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 2 March 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 2 March 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mario Gallavotti (Italy), member Pavel Pivovarov (Russia), member

Roy Vermeer (Netherlands), member Jon Newman (USA), member

on the claim presented by the player,

Player A, Country B,

as Claimant

against the club,

Club C, Country D,

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 7 June 2016, the Club of Country D, Club C (hereinafter: the Claimant), sent to Club E an offer (hereinafter: the offer), co-signed by the Player of Country B, Player A (hereinafter: the Respondent) which reads as follows:

“I am contacting you to express our interest to your player (…) born on 22/07/1993.

On this basis, we would like to take the [Claimant] on loan for one year with the following conditions:

- 1 season starting in 1st July till 30th June 2017;

- €50.000 of loan fee;

- [The Respondent] will support the payment of the job accident insurance;

- The parties agree that [the Respondent] has the option right for a permanent transfer of the [Claimant] by paying the net amount of €300.000. [the Respondent] exercising the option right for the permanent transfer of the [Claimant], the amount that must be paid for the loan of the [Claimant] must reduce in €50.000

- €135.000 salary

- €3500 subsidy for home”.

2. On 13 July 2016, Club E, the Respondent and the Claimant signed an agreement (hereinafter: the loan agreement) for the loan of the Claimant from Club E to the Respondent from 1 July 2016 until 30 June 2017.

3. In accordance with clause 5 of the loan agreement, “[the Respondent] will be the sole and exclusively responsible for paying the [Claimant]’s salaries, and other related charges, regarding the whole sport season of 2016/2107 (i.e. from July 2016 to June 2017), by means of an individual agreement to be signed with the [Claimant]”.

4. In addition, clause 6.2 of the loan agreement states that “[the Respondent] hereby expressly declares that it approves the physical, technical and health condition of the [Claimant]”.

5. Furthermore, clause 7 of the loan agreement stipulates the following:

“1. This agreement is subject to the signing of an employment contract between the [Claimant] and [the Respondent] for the season 2016/2017 at latest on or before 25 July 2016.

2. The effectiveness of this temporary assignment is subject to the effectiveness and validity of the employment contract between the [Claimant] and [the Respondent], getting this temporary assignment without effect, if the employment contract is terminated with just cause”.

6. On 22 July 2016, the Respondent remitted the Claimant a letter informing him that it had decided to put an end to the trial tests and that no employment contract would be signed.

7. On 23 July 2016, the Respondent sent an e-mail to Club E informing the latter about the end of the trial period.

8. On 14 September 2016, the Claimant lodged a claim against the Respondent for breach of contract, requesting the following:

- EUR 135,000, plus 5% interest p.a. as from the breach of contract, as compensation ;

- EUR 7,500 as legal fees.

9. In his claim, the Claimant alleges that the offer contains the essentialia negotii, such as the economic terms as well as the signature of the Respondent and the Claimant, and must therefore be considered as a valid employment contract. Nevertheless, the Claimant explains that a formal employment contract was signed with the Respondent after he arrived in Country D but the latter refused to provide him with a copy. In support of his assertion, the Claimant submitted a copy of an article dated 14 July 2016 published on the Respondent’s website by means of which it “announces that it has reached an agreement with [the Claimant] for valid contract until June 2017”.

10. In continuation, the Claimant outlines that neither the offer, nor the loan agreement states that he would be put on trial. In this respect, the Claimant points out that it would be incoherent to make him subject to a trial considering that by means of clause 6.2 of the loan agreement, the Respondent had already approved his physical, technical and health condition.

11. In view of the above, the Claimant argues that on 23 July 2016, the Respondent terminated the contract without just cause.

12. Furthermore, the Claimant asserts that Club E, believing that he would stay in Country D during the 2016-17 season, decided to cancel his contract for the referred season in order to register another foreign player. As a consequence, the Claimant explains that he was left without contract and thus income for the 2016-17 season.

13. In its reply to the claim, the Respondent insists that the Claimant was on trial and that no employment contract was ever signed. In support of its assertion, the Respondent presented a declaration, dated 11 July 2016 and signed by its own management, stating that the Claimant would be on trial for a period of 30 days. According to the Respondent, said declaration was remitted to the Claimant in order for him to enter the Territory of Country D. The Respondent further explains that in accordance with art. 4 of its Statutes, “the company shall have two managers (…) whose simultaneous signing is required for all acts that bind the company”. Having said this, the Respondent points out that the loan agreement is only signed by the President and one of the two managers, Manager F since the second manager would only have signed it after the successful completion of the trial test. Furthermore, the Respondent questions why the parties would have included in the loan agreement a clause making the validity of the latter subject to the signature of a valid employment contract, if the parties considered that the offer constituted a valid and binding agreement. As a consequence, the Respondent alleges that the loan agreement is not valid and binding.

14. Regarding the announcement on the website, the Respondent alleges that it was a mistake from the communication department due to the high number of players that were transferred during said transfer window.

15. Finally, the Respondent points out that the Claimant is still registered with Club E and therefore did not suffer any damage.

16. In his replica, the Claimant points out that the loan agreement does not indicate that the signature of both managers is required. Equally, the Claimant outlines that neither he nor Club E was informed of said requirement. Conversely, the Claimant stresses that the loan agreement contains the mention “Signed for and on behalf and acting with full authority of [the Respondent]”. Furthermore, the Claimant alleges that should the manager have acted ultra vires, his personal liability towards the Respondent could be triggered, but the agreement would remain valid towards third parties that acted in good faith.

17. In continuation, the Claimant highlights that the loan agreement does not specify that he was arriving on a trial-basis. In this respect, the Claimant stresses that he is not familiar with the declaration submitted by the Respondent in support of its assertion, which in any case does not bind him.

18. Furthermore, the Respondent argues that no professional sports club would make a mistake such as the one allegedly made by the communication department of the Respondent.

19. Finally, the Claimant reiterates that his contract with Club E had been terminated for the 2016-17 season and that therefore he would not receive any remuneration from Club E for the referred season. In support of his assertion, the Claimant submitted an “agreement of termination of a contract during a season” dated 10 July 2016.

20. In its duplica, the Respondent reiterates its previous argumentation, insisting on the Claimant’s failure to satisfactorily carry the burden of proof that an employment contract had actually been signed.

21. Having been invited to do so, the Claimant explained that he had been unemployed since the end of the 2015-16 season. Nevertheless, according to the Transfer Matching System, on 5 January 2017, the Claimant and the Club of Country B, Club G, concluded an employment contract, valid as from 1 January 2017 until 31 May 2017 and pursuant to which he is entitled to a monthly remuneration of 3,000 (approx. EUR 900).

II. Considerations of the Dispute Resolution Chamber

1. First, 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 14 September 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 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. 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 Claimant.

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 (edition 2016), and considering that the present claim was lodged on 14 September 2016, the 2016 version 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 doing so, the members of the Chamber acknowledged that, according to the Claimant, he had concluded with the Respondent an employment contract valid from 1 July 2016 until 30 June 2017, in accordance with which the Respondent allegedly had undertaken to pay him the total amount of EUR 135,000. Further, the Chamber also took note of the Claimant’s allegations according to which the Respondent had terminated the alleged contract without just cause on 23 July 2016.

6. The DRC further took due note of the fact that the Respondent, on its part, had categorically denied the conclusion of an employment contract with the Claimant.

7. In view of this dissent between the parties in respect of the basic question as to whether or not an employment contract between them had been concluded, the members of the Chamber firstly referred to 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 respective burden of proof. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was for to the Claimant to prove that the employment contract, on the basis of which he claims compensation for breach of contract from the Respondent, indeed existed.

8. Having stated the above, the DRC first focused on the offer dated 7 June 2016 submitted by the Claimant in support of his assertion. In doing so, the Chamber noted that according to the Claimant, such document contains the so-called essetialia negotii and must therefore be considered as a valid employment contract.

9. At this stage, the Chamber deemed it of utmost importance to point out that said offer is inseparable from the loan agreement concluded on 13 July 2016 and must be interpreted in the light of the latter. In particular, the members of the DRC recalled the content of clause 7.1 of the loan agreement, which states that “[t]his agreement is subject to the signing of an employment contract between the [Claimant] and [the Respondent] for the season 2016/2017 at latest on or before 25 July 2016”.

10. In this regard, the Chamber was eager to emphasise that unlike standard clauses making the validity of a loan agreement subject to the signature of an employment contract, this clause clearly and unambiguously establishes a deadline in the future, i.e. before 25 July 2016, for the Claimant and the Respondent to sign an employment contract. In the Chamber’s opinion, the insertion of such a specific clause in the loan agreement demonstrates that when signing the loan agreement on 13 July 2016, the Claimant and the Respondent did not consider themselves bound by any employment contract. The Chamber felt comforted with its conclusion considering also clause 5 of the loan agreement which further proves that it was the understanding of the parties that they still needed to conclude the relevant employment contract.

11. As a consequence, and after referring to the principle of venire contra factum proprium, the Chamber concluded that in view of clauses 5 and 7.1 of the loan agreement, the player cannot argue that he was already bound by an employment contract with the Respondent and that therefore until 13 July 2016, the parties had not entered into a valid contractual relationship.

12. In continuation, the Chamber analysed whether in accordance with art. 7.1 of the loan agreement, the parties had concluded a valid employment contract after 13 July 2016. In this regard, the DRC observed that the Claimant asserts that a formal employment contract was concluded with the Respondent after his arrival in Country D; however without submitting a copy thereof.

13. In this respect, the DRC outlined that the alleged article published in the Respondent’s website on 14 July 2016, i.e. only one day after the signature of the loan agreement. In this regard, the DRC deemed it likely that the members of the communication department, who most probably lacked legal background and were not involved in the contractual negotiations, mistakenly considered that by signing the loan agreement, an employment relationship had been entered into between the Claimant and the Respondent.

14. In any case, 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 by means of documentary evidence, which could prove at the DRC’s satisfaction 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, in general, may be indicative however not certain regarding the signing of a contract. In addition, the members of the Chamber agreed that the Dispute Resolution Chamber must be very careful with accepting documents, other than the employment contract, as evidence for the conclusion of a labour relationship.

15. In respect of the foregoing, the members of the Chamber had to conclude that the document presented by the Claimant did not prove to its comfortable satisfaction that the Respondent and the Claimant had validly entered into an employment contract after 13 July 2016.

16. As a consequence, the DRC decided 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.

17. All the above led the Dispute Resolution Chamber to conclude that the claim of the Claimant has to be rejected.

III. Decision of the Dispute Resolution Chamber

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

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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives