Training Compensation
Texto da decisão
TMS 6247/osv
Decis ion of the S ingle Judge of the
s ub-com m ittee of the Dis pute
Res olution Cham ber
pas s ed on 27 July 2020,
regarding training com pens ation for the play er Rafael Alex andre Rom ao Victor
BY:
Om ar Ongaro (Italy), Single Judge of the sub-committee of the Dispute
Resolution Chamber
CLAIMANT:
Electrico FC, Portugal
RES PONDENT:
Throttur Reykjavik, Iceland
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TMS 6247/osv
I.
FACTS OF THE CAS E
1.
According to the player passport issued by the Portuguese FA, the player, Rafael
Alexandre Romao Victor (hereinafter: the Player), born on 21 October 1996, was
registered as an amateur with the Portuguese club, Electrico FC (hereinafter: Claimant)
as from 5 January 2018 until 30 June 2018 (season of player’s 21st birthday).
2.
The football seasons in Portugal runs from 1 July until 30 June of the following year.
3.
Furthermore, according to the player passport issued by the Portuguese FA, the player
registered with the Icelandic club, Throttur Reykjavik (hereinafter: Respondent) on 24
April 2019 as an amateur.
4.
According to the player passport issued by the Icelandic FA, the player was registered
with the Respondent as a professional on 23 April 2019.
5.
By means of the information contained in TMS, the Claimant belonged to the category
IV (indicative amount of EUR 10,000 per year within UEFA) at the moment that the
player was registered with the Respondent.
6.
As per the information contained in TMS, the Respondent belonged to the category III
(indicative amount of EUR 30,000 per year within UEFA) at the moment that the player
was registered with it.
7.
On 23 June 2020, the Claimant lodged a claim in front of FIFA requesting training
compensation for the period of 5 January 2018 until 30 June 2018 on the ground of the
first registration as a professional of the player before the end of the season of his 23rd
birthday. In particular, the Claimant requested EUR 9,643.84 plus interest of 5 % p.a. as
of the due date until the date of effective payment.
8.
In reply to the Claimant’s claim, the Respondent held that no training compensation was
due to the Claimant.
9.
First of all, the Respondent referred to art. 6 par. 3 Annexe 4 of the Regulations, and
argued that “if a club wants to retain the right to training compensation in respect of
one of its amateur players [….] the training club must either offer the concerned player
a professional contract or […] must show bona fife and genuine interest in retaining
him for the future”.
10.
In this regard, as per the Respondent, it “does not appear that [the Claimant] offered
[the player] a professional contract”.
11.
Secondly, the Respondent maintained that the player was “training and playing [with
the Respondent] de facto as an amateur in the spring of 2019. His basic monthly salary
was ISK 248,658 (roughly EUR 1,600)”.
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TMS 6247/osv
12.
As per the Respondent, the player “was not paid more by [the Respondent] than the
expenses he effectively incurred in return for his footballing activity at the club and
therefore has to be considered as an amateur player”.
13.
Finally, the Respondent held that it is “today registered as a category 4 club”. Thus, as
per the Respondent, “training compensation is not due if the player is transferred to a
category 4 club”.
II. CONS IDERATIONS OF THE S INGLE JUDGE OF THE
COMMITTEE OF THE DIS PUTE RES OLUTION CHAMBER
S UB-
14.
First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber
(hereinafter: the Single Judge) analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted to FIFA
on 23 June 2020. Taking into account the wording of art. 21 of the June 2020 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the
Procedural Rules is applicable to the matter at hand (cf. article 21 of the Procedural
Rules).
15.
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 (June 2020 edition). 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.
16.
Furthermore, and taking into consideration that the player was registered with the
Respondent on either 23 April 2019 or 24 April 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, the June 2018
edition of the Regulations is applicable to the matter at hand as to the substance.
17.
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.
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TMS 6247/osv
18.
First of all, the Single Judge recalled that, in accordance with the player’s passport issued
by the Portuguese FA, the player, born on 21 October 1996, was registered with the
Claimant as an amateur as from 5 January 2018 until 30 June 2018. Furthermore, the
DRC Judge noted that according to the player passport issued by the Portuguese FA, the
player registered with the Respondent on 24 April 2019 as an amateur. Having said this,
the DRC Judge took into account that, according to the player’s passport issued by the
Icelandic FA, the player was registered with the Respondent as a professional on 23 April
2019.
19.
Given the discrepancies between the player’s passport issued by the Portuguese FA and
the player’s passport issued by the Icelandic FA, the Single Judge understood that he
firstly had to determine on which exact date the player was registered with the
Respondent. Importantly, the Single Judge further had to determine whether the player
was registered with the Respondent as an amateur or as a professional.
20.
In this context, the Single Judge decided to place more emphasis on the information
contained in the player’s passport provided by the Icelandic FA, given that the
Respondent is affiliated to said national association. What is more, the Single Judge
recalled that in its reply, the Respondent did not accuse the Icelandic FA of committing
any administrative error when creating the player’s passport.
21.
Given the above, the Single Judge concluded that the player was registered with the
Respondent as a professional on 23 April 2019.
22.
In continuation, the Single Judge took note that the Claimant asserted that it was
entitled to receive training compensation from the Respondent in the amount of EUR
9,643.84 on the ground of the first registration as a professional of the player before
the end of the season of his 23rd birthday.
23.
In consideration of the Claimant’s claim, the Single Judge, and hereby referring to the
rules applicable to training compensation, started by stating that, as established in art.
20 of the Regulations as well as in art. 1 par. 1 of Annexe 4 in combination with art. 2
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 23rd birthday. In case the latter occurs, art. 3 par. 1 sent. 3
of Annexe 4 of the Regulations sets forth that training compensation will only be owed
to the player’s former club for the time he was effectively trained by that club.
24.
In continuation, the Single Judge evoked that art. 5 par. 1 and par. 2 of Annexe 4 of the
Regulations stipulates that as a general rule, to calculate the training compensation due
to a player’s former club, it is necessary to take the costs that would have been incurred
by the new club if it had trained the player itself.
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25.
Subsequently, the Single Judge noted that since the player moved from Portugal to
Iceland, i.e. from one association to another association inside the territory of the
EU/EEA, art. 6 par. 1 of the Annexe 4 of the Regulations is applicable to the case at hand.
In this context, the Single Judge recalled that said provisions stipulate that when a player
moves from a lower to a higher category club within the territory of the EU/EEA, the
amount of training compensation payable shall be calculated on the average training
costs of the two clubs.
26.
In this respect, the Single Judge took into account that according to the information
contained in the TMS as well as the documentation on file, the Claimant belonged to
the club category IV on the date the player was registered with the Respondent (i.e. 23
April 2019), while the Respondent belonged to the training category III at the time the
player was registered with it.
27.
Having said this, the Single Judge took into account the position of the Respondent,
which held that no training compensation was due to the Claimant for the following
reasons: 1) the Claimant should have offered the player a professional contract in
accordance with art. 6 par. 3 Annexe 4 of the Regulations; 2) the player was “training
and playing [with the Respondent] de facto as an amateur in the spring of 2019”; and
3) the Respondent is “today registered as a category 4 club”, meaning that “training
compensation is not due if the player is transferred to a category 4 club”.
28.
First of all, with regard to the Respondent’s allegation that the Claimant should have
offered the player a professional contract, the Single recalled that, in accordance with
art. 6 par. 3 Annexe 4 of the Regulations, “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”.
29.
In this regard, the Single Judge placed particular emphasis on the fact that, pursuant to
the Regulations, it is the obligation of the former club to offer the player a contract,
and not of any former club. In other words, as per the Single Judge, this obligation only
applies to the last club the player was registered with before being registered with the
Claimant. In this sense, according to the player’s passport issued by the Portuguese FA,
the former club of the player was ARC Oleiros, and not the Claimant.
30.
Given the above, the Single Judge decided to reject the Respondent’s allegation that
the Claimant should have offered the player a professional contract in accordance with
art. 6 par. 3 Annexe 4 of the Regulations.
31.
Subsequently, the Single Judge turned his attention to the Respondent’s position that
the player was training and playing de facto as an amateur. In this light, the Single Judge
further noted that, according to the Respondent, the player’s monthly salary was “was
ISK 248,658 (roughly EUR 1,600)” and that the player “was not paid more by [the
Respondent] than the expenses he effectively incurred in return for his footballing
activity at the club and therefore has to be considered as an amateur player”.
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TMS 6247/osv
32.
The Single Judge could not agree with the Respondent’s position. First of all, the player’s
passport issued by the Icelandic FA clearly stipulated that the player was registered with
the Respondent as a professional. What is more, the Single Judge referred to his previous
deliberations and reiterated that the Respondent did not accuse the Icelandic FA of
committing any administrative error when creating the player’s passport.
33.
In this context, the Single Judge highlighted that the Respondent itself had
acknowledged that the player was earning “roughly EUR 1,600” per month. In addition,
the Single Judge evoked that the Respondent submitted an employment contract
between the player and the Respondent in order to emphasize the extent of the player’s
remuneration.
34.
Along these lines, the Single Judge referred to Art. 2 par. 2 of the Regulation, which
reads as follows: “A professional is a player who has a written contract with a club and
is paid more for his footballing activity that the expenses he effectively incurs”.
35. Thus, to the opinion of the Single Judge, the fact that there is a written contract between
the player and the Respondent is the first decisive element in this regard. Furthermore,
the Single Judge, referring to the principle of the burden of proof explicitly stipulated
in art. 12 par. 3 of the Procedural Rules, established that the Respondent did not provide
any evidence that can demonstrate that the player’s expenses for his footballing activity
exceeded his income.
36.
Consequently, the Single Judge decided to reject the Respondent’s position that the
player was training and playing de facto as an amateur.
37.
Finally, the Single Judge turned to the Respondent’s statement that today it belongs to
the training category IV, and that consequently no training compensation is due. Having
said this, the Single Judge stressed that the categorization of the Respondent at the time
of the registration of the player is decisive, and not the current training category. In this
light, the Single Judge reiterated that, as per the information contained in the TMS, the
Respondent belonged to the training category III at the time the player was registered
with it. Moreover, the Single Judge wished to underline that the Respondent never
disputed the fact that on the date of the player’s registration with the Respondent (i.e.
23 April 2019), it belonged to the training category III.
38.
Therefore, the Single the Single Judge decided to reject the Respondent’s statement
that no training compensation is due, because today it belongs to the training category
IV.
39.
Consequently, given all of the above considerations, the Single Judge decided to reject
the Respondent’s reply in its entirety, and decided that the Respondent is liable to pay
training compensation to the Claimant for the training of the player in accordance with
art. 20 of the Regulations and art. 2 par. 1 lit. ii. and art. 3 par. 1 of Annexe 4 of the
Regulations.
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TMS 6247/osv
40.
Furthermore, the Single Judge referred to the FIFA circular no. 1627 dated 9 May 2018
which provides details for the calculation of training compensation as well as to art. 5
par. 1 and par. 2 of Annexe 4 of the Regulations, which stipulate that as a general rule,
to calculate the training compensation due to a player’s former club, it is necessary to
take the costs that would have been incurred by the new club if it had trained the player
itself.
41.
In continuation, the Single Judge reiterated that, pursuant to art. 6 par. 1 of the Annexe
4 of the Regulations, when a player moves from a lower to a higher category club within
the territory of the EU/EEA, the amount of training compensation payable shall be
calculated on the average training costs of the two clubs. In this respect, the Single Judge
once again took into account that the Claimant belonged to the club category IV and
that the Respondent belonged to the club category III on the date of the player’s
registration with the Respondent.
42.
As a result, and considering 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, the Single Judge concluded that
the effective period of time to be considered in the matter at stake corresponds to 176
days of the 2017/2018 season, i.e. as from 5 January 2018 until 30 June 2018. Therefore,
the Single Judge determined that the Claimant is entitled to EUR 9,643.84 as training
compensation.
43.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay
the amount of EUR 9,643.84 to the Claimant as training compensation on the ground of
the first registration as a professional of the player before the end of the season of his
23rd birthday.
44.
Moreover, taking into consideration the Claimant’s claim 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 longstanding practice, interest of 5% p.a. over the amount
payable as training compensation as of the 31st day of the registration of the player with
the Respondent on a definitive basis, i.e. as of 24 May 2019, until the date of effective
payment.
45.
In continuation, the Single Judge referred to art. 25 par. 2 of the Regulations in
combination with art. 18 par. 1 of the Procedural Rules, according to which in the
proceedings before the Dispute Resolution Chamber relating to disputes regarding
training compensation, costs in the maximum amount of CHF 25,000 are levied. The costs
are to be borne in consideration of the parties’ degree of success in the proceedings.
46.
However, in this respect, the Single Judge referred to art. 18 par. 1. ii. of the Procedural
Rules according to which, for any claim lodged prior to 10 June 2020 which has yet to
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be decided, the maximum amount of the procedural costs shall be equivalent to any
advance of costs paid. Thus, considering that no advance of costs was paid in this matter,
no procedural costs can be awarded.
47.
Thereafter, taking into account the consideration under number II./16. 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.
48.
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.
49.
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.
50.
Finally, 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.
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TMS 6247/osv
III. DECIS ION OF THE S INGLE JUDGE OF THE S UB-COMMITTEE OF THE
DIS PUTE RES OLUTION CHAMBER
1.
The claim of the Claimant, Electrico FC, is accepted.
2.
The Respondent, Throttur Reykjavik, has to pay to the Claimant, the following amount:
- EUR 9,643.84 as training compensation plus 5% interest p.a. as from 24 May 2019
until the date of effective payment.
3.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
4.
The Respondent shall provide evidence of payment of the due amount in accordance
with this decision to ps [email protected], duly translated, if applicable, into one of the
official FIFA languages (English, French, German, Spanish).
5.
In the event that the amount due, plus interest as established 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 following consequences shall arise:
1. 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. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE 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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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