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 9 February 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 February 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Joaquim Evangelista (Portugal), member

Taku Nomiya (Japan), member

Todd Durbin (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 4 November 2013, the Club of Country D Club C (hereinafter: the Respondent or the Club) sent the Player of Country B Player A (hereinafter: the Claimant or the player) a letter, by means of which, it invited him “to visit the Club from December 1, 2013 until December 31, 2015”, also accepting “to cover all costs with housing, food and any other it may be necessary during the Player’s stay in Country D” (hereinafter: the invitation letter).

2. According to the Claimant, on 18 January 2014, he and the Respondent signed an employment contract valid as from 1 February 2014 until 31 December 2015 (hereinafter: the contract), pursuant to which the club committed to pay the player “an annual salary of 45,000,000 (3,750,000 per month)”.

3. In accordance with art. 11, par. 3 of the contract, “in the event this Contract is terminated due to reasons attributable to the Club, the remainder of the Basic Annual Compensation prescribed in this Contract shall be paid to the Player. In the event the Contract is terminated due to the reasons attributable to the Player, the Club shall pay the Basic Annual Compensation on the calculation basis from the date of termination (hereinafter “Month”) the days the Month plus the remaining number of days after the Basic Annual Compensation is paid in the month immediately preceding to the Termination Month shall be calculated basis”.

4. On 17 September 2015, the Claimant lodged a claim against the club for breach contract.

5. In particular, the Claimant alleged that the Respondent, on 17 February 2014, “informed the [player] that would terminate his employment contract with immediately effect, i.e. without prior notice” and paid him “on the same day […] 1,875,000 (half salary)”.

6. Finally, the Claimant argued that the contract was terminated by the Respondent without just cause and requested the payment of compensation in accordance with art. 11 par. 3 of the contract, amounting to 45,000,000, plus interest at 5% rate p.a.. In particular, the Claimant held that art. 11 par. 3 of the contract “works as a truly penalty clause” and, as a consequence thereof, “the Respondent had to pay the Player a Basic Annual Compensation of 45,000,000”.

7. In its reply, the Respondent admitted that, in “early 2014”, it “performed a test” on the player “through Mr E”, but denied having signed the contract. Moreover, the Respondent alleged that the documents submitted by the player were “counterfeit or deliberately renewed”.

8. In particular, with reference to the invitation letter, the Respondent stressed that:

- it was signed by a person who was not the president of the club and “totally unknown” to the Respondent;

- the club house address reported therein was not “the address of Club C’s club house” and “totally unknown” to the Respondent;

- the seal on such letter did not belong to the Respondent.

9. Furthermore, with reference to the contract, the club added that:

- it also contained a seal different from the club’s original one;

- it was not signed by the Respondent;

- it did not contain the Claimant’s seal.

10. In addition, the club denied the payment of 1,875,000 to the Claimant, but “only paid the player 6000 (85 USD) on February 12, 2014 for the living expenses during his stay”. According to the Respondent, such payment was made since the Respondent “did not sign a contract and left earlier than the player from the training camp in Country F”.

11. In his replica, the Claimant affirmed that the Respondent presented him the invitation letter “through its representative Mr E” and argued that the Respondent, thus, admitted the invitation to the Claimant “to flew to another country” and “sent him the flight tickets”. Moreover, the Claimant emphasized that the Respondent did not present the payment receipt for the amount of USD 85 because the amount actually paid was 1,875,000.

12. Furthermore, the Claimant reiterated that the Respondent breached the contract, adding that the same was “signed in locu by a club’s representative who was the same person that signed the invitation letter”.

13. In its duplica, the Respondent repeated its previous arguments and stated that the Claimant “was brought by Mr E to attend a tryout session in Country F”. Along these lines, the club emphasized that Mr E was not a Respondent’s representative, but just “one of many agents in the football industry”.

14. Moreover, the Respondent explained that the Claimant was paid the minimum expenses (“6,000 (USD 85)”) at the end of the training period in Country F, “required to get him back to his country as an act of good will”.

15. Finally, the Respondent stressed that it did not write the invitation letter and repeated that it neither signed such letter nor the alleged contract.

16. Upon request of the FIFA Administration, the Claimant informed that he remained unemployed from March 2015 until 31 December 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 17 September 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 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 Club of Country D.

3. In continuation, 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 17 September 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 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. First, the Chamber noted that, according to the Claimant, on 4 November 2013, the Respondent sent him an invitation letter and, on 18 January 2014, the parties concluded an employment contract valid as from 1 February 2014 until 31 December 2015.

6. Furthermore, the Claimant alleged that the Respondent terminated the contract on 17 February 2014 and paid him half monthly salary only. Therefore, the Claimant, based on the compensation clause contained in the alleged contract, asked to be awarded compensation for breach of contract.

7. The Dispute Resolution Chamber equally took due note of the fact that the Respondent, on its part, had categorically denied having sent the invitation letter submitted by the Claimant, as well as the conclusion of an employment contract with the Claimant. Nonetheless, the Respondent admitted that the Claimant performed a test with the Claimant “in early 2014”, but however argued that the only payment made to the Claimant was of USD 85 for living expenses on 12 February 2014. Moreover, the Respondent concluded that the claim should be rejected since the Respondent never entered into any employment contract with the Claimant.

8. In view of the aforementioned dissent positions of the parties in respect of the basic question as to whether or not an employment contract had been concluded between them, 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 existence of the conclusion of an employment contract with the Respondent.

9. Having stated the above, the Dispute Resolution Chamber recalled that the Respondent affirmed that it never signed a written employment contract with the Claimant and maintained that the copy of the contract remitted by the Claimant was forged. What is more, the Claimant expressly admitted being unable to provide the relevant employment contract in its original form signed by hand.

10. At this stage, the Dispute Resolution Chamber considered 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 of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

11. On account of these considerations, the Chamber held that, in accordance with its long-standing jurisprudence, the fact the Claimant had only submitted a copy of the disputed contract was insufficient to establish the existence of the alleged contractual relationship.

12. Moreover, the members of the Chamber noted than Claimant did not submit other documents in support of its claim, but only some alleged flight tickets.

13. In view of the above, the members of the Chamber held that, in order for the Chamber to be able to assume that the Respondent and the Claimant had indeed been bound through a contractual relationship with the terms as described by the Claimant, it had to be established, 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, in general, may be likely but do not imply with certainty 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 contract.

14. Consequently, the members of the Chamber concluded that the Claimant did not prove to Chamber’s satisfaction that the Respondent and the Claimant had validly entered into an employment contract, regardless of the fact that the Respondent performed a test with the Claimant for a certain period of time. In fact, the members of the Chamber found, considering the particularities of the present matter, quite plausible that the scenario presented by the Respondent actually happened.

15. On account of all the aforementioned considerations, the Dispute Resolution Chamber decided that, since the Claimant had not been able to prove 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.

16. All the above led the Dispute Resolution Chamber to conclude that the claim of the player 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 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:

Omar Ongaro

Football Regulatory Director