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
P,
as Claimant
against the club
G,
as Respondent
regarding a training compensation dispute
related to the transfer of the player F
I.
Facts of the case
1.
The Football Federation X (hereinafter: FFX ) confirmed that the player F
(hereinafter: the player), born on 21 March 1985, was registered with its affiliated
club P (hereinafter: the Claimant) as from 27 February 2002 until 22 May 2003 on a
loan basis as a professional. After a definitive transfer, the player was registered
with P as from 23 May 2003 until 17 July 2005 and as from 20 July 2006 until 1
February 2008 as a professional. In between, the player was loaned to P as from
18 July 2005 until 19 July 2006 as a professional.
2.
The football season in the country B follows the calendar year.
3.
The player was registered with the club, G, on 15 February 2008 as a professional.
4.
The Football Federation Y (hereinafter: the FFY) confirmed that the club G
(hereinafter: the Respondent) belonged to the category I (indicative amount of EUR
90,000 per year within UEFA) during the season 2007/2008.
5.
On 7 July 2008, the Claimant lodged a complaint against the Respondent in
front of FIFA asking for its proportion of training compensation, on the basis
that the player had been transferred internationally from the Claimant to the
Respondent without any transfer compensation being paid.
6.
In particular, the Claimant is requesting the amount of EUR 345,207 plus 5%
interest p.a. as from 14 March 2008.
7.
In its response, the Respondent rejected the claim and argued that the player
was transferred as a free player. Furthermore, it stated that training
compensation shall be payable for the training incurred up to the age of 21.
When the player was 21, he was employed by P, which was the last club that
contributed to the training of the player. Until his transfer to the Respondent at
the age of 23, the player was bound by contract with the Claimant and
therefore the Claimant did not contribute in the training of the player.
8.
To that, the Claimant replied that “[the player] was contractually bound to [the
Claimant] for almost six years. Consequently, [the Claimant] is obviously and
undeniably the club responsible for the most relevant portion of the player’s
training and education period.” It also stated that “while the player was loaned
to P, the employment contract with [the Claimant] was suspended, but still
valid. […] Therefore, [the Respondent] erroneously asserts that after the period
the player was temporarily transferred to P, he signed a new employment
contract with [the Claimant].”
2
9.
Furthermore, the Claimant stated that it was the player’s former club before the
player transferred to the Respondent. Since the player and the Claimant
mutually agreed to terminate the employment contract, the player was
subsequently transferred to the Respondent.
10.
In its duplica, the Respondent mentioned that it already paid EUR 274,600 to
the Claimant in February 2008 and that both parties agreed upon the amount
of the payment. The payment was intended to compensate the mutual
termination of the contract between the Claimant and the player. As there is an
agreement between the Claimant and the Respondent to compensate the early
termination of the contract, the Respondent asserted that no training
compensation can be claimed by the Claimant.
11.
Furthermore, the Respondent stressed that the training period of the player
ended before the age of 21, since “it is highly documented that by the age of
18 (year 2003) the player was already an established professional insomuch as
he played as many as 15 official matches with [the Claimant’s] first team,
scoring 3 goals.”
12.
The Claimant replied by pointing out that the argumentation of the
Respondent is contradictory as, in particular, the Respondent first sustained that
it had contracted a “free player” but stated one year later that it paid a transfer
fee to the Claimant. The Claimant also indicated that the amount of EUR
274,600 was paid by a company named Z and not by the Respondent. In this
respect, Z did such payment on behalf of the company A, which undertook the
obligation to make such payment as a compensation for the purchase of 100%
of the player’s economic rights.
13.
The agreement between the Claimant, the player and A was concluded on 18
December 2007 and the transfer of the player took place in February 2008.
Therefore, the Claimant stated that two autonomous transactions have been
carried out.
14.
In its last position, the Respondent maintained its previous arguments. With
regard to the payment of EUR 274,600 to the Claimant, the Respondent
provided an agreement signed by the player and the Claimant dated 8 February
2008, according to which USD 400,000 were to be paid by A on behalf of the
player to the Claimant for the early termination of the employment contract.
15.
The Respondent stated that it is not relevant who paid this compensation and
that “pursuant to this agreement, [the Claimant] should transfer the player to
any club indicated by A”. The Respondent argued that the agreement was
signed “in order to transfer [the player] to [the Respondent]”. Therefore, the
3
Respondent reasoned that the training compensation was included in the
amount of USD 400,000. Furthermore, the Respondent pointed out that “should
the employment contract between the player and [the Claimant] have been
terminated on its expiry date on 30 June 2010, the player would have been well
above the age of 23 and [the Claimant] would not have been entitled anymore
to 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, it took note that the present
matter was submitted to FIFA on 7 July 2008. Consequently, the 2008 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is 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 and 2 in
combination with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (editions 2008 and 2009), the Dispute Resolution Chamber is competent
to decide on the present litigation with an international dimension concerning
the training compensation claimed by the Claimant for the training and
education of the player F.
3.
In this respect, the Chamber was eager to emphasise 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, and taking into consideration that the player was registered with
his new club on 15 February 2008, 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 (editions 2008 and 2009), and considering that
the present claim was lodged on 7 July 2008, the 2008 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
5.
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.
6.
In this respect, the Chamber reverted to the Claimant’s statement of claim and
noted it requested the payment of training compensation in the amount of EUR
345,207, plus 5% of interest p.a. as from 14 March 2008, on the basis of the fact
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.
The Chamber also took due note that the Respondent contested its obligation
to pay any training compensation to the Claimant. In particular, it firstly argued
that training compensation shall be paid for the training incurred up to the age
of 21 and that, when the player was 21 years old, he was employed by P, which
was therefore the last club that contributed to the player’s training. Hence, the
Respondent deems that no training compensation is due to the Claimant.
8.
In this respect, and on the basis of the player’s sportive passport issued by the
FFB, the Chamber could verify that the player, born on 21 March 1985, was
registered with the Claimant as from 27 February 2002 until 22 May 2003, as
from 23 May 2003 until 17 July 2005 and as from 20 July 2006 until 1 February
2008, always as a professional.
9.
Furthermore, the Chamber also observed that it is uncontested by the parties
that the player was registered as a professional for another club, the club P, on
a loan basis, as from 18 July 2005 until 19 July 2006.
10.
This being established, the Chamber primarily wished to state that, as
established in art. 20 of the Regulations in combination with art. 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 23 rd birthday.
11.
In continuation, the members of the Chamber stated that on the basis of the
Regulations, and provided the prerequisites of art. 20 of the Regulations as well
as the preconditions set out in Annexe 4 of the said Regulations are fulfilled, a
club is entitled to training compensation for the period during which the player
has been registered for that club, which has consequently contributed to the
5
player’s training incurred as from the season of his 12th birthday up to the
season of his 21st birthday.
12.
Additionally, on a side note, referring to its established jurisprudence
pertaining to the entitlement to training compensation in relation to loans of
players, the Chamber pointed out that, in principle, in accordance with art. 10
par. 1 of the Regulations, a training club is equally entitled to training
compensation for the relevant period of time of training during which the
player was registered for it as a consequence of a loan from another club.
13.
Moreover, the Chamber emphasised, referring to its well-established
jurisprudence (cf. the decision of the DRC passed on 23 March 2006, no. XXXXX,
consideration no. II./10.) which was also confirmed by the Court of Arbitration
for Sport (CAS; cf. CAS 2004/X/XXX, considerations no. 7.4.13 et sq.), that all
clubs which have in actual fact contributed to the training of a player as from
the age of 12 are, in principle, entitled to training compensation for the
timeframe that the player was effectively registered for them.
14.
Bearing in mind the foregoing, the DRC stated that, if the argumentation of the
Respondent put forward in connection with art. 10 par. 1 of the Regulations in
combination with art. 3 par. 1 of Annexe 4 of the Regulations would be
assumed to be correct, any training club loaning a player to another club would
lose its entitlement to training compensation for the relevant period of time
during which it trained the player before the loan.
15.
In this regard, on the one hand, the members of the Chamber unanimously
remarked that the aim of the last sentence of art. 10 par. 1 of the Regulations is
to ensure that training clubs which register a player on a loan basis also benefit
from the solidarity mechanism and training compensation, provided that the
relevant prerequisites established in the pertinent provisions are fulfilled.
16.
Equally, on the other hand, the Chamber stated that art. 10 par. 1 of the
Regulations could not be interpreted as sustained by the Respondent, since this
interpretation would clearly contravene the intention of the legislator of the
Regulations according to which training clubs shall be rewarded for their efforts
invested in training young players.
17.
This being said, the Chamber furthermore unanimously remarked that the
entire period of time during which the player was registered for the Claimant as
well as for P has to be considered as one entire timeframe and that therefore
the loan to the latter club cannot be considered to be a subsequent transfer,
triggering the consequences stipulated in art. 3 par. 1 of Annexe 4 of the
Regulations, and consequently preventing the Claimant to receive training
6
compensation for the period of time during which the player was registered for
it prior to the loan.
18.
In other words, the Chamber declared that the obligation to pay training
compensation arises in case a player is definitively transferred from one club to
another, with the effect that the club which transferred the player on a loan
basis to another club is entitled to training compensation for the period of time
during which it effectively trained the player, however, excluding the period of
time of the loan to the other club.
19.
In summary, the deciding authority clarified that a club which contributed to
the training of a player for a certain period of time between the seasons of the
player’s 12th and 21st birthday is, notwithstanding the fact that it temporarily
transferred the player to another club on a loan basis, entitled to training
compensation for the pertinent period, i.e. for the entire period of time if
effectively trained the player (prior to and after the respective loan). However,
the relevant entitlement can only be claimed towards a new club that requires
the services of a player on a definitive and permanent basis subject to the
prerequisites established in art. 20 and Annexe 4 of the Regulations.
20.
Finally, to conclude this aspect of the deliberations, the Chamber was eager to
stress that it could not have been the intention of the legislator of the relevant
regulatory provision (art. 10 par. 1 of the Regulations) to trigger the
consequences of art. 3 par. 1 of Annexe 4 of the Regulations on the occasion of
a loan and thus potentially depriving the loan of its essential flexibility and
function of providing young players the opportunity to gain practical
experience in another club in order to develop in a positive way, personally and,
eventually, also for the benefit of the player’s new club.
21.
As a result, and considering the above, 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
in the matter at stake corresponds to 10 months of the season 2002, the entire
seasons 2003 and 2004, 7 months of the season 2005 and 5 months of the
season 2006.
22.
In light of the above-mentioned, the Chamber concluded that the assertions
presented by the Respondent with regard to the loan of the player from the
Claimant to P were not valid reasons leading to reject the Claimant’s request for
payment of training compensation and that, as a result thereof, the reasoning
presented by the Respondent in this respect was rejected.
7
23.
In continuation, the Chamber took note of the Respondent’s argumentation
that it already paid EUR 274,600 to the Claimant in February 2008 and that the
amount paid was including Training Compensation. In this regard, the
Respondent did not provide any evidence that it paid the aforesaid amount to
the Claimant. In fact, and on the basis of the bank receipt submitted by the
Respondent in relation with the said payment, the Chamber could notice that
the amount was paid to the Claimant by a company called Z.
24.
In this context, the Chamber referred to the wording of art. 5 of the
Regulations as well as to its well established jurisprudence and, accordingly,
recalled that only a club can register a player and that, as a result thereof, a
transfer of a player can only take place between two clubs. In other words, the
Chamber considered that a player cannot be transferred to a company and that,
therefore, an amount paid by a company cannot be considered as a payment
consisting in or including training compensation.
25.
In light of the above, and applying this reasoning to the case at hand, the
members of the Chamber concluded that the statements presented by the
Respondent with regard to the above-described payment cannot be considered
as a payment consisting in or including training compensation and that,
consequently, the Respondent’s assertions deriving thereof were rejected.
26.
Having so found, the Chamber reverted to the Respondent’s assertion in
accordance with which the Claimant is not entitled to claim training
compensation for the training of the player up to the season of his 20 th
birthday, i.e. in 2005, since the latter, considering his skills and records, had
already finished his training at the age of 18 years old, i.e. in 2003.
27.
The Chamber carefully analysed the Respondent’s assertions in this regard, as
well the documentary evidence it submitted, which permitted the members to
note that the said documentation had not been accompanied with a translation
into one of the official FIFA languages, consequently breaching the provision
pertaining to art. 9 par. 1 lit. e) of the Procedural Rules.
28.
What is more, the Chamber wished to refer the Respondent to art. 12 par. 3 of
the Rules, in accordance with which any party claiming a right on the basis of
an alleged fact shall carry the burden of proof. In this context, the members
considered that the Respondent’s assertions, and supporting documentation, in
accordance with which the player had already finished his training at the age of
18 years old was not corroborated by any substantial evidence establishing the
reality of its assertion. In these circumstances, the Chamber concluded that the
Respondent’s assertions in this respect were to be rejected.
8
29.
On account of all the above, the Chamber concluded that the Claimant was
fulfilling the required conditions to claim for training compensation and that
the assertions put forward by the Respondent to justify its refusal to pay
training compensation to the Claimant were not valid.
30.
Turning its attention to the calculation of training compensation due to the
Claimant by the Respondent, the Chamber referred to art. 5 par. 1 and 2 of the
Annexe 4 of the Regulations, which stipulate that as a general rule, it is
necessary to take into consideration 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.
31.
Additionally, and considering art. 3 par. 1 of the 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 10 months over the season 2002, 12 months over the seasons 2003
and 2004, 7 months over the season 2005 and 5 months over the season 2006, i.e.
the season of the player’s 21st birthday.
32.
Furthermore, the Chamber took due note that according to the information
provided by the FFY, G belonged to category I (indicative amount of EUR 90,000
per year within UEFA) during the season 2007/2008.
33.
Equally, the Chamber emphasized that according to art. 3 par. 2 of the Annexe
4 of the Regulations, the deadline for payment of training compensation is 30
days following the registration of the professional with the new association.
34.
Consequently and taking into account all the above-mentioned elements, and
in particular the amount claimed by the Claimant, the Dispute Resolution
Chamber decided that the Claimant was entitled to receive training
compensation from the Respondent in an amount of EUR 345,000, with 5%
interest per year on the said amount as from 17 March 2008 until the effective
date of payment.
35.
In view of all of the above, the Dispute Resolution Chamber decided that the
claim of the Claimant was partially accepted.
36.
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
9
amount of 25,000 are levied. The costs are to be borne in consideration of the
parties’ degree of success in the proceedings.
37.
In this respect, the Chamber reiterated that the claim of the Claimant is partially
accepted. Therefore, the Respondent has to bear the costs of the current
proceedings in front of FIFA.
38.
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.
39.
The amount in dispute to be taken into consideration in the present
proceedings amounts to EUR 345,000 related to the claim of the Claimant.
Therefore, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to CHF 25,000 (cf. table in Annexe A).
40.
Considering that the case at hand did not show particular factual difficulty but,
on the other hand a certain legal complexity, the Chamber determined the final
amount of costs of the current proceedings to the amount of CHF 15,000.
41.
In this respect, the Chamber took into account that the Claimant paid an
advance of costs in the amount of CHF 5,000 in accordance with art. 17 of the
Procedural Rules.
42.
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, P, is partially accepted.
2.
The Respondent, G, has to pay to the Claimant, P, the amount of EUR 345,000,
as well as 5% interest per year on the said amount as from 17 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, for consideration and a formal decision.
10
4.
The final amount of costs of the proceeding in the amount of CHF 15,000 are to
be paid by the Respondent, G, within 30 days of notification of the present
decision as follows:
4.1 The amount of 10,000 to FIFA to the following bank account with reference
to case no. [xxx XX-XXXXX]:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2 The amount of 5,000 to the Claimant, P.
5.
Any further claims lodged by the Claimant, P, are rejected.
6.
The Claimant, P, is directed to inform the Respondent, G, 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.
*****
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]
11
www.tas-cas.org
For the Dispute Resolution Chamber:
_______________________
Markus Kattner
Deputy Secretary General
Encl. CAS directives
12