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 30 September 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 September 2016,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Jon Newman (USA), member

Mario Gallavotti (Italy), member

Taku Nomiya (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

between the parties

I. Facts of the case

1. On 27 April 2016, the Player of Country B, Player A (hereinafter: the Claimant), lodged a claim in front of FIFA against the Club of Country D, Club C (hereinafter: the Respondent), for breach of contract. In this regard, the Claimant alleged that he had concluded an employment contract with the Respondent valid as of 25 July 2015 until 15 June 2016, and provided, in support of such allegation, a copy of a contract which is not signed by either of the parties.

2. Clause second of the contract stipulates that “[t]his Contract will come into effect after passing fitness test and approved by the Football Federation of Country D and the General Organization for Youth & Sports.”

3. According to clause third of the contract, the Claimant was entitled to the following remuneration:

 USD 20,000 payable “when receiving The International Card and when the [Claimant] passes the medical examination”;

 USD 5,000 per month (USD 5,000 x 10 months);

 Accommodation;

 A private car

4. In continuation, clause third article 5 e- of the contract reads as follows: “If the [Respondent] wishes to terminate the contract for general interest it do not pay any amount”.

5. Pursuant to clause third article 5 f- of the contract “if [the Claimant] wishes to terminate the Contract for any reason, he should pay [the Respondent] US $ 85,000.00”.

6. The Claimant requested to be awarded with the amount of USD 85,000 to be paid by the Respondent as “a penalty for the [Claimant] because of the early rescission of the contract in the same way the [Claimant] would pay if the termination had happened because of him”.

7. According to the Claimant, he arrived in City E, and started training with the team after being provided by the Respondent with flight tickets, accommodation and a private car.

8. Moreover, the Claimant claims that the Respondent, after one week of training, notified him that “they wouldn’t like to continue with him at the squad”. In this regard, the Claimant asserts that the Respondent kept him at its disposal without giving him a signed copy of the employment contract and that it terminated said contract without just cause.

9. In reply to the Claimant’s claim, the Respondent alleges that the contract provided by the Claimant in his claim was an “unsigned offer”, which was sent to the Claimant for information purposes.

10. As for the termination alleged by the Claimant, the Respondent acknowledges having invited the Claimant to Country D and asserts that the arrival of the latter to Country D was on 20 July 2015 and his departure on 12 August 2015, i.e. 22 days.

11. The Respondent declares that it did not conclude a contract with the Claimant because the latter, after “several exercises and matches to find out his skills”, failed to pass the trial tests and, therefore, the coaching staff of the team did not approve his acquisition. According to the Respondent, after failing the relevant test, it agreed “verbally” with the Claimant that he would return to Country B and bought for him the relevant flight tickets.

12. In his replica, the Claimant reiterates that the Respondent unilaterally terminated the contract highlighting that he was already receiving part of his remuneration by the provision of accommodation and a private car.

13. Furthermore, the Claimant stresses that the Respondent itself in its reply to the claim acknowledged that the Claimant was an official member of the team as he was training and playing for the Respondent. In this context, the Claimant affirms that the 22-day period cannot be considered as a “fitness test” because it clearly exceeded the time to observe if the Claimant was fit for the team.

14. In its duplica, the Respondent declares that “it was clear to the [Claimant] from the beginning that the signing of the contract will take place after the technical evaluation by his team head coach”.

15. Consequently, the Respondent maintains that, after not passing the trial tests, the Claimant agreed to return to his homeland under the expenses of the Respondent. In this context, the Respondent provided a document, dated 12 August 2015 and signed by the Claimant, called “Financial Clearance” which establishes the following:

“I, the undersigned Mr. Player A Holding Passport of Country B No XXX, Leaving Country D after being involved with the [Respondent], First Team Football as a Professional Player under evaluation.

And according to the previous agreement with the Club management, that I got only return air ticket to my country, If I don’t pass the medical test and technical evaluation.

I sign this notification, without any liabilities towards the club”.

16. In his final comments, the Claimant declares that the signature contained in the “Financial Clearance” is not his signature and further alleges that he “would never leave the [Respondent] and the country without any financial compensation”, denying having signed the “Financial Clearance”. In this regard, the Claimant highlights that the signature contained in the “Financial Clearance” does not match with the signature contained in the power of attorney attached to the claim and his passport.

17. Moreover, the Claimant remarks that the number of his passport contained in the “Financial Clearance” belongs to his old passport, concluding that the “Financial Clearance” is a fake document.

18. In its final comments, the Respondent firstly acknowledged its mistake regarding the passport number and highlighted that the signature contained in the Claimant’s passport “is the authorized signature for the [Claimant]”. Regarding the Claimant’s allegations for the fake signature contained in the “Financial Clearance”, the Respondent affirms the veracity of the document and denies that the signature contained in said document is fake. In this context, the Respondent provided FIFA with the original of the “Financial Clearance”.

19. The Respondent ascertains that the Claimant uses several signatures, which explains why the signature contained in the “Financial Clearance” is different from the one contained in his passport and power of attorney. Nevertheless, the Respondent points out that the signature contained in a previous employment contract of 2012 between the parties and in a document called “Original Payment Receipt Voucher in Language F” dated 8 August 2015, is the same as the one contained in the “Financial Clearance”.

20. Finally and by an unsolicited statement, the Claimant insists that the signature contained in the “Financial Clearance” is fake and that it does not match with the other two documents attached by the Respondent in its last correspondence.

21. Upon request of FIFA, the Claimant informed that he did not sign a new employment contract with any other club.

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 27 April 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 2015) 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-related 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 2015), and considering that the present claim was lodged on 27 April 2016, the 2015 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, on 25 May 2015, he had concluded with the Respondent an employment contract valid from 25 July 2015 until 15 June 2016. The Chamber also took note of the Claimant’s allegations according to which the Respondent had terminated said contract without just cause.

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. In particular, the Chamber noted that albeit it acknowledged having remitted an unsigned offer to the Claimant, the Respondent alleges that due to the Claimant’s failure to comply with the technical and physical requirements, the parties agreed that they would not enter into an employment contract.

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 up 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 recalled that the Claimant maintained that he never received a copy duly signed by both parties of the employment contract he asserts having signed with the Respondent. In this regard, the Chamber held that the fact the Claimant had only submitted a copy of the disputed contract which did not bear any signatures was insufficient to establish the existence of the alleged contractual relationship.

9. Nevertheless, the Claimant had submitted documentation in support of his claim which were subsequently examined by the members of the Chamber.

10. First, the Chamber analysed the round-trip flight ticket providing for a return on 9 June 2016. In this regard, the DRC pointed out that it is likely that having in mind the potential signature of a one-year contract with the Claimant, the Respondent initially chose 9 June 2016 as return date, but then, and after the Claimant’s failure to pass the technical and physical tests, decided to change it to 12 August 2015. Thus, the Chamber held that the mere fact that the Respondent had initially provided the Claimant with a return ticket on 9 June 2016 is not sufficient to prove the existence of a contractual relationship between them.

11. In continuation, the DRC emphasised that the Claimant did not submit any element demonstrating that the Respondent had started to execute the contract by providing him with accommodation and a private car.

12. Thereafter, the Chamber focused its attention on the “Financial Clearance”, which the Claimant alleged he had not signed. In this regard, the Chamber 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 of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

13. This being said, the Chamber recalled that all documentation remitted shall be considered with free discretion and, therefore, compared the signature on the “Financial Clearance” to the ones contained in other documents containing the Claimant’s signature, provided by the parties in the context of the present dispute. In this regard, the Chamber pointed out that the original version of the “Financial Clearance” was provided by the Respondent.

14. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures of the Claimant in the various documents provided in the present affair, the Chamber had no other option but to conclude that, for a layman, the signatures on such documents appear to be the same.

15. Therefore, and recalling its well-established jurisprudence according to which a party signing a document of legal importance, as a general rule, does so on its own responsibility, the Chamber established that said document constitutes an acknowledgment that the parties did not enter into an employment relationship.

16. Finally, the members of the Chamber highlighted that the fact that the Claimant has never requested the Respondent to comply with its obligations prior to lodging his claim on 27 April 2016, i.e. almost 9 months after his departure from Country D, seems to confirm that the contract was actually never signed.

17. In light of all the aforementioned considerations, 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 by a contractual relationship, it had to be established, beyond doubt, 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 are not certain to indicate 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.

18. In respect of the foregoing, the members of the Chamber had to conclude that the documents presented by the Claimant did not prove beyond doubt that the Respondent and the Claimant had validly entered into an employment contract.

19. 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.

20. 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:

Marco Villiger

Deputy Secretary General

Encl. CAS directives