Training Compensation
Texto da decisão
REF TMS 10320
Decision of the
Dispute Resolution Chamber
passed on 20 June 2022
regarding training compensation in relation with the registration of the player MICHAEL
CLINTON OPEYEMI
BY:
Frans De Weger (Netherlands), Chairperson of the Dispute Resolution Chamber
of the Football Tribunal
CLAIMANT:
VÅLERENGA FOTBALL, Norway
RESPONDENT:
CLUB BRUGGE K.V., Belgium
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REF TMS 10320
I. FACTS OF THE CASE
Player:
MICHAEL CLINTON OPEYEMI
Date of birth:
7 April 2005
Player passport:
issued by the Norges Fotballforbund (NFF) on 16 February 2022
Year
2017
2018
2019
2020
2021
Birthday
12th
13th
14th
15th
16th
Club(s)
Vålerenga Fotball
Vålerenga Fotball
Vålerenga Fotball
Vålerenga Fotball
Vålerenga Fotball
Registration dates
01/01/17 – 31/12/17
01/01/18 – 31/12/18
01/01/19 – 31/12/19
01/01/20 – 31/12/20
01/01/21 - 19/08/21
Status
Amateur
Amateur
Amateur
Amateur
Amateur
Transfer:
20 August 2021, from Vålerenga Fotball (Norway) to CLUB BRUGGE K.V. (Belgium)
as professional (out of contract)
Claimant club:
Vålerenga Fotball (Norway)
UEFA, category IV (EUR 10,000 per year)
Respondent club:
CLUB BRUGGE K.V. (Belgium)
UEFA, category I (EUR 90,000 per year)
Claim and Response:
1.
On 23 May 2022, the Claimant lodged the present claim and requested EUR 71,644 as training
compensation for the first registration of the player as a professional with the Respondent, “plus
interest of 5 % p.a. as of the due date until the date of effective payment”.
2.
The Claimant acknowledged that the Respondent had refused to date to pay any training
compensation on the basis that the Claimant did not offer a contract to the player, as per art. 6 par.
3 of Annexe 4 RSTP.
3.
In this respect, the Claimant maintained being an amateur club, whilst nevertheless confirming that
it formed “part of the larger alliance Vålerenga IF” and “should not be confused with the men’s
professional team, ‘Vålerenga Fotball Elite’, which plays in Norway’s top division and is also organized
as an independent organization.”
4.
On 13 June 2022, the Respondent rejected the claim of the Claimant, on the basis that the latter did
neither meet the prerequisites of art. 6 par. 3 of Annexe 4 RSTP, nor the prerequisites so-called bona
fide interest doctrine developed by CAS.
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REF TMS 10320
5.
First, the Respondent argued that the Claimant and Vålerenga Fotball Elite were one and the same
club, but organized with two companies: a youth academy (i.e. the Claimant) and a professional team
(i.e. Vålerenga Fotball Elite).
6.
Relying on an email correspondence from the NFF on 15 December 2021, the Respondent pointed
out that the NFF admitted that the Claimant had a link to the professional club Vålerenga Fotball
Elite, but that those two clubs were separate legal entities.
7.
This information echoed an email sent on 27 October 2021 by the Claimant to the Respondent in
which the former declared the following:
a. The Claimant and Vålerenga Fotball Elite have different VAT numbers and CEOs;
b. The Claimant has youth teams and an “old boys” team;
c. Vålerenga Fotball Elite has only Men’s first and second teams.
8.
In this respect, the Respondent argued that “Vålerenga is trying to make the argument that their
youth set up and professional teams are separate and distinct. However, when taking a look at the
specialized website www.transfermarkt.com, there is a clear pattern in the development of players
forming part of the youth set up. A very large part of the players who currently play for the second
and first team of Vålerenga came directly from the youth set up, meaning that this is effectively the
youth department of the Vålerenga football club as a whole, and is thus not a separate entity or club.”
9.
The Respondent referred to several Norwegian players that played for the Claimant and subsequently
played professional football with Vålerenga Fotball Elite.
10.
In addition, the Respondent referred to two articles published in Norwegian on Vålerenga Fotball
Elite’s website in which said club “promotes the youth set up vociferously, and even has a special
section for viewers to read, encouraging the enrolment of their children”.
11.
Based on the above, the Respondent alleged the following:
“With the reasoning of Vålerenga, every team could (and should) set up two companies, i.e. one for
the academy that purely fields amateur players and one for the first (and second) team for the
professional players. That way the administration will always be covered for training compensation
purposes when they fail to offer a player a contract, as the youth academy company should always
be considered as a purely amateur club.
It must be established very clearly that this modus operandi is an illicit way to avoid the mandatory
compliance with the relevant (and legitimate) requirements imposed by the FIFA RSTP (i.e. in case a
club demands payment of training compensation). Should the modus operandi be condoned, this
would mean that the purpose of the regulations (i.e. to avoid that there is an unjustified hindrance to
the free movement of players between clubs affiliated to different member associations inside the
territory of the EU/EEA) would be completely undermined and eroded and. Hence, ruling in favor of
Vålerenga would create a very dangerous precedent.”
12.
According to the information enclosed in TMS:
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REF TMS 10320
a. The Claimant recruited players internationally under amateur status only;
b. Vålerenga Fotball Elite is classified as a UEFA category II club;
c. The Claimant and Vålerenga Fotball Elite authorized TMS users all have an email address
ending by “@vif.no”.
13.
The Claimant and Vålerenga Fotball Elite have the same crest.
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
Decision:
1.
The claim of the Claimant is based on the first professional registration of the player with the
Respondent.
2.
As per art. 2 par. 1 li. a) of Annexe 4 RSTP, training compensation is due when a player is registered
for the first time as a professional before the end of the calendar year of his 23rd birthday.
3.
It is uncontested that the player registered as a professional with the Respondent on 20 August 2021,
that is to say during the calendar year of the player’s 16th birthday.
4.
It is also undisputed that before said registration, the player was continuously registered as an
amateur in Norway.
5.
Therefore, training compensation is due.
6.
According to art. 3 par. 1 of Annexe 4 RSTP, on registering as a professional for the first time, the club
with which the player is registered is responsible for paying training compensation within 30 days of
registration to every club with which the player has previously been registered (in accordance with
the players’ career history as provided in the player passport) and that has contributed to his training
starting from the calendar year of his 12th birthday.
7.
It is undisputed that the player was, according to the NFF player passport, registered with the
Claimant as from 1 January 2017 until 19 August 2021, that is to say for:
a.
b.
c.
d.
e.
The entire year of his 12th birthday;
The entire year of his 13th birthday;
The entire year of his 14th birthday;
The entire year of his 15th birthday; and
231 days of the year of his 16th birthday.
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REF TMS 10320
8.
Therefore, training compensation is in principle due to the Claimant for the training and education it
provided the player during the above time frame.
9.
Art. 6 of Annexe 4 RSTP foresees special provisions regarding training compensation for clubs that
are located within the territory of the European Union (EU) and/or the European Economic Area
(EEA).
10.
In casu, the Claimant is based in Norway and the Respondent in Belgium, both countries being
member of the EU and/or EEA.
11.
Therefore, art. 6 of Annexe 4 RTSP is applicable to the matter at hand as lex specialis.
12.
Art. 6 par. 3 of Annexe 4 RTSP foresees that 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. The burden of proving that the conditions of art. 6 par. 3 of Annexe 4 RSTP are met
lies with the former club.
13.
As per the jurisprudence developed by the DRC in respect of art. 6 par. 3 of Annexe 4 RSTP, if the
former club is an amateur club, the requirement to offer a contract does not apply. Equally, if the
player was registered as an amateur with the former club but that said club has professional players
under contract, the former club shall evidence that it had offered a contract to the player at any time
during the registration of reference.
14.
In the present case, the burden of proving that the conditions of art. 6 par. 3 of Annexe 4 RSTP are
fulfilled lies with the Claimant.
15.
The Claimant is arguing being an amateur club, and thus not in a position to have offered a contract
to the player.
16.
The Respondent is arguing that the Claimant, although being an amateur club, is in fact the youth
academy of the professional club Vålerenga Fotball Elite, with the purpose of circumventing the
training compensation rules and in particular art. 6 par. 3 of Annexe 4 RSTP.
17.
It is undisputed that there is a link between the Claimant and Vålerenga Fotball Elite.
18.
It is displayed in TMS that the Claimant is classified under UEFA category IV, whilst Vålerenga Fotball
Elite is classified under UEFA category II.
19.
Category IV shall in principle be reserved for amateur clubs in countries where more than one
category is available, such as Norway. In that sense, art. 2 lit. b) of Annexe 4 RSTP stipulates that
training compensation is not due if a player is transferred to a category IV club.
20.
According to the information inputted in TMS, the Claimant only registered in or around 10 players
internationally, all under amateur status.
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REF TMS 10320
21.
Equally, there is no evidence on file that the Claimant indeed had ever registered players under
professional status.
22.
As such, the Claimant should in principle be considered an amateur club.
23.
Nevertheless, the Respondent’s allegations of circumvention of the RSTP shall be analysed carefully.
24.
Following the rationale of the Respondent, Vålerenga Fotball Elite allegedly evades the contract offer
prerequisites by having its youth academy, i.e. the Claimant, set up as an independent entity.
25.
The fact that there is admittedly a pathway from the Claimant to the professional club Vålerenga
Fotball Elite does not in itself form concrete evidence that the Claimant and Vålerenga Fotball Elite
are one and the same entity.
26.
Nevertheless, the fact that both clubs have the same crests, links to each other’s websites etc. creates
some doubts as to the effective independence of the Claimant vis-à-vis Vålerenga Fotball Elite.
27.
The NFF nor the Claimant provided conclusive evidence that they were independent. The NFF rather
confirmed that they were de facto linked.
28.
As such, it cannot be established that the Claimant operates independently from Vålerenga Fotball
Elite, and that the latter does not have any influence in the youth strategy of the former.
29.
The body of evidence would rather suggest that the Claimant and Vålerenga Fotball Elite are
intertwined, and that as such the said clubs may be considered as one entity for the purpose of
training compensation.
30.
As such, and in view of the specific circumstances described above, art. 6 par. 3 of Annexe 4 RSTP
applies to the matter at hand, and the Claimant carries the burden of proving that it had offered a
contract to the player between 1 January 2017 and 19 August 2021 to be entitled to training
compensation.
31.
The Claimant did not submit any proof that it had offered a contract to the player at any point in
time. The Claimant did not meet the applicable burden of proof required to be entitled to training
compensation in relation to the registration of the player as a professional with the Respondent.
32.
Based on all the above, training compensation is not due to the Claimant.
33.
The claim of the Claimant is rejected.
34.
According to art. 25 par. 2 of the Procedural Rules, procedural costs are payable for disputes between
clubs regarding the payment of training rewards.
35.
The Claimant claimed the amount of EUR 71,644.
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REF TMS 10320
36.
Thus, the amount claimed by the Claimant corresponds to an amount higher than USD 50,000 and
lower than USD 99,999. Therefore, procedural costs levied in this respect are set at USD 10,000 (cf.
art. 2 of Annexe 1 to the Procedural Rules).
37.
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.
38.
In view the specific circumstances of the case, procedural costs shall be set at USD 7,000
39.
In view of the outcome of the claim, said costs shall be borne by the Claimant.
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REF TMS 10320
III. DECISION
1.
The claim of the Claimant, Vålerenga Fotball, is rejected.
2. The final costs of the proceedings in the amount of USD 7,000 are to be paid by the Claimant to FIFA
with reference to case no. TMS 10320 (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 10320
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 17 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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