F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 12 December 2013, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Todd Durbin (USA), member Theodoros Giannikos (Greece), member on the claim presented by the player Player M, from country A as Claimant against the club, Club I, from country S as Respondent regarding an employment-related dispute arisen between the Claimant and the Respondent

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 12 December 2013, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Eirik Monsen (Norway), member Todd Durbin (USA), member Theodoros Giannikos (Greece), member on the claim presented by the player Player M, from country A as Claimant against the club, Club I, from country S as Respondent regarding an employment-related dispute arisen between the Claimant and the Respondent I. Facts of the case 1. On 27 December 2008, Club I, from country S (hereinafter: the Respondent), and Player M, from country A (hereinafter: the Claimant), signed a document by means of which the Respondent inter alia made an “official offer” to the Claimant (hereinafter: the official offer) valid for 1 day as from 27 December 2008. 2. The official offer established that the Respondent “will be highly grateful to receive your feed back with regard to the possibility of Loan the technical and financial services and right of the [Claimant] currently playing in Club W”. 3. The following financial terms were stipulated in the official offer: “Net an amount of (1.300.000 US dollar) for The [Claimant] to Loan his services for the period starting from 01/01/2009 till 30/06/2010 to be paid as follows”: a. USD 650,000 upon signing the contract and passing the medical exams; b. USD 650,000 to be paid out in 18 monthly salaries as from 1 January 2009. Furthermore, the Respondent will pay to the Claimant “15% of the total amount (1.200.000 US dollars) of transfer player upon sinning the contract”. 4. On 27 November 2009, the Claimant lodged a claim against the Respondent requesting the total amount of USD 1,480,000, plus interest, as set out below: a. USD 650,000 corresponding to the sign-on fee; b. USD 650,000 as damages and compensation for breach of contract; c. USD 180,000 corresponding to his 15% share of the transfer compensation. 5. In this respect, the Claimant alleged that, on 31 December 2008, after having signed the official offer, the Respondent informed him that his visa had been issued by the Ministry of Foreign Affairs after allegedly being approved by the country S Football Federation. Equally, the Claimant was allegedly informed that four single rooms at a hotel had been booked for him and his agents from 5 January 2009 until 6 January 2009. 6. According to the Claimant, on 3 January 2009, the Respondent allegedly withdrew the official offer and told the Claimant not to travel to country S as the Prince of country S objected to the transfer. In this respect, the Respondent allegedly explained that the country S Prince did not approve the transfer as the Claimant was also negotiating with another country S club, E, at the same time. Therefore, the Respondent informed the Claimant that it would resolve the contract. 7. In this respect, the Claimant pointed out that the official offer contained all the essential components of a contract and that, by signing it, it came into force and effect on 27 December 2008. As to the Respondent´s reason to unilaterally terminate the contract, the Claimant explained that it is common to negotiate simultaneously with various clubs before deciding to sign with one club. In this respect, the Claimant reiterated that the entire process was conducted in accordance with the FIFA Regulations and, hence, the Respondent had no reason to terminate the contract unilaterally. 8. Finally, the Claimant indicated that the fact that the country S Football Federation did not register him, does not have an effect on the beginning of a labour relationship with the Respondent. 9. In its reaction to the claim, the Respondent rejected the claim and explained that, on 25 December 2008, it sent a letter to the Claimant’s agents in order to get a feedback with regard to a possible loan of the Claimant from Club Q. In this regard, the Respondent underlined that no contractual provisions were mentioned at the time and that the parties had only discussed possible arrangements on the phone. 10. According to the Respondent, on the same day, it received an e-mail from the Claimant, stating that the Claimant and his current Club Q, from country F, would accept the offer, but that the acceptance letter would be provided in country S. 11. On 27 December 2008, in order to clarify the possible terms of an agreement, the Respondent sent an official offer to the Claimant´s agent. In this respect, the Respondent confirmed having received a copy of the official offer signed by the Claimant on the same day. In this respect, the Respondent explained that there were allegedly several telephone conversations between the Respondent and the Claimant’s agent in the subsequent days. In the end, the Respondent sent an employment contract proposal to the Claimant´s agent on 31 December 2008. In this regard, the Respondent enclosed a copy of an unsigned employment contract allegedly sent to the Claimant and stated that the Claimant´s agent immediately answered to the contract proposal saying that the Claimant would not sign any contract unless his current club, Club Q, agreed on this transfer “and actually received the requested funds, and until he agent´s fees were deposited and cashed, and also the money due to the [Claimant] was cashed”. Furthermore, the Claimant´s agent requested the Respondent to organize and pay for a trip to country S for four persons until the end of the negotiations. 12. On the same day, the Respondent sent a letter to the Claimant´s agent in order to inform him that all the visa arrangements as well as the travel arrangements had been made for the travel to country S on 6 January 2009. 13. In the meantime, the Respondent found out through the country S media that the Claimant was allegedly negotiating not only with them, but also with another country S club based in country S, i.e. Club E. Subsequently, the Respondent pointed out that it had no knowledge at any time whatsoever that the Claimant was also in negotiations with Club E. Consequently, and considering the Claimant´s “extremely serious violation of the general principle of good faith in negotiations and in a violation of the sports values”, the Respondent decided to revoke its offer. In this respect, the Respondent stated having informed the Claimant´s agent about its decision and asked him not to travel to country S anymore. Equally, the Respondent indicated that the country S Football Federation imposed a prohibition of the Claimant´s registration for any country S club for the next winter transfer window. 14. Summing up, the Respondent stated that it never concluded a contract neither with the Claimant, nor with the Claimant´s club at the time, Club Q. Furthermore, the Respondent pointed out that the country S Football Federation never requested the Claimant´s International Transfer Certificate (ITC) from the country F Football Federation and, hence, no registration took place. Equally, the Respondent also underlined the fact that the Claimant´s agent rejected the Respondent’s contract proposal. In addition, according to the Respondent, the Claimant´s assumption with regard to the official offer signed on 27 December 2008 is groundless and in full contrast with the documentary evidence. In this context, the Respondent also pointed out that the country F club never signed any document in order to accept the loan of the Claimant. 15. In his reaction, the Claimant reiterated that, by signing the official offer on 27 December 2008, an employment contract came into force. In this regard, the Claimant underlined this fact by pointing out that the Respondent had sent him the required visa as well as the flight tickets to travel to country S. Equally, the Claimant rejected the Respondent´s declaration with regard to the alleged reaction of his agent concerning the contract proposal allegedly received on 31 December 2008. In this respect, the Claimant substantiated that he never asked his agent to contact the Respondent in order to make any modifications and also questioned the existence of the contract proposal, stating that this document does not contain any signatures or date. 16. Furthermore, the Claimant reiterated that the official offer contained all the essential components of a contract, i.e. the signatures of the parties, the salary for the player. Consequently, and referring to the jurisprudence of the Dispute Resolution Chamber, the Claimant underlined that the official offer signed on 27 December 2008 constitutes a “pre-contract” which has to be handled with the prevailing legal effect. 17. Finally, the Claimant pointed out that the Respondent failed to submit any evidence with regard to his and/or his agents´ alleged negotiation with other clubs once he had signed the official offer. In this respect, the Claimant alleged that if a party wishes to terminate a contract unilaterally it has to inform the other party beforehand in order to give the counterparty the possibility to change its behavior and/or actions. In this case, the Respondent allegedly did not inform him of the possible withdrawal of the official offer in case he continued to negotiate with other clubs. 18. In its final comments, the Respondent rejected the Claimant’s argumentation and reiterated its previous statements. In this regard, it stated once again that it is undisputed that no employment contract existed between the parties since no contract was filed with the relevant national association and no ITC was requested for the Claimant. Summing up, the Respondent requested the claim to be rejected on the basis of its groundless content. 19. In relation to his contractual situation, the Claimant stated that he had signed an employment contract on 23 June 2009 valid for the seasons 2009-2010, 2010-2011 and 2011-2012 with Club P, from country M. The parties had agreed to a remuneration of USD 500,000 for each season divided in 20 installments of USD 25,000 to be paid on a fortnightly basis, the first one being due on 15 July 2009 and the last one on 31 May 2010. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or 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 27 November 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. article 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. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country A player and a country S club. 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 2012, 2010 and 2009), and considering that the present claim was lodged on 27 November 2009, 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. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised 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. 5. In this respect, the Chamber acknowledged that the Claimant and the Respondent signed the official offer on 27 December 2008, by means of which the parties established inter alia that the employment would last as from 1 January 2009 until 30 June 2010 and that the Claimant would be entitled to receive USD 1,300,000, as follows: a) USD 650,000 upon signing the contract and passing the medical exam, and b) USD 650,000 to be paid out in 18 monthly salaries as from 1 January 2009. 6. In continuation, the DRC took note that the Claimant maintained that, in fact, an employment contract was entered into and that, as such, the Respondent is to be held liable for its early termination. On the other hand, the Chamber took note that, according to the Respondent, no legally binding employment contract had come into effect between the Claimant and the Respondent, as the parties merely signed an offer the object of which, according to its own preamble, was simply to set forth the provisions of a prospective employment contract between the parties. 7. From the outset, the members of the Chamber highlighted that there does not seem to be any disagreement between the parties as to the fact that the terms of the agreement were not performed, including the payment of the remuneration established therein. The fundamental disagreement between the Claimant and the Respondent – and the central issue to the present dispute – is whether the official offer signed between the parties established a valid and binding employment contract between the parties. 8. Consequently, the Chamber, first and foremost, focused its attention on the question as to whether a legally binding employment contract had been concluded by and between the Claimant and the Respondent. 9. In this regard, the Chamber recalled that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration and the signature of both parties. Moreover, the members of the Chamber highlighted that the denomination of a contract is not an element of validity. In this context, after a careful study of the official offer presented by the Claimant, the Chamber concluded that all such essential elements are included in the pertinent document, in particular, the fact that the relevant document establishes that the Claimant is entitled to receive remuneration, including a monthly salary, in exchange for his services to the club as a player. 10. The Chamber subsequently reverted to the arguments of the Respondent relating to the fact that the transfer of the player had actually not transpired as no ITC was requested and no registration took place since the country S Football Federation imposed a prohibition of the Claimant´s registration due to “extremely serious violation of the general principle of good faith in negotiations and in violation of the sports values” since he was allegedly negotiating with another country S club at the same time. 11. Equally, the Chamber took due note that the Respondent emphasized that it never concluded a contract neither with the Claimant, nor with the Claimant´s current club, Club Q, for the transfer of the Claimant. 12. In this regard, bearing in mind art. 18 par. 4 of the Regulations, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence. As regards the case at stake, the club acknowledged that no ITC was requested. Bearing in mind that according to Annexe 3 of the Regulations an ITC request depends on the new club’s application to the new association to register a professional, the club is actually in the position to prevent the occurrence of the condition precedent of receipt of an ITC by willfully choosing not to proceed with the application for an ITC request. By analogy, the same applies to the finalisation of documents or procedures related to the transfer of a player, e.g. the signature of a transfer agreement or the payment of a transfer compensation. For these reasons, the members of the Chamber decided to reject the Respondent’s arguments in this regard. 13. In continuation, the Chamber turned to the argument put forward by the Respondent that, allegedly, at the time of the signature of the official offer between the Claimant and the Respondent, the Claimant was allegedly negotiating with another country S club and that, consequently, an employment contract could not have been executed between the Claimant and the Respondent. 14. In this respect, the members of the Chamber highlighted that negotiations with a different club would not affect a contract’s validity and enforceability. 15. On account of all of the above, the members of the Chamber concluded that, by having signed the official offer, a valid and legally binding employment contract had been entered into by and between the Claimant and the Respondent on 27 December 2008. 16. In this context, the Chamber was eager to emphasize, once established that the parties concluded a valid and legally binding employment contract, that the Respondent had not performed any of its obligations under the employment contract and the DRC considered that it did not have just cause not to execute the contract which, unavoidably, leads to the decision that such contract was breached by the Respondent. 17. On account of the above circumstances, the Chamber established that the Respondent had obviously no longer been interested in the Claimant’s services by sustaining that no valid employment contract existed between the parties. The Chamber concluded that such conduct clearly constitutes a breach of contract and, accordingly, decided that the Respondent has produced the premature termination without just cause of the employment contract entered into between the parties. 18. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract. 19. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 20. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract and concluded that the Claimant would have received in total USD 1,300,000 as remuneration had the contract been executed until its expiry date, considering no transfer compensation was paid. 21. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 22. The Chamber noted that, on 23 June 2009, the Claimant had signed an employment contract with the Club P, from country M, for the seasons 2009-2010, 2010-2011 and 2011-2012, enabling him to earn a total income of USD 500,000 for each season. 23. In accordance with the constant practice of the Dispute Resolution Chamber and the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract. What is more, the Chamber also considered it important to point out that, although the employment contract was fully valid and enforceable, the execution of the contract actually never started, an element which equally should be taken into consideration in the calculation of the amount of compensation. 24. Moreover, the members of the DRC recalled that the Respondent insisted that the Claimant had simultaneously negotiated an employment contract with another country S club. In this regard, the Chamber considered that, although said negotiation did not affect the contract´s validity and enforceability, it had to be considered that the Claimant was indeed negotiating with another club, considering he lodged a claim before FIFA against Club E regarding the same contractual period, which was withdrawn. 25. On account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of USD 150,000 to the Claimant as compensation for breach of contract, which is to be considered reasonable and proportionate in the case at hand. In addition, taking into account the Claimant´s request and the well-established jurisprudence of the Dispute Resolution Chamber in this respect, the DRC decided that the Respondent shall pay 5% interest p.a. on the amount of USD 150,000 as from 12 December 2013 until the date of effective payment. 26. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player M, is partially accepted. 2. The Respondent, Club I, has to pay to the Claimant, Player M, within 30 days as from the date of notification of this decision, the amount of USD 150,000 as well as 5% interest p.a. on said amount as from 12 December 2013 until the date of effective payment. 3. If the amount plus interest due in accordance with point 2 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. 4. Any further claims lodged by the Claimant, Player M, are rejected. 5. The Claimant, Player M, is directed to inform the Respondent, Club I, immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to article 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