Training Compensation
Texto da decisão
REF TMS 9409
Decision of the
Dispute Resolution Chamber
passed on 22 December 2021
regarding training compensation for the player NIAVA BEHIRATCHE
BY:
Daan de Jong (the Netherlands)
CLAIMANT:
SASSUOLO CALCIO S.R.L., Italy
RESPONDENT:
FC Swift Hesperange, Luxembourg
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REF TMS 9409
I. FACTS OF THE CASE
Player:
NIAVA BEHIRATCHE
Date of birth:
24 January 2002
Player passports:
- issued by the Federazione Italiana Giuoco Calcio (FIGC) on 15 July 2021
Season
2013/2014
Birthday
12th
2013/2014
12th
2014/2015
13th
2014/2015
13th
2015/2016
14th
2015/2016
14th
2016/2017
15th
2016/2017
15th
2017/2018
16th
2017/2018
16th
2018/2019
17th
Club(s)
Castagnole
(Category 4)
Giorgione Calcio 2000
(Category 4)
Giorgione Calcio 2000
(Category 4)
Giorgione Calcio 2000
(Category 4)
Giorgione Calcio 2000
(Category 4)
Giorgione Calcio 2000
(Category 4)
Giorgione Calcio 2000
(Category 4)
Giorgione Calcio 2000
(Category 4)
Giorgione Calcio 2000
(Category 4)
Sassuolo Calcio S.R.L.
(Category 1)
Sassuolo Calcio S.R.L.
(Category 1)
Registration dates
01.07.2013 - 01.07.2013
18.09.2013 - 30.06.2014
01.07.2014 - 01.07.2014
06.10.2014 - 30.06.2015
01.07.2015 - 01.07.2015
01.09.2015 - 30.06.2016
01.07.2016 - 01.07.2016
26.08.2016 - 30.06.2017
01.07.2017 - 30.01.2018
31.01.2018 - 30.06.2018
01.07.2018 - 16.01.2019
Status
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
Amateur
(Permanent)
- issued by the Fédération Française de Football (FFF) on an unknown date
Season
2018/2019
Birthday
17th
2019/2020
18th
Club(s)
Jeunesse Aubervilliers
A.S.
(Category IV)
F.C. Sochaux
Montbeliard
(Category I)
Registration dates
07.01.2019 – 30.06.2019
Status
Amateur
(Permanent)
16.08.2019 – 07.01.2020
Amateur
(Permanent)
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REF TMS 9409
2019/2020
18th
2020/2021
19th
Montfermeil F.C.
(Category IV)
Montfermeil F.C.
(Category IV)
08.01.2020 - 30.06.2020
13.10.2020 - 30.06.2021
Amateur
(Permanent)
Amateur
(Permanent)
- issued by the Fédération Luxembourgeoise de Football (FLF) on 16 September 2021
Season
2021/2022
Birthday
20th
Sporting seasons
(Italy, France
& Luxembourg):
Club(s)
Hesperange Swift
(Category III)
Registration dates
27.07.2021 – onwards
Status
Professional
(Permanent)
1 July to 30 June of the following year
Dates of transfer:
27 July 2021, Montfermeil F.C. (France) to FC Swift Hesperange (Luxembourg),
as professional (first registration as a professional)
Claimant club:
SASSUOLO CALCIO S.R.L. (Italy)
UEFA, Category I (EUR 90,000 per year)
Respondent club:
FC Swift Hesperange (Luxembourg)
UEFA, Category III (EUR 30,000 per year)
Claim and Response:
1.
On 16 November 2021, the Claimant requested training compensation in the amount of EUR
28,849.30 on the basis of the first registration of the player as a professional with the
Respondent, plus “5% p.a. applied from 27 August 2021 until the date of full payment”.
2.
In its calculation, the Claimant took into consideration the Respondent’s category, i.e. EUR
30,000 per year, which it multiplied pro rata by the 351 days it had the player registered.
3.
On 18 November 2021, the FIFA administration submitted a proposal to the parties by means of
which it suggested that the Respondent should pay EUR 28,849.32 as training compensation to
the Claimant in order to settle the matter, plus 5% interest per annum as from 27 August 2021
until the date of effective payment.
4.
The proposal was accepted by the Claimant and rejected by the Respondent.
5.
On 11 December 2021, the Respondent pointed out that the player had a written contract with
the club, F.C. Sochaux Montbeliard, and that he was paid for his football activity an amount in
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REF TMS 9409
excess of the expenses he effectively incurred in accordance with the wording of art. 2 par. 2 of
the RSTP and in line with CAS jurisprudence.
6.
The Respondent submitted a copy of a “Protocole D’accord” concluded between and signed by
F.C. Sochaux Montbeliard and the player on 27 January 2019 which established under which
conditions both parties would have to conclude the subsequent “contrat Aspirant” valid as from
1 July 2019 until the end of the 2019/2020 season.
7.
The Respondent held that, because the player was registered by F.C. Sochaux Montbeliard on
16 August 2019 as per the FFF’s player passport, the “Protocole D’accord (…) was, undoubtably,
duly enforced by the Parties, just as planned.”
8.
In particular, the aforementioned document provided for:
- a monthly gross salary of EUR 424;
- in natura payments of EUR 140 gross on top of the salary (should the in natura payments not
be ensured);
- travelling expenses of the player to visit his family up to 5 times a year (round trip);
- travelling expenses, housing, meal (at the club’s restaurant) and car rental expenses (up to EUR
80) for the legal representatives to visit the Player up to 6 times a year (round trip); and
- housing and meals for the player.
9.
In line with the above, the Respondent held that “those expenses are far superior to the expenses
in which the Player incurs to perform his duties as a footballer” in line with the FIFA RSTP and
the “Règlements Generaux de la FFF” (on file) on the definition of amateur players.
10.
In addition, the Respondent held that by means of its art. 1 (“The present protocol has the
purpose of establishing the employment conditions between the FCSM and the Player as well as
the essential clauses of the future contract.”) and art. 2 (“Concomitantly to the formation
convention, FCSM undertakes to sign with the Player a labor agreement with limited duration
named “Contrat Aspirant’ (…)”) the “Protocole D’accord (…) was a professional contract in
disguise” given that according to the “Règlements Generaux de la FFF”, “(…) to be an amateur
in France, you cannot be a professional, an “elite”, an intern, an aspirant, an apprentice or a
“federal".”
11.
Finally, the Respondent provided an extract of a social media publication showing the player
“and a few employees of Sochaux“ which it deemed to be a “publicity piece, which was
uploaded by a local website on 28 January 2019” and as such contrary to the “Règlements
Generaux de la FFF”’s prescriptions on amateur players.
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REF TMS 9409
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): February 2021 edition.
Procedural Rules Governing the Football Tribunal (Procedural Rules): October
2021 edition.
Jurisdiction:
Yes, uncontested
Admissible:
yes, uncontested.
Decision:
1.
The claim of the Claimant is based on the first registration of the player as a professional with
the Respondent.
2.
In accordance with art. 2 par. 1. of Annexe 4 of the RSTP, training compensation is due when a
player is registered for the first time as a professional; or when a professional is transferred
between clubs of two different associations (whether during or at the end of his contract), before
the end of the calendar year of his 23rd birthday.
3.
For its parts, the Respondent contested the claim arguing that the player had already been a
professional player with the club F.C. Sochaux Montbeliard because 1) the amounts he received
from the club were superior to the expenses the club incurred in for him to perform as a
footballer, 2) the “Protocole D’accord” was a professional agreement in disguise, and 3) the
player did not comply with the requisites to have amateur status in line with the FFF’s
Regulations.
4.
Art. 2 par. 2 of the RSTP provides that “A professional is a player who has a written contract
with a club and is paid more for his footballing activity than the expenses he effectively incurs.
All other players are considered to be amateurs.”
5.
According to the jurisprudence of the DRC, 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, even if the monthly
salary of the player is of a relatively low amount in comparison to salaries received by other
football players within the same country.
6.
CAS confirmed that the remuneration of a player constitutes the decisive factor in determining
his status and not the legal nature or the designation of the contract. The classification of a
player made by the association of his club is not decisive to determine the status of a player.
7.
In casu, it is undisputed that the player had a written agreement with the club F.C. Sochaux
Montbeliard given that 1) the “Protocole D’accord” was concluded and signed on 27 January
2019, 2) it established under which (inter alia financial) conditions both parties would have to
conclude the subsequent “contrat Aspirant” valid as from 1 July 2019 until the end of the
2019/2020 season, and 3) the player has been registered with the club F.C. Sochaux Montbeliard
as per the FFF’s player passport on 16 August 2019.
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8.
In accordance with the aforementioned agreement, F.C. Sochaux Montbeliard paid the player
the gross amount of EUR 424 a month for the period he was registered with it.
9.
In addition, the player was also provided with in natura payments amounting to EUR 140 gross
if not provided, plus housing and meals.
10.
What is more, the player also benefitted from its travelling expenses to visit his family up to 5
times a year (round trip) being paid by the club and from travelling expenses, housing, meal (at
the club’s restaurant) and car rental expenses (up to EUR 80) for his legal representatives to visit
him up to 6 times a year (round trip).
11.
In view of all of the aforementioned, it can be concluded that the player was earning with F.C.
Sochaux Montbeliard more than he needed to cover the expenses effectively incurred.
12.
Therefore, it can be concluded that the player was already a professional when he was registered
with the club F.C. Sochaux Montbeliard and therefore his transfer to the Respondent is not a
first registration of a professional player in line with the prescriptions of art. 2 par. 1. of Annexe
4 of the RSTP.
13.
Equally, according to art. 3 par. 1 in fine of Annexe 4 of the RSTP, in case of a subsequent
transfer of a player as a professional, only the former club is entitled to training compensation.
14.
In casu, with regard to the player's transfer to the Respondent, the Claimant was not the former
club of the player.
15.
As a result, the Claimant is not entitled to receive training compensation from the Respondent.
16.
In conclusion, the claim of the Claimant is rejected.
17.
According to art. 25 par. 2 of the Procedural Rules, procedural costs are payable for disputes
between clubs regarding the payment of training rewards.
18.
The Claimant claimed the amount of EUR 28,849.30.
19.
Thus, the amount claimed by the Claimant corresponds to an amount lower than USD
49,999.99. Therefore, procedural costs levied in this respect are fixed at a maximum of USD
5,000 (cf. art. 2 of Annexe 1 to the Procedural Rules).
20.
According to art. 25 par. 5 of the Procedural Rules, the chamber will decide the amount that
each party is due to pay, in consideration of the parties’ degree of success and their conduct
during the procedure, as well as any advance of costs paid. In exceptional circumstances, the
chamber may order that FIFA assumes all procedural costs.
21.
In view the specific circumstances of the case, procedural costs shall be set at USD 2,800.
22.
In view of the outcome of the claim, said costs shall be borne by the Claimant in full.
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REF TMS 9409
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, SASSUOLO CALCIO S.R.L., is rejected.
2.
The final costs of the proceedings in the amount of USD 2,800 are to be paid by the Claimant to
FIFA with reference to case no. TMS 9409 (cf. note relating to the payment of the procedural costs
below).
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF TMS 9409
NOTE RELATED TO THE APPEAL PROCEDURE:
Pursuant to article 57 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 17 par. 2 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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