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 29 July 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 July 2016,

in the following composition:

Geoff Thompson (England), Chairman

Santiago Nebot (Spain), member

John Bramhall (England), member

Guillermo Saltos Guale (Ecuador), member

Wouter Lambrecht (Belgium), 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 May 2013, the Player of Country B, Player A (hereinafter; the Claimant or the player) and the Club of Country D, Club C (hereinafter; the Respondent or the club) (hereinafter jointly referred to as the parties) signed a document which contains the following information:

“[The Respondent] is glad to confirm the agreement reach (sic) between our club and [the Claimant](…)

The agreement reach (sic) will be under this terms and conditions as below:

- One year contract valid for the season 2013/2014

- The total amount of USD 300,000 (…) net for a contract valid for the season 2013/2014

- All the terms and conditions will be as the main contract of League of Country D

- The player should be in City E to start the preparation of our club for the new season in 1/July/2013”.

2. On 30 June 2015, and completed on 31 July 2015, the Claimant lodged a claim against the Respondent in front of FIFA requesting the amount of USD 195,000.

3. In particular, the Claimant explained that on 20 May 2013, he and the Respondent concluded a “pre-contract” for the 2013/2014 season which provided for a total remuneration of USD 300,000 and according to which, he should arrive to City E on 1 July 2013. In this respect, the Claimant argued that it was verbally agreed that the Respondent would provide him with the flight tickets in order to travel to City E.

4. Nevertheless, the Claimant stressed that he did not receive any further instructions from the Respondent. The Claimant alleged that he tried to call the club several times and that on 15 July 2013, he sent an e-mail, which read “I wonder what the date of my presentation?”, however to no avail.

5. Moreover, the Claimant highlighted that the Respondent was also of the understanding that an agreement had been made and, in this respect, enclosed a press release from the website of the League F in which it is stated that the Respondent had acquired the services of the Claimant.

6. As a consequence, the Claimant argued that, by not providing him with the flight tickets, the Respondent breached the contractual relationship without just cause and therefore, he is entitled to receive compensation for breach of contract.

7. In this regard, the Claimant argued that on 26 November 2013 he signed a new contract with the Club of Country G, Club H valid until 22 May 2014 and whereby it was agreed that he would receive the total amount of USD 105,000. Therefore, the Claimant held that he is entitled to receive USD 195,000, i.e. the difference between his contract with the Respondent and the one with Club H.

8. In its reply to the claim, the Respondent firstly stressed that the claim of the Claimant was time-barred. In this respect, the Respondent argued that the event which gave rise to the dispute should be set on 1 July 2013, the date on which the player did not show up at the club. Since the player lodged his claim on 31 July 2015 only, the Respondent was of the opinion that the claim is clearly barred by the statute of limitations contained in art. 25 par. 5 of the Regulations on the Status and Transfer of Players.

9. As to the substance, the Respondent rejected the claim in its entirety stressing that at no time was there a contract between the parties. In this respect, the Respondent explained that in May 2013, the Claimant introduced himself to the Respondent and that “the parties expressed their general interest to get to know each other and discussed the possibility” of signing a contract.

10. The Respondent held that it was in this context that the “preliminary understanding” of 20 May 2013 was signed. Therefore, according to the Respondent, the parties agreed that any sort of contractual agreement would be concluded at a later stage and, in any case, after a successful medical examination of the Claimant.

11. According to the Respondent, the contents of the “preliminary understanding” prove that the intention of the parties was to conclude at a later stage an actual employment contract. In this regard, the Respondent asserted that the “preliminary understanding” merely contains “generic and unclear understandings” between the parties subject to further negotiations. Hence, according to the Respondent, said document cannot be considered to include all relevant essentialla negotti of a contract.

12. Furthermore, the Respondent denied having ever agreed to provide the Claimant with any flight ticket. Along these lines, the Respondent stressed that the wording of the “preliminary understanding” clearly provides that the Claimant “should be in City E” on 1 July 2013. Therefore, the Claimant was the party who had to arrange his travel to City E for the finalization of the negotiations and the performance of the medical tests.

13. The Respondent further argued that the behaviour of the Claimant clearly confirms that he was also of the understanding that an employment contract had not been signed between the parties. The Respondent stressed that the Claimant never arrived to City E or even tried to contact the Respondent. In this respect, the Respondent denied having received the Claimant’s e-mail of 15 July 2013. Moreover, the Respondent underlined that on 1 August 2013, the Claimant concluded a contract with the Club of Country J, Club K, which, according to the Respondent, was mutually terminated in October 2013.

14. Subsidiarly, the Respondent argued that in case it would be concluded that the “preliminary understanding” is an actual employment contract, it should be considered that, by not arriving to City E on 1 July 2013, the Claimant breached it without just cause and thus, no compensation should be payable.

15. On 30 October 2015, the FIFA administration informed the parties that the investigation-phase of the matter at hand had been concluded and that, in accordance with art. 9 par. 4 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, no further submissions from the parties would be admitted to the file. Equally, the FIFA administration requested the Claimant, in order to have a complete and comprehensive file, to inform about his contractual situation as of July 2013 until June 2014.

16. On 23 November 2015 and pursuant to FIFA’s aforementioned request, the Claimant informed that besides his contract with Club H, he concluded a new contract with the club, Club K valid as of 1 August 2013 until 31 May 2014 according to which he was entitled to a monthly remuneration of USD 3,500 as well as a sign-on fee of USD 35,000. The player further explained that said contract was terminated on 31 October 2013.

17. Furthermore, the Claimant’s aforementioned correspondence of 23 November 2015 contained additional unsolicited comments as to the substance of the matter as well as an amended claim.

18. On 26 January 2015, the FIFA administration informed the Claimant that, in view of the content of FIFA’s letter of 30 October 2015, it would be up to the Dispute Resolution Chamber to decide whether or not to take into consideration his additional unsolicited comments as to the substance.

19. On 27 January 2016, the Respondent submitted additional unsolicited comments.

20. On 4 April 2016, the FIFA administration informed the Respondent that, in view of the content of FIFA’s letter of 30 October 2015, it would be up to the Dispute Resolution Chamber to decide whether or not to take into consideration its additional unsolicited comments.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 30 June 2015. 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 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 an employment-related dispute with an international dimension between a Player of Country B and a Club of Country D.

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, the Chamber 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 claim was lodged on 30 June 2015, the 2015 edition of the aforementioned regulations (hereinafter; the Regulations) is applicable to the matter at hand as to the substance.

4. Having concluded the above, the Chamber wished to address in the first place the admissibility of the Claimant’s additional unsolicited comments submitted on 23 November 2015 and those of the Respondent submitted on 26 January 2016.

5. In this respect, the DRC wished to refer to art. 9 par. 4 of the Procedural Rules, according to which the parties shall not be authorised to supplement or amend their requests or their arguments, to produce new exhibits or to specify further evidence on which they intend to rely, after the notification of the closure of the investigation. Being undisputed that on 30 October 2015 the FIFA administration duly notified the parties the closure of the investigation, the Chamber declared that the additional unsolicited comments of the Claimant and the Respondent, submitted on 23 November 2015 and 27 January 2016 respectively, are inadmissible.

6. The Chamber then addressed the argument of the Respondent, according to which, the claim of the Claimant is barred by the statute of limitations on the basis of the Regulations. In this regard, the members of the Chamber referred to art. 25 par. 5 of the Regulations, according to which, inter alia, the Dispute Resolution Chamber shall not hear any case subject to said Regulations if more than two years have elapsed since the event giving rise to the dispute. The present claim having been lodged in front of the DRC on 30 June 2015, albeit having been completed on 31 July 2015, and the event giving rise to the dispute, i.e. the alleged breach of contract committed by the Respondent, having occurred on 1 July 2013, the members of the Chamber had to reject the respective argument of the Respondent and confirmed that the present petition was lodged in front of the DRC within said two years’ period of time. The matter is, thus, not barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

7. The competence of the Chamber, the admissibility of the claim and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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.

8. First of all, the DRC acknowledged that on 20 May 2013, the parties signed a document which contained the following information:

“[The Respondent] is glad to confirm the agreement reach (sic) between our club and [the player](…)

The agreement reach (sic) will be under this terms and conditions as below:

- One year contract valid for the season 2013/2014

- The total amount of USD 300,000 (…) net for a contract valid for the season 2013/2014

- All the terms and conditions will be as the main contract of League of Country D

- The player should be in City E to start the preparation of our club for the new season in 1/July/2013”.

9. In continuation, the members of the Chamber took note of the claim of the Claimant, who argues that the aforementioned document is a valid employment contract concluded between the parties. Moreover, the Chamber noted that, according to the Claimant, it was verbally agreed that the Respondent would provide the flight tickets in order for him to go to Country D.

10. As the Respondent never contacted him or provided the relevant flight tickets, the Chamber acknowledged that the Claimant considers that the Respondent breached the contract without just cause and must therefore pay him compensation.

11. The Chamber further noted that, conversely, the Respondent is of the opinion that the document signed by the parties on 20 May 2013 was only a “preliminary understanding” which does not contain the essentialia negotii in order for a contract to be valid and therefore cannot be considered as such.

12. Subsidiarly, the Chamber observed that the Respondent denied having agreed to provide the Claimant with any flight ticket. In this regard, the Chamber took note of the argument of the Respondent that according to the clear wording of the aforementioned “preliminary understanding”, it is evident that the Claimant was obliged to fly to Country D by his own means. As a consequence, even if it can be determined that the document of 20 May 2013 is to be considered a valid employment contract, it must be concluded that, by not arriving to Country D, the Claimant was the party in breach of the contract and therefore his claim should be rejected.

13. In view of the aforementioned considerations, the Chamber was of the opinion that the first issue which it needed to address was whether the document of 20 May 2013 is to be considered as a valid employment contract concluded between the parties.

14. In order to do so, the DRC firstly wished to stress that it is undisputed that the document of 20 May 2013 is in writing thereby complying with the requirement of art. 2 par. 2 of the Regulations.

15. In continuation, the members of the DRC recalled the Chamber’s well-established jurisprudence which dictates 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 and the remuneration payable by the employer to the employee.

16. In casu, the members of the Chamber were of the unanimous opinion that the document of 20 May 2013 contains all the essentialia negotii in order to be considered as a valid and binding employment contract in accordance with the jurisprudence of the Chamber. In particular, the document contains the signature of both parties, provides for the duration of the employment relationship, i.e. the season 2013/2014, provides for the payable remuneration to the Claimant, i.e. USD 300,000 and, moreover, it can be clearly inferred that said document relates to the Claimant as being employed in order to play as a footballer with the Respondent. What is more, the aforementioned document stipulates that “all the terms and conditions will be as the main contract of League of Country D”.

17. On account of the above, the Chamber concluded that the document of 20 May 2013 is a valid employment contract concluded by the parties.

18. Having determined the above, the Chamber went to analyse whether the relevant employment contract had been breached without just cause by the Respondent and, in the affirmative, which would be the potential consequences of said breach.

19. In this context, the Chamber recalled that, according to the Claimant, it was verbally agreed that the Respondent would provide him the flight tickets in order to travel to Country D and join the club. The Respondent however denied this and referred to the clear wording of the employment contract.

20. With the above in mind, the members of the Chamber observed that the employment contract merely provides that “the player should be in City E to start the preparation of our club…” without any further specifications. The Chamber thus concluded that it could not be established that the Respondent was obliged to provide the Claimant with any flight tickets in order for him to join the club. Moreover, the Chamber was of the unanimous opinion that, taking into consideration art. 12 par. 3 of the Procedural Rules, the Claimant failed to prove that it had been verbally agreed that the Respondent would do so.

21. In view of the foregoing, the members of the Chamber unanimously decided that the Respondent could not be held liable for the non-execution of the employment contract.

22. Along those lines, the Chamber felt comforted in its conclusion considering the actions of both parties after the date on which the employment contract would began its period of validity, i.e. 1 July 2013. In this regard, the members of the DRC noted that already on 1 August 2013, the Claimant concluded a new employment contract with the club, Club K. Equally, the Chamber noted that the Respondent never tried to contact the Claimant after the latter failed to join the club. Therefore, the Chamber was of the opinion that it could be established with a reasonable degree of certainty that neither of the parties considered themselves as being bound by the employment contract. In this respect, the e-mail allegedly sent by the player on 15 July 2013, which receipt has been denied by the Respondent, cannot constitute, on its own, sufficient evidence in order to demonstrate that the Claimant was indeed interested in executing the employment contract of 20 May 2013.

23. On account of all the aforementioned considerations, the members of the Chamber unanimously decided to reject the claim of the Claimant.

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 article 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