Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 September 2011,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
Michele Colucci (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the club,
Z,
as Claimant
against the club,
K,
as Respondent
regarding training compensation in connection with the player V
I.
Facts of the case
1.
The player passport of the player, V (hereinafter: player), issued by the
Football Federation C (FFC) indicated the following:
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-
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the player was born on 15 May 1989;
the player was loaned by the country C club, H, to the country C club, Z
(hereinafter: Claimant), as from 8 August 2007 until 31 December
2007;
after the loan with the Claimant, the player returned to Club H;
the player was loaned by H to the Club K (hereinafter: Respondent), as
from 28 August 2008 until 30 June 2009 as well as from 27 July 2009
until 30 June 2010;
the player was registered on a definitive basis with the Respondent on
1 July 2010;
the player was registered as a professional with all three clubs
involved.
2.
The football season in the country C during the period of time the player was
registered with the Claimant started on 1 July and ended on 30 June of the
following year.
3.
According to an official confirmation of the Football Association G (FAG) the
player was registered on a definitive basis with the Respondent on 30 June
2010.
4.
According to the information contained in the Transfer Matching System
(TMS), the Respondent belonged to the club category I at the time the player
was registered with it.
5.
On 4 March 2011, the Claimant lodged a claim in front of FIFA claiming the
payment of training compensation from the Respondent on the basis that the
player, in July 2010, was transferred from the Club H, to the Respondent. In
particular, the Claimant is claiming the amount of EUR 44,520 (EUR 36,500 +
22% VAT) from the Respondent, plus 5% interest as of 15 June 2010.
6.
In this context, the Claimant argued that training compensation is to be paid
when a professional has been transferred between clubs belonging to
different associations prior to the end of the season in which the player turns
23. Additionally, the Claimant referred to art. 10 of the Regulations on the
Status and Transfer of Players which stipulates that “A professional may be
loaned to another club on the basis of a written agreement between him and
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the clubs concerned. Any such loan is subject to the same rules as apply to the
transfer of players, including the provisions on training compensation and the
solidarity mechanism.” In view of the foregoing, and since it was
unquestionable that the Claimant contributed to the player’s training, the
Claimant asserted it was entitled to receive training compensation from the
Respondent.
7.
To its submission, the Claimant attached a fax sent by the Respondent dated
16 September 2010, in which the Respondent explained to the Claimant that
the player had been transferred from Club H to the Respondent for the
amount of EUR 100,000 and that, therefore, the Claimant is entitled to receive
solidarity contribution, but not training compensation.
8.
In its reply to the claim, the Respondent rejected the Claimant’s claim arguing
that the player did not sign his first professional contract with the Respondent
and, thus, does not have to pay training compensation to every club with
which the player had previously been registered. Equally, the Respondent
stated that the Claimant was not the former club of the player in the sense of
art. 3 par. 1 sent. 3 of Annexe 4 of the aforementioned Regulations. In this
context, the Respondent argued that in case a player is already a professional
upon transferring internationally, only the former club of the player is entitled
to receive training compensation. Therefore, the Respondent argued that only
Club H would, in principle, be entitled to receive training compensation from
the Respondent.
9.
In its replica, the Claimant reiterated its position that it is entitled to receive
training compensation, since training compensation is payable each time a
professional is transferred 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. In this respect, the Claimant argued that the aforesaid
principle also applies to clubs that accepted a player on a loan basis, provided
that the player has actually been trained by the club. Furthermore, the
Claimant referred to the decision of the Court of Arbitration for Sport (CAS) in
CAS XXXX/X/XXX, which, according to the Claimant, stipulated that all clubs
that have contributed to the training of the player as from the age of 12 are,
in principle, entitled to training compensation for the timeframe that the
player was effectively registered with them.
10.
In its duplica, the Respondent firstly stressed that it was uncontested that the
player did not sign his first professional contract with the Respondent.
Secondly, and with regard to cases concerning a subsequent transfer of a
professional, the Respondent reiterated that, in accordance with the
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Regulations, only the former club is entitled to receive training compensation.
The Respondent pointed out that, therefore, in the present matter, only the
former Club H, would potentially have a claim for training compensation;
however, it had already come to an agreement with Club H on the waiver of
such compensation when it concluded the transfer agreement for the transfer
of the player.
11.
In continuation, the Respondent emphasized that, would one follow the
argumentation of the Claimant, then all clubs who trained a player between
the age of 12 and 21 would have a new recurring claim each time a
professional is transferred. In this context, the Claimant referred to the
decision passed by the Dispute Resolution Chamber (DRC) nr 891179 which
stipulates that “such approach also reflects another general understanding,
according to which a training club will only profit once from the training
compensation during the career of the player, if at all.” In view of all the
aforesaid, the Respondent stressed that the claim of the Claimant should be
rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as:
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 4
March 2011. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: 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 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 deal
with the matter at stake relating to training compensation between clubs
belonging to different associations.
3.
Furthermore, 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 2009 and 2010), and considering that the player was
registered with the Respondent on 30 June 2010 as well as that the present
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claim was lodged on 4 March 2011, the 2009 edition of the Regulations on the
Status and Transfer of Players (hereinafter: 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 above-mentioned
facts of the case as well as the documentation on file.
5.
In this regard, the Chamber recalled that the player, born on 15 May 1989, was
registered on a loan basis with the Claimant for the period between 8 August
2007 and 31 December 2007. Equally, the Chamber observed that after the
loan with the Claimant had expired, the player returned to his club of origin,
Club H, i.e. the club with which the player was still contractually bound.
Thereafter, on 30 June 2010, the player was internationally transferred from
Club H to the Respondent on a definitive basis after having previously been
registered with the Respondent on a loan basis, for a transfer compensation
amounting to EUR 100,000.
6.
In continuation, the Chamber took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount
of EUR 44,520.
7.
Equally, the Chamber noted that the Respondent rejected the claim of the
Claimant, arguing that the Claimant is not the player’s former club in the sense
of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations. Also, the Respondent
stated that the player did not sign his first professional contract with the
Respondent and, thus, was not liable to pay training compensation to every
club with which the player had previously been registered.
8.
In this context, the Chamber highlighted that the main issue in the present
matter is whether or not a club that accepted a professional on loan is entitled
to receive training compensation when, after the expiry of the loan, the
professional returns to his club of origin, and, thereafter, is transferred from
the club of origin to a club belonging to another association before the end of
the season of the player’s 23rd birthday.
9.
In consideration of the above-mentioned issue, the Chamber, and hereby
referring to the rules applicable to training compensation, started by stating
that, as established in art. 20 of the Regulations as well as in art. 1 par. 1 of
Annexe 4 in combination with art. 2 of Annexe 4 of the Regulations, training
compensation is payable, as a general rule, for training incurred between the
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ages of 12 and 21 when a player is registered for the first time as a
professional before the end of the season of the player’s 23rd birthday or when
a professional is transferred between clubs of two different associations before
the end of the season of the player’s 23rd birthday. In case the latter occurs, art.
3 par. 1 sent. 3 of Annexe 4 of the Regulations sets forth that training
compensation will only be owed to the player’s former club for the time he
was effectively trained by that club.
10.
Furthermore, according to art. 10 par. 1 of the Regulations, professionals may
be loaned to another club on the basis of a written agreement between the
professional and the clubs concerned. Moreover, the last sentence of said
provision stipulates that any such loan is subject to the same rules as apply to
the transfer of players, including the provisions on training compensation and
the solidarity mechanism.
11.
Following the above, the Chamber stressed that one of the aims 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 in the pertinent provisions of the Regulations are fulfilled. This
approach is also in line with the Chamber’s well-established jurisprudence that
all clubs which have in actual fact contributed to the training and education of
a player as from the age of 12 are, in principle, entitled to training
compensation for the timeframe that the player was effectively trained by
them.
12.
In other words, the Chamber emphasised that the nature of the player’s
registration with a club claiming training compensation, i.e. on a definite or on
a temporary basis, is in fact irrelevant with respect to the question as to
whether such club would be entitled to receive training compensation for the
period of time that the player was effectively trained by that club.
13.
In this respect and for the sake of good order, the Chamber deemed it
essential to emphasise that, as to the liability to pay training compensation,
the analogy established in art. 10 par. 1 of the Regulations could not be
extended to the case in which players were loaned to other clubs and thus are
not being definitively transferred to a new club. In other words, the transfer of
a player from the club of origin to the club that accepts the player on loan as
well as the return of the player from the club that accepted him on loan to the
club of origin do not constitute a subsequent transfer in the sense of art. 3 par.
1 sent. 3 of Annexe 4 of the Regulations. The Chamber was eager to point out
that it could not have been the intention of the legislator of the relevant
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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 transfer on a loan basis 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.
14.
Following the above, the Chamber pointed out that the obligation to pay
training compensation thus arises in case a player is definitively transferred
from one club to another club belonging to a different association, but not
when he is temporarily transferred to another club while still being
contractually bound to his club of origin (yet, with the effects of the relevant
contract being temporarily suspended), such as a loan. Hence, the relevant
entitlement can only be claimed towards a new club that acquires the services
of a player on a definitive and permanent basis subject to the fulfilment of the
prerequisites established in art. 20 and Annexe 4 of the Regulations.
15.
As to the argument of the Respondent that the Claimant is not the former club
in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations, the
Chamber wished to recall that art. 3 par. 1 sent. 3 of Annexe 4 stipulates that
“In the case of subsequent transfers of the professional, training compensation
will only be owed to his former club for the time he was effectively trained by
that club”. In this context, the Chamber acknowledged that the Claimant was
not the player’s former club stricto sensu, however, the Chamber pointed out
that, within the framework of loans, the period of time that the player was
registered with Club H and the period of time that the player was registered
with the Claimant on loan, should be considered as one entire timeframe. Any
other interpretation would lead to the situation in which clubs accepting a
player on loan would never be entitled to receive training compensation, even
if they contribute to the training and education of players.
16.
Bearing in mind the foregoing, the Chamber deemed that the Respondent’s
interpretation of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations would
clearly contravene the intention of the legislator of the Regulations according
to which all training clubs shall, in principle, be rewarded for their efforts
invested in training young players, including those clubs that have accepted a
player on a temporary basis.
17.
Consequently, taking into account the above-mentioned considerations, the
Chamber concurred that it had to reject the Respondent’s arguments and
decided that the Respondent is liable to pay training compensation to the
Claimant for the training of the player in accordance with art. 20 of the
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Regulations and art. 2 par. 1 lit. ii. and art. 3 par. 1 of Annexe 4 of the
Regulations.
18.
As a result, and considering art. 3 par. 1 sent. 2 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 5 months of the 2007/2008 season, i.e. as from 8
August 2007 until 31 December 2007.
19.
Furthermore, the Chamber referred to the FIFA circular no. 1223 dated 29 April
2010 which provides details for the calculation of training compensation as
well as to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which
stipulate 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. In this respect, the
Chamber took into account that according to the documentation on file, the
Respondent belonged to the club category I.
20.
Consequently, the Chamber decided that the Respondent is liable to pay
training compensation to the Claimant in the amount of EUR 36,500.
21.
Moreover, taking into consideration the Claimant’s claim as well as art. 3 par. 2
of Annexe 4 of the Regulations, the Chamber decided that the Respondent has
to pay, in conformity with its longstanding practice, interest at 5% p.a. over
the amount payable as training compensation as of the 31st day of the
registration of the player with the Respondent on a definitive basis, i.e. as of
31 July 2010, until the date of effective payment.
22.
Lastly, the Chamber referred to art. 25 par. 2 of the Regulations in
combination with art. 18 par. 1 of the Procedural Rules, according to which, in
proceedings before the DRC relating to disputes regarding training
compensation and the solidarity mechanism, costs in the maximum amount of
CHF 25’000 are levied. It is further stipulated that the costs are to be borne in
consideration of the parties’ degree of success in the proceedings and that, in
accordance with Annexe A of the Procedural Rules, the costs of the
proceedings are to be levied on the basis of the amount in dispute.
23.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 44,520 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum
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amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in
Annexe A of the Procedural Rules).
24.
As a result, and taking into account the complexity of the case, the Chamber
determined the costs of the current proceedings to the amount of CHF 5,000,
which shall be borne by the Respondent.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Z, is partially accepted.
2.
The Respondent, K, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, the amount of EUR 36,500 plus 5% interest p.a.
due as from 31 July 2010 until the date of effective payment.
3.
In the event that the aforementioned sum is not paid within the stated time
limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The final amount of costs of the proceedings in the amount of CHF 5,000 is to
be paid by the Respondent within 30 days of notification of the present
decision, as follows:
5.1 The amount of CHF 3,000 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
5.2
The amount of CHF 2,000 to the Claimant.
6. The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
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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
Enclosed: CAS directives
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