Decision of the sub-committee of the Dispute Resolution Chamber (DRC)

Transcription

1 Decision of the sub-committee of the Dispute Resolution Chamber (DRC) passed on 4 October 2018, in the following composition: Geoff Thompson (England), Chairman Abu Nayeem Shohag (Bangladesh), member Alexandra Gómez (Uruguay), 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. According to the player passport issued by the Football Federation of Country B, the player, Player E (hereinafter: the player), born on 9 November 1994, was registered with its affiliated club, Club A (hereinafter: the Claimant), as from 31 January 2013 until 19 July 2017 as a professional. 2. The football season in Country B runs as from 1 July to 30 June of the following year. 3. Equally, according to the player passport issued by the Football Federation of Country B, the Claimant belonged to the club category 2 at the time the player was registered with it. 4. According to the information contained in the Transfer Matching System (TMS), on 19 July 2017, the player was registered with the French club, Club C (hereinafter: the Respondent). 5. Also according to the TMS, the Respondent belonged to the club category 1 at the time the player was registered with it. 6. On 27 November 2017, the Claimant lodged a claim against the Respondent before FIFA asking to be awarded training compensation for the subsequent professional registration of the player with the Respondent. In particular, the Claimant requested EUR 273,493.15, plus cost and interest from the due date. 7. In its reply, the Respondent rejected the Claimant s claim by stating that the player had terminated his training and education period before the end of the season of his 21 st birthday. 8. In this regard, the Respondent submitted a copy of an article published on the Claimant s website on 28 June 2013, according to which the Claimant s sports director described the player as a big talent and mentioned that he has some soccer qualities that are very well developed for so young a player, and he has the head completely screwed. He is what you want to call football intelligence and see many things on the pitch before others. It looks exciting with [the player], and we believe he can continue to improve here in [the Claimant], which in the Respondent s opinion shows the player s important role with the Claimant. 9. Likewise, the Respondent referred to jurisprudence of the Court of Arbitration for Sport (CAS), allegedly pursuant to which a player who has played 45% of the matches was considered to have terminated his training and education period, and submitted a copy of an internet report, according to which the player: - upon his arrival at the Claimant during the season 2012/2013, took part in 5 out of 13 possible Super League matches, - during the season 2013/2014, played in 21 out of 33 Super League matches, i.e. 64% of the matches, - during the season 2014/2015, took part in 30 out of 33 Super League matches, i.e. 91% of the matches, in 2 UEFA Europa League (UEL) matches and in 3 matches of the national cup, (Club A, Country B / Club C, Country D) 2

3 - during the season 2015/2016, played in 28 out of 33 Super League matches, i.e. 85% of the matches, in 8 UEL matches and in 4 out of 5 matches of the national cup. 10. In light of the foregoing, the Respondent argued that the player was transferred to the Claimant due to the needs of its professional team, that during the season 2013/2014 he actively participated in the professional team and that as of the season 2014/2015 he was one of the most important players. 11. Furthermore, the Respondent held that according to the player passport, he was registered with the Claimant on 31 January 2013, but that the Claimant is mistakenly claiming training compensation as of 10 November In its replica, the Claimant submitted a copy of the first page of the player s first contract with the Claimant dated 10 November 2012 and held that, although the registration period opened in January 2013 only, the player started to train with the Claimant on 10 November 2012 and that, therefore, training calculation shall be calculated as of said date. 13. Furthermore, the Claimant referred to art. 6 par. 3 of Annexe 4 of the FIFA Regulations on the Status and Transfer of Players and submitted a copy of the player s employment contract dated 5 January 2013 for the period between 5 January 2013 and 31 December 2014, according to which the player received a monthly salary of 8,000 in the currency of Country B as from 10 November 2012 and of 12,000 as from 1 January Equally, the player was entitled to accommodation and meals at a host family and to the following bonuses: - 500/official match if the player was selected as a reserve for the A team, and - 1,000/official match if the player was in the starting line-up of the A team. 14. In this context, the Claimant further submitted a copy of its dated 17 April 2017 allegedly addressed to the player and his agent, which reads as follows: You know that I am trying to stretch every possibility, I have, to reach an agreement. With this offer I have overstretched so I really hope for a positive answer and a solution for our common future. With this offer the requested a month is reached by playing and winning in the same measure as this year: Aprox 40 games (incl 4 cup games) = a year Only 20 wins= 50% (with 7 league / and hopefully 2 cup games left we already had 20 wins = 62,5% this year) = a year. So bonuses add up to a year = a month. Equally, the following offer was supposedly attached to the aforementioned [The Claimant] would like to offer an extended contract to [the player]. We offer a contract until 30.june Monthly salary: ,00 starting from date of signing. Bonuses: by signing the contract ,00 when in starting line up in the Super League and national cup of Country B ,00 when starting and winning the Super League and national cup of Country B ,00 by bronzemedal in the Super League (Club A, Country B / Club C, Country D) 3

4 40.000,00 by silvermedal in the Super League ,00 by goldenmedal in the Super League ,00 by winning the national cup of Country B ,00 partecipation in the UEFA Europe League groupstages: ,00 partecipation in UEFA Champions League groupstages: Agents fee 8% of the base salary. 15. Furthermore, the Claimant stated that the early termination of a player s training and education period is an exception to the general rule and, therefore, the Respondent bears the burden of proof. 16. In this respect, the Claimant is of the opinion that the number of matches played for the first team is not a deciding factor. Equally, the Claimant acknowledged that the player played in the A-team and provided the following player statistics, which in its opinion clearly show the player s development and that he had not terminated his training and education until the season of his 22 nd birthday at the earliest: Season Matches Minutes Goals Assists 2012/ / / / / In its duplica, the Respondent stated that the player s employment contract dated 10 November 2012 is not valid since the registration period opened on 1 January 2013 and it was addressed to the Football Federation of Country B for validation. In this respect, the Respondent pointed out that, contrary to the employment contract dated 5 January 2013, the employment contract dated 10 November 2012 is not signed and does not comprise the approval of the Football Federation of Country B. 18. In this context, the Respondent insisted that the relevant dates for the calculation of training compensation are the ones contained in the player passport and that therefore, if any, training compensation shall be calculated as of 31 January Furthermore, as to the early termination of the player s training and education period, the Respondent argued that the jurisprudence of the CAS only considered as criterion in this regard the time the player effectively played with the first team of his new club. In this respect, and hereby referring to the same CAS jurisprudence, the Respondent held that, in the relevant CAS case, a player that played 41.6% of the possible time was considered to have finished his training and education period, whereas the player in the matter at hand played 36% of the possible time in the season 2012/2013 and 41.2% in the season 2013/2014. (Club A, Country B / Club C, Country D) 4

5 20. Lastly, the Respondent stressed that it has never rejected the Claimant s claim on the basis that it did not offer the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations. II. Considerations of the sub-committee of the DRC 1. First of all, the sub-committee of the Dispute Resolution Chamber (hereinafter also referred to as sub-committee) 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 27 November Consequently, the 2017 edition of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the sub-committee referred to art. 3 of the Procedural Rules which states that the sub-committee of the Dispute Resolution Chamber shall examine its jurisdiction in light of arts 22 to 24 of the Regulations on the Status and Transfer of Players (edition 2018). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations on the Status and Transfer of Players, the sub-committee is competent to decide on the present dispute relating to training compensation between clubs belonging to different associations handled through TMS. 3. Furthermore, the sub-committee analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the player was registered with the Respondent on 19 July 2017, the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. In continuation, the sub-committee was eager to emphasize that contrary to the information contained in FIFA s letter dated 27 September 2018 by means of which the parties were informed of the composition of the sub-committee, the member Philippe Diallo and the member Stijn Boeykens refrained from participating in the deliberations in the case at hand, due to the fact that the member Philippe Diallo has the nationality of the country in which the Respondent is located and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Stijn Boeykens refrained from participating and thus the sub-committee adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 5. Its competence and the applicable regulations having been established, the subcommittee entered into the substance of the matter. The sub-committee started by acknowledging the above-mentioned facts of the case as well as the documentation on file. However, the sub-committee emphasized that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. In particular, the subcommittee 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 (Club A, Country B / Club C, Country D) 5

6 application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS). 6. In this regard, the sub-committee recalled that according to the player passport issued by the Football Federation of Country B, the player, born on 9 November 1994, was registered with the Claimant as a professional for the period between 31 January 2013 and 19 July In continuation, the sub-committee took note that the Claimant claimed that it was entitled to receive training compensation in the amount of EUR 273, from the Respondent based on the period of time as from 10 November 2012 until 19 July Equally, the sub-committee noted that the Respondent rejected the claim of the Claimant, arguing that the player had terminated his training and education period before the end of the season of his 21 st birthday. 9. In this context, the sub-committee referred to the rules applicable to training compensation and stated 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, unless it is evident that a player has already terminated his training period before the age of 21, when a player is registered for the first time as a professional before the end of the season of the player s 23 rd 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. 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. 10. Furthermore, the sub-committee referred to art. 6 of Annexe 4 of the Regulations, which contains special provisions regarding players moving from one association to another association inside the territory of the European Union (EU)/European Economic Area (EEA). In this regard, the sub-committee concluded that, since the player moved from one association to another association inside the territory of the EU, said article is applicable to the case at hand as lex specialis. 11. Having established the above, the sub-committee went on to examine as to whether the player s training period had already been completed before the end of the season of his 21 st birthday, as alleged by the Respondent and contested by the Claimant. 12. In this respect, the sub-committee referred to art. 6 par. 2 of Annexe 4 of the Regulations, which stipulates that, inside the EU/EEA, the final season of training may occur before the season of the player s 21 st birthday if it is established that the player completed his training before that time. 13. The sub-committee emphasized that cases involving a possible early completion of a player s training period have to be assessed on a case-by-case basis, whereby all the specific circumstances and all the evidence produced have to be taken into (Club A, Country B / Club C, Country D) 6

7 consideration. Hence, several factors and indications have to be considered in order to assess and establish whether a particular player s training has indeed been completed before the season of his 21 st birthday. For the sake of completeness, the sub-committee pointed out that, so far, both the Dispute Resolution Chamber as well as the CAS have adopted a strict approach in establishing that a player s training had indeed been completed before the season of a player s 21 st birthday, so as to not jeopardize the right of training clubs to, in principle, receive training compensation. 14. Having said that, the sub-committee recalled the specific circumstances of the present matter as well as the supporting documentation produced by the parties of the dispute. The sub-committee highlighted that the Respondent s argument is based on the player s alleged important role with the Claimant, as allegedly shown in the press declaration of the Claimant s sports director as well as by the quantity of matches and minutes he played for the Claimant. 15. In this context, the sub-committee acknowledged that it remained undisputed that the player played in the A-team of the Claimant. Similarly, the sub-committee stressed that the supporting documentation submitted by both the Claimant and the Respondent shows an increase in the number of matches and minutes played by the player, which the sub-committee considered a clear indication of the player s talent and skills, but also of his evolving level of training. 16. Likewise, the sub-committee pointed out that the press declaration of the Claimant s sports director dated 28 June 2013 refers to the player s talent and his football intelligence as well as to his expectations that the player would develop and improve while registered with the Claimant. The sub-committee agreed that such statement, which the Respondent presented in support of its position that the player had an important role with the Claimant, rather confirmed that at that point in time the player had not yet completed his training and education and was still to increase his training level owing to the training and education offered by the Claimant. 17. In view of the above considerations and the documentation on file, the subcommittee concurred that, in the specific matter at hand, it could not be established that the player had indeed already completed his training before the season of his 21 st birthday. Consequently, the sub-committee decided that the Respondent s respective argument could not be upheld. 18. Having established the above, the sub-committee acknowledged that it further had to verify as to whether the Claimant had complied with the prerequisites of art. 6 par. 3 of Annexe 4 of the Regulations in order to be entitled to receive training compensation from the Respondent. In this context, the sub-committee recalled that the player was already contractually bound and registered as a professional with the Claimant prior to his move to the Respondent. 19. In this sense, the sub-committee emphasized that, in accordance with art. 6 par. 3 sent. 1 of 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. (Club A, Country B / Club C, Country D) 7

8 20. In light of the above, the sub-committee examined the documents presented by the Claimant and, in particular, the latter s dated 17 April 2017 addressed to the player and his agent, by means of which it offered the player a contract for three seasons and a basic monthly remuneration of 150,000 plus bonuses. For the sake of good order, the sub-committee pointed out that this was also not disputed by the Respondent in any way. On account of the above, the sub-committee concluded that the Claimant had offered the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations. 21. On account of all the above-mentioned considerations, the sub-committee decided that the Respondent is liable to pay training compensation to the Claimant in accordance with art. 20 and Annexe 4 of the Regulations. 22. Turning its attention to the calculation of training compensation, the sub-committee referred to the FIFA circular no dated 26 May 2017 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. Furthermore, the sub-committee referred to art. 6 of Annexe 4 of the Regulations which contains special provisions in case a player moves from a lower to a higher category club or from a higher to a lower category club within the territory of the EU/EEA. In this respect, the sub-committee recalled that the Claimant belonged to the club category 2, which corresponds to the indicative amount of EUR 60,000 per year within UEFA, and that the Respondent belonged to the club category 1, which corresponds to the indicative amount of EUR 90,000 per year within UEFA. 23. Consequently, the sub-committee concluded that, pursuant to art. 6 par. 1 lit a) of Annexe 4 of the Regulations, the calculation of the amount of training compensation shall be based on the average training costs of the two clubs. 24. Furthermore, the sub-committee recalled that according to the player passport issued by the Football Federation of Country B, the player was registered with the Claimant as from 31 January 2013 until 19 July 2017, i.e. inter alia during 5 months of the season of the player s 18 th birthday as well as the full seasons of the player s 19 th, 20 th and 21 st birthday. In this regard, the Chamber agreed that the documents presented by the Claimant in support its request for training compensation for a period of time starting as from 10 November 2012 does not constitute sufficient evidence demonstrating that the player was effectively trained by the Claimant as from 10 November As a result, the sub-committee decided that, in the absence of any corroborating evidence to the contrary, the relevant dates for the calculation of training compensation are the ones contained in the player passport issued by the Football Federation of Country B. 26. Consequently, and in light of the above-mentioned considerations, the subcommittee decided to partially accept the Claimant s claim and decided that the Respondent is liable to pay training compensation to the Claimant in the amount of EUR 256,250. (Club A, Country B / Club C, Country D) 8

9 27. Moreover, taking into consideration the Claimant s request for interest as well as art. 3 par. 2 of Annexe 4 of the Regulations, the sub-committee decided that the Respondent has to pay 5% interest p.a. over the amount payable as training compensation as of 19 August 2017 until the date of effective payment. 28. The sub-committee further decided that the Claimant s claim for legal expenses is rejected, in accordance with art. 18 par. 4 of the Procedural Rules and the respective longstanding jurisprudence of the Dispute Resolution Chamber. 29. Lastly, the sub-committee 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 Annex A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. 30. In respect of the above, the sub-committee held that the amount to be taken into consideration in the present proceedings is EUR 273, related to the claim of the Claimant. Consequently, the sub-committee concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A of the Procedural Rules). 31. As a result, taking into account the particularities of the present matter and considering the degree of success, the Chamber determined the costs of the current proceedings to the amount of CHF 20,000, of which the amount of CHF 5,000 shall be borne by the Claimant and the amount of CHF 15,000 by the Respondent. ***** III. Decision of the sub-committee of the DRC 1. The claim of the Claimant, Club A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 256,250, plus 5% interest p.a. as of 19 August 2017 until the date of effective payment. 3. In the event that the aforementioned sum plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid, within 30 days of notification of the present decision as follows: (Club A, Country B / Club C, Country D) 9

10 5.1. The amount of CHF 15,000 by the Respondent to FIFA to the following bank account with reference to case no. XXXXXX: UBS Zurich Account number U (FIFA Players Status) Clearing number 230 IBAN: CH U SWIFT: UBSWCHZH80A 5.2. The amount of CHF 5,000 by the Claimant to FIFA. Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant does not have to pay an additional amount as costs of the proceedings. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. above is to be made and to notify the sub-committee of the DRC of every payment received. ***** Note relating to the motivated decision (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, 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 sub-committee of the DRC: Emilio García Silvero Chief Legal & Integrity Officer Encl.: CAS directives (Club A, Country B / Club C, Country D) 10