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 29 March 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 March 2018,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Roy Vermeer (the Netherlands), 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 30 January 2013, the Player of Country B, Player A (hereinafter: the player or the Claimant), and the Club of Country D, Club C (hereinafter: Club C or the Respondent), signed a first employment contract (hereinafter: the first contract) valid as from the date of signature until 30 June 2016.

2. On 29 August 2014, Club C and the Club of Country E, Club F (hereinafter: Club F) agreed upon the definitive transfer of the player from the former to the latter. The relevant transfer agreement stipulated that no transfer fee would be paid for the definitive transfer of the player. Moreover, the Claimant was also a party to the transfer agreement.

3. Also on 29 August 2014, the Claimant and the Respondent signed a document in which it is stated, inter alia, that their intention is to interrupt the employment relationship in view of the definitive transfer of the player to Club F and that in view of the Claimant’s willingness to be transferred to Club F, Club C undertook the obligation to pay the player EUR 297,660. Moreover, this document stipulated that the employment relationship between the parties would cease to exist as of 30 August 2014.

4. On 31 August 2014, the Claimant and Club F signed an employment contract valid as from 1 September 2014 until 30 June 2015.

5. According to the Claimant, as part of the negotiations for his definitive transfer to Club F, he signed a second employment contract with the Respondent valid as from 1 July 2015 until 30 June 2016 (hereinafter: the second contract). The copy on file of the second contract is dated 1 July 2015. According to the player, the contract was signed by Club C’s Sporting Manager, Manager G.

6. According to the second contract, the Claimant was entitled to EUR 338,000 net for the 2015-2016 season.

7. Art. 3 of the second contract provided that: “the parties, by executing this employment contract, acknowledge and undertake to abide by all the regulations set forth in the Collective Bargaining Agreement in force (its content and relevant attachments), among which, (…) art 3.1.-3.5. (duty to deposit the Contract and the other Agreements); art. 3.4 and 3.6. (necessity of the approval of the Contract and of the other Agreements; effects and indemnity in the absence) […]”.

8. Moreover, art. 4 of the contract stated that: “all claims concerning the interpretation, performance or termination of this Contract or of the other agreements, as well as any other dispute arising out of the employment relationship between the Player and the Club will be submitted to the [Arbitration Panel H], that will issue its decision according to the modalities, deadlines and provisions of the relevant Regulations, which constitute annex to the Collective Bargaining Agreement”.

9. Pursuant to Art. 5 of the contract: “By executing this contract, the parties undertake: (…)

–to abide by the rules of the Statutes and of the Football Association;

–to accept the full and definitive effect of any decision issued by the Football Federation J, its Bodies and delegated entities (…) as well as the decisions rendered by the Arbitration Panel, by declaring in particular that they accept without limitations the arbitration clause set forth under art. 30 of the Football Federation J Statutes”.

10. On 24 September 2015, the Claimant and the Club of Country B, Club K (hereinafter: Club K) signed an employment contract valid as from the date of signature until 31 July 2016, in accordance with which the Claimant was entitled to a monthly salary of USD 10,000 net and a bonus of USD 500 per match played. According to the information contained in the Transfer Matching System (TMS), the player was registered with Club K under the status “Engage out of contract free of payment” on 1 October 2015 and the employment contract with Club F was uploaded as proof of last contract.

11. On 18 May 2017, the Claimant lodged a claim against the Respondent before FIFA, requesting the total amount of EUR 258,097, plus interest of 5% as from the due date until the date of effective payment.

12. In his claim, the Claimant held that he is basing his claim on the difference between what he was supposed to receive in accordance with the second contract signed with the Respondent, which according to the Claimant remained unpaid, and what he received in accordance with the contract with Club K.

13. In this regard, the Claimant explained that as he occupied a spot with the Respondent as a foreign player and as part of the negotiations of the Respondent to bring another foreign player from Club F to the squad of the Respondent, several documents were concluded between him, the Respondent, and Club F, in order to free a foreign player spot in the squad of the Respondent, send him to Club F and subsequently resume the employment relationship with the Respondent.

14. Along this line, the Claimant sustained that the only reason why he signed the second contract, was, allegedly, that he was only supposed to go Club F on a temporary basis, but the transfer “had to be done on a permanent [basis]”. Furthermore, the Claimant highlighted that the second contract matches with the last season of the first contract.

15. In this context, the player maintained that as “he was not going to be taken into account by the [Club C’s] coach” and he occupied a foreign player spot, his contract was not registered and as a consequence, he ended up as a “free player”, reason for which he signed with Club K on 24 September 2015.

16. Furthermore, the Claimant held that his transfer to Club K was similar to when he went to Club F, except that in this case “Club C did not terminate the contract”, but instead, allegedly, orally undertook the obligation to pay the difference in salary from the contract with Club K. The Claimant sustained that the difference in salaries has not been covered by the Respondent, which is the motivation for the present claim.

17. In respect to the claimed amount of EUR 258,097, the Claimant explained that this amount corresponds to the amount he was supposed to receive from the Respondent, i.e. EUR 338,000 under the second contract, minus the amounts he received from the contract with Club K, including salaries of USD 100,000 and 7 match bonuses. The Claimant explained he made his calculations based on an exchange rate of USD 1 = EUR 0.85144.

18. Finally, the Claimant declared that since the Respondent did not pay the aforementioned amount, he contacted the Respondent on several occasions, namely on 9 March 2017, 5 May 2017, and subsequent email exchanges between the legal representatives of the player and the Respondent during the month of May 2017, wherein he requested the payment of the amount allegedly owed by the Respondent.

19. The Respondent, on its part, has preliminarily challenged FIFA’s competence to deal with this matter on the basis of art. 4 of the contract, as it sustained that the “Arbitration Panel H provided by the League L (hereinafter: the League L)” had exclusive jurisdiction over this matter, in connection with the Collective Bargaining Agreement for the “A League L”, currently applicable.

20. In this context, Club C asserted that the “Arbitration Panel H” complies with the requirements established in art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations).

21. In order to support its allegation, the Respondent provided a copy of the Collective Bargaining Agreement (hereinafter: the CBA), dated 7 August 2012, and its corresponding translation into English. In this regard, art. 23 of the CBA reads in its original text “Il presente Accordo avrá efficacia fino al 30 giugno 2013 e non é tacitamente rinnovablle né prorogablle” while the non-certified translation provided by the Respondent for said article reads: “This Agreement shall be effective until 30 June 2017 and is neither tacitly renewable nor extendable”. Moreover, the Respondent submitted a copy of a document entitled “Regulations for the [Arbitration Panel H]” in Italian and its corresponding translation into English.

22. As to the substance of the matter, the Respondent has rejected the claim, providing the following argumentation:

a) The Claimant did not have a contract with Club C.

1. In this regard, the Respondent argued that in accordance with art. 5 par. 2 of the Regulations “A player may only be registered with one club at a time” and therefore, since the player entered into an employment relationship with Club K on September 2015 as a “free agent” and was registered with it without any transfer instruction in TMS that involved Club C, then there was no contract with the latter. The Respondent held that this was the only manner the Claimant could have been registered with Club K without its involvement, as otherwise there would have been a breach of contract pursuant to the Regulations;

2. The Claimant did not claim anything from the Respondent during the period of the alleged second contract and did not offer any kind of performance nor requested to be part of the team for the relevant 2015-2016 season.

b) If a) is rejected, then Club C argued that the contract is not valid nor effective.

1. In this regard, the Respondent argued that the second contract was signed by a person who was not authorized nor duly empowered by Club C to do so. In this respect, the Respondent held that only its President and not Manager G, is authorized to sign a contract on behalf of Club C and provided a copy of its “Abstract of the Historical Company Information Document”;

2. The second contract was not deposited in the league, thereby, contravening the CBA and national law;

3. The second contract is a “non-official contract template”.

c) If a) and b) are rejected, then the Respondent argued that the Claimant should not be entitled to receive remuneration from Club C pursuant to the principle of aliunde perceptum, since:

1. The Respondent did not benefit from the Claimant’s sporting performance during the 2015-2016 season, since he was not registered with it, and instead, was registered and played with Club K during the relevant period and certainly received a salary from the latter.

23. In his replica, the Claimant insisted on the competence of FIFA’s Dispute Resolution Chamber to deal with the matter at hand as he maintained, inter alia, that:

a) Art. 4 of the second contract is a “predetermined clause”, which offers no possibility of negotiation and/or modification and therefore, in the opinion of the player, it should be considered null since it is abusive;

b) The “Arbitration Panel H” does not comply with the requirements established in art. 22 lit. b) of the FIFA Regulations since, according to the player, it imposes “high costs” and there is no possibility to appeal;

c) The Claimant was not registered in the Football Federation J with the Respondent for the relevant 2015-2016 season. Fact that remains uncontested by the parties.

24. Furthermore, as to the substance, the Claimant insisted on his previous argumentation and further held that since the Respondent did not register him and did not pay its financial obligations towards him in accordance with the second contract, he should be entitled to the requested amount. The Claimant held that, allegedly, the Respondent told him it was not interested in his services and that it “sent him back to his country”.

25. Moreover, the Claimant argued that according to the documentation provided by the Respondent, not only its President has powers to sign on behalf of the club, and therefore, its Sporting Manager, due to his position within the Respondent, could have had authorization to sign the second contract. Moreover, the player highlighted that the second contract contains Club C’s stamp.

26. In its duplica, the Respondent repeated its position and rejected the Claimant’s argumentation. Furthermore, the Respondent insisted that the Claimant did not request to be registered or to be part of the Respondent’s squad and that his first formal request to the Respondent was only made on 9 March 2017.

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 May 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. Furthermore, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 22 March 2018 by means of which the parties were informed of the composition of the Chamber, the member Alexandra Gómez and the member Joel Talavera refrained from participating in the deliberations in the case at hand, due to the fact that the member Alexandra Gómez has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Joel Talavera refrained from participating. Thus, the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players.

3. 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 2018) the Dispute Resolution Chamber is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Player of Country B and an Club of Country D.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 4 of the second contract and alleging that the “Arbitration Panel H” of the Football Federation of Country D had the exclusive jurisdiction over this matter. In particular, the Chamber took note that the Respondent argued that the Collective Bargaining Agreement concluded on 7 August 2012 is applicable and, in consequence, the “Arbitration Panel H” should be the competent body to hear the matter at stake.

5. In this regard, the Chamber noted that the Respondent rejected such position and insisted that FIFA has jurisdiction to deal with the present matter.

6. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. While analysing whether it was competent to decide on the present matter, the Chamber referred to the fact that the Claimant was not registered with the Football Federation of Country D at the moment the event giving rise to the dispute took place, i.e. 1 July 2015, the day where the second contract allegedly concluded between the parties that was supposed to start running. The Chamber held that, as the player was not registered with the Football Federation of Country D at that moment, the player did not fall under the jurisdiction of the Football Federation of Country D. The foregoing fact led the Chamber to the conclusion that the relevant arbitration bodies in Country D were not competent to adjudicate on the matter between the Claimant and the Respondent.

8. As a result, and taking into consideration the above circumstances, the Dispute Resolution Chamber concluded that the Respondent’s objection to the competence of FIFA to hear the present dispute has to be rejected, and that the Dispute Resolution Chamber is therefore competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

9. In continuation, the Chamber analysed which edition of the regulations should be applicable as to the substance of the matter at hand. 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 (editions 2016 and 2018), and considering that the present claim was lodged on 18 May 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

10. Having established the foregoing, and entering into the substance of the matter, the Chamber continued 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 for the assessment of the matter at hand. In particular, 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).

11. In doing so, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he signed a second contract with the Respondent - which was supposed to run as from 1 July 2015 until 30 June 2016 - and arguing that he did not receive any remuneration from the Respondent in connection with said contract. The members of the Chamber duly took not that according to the Claimant, since he occupied a foreign player spot in the squad of the the Respondent - consequence of the employment relationship based on the first contract concluded between the parties - and as part of the negotiations of the Respondent to bring another foreign player from Club F to the squad of the Respondent, several documents were concluded between him, the Respondent, and Club F, in order to allegedly 1) free a foreign player spot in the squad of the Respondent, 2) send him to Club F and 3) subsequently resume the employment relationship with the Respondent.

12. Along this line the DRC recalled that, according to the Claimant, the basis of his claim is the difference between what he was supposed to receive in accordance with the second contract signed with the Respondent and what he received in the contract with Club K for the overlapping period, since, allegedly, the Respondent undertook the obligation to pay the mentioned difference without doing so.

13. Thereafter, the members of the Chamber took note of the reply of the Respondent as to the substance of the claim of the Claimant. In this context, the DRC noted that the Respondent rejected the Claimant’s claim arguing that 1) the Claimant did not have a contract with it 2) in the alternative, that the second contract is not valid nor effective 3) in the further alternative, that the Claimant should not be entitled to receive remuneration since the Respondent did not benefit from the Claimant’s sporting performance during the 2015-2016 season, since he was not registered with it, and instead, was registered and played with Club K during the relevant period and certainly received a salary from the latter.

14. In view of this dissent between the parties in respect of the basic question as to the existence of a contract between the parties for the period claimed by the Claimant and its validity, 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.

15. In respect to the existence of the second contract, the Chamber was satisfied with the fact that the Claimant submitted a copy of a written contract with the Respondent for the specific time period claimed. The DRC took into account that the alleged non-existence of the second contract argued by the Respondent is contradictory with its own argument regarding the alleged competence of the “Arbitration Panel H” to deal with the present matter, since the Respondent itself argued that on the basis of clause 4 of the second contract, the parties had opted to submit their dispute to an arbitration tribunal. In consequence, the DRC concluded that the existence of the second contract is evident.

16. Having stated the above, the DRC addressed the issue of the validity of the second contract in view of the Respondent’s allegations that the contract at the basis of the dispute was signed by a person whom, according to it, did not have authorization to sign on behalf of Club C. Furthermore, the members of the Chamber duly observed that the Respondent held that the second contract is not valid since it is not the official template for contracts.

17. Against such background, the DRC decided that such argumentation cannot be upheld due to the fact that in accordance with the principle of good faith, bona fide, to be respected by the parties during the conclusion of contracts, the Claimant was in good faith authorized to believe that the person signing the relevant agreement on behalf of the Respondent was legally authorized to sign it on behalf of the Respondent. Equally and in accordance with the aforementioned principle of burden of proof, the DRC outlined that the Respondent never provided documentary evidence demonstrating that the Claimant was aware of the situation outlined by the Respondent at the moment of signing the pertinent agreement. With regards to the argument of the Respondent in respect to the contract not being the standard template, the members of the Chamber were of the view that said argument has to be rejected since concluding a contract with a template or without a template, is not part of the essential elements of a contract.

18. Consequently, the Chamber considered that all essentialia negotii were present in the second contract and that it should be considered per se as a valid and binding contract.

19. Notwithstanding the foregoing, the Chamber noted that it remains uncontested by the parties that the second contract was not executed.

20. This being established, the DRC again recalled the content of 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, and, after a thorough analysis of the documentation on file as well as the argumentation on the present matter, the members of the Chamber were of the unanimous opinion that there is no evidence on file to support that the Claimant was interested in the execution of the second contract, and what is more, the circumstances surrounding the present matter led to the indication that the Claimant did not consider himself bound by the second contract.

21. In this regard, the DRC took into consideration that he Claimant did not provide evidence regarding his allegations that the Respondent, allegedly, told him it was not interested in his services after the signature of the second contract.

22. Furthermore and against such background, the DRC deemed important to emphasize that it remained uncontested that the Claimant did not request the execution of the second contract, and that his first formal request to the Respondent was only on 9 March 2017, i.e. 1.5 years after the second contract was supposed to start.

23. Moreover, the Chamber found it worthwhile to underline that, on 24 September 2015, Claimant signed an employment contract with another club and from the documentation of file it can be established that Claimant considered himself a “Free player” at the time.

24. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the documentation by the Claimant, and the development of the factual circumstances as displayed by the parties, the Chamber had to conclude that even though a valid contract per se had been signed by the parties, the contract was never executed as both parties were not interested in its execution.

25. All the above led the Dispute Resolution Chamber to conclude that the claim of of the Claimant is admissible, but has to be rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant 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:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives