Training Compensation
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Phillippe Piat (France), member
Zola Malvern Percival Majavu (South Africa), member
Phillippe Diallo (France), member
on the claim presented by the club
Club A, X
as Claimant
against the club,
Club B, Y
as Respondent
regarding a training compensation dispute related to the
transfer of the player C.
./…
I.
Facts of the case
1.
The player C (hereinafter: the player) was born on 8 February 1983.
2.
He signed an employment contract with Club A (hereinafter: the Claimant) for the
period from 6 August 2003 to 30 June 2006. However, on 26 January 2005 the
Claimant and the player agreed to terminate the player’s employment contract
with effect dating back to 25 January 2005.
3.
The X Football Federation has confirmed that the player was registered with the
Claimant and played for it from 9 September 2003 until 1 July 2004 as a
professional and that he played for the club D from 1 July 2004 until 25 January
2005 on the basis of a loan agreement.
4.
The X Football Federation has also confirmed that the football season began on 1
July and ended on 30 June and that the Claimant is a category 2 club.
5.
The Y Football Federation has confirmed that on 31 August 2005 the player was
registered with his new club in Y, club B (hereinafter: the Respondent), as a
professional player. During the course of the proceedings, the Y Football
Federation has further confirmed that its affiliated club, the Respondent, belongs
to category 4.
6.
On 13 November 2006, the Claimant contacted FIFA to claim training
compensation from the Respondent for the training and education of the said
player.
7.
The Respondent rejects the Claimant’s claim and submits the following four
arguments:
- First of all, the Respondent considers that the Claimant does not have any
right to training compensation because according to article 2 of Annex 4 to
the Regulations for the Status and Transfer of Players (hereinafter: the
Regulations), training compensation is due when a transfer takes place during
or at the end of the player’s contract. According to the Respondent, this
provision should be interpreted narrowly and accordingly, training
compensation should only be due to the former club if the transfer takes
place immediately or within a reasonable period of time after the end of the
contract. Given that the player’s contract was terminated on 25 January 2005
and the player was not registered with the Respondent until 31 August 2005,
i.e. seven months after the termination of the contract, it should be
concluded, so the Respondent claims, that the Claimant has no right to
training compensation.
Training Compensation relating to the player C
(Club A, X / Club B, Y)
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- Secondly, the Respondent claims that the Claimant did not offer the player a
contract in accordance with article 6 par. 3 of Annex 4 of the Regulations and
therefore is not entitled to training compensation.
- Thirdly, the Respondent considers that art. 2, second lit. i of Annex 4 of the
Regulations applies as the Claimant unilaterally terminated the player’s
employment contract without just cause. The Respondent claims that the
Claimant only signed the termination agreement after the player took legal
action against the Claimant. The Respondent supports this argument with a
statement by the player confirming that he was informed of the termination
of the contract at the end of December 2004 and that he immediately
brought legal action against the club. Furthermore, the termination
agreement is alleged to have contained a clause (article 3) which provided for
the transfer of the player to another club for the set amount of EUR 74,820.
According to the submissions of the Respondent, this amount was stipulated
in the sense that no compensation other than the said amount would be
sought by the Claimant.
- Fourthly, in the event that the Dispute Resolution Chamber deems that the
Respondent must pay training compensation to the Claimant, the Respondent
claims that the Respondent has a lower category and that the player only
played for the Respondent for a single season.
8.
The Claimant responded to the Respondent’s allegations by pointing out that
training compensation is due when a player is transferred between two clubs from
different associations, irrespective of whether the transfer takes place during the
contract or after it has ended.
9.
With regard to the allegation that the Claimant did not offer the player a contract
in accordance with article 6 par. 3 of Annex 4 of the Regulations, the Claimant
claims that it is able to prove its right to training compensation. According to the
Claimant, the only reason for the termination of the player’s contract by mutual
consent was the player’s wish to leave the club. In the Claimant’s view, it cannot
be punished for the player’s decision to leave. The Claimant further states that it
would have offered a new contract if the previous contract had been terminated
by the club’s own free will.
10.
The Claimant further alleges that no legal action was ever taken against it.
Furthermore, it purports that article 3 of the termination agreement only creates
an obligation between the club and the player, not between the two clubs in
question. The Claimant further asserts that training compensation is not affected
by the said clause.
11.
Finally, the Claimant entrusts FIFA with the responsibility for calculating the
amount payable by the Respondent.
Training Compensation relating to the player C
(Club A, X / Club B, Y)
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12.
The Respondent reiterates the arguments put forward in its initial response and
underlines its view that the player wanted to stay with the Claimant. The
Respondent claims that the fact that the player was only registered with it until
August 2005 shows the player’s desire to stay with the Claimant.
13.
The Respondent further alleges that the player only signed the termination
agreement after having received (verbal) confirmation that the Claimant would
not seek training compensation for the player’s transfer.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber. The present matter was submitted to FIFA on 13
November 2006, as a consequence the Chamber concluded that the revised Rules
Governing Procedures (edition 2005) on matters pending before the decision
making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in light of articles 22 to 24 of the current version of the Regulations for
the Status and Transfer of Players (edition 2005). In accordance with art. 24 par. 1
in combination with art. 22 (d) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes between two clubs belonging to
different Associations related to training compensation.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the training compensation claimed by
the Claimant for the training and education of the player.
4.
Subsequently, the members of the Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1 and
2 of the Regulations for the Status and Transfer of Players (edition 2005) in their
modified version in accordance with the FIFA circular no. 995 dated 23 September
2005. Furthermore, it acknowledged that the player had been registered as a
professional for the Respondent on 31 August 2005. Equally, the Chamber took
note that the claim was lodged at FIFA on 13 November 2006. In view of the
aforementioned, the Chamber concluded that the current version of the FIFA
Training Compensation relating to the player C
(Club A, X / Club B, Y)
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Regulations for the Status and Transfer of Players (edition 2005, hereinafter: the
Regulations) is applicable to the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging the facts of the case as well as the
documentation contained in the file.
6.
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 a professional is transferred between clubs of two different Associations
before the end of the season of the player’s 23rd birthday.
7.
The Chamber recalled that the player was born on 8 February 1983 and registered
with the Claimant as from 9 September 2003 until 1 July 2004.
8.
Moreover, the Chamber referred in particular also to art. 6 of Annex 4 of the
Regulations, which contains special provisions regarding players moving from one
Association to another inside the territory of the European Union (EU)/European
Economic Area (EEA).
9.
In view of the above, the Chamber stated that, first and foremost, it had to verify
whether art. 6 par. 3 sent. 1 of Annex 4 of the Regulations applies in the present
case as lex specialis, and if so, to determine if the Claimant had complied with the
said provision in order to be fundamentally entitled to training compensation.
10.
As far as the applicability of art. 6 par. 3 of Annex 4 of the Regulations is
concerned, the Chamber first of all stated that, as the player moved from X to Y in
August 2005, i.e. between two EU countries, art. 6 par. 3 of Annex 4 of the
Regulations is applicable. This fact does not appear to be contested by any of the
parties. Therefore, the Chamber concluded that the aforementioned provision
applies in the case at hand as lex specialis.
11.
On account of the aforesaid and taking into consideration the position put
forward by the Respondent, the Chamber analysed if the Claimant had complied
with the prerequisites of art. 6 par. 3 of Annex 4 of the Regulations in order to be
entitled to training compensation.
12.
Equally, the Chamber recalled that the Respondent contests the Claimant’s
entitlement to receive any training compensation arguing that the Claimant did
not offer the player a contract in accordance with article 6 par. 3 of Annex 4 of the
Regulations.
Training Compensation relating to the player C
(Club A, X / Club B, Y)
5
13.
In this sense, the Chamber emphasised that in accordance with art. 6 par. 3 sent. 1
of Annex 4 of the Regulations, 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.
14.
To that regard, the Chamber pointed out that the Claimant does not claim to have
offered the player a contract, but alleges to be able to justify that it is entitled to
such compensation. In this respect, the Claimant points out that the only reason
for the termination agreement to revoke the contract between the Claimant and
the player was the player’s will to leave the Claimant. It purports that it cannot be
penalised for the player’s wish to leave the club and adds that it would have had
the obligation to offer the player a contract if it was its own will to let the player
go.
15.
On account of the aforesaid, the members of the Chamber acknowledged that the
Claimant did not offer a contract to the player. In addition, the Chamber took
note of the fact that the parties did not contest the existence of a valid
termination agreement concluded between the two parties on 26 January 2005
with effect as from 25 January 2005. Moreover, the Chamber pointed out that the
Respondent contests that the player left the club of his own will. The Respondent
even claims that the Claimant only signed the termination agreement after the
player took legal action against the Claimant - this allegation being itself
contested by the Claimant.
16.
In this respect, the members of the Chamber were eager to stress that, irrespective
of the question as to whether the argument put forward by the Claimant to justify
its alleged entitlement to training compensation must be considered as valid, the
Claimant has failed to present documentary evidence - this allegation being
contested by the Respondent - that the player left the club of his own will.
17.
Consequently, the Chamber concluded that the condition of offering the player a
contract, which is set in the Regulations, is not fulfilled. Moreover, the Chamber
concurred that the Claimant has failed to justify that it is entitled to training
compensation.
18.
Following this argumentation, the Chamber concluded that the Claimant is not
entitled to receive training compensation in connection with the move of the
player from the Claimant to the Respondent.
19.
On account of all the foregoing considerations, the Chamber decided that the
Claimant is not entitled to receive training compensation from the Respondent for
the training and education of the player.
Training Compensation relating to the player C
(Club A, X / Club B, Y)
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20.
Finally, the members of the Chamber were somewhat surprised to note that in
accordance with the Y Football Association's correspondence dated 8 April 2005
and 13 April 2006 addressed to FIFA, in tempore non suspecto, all of the Y Football
Association's member clubs were to be classified in category 3, whereas during the
course of the proceedings in the present dispute, upon the specific request of FIFA,
the Y Football Association confirmed that its clubs are classified in category 4.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, club A, is rejected.
2.
According to art. 61 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 General Secretary
Enclosed: CAS directives
Training Compensation relating to the player C
(Club A, X / Club B, Y)
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