ISLJ 2008-1-2_Def - TMC Asser Instituut

all club, the player is an active amateur and plays in the A-, B-, C- orD-youth of the relevant professional football club.In addition the professional football club claiming pool compensationfor a player must have notified the relevant player in writing byno later than 1 May of the calendar year that he may again participatein the club’s youth training. 14 A copy of this written notification alsoneeds to be submitted to the KNVB no later than 7 May of the samecalendar year.Pool compensations are separate from training compensations thatare due on the basis of the Regulations on General TransferProvisions, Training Compensation and Solidarity Contribution. Thepool regulations in fact state that, if a club has obtained pool compensationfor a player, this club no longer has any right to training compensationfor that player. 15 Any possible entitlement to training compensationby amateur clubs on the basis of the Regulations onGeneral Transfer Provisions, Training Compensation and SolidarityContribution is not affected by this. 16 It will be discussed later thatcompensation based on the pool regulations is higher than compensationbased on the Regulations on General Transfer Provisions,Training Compensation and Solidarity Contribution.3.2 InternationalThe FIFA Regulations and decisions by the DRC cover training compensationin international cases. Training compensation in internationalsituations will also be considered below. First, the focus will beon instances where training compensation is due to clubs which havecontributed to a player’s training. Here the FIFA Regulations of 2001and 2005 are unequivocal. Training compensation is payable when aplayer signs his first contract as a professional before the end of theseason of his 23 rd birthday. Compensation must also be paid for eachinternational transfer the player makes before the end of the season ofhis 23 rd birthday. This applies both to a transfer while there is anongoing contract, and to a transfer on conclusion of the player’semployment contract. 17A player’s former club has no right to any training compensation ifthat club has terminated the contract with the player without justcause. 18 Nor is there any entitlement to compensation if the playermoves to a club from category 4 (amateur level). 19 The rules of 2001provide an exception to this if the player acquires non-amateur statusagain within three years. 20 The rules of 2005 stipulate the term as 30months. 21The 2005 rules also provide that the player’s new club must havepaid the training compensation to all clubs which have a right to it,within 30 days following registration with the new football association.22 This rule also stipulates that if a link between the player andany of the clubs that trained him cannot be established, or if thoseclubs do not make themselves known within 18 months of the player’sfirst registration as a professional, the training compensation shallbe paid to the association(s) of the country (or countries) where theprofessional was trained. 23 The 2001 rules set the term at two years. 24The compensation must be used by the football association for developingyouth football.3.3 The first contract as a professionalTraining compensation must therefore be paid if a player signs a contractas a professional before the end of the season of his 23 rd birthday.But when is there in fact such an employment contract? Whereis the line between an amateur and a professional?Article 2 of the FIFA rules of 2001 and 2005 stipulates that a professionalhas a written contract with a club. He will in fact be paidmore than the amount of the actual expenditure for his football activities.The rules of 2001 provide that travel and hotel expenses incurredthrough involvement in a match and the costs of a player’s equipment,insurance and training may be reimbursed without jeopardisinga player’s amateur status.The DRC had to reach a decision in a case where a ‘scholarshipagreement’ was involved. According to this agreement, the playerreceived around EUR 500 a month in the first season, EUR 560 in thesecond and EUR 710 in the third. Travel expenses were also reimbursed.The DRC considered that the player received remunerationwhich exceeded the expenses incurred under article 2. It was also consideredthat the criteria of this article were conclusive in a case whereit had to be determined whether the status was amateur or professional.The legal nature or naming of the agreement is not important here.This is confirmed by the Court of Arbitration for Sport. 25 In thisinstance, the player with the ‘scholarship agreement’ was regarded asa professional. Because he had signed his contract as a professional,training compensation had to be paid. 26In another case, a player with a ‘scholarship agreement’ was indeedregarded as an amateur. In terms of this agreement, housing expenseswere paid, as well as travel and living expenses incurred by the playerarising from his training. The DRC considered that the nature of acontract between a player and a club is established by the relevantfootball association. In this instance, the player was registered as anamateur. It was also considered that the autonomy of the footballassociation should be respected, so that the status of registration withthe association is decisive should it have to be determined whether theconditions for receiving training compensation have been met. In thisinstance the status was thus amateur. This meant that no first contractas a professional had been created, so that no training compensationwas due. 27The next case deals with an ‘amateur sport agreement’. Accordingto this agreement, transportation, apartment and nutrition expenseswere reimbursed. The player also received a monthly amount of HUF57,000. The minimum wage in Hungary is HUF 62,500. The DRCconsidered that a player should not be regarded as amateur if he has awritten contract on the basis of which he receives remuneration whichexceeds the actual expenses incurred as a result of his football activities.It was concluded that just such a situation existed here. There wasthus a contract as a professional, so that training compensation had tobe paid. 28Another case involved a contract without a monthly salary, butwith bonuses which would be paid per match played. However, therelevant player never played a match in the club’s A-team. The DRCconcluded that, in formal terms, the player was a professional, butthat de facto he was an amateur because he had never received remuneration.The player had therefore not received any remunerationwhich was greater than the actual expenses incurred because of hisfootball activities. In this case no training compensation was thusdue. 29The next case involves a player with a contract as a professional.The player was also registered as a professional with the Greek footballassociation. In fact, he never played a match for a non-amateurteam. The DRC decided here that the player should be regarded as aprofessional. Because an employment contract had been signed, theclaimant club had the right to training compensation. 30Another case dealt with the status of an ‘aspirant contract’. Accordingto this contract, living and educational costs would be reimbursed. A cash14 Art. 2 Training Pool Regulations andart. 48 Regulations on Paid Football[Reglement Betaald Voetbal]15 Art. 2 (2) Training Pool Regulations16 Art. 2 (4) Training Pool Regulations17 Art. 20 of the Regulations for the Statusand Transfer of Players, edition 2005and art. 5 (2) of the RegulationsGoverning the Application of theRegulations for the Status and Transferof Players, edition 200118 Art. 2 (i) Annex 4 of the Regulations forthe Status and Transfer of Players, edition2005 and art. 5 (3) (b) of theRegulations Governing the Applicationof the Regulations for the Status andTransfer of Players, edition 200119 Art. 2 (ii) Annex 4 of the Regulations forthe Status and Transfer of Players, edition2005 and art. 5 (3) (a) of theRegulations Governing the Applicationof the Regulations for the Status andTransfer of Players, edition 200120 Art. 5 (3) (a) Regulations Governing theApplication of the Regulations for theStatus and Transfer of Players, edition2001 and DRC 65362 of 1 June 200521 Art 3 (2) Regulations for the Status andTransfer of Players, edition 200522 Art. 3 (2) Annex 4 of the Regulations forthe Status and Transfer of Players, edition200523 Art. 3 (3) Annex 4 of the Regulations forthe Status and Transfer of Players, edition200524 Art. 19 of the Regulations for the Statusand Transfer of Players, edition 200125 TAS 2005/A/38326 DRC 86137 of 17 August 200627 DRC 75142 of 28 July 200528 DRC 26286A of 21 February 2006 andDRC 26286B of 21 February 200629 DRC 26135 of 21 February 200630 DRC 115324 of 2 November 200530 2008/1-2ARTICLES