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,
B,
as Claimant
against the club,
S,
as Respondent
regarding training compensation in connection with the player T
I.
Facts of the case
1.
According to the player passport issued by the Football Federation X (FFX) the
player, T (hereinafter: player), born on 7 January 1991, was registered with its
affiliated club, B (hereinafter: Claimant), as from 15 August 2003 until 20 June
2010 under a scholarship agreement. According to the Football Federation X,
the player had the amateur status under said scholarship agreement.
2.
The football seasons in country X during the period of time the player was
registered with the Claimant started on 1 August and ended on 31 July of the
following year.
3.
According to an official confirmation of the Football Association Z (FAZ) the
player was registered with its affiliated club, S (hereinafter: Respondent), on 6
August 2010 as a professional.
4.
According to the information contained in the Transfer Matching System
(TMS), the Respondent belonged to the club category III at the time the player
was registered with it.
5.
On 22 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 had signed his first professional contract with the Respondent. In
particular, the Claimant claimed training compensation in the amount of EUR
160,000 from the Respondent.
6.
In reply to the Claimant’s claim, the Respondent submitted a copy of the
scholarship agreement signed between the player and the Claimant called
“Contract on Scholarship, Education, Vocational and Sports Training”, signed
on 8 November 2007, which, inter alia, stipulated the following:
“1. With this contract parties are obliged to:
FC B will to THE PLAYER – T:
1. Will pay the scholarship for vocational and sports training that could
not go over, which will be set, for every calendar year, by the
Managing Board of the Football Federation F.
2. To provide him with regular visitation of the classes and to pass exams
3. Book purchasing and other necessities
4. Travelling expenses, accommodation and food during preparations
outside the city from which the club is.
THE PLAYER T will:
1. Conscientiously learn and pass the exams regularly
2. Respect the Statute and other normative acts of the club
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3. Train regularly and play with the team when it is determined and make
maximum effort so the team achieves the best results
4. Maintain the discipline, maintain physical condition and preserve his
health.
(…)
This contract has been closed for the period of 2 years and is in force
from the day of signing and publishing, and expires on 31.01.2010
WINTER TRANSFER TERM” (….)
7.
In this context, the Respondent argued that it was obvious that the player, in
the period between 8 November 2007 and 31 January 2010, had the status of a
professional, since the player was paid more than the expenses he incurred for
playing football.
8.
Following the above, the Respondent stressed that training compensation is
either due when a player signs his first contract as a professional or each time a
professional is transferred between clubs belonging to different associations
before the end of the season of the player’s 23rd birthday. In this regard, the
Respondent pointed out that, in the present matter, none of the two
aforementioned events had occurred; the player had already obtained the
professional status while being registered with the Claimant, and, at the
moment the transfer took place, the player had reacquired the amateur status,
since his scholarship agreement expired on 31 January 2010. Therefore, the
player did not sign his first professional contract upon joining the Respondent
nor was the player transferred as a professional between clubs of two different
associations.
9.
Moreover, the Respondent argued that it was informed by “scouts and the
person of the Football Federation X” that the player was a “free player”.
10. Finally, the Respondent stressed that should training compensation be due to
the Claimant, the Claimant would merely be entitled to the amount of EUR
130,000.
11. In its replica, the Claimant emphasized that the scholarship agreement signed
with the player cannot be considered to constitute a professional contract and
reiterated that the player always had the amateur status while being
registered with the Claimant.
12. As to the calculation of the amount due for training compensation, the
Claimant accepted that the amount claimed was not accurate and amended its
claim to EUR 150,000.
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13. In its duplica, the Respondent reiterated that the player had already the
professional status in the period between 8 November 2007 and 31 January
2010. In this respect, the Respondent submitted a statement of the player,
which, inter alia, stipulated the following:
“I declare that in November 2007 with the club B I have signed a contract
for scholarship, education, professional and sport improvement which was
valid until 31 January 2010. This contract was signed outside the
registration period with the explanation from the representatives of the
club B that I can no longer play with the status of an amateur.
During the time while the contract mentioned above in article 1 of this
document was in power for that period based on that statement B was
paying me in cash monthly amount of 500 euro. The payment was mainly
given to me by Mr M – Acting President of the Club and I was never given
anything to sign. Beside that B was paying sport premium depending on
the results that I have shown.
(…)
After the contract for scholarship, education, professional and sport
improvement has expired in January 2010, and in the same time the
registration period in country X has finished, B did not offer to me to sign a
new contract with the explanation that the Club is in a financial crises, so
until 21 of June 2010 I played with the status of amateur (…)”
14. In this context, the Respondent asserted that, as from 2007 until 2010, the
average monthly salary in the country X was not higher than EUR 250.
15. In conclusion, and since the player was a professional player as from 8
November 2007 until 31 January 2010 as well as that, at the moment of the
transfer, i.e. 6 August 2010, the player had reacquired the amateur status, the
Respondent reiterated that the present matter did not fall under one of the
two events indicated in art. 20 and art. 2 par. 1 of Annexe 4 of the FIFA
Regulations on the Status and Transfer of Players. Therefore, the Respondent
stated that the Claimant’s claim for training compensation should be rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
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 22
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
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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 present dispute 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 6 August 2010 as well as that the claim was
lodged on 22 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.
First of all, the Chamber recalled that the player was born on 7 January 1991
and was registered with the Claimant as from 15 August 2003 until 20 June
2010, and that, according to the Football Federation X, the player had the
amateur status while being registered with the Claimant.
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 150,000, indicating that the player was registered for the first time as a
professional with the Respondent.
7.
Equally, the Chamber noted that the Respondent rejected the claim of the
Claimant, arguing that the player was already a professional player while
being registered with the Claimant, and that, at the time the actual transfer
took place, the player had reacquired the amateur status. Therefore, in the
Respondent’s view, none of the events stipulated in art. 20 of the Regulations
occurred, that is, according to the Respondent, the player did not sign his first
contract as a professional with the Respondent nor was the player transferred
as a professional between clubs of two different associations.
8.
In this context, the Chamber observed that the Respondent had submitted the
scholarship agreement concluded between the player and the Claimant. Also,
the Chamber noted that the Respondent submitted a statement of the player,
in which the player indicated that he received EUR 500 per month from the
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Claimant and that, after expiry of said scholarship agreement, he continued
playing on an amateur basis with the Claimant.
9.
In this respect and as to the submissions of both parties in the present matter,
the Chamber considered that the Claimant and the Respondent had divergent
positions as regards the status of the player, i.e. amateur or professional,
under the scholarship agreement. As a matter of fact, the Respondent’s
position that the player was already a professional under said scholarship
agreement, which is contested by the Claimant, constitutes one of its main
arguments in its defence.
10.
However, the Chamber pointed out that, for the reasons set out below, the
issue as to whether the player had the amateur status or professional status
under the scholarship agreement is, in casu, irrelevant with regard to the
question as to whether or not the Claimant is entitled to receive training
compensation from the Respondent.
11.
In this context, the Chamber, and hereby referring to the rules applicable to
training compensation, stated 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 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 23 rd
birthday.
12.
Equally, the Chamber referred to art. 3 par. 2 sent. 2 of the Regulations, which
stipulates that if a player re-registers as a professional within 30 months of
being reinstated as an amateur, his new club shall pay training compensation
in accordance with art. 20 of the Regulations.
13.
Following the legal framework set out above, the Chamber underlined that
the Respondent would be liable to pay training compensation to the Claimant
irrespective of the status of the player under the scholarship agreement.
Indeed, in the event that the player would be considered an amateur under
the scholarship agreement, the player would have been registered for the first
time as a professional with the Respondent and, hence, training compensation
would be payable in accordance with art. 2 par. 1 lit. i. of Annexe 4 of the
Regulations. Furthermore, in case the player would be considered a
professional under the scholarship agreement and reacquired the amateur
status after expiry of said scholarship agreement, the player would have been
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re-registered as a professional with the Respondent within 30 months of being
reinstated as an amateur and, hence, training compensation would be payable
in accordance with art. 3 par. 2 sent. 2 in conjunction with art. 20 of the
Regulations.
14.
Thus, the Respondent would be liable to pay training compensation to the
Claimant in both of the aforementioned situations. In view of the foregoing,
the Chamber deemed it unnecessary to determine as to whether the player
was to be considered a professional or an amateur under the scholarship
agreement.
15.
On account of the above considerations, the Chamber decided that the
Respondent is liable to pay training compensation to the Claimant in
accordance with art. 20 and Annexe 4 of the Regulations.
16.
Turning its attention to the calculation of training compensation, 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, inter alia, 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. Furthermore, the Chamber referred to
art. 5 par. 3 of Annexe 4 of the Regulations which stipulates that: “To ensure
that training compensation for very young players is not set at unreasonably
high levels, the training costs for players for the seasons between their 12 th
and 15th birthdays (i.e. four seasons) shall be based on the training and
education costs of category 4 clubs”.
17.
In continuation, the Chamber took into account that according to the
documentation on file, the Respondent belonged to the club category III and
that the player, born on 7 January 1991, was registered with the Claimant as
from 15 August 2003 until 20 June 2010.
18.
Consequently, taking into account the above-mentioned considerations, the
Chamber determined to partially accept the Claimant’s claim and decided that
the Respondent is liable to pay training compensation to the Claimant in the
amount of EUR 147,500.
19.
The Chamber concluded its deliberations as to the substance of the case by
rejecting any further claim of the Claimant.
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20.
Furthermore, 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
the proceedings before the Dispute Resolution Chamber relating to disputes
regarding training compensation and the solidarity mechanism 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.
21.
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.
22.
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.
23.
The amount in dispute to be taken into consideration in the present
proceedings amounts to EUR 150,000 related to the claim of the Claimant.
Therefore, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to CHF 20,000 (cf. table in Annexe A).
24.
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 10,000.
25.
In this respect, the Chamber took into account that the Claimant had paid the
advance of costs in the amount of CHF 5,000 in accordance with art. 17 of the
Procedural Rules.
26.
In view of all of the above, the Chamber concluded that the amount of CHF
10,000 has to be paid by the Respondent to cover the costs of the present
proceedings. Thereof the amount of CHF 5,000 has to be paid by the
Respondent to FIFA and the amount of CHF5,000 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant the amount of EUR 147,500
within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned sum is not paid within the stated time
limit, interest of 5% p.a. falls due as of expiry of the stipulated time limit and
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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 10,000 is to
be paid by the Respondent within 30 days of notification of the present
decision, as follows:
5.1 The amount of CHF 5,000 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 5,000 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):
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).
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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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