F.I.F.A. – Camera di Risoluzione delle Controversie (2011-2012) – indennità di formazione – ———- F.I.F.A. – Dispute Resolution Chamber (2011-2012) – training compensation – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 1 March 2012, in the following composition: Geoff Thompson (England), Chairman Michele Colucci (Italy), member Johan van Gaalen (South Africa), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the club, Club N, from country S as Claimant against the club, Club O, from country T as Respondent regarding training compensation in connection with the player J

F.I.F.A. - Camera di Risoluzione delle Controversie (2011-2012) - indennità di formazione – ---------- F.I.F.A. - Dispute Resolution Chamber (2011-2012) - training compensation – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 1 March 2012, in the following composition: Geoff Thompson (England), Chairman Michele Colucci (Italy), member Johan van Gaalen (South Africa), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the club, Club N, from country S as Claimant against the club, Club O, from country T as Respondent regarding training compensation in connection with the player J I. Facts of the case 1. According to the player passport issued by the country S Football Association the player, J (hereinafter: player), was registered with Club N, from country S (hereinafter: Claimant), as from 18 June 2002 until 14 July 2009 as an amateur. 2. The football seasons in country S during the period of time the player was registered with the Claimant started and ended as follows: - 2002/2003: as from 13 July 2002 until 17 June 2003 - 2003/2004: as from 19 July 2003 until 8 June 2004 - 2004/2005: as from 8 August 2004 until 19 June 2005 - 2005/2006: as from 23 July 2005 until 13 May 2006 - 2006/2007: as from 15 July 2006 until 30 May 2007 - 2007/2008: as from 8 July 2007 until 14 June 2008 - 2008/2009: as from 19 July 2008 until 30 May 2009 - 2009/2010: as from 11 July 2009 until 29 May 2010 3. According to the aforementioned player passport, the Claimant belonged to the club category III during the period of time that the player was registered with the Claimant. 4. According to an official confirmation of the Football Association of country T the player was registered with its affiliated club, Club O (hereinafter: Respondent), on 21 July 2009 as an amateur and as from 28 May 2010 as a professional. 5. The Football Association of country T further confirmed that the Respondent belonged to the club category III. 6. On 30 June 2011, the Claimant lodged a claim in front of FIFA claiming the payment of training compensation from the Respondent on the basis that the player had signed his first professional contract with the Respondent. In particular, the Claimant is claiming the amount of EUR 220,000 plus 5% interest as well as legal expenses. 7. The Claimant indicated that after various negotiations with the Respondent as to the amount payable as training compensation, the Respondent had sent to the Claimant an “Agreement for Settlement of Entitlement” offering the Claimant the amount of EUR 82,984 in order to “settle the dispute”. The Claimant enclosed a copy of said agreement, the translated version of which stipulated that, amongst others, the Respondent “acknowledges the rights of the transferring club arising due to the compensation for the costs associated with the training of the player identified as “training compensation” in the regulations of FIFA/UEFA applicable to international transfers”. The Claimant pointed out that it did not sign the agreement “reminding [the Respondent] on current valid legislation”. 8. In this context, the Claimant argued that the amount due to it is EUR 220,000, since, in accordance with FIFA Circular nr. 769, both the Claimant as well as the Respondent should have been allocated in the club category II. It is the Claimant’s opinion that the country S Football Association and the Football Association of country T wrongfully allocated the Claimant and the Respondent in the category III. In support of its statement, the Claimant referred to FIFA Circular nr. 1249, which, inter alia, stipulates that “In such a case of manifest discrepancy, the DRC normally applies the training categories in accordance with the guidelines, despite the fact that the member association concerned had indicated a different categorisation”. In this respect, the Claimant stated that it was evident that both clubs should have been allocated in the category II and that, thus, the amount payable as training compensation amounts to EUR 220,000. 9. In reply to the claim lodged against it, the Respondent stated that “we naturally do agree that [the Claimant] is entitled to receive the training compensation for the professional football player (…)” and that “the matter of dispute between the parties is just the high of the costs of this compensation”. The Respondent emphasized that it belonged to the category III and that, therefore, the amount due is merely EUR 130,000; an amount it had already offered to pay to the Claimant. In this respect, the Respondent added that according to FIFA Circular nr. 1223, the Football Association of country T was required to allocate its affiliated clubs in the categories III and IV only. 10. After having asked the Claimant for its comments pertaining to art. 6 par. 3 of Annexe 4 of the Regulations on the Status and Transfer of Players, the Claimant firstly indicated that the Respondent had, on more than one occasion, explicitly recognized that the Claimant was entitled to training compensation. 11. In continuation, the Claimant, and hereby underlining that the player was an amateur when registered with it, referred to the decision passed by the Court of Arbitration for Sport (CAS) in CAS 200X/X/XXX Club P vs Club Q and stated that the player had always been considered by the Claimant as a great prospect for the future, something that, in the Claimant’s view, was proven by the following facts: a) The player had reached an “excellent footballing level” and had played for the under -15, -16, -17 and -18 team of the national team of country S; b) In order to gain experience, the player had been given the opportunity to accustom to the level of the Claimant’s 1st team and played in the 2008/2009 season in the last 4 games of the season; c) In March 2009, the player had “firstly moved up” to the first team of the Claimant, shortly after turning 18; d) Between March 2009 and May 2009 several negotiations had taken place between the player and the Claimant in order to negotiate the conclusion of an employment contract and the player was offered a contract on more than one occasion. The Claimant indicated that on “25 June 2011 [2009]”, it had offered the last contract to the player, however, the player decided not to accept it. 12. In view of all the above, the Claimant argued that it had shown a genuine intention to retain the services of the player for the upcoming seasons and that it, therefore, is entitled to receive training compensation from the Respondent. 13. Additionally, the Claimant referred to the decision of the CAS in CAS 200X/X/XXX Club R vs Club S and stated that it would be contra sensu to suppose that the Claimant was not interested in keeping the player at the club, i.e. it would be contra sensu to think that the Claimant would not like to secure the services of the player who was an under-18 player for the country S national team and who was considered as one of the most talented players of his age in the club. 14. Finally, the Claimant reiterated its earlier position on the categorisation of both teams and, therefore, maintained its claim for the amount of EUR 220,000. 15. In its duplica, the Respondent stated that there was no evidence whatsoever on file which confirmed that the contract mentioned under point I./11.d) was indeed offered to the player nor was there any evidence submitted that several negotiations took place between the player and the Claimant. In addition, the Respondent asserted that the contract allegedly offered to the player was falsified and only created for the purpose of the current dispute. Moreover, the Respondent stressed that there was no evidence that the contract was offered to the player via registered post. 16. Finally, the Respondent refuted that it had recognised its debt towards the Claimant stating that “the original negotiations between the Respondent and the Claimant were not of the same character as this dispute” and “On the grounds of the Agreement for Settlement of Entitlement, the Respondent just aimed to suggest to the Claimant some kind of fair proposal. The Respondent did not examined in details the regulations and legal rules of FIFA while proposing that Agreement”. 17. Therefore, the Respondent concluded that no training compensation is due to the Claimant. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 30 June 2011. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, edition 2008 (hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2010) the Dispute Resolution Chamber is competent to deal with the matter at stake relating to training compensation between clubs belonging to different associations. 3. Furthermore, the Chamber 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 (editions 2009 and 2010), and considering that the player was registered with the Respondent on 21 July 2009 as an amateur and on 28 May 2010 as a professional as well as that the present claim was lodged on 30 June 2011, the 2009 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the above-mentioned facts of the case as well as the documentation on file. 5. First of all, the Chamber recalled that the player, born on 29 January 1991, was registered with the Claimant as from 18 June 2002 until 14 July 2009 as an amateur. Equally, the Chamber noted that the player was registered with the Respondent on 21 July 2009 as an amateur and on 28 May 2010 as a professional. 6. In continuation, the Chamber took note that the Claimant asserted that it was entitled to receive training compensation from the Respondent in the amount of EUR 220,000, since the player had signed his first professional contract with the Respondent. 7. The Chamber observed as well that, after having been invited to submit its comments in relation to art. 6 par. 3 of Annexe 4 of the Regulations, the Claimant stressed that the Respondent had already recognized that the Claimant was entitled to training compensation. Moreover, the Claimant indicated that it had always seen the player as a great prospect for the future, that it had shown a genuine intention to secure the player’s services for the future and that it would be contra sensu to suppose that the Claimant did not want to secure the services of the player. In this context, the Claimant referred to the awards rendered by the CAS in CAS 200X/X/XXX Club P vs Club Q and CAS 200X/X/XXXX Club R vs Club S. 8. Equally, the Chamber took note that, initially, the Respondent only disputed the amount of training compensation payable to the Claimant, but, at a later stage during the proceedings, rejected the Claimant’s claim for training compensation in full, arguing that the Claimant had not offered the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations. 9. In this context, and hereby referring to the rules applicable to training compensation, the Chamber stated that, as established in art. 1 par. 1 of Annexe 4 in combination with art. 2 par. 1 lit. i. 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. 10. Moreover, the Chamber referred, in particular, 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). 11. In view of the above, the Chamber stated that it first had to verify whether art. 6 par. 3 of Annexe 4 of the Regulations applies in the present case as lex specialis, and, in the affirmative, to determine if the Claimant had complied with said provision in order to be entitled to receive training compensation from the Respondent. 12. As far as the applicability of art. 6 par. 3 of Annexe 4 of the Regulations is concerned, the Chamber stated that, as the player moved from country S to country T, i.e. moved from one association to another association inside the territory of the EU, said article is applicable. Therefore, the Chamber concluded that the aforementioned provision applies in the case at hand as lex specialis. 13. In this context, the Chamber recalled 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. 14. At this stage of the considerations, the Chamber found it important to recall that in the decision rendered by the CAS in CAS 200X/X/XXX Club P vs Club P, the Panel considered that “if a club wants to retain the right to training compensation in respect of one of its amateur players, it must “justify” it under Article 6 para. 3 by taking a proactive attitude vis-à-vis that individual player so as to clearly show that the club still counts on him for the future season(s). Accordingly, the training club must either offer the concerned player a professional contract or, short of that, it must show a bona fide and genuine interest in retaining him for the future. In other words, a training club not immediately offering a professional contract to one of its trainees can still justify its entitlement to training compensation if it proves that it desires to keep the player on the club’s roster or in its youth academy, with a view to keeping alive the option of granting him a professional contract at a later stage”. 15. With due consideration to the above, the DRC pointed out that, thus, it had to examine whether the Claimant had complied with art. 6 par. 3 of Annexe 4 of the Regulations, and, in this regard, examined all the documentation provided in the present matter as well as the arguments raised by both the Claimant and the Respondent. 16. First of all, the Chamber observed that the Claimant argued that it had always considered the player as a great prospect for the future. In order to prove the aforesaid, the Claimant indicated that it had, on more than one occasion, offered a contract to the player, however, the player had decided not to accept such contract offers. Taking into account the aforementioned, the Chamber came, after a thorough examination of the documentation on file and in consideration of the particular circumstances surrounding the present matter, to the conclusion that it was not established to the satisfaction of the Chamber that the Claimant had in fact offered the player a contract. In this context, the Chamber stressed that the only document submitted for the consideration of the Chamber with regard to the offer of a new contract was a copy of one of the alleged employment contracts offered, i.e. no evidence whatsoever was made available to the Chamber which would indicate that the player had indeed received said contract offers. 17. As a consequence, whilst bearing in mind art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Chamber concluded that, in the absence of any credible evidence to the contrary and taking into account the particularities of this case, the Claimant had not unequivocally proven that it had indeed offered the player a contract in accordance with art. 6 par. 3 of Annexe 4 of the Regulations. 18. Having established the above, the Chamber continued and analysed the statements of the Claimant in relation to the genuine interest it had allegedly shown to further retain the services of the player and its statement that it had always considered the player as a great prospect for the future. The Chamber understood that the Claimant asserted that, based on these statements, it could justify that it was anyway entitled to training compensation in accordance with art. 6 par. 3 sent. 1 in fine of Annexe 4 of the Regulations, which is, according to the well-established jurisprudence of the Chamber, limited to very exceptional circumstances. 19. In the framework of analyzing as to whether or not the Claimant could justify that it is entitled to training compensation, the Chamber noted that the Claimant indicated that the player had played for the u-15, u-16, u-17 and u-18 national teams of country S, that the player had been given the opportunity to accustom to the level of the 1st team and that the player played in the last 4 games of the 2008/2009 season. Furthermore, the Claimant indicated that, between March 2009 and May 2009, several negotiations took place between the player and the club. 20. As to the negotiations that allegedly took place between March 2009 and May 2009, the Chamber noted that no documentary evidence had been provided by the Claimant which corroborated that indeed such negotiations had been taking place. The Chamber referred once more to art. 12 par. 3 of the Procedural Rules and considered that the statements in relation to the alleged negotiations could, in the absence of any convincing documentary evidence, not be considered as proof to unambiguously establish that the Claimant had shown a bona fide and genuine interest in retaining the player for the future. 21. Turning its attention to the statements in relation to the player’s participation in the first team of the Claimant and the national youth teams of country S, the Chamber recognized that this indeed may indicate that the player was considered as a talent by the Claimant, however, it does not, as such, prove that the Claimant had a bona fide and genuine interest in retaining the player for the future, i.e. it does not prove that the Claimant had a pro-active stance towards the player. In this context and in connection with the Claimant’s argument that it would be “contra sensu” to suppose that the Claimant did not want to secure the services of the player, it seems to the Chamber that the Claimant is of the opinion that the mere and sole fact that a player is a talented player would release a club of its obligation to offer such player a contract, or alternatively, would release a club of showing its bona fide and genuine interest in retaining the player’s services for the future. The Chamber concurred that such interpretation is manifestly incorrect as it is clearly incompatible with the ratio behind art. 6 par. 3 of Annexe 4 of the Regulations. 22. In light of the foregoing, the Chamber concluded that the Claimant had not been able to justify that it was entitled to training compensation in accordance with art. 6 par. 3 sent. 1 in fine of Annexe 4 of the Regulations, and that, thus, the Claimant is not entitled to receive training compensation from the Respondent. 23. For the sake of completeness and as to the argument of the Claimant that the Respondent had already recognized that training compensation was due to the Claimant, the DRC emphasized that, inside the territory of the EU/EEA, the general rule is that an employment contract has to be offered to the player. The fact that the Respondent had recognized at a certain stage that the Claimant was entitled to training compensation does, in the Chamber’s unanimous opinion, not annul the application of this fundamental principle contained in art. 6 of Annexe 4 of the Regulations. 24. Finally, in view of the above considerations, the members of the Chamber did not deem it necessary to enter into the substance of the other arguments raised by the parties to the present dispute, since the prerequisites in order for the Claimant to be entitled to training compensation were not complied with. 25. In view of all the above, the Chamber decided to reject the claim of the Claimant. 26. Lastly, the Chamber 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 and the solidarity mechanism costs in the maximum amount of currency of country U 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings. 27. In this respect, the Chamber reiterated that the claim of the Claimant is rejected. Therefore, the Claimant has to bear the costs of the current proceedings in front of FIFA. 28. 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. 29. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 220,000 related to the claim of the Claimant. Therefore, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to currency of country U 25,000 (cf. table in Annexe A of the Procedural Rules). 30. Considering that the case at hand allowed to be dealt with following a reasonable procedure, that the present case showed particular factual difficulty as well as specific legal complexity, the Chamber determined the final amount of costs of the current proceedings to the amount of currency of country U 15,000. 31. In view of all of the above, the Chamber concluded that the amount of currency of country U 15,000 has to be paid by the Claimant to cover the costs of the present proceedings, currency of country U 5,000 of which have already been paid as advance of costs. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club N, is rejected. 2. The final amount of costs of the proceedings in the amount of currency of country U 15,000 is to be paid by the Claimant to FIFA, currency of country U 5,000 of which have already been paid as advance of costs. Consequently, the amount of currency of country U 10,000 is to be paid by the Claimant within 30 days of notification of the present decision, to FIFA to the following bank account with reference to case no. rov XX-XXXXX: Note relating to the motivated decision (legal remedy): According to art. 63 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 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Enclosed: CAS directives