Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 September 2010
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Mario Gallavotti (Italy), member
on the claim presented by the club,
S,
as Claimant
against the club,
Z,
as Respondent
regarding a training compensation dispute
related to the transfer of the player D
I.
Facts of the case
1.
The Football Federation H (hereinafter: the FFH) confirmed that the player, D
(hereinafter: the player), born on 5 February 1990, was registered with its
affiliated club S (hereinafter: the Claimant) as from 26 August 2004 until 30 July
2007 as an amateur.
2.
The sporting season in country H runs from August to July of the following year.
3.
The player was registered with the club Z (hereinafter: the Respondent) on 22
February 2008 and signed a professional contract on 15 June 2008.
4.
The Football Federation C (hereinafter: the FFC) confirmed that the Respondent
belonged to the category III (indicative amount of EUR 30,000 per year within
UEFA) at the time when the player was registered with it.
5.
On 29 December 2008, the Claimant contacted FIFA asking for its proportion of
training compensation from the Respondent. In particular, the Claimant is
requesting the amount of EUR 90,000 plus 5% interest p.a. if this amount is not
paid within 30 days after the communication of the decision.
6.
In its reply, the Respondent rejected the Claimant’s claim. The Respondent
considers that the Claimant decided not to receive any refund for expenses
invested in the player’s development since it encircled the answer “No” to the
question as to whether the club wanted to receive refund, on a form entitled
“Clearance”. The Respondent explains that the Claimant legally renounced to its
right to compensation by encircling “No” on this form entitled “Clearance”
related to the release of the player.
7.
After having closed the investigation of the present case, the Claimant provided
FIFA with a correspondence, referring to chapter VII and Annexe 4 of the FIFA
Regulations on the Status and Transfer of Players (hereinafter: the Regulations),
mentioning that “training compensation shall be payable, as a general rule, up to
the age of 23 for training incurred up to the age of 21, unless it is evident that a
player has already terminated his training period before the age of 21 …”.
Furthermore, the Claimant referred to the decision CAS XXXX/A/XXXX club S v/
Club A, pointing out that it is a widely accepted court practice that training
compensation shall be paid to a player’s training club. Finally, according to the
Claimant, training compensation is a right that belongs to the player’s training
club and that cannot be waived.
8.
In reply to this statement, the Respondent stated that the FIFA Regulations “do
not prevent additional regulation of players status through other legitimate
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documents”. In case of the transfer of the player, according to the Respondent,
the status of the player is undoubtedly regulated by the releasing document
entitled “Clearance” and therefore the Claimant willingly renounced to its right
for 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, the Chamber first referred to art. 21
par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Rules). The present matter was submitted to FIFA on 7 January 2009, thus after the
aforementioned Rules entered into force on 1 July 2008. Therefore, the Dispute
Resolution Chamber concluded that the 2008 edition of the Rules is applicable to
the matter at hand (cf. art. 21 par. 2 and 3 of the Rules; edition 2008).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the 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
(editions 2008 and 2009). In accordance with art. 24 par. 1 and par. 2 in
combination with art. 22 lit. d) of the aforementioned Regulations, the Dispute
Resolution Chamber is competent to decide on the present litigation concerning
training compensation between two clubs belonging to two different associations
for the training and education of the player D.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 24 September 2010 by means of which
the parties were informed of the composition of the Chamber, one of the
members refrained from participating in the deliberations. In view of the
foregoing, and in order to comply with the prerequisite of equal representation of
club and player representatives, the Dispute Resolution Chamber adjudicated the
case in presence of three members in accordance with art. 24 par. 2 of the
Regulations on the Status and Transfer of Players (editions 2008 and 2009)
4.
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 (editions 2008 and
2009) and, on the other hand, to the fact that the player was registered for the
Respondent on 22 February 2008 and signed a professional contract on 15 June
2008. In view of the aforementioned, the Dispute Resolution Chamber concluded
that the 2008 edition of the Regulations on the Status and Transfer of Players
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(hereinafter: the 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. In this respect,
the members of the Chamber started by acknowledging the facts of the case at
hand as well as the documentation contained in the file.
6.
In this respect, the Dispute Resolution Chamber duly noted that the Claimant is
requesting, inter alia, training compensation for the training and education of the
player from the Respondent in the amount of EUR 90,000 plus 5% interest p.a. on
the basis of the fact that the player has been transferred internationally.
7.
The Chamber also took due note that the Respondent denied the Claimant’s
entitlement to receive any training compensation, because the Claimant decided
not to receive any refund for expenses invested in the player’s development since
it encircled the answer “No” to the question as to whether the club wanted to
receive refund, on a form entitled “Clearance”.
8.
In view of the above, the Chamber recalled that on the basis of the documents at
its disposal, the player, born on 5 February 1990, was registered for the Claimant
as an amateur as from 26 August 2004 until 30 July 2007, i.e. the seasons
comprehended between the player’s 15th and 17th birthday, and that the sportive
season in the country H ran, during the relevant seasons, as from August to July of
the following year.
9.
Subsequently, the Chamber considered that the Football Federation C confirmed
that the player in question had been registered with the Respondent on 22
February 2008 and signed a professional contract on 15 June 2008.
10.
This being established, the Chamber primarily stated that, as established in art. 20
of the Regulations, in combination with art. 1 par. 1 and art. 2 of Annexe 4 of the
Regulations, training compensation is payable, as a general rule, for training
incurred between the age 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.
11.
The Dispute Resolution Chamber emphasized that with regard to the payment of
training compensation, and in line with the contents of art. 2 par. 1 of Annexe 4 of
the Regulations, the relevant fact to be taken into account is either the first
registration of the player as a professional, or the transfer of a professional
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between clubs of two different associations, whether during or at the end of his
contract, before the end of the season of his 23rd birthday.
12.
In this respect, the members of the Chamber could verify that, according to the
FFC, the player signed a professional contract on 15 June 2008 with the
Respondent.
13.
Additionally, the Chamber took note that according to the player’s passport
submitted by the FFH, the player was registered as an amateur player with the
Claimant and that he joined the Respondent as an amateur player, as per the
information contained in the paragraph 7 of the document referred to as
“Clearance” which was submitted by the Respondent.
14.
On account of the above and from the documents at hand, the Chamber
considered that the player signed his first contract as a professional player with
the Respondent on 15 June 2008, therefore verifying the application of the
provision contained in art. 2 par. 1 of Annexe 4 of the Regulations.
15.
Having established the aforementioned, the Chamber turned its attention to the
Respondent’s position with regard to the claim. In this respect, it firstly noted that
the Respondent is not rejecting the theoretical capacity of the Claimant to claim
training compensation but considers that the latter waived its right to claim
training compensation.
16.
In this regard, the Chamber focussed its attention on the Respondent’s assertion,
in accordance with which the Claimant legally renounced to its right to receive any
training compensation by encircling the answer “No” to the question as to
whether the Claimant wanted to receive refund for expenses invested in the
player’s development, on the form “Clearance”, related to the release of the
player.
17.
In this context, the Chamber wished to recall that, as a general rule, a renunciation
to training compensation is possible and, consequently, did not upheld the
Claimant’s position, in accordance with which training compensation cannot be
waived.
18.
In light of the above, the Chamber turned its attention on the point to determine
as to whether the said “Clearance” document was to be considered as a waiver by
the Claimant to receive training compensation for the player.
19.
Analysing the relevant “Clearance” document, the Chamber duly noted that in its
par. 9 referring to “Data concerning refund of expenses invested in the player’s
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development” the Claimant did answer to the question a), i.e. “Does the club
request a refund” by encircling the answer “No”.
20.
Thus, and bearing in mind the aforementioned, the members of the Chamber
considered that in accordance with the freedom of contract and the clear wording
of the “Clearance” document, i.e. the expression “Refund of expenses invested in
the player’s development”, it was to be considered that the Claimant had
renounced to its right to receive training compensation.
21.
The members of the Chamber also duly noted that the Claimant referred to the
CAS award XXXX/A/XXXX and asserted that training compensation shall be paid to
a player’s training club.
22.
With regard to the aforementioned statement, the members reverted to the said
CAS award and could verify that in this arbitral award, the legal question at stake
was related to the point as to whether one party had waived its right to receive
training compensation by having declared that it would not raise any claim in
connection with transfer compensation.
23.
In this respect, the Chamber wished to highlight that the facts and the legal
questions of the case at hand are not identical to the facts and legal questions of
the case having been analysed by the CAS in the said award and that,
consequently, the reasoning adopted by the CAS in the said award was not
applicable to the case at hand. In particular, the members wished to outline that,
as the dispute at hand is involving an amateur player, the question of the payment
of a transfer compensation, or a waiver to receive an amount corresponding to a
transfer compensation, is irrelevant. What is more, and as previously stated (cf.
point II. par. 19) the wording of the document cannot be interpreted as a
reference to a transfer compensation or a waiver related thereto.
24.
In light of the above, the Chamber concluded that the Claimant is not entitled to
receive any training compensation from the Respondent since, in casu, the
renunciation to receive training compensation is valid.
25.
Taking into account all of the above, the Chamber concluded that the Claimant’s
claim for training compensation is rejected.
26.
In continuation, the Chamber referred to art. 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 and are normally to be paid by the
unsuccessful party.
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27.
In this respect, the Chamber reiterated that the claim of the Claimant is rejected.
Therefore, the Claimant has to bear the costs of the current proceedings in front
of FIFA.
28.
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.
29.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 90,000 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 10,000 (cf. table in Annexe A of the Procedural Rules).
30.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, that the present case 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 3,000.
31.
In view of all of the above, the Chamber concluded that the amount of CHF 3,000
has to be paid by the Claimant to cover the costs of the present proceedings.
32.
In this regard, the Chamber duly noted that the Claimant had paid the advance of
costs in the amount of CHF 3,000 in accordance with art. 17 of the Procedural
Rules.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, S, is rejected.
2.
The final amount of costs of the proceeding are in the amount of CHF 3,000,
which have already been paid by the Claimant, S.
*****
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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
__________________________________
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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