Training Compensation
Texto da decisão
TMS 6509
Decision of the
Dispute Resolution Chamber
passed on 11 March 2021
regarding training compensation for the registration of the player Fabián Ruiz
Peña with SSC Napoli
COMPOSITION:
Clifford J. Hendel (USA and France), Deputy Chairman
Tomislav Kasalo (Croatia), Member
Muzammil Bin Mohamed (Singapore), Member
CLAIMANT:
Real Betis Balompié, Spain
RESPONDENT:
SSC Napoli, Italy
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TMS 6509
I. FACTS OF THE CASE
Player:
Fabián Ruiz Peña
Date of birth:
3 April 1996
Player passport:
issued by the Real Federación Española de Fútbol (RFEF) on 8 August 2018
Season
2002/2003
2003/2004
2004/2005
2005/2006
2006/2007
2007/2008
2008/2009
2009/2010
2010/2011
2011/2012
2012/2013
2013/2014
2014/2015
2014/2015
2014/2015
2015/2016
2016/2017
2016/2017
2017/2018
2017/2018
From
05.12.2002
06.11.2003
03.12.2004
30.09.2005
10.08.2006
13.08.2007
04.09.2008
11.08.2009
16.09.2010
08.09.2011
23.08.2012
21.08.2013
01.07.2014
16.07.2014
24.09.2014
19.08.2015
18.08.2016
27.12.2016
27.07.2017
25.04.2018
To
30.06.2003
30.06.2004
30.06.2005
30.06.2006
30.06.2007
30.06.2008
30.06.2009
30.06.2010
30.06.2011
30.06.2012
30.06.2013
30.06.2014
16.07.2014
24.09.2014
30.06.2015
18.08.2016
27.12.2016
30.06.2017
16.05.2018
06.07.2018
Club
Los Palacios Villafranca E.F
Los Palacios Villafranca E.F
Los Palacios Villafranca E.F
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Elche C.F. SAD
Real Betis Balompié SAD
Real Betis Balompié SAD
Category
4
4
4
1
1
1
1
2
2
1
1
1
2
2
2
1
1
2
1
1
Status
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Amateur
Professional
Professional
Professional
Professional
Professional
Professional
Sporting season:
1 July to 30 June of the following year (Spain)
Date of transfer:
13 July 2018, from Real Betis Balompié (Spain) to SSC Napoli (Italy) as a
professional.
Claimant club:
Real Betis Balompié (Spain)
Respondent club:
SSC Napoli (Italy)
Financial conditions: Clause 5.1 of the player’s employment contract concluded with the Claimant,
i.e. the buy-out clause:
“5.1. Rescisión por voluntad unilateral del jugador:
Si durante el periodo de vigencia del presente contrato se planteara la extinción del
mismo, por voluntad del JUGADOR, sin causa imputable al Club, el Real Betis Balompié
tendrá derecho a percibir, bien directamente por parte del jugador o por un tercer club
o sociedad anónima deportiva en su nombre, una indemnización de:
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TMS 6509
a)
TREINTA MILLONES DE EUROS (30.000.000.-€), para el caso de que el Club milite
en Primera División en la temporada en curso en el momento de dicha extinción o
para el caso en que, aun militando el club en Segunda División, las retribuciones
del jugador previstas en el presente contrato no sufrieran reducción alguna por
descenso de categoría, circunstancia que deberá comunicar el Club al jugador
antes del 1 de julio de la temporada en la que el Club milite en Segunda División;
[…]
El abono de las indemnizaciones arriba descritas serán requisito ineludible para la
efectividad de dicha extinción, estándose a los responsables dl pago a lo dispuesto
en el Artículo 16 del Real Decreto 1006/1985, de 26 de junio.
EL JUGADOR no podrá rescindir el presente CONTRATO, ni el CLUB autorizar la
transferencia de su ficha federativa, ni ser contratado por el Club o entidad
deportiva española o extranjera de clase alguna si previamente no se ha
materializado íntegramente, el pago indemnizatorio aquí convenido”.
Previous facts:
1.
On 1 February 2018, the player and the Claimant concluded an employment contract
(hereinafter: “the employment contract”), valid as from the date of signature until 30 June 2023.
2.
As per clause 5.1 of the contract, and referring to the Spanish Real Decreto 1006/1985 of 26
June, which regulates the special labour relationship of professional athletes (hereinafter, “the
Real Decreto 1006/1985”), the Claimant and the player included a buy-out clause which
stipulated that in case of a unilateral termination of the employment contract by the player, the
latter had to pay the amount of EUR 30,000,000 to the Claimant.
3.
On 4 July 2018, the Respondent deposited the total amount of EUR 30,000,000.80 in the
Claimant’s account.
4.
According to the information contained in the Transfer Matching System (TMS) in the context
of the player’s transfer, on 11 July 2018, the Respondent uploaded a document entitled “proof
last end date”, dated 10 July 2018, by means of which the Claimant confirmed having received
the payment of the buy-out fee from the Respondent adding that, as a result, the employment
relationship with the player was terminated.
5.
The Respondent further uploaded a document it concluded with La Liga, dated 5 July 2018,
according to which the latter had been requested to cancel the player’s inscription with the
Claimant as well as to inform the Royal Spanish Football Federation (RFEF) of the player’s transfer
to the Respondent.
6.
Together with the aforementioned document, the Respondent further uploaded the player’s
employment contract with the Claimant and an evidence of having paid EUR 30,000,000.80 to
the Claimant on 4 July 2018.
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TMS 6509
7.
On 13 July 2018, the RFEF delivered the player’s International Transfer Certificate (ITC). On the
same date, the Federazione Italiana Giuoco Calcio (FIGC) confirmed having received the player’s
ITC. On the same date, the player joined the Respondent.
Claim and Response:
8.
On 5 August 2020, the Claimant lodged a claim in front of FIFA claiming the payment of EUR
595,000 as training compensation from the Respondent on the basis of the registration of the
player as a professional with the latter on 13 July 2018.
9.
In addition, the Claimant requested the payment of 5% p.a. interest as from 6 August 2018
until the date of effective payment.
10.
The Claimant based its claim on art. 2 par. 1 (ii) of Annex 4 of the Regulations on the Status and
Transfer of Players (RSTP) arguing that in accordance with the jurisprudence of the Dispute
Resolution Chamber (DRC) and the Court of Arbitration for Sport (CAS), the “move of a player”
following the payment of a buy-out clause “triggers the obligation to pay solidarity contribution
and training compensation”.
11.
The Respondent rejected the Claimant’s claim arguing that, in line with the well-established
jurisprudence of the DRC and the CAS, the movement of the player was to be considered as a
transfer and the buy-out fee as the transfer compensation paid in the context of such transfer.
12.
In this context, referring to the jurisprudence of the DRC, the Respondent added that training
compensation is considered as being included in the transfer compensation and, therefore, no
training compensation was payable to the Claimant.
13.
From the Respondent’s point of view, “by accepting to include the amount of [EUR 30,000,000]
in the Player’s employment contract, [the Claimant] impliedly accepted that sum as net amount,
in the sense that also solidarity contribution and training compensation […] shall be already
included in that sum”.
14.
The Respondent deemed that that the Claimant “should have specified [in the employment
contract] that the amount of [EUR 30,000,000] was not comprehensive of training compensation
and/or solidarity contribution”.
15.
Subsequently, the Respondent pointed out that “the Player moved to [the Respondent] after the
termination of his employment contract with [the Claimant]. Said termination was enforced
pursuant to a contractual clause mutually and freely inserted in the Player’s employment
contract”.
16.
Referring to article 6.3 of Annexe 4 of the RSTP, the Respondent highlighted that “once [the
Claimant] decided to insert the [buy-out] clause in the Player’s employment contract it gave, in
advance, its consent for the Player’s leaving to join another club and, by doing so, the Claimant
lost its right to receive training compensation”.
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TMS 6509
17.
In this context, the Respondent referred to a decision of the DRC of 21 February 2006 (n. 26595),
in which it is inter alia mentioned that “a club willing to transfer a young player to another club
is not actually seeking to retain the services of the player and has thus forgone its entitlement”.
18.
In view of the above, the Respondent is of the opinion that “[the Claimant], who received a
compensation for the Player movement to [the Respondent], and that agreed in advance the
condition under which the player was free to leave, gave its consent in advance for the Player’s
termination, thus, considering Article 6.4 Annex 4 FIFA RSTP, as well as FIFA jurisprudence, it is
not entitled to receive training compensation”.
Replica:
19.
The Claimant inter alia argued, that during the negotiations for a possible transfer of the player,
the Respondent had been informed “that the solidarity contribution and training compensation
was to be paid additionally and on top of the payment done”.
20.
The Claimant highlighted that “article 16 of the Real Decreto 1006/1985 represents a mandatory
right granted exclusively to professional players in order to prematurely and unilaterally terminate
their employment relationships”.
21.
Regarding the quantum of the indemnification, the Claimant added that “it is exclusively
negotiated and agreed between a club and a player when signing the employment contract”
and ”cannot be understood as a consent rendered in advance as confirmed by para. 36 of the
award CAS 2010/A/2098 Sevilla FC v. RC Lens”.
22.
Referring to art. 16 of the Real Decreto 1006/1985, the Claimant alleged that the Respondent
had been “aware that [the Claimant] and the Player agreed on a sum to be paid by the latter to
prematurely and unilaterally terminate his employment contract under Spanish law, and indeed,
attempted to benefit from said Real Decreto, but as ruled by CAS (CAS 2015/A/4188) and FIFA
(FIFA Single Judge of the Player’s Status Committee issued on the 5th of June 2018 […]), the
Respondent shall also bear the related “inconvenients” as the one for it dealt in the case at hand
(payment of solidarity and training), not only its advantages (being able to acquire the services
of the Players)”.
23.
From the Claimant’s point of view “when a club and a player establish the indemnification under
article 16 of the Real Decreto 1006/1985, they do not take into consideration the FIFA Training
Compensation. […] This is the reason why the training compensation is not included in the
indemnification provided by article 16 of the Real Decreto 1006/1985, as confirmed by the
Spanish doctrine and jurisprudence”.
24.
The Claimant further contested having agreed to receive the sum of EUR 30,000,000 net and
alleged having clearly required the payment of the solidarity contribution and the training
compensation on top of the amount paid for the buy-out of the player.
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TMS 6509
25.
The Claimant referred to an exchange of e-mails allegedly occurred between the parties prior to
the transfer of the player and, in particular, to a draft of agreement that it would have sent to
the Respondent on 25 June 2018. Said draft included a transfer compensation of EUR
31,500,000, broken down as follows: EUR 30,000,000 corresponding to the amount indicated
in the buy-out clause and EUR 1,500,000 as solidarity contribution and training compensation.
26.
The Claimant maintained that after having failed “to obtain [its] acceptance to the transfer of
the Player on the terms it had proposed […]”, the Respondent had “resorted […] trying to obtain
the services of the Player by executing clause 5 of the Player’s employment contract with the
Claimant in accordance with article 16 of the Real Decreto 1006/1985, and so paying at La Liga
headquarters on behalf of the Player EUR 30 million provided in his “[buy-out clause]”.
Duplica:
27.
The Respondent reiterated that according to jurisprudence of the DRC, training compensation is
deemed included in the transfer compensation paid to the former club of a player by his new
club.
28.
As regards the exchange of correspondence between the parties (cf. point I.25. above), the
Respondent clarified that the Claimant had unilaterally amended the “the amount fixed in the
clause inserted in the Player’s contract” and included a higher amount of transfer compensation.
29.
The Respondent argued that because “[the Claimant] raised certain substantial issues that were
not shared by [the Respondent]” it had “decided to proceed otherwise”, i.e. not to go through
with the transfer agreement and to pay the buy-out instead.
30.
The Respondent contested having circumvented “any rule” pointing out that its decisions was
“rather […] the expression of a different interpretation of the applicable rules of FIFA RSTP to
the matter at hand”.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): June 2018 edition.
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): 2021 edition.
Jurisdiction:
Yes, uncontested
Admissible:
Yes, uncontested
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TMS 6509
Decision:
31.
The Claimant requested the payment of training compensation on the basis of the registration
of the player as a professional with the Respondent.
32.
The Respondent contested the claim arguing that any compensation due to the Claimant was
included in the amount paid to the latter in the context of the registration of the player, i.e. in
the buy-out fee.
33.
In accordance with the jurisprudence of the Court of Arbitration for Sport (CAS), what matters
to determine the existence of a “transfer” under the FIFA RSTP is whether a particular player’s
move meets the following 4 requirements, which in casu both clubs acknowledged were met:
(i)
(ii)
(iii)
(iv)
The consent of the club of origin to the early termination of its contract with the player.
This requirement was met when the Claimant signed the “proof last end date” of 10
July 2018 (cf. point I.4. above) and confirmed having received the payment of the buyout fee from the Respondent adding that, as a result, the employment relationship with
the player was terminated;
The willingness and consent of the club of destiny to acquire the player’s rights. This
requirement was met when the player was registered with the Respondent on a
permanent basis;
The consent of the player to move from one club to the other. This requirement was met
when the player signed an employment contract with the Respondent; and
The element of price or value of the transaction. In casu, the value of the transaction is
determined by the sum of the EUR 30,000,000 received by the Claimant from the
Respondent.
34.
The DRC noted that the parties did not dispute that the payment of the buy-out fee by the
Respondent to the Claimant is to be considered a transfer compensation in the sense of the
RSTP.
35.
Consequently, in view of the above, and bearing in mind the established jurisprudence of the
DRC in this regard, it is to be considered that the activation of the buy-out clause by the player,
bearing in mind that the sum in question, EUR 30,000,000, was voluntarily borne by the
Respondent, has to be considered a “transfer” in the sense of the RSTP.
36.
In addition, in the matter at stake, it is to be highlighted that in accordance with the information
contained in the TMS, the player’s transfer occurred without any objection from the side of the
Claimant who: (i) acknowledged having received the payment from the Respondent; and (ii)
acknowledged having mutually agreed upon an early termination with the player. In addition, it
is worth mentioning that the ITC was properly delivered by the RFEF.
37.
In accordance with the well-established jurisprudence of the DRC, when two parties enter into
a transfer agreement which provides for a financial compensation to be paid to the former club
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TMS 6509
of a player, training compensation is considered as being included in such compensation, unless
otherwise agreed between them.
38.
In cases where the parties intended for training compensation to be additionally paid to the
former club, the transfer agreement has to refer to a specific amount, distinct from transfer
compensation, to be paid as training compensation.
39.
If the transfer agreement remains silent on the payment of training compensation, it is
considered that training compensation is included in the transfer compensation agreed.
40.
In casu, no transfer agreement was validly concluded between the parties.
41.
The payment made by the Respondent to the Claimant in the context of the registration of the
player to the Respondent was based on a buy-out clause included in the employment contract
concluded between the player and the Claimant. The employment contract does not mention
training compensation.
42.
No evidence was provided by the Claimant in support of the allegation that the Respondent
would have agreed to pay training compensation.
43.
In view of the above, it can only be concluded that the parties did not agree on training
compensation being due to the Claimant in addition to the buy-out fee.
44.
Considering that no agreement was reached between the parties as to the payment of training
compensation in the context of the transfer of the player to the Respondent, and taking into
account the aforementioned jurisprudence of the DRC (cf. points II.37., II.38. and II.39. above),
which in casu can be applied by analogy, training compensation is deemed included in the
amount of EUR 30,000,000 paid by the Respondent to the Claimant.
45.
As a result, the claim of the Claimant is therefore rejected.
46.
No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
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TMS 6509
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Real Betis Balompié, is rejected.
2.
No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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TMS 6509
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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