Training Compensation
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the Dis pute
Res olution Cham ber (DRC)
passed on 7 February 2020,
by Mr S tefano S artori (Italy),
Single Judge of the sub-committee of the DRC,
on the claim presented by the club,
Jeunes s e Académ ie S portiv e de Ngoulem akong, Cameroon
as Claimant
against the club,
Deportiv o Alav es , Spain
as Respondent
regarding training compensation in connection with
the player Paul Stephane Keller
I.
Facts of the cas e
1.
According to the player passport issued by the Fédération Camerounaise de
Football (hereinafter: the FECAFOOT), the player, Paul Stephane Keller,
(hereinafter: the player), born on 20 August 2001, was registered with several of
its affiliated clubs, including Jeunesse Académie Sportive de Ngoulemakong
(hereinafter: the Claimant), as follows:
Clubs
FECAFOOT
FECAFOOT
FECAFOOT
Claimant
Claimant
Claimant
Claimant
Registration dates
01.12.2014-31.12.2014
01.01.2015-31.12.2015
01.01.2016-20.11.2016
02.12.2016-31.12.2016
01.01.2017-30.11.2017
18.12.2017-31.12.2017
01.01.2018-30.11.2018
18.12.2018-31.12.2018
01.01.2019-13.08.2019
Status
Amateur
Amateur
Amateur
Amateur
and Amateur
and Amateur
Amateur
2.
Pursuant to the information provided by the FECAFOOT, the sporting seasons in
Cameroon do not have consistent start and end date.
3.
According to the information contained in the Transfer Matching System (TMS),
the player, who was last registered with the Claimant as an amateur, was
registered as an “out of contract (free of payment)” player with Deportivo Alaves
(hereinafter: the Respondent) on 2September 2019. In particular, the Respondent
indicated that “the player was not under contract with his former club (amateur
player)”.
4.
According to the information contained in the TMS, the Respondent uploaded the
following documents within the aforementioned transfer instruction:
- The player’s proof of identity;
- The player’s Third Party Ownership (TPO) declaration; and
- The employment contract signed between the player and the Respondent.
5.
In addition, the Respondent indicated that the transfer of registration had not
been made against the payment of any “Fixed transfer fee”, “Release (buy-out)
fee”, “Conditional transfer fee”, “Sell-on fee”, “Solidarity contribution” and
“Training compensation”.
6.
According to the information available in the TMS, Mr Joachim Claude Essomba
Abanda is the chairman of the Claimant. In particular, Mr Essomba Abanda has
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
2
signed several official documents in or around August 2018 on behalf of the
Claimant, and said documents contained the stamp of the Claimant.
7.
In this context, on 6 December 2019, the Claimant contacted FIFA claiming its
proportion of training compensation in relation to the first registration of the
player as a professional to a club of a different association, before the end of the
season of his 23rd birthday. In particular, the Claimant requested the amount of
EUR 232,500 plus 5% interest “as of the 31st day following the registration of the
Player”.
8.
In particular, the Claimant pointed on 14 November 2019 it contacted the
Respondent in order to request payment of the training compensation, and that
the Respondent replied by email on 15 November 2019 that “there is a
misunderstanding once [the Claimant] renounced expressly to the training
compensation signing an agreement”.
9.
The Claimant pointed out that despite referring to the aforementioned waiver the
Respondent “never submitted the alleged document according which [the
Claimant] would have renounced to training compensation.”
10.
The Claimant also uploaded a power of attorney by means it mandated a legal
representative to act on its behalf. The power of attorney is dated 2 November
2019 is signed and stamped by Mr Essomba Abanda.
11.
In its reply to the claim, the Respondent first indicated that the Claimant waived
its rights to training compensation. In support of its argumentation, the Claimant
provided a copy of a document dated 21 August 2019 (hereinafter: the agreement)
according to which the Claimant agreed to renounce to its training compensation
rights but that the Respondent would instead pay conditional amounts should the
player make appearances with the Respondent’s first team.
12.
In particular, the Respondent declared that it had not negotiated the agreement
with the Claimant directly but via an intermediary, Mr Carlos Varga, who declared
that he was mandated by the Claimant to represent it in the negotiations with the
Respondent in relation with the player. The Respondent did not submit a copy of
the alleged mandate.
13.
The Respondent emphasised that as the player signed a youth contract, it would
have never signed the player without the existence of such agreement, in view of
the final implications that such registration would have had.
14.
Then the Respondent explained that it had met with the Claimant’s cub officials in
person in Cameroon at a later date, and provided pictures in support. The
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
3
Respondent pointed out that the signature on the aforementioned agreement and
the signature of the Claimant’s former club TPO declaration were the same, and
therefore that it was proof that the agreement had been undeniably signed by the
Claimant and that the signature of the former club TPO declaration was a proof of
the tacit agreement of the Claimant as to the release of the player to the
Respondent. In this respect, the agreement and the former club TPO declaration
were apparently signed by Mr Joachim Claude Essomba Abanda who acted on
behalf of the Claimant. The documents contained the same signature without any
stamp from the Claimant.
15.
Finally, the Respondent referred that in line with the jurisprudence of the Dispute
Resolution Chamber, the waiver was clear and unambiguous and referred to the
waiving of any training compensation rights.
16.
In view of all the above the Respondent rejected the claim of the Claimant in full
and requested that the procedural costs shall be borne by the Claimant.
II.
Cons iderations of the S ingle Judge of the s ub-com m ittee of the DRC
1.
First of all, the Single Judge of the sub-committee of the Dispute Resolution
Chamber (hereinafter: the Single Judge) 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 6 December 2019. Taking into account the wording of art. 21
of the 2019 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which
states that the Dispute Resolution Chamber shall examine its jurisdiction in light of
arts. 22 to 24 of the Regulations (edition January 2020). In accordance with art. 3
of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations,
the Single Judge is competent to decide on the present dispute relating to training
compensation between clubs belonging to different associations handled through
TMS.
3.
Furthermore, and taking into consideration that the player was registered with the
Respondent on 2 September 2019, the Single Judge analysed which regulations
should be applicable as to the substance of the matter. In this respect, he confirmed
that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
4
Transfer of Players, the June 2019 edition of the Regulations is applicable to the
matter at hand as to the substance.
4.
The competence of the Single Judge and the applicable regulations having been
established, the Single Judge entered into the substance of the matter. The Single
Judge started by acknowledging the above-mentioned facts of the case as well as
the documentation on file. However, the Single Judge emphasized that in the
following considerations he will refer only to the facts, arguments and
documentary evidence which he considered pertinent for the assessment of the
matter at hand. In particular, the Single Judge recalled that, in accordance with
art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of
proceedings pertaining to the application of the Regulations, any documentation
or evidence generated or contained in the TMS.
5.
First of all, the Single Judge recalled that, in accordance with the player passport
issued by the FECAFOOT the player, born on 20 August 2001, was registered with
the Claimant (1) as from 2 December 2016 until 30 November 2017; (2) as from 18
December 2017 until 30 November 2018 and (3) as from 18 December 2018 until
13 August 2019, always as an amateur, and that he was directly registered with the
Respondent on 2 August 2019 as a professional, coming from the Claimant.
6.
In continuation, the Single Judge took note that the Claimant requested the
payment of the training compensation from the Respondent in view of the first
registration of the player as a professional with the Respondent before the end of
the season of his 23rd birthday. In particular, the Single Judge took note that the
Claimant requested the amount of EUR 232,500 plus interest.
7.
The Single Judge observed the argumentation of the Respondent which held that
the Claimant had waived its rights to training compensation and that as such the
Claimant was not entitled to receive training compensation.
8.
Having paid particular attention to the arguments of the parties, the Single Judge,
hereby referring to the rules applicable to training compensation, stated that, as
established in art. 20 of the Regulations in combination with art. 1 par. 1 and art.
2 par 1. 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.
9.
In continuation, the Single Judge observed that, based on the documents at
disposal, it can be established that the player was registered with the Claimant
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
5
before the end of the season of his 21st birthday, i.e. (1) as from 2 December 2016
until 30 November 2017; (2) as from 18 December 2017 until 30 November 2018
and (3) as from 18 December 2018 until 13 August 2019, always as an amateur.
Furthermore, the Single Judge noted that the player was registered with the
Respondent as a professional on 2 September 2019, i.e. before the end of the
season of his 23rd birthday.
10.
In view of the foregoing, the Single Judge remarked that the Claimant should in
principle be entitled to training compensation.
11.
The Single Judge however recalled that the Respondent first argued that the
Claimant had waived its rights by signing an agreement on 21 August 2019.
12.
Having paid particular attention to the wording of the agreement, the Single
Judge acknowledged that the wording of the agreement constituted a clear and
unambiguous waiver of training compensation. In addition, the Single Judge duly
noted that the Respondent insisted that the document was signed by a club official
of the Claimant, Mr Essomba Abanda.
13.
The Single Judge however observed that the power of attorney signed by Mr
Essomba Abanda as well as other documents uploaded on TMS in relation to other
transactions that were signed by Mr Essomba Abanda were signed with a different
signature of the one within the agreement. What is more, the Single Judge noted
that the power of attorney as well as the above documents were always stamped
with the stamp of the Claimant, whilst the agreement was simply signed.
14.
Furthermore, the Single Judge noted that the Respondent argued that Mr Essomba
Abanda also signed the former club TPO declaration with the same signature as
the one used in the agreement. Once again, the Single Judge observed that this
signature was not consistent with the signature that is contained within the power
of attorney or other official documents of the Claimant, and that said TPO
declaration was not stamped either.
15.
What is more, the Single Judge recalled that the Respondent stated that the
negotiations and the signing of the agreement and the TPO declaration were
made through an intermediary and not with the Claimant directly. In this respect,
the Single Judge underlined that no mandate was provided that would indeed
prove that the intermediary was acting on behalf of the Claimant with a valid
representation agreement.
16.
In fact, the Single Judge emphasised that the fact that the signature of the
Claimant’s chairman contained in this document as well as in the former club TPO
declaration were not consistent with the signature of other documents signed by
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
6
the chairman, and that the documents presented by the Respondent were not
stamped with the stamp of the Claimant, led him to have serious doubts as to the
fact that the Claimant had indeed signed the agreement in order to waive its
training compensation rights.
17.
Moreover, the Single Judge duly noted that the documents presented by the
Respondent were not uploaded on TMS. The Single Judge was of the opinion that
such agreement must be uploaded in TMS, and the fact that it was not added to
the Single Judge’s doubts as to the fact that the agreement was in fact signed by
an official representative of the Claimant.
18.
Indeed, the Single Judge was surprised that the Respondent failed to upload the
agreement on TMS when registering the player, and failed to input the relevant
data. In fact, the Respondent registered the player as an out of contract/amateur
player and indicated that the transaction had been processed with the clubs
agreeing on any payments. In particular, the Single Judge pointed out that when
registering a player as an out of contract/amateur player on TMS, the former club
does not have to confirm the information that the new club is entering.
19.
In view of the above, the Single Judge determined that the fact that the
Respondent did not upload the agreement in TMS nor indicated the conditional
payments in the transfer instruction reflected at the very least negligence on the
Respondent’s part.
20.
This, in combination with the fact that it could not be established that the Claimant
agreed and signed the agreement, led the Single Judge to reject the
argumentation of the Respondent.
21.
Consequently, the Single Judge determined that training compensation was due
to the Claimant.
22.
Turning its attention to the calculation of the training compensation, the Single
Judge referred to 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. Taking into
consideration that there are no consistent season start and end dates in Cameroon
over the relevant period, the Single Judge considered that the seasons in
Cameroon followed the calendar year. As such, the Single Judge concluded that
the effective period of time to be considered in the matter at stake corresponds to
30 days of the season of the player’s 15th birthday, 348 days of the season of the
player’s 16th birthday, 348 days of the season of the player’s 17th birthday and 225
days of the season of the player’s 18th birthday.
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
7
23.
Taking into consideration all the above, as well as the amount claimed by the
Claimant, the Single Judge decided that the Respondent is liable to pay the amount
of EUR 227,917.81 to the Claimant for the training and education of the player.
24.
Moreover, taking into consideration the Claimant’s request as well as art. 3 par. 2
of Annexe 4 of the Regulations, the Single Judge decided that the Respondent has
to pay, in conformity with its long standing 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 as a professional, i.e. as of 3 October 2019 until
the date of effective payment.
25.
Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in conjunction
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. The
relevant provision further states 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.
26.
In respect of the above, the Single Judge held that the amount to be taken into
consideration in the present proceedings is EUR 232,500 related to the claim of the
Claimant. Consequently, the Single Judge concluded that the maximum amount of
costs of the present proceedings corresponds to CHF 25,000.
27.
As a result, the Single Judge determined the costs of the current proceedings to
the amount of CHF 25,000 which, considering the degree of success, shall be borne
in full by the Respondent.
28.
Furthermore, taking into account the consideration under number II./3. above, the
Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which
stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on
the consequences deriving from the failure of the concerned party to pay the
relevant amounts of outstanding remuneration and/or compensation in due time.
29.
In this regard, the Single Judge pointed out that, against clubs, the consequence
of the failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
8
30.
Therefore, bearing in mind the above, the Single Judge decided that, in the event
that the Respondent does not pay the amount due to the Claimant within 45 days
as from the moment in which the Claimant, following the notification of the
present decision, communicates the relevant bank details to the Respondent, a ban
from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall
become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of
the Regulations.
31.
The Single Judge recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
32.
Finally, the Single Judge concluded his deliberations by rejecting any further claim
lodged by the Claimant.
*****
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
9
III.
Decis ion of the S ingle Judge of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, Jeunesse Académie Sportive de Ngoulemakong, is
partially accepted.
2.
The Respondent, Deportivo Alaves, has to pay the Claimant the amount of EUR
227,917.81 plus 5% interest p.a. as of 3 October 2019 until the date of effective
payment.
3.
Any further claim of the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly, of
the relevant bank account to which the Respondent must pay the amount
mentioned under point 2. above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
6.
In the event that the amount due plus interest in accordance with point 2. above
is not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
8.
In the the event that the aforementioned sum is still not paid by the end of the
ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and
a formal decision.
9.
The final costs of the proceedings in the amount of CHF 25,000 are to be paid by
the Respondent to FIFA to the following bank account with reference to case no.
TMS 5251/tle:
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
10
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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.
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.
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 Single Judge of the
sub-committee of the DRC
Emilio García Silvero
Chief Legal & Compliance Officer
Training compensation for the player Paul Stephane Keller
(Jeunesse Académie Sportive de Ngoulemakong, Cameroon, / Deportivo Alaves, Spain)
11