F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 30 September 2016

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 September 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member Jon Newman (USA), member

Mario Gallavotti (Italy), member

Taku Nomiya (Japan), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 15 May 2015, the Player of Country B, Player A (hereinafter: the Claimant), born on 19 March 1986, concluded an employment contract with the Club of Country B, Club E, valid as from 14 May 2015 until 31 December 2016.

2. According to the Claimant, on 4 January 2016, the Club of Country D, Club C (hereinafter: the Respondent) sent him a “Protocol” (hereinafter: the protocol) signed by Mr F, allegedly the Respondent’s General Manager, by means of which it allegedly offered him to conclude a contract valid for the period of 2.5 years, under the following conditions:

“(…) 28.000 Euro (for this half year), 30.000 Euro (For next 2 year) House rented by [the Respondent], car rented by [the Respondent], 2 Flight tickets per year paid by [the Respondent], Official 1st team bonuses.”

3. Moreover, the protocol included the following statement:

“This official protocol will turn to an official agreement by 06.01.2016. [Claimant] committed to land in City G to sign official contract with [the Respondent]”.

4. In addition, and according to the protocol, “Mrs H is authorized by the [Respondent] to run the negotiations on behalf of [it]”.

5. Subsequently, on 6 January 2016, Club E and the Claimant concluded a mutual termination agreement.

6. On 31 March 2016, the Claimant lodged a claim before FIFA against the Respondent for breach of contract without just cause during the protected period, and requested the payment of the total amount of EUR 1,065,600, plus 5% interest as from 30 January 2016, detailed as follows:

- EUR 888,000, as compensation, corresponding to the amounts stated in the “protocol” (i.e. EUR 28,000*6+EUR 30,000*24);

- EUR 177,600, as “specificity of sport”, corresponding to six months of salary.

7. Moreover, the Claimant requested the imposition of sporting sanctions against the Respondent and the reimbursement of all legal fees.

8. According to the Claimant, on 2 January 2016, “Mrs H”, allegedly acting as the Respondent’s representative, contacted one of his friends via “telephone and WhatsApp Messenger”, informing the latter that the Respondent was interested in concluding a contract with him.

9. In continuation, the Claimant explained that, on 5 January 2016, he decided to accept the terms outlined in the protocol. Moreover, the Claimant stated that, at this stage, “Mrs H” offered to issue the pertinent tickets in order for him to travel to Country D, but that the Respondent rescheduled said departure three times due to the “alleged elections for a new President at the [Respondent], which were supposedly due to occur on 11 January 2016”.

10. Moreover, the Claimant explained that he sent two further notices to the Respondent, respectively, on 22 January 2016 and 26 January 2016, by means of which he requested the latter to immediately issue him the necessary flight tickets in order to join the Respondent in Country D, and that failure to do so “will inevitably cause the collapse of the employment relationship between the parties”.

11. In this regard, the Claimant explained that the Respondent failed to provide any reply to said notices and that, in view of the above, he sent an additional correspondence to the Respondent on 29 January 2016, stating that he understood that the Respondent had terminated the contract without just cause.

12. Subsequently, the Claimant explained that, “with his bargaining powers reduced almost to none”, on 16 February 2016, he concluded an employment contract with the Club of Country B, Club J, for a monthly remuneration in the amount of 27,000.

13. In its reply to the claim, the Respondent considered that there was no legally valid agreement with the Claimant and that the signatory of the “protocol” had no legal powers to conclude any contract on behalf of the Respondent.

14. Consequently, the Respondent insisted that the Claimant was never part of it and that it never had any relationship with “Mrs H”. Thus, the Respondent considered that the claim lodged by the Claimant is “unbelievable” and “baseless” and that it cannot be justified.

15. In his replica, the Claimant argued that, under any circumstance, he was entitled to believe that “Mr F” was indeed entitled to represent the Respondent, and that this person was pictured as one of the main officials of the Respondent in its website. Moreover, the Claimant observed that the “Protocol” was printed with the Respondent’s letterhead “and duly stamped”.

16. In reference to the contents of the “Protocol”, the Claimant considered that said document met all the “essentialia negotii” and that his acceptance of the contract, “regardless of any formality”, can be noticed through the development of the facts.

17. As final comments, the Respondent insisted that there was no valid legal agreement and that, besides the “unauthorized letter” (i.e. the “protocol”), the Respondent never expressed any “subsequent consent”, nor made any payment to the Claimant. Moreover, the Respondent highlighted that the Claimant never went to Country D.

18. Furthermore, the Respondent explained that during the year 2016, it was facing a transfer ban and that consequently, it was unable to make any transfer.

19. In addition, the Respondent explained that “Mr F” had no power to represent it, and that the latter declared that he did not sign the “Protocol”. In this regard, the Respondent explained that Mr F applied “to public prosecutor” in order to open an investigation against “Mr K, Mr L and Mrs H” for fraud.

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 31 March 2016. Consequently, the 2015 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 2015 edition 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 2016) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute with an international dimension between a Player of Country B and a Club of Country D in relation to an alleged employment relationship between the two aforementioned parties invoked by the player.

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 2016), and considering that the present matter was submitted to FIFA on 31 March 2016, the 2015 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber having been established as well as the applicable regulations, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand.

5. In this respect, the Chamber observed that, according to the Claimant, on 4 January 2016, the Respondent offered him to countersign a document referred to as “Protocol”, which was allegedly already signed by a presumed administrator of the latter. In particular, the Chamber noted that the Claimant was of the opinion that said protocol was a valid and binding employment contract between him and the Respondent.

6. Conversely, the Chamber also noted that, according to the Respondent, the alleged signatory of the aforementioned protocol had no legal powers to conclude any contract on behalf of it and that, in addition, said protocol had to be deemed as an “unauthorized letter”. Moreover, the Chamber also took into account that, according to the Respondent, the latter never expressed any “subsequent consent” to said document, nor made any payment to the Claimant.

7. In view of the this dissent between parties, the Chamber first deemed it important to recall that, in accordance with its longstanding jurisprudence, in order for an employment contract to be considered as valid and binding, it must bear the signature of both the employer and the employee. In this respect, the DRC observed that the Claimant was unable to provide the Chamber with a copy of the protocol duly signed by himself and the Respondent.

8. Moreover, the Chamber noted that, although the Claimant acknowledged that he never signed the protocol, the Claimant held that the consent to said document can be proven through “the development of the facts” and, in particular, by means of a conversation allegedly held on “Whatsapp Messenger” with “Mrs H”, who allegedly was the Respondent’s representative.

9. Having duly taken note of the aforementioned documentation presented by the Respondent and the Claimant, the members of the Chamber held that in order for the Chamber to be able to assume that the Claimant and the Respondent had indeed been bound through a contractual relationship with the terms as described by the Claimant, it had to be established, beyond doubt, by documentary evidence, that the said parties had indeed entered into a respective labour agreement, and, if so, under which terms. In general, the members of the Chamber held that they could not assume that an employment contract had been concluded by and between parties simply based on circumstances which are not certain to indicate the signing of a contract. In addition, the members of the Chamber agreed, in accordance with the longstanding jurisprudence of the Dispute Resolution Chamber, that the Chamber must be very careful with accepting documents, other than the employment contract, as evidence for the conclusion of a contract.

10. As a consequence, the DRC decided that, in general, a form of consent as described by the Claimant (cf. point II. 8 above) cannot be accepted and that, since the Claimant had not been able to prove beyond doubt that an employment contract had validly been concluded between himself and the Respondent, there was no possibility for the Chamber to enter into the question whether or not such alleged employment contract had been breached.

11. All the above led the DRC to conclude that the claim of the Claimant has to be rejected in full.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is rejected.

*****

Note relating to the motivated decision (legal remedy):

According to art. 58 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 (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Marco Villiger

Deputy Secretary General

Enclosed: CAS directives