Training Compensation
Texto da decisão
REF TMS 7833
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 22 March 2021
regarding training compensation for the player Yaw Ackah
BY:
Roy Verm eer (Netherlands), Single Judge of the sub-committee of
the Dispute Resolution Chamber
CLAIMANT:
BAFANA BAFANA FC, Ghana
RESPONDENT:
Boavista FC, Portugal
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REF TMS 7833
I. FACTS OF THE CASE
Player:
Yaw ACKAH
Date of birth:
7 January 1999
Player passport:
issued by the Ghana Football Association (“GFA”) on 25 July 2019
Season
Birthday
Club(s)
2011-2012
13th
OBUASI BAFANA
2012-2013
14th
OBUASI BAFANA
2013-2014
15th
OBUASI BAFANA
2014-2015
16th
OBUASI BAFANA
2014-2015
16th
OBUASI MBC
2015-2016
17th
OBUASI MBC
2015-2016
17th
BECHEM UNITED FC
2016-2017
18th
BECHEM UNITED FC
2017-2018
19th
BECHEM UNITED FC
Registration dates
01.08.201131.07.2012
01.08.201231.07.2013
01.08.201331.07.2014
01.08.201405.05.2015
05.05.201531.07.2015
01.08.201519.02.2016
19.02.201631.07.2016
01.08.201631.07.2017
01.08.201731.07.2018
Status
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Professional
Professional
Professional
Sporting season:
1 August to 31 July (Ghana)
Player Passport:
issued by the Federação Portuguesa de Futebol (“FPF”) on 6 November 2020
Season
Birthday
Club(s)
2017-2018
19th
Boavista FC
2018-2019
20th
Boavista FC
Registration dates
10.10.201730.06.2018
25.09.2018onwards
Status
Amateur
Professional
Date of transfer:
10 October 2017, from BECHEM UNITED FC (Ghana) to Boavista FC (Portugal)
as an amateur
Claimant club:
Bafana Bafana FC (Ghana)
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REF TMS 7833
Respondent club:
Boavista FC (Portugal)
UEFA, category II (EUR 60,000 per year)
Claim and Response:
1.
On 24 October 2020, the Claimant lodged a claim before FIFA against “Boavista Futebol Clube”
(i.e. Ref. TMS nr. 7044) and requested EUR 75,698.63 as training compensation, plus 5%
interests p.a. as of the due date until the date of effective payment.
2.
In its calculation, the Claimant took into consideration the Respondent’s category II within UEFA,
i.e. EUR 60,000 per year, which it multiplied pro rata by the 1373 days the player was registered
with it.
3.
The Claimant argued that the player was registered for the first time as a professional with the
Respondent on 25 September 2018.
4.
As further alleged by the Claimant, contrary to the information included in the player passport
issued by the GFA, the player had not been a professional player with Bechem United FC (“the
former club”). The Claimant clarified that the player was earning a “monthly gross remuneration
of Three hundred Ghana cedis (GHS 300.00)”, equivalent to EUR 43.72, with the former club
and added that such amount did not cover the regular expenses incurred by the player at the
time “with food, transportations and other daily small expenses”.
5.
In this respect, the Claimant provided a document named “Bechem United Football Club
Profesionnal Player Contract” dated 19 January 2016 and signed by the player and the Former
club.
6.
On 28 October 2020, the claim TMS nr. 7044 was closed by the FIFA administration as it had
been lodged in the “Transfer Matching System” (TMS) against the wrong entity, i.e. “Boavista
Futebol Clube” instead of “Boavista FC”.
7.
On 18 February 2021, the Claimant lodged a second claim before FIFA (i.e. Ref. TMS nr. 7833).
Referring to its first claim the Claimant argued , inter alia, the following: “The Claimant wishes
to highlight that this claim has previously been inserted into TMS under the TMS Ref. No. 7044.
Nevertheless, when uploaded into TMS, on behalf of the Claimant by the Football Association
of Ghana, unfortunately, the Respondent selected was the similarly named (but different)
Boavista Futebol Clube, which led FIFA to close the said proceedings on 28 October 2020 and
asking the Claimant “to enter a new claim into TMS, if you wish so and at your earliest
convenience, indicating Boavista FC (instead of Boavista Futebol Clube) in the system as the
Respondent club, in line with the content of your written submission”. In this view, considering
that the previous claim was uploaded in a timely manner, we kindly ask FIFA to consider the
following claim, provided that the deadline was interrupted with the enforcement of the claim
that originated the TMS Ref. No. 7044.”
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REF TMS 7833
8.
The Claimant further referred to Art. 135 of the Swiss Code of Obligations (which establishes in
its free translation into English that “The limitation period is interrupted (…) 2. By debt
enforcement proceedings, an application for conciliation, submission of a statement of claim or
defense to a court or arbitral tribunal, or a petition for bankruptcy”), and held that is first claim
was lodged on time, i.e. on 24 October 2020, and was therefore not time-barred in accordance
with art. 25 par. 5 of the Regulations on the Status and Transfer of Players (RSTP).
9.
On 24 February, the claim of the Claimant was sent to the Respondent for position.
10.
On 26 February 2021, the Respondent replied that due its recent change of board /
administration, it was currently “trying to reach an agreement for the payment of the values
due” and would “inform the process as soon as possible”.
11.
No further statement was received by the Respondent.
Information of the GFA:
In the context of different the investigations held by FIFA’s Clearing House Department in relation to
other proceedings regarding the same transfer, the GFA confirmed, on 31 October 2020, that the
player was registered as a professional with the former club as indicated in the aforementioned player
passport submitted on 25 July 2019.
In addition, the GFA provided FIFA with a copy of the “Professional Player Contract“ concluded by the
player with the former club on 19 January 2016 and valid until 27 November 2018, according to which
the player was entitled to receive the following remuneration: a monthly salary of GHS 300 (approx.
EUR 42.31 on 11 February 2021), a signing-on fee of GHS 500 (approx. EUR 70.52 on 11 February
2021), conditional payments amounting to a total of GHS 500 (all gross amounts), medical treatment
of football injuries, team equipment and accommodation at the former club’s charge. What is more,
art. 5 of the employment contract provided, inter alia, the following: “5. Termination. (…) If this
contract is terminated, all earned but unpaid and remaining salary Player is entitled to for the whole
of the contract period shall be due and payable.”
Information of the FPF:
In the context of the investigations mentioned above, , the FPF confirmed that the player was registered
with the Respondent as stated in the player passport issued on 6 November 2020.
The FPF additionally provided several documents related to the player’s registration with the
Respondent, which occurred firstly as an amateur and outside TMS, namely: an agreement concluded
between the Respondent and the former club by means of which a sell-on fee corresponding to 50%
of the gross compensation payable to the Respondent was agreed in case of a subsequent registration
of the player with a third club; email exchange held between the GFA and the FPF as to the transfer
of the player’s “International Transfer Certificate” (ITC) outside TMS; copies of the player’s international
passport; and untranslated documentation drafted in Portuguese.
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REF TMS 7833
II. LEGAL CONSIDERATIONS
Applicable law:
RSTP: June 2018 edition.
Procedural Rules: 2021 edition.
Jurisdiction:
Yes, uncontested
Admissible:
Yes, uncontested
Decision:
1.
The claim of the claimant is based on the player’s alleged first registration as a professional with
the Respondent.
2.
The Claimant lodged a first claim on 24 October 2020 against the wrong respondent and a
second one on 18 February 2021 against the Respondent.
3.
Art. 25 par. 5 of the RSTP establishes that “The Players’ Status Committee, the Dispute Resolution
Chamber, the single judge or the DRC judge (as the case may be) shall not hear any case subject
to these regulations if more than two years have elapsed since the event giving rise to the
dispute. Application of this time limit shall be examined ex officio in each individual case”.
4.
In accordance with Art. 3 par. 2 of Annexe 4 to RSTP training compensation is to be paid by the
new club of the player to his training club(s) “30 days following the registration of the
professional with the new association.”
5.
In casu, the player was registered with the Respondent as a professional occurred on 25
September 2018.
6.
Consequently, any amount potentially due as training compensation as a result of such
registration was to be paid on 25 October 2018 (i.e. 30 days after the registration).
7.
In casu, the event giving rise to the present is the non-payment of training compensation by the
Respondent of the claimed training compensation which occurred on 26 October 2018, i.e. the
day after the payment was in principle due.
8.
Any claim for training compensation against the Respondent as a result of the player’s
registration should have been lodged at the lasts on 26 October 2020.
9.
The second claim of the Claimant was lodged on 18 February 2021, i.e more than 2 years after
26 October 2018.
10.
However, the Claimant lodged a first claim for training compensation on 24 October 2020, i.e.
less than two years after the player was registered with the Respondent.
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REF TMS 7833
11.
Bearing the above in mind, it has to be noted that in other proceedings regarding the same
transfer, a claim for training compensation was lodged by a third club against the wrong
Respondent and the proceedings were held and a decision had been taken.
12.
As such, and particularly in order to stay in line with the other proceedings, given the specific
and exceptional circumstances of the matter at stake, the claim of the Claimant is to be
considered admissible.
13.
The claim of the Claimant is based on the alleged first registration of the player as a professional
with the Respondent.
14.
Such allegation remained uncontested by the Respondent.
15.
In accordance with art. 2 par. 2 of the RSTP as well as the jurisprudence of the Dispute Resolution
Chamber, a player is considered a professional if he has signed a written contract with a club
and is receiving a retribution (financial and/or in kind) for his footballing activity which is greater
than the expenses he effectively incurs.
16.
According to the jurisprudence of the DRC as to art. 2 par. 2 of the RSTP, it has established in
the past that whenever it is not possible to determine a concrete amount of remuneration
applicable to all players, the specific circumstances and particularities of each individual case,
namely the realities of the country concerned, the other, non-financial benefits to which the
player is entitled, and even a possible liquidated damages clause contained in the contract signed
between the player and his club, must be taken into account.
17.
In accordance with the aforementioned jurisprudence a player in order to be considered as
professional does not have to be able to make a living from his footballing activity and may still
need to pursue other working activities in order to earn enough for a living. However, as long
as the remuneration he receives from his club is higher than the expenses he effectively incurs,
he shall be considered a professional.
18.
The GFA confirmed on 31 October 2020 that the player was registered as a professional with
the former club.
19.
In accordance with the “Professional Player Contract” concluded between the former club and
the player the latter was inter alia entitled to receive:
a.
b.
c.
d.
e.
f.
A sum of approx. EUR 42 on a monthly basis;
A signing-on fee of approx. EUR 70;
Conditional payments of approx. EUR 70;
Medical treatment for football injuries;
Team equipment;
Accommodation.
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REF TMS 7833
20.
In addition, art. 5 of the employment contract included a clause hypothetically trigarable in the
player’s interest.
21.
On the basis of the employment contract, it appears that the former club paid for all expenses
incurred by the player in connection with his footballing activity, and that, in addition, he
received a monthly allowance of EUR 42 and an accommodation free of charges.
22.
The Claimant failed to provide any evidence in support of the allegation that the player was not
in the position to cover the expenses in which he incurred.
23.
In view of the information included in the player passport and considering the content of the
employment contract as well as taking into account the lack of evidence as to the contrary, it
can be concluded that the player was registered as a professional with the former club.
24.
Since the player had already acquired professional status with the former club and moved to the
Respondent on 10 October 2017 as an amateur before re-acquiring his professional status on
25 September 2018, the registration of the player from the former to the latter is not a first
registration of the player as a professional in the sense of art. 2 par. 1 lit. i) of Annexe 4 of the
RTSP.
25.
Therefore, the Claimant is not entitled to receive training compensation from the Respondent.
26.
Consequently, the claim of the Claimant is rejected.
27.
Art. 18 par. 1 in combination with Annexe A par. 1 of the Procedural Rules stipulates that costs
in the maximum amount of CHF 25,000 are levied in connection with proceedings before the
DRC relating to disputes regarding training compensation and the solidarity mechanism. Costs
are to be borne in consideration of the parties’ degree of success in the proceedings. In special
circumstances, the costs may be assumed by FIFA.
28.
The amount claimed in the present dispute corresponds to EUR 75,698.63. Therefore, procedural
costs levied in this respect shall in principle not exceed CHF 10,000.
29.
However, after analysing the particular circumstances surrounding the present matter as
mentioned in point II./11. and 12., no procedural costs are levied in casu.
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REF TMS 7833
III. DECISION
1.
The claim of the Claimant, BAFANA BAFANA FC, is admissible.
2.
The claim of the Claimant is rejected.
3.
No procedural costs are payable.
For the Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF TMS 7833
NOTE RELATED TO THE APPEAL PROCEDURE:
Pursuant to article 58 paragraph 1 of the FIFA Statutes, this decision may be appealed before the Court
of Arbitration for Sport within 21 days of notification.
NOTE RELATED TO PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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