, Sport Club C, 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.
5.
The respondent, S, has to pay the costs of proceedings in the amount of 20,000
within 30 days of notification of the present decision as follows:
5.1.
The amount of CHF 15,000 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
5.2.
The amount of 5,000 to the Claimant, Sport Club C, for 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:
7
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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