F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – indennità di formazione – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – training compensation – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 20 July 2012 in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Alejandro Marón (Argentina), member on a matter between the club, Club A, from country M as Claimant and the club, Club M, from country P as Respondent regarding a training compensation dispute related to the transfer of the player B

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - indennità di formazione – ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - training compensation – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 20 July 2012 in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Alejandro Marón (Argentina), member on a matter between the club, Club A, from country M as Claimant and the club, Club M, from country P as Respondent regarding a training compensation dispute related to the transfer of the player B I. Facts of the case 1. According to the player’s passport issued by the country M Football Federation, the country M player, Player B, born in June 1987, was registered in country M, as an amateur, as follows: - from 24 September 2000 to 10 September 2008 with Club A (hereinafter: the Claimant) ; - from 11 September 2008 to 9 February 2009 on loan with Club S 2. According to the country M Football Federation, the relevant sportive seasons ran for the season 2000/01 until 2003/04 as from 1 September to 30 August of the following year, and for the seasons 2004/05 until 2008/09 as from 1 July to 30 June of the following year. 3. On 25 February 2009, the player was registered with the Club M, from country P (hereinafter: the Respondent), as a professional. 4. The country P Football Federation confirmed that the Respondent belonged to the category II (indicative amount of EUR 60,000 within UEFA) during the season when the player was registered with it. 5. On 2 July 2009, the Claimant contacted FIFA claiming for the payment of the training compensation in connection with the first professional contract of the player with the country P club, the Respondent and requests the payment of EUR 390,000 plus 5% interest as of 26 March 2009, as well as the reimbursement of advance of costs paid in the amount of EUR 3,310 plus 5% interests per annum as of the date of payment of the advance of costs, i.e. as of 18 November 2009. 6. In its reply, the Respondent alleges that it was not the first time that the player signed a professional contract since the player had previously been transferred on loan from the Claimant to Club S, from country M, a first division club, on 11 September 2008. Also, the information provided in the player’s passport is wrong, since the player has played and was trained in several other clubs in country B, country U, as well as country M before joining the Respondent. 7. The Respondent added that it should be considered as a fourth category club because the player was allegedly playing with its second team, which competes in the country P’s 3rd division. There are indeed two different clubs under only one apparent “skin”. 8. In this respect, the Respondent provided a fax received from the country P League of Professional Football on 29 September 2009, which states that “[…] in that same sport season the said player did not participate in official matches at the service of The Respondent Club M - in competitions organized under the country P League of Professional Football”. 9. In addition, the Respondent submitted a letter received from the country P Football Federation dated 6 October 2009, stating that: “[…] it further informs that, during the previously mentioned registry period, the player B only participated in the following official matches for The Respondent Club M “B” […]”. 10. The Respondent further provided a statement of Club S, dated 28 December 2008, which confirms that the player received a monthly salary of currency of country M 3,000 at the time he was playing with it. 11. The Respondent also submitted a termination agreement to the employment contract, dated 17 April 2009, signed by the Respondent, the player and the agent, according to which: “Clause Three 1. The Player agrees to pay Club M the amount of one hundred and twenty thousand Euros (€120.000,00) if by June 30, 2011, he represents a club of the country U. […] Clause Four […] 3. The PLAYER and the AGENT assume, jointly and severally, as primary payers, the obligation to pay to Club M any and all amounts that may be required of Club M because of the player’s transfer to Club M, especially regarding the possible training compensation to be claimed by the player’s previous clubs. 4. The PLAYER and the AGENT also state that they jointly undertake to solve and settle the claim referred to in paragraph 1 of this clause, and send to Club M, within 15 days, a statement signed by Club A declaring that it has nothing more to receive or claim from Club M, in any capacity whatsoever.” 12. In its replica, the Claimant explained that the player was transferred to the Club S, from country M as an amateur since he never signed a contract with the Claimant nor with Club S and, therefore his employment contract with the country P Club is the first professional contract signed by the player. 13. Furthermore, the Claimant argued that as to the argument of the Respondent that the player was playing for its second team which is to be regarded as a category IV club, the Respondent could have registered him as an amateur instead of offering him a professional contract if the Respondent was convinced that the player was not good enough to join its first team. 14. The Claimant also added that despite the termination agreement provided by the Respondent, the player and his agent are not supposed to take part in the present matter and that, consequently it is not relevant. 15. Furthermore, the termination agreement shows that the Respondent was fully aware of its obligation to pay training compensation and that the only goal was to make money out of the player. 16. Finally, the Respondent maintained its previous position and insisted that it was not the first professional contract of the player and referred to the official Commentary of art. 10 par. 1 of the Regulations on the Status and the Transfer of Players, according to which “Only professionals can be loaned. The loan of an amateur is not possible, since the club loaning the player must be in possession of a valid employment contract at the moment the player leaves on loan”. 17. The Respondent also added that even though they are not in a position to submit a copy of the player’s contract with Club S, because no contract was presented by the latter, they insist on the fact that the player, during his loan, was paid currency of country M 3,000, which appears to be “more than twice the minimum wage in country M”. Therefore, due to the fact that the player was receiving a salary during his loan, his transfer to the Respondent should be considered as a “subsequent transfer of a professional”. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (DRC) 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 2 July 2009. 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. 18 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 and 2 and art. 22 lit. (d) of the Regulations on the Status and Transfer of Players (edition 2009 and 2010), the Dispute Resolution Chamber is competent to decide on the present litigation with an international dimension concerning the training compensation claimed by the country M club for the training and education of the player, Player B. 3. Furthermore, and taking into consideration that the player was registered with the Respondent on 25 February 2009, 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 edition 2008 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations), and considering that the present claim was lodged on 2 July 2009, the 2008 edition of the regulations is applicable to the matter at hand as to the substance. 4. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. The members of the DRC started by acknowledging the above-mentioned facts of the case as well as the documentation contained in the file. 5. In this respect, the DRC firstly recalled that the player, born in June 1987, was registered with the Claimant as from 24 September 2000 until 10 September 2008, as an amateur. 6. Equally, the DRC duly noted that the Claimant is requesting training compensation for the training and education of the player concerned from the Respondent in the amount of EUR 390,000 plus 5% interest as of 26 March 2009, as well as the reimbursement of advance of costs paid in the amount of EUR 3,310 plus 5% interests per annum as of the date of payment of the advance of costs, i.e. as of 18 November 2009. 7. On the other hand, the DRC took due note that the Respondent contested its obligation to pay any training compensation to the Claimant arguing that the player was already registered as a professional when he was registered for the Club S, from country M and provided a statement, signed by the country M club concerned and indicating that the player was receiving a monthly amount of currency of country M 3,000 while rendering his services to this club. Moreover, the Respondent added that it should be regarded as a category IV club, since the player was playing with its second team, which competes in the country P 3rd division. There are indeed two different clubs, but appear only under one apparent “skin”. 8. Furthermore, the Chamber noted that the Respondent submitted a termination agreement dated 17 April 2009 signed by it, the player and the agent, according to which “Clause Four […] 3. The PLAYER and the AGENT assume, jointly and severally, as primary payers, the obligation to pay to Club M any and all amounts that may be required of Club M because of the player’s transfer to Club M, especially regarding the possible training compensation to be claimed by the player’s previous clubs.” 9. In view of the above, the DRC stated that, as established in art. 20 of the Regulations in combination with art. 1 par. 1 of Annexe 4 and 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 the player concerned is registered for the first time as a professional, or when a professional is transferred between two clubs of two different associations, before the end of the season of the player’s 23rd birthday. 10. In this regard, the Chamber emphasized that, in strict application of the rules pertaining to training compensation, it is thus the new club of the player who is responsible for the payment of training compensation to the previous clubs of the player that have in fact trained the player. The DRC found it vital to underline that the obligation of the new club towards the previous club(s) in relation to the payment of training compensation cannot be transferred to a player by means of a private agreement. In other words, the DRC considered that the agreement that the Respondent had concluded with the player and the agent in the present matter could not set aside the relevant provisions regarding training compensation contained in the Regulations. 11. Furthermore, the DRC duly noted that the Respondent contests the Claimant’s entitlement to receive any training compensation arguing that the player had been loaned to the Club S, from country M, and that such loan would need to be classified as a subsequent transfer in the sense of the Regulations, reason for which the transfer of the player to the Respondent would allegedly not constitute a valid basis for the Claimant to claim training compensation from the Respondent. 12. In this respect, the Chamber, first of all, considered that it is uncontested by the parties involved in the present affair that the player was registered for a third club, the Club S, from country M, from 11 September 2008 until 9 February 2009 on loan, before being transferred to the Respondent. 13. In view of this, according to art. 10 par. 1 of the Regulations, professionals may be loaned to another club on the basis of a written agreement between the professional and the clubs concerned. Moreover, the last sentence of said provision stipulates that any such loan is subject to the same rules as apply to the transfer of players, including the provisions on training compensation and the solidarity mechanism. 14. Following the above, the Chamber stressed that one of the aims of the last sentence of art. 10 par. 1 of the Regulations is to ensure that training clubs which register a player on a loan basis also benefit from the solidarity mechanism and training compensation, provided that the relevant prerequisites in the pertinent provisions of the Regulations are fulfilled. This approach is also in line with the Chamber’s well-established jurisprudence that all clubs which have in actual fact contributed to the training and education of a player as from the age of 12 are, in principle, entitled to training compensation for the timeframe that the player was effectively trained by them. 15. In other words, the Chamber emphasised that the nature of the player’s registration with a club aiming training compensation, i.e. on a definite or on a temporary basis, is in fact irrelevant with respect to the question as to whether such club would be entitled to receive training compensation for the period of time that the player was effectively trained by that club. 16. In this respect and for the sake of good order, the Chamber deemed it essential to emphasise that, as to the liability to pay training compensation, the analogy established in art. 10 par. 1 of the Regulations could not be extended to the case in which players were loaned to other clubs and thus are not being definitively transferred to a new club. In other words, the transfer of a player from the club of origin to the club that accepts the player on loan as well as the return of the player from the club that accepted him on loan to the club of origin do not constitute a subsequent transfer in the sense of art. 3 par. 1 sent. 3 of Annexe 4 of the Regulations. The Chamber was eager to point out that it could not have been the intention of the legislator of the relevant regulatory provision (art. 10 par. 1 of the Regulations) to trigger the consequences of art. 3 par.1 of Annexe 4 of the Regulations on the occasion of a transfer on a loan basis and, thus, potentially depriving the loan of its essential flexibility and function of providing young players the opportunity to gain practical experience in another club in order to develop in a positive way, personally and, eventually, also for the benefit of the player’s new club. 17. Following the above, the Chamber pointed out that the obligation to pay training compensation thus arises in case a player is definitively transferred from one club to another club belonging to a different association, but not when he is temporarily transferred to another club while still being contractually bound to his club of origin (yet, with the effects of the relevant contract being temporarily suspended), such as a loan. Hence, the relevant entitlement can only be claimed towards a new club that acquires the services of a player on a definitive and permanent basis subject to the fulfilment of the prerequisites established in art. 20 and Annexe 4 of the Regulations. 18. Furthermore, the Chamber noted that the Respondent argued that the player has been registered as a professional before being transferred with it in country B, country U and country M. 19. In this regard, the members of the Chamber recalled 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 members observed that the Respondent had not submitted any documentation which demonstrated that the player was registered as a professional in any of the above-mentioned countries and therefore had to reject such argument. 20. Turning its attention to the Respondent’s final argument to reject the Claimant’s request for training compensation, since the player had been transferred to its second “B” team which is allegedly competing in the country P 3rd division and should therefore be considered, according to the Respondent, as a fourth category club, the Chamber emphasized that various provisions related to the training compensation always refer to the term “club”, and clearly establish that it is the reasonability of the new club to pay the training compensation which is calculated based on the categories into which all associations divide their clubs in accordance with the clubs’ financial investments. Equally, the Chamber recalled that the training costs are established on a confederation basis for each category of clubs (emphasis added). 21. Congruously, the Chamber reiterated that the clubs have to be allocated into four categories and not the teams of the clubs. Therefore, the Chamber concluded that the relevant training compensation due to the Claimant has to be calculated taking into account the category of the country P club, i.e. category 2. 22. In view of the above, the members of the Chamber decided that the Claimant is entitled to receive training compensation from the Respondent for the transfer of the player. 23. Subsequently and considering art. 3 par. 1 of the 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 Chamber concluded that the effective period of time to be considered at the matter at stake corresponds to the period between 24 September 2000 until 10 September 2008, during which the player was effectively trained and educated by the Claimant. 24. Turning its attention to the calculation of training compensation, the Chamber referred to art. 5 par. 1 and 2 of Annexe 4 of the Regulations, which stipulates that as a general rule, it is necessary to take the costs that would have been incurred by the new club if it had trained the player itself and thus it is calculated based on the training costs of the new club multiplied by the number of years of training with the former club. 25. In this respect, the Chamber duly noted that according to all the documents remitted it can be established that the player had been transferred to the country P club in February 2009, which according to the information received by the country P Football Federation belonged to category II (indicative amount EUR 60,000 per year). 26. Moreover, the Chamber referred to art. 3 par. 2 of Annexe 4 of the Regulations according to which the deadline for payment of training compensation is 30 days following the registration of the professional with the new association and emphasized that based on the information provided, the player concerned was registered for the Respondent on 25 February 2009. 27. As a result, the Chamber, taking into consideration all the above as well as art. 5 par. 1 and 2 of Annexe 4 of the Regulations, concluded that the Claimant is entitled to receive the amount of EUR 379,166 plus 5 % interest per year as from 28 March 2009. 28. Lastly, the DRC 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 currency of country H 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 Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. 29. In respect of the above, the Chamber held that the amount to be taken into consideration in the present proceedings is EUR 379,166 related to the claim of the Claimant. Consequently, the DRC concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000 (cf. table in Annexe A). 30. As a result, and taking into account that the Claimant is the successful party in the proceeding, the Chamber concluded that the Respondent has to bear the costs of the current proceedings in front of FIFA. 31. Considering that the case at hand showed a degree of factual difficulty, the DRC determined the costs of the current proceedings to the amount of currency of country H 25,000. 32. In this respect, the Chamber took into account that the Claimant had paid the advance of costs in the amount of currency of country H 4,000 in accordance with art. 17 of the Procedural Rules. 33. In view of all the above, the DRC decided that the Respondent is liable to pay the amount of EUR 379,166 plus 5% interests p.a. as from 28 March 2009 until the date of effective payment, to the Claimant for the training and education of the player as well as the amount of currency of country H 25,000 to cover the cost of the present proceedings. Thereof, the amount of currency of country H 21,000 has to be paid by the Respondent to FIFA and the amount of currency of country H 4,000 to the Claimant. 34. Finally, the Chamber concluded its deliberations by deciding that any further claim of the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club A, is partially accepted. 2. The Respondent, Club M, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 379,166 plus 5% interest per year as from 28 March 2009 until the date of effective payment. 3. Any further claims lodged by the Claimant are rejected. 4. If the aforementioned sum, plus interest, is not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee, for consideration and a formal decision. 5. The final amount of costs of the proceedings, amounting to currency of country H 25,000, are to be paid, within 30 days as from the date of notification of the present decision as follows: 5.1. Currency of country H 21,000 by the Respondent to FIFA to the following bank account with reference to case no. XX-XXXXX: 5.2. Currency of country H 4,000 by the Respondent to the Claimant. 6. The Claimant is directed to inform the Respondent directly and immediately of the account number to which the remittances are to be made in accordance with the above points 2 and 5.2 and to notify the Dispute Resolution Chamber of every payment received. 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 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: Jérôme Valcke Secretary General Encl. CAS directives