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 24 November 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 24 November 2016,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Takuya Yamazaki (Japan), 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 20 August 2014, the Player A from country B (hereinafter: player or Claimant) allegedly signed an employment contract (hereinafter: document) with the Club C from country D (hereinafter: club or Respondent), with a duration as from November 2014 until the end of the country D’s sporting season 2015.

2. The document contains a signature of a “Director” as well as a handwritten name likely referred to as “Mr E”.

3. According to the preamble of the document and its art. 1, it is stipulated that “After considering the needs and prepare plans forces Club C in season 2015, the Club C decided: Agreed to sign a labor contract with Player E.”

4. According to art. 4 of the document, it is stipulated that “Salary of player by month is: 7.000 USD/month. Club C will pay direct to player everymonth.”

5. According to art. 5 par. 2 of the document, “ticket for player’s family, house for player’s family: Club C and partner of club (Mr F) will pay all.”

6. According to art. 5 par. 3 of the document, it is stipulated that “Two sides will sign the labor contract in detail on 15/11/2014, all the terms on wages, transfer fees and other benefits must be made in accordance with this commitment. And player must go hospital to test injury and health care before sign contract. If he have any injury or problem about health, Club C will stop contract and give ticket money for him fly back home.”

7. On 14 December 2015, the player lodged a claim for breach of contract against the club in front of FIFA based on the assertion that although a contract was signed between the parties and he started to play for the club, the latter never paid him any salaries and “send him back home without rescind his contract”.

8. Against such background, the player requested that the club be ordered to pay him USD 28,000 as compensation for breach of contract without just cause, plus 5% interest p.a. as from the due date. In this respect, the player specified that the alleged contract was valid as from November 2014 until February 2015.

9. In reply to the player’s claim, the club denied having signed a contract with the player and deemed that the document the player presented is forged.

10. In support of its standpoint, the club asserted that it does not know the player and that he does not appear in any of its records.

11. Furthermore, the club stressed that the document “is not made by Club C” since (i) its layout does not correspond to the club’s template (logo and header), (ii) it does not set forth any clear date, time and location for the parties’ meeting, (iii) the club’s name is wrongly drafted in country D’s language as it reads Club C JOINT STOCK COMPANY instead of Club C, and (iv/v) the contract is neither stamped nor is the signature of the club’s former director genuine.

12. In support of this last argument, the club presented a written testimony issued by the club’s former director, Mr E, whose signature reportedly appears on the document. According to said testimony, which was made before a public notary, the club’s former director stated that the signature and handwriting of his name thereon are not his and that the club’s seal is missing on the document. Before concluding that the document is a forgery, the club’s former director also stated that he does not know the player and has no archives in connection with his recruitment.

13. In his replica, the player maintained his position that the document was signed by the club. In particular, the player referred to a written conversation his lawyer had via facebook with the club’s alleged TMS officer, Mr F, who approached him and with whom he negotiated the contractual terms. In this respect, the player stressed that in said conversation, the TMS officer wrote him that he was not able to amend the draft since “this is PDF file from [his] boss, can not edit”. The alleged TMS officer also answered the player’s question about signing a two years contract instead of a single season by replying “Only 1 season because we need to see how [you] play, after three months, if [you] play good, I can sign 1 more season.”.

14. The player submitted a print-out of the conversation his lawyer allegedly had with said person. Upon FIFA’s request to be provided with the original version of the document, the player forwarded the computer print-out of the document he received from Mr F and bearing the alleged signature of the club’s former director.

15. In this regard, the player alleged that the club sent him a written offer already containing the club director’s signature, which he accepted, as well as flight tickets. In this respect, he stressed that he “flew to another country and started to play by the Respondent”. He further underlined that even if the document only consisted of an offer, his acceptance thereof led the parties to be bound by a valid contract.

16. On account of the aforementioned, the player maintained his claim in full.

17. In its final comments, the club asserted that the person the player allegedly negotiated with, Mr F, is neither its TMS officer nor does he belong to the club’s staff. Consequently, the club reiterated that the club neither signed a contract with the player nor did it negotiate any agreement with the player.

18. In this respect, the club specified that “all transaction with partners is done by Mr F himself. (…) Mr. F introduced foreign and domestic players to Club C and he was also authorised by players to negotiate with our club. Club C provides Power of Attorneys which players authorizing Mr. F so as to demonstrate that Mr. F is not the staff of Club C.”

19. In support of its assertion that Mr F is a middleman to whom players give a mandate to represent them in recruitment negotiations with the club, the club submitted copies of the respective power of attorney that four players gave to the aforementioned person to assist them within the framework of employment contract-related negotiations with the club.

20. According to the information contained in the Transfer Matching System (TMS), the player was registered with a club in country G as from January 2014 and subsequently registered with a club in country H as from November 2015.

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 December 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 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 and par. 2 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 an employment-related dispute with an international dimension between a player from country B and a club from country D.

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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present claim was lodged on 14 December 2015, the 2015 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 DRC 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. Furthermore, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. Having said that, the Chamber noted that the Claimant argued that after he concluded a valid contract with the Respondent following negotiations with the Respondent’s alleged TMS officer and he started to play for the club, the Respondent never paid him any of his salaries and “send him back home without rescind his contract.”

6. As a consequence of the aforementioned, the Claimant considered that the Respondent acted in breach of contract and requested inter alia that it be ordered to pay him compensation in the amount of USD 28,000 for the period of time as from November 2014 until February 2015.

7. In continuation, the Chamber noted that the Respondent, for its part, held that it never signed an employment contract with the Claimant and that the signature on the document the latter presented in support of his claim is forged, in that it does not correspond to its former director’s signature.

8. The Respondent further held that the person the Claimant allegedly was negotiating with was not employed by the Respondent or entitled to represent it. Therefore, the Respondent rejected the Claimant’s claim.

9. Having established the aforementioned, the Chamber deemed that the underlying issue in this dispute, considering the claim of the Claimant and the arguments of the Respondent, was first to determine as to whether a valid employment contract had been entered into by and between the parties.

10. Accordingly, the Chamber went on to deliberate as to whether the document submitted by the Claimant in support of his claim for breach of contract without just cause against the Respondent consists of a valid and binding employment contract.

11. In this context, 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 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 existence of a valid employment contract binding the parties in dispute.

12. In this respect, the Dispute Resolution Chamber recalled that the Respondent, for its part, had inter alia maintained that it never signed an employment contract with the Claimant and that the signature on the document remitted by the Claimant was forged.

13. Against such background, the members of the Chamber were eager to underline that the Claimant was unable to provide the original version of the document signed by the hand of the parties involved.

14. In addition, the Chamber acknowledged that the Respondent had supported its aforementioned argument by a notarised statement issued by its former director, Mr E, and that said testimony had not been conclusively challenged by the Claimant.

15. Additionally, the Chamber reverted to the Claimant’s argument that the contractual negotiations were held between his lawyer and the Respondent’s alleged TMS officer, which line of argumentation was rejected by the Respondent, who denied that the person referred to by the Claimant in this respect was the TMS officer or any other member of staff.

16. In this respect, the Chamber deemed that, in the absence of information or documentation on file establishing that said person was an employee of the Respondent at that time or that he ever was empowered by the Respondent to conduct employment-related negotiations with the Claimant, the Respondent could not be bound by statements that individual made out of his own initiative within the framework of the conversation he apparently had with the Claimant’s lawyer via facebook.

17. Furthermore, the members of the Chamber noted that the Claimant had not corroborated his statement that he started to play for the Respondent with documentary evidence.

18. To conclude in this respect, the Chamber referred to art. 6 par. 3 of Annexe 3 of the Regulations and highlighted that the TMS does not include any link between the Claimant, who was registered with a club from country G at the time when the alleged facts occurred, and the Respondent.

19. In respect of all of the foregoing, the members of the Chamber concurred that the Claimant had failed to prove that he and the Respondent had entered into a valid and binding employment contract.

20. In continuation, the Dispute Resolution Chamber concluded that, since no valid and binding employment contract had been concluded between the parties, there was no need for the Chamber to analyse as to whether a breach of contract had occurred.

21. On account of the aforementioned, the DRC concluded its deliberations in the present matter by deciding that the Claimant’s claim against the Respondent is 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:

Marco Villiger

Deputy Secretary General

Encl. CAS directives