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 20 April 2017

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 April 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mohamed Mecherara (Algeria), member

Leonardo Grosso (Italy), 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 6 January 2016, the Player of Country B, Player A (hereinafter: the Claimant), concluded a “player offer” (hereinafter: the first offer) with the Club of Country D, Club C (hereinafter: the Respondent), valid as from 15 January 2016 until 14 June 2016.

2. According to the article two of the first offer, “the total contract value is US$90,000”, to be paid as follows:

- USD 40,000 “on the signing”;

- USD 10,000 as monthly salary (i.e. 5 instalments).

3. Moreover, article four of the first offer provided the following:

“[the Respondent] shall provide appropriate accommodation for the [Claimant] (…) and an economy class air ticket for the [Claimant] and family, (Country B-Country D-Country B) provided that the [Respondent] shall incur the cost thereof.”

4. According to the Claimant, on the same date, the parties concluded an additional “player offer” (hereinafter: the second offer), valid as from 15 August 2016 until 14 June 2017.

5. According to the article two of the second offer, “the total contract value is US$160,000”, to be paid as follows:

- USD 30,000 “at mid of August 2016”;

- USD 30,000 “at mid of Jan. 2017”;

- USD 10,000 as monthly salary (i.e. 10 instalments).

6. Moreover, article four of the second offer provided the following:

“[the club] shall provide appropriate accommodation for the [Claimant] (…) and an economy class air ticket for the [Claimant] and family, (Country B-Country D-Country B) provided that the [Respondent] shall incur the cost thereof.”

7. According to the Claimant, on the same date, the parties concluded an additional “player offer” (hereinafter: the third offer), valid as from 15 August 2017 until 14 June 2018.

8. According to the article two of the third offer, “the total contract value is US$160,000”, to be paid as follows:

- USD 30,000 “at mid of August 2017”;

- USD 30,000 “at mid of Jan. 2018”;

- USD 10,000 as monthly salary (i.e. 10 instalments).

9. On 22 November 2016, the Claimant lodged a claim before FIFA against the Respondent for breach of contract without just cause, and requested the payment of a total amount of USD 240,000, plus 5% interest p.a. as from 8 September 2016, corresponding to the residual value of the alleged offers minus mitigation.

10. In addition, the Claimant requested the payment of the legal costs as well as “another remedy that the Panel think just”.

11. In particular, the Claimant explained that, at the end of the season 2015-2016, he left to Country B for holidays, but that in June and July 2016, he and his intermediary called the Respondent and sent emails in order to request his flight tickets to return to Country D. However, and according to the Claimant, he did not receive any reply from the Respondent.

12. In view of the above, the Claimant considered that the lack of communication from the Respondent was a breach of contract without just cause.

13. Consequently, the Claimant explained that the aforementioned situation put him “in limbo” and that, therefore, he had to find another club. Therefore, the Claimant explained that, on 8 September 2016, he concluded an employment contract with the Club of Country E, Club F, valid as from 8 September 2016 until 30 June 2017, for a total remuneration in the amount of USD 80,000.

14. In its reply, the Respondent acknowledged that it had a contractual relationship with the Claimant, valid from 15 January 2016 until 15 July 2016, “as per the contract signed by both parties on January 6, 2016”, but that the remaining documents presented by the Claimant are not contracts since they are not stamped.

15. Moreover, the Respondent explained that, on 16 May 2016, the Claimant signed a document, according to which he confirmed that he received all his remuneration “in full and final settlement” and that, by signing said document, the Claimant confirmed that his contract ended in good faith.

16. In addition, the Respondent explained that it did not object to the Claimant’s transfer to Club F.

17. In his replica, the Claimant insisted that the second and third offer are also contracts, since they were signed jointly with the first offer, which is recognized by the Respondent as a valid contract.

18. In reference to the document signed on 16 May 2016, the Claimant explained that said document is signed by all players before their “annual leave”, and considered that it must be understood as a settlement of payments for the season 2015-2016 only.

19. Subsequently, and before the closure of the investigation-phase, the Claimant sent an unsolicited correspondence, to which he attached a document dated 30 December 2015 and signed by the player, “Player G”, according to which the latter confirmed that he “received all balances due (…) from Club C (…) in full and final settlement”. According to the Claimant, said document should support that the document dated 16 May 2016 is not a termination agreement.

20. As final comments, the Respondent insisted that the only valid contract was binding as from 15 January 2016 until 14 June 2016, and that all the additional documents were for negotiation purposes only.

21. Moreover, the Respondent considered that the signatures included in the different documents are different, and that they are illegible and could constitute a fraud.

22. In addition, the Respondent insisted that the document signed on 16 May 2016 was signed by the Claimant due to the end of his employment relationship.

23. Despite being invited to do so, the Claimant failed to present an original copy of the alleged offers.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed whether it was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 22 November 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 and 2017 editions of the Procedural Rules).

2. Subsequently, the DRC referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) it is competent to deal with the matter at stake, which concerns an employment-related disputes with an international dimension between a Player of Country B and a Club of Country D.

3. The competence having been established, the Chamber decided thereafter to analyze 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 22 November 2016, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the DRC 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 emphasized 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, on 6 January 2016, the parties concluded a “player offer” (referred to as: the first offer), valid as from 15 January 2016 until 14 June 2016.

6. In relation to said first offer, the Chamber observed that the Respondent acknowledged (cf. point I.14 above) that it had to be considered as the basis of a contractual relationship with the Claimant, but only for the aforementioned period.

7. Subsequently, the Chamber also noted that, according to the Claimant, on 6 January 2016, the parties concluded an additional “player offer” (referred to as: the second offer), allegedly valid as from 15 August 2016 until 14 June 2017, as well as a further “player offer” (referred to as: the third offer), valid as from 15 August 2017 until 14 June 2018.

8. In this respect, the members of the Chamber took note of the Respondent’s position, according to which the second and third offer do not constitute contracts and that they could constitute a fraud.

9. Therefore, the members of the Chamber unanimously understood that, prior to entering into the analysis of the main elements of the case, it had to examine in limine whether the second offer and third offer constitute a sufficient evidence of a contractual employment relationship between the Claimant and the Respondent.

10. Additionally, the DRC considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones related to the possible forgery of a document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

11. Having duly taken note of the aforementioned consideration and documentation presented by the Claimant, the members of the Chamber held that in order for the Chamber to be able to assume that the second and third offer were the basis of 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 the respective labour agreements.

12. In view of aforementioned, 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 up to the Claimant to prove the validity of the documentary evidence submitted with his claim.

13. Having stated the above, the Dispute Resolution Chamber observed that, despite being invited to do so, the Claimant was unable to provide the relevant employment contract in its original form signed by the hand of the parties. On account of these considerations, the Chamber held that the fact the Claimant had only submitted a copy of the disputed documents was insufficient, given the circumstances of the case, to establish the existence of the alleged contractual relationship.

14. 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 certain documents as evidence for the conclusion of a contract.

15. As a consequence, the DRC decided that, since the Claimant had not been able to prove beyond doubt that the second and third offers have been validly concluded between himself and the Respondent, there was no possibility for the Chamber to enter into the question whether or not an employment contract had been breached after the date of 14 June 2016, when the first offer expired (cf. point I.1 above).

16. 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:

Omar Ongaro

Football Regulatory Director

Enclosed: CAS directives