Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 26 November 2015, in the following composition: Geoff Thompson (England), Chairman John Bramhall (England), member Leonardo Grosso (Italy), member Philippe Diallo (France), member Mohamed Mecherara (Algeria), 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 Association of country B, the Player E (hereinafter: the player), born on 12 November 1993, was registered with the club from country B, Club A (hereinafter: the Claimant), as from 1 January 2008 until 28 August 2012 as an amateur. 2. Furthermore, the aforementioned player passport indicated that between to , there was no records found for said period of time. 3. The sporting season in country B, as from 2007, runs as from 1 July to 30 June of the following year. 4. Pursuant to the information contained in the Transfer Matching System (TMS), the player was registered with the club from country D, Club C (hereinafter: the Respondent), on 28 August 2012 as a professional. 5. Furthermore, TMS indicates that the Respondent belonged to category III (indicative amount of EUR 30,000 per year) during the season when the player was registered with said club. 6. On 24 July 2014 and only completed on 25 June 2015, the Claimant contacted FIFA asking for training compensation from the Respondent based on the first registration of the player as a professional with the Respondent. In this respect, the Claimant is claiming training compensation in the amount of EUR 117,424, plus 5% interest p.a. 7. In its reply to the claim, the Respondent alleged that, at the time it hired the player, it was told that the player was a free agent and was not aware of the player having played for the Claimant before. In particular, the Respondent pointed out that TMS does not give any indication in this respect. The Respondent also provided a document issued by the alleged FIFA licensed agents company of the player, dated 23 August 2012 and which states the following: To whom it may concern This is to inform you that Player E is a free agent after amicably terminating his contract with Club F of country G. I hereby indemnify Club C of any dispute that might arise in future in respect of the training compensation on Player E. Any issue should be directed to us, his FIFA licensed agents (Company H). (Club A, country B / Club C, country D) Page 2 of 10

3 8. Moreover, the Respondent sustained that, in any event, prior to his transfer to the said club from country D, the player had a training contract with the club from country G, Club F. In this regard, the Respondent provided a document named Agreement of Breach of Sporting Training Contract in Common Accordance, dated 14 May 2011, signed by Club F and the player, by means of which the relevant parties agreed to rescind by mutual agreement the sporting training contract with effects from 1 July 2011 until 30 June 2012 and to retroact the effects of this agreement as from 29 February Clause 2 of said document states that Club F is to pay the player a compensation amounting to EUR 1,500, which corresponds to his salary for December 2011, January and February Pursuant to clause 3 of said document, this agreement does not affect the right of Club F to Training Compensation ( ). 11. The Respondent further argues that the Claimant s claim is time-barred since it was notified to it in July 2015 only. 12. Finally, the Respondent questioned whether the player had been offered a new contract by his previous clubs. 13. In view of the foregoing, the Respondent deemed that the Claimant is not entitled to training compensation from itself. 14. In its replica, the Claimant refuted all of the Respondent s allegations. In particular, the Claimant recalled that for a first registration as a professional, the player is deemed a free agent, but that this is not a ground to refuse to pay training compensation. 15. Furthermore, the Claimant refers to the correspondence of the Football Association of country B dated 16 June 2015 by means of which said association confirmed the dates of registration of the player with the Claimant. 16. As to the alleged professional contract signed by the player and Club F, the Claimant underlined that the document provided by the Respondent is in fact a draft of a potential contract as it is signed by only one party. The Claimant further emphasised that said document stipulates training contract and not professional contract. In any event, the Claimant provided a correspondence (Club A, country B / Club C, country D) Page 3 of 10

4 dated 4 June 2014 from the Football Association of country G, addressed to the legal representative of the Claimant, by means of which the relevant association confirmed that the player was never registered with [Club F] as amateur or professional and also that he was never registered within [the Football Association of country G]. 17. Regarding the allegation of prescription, the Claimant recalled that it lodged the claim before FIFA in July 2014, which is less than two years after the event given rise to the dispute, which is, in casu, the first registration as a professional in August Finally, the Claimant recalled that art. 6 of Annex 4 of the Regulations on the Status and Transfer of Players is not applicable to non-eu countries, including country B. 19. In its final comments, the Respondent reiterated its position. In particular, it maintained that it relied on the only information available in TMS, according to which it appears that the player transferred from country B to the Respondent with the caption no previous club, country B. The Respondent also underlines that the Claimant did not provide an undoubtable evidence, such as a contract, which could confirm that it is entitled to training compensation. 20. The Respondent also provided the aforementioned document named Agreement of Breach of Sporting Training Contract in Common Accordance in the language of country G and deemed being the contract allegedly signed between the player and Club F. Based on the said document, the Respondent further explained that the player concluded a contract with the relevant club from country G, valid as from 1 July 2011 until 30 June 2012, which was terminated on 14 March The Respondent also alleged after we [it] talked to the player, we [it] also understand that he had been in Club F once before 2011, actually in In this respect, the Respondent referred to a visa issued for the player for the period from 18 January 2010 until 17 May Upon FIFA s request, the Football Association of country D provided the updated player passport which indicates the following information: from 2005 to 2008, there is no record of the player; from 2008 to 2012, the player was registered with the Claimant as an amateur; (Club A, country B / Club C, country D) Page 4 of 10

5 on 3 September 2012, the player was registered with the Respondent as a professional; on 3 April 2015, the player was registered with the club from country D, Club I, as a professional. 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 24 July Consequently, the 2012 edition of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 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 2015), 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 edition of the Regulations on the Status and Transfer of Players 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 2015), and considering that the player was registered with the Respondent on 28 August 2012, the 2010 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. However, the Chamber reverted to the argument raised by the Respondent, according to which the claim of the Claimant would be time-barred since the Respondent was only notified about the relevant claim in July In this regard, the members of the Chamber referred to art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to the said Regulations if more than two years have elapsed since the event giving rise to the dispute. The present claim having been lodged in front of the DRC on 24 July 2014, and the registration of the player with the Respondent having occurred on 28 August 2012, the (Club A, country B / Club C, country D) Page 5 of 10

6 members of the Chamber had to reject the respective argument brought up by the Respondent and thus confirmed that the present petition was lodged in front of the DRC within said two-year period of time. In this regard, the Chamber wished to recall that, according to ar.t 3 par. 1 and 2 of Annex 4 of the Regulations, the deadline for the payment of training compensation is 30 days following the registration of the professional with the new association. Hence, the event giving rise to the dispute is the non-payment of training compensation 30 days after 28 August The matter is, thus, not timebarred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations. 5. The competence of the DRC 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 facts of the case as well as the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 6. In continuation, the DRC took note that the Claimant maintained that it is entitled to receive training compensation from the Respondent in the amount of EUR 117,242, plus interest, indicating that the transfer of the player to the Respondent before the end of the season of his 23 rd birthday was the first registration of the player as a professional. 7. In continuation, the DRC noted that the Respondent rebutted the claim of the Claimant, mainly stating that there was no information as to the player s prior registration with the Claimant in TMS and also that the player was first registered as a professional with Club F prior to being transferred to the Respondent. 8. After having carefully examined the parties positions, the Chamber held that it first of all had to establish whether the player held the amateur status or the professional status at the time he was registered with the Respondent. To this end, the Chamber referred to art. 2 par. 2 of the Regulations, which stipulates that A professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs. 9. In this context, the Chamber examined the document referred to as the Agreement of Breach of Sporting Training Contract in Common Accordance that was provided by the Respondent, in its original version (Club A, country B / Club C, country D) Page 6 of 10

7 from country G together with its English translation, as the alleged employment contract concluded by the player and Club F. In this regard, the members of the Chamber duly noted that, according to said document, the relevant parties had agreed to rescind by mutual agreement the sporting training contract ( ). 10. Taking into consideration the aforementioned, the Chamber unanimously concluded that said document was not the alleged written contract concluded between the player and Club F for the period from 1 July 2011 until 30 June 2012, as asserted by the Respondent. 11. Further to the above, the Chamber pointed out that the Football Association of country G had confirmed that the player was never registered with Club F as a professional or an amateur. 12. The DRC thereafter referred to the player passport provided by the Football Association of country D, which clearly indicated that prior to the registration with the Respondent, the player only held the amateur status and became professional as from his registration with the Respondent. 13. Additionally, the members of the Chamber highlighted that, in the information contained in the TMS, the transfer instruction from Club F to the Respondent was cancelled on 27 August 2014 due to the fact that the player was not under contract with Club F. The DRC also considered that the International Transfer Certificate (ITC) was received by the Football Association of country D from the Football Association of country B. 14. On account of the aforementioned elements, and in the absence of any conclusive evidence from the Respondent to support its allegations, the Chamber concluded that the player had always been registered as an amateur prior to his registration with the Respondent, with which he was registered as a professional for the first time. 15. Having established the above, the Chamber referred to the rules applicable to training compensation. In this context, the Chamber started by stating that, as established in art. 20 of the Regulations as well as in art. 1 par. 1 of Annexe 4 in combination with art. 2 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 23 rd birthday. In this instance, art. 3 par. 1 sent. 1 and 2 of Annexe 4 of the Regulations sets forth that training compensation will be owed to every club (Club A, country B / Club C, country D) Page 7 of 10

8 with which the player has previously been registered and that has contributed to his training as of his 12 th birthday. 16. In continuation, the Chamber alluded to art. 5 par. 1 and par. 2 of Annexe 4 of the Regulations, which stipulated that as a general rule, to calculate the training compensation, it is necessary to take the costs that would have been incurred by the new club if it had trained the player itself. 17. In this context, the Chamber recalled that the player was born on 12 November 1993 and was registered with the Claimant as from 1 January 2008 until 28 August 2012 as an amateur. 18. Therefore, the DRC considered that the Claimant was entitled to receive training compensation for the period as from 1 January 2008 until 28 August 2012, i.e. for a period of 56 months between the season of his 14 th and 19 th birthday. 19. Moreover, the DRC took into account that the Respondent belonged to category III (indicative amount of EUR 30,000 per year). 20. In view of all of the above, the DRC decided that the Respondent was liable to pay the amount of EUR 110,000 to the Claimant as training compensation in relation to the first registration of the player as a professional with the Respondent. 21. In addition, and considering the Claimant s request for interest as well as its well-established jurisprudence, the DRC decided that the Claimant was entitled to receive interest as the rate of 5% p.a. as of 25 June 2015 until the date of effective payment. 22. In continuation, the Dispute Resolution Chamber established that any further claims lodged by the Claimant are rejected. 23. 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 proceedings before the DRC relating to disputes regarding training compensation, costs in the maximum amount of CHF 25,000 are levied. It is further stipulated 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. (Club A, country B / Club C, country D) Page 8 of 10

9 24. In respect of the above, the Chamber held that the amount to be taken into consideration in the present proceedings is EUR 117,424 related to the claim of the Claimant. Consequently, the Chamber concluded that the maximum amount of costs of the proceedings corresponded to CHF 15,000 (cf. table in Annex A). 25. As a result, and taking into account the particularities of the present matter, the complexity of the case as well as the degree of success, the Chamber determined the costs of the current proceedings to the amount of CHF 8,000 which shall be borne by the Respondent. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant is partially accepted. 2. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 110,000 plus 5% interest p.a. as of 25 June 2015 until the date of effective payment. 3. In the event that the aforementioned sum plus interest is not paid 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 8,000 are to be paid by the Respondent within 30 days as from the date of the notification of the present decision, to FIFA 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 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 Dispute Resolution Chamber of every payment received. (Club A, country B / Club C, country D) Page 9 of 10

10 ***** 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 (Club A, country B / Club C, country D) Page 10 of 10