Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), member on the claim presented by the club, Club A, country B, as Claimant against the club, Club C, country D as Respondent regarding training compensation in connection with the Player E

2 I. Facts of the case 1. The Football Association of country B confirmed that the female player, Player E, born on 13 August 1995, was registered with its affiliated club, Club A (hereinafter: the Claimant), as from 26 January 2011 until 23 July 2013 as a scholar. 2. The football season in country B lasts from 1 July to 30 June of the following year. 3. The Football Association of country D confirmed that, on 12 September 2013, the player was registered with the club from country B, Club C (hereinafter: the Respondent), as a professional player. 4. According to the information contained in the Transfer Matching System (TMS), at the time the player was registered for it, the Respondent belonged to category I (indicative amount of EUR 90,000 per year). 5. On 23 May 2014, the Claimant contacted FIFA asking for its proportion of training compensation from the Respondent. In particular, the Claimant requested the amount of EUR 225,000, plus an interest of 5% p.a. as of 30 September 2013, procedural costs and the attorney s fees. 6. In particular, the Claimant stated that when the Respondent showed interest in the player, she requested the documentation to be released, in which the Claimant requested a compensation for training the player. In this respect, the Claimant provided a letter of clearance which reads as follows: Data regarding reimbursement of costs invested in the development of the player: a) The club demands compensation: yes b) The compensation is paid to the club: no c) An agreement on compensation was made with the club she is coming to: no 7. In this respect, the Claimant held that the Respondent itself and not its women s football team, via the Football Association of country D, requested the International Transfer Certificate (ITC) of the player and that, the latter was issued by the Football Association of country B in favour of the Football Association of country D together with the letter of clearance. As a consequence, the Respondent was at that moment aware or should have been aware that training compensation was due. Notwithstanding the foregoing, the Claimant asserted that it had never been contacted by the Respondent in this respect and that the latter rejected to pay any training compensation when approached. 2

3 8. In addition, the Claimant provided a copy of the scholarship agreements concluded with the player on 15 January 2011, 16 January 2012 and 1 February 2013, in accordance with which she would receive the following benefits from the club: a. From 15 January 2011 until the first day of the winter transfer period of 2012 i. accommodation and maintenance costs (food, electricity, water, heating and phone), ii. two round trips per year from city F to city G, iii. a monthly compensation during the preparation and competition period in the amount of EUR 150 and an annual scholarship in the amount of EUR 4,000, iv. bonus. b. From 16 January 2012 until the beginning of the first day of the winter transfer period of the year 2013 : i. the Ministry of Youth and Sports and the club would pay the player the amount of 25,000 per month (approximately, EUR 237 at the time of signature of the scholarship agreement), ii. two round trips from city F to city G, iii. bonus. c. From 1 February 2013 until the beginning of the first day of summer transfer period of the year 2013 : i. A scholarship in the amount of EUR 4, Furthermore, the Claimant assessed that men and women are equal before the law and that, as a consequence and in accordance with the Definitions of the Regulations on the Status and Transfer of Players (hereinafter: Regulations), said Regulations shall be applicable to every football player regardless of their gender. 10. Moreover, the Claimant stated that it has financial difficulties and that, as a consequence, the present matter shall be analysed from both a financial and moral perspective, and that the rejection of the claim would result in the disinterest of the clubs in investing in training and developing female players. 11. Lastly, the Claimant acknowledged the jurisprudence of the DRC in similar matters and stated that it disagrees with it on the following basis: a. The current claim is based on the subsequent transfer of a professional football player, 3

4 b. the Respondent has an enormous budget and does not depend on the financial aid from various sides in order to train players or compete in European competitions, c. the progress of female football, d. the revenues from broadcasting UEFA and FIFA female matches, e. the inaccurate comparison between female football and futsal due to the application of mandatory norms of the Regulations to female football players, and f. the inapplicability of the training compensation provisions for female players would violate the European Convention of gender equality. 12. In its reply, the Respondent rejected the Claimant s claim by referring to the jurisprudence of the DRC in training compensation cases involving a female player. In particular, the Respondent held that the training compensation system contained in the Regulations refers only to men s football and that for its implementation, a large and complete study on the figures of men s football was used in order to determine the training costs. However, in this study, women s football was not included and the reality of the women s football significantly differs from that of the men s game. 13. Furthermore, the Respondent underscored that the financial situation of the Claimant should not be taken into account at the present matter. However, the Respondent referred to the jurisprudence of the DRC in this respect, in accordance with which, the award of training compensation for the transfer of female players could possibly even hinder the further development of women s football and render the previous efforts to have been made in vain. 14. In this respect, the Respondent pointed out that it hires female players knowing that it does not have to pay training compensation and that women s football is not comparable with men s football. In particular, the Respondent held that the budget for the women s football for the 2013/2014 season is EUR 312,000 and that the highest salary of a female player is EUR 24,000 per season. Consequently, paying EUR 225,000 as training compensation for a female player would be illogical and would suppose that almost the entire budget for the season be spent in one player. As a result, no club would sign a female player. 15. Lastly, the Respondent requested that the claim be rejected and that the Claimant bear the costs of the present proceedings. 4

5 II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or the DRC) acknowledged the facts and the documentation contained in the file. 2. Subsequently, the Chamber analysed which procedural regulations should be applicable to the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 23 May Consequently, the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 3. At this point, the Chamber was eager to emphasize that contrary to the information contained in FIFA s letter dated 30 October 2015 by means of which the parties were informed of the composition of the Chamber, the member H and the member I refrained from participating in the deliberations in the case at hand, due to the fact that the member H has the same nationality as the Respondent and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member I refrained from participating in the deliberations. Thus, the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players (editions 2015, 2014 and 2012). 4. In continuation, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules to examine their jurisdiction to analyse the present dispute. 5. First and foremost, the members of the Chamber confirmed that, in accordance with art. 24 par. 1 in connection with art. 22 lit. (d) of the Regulations on the Status and Transfer of Players (edition 2015), the Dispute Resolution Chamber is, in principle, competent to hear disputes relating to training compensation between clubs belonging to different associations. 6. Consequently, the DRC proceeded to the analysis of article 20 of the Regulations, which states that training compensation shall be paid to a player s training club(s): (1) when a player signs his first contract as a professional and (2) each time a professional is transferred until the end of the season of his 23 rd birthday. 7. In that regard, the members of the Chamber deemed it appropriate to discuss, on a preliminary basis, the objective pursued with the creation of the institution of the training compensation within the scope of the Regulations. 5

6 8. In this context, the DRC stressed that the training compensation system was first introduced in the 2001 edition of the Regulations on the basis of one of the key principles contained in the agreement reached between the European Commission, FIFA and UEFA in March In continuation, the DRC pointed out that the current training compensation system was created considering the reality of the men s eleven-a-side football only. Indeed, the current training costs used for calculating the training compensation were established after a large and complete study of the relevant figures of the men s eleven-a-side football. Moreover, the DRC recalled that the training compensation amounts were determined within the scope of an extensive process initiated by FIFA with the participation of all stakeholders and constituted a response to the needs of men s football after the challenge by the European Commission of the international transfer system in place. 10. Subsequently, the DRC recalled that the Regulations created a detailed system for the payment of training compensation, which encourages the training of young players and creates stronger solidarity among clubs by awarding financial compensation to clubs that have invested in training young players. 11. At this stage, the DRC referred to its jurisprudence as well as to art. 12 par. 3 of the Procedural Rules, in accordance with which, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In particular, the Chamber underscored that the Claimant, on the one hand, challenged the jurisprudence of the DRC and that, on the other, failed to provide substantial evidence supporting its arguments regarding, amongst others, the increasing level of professionalism, the increase of revenues from broadcasting rights and the level of development of female football worldwide. 12. Bearing in mind the above, the participating members of the DRC unanimously concurred that, although there has been progress, the reality of women s football still significantly differs from that of the men s eleven-a-side game. The budgets, expenses and costs currently involved in each are certainly not comparable. 13. Therefore, after considering all the mentioned factors, the participating DRC members unanimously agreed that the existing training compensation system, as such, at least for the time being, cannot be applied to women s football that shows a scenario completely diverse from the men s eleven-a-side football. In fact, while recognizing the Claimant s arguments that the women s game has undisputedly made important progresses in recent times and its development is in constant raise, the grade of professionalism in women s football is still to be qualified as being at 6

7 its beginnings. Only few associations have already clubs affiliated to them whose teams engage professional female players. 14. In this respect, the Chamber deemed it appropriate to stress that the system of training compensation currently provided for by the Regulations was established to serve the reality of the professional men s football, however, not to be applied in an environment like the current still in a developing phase status of the women s game. 15. In order to corroborate this statement, the DRC referred once again to the situation with regard to training compensation for futsal players. In this regard, the members made reference to Annexe 6, art. 9 of the Regulations, that establishes that the provisions on training compensation, as provided for in art. 20 and Annex 4 of the Regulations for the Status and Transfer of Players shall not apply to the transfer of players to and from futsal clubs. 16. Considering such provision, the DRC proceeded to analyse the reasoning of the inapplicability of the training compensation for futsal players. First and foremost, it considered that the reality of the futsal is undisputedly different from the men s eleven-a-side football, which would per se justify the established exception. In this regard, the DRC members held that futsal is developed only in certain regions and had not yet reached a consistent global coverage. Additionally, the grade of professionalism reached in futsal also lies far behind the one of eleven-a-side football. Insofar, according to the DRC, the situation may be considered as comparable to the one of the women s game. 17. The DRC, in particular, reiterated that women s football also presents a different background and different status from the eleven-a-side men s football. Moreover, the DRC acknowledged that indeed women s football has considerably developed in the past few years, but it is still in the process of expanding, gain strength, independency and professionalism. 18. The members of the DRC, therefore, concluded that, contrary to the Claimant s opinion, the current structure of the women s football shows that the women s football has also not yet achieved a highly developed grade of professionalism and, in analogy with the futsal clubs, the particularities of the women s game must be considered while applying the Regulations. 19. The Chamber, therefore, unanimously agreed that the current actual facts justify the non-applicability of training compensation system designed on the basis of the training costs of men s eleven-a-side football to the women s game. In addition, the 7

8 DRC deemed necessary to stress that the award of training compensation for the transfer of female players could possibly even hinder the further development of women s football and render the previous efforts to have been made in vain. 20. In conclusion, and taking into account all of the above considerations, the DRC decided that as exhaustively exposed above, in view of the ratio behind the institution of training compensation of the Regulations, the system of the training compensation shall, for the time being, not be applicable to women s football. 21. Taking into account all of the above, the Chamber concluded that the Claimant s demand for training compensation is inadmissible. 22. In continuation, the Chamber referred to 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. 23. In this respect, the Chamber reiterated that the claim of the Claimant is inadmissible. Therefore, the latter club has to bear the costs of the current proceedings in front of FIFA. 24. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. 25. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 225,000 related to the claim of the club from country B. Therefore, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A of the Procedural Rules). 26. Considering that the matter at stake allowed to be dealt with following a reasonable procedure, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 20,000. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club A, is inadmissible. 2. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Claimant to FIFA. Given that the latter already paid an advance of costs of CHF 5,000 at the beginning of the present proceedings, the Claimant has to pay the amount of 8

9 CHF 15,000, within 30 days of notification of the present decision, to the following bank account with reference to case nr. XXXX: UBS Zurich Account number U (FIFA Players Status) Clearing number 230 IBAN: CH U SWIFT: UBSWCHZH80A ***** Note relating to the motivated decision (legal remedy): According to art. 67 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, a copy of which we enclose hereto. 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 (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl.: CAS directives 9