F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 30 November 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 30 November 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (Netherlands), member

Stefano Sartori (Italy), member

Pavel Pivovarov (Russia), member

Jérôme Perlemuter (France), 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 10 October 2016, the Player A (hereinafter: player or Claimant) and the club of Country B, Club E terminated their employment contract concluded on 20 May 2016.

2. On 14 January 2017, the club from Country D, Club C (hereinafter: club or Respondent) sent a letter to the player, to “reinstate” interest to employ him. In this regard, the club offered, inter alia, the following terms:

- USD 65,000 as “total package” arising from USD 13,000 as monthly salary;

- USD 5,000 for “Winning International Football Tournament”;

- USD 5,000 for “ Winning League”;

- USD 10,000 for “Winning Continental Cup”.

Furthermore, the letter contains the wording: “We look forward to receiving your acceptance to any of the above options and for a successful season with you. Please reply back on the Club fax on: XXX”.

3. On 16 January 2017, Club E issued a declaration dated 16 January 2017, which reads as follows: “Club E declares to the due effects, that has no economic rights of a third party and did not celebrate any agreement concerning the economic rights with the athlete”.

4. On 27 March 2017, the player lodged a claim in front of FIFA against the club maintaining that the club failed to comply with its contractual obligations arising from the letter dated 14 January 2017 and requested to condemn the club to comply with it or, alternatively, to be awarded payment of the total amount of USD 85,000 as value of the “proposal” and USD 15,000 as moral damages.

5. In his arguments, the player held that the club “induced him” to breach his contract with Club E and subsequently “gave up on the deal”.

6. Moreover, the player argued that he asked Club E to terminate his contract, in order to join the club as it was interested in his services.

7. Furthermore, the player pointed out that, after having received the club’s letter on 14 January 2017, he accepted the “proposal”.

8. In its answer, the club requested to dismiss the player’s claim since there was no contract concluded between the parties.

9. The club maintained that it was not involved in the termination of the player’s contract with Club E. In this regard, it pointed out that it contacted the player more than three months after such termination, which, according to the documents submitted by the player, was initiated by the employer, Club E.

10. Regarding the letter dated 14 January 2017, the club argued that the player never accepted the offer made by the club.

11. In his replica, the player reiterated his position and submitted a statement of his agent, confirming that the club contacted him in January 2017 in order to employ the player. The agent further explained that he forwarded the letter dated 14 January 2017 to the player, who accepted the offer on 15 January 2017. Allegedly, the agent forwarded “the written proposal signed” by the player to the club.

12. Furthermore, the player argued that the letter dated 14 January 2017 mentions the words “reinstated interest”, which according to him shows that the club contacted him long before.

13. The player brought forward that he accepted the “offer” sent by the club by signing the proposal, orally via phone, by sending WhatsApp messages, through his agent and again by the letter sent by his representative on 30 January 2017

14. Moreover, the player referred to a declaration issued by Club E and argued that the contract was terminated only on 16 January 2017, in order “to be free to sign” with the club.

15. In its duplica, the club reiterated its position and argued that no contract was concluded since the player never accepted the offer.

16. In this regard, the club rejected the player’s argumentation and pointed out that none of the documents submitted contain the player’s signature.

17. Furthermore, the club pointed out that according to its letter sent on 14 January 2017, the player needed to accept the offer via fax. In this regard, the club held that even if the documents submitted by the player would proof an acceptance, it would be invalid since the player failed to accept the offer via fax. The club further clarified that it denies that any of the documents submitted by the player prove his acceptance of the offer.

18. Moreover, the club argued that the letter dated 14 January 2017 was not an offer, which could have been consented to with immediate effect, but only to formulate interest in the player in general.

19. Finally, the player confirmed that he remained unemployed during the relevant period.

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 27 March 2017. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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 a dispute with an international dimension between a player of Country B and a club from Country D in relation to an alleged employment relationship between the two aforementioned parties invoked by the player.

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 2016), and considering that the present claim was lodged on 27 March 2017, the 2016 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 of all, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that a valid and binding employment contract was concluded between the parties since he allegedly accepted the contract offer submitted by the Respondent on 14 January 2016. In this respect, the Claimant asks to be awarded compensation for breach of the employment contract as well as an indemnity for moral damages.

6. The Respondent, for its part, rejected the player’s claim and argued that the letter dated 14 January 2016 did not represent an offer to which the player could have immediately consented. Furthermore and notwithstanding the

above, the Respondent held that the player failed to submit any proof that he accepted such alleged proposal.

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 was up to the player to prove that the employment contract, on the basis of which he claims compensation for breach of contract from the Respondent, indeed existed.

8. In this regard, the Chamber recalled that it has remained undisputed that the Respondent sent a letter to the Claimant on 14 January 2016 containing an offer to conclude an employment contract.

9. Moreover, the DRC observed that the player alleged having subsequently accepted such offer by signing the respective offer. Along these lines, the Chamber took note of the player’s allegation that he verbally via phone, via WhatsApp messages and via a subsequent letter of his representative accepted the Respondent’s offer.

10. Having duly taken note of the aforementioned documentation presented by the Claimant, 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 through a contractual relationship with the terms as described by the Claimant, it had to be established, to its satisfaction, by documentary evidence, that the said parties had indeed entered into a respective labour agreement, and, if so, under which terms. In general, the DRC held that they could not assume that an employment contract had been concluded by and between the 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.

11. In this context, after having exhaustively examined the documents on file, the members of the Chamber noted that none of the submitted copies of the letter dated 14 January 2016 contain the player’s signature.

12. Moreover, the DRC noted that the Claimant did not submit corroborating evidence supporting his allegation that he indeed accepted the club’s proposal dated 14 January 2016. In particular, the Chamber stressed that the WhatsApp messages submitted by the Claimant are undated and that it remained unclear with whom said correspondence was concluded and if said person was an official representative of the club. In this regard, the DRC agreed that these messages cannot constitute an acceptance of the offer in question.

13. Furthermore, the members of the Chamber referred to the letter dated 30 January 2016, sent by the player’s legal representative to the club and established that said letter does not constitute an acceptance of the offer dated 14 January 2016, but rather a reminder to comply with the allegedly already concluded contract. As a consequence, the DRC decided that said letter cannot be considered as acceptance of the offer.

14. As a consequence, the DRC 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.

15. In view of the above, the Chamber concluded 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

Encl: CAS directives