F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision8 March 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 March 2018,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Stefano Sartori (Italy), member
Pavel Pivovarov (Russia), member
Muzammil bin Mohamed (Singapore), 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 8 June 2016, the player of Country B, Player A (hereinafter: the Claimant) was presented an employment contract (hereinafter: the contract) by the club of Country D, Club C (hereinafter: the Respondent) for the period 1 July 2016 until 30 May 2017. Furthermore, according to the Claimant, he signed the contract and sent it back to the Respondent.
2. Soon after, the Respondent provided the Claimant flight tickets for his journey to Country D, as well as an entry visa. The visa stipulated “period of stay: 1 month”, and “expiry date: 23 September 2016”.
3. According to the Claimant, there was an official presentation with him as a new reinforcement of the main squad of the club after his arrival on 8 July 2016. The Claimant further clarifies that on 9 July 2016, he passed his medical examinations.
4. In continuation, the Claimant claimed that “after being contacted by the club representatives, the player and the club signed in 01.07.2016 a written Professional First Team Player Contract”. In this context, the Claimant provided an unsigned copy of the employment contract.
5. According to Articles 2 and 3 of the contract, the Claimant was entitled to receive USD 65,000 for the 2016/2017 season, distributed as follows:
a. USD 10,000 “advance”;
b. USD 10,000 in February 2017;
c. USD 10,000 at the end of the season;
d. USD 3,500 as monthly salaries “from end of August 2016 until end of May 2017”.
6. According to Articles 5 and 6 of the contract, the Claimant was entitled to:
a. Furnished accommodation and a car;
b. A “return ticket for his wife and his daughter during the contract period (Country B-Country D-Country B)”.
7. Article 13 of the contract stipulates that when the Respondent terminates the contract, the Claimant is entitled to one month salary. Article 14 holds that the Claimant “can terminate this contract and if there is any offer the (club) should get USD 60,000”.
8. According to the Claimant, the contract was signed in four copies of each version.
9. Subsequently, the Claimant held that the Respondent offered him an official lease agreement for an apartment, valid from 11 July 2016 until 10 July 2017, as well as an official residence permit, valid from 26 July 2016 until 26 July 2018.
10. According to the Claimant, he then joined the team and participated in practices and pre-season tournaments. In this regard, the Claimant stated that he attended six weeks of training and participated in two pre-season tournaments.
11. The Claimant claimed that, after two weeks of practice, he received 800 in the currency of Country D (approx. USD 2,100, according to the Claimant). However, the Claimant asserted that he was actually entitled to 3,770 in the currency of Country D.
12. According to the Claimant, 50 days after joining the club, he was told by the Respondent’s director to leave within 24 hours “for no apparent reason”. Furthermore, he was told to return his keys for the car and apartment.
13. On 14 February 2017, the Claimant demanded via fax from the Respondent to pay, within 10 days, USD 62,900 “as unpaid wages, fees and as compensation equivalent to the residual value of the contract, and USD 20,000 as compensation for moral damages and emotional damages suffered”. However, the Respondent never replied to the Claimant’s demands.
14. On 7 March 2017, the Claimant lodged a claim in front of FIFA, and requested that the Chamber determine the contract to be terminated by the Respondent without just cause.
15. The Claimant further requested to be compensated for an amount of USD 82,900 net, as follows:
a. USD 62,900 net “as unpaid outstanding salaries corresponding to the months August 2016 until May 2017, as compensation equivalent to the residual value of the contract”;
b. USD 20,000 “as compensation for the moral damages and emotional distress that he suffered”;
c. Interests;
d. Compensation due to the specificity of sport.
16. The Claimant held that he has the right to receive the fees and salaries as stipulated in the contract, which totals USD 62,900.
17. The Claimant highlighted that the Respondent clearly misled the Claimant regarding its intentions. The Claimant stated that the Respondent encouraged him to travel to Country D and play for the Respondent, while he was also receiving offers from other clubs.
18. Moreover, the Claimant believed that his expulsion from the Respondent was “inhumane and embarrassing”, and that it left him in a state of financial hardship. As the Claimant put it, he suffered “angst and insecurity beyond the norm flowing from a contract termination”.
19. Therefore, the Claimant claimed USD 20,000 as compensation for moral damages and emotional distress.
20. As regards a lack of a signed employment contract, the Claimant argued that the Respondent refused to sign the contract. He reiterates that a consensus was reached between him and the Respondent on 8 June 2016, and that on the same day he provided the Respondent with a contract signed by him.
21. After the Claimant’s presentation (c.f. point I.3 above), the Claimant claimed that he was told by the Respondent’s representatives “that the Club’s President was on vacation at Country E, and so the President would sign the contract when he returned from Country E”.
22. Given that the contract provided for everything that had been negotiated, and given that the Claimant was granted an apartment with a one-year contract, a car and a valid residence permit, the Claimant accepted the terms of the contract.
23. Moreover, due to the fact that the Claimant provided work during the pre-season for which he received a remuneration of 800 in the currency of Country D, the Claimant argues that the contract was “put in execution”.
24. Lastly, with regard to the untranslated press articles with photographs of the Claimant in the Respondent’s outfit as submitted by him, he argues that these photographs should be considered as evidence, since they prove that the Claimant had been providing work for the football club.
25. In its response, the Respondent clarified that the Claimant was requested to come to the club on a probation period “until such time as his medical tests and the fitness and technical tests were finalized by the adequate personnel of both the government (medical) and the club (fitness and technical)”.
26. The Respondent further argued that during the training sessions “it was evident that the player was not up to the standards of the skills required for the club’s first team level, and therefore the technical staff did not include him in the selection for inadequacy reasons”.
27. As a result, the Respondent did not sign the employment contract, “despite the fact that the club has provided the player during the testing period an adequate housing, and gave him the amount of 800 in the currency of Country D and his international travel ticket”.
28. The Respondent concluded that it is not obliged to pay any compensation or dues to the player, since the Claimant was not contracted by the Respondent in the first place.
29. According to the information contained in the Transfer Matching System (TMS), the Claimant signed an employment contract with the club of Country F, Club G, on 31 August 2016, valid from 1 September 2016 until 30 June 2017. According to this employment contract, the Claimant would receive USD 13,000 as a signing fee, as well as a monthly salary of USD 3,200 for a period of 10 months. Finally, no transfer instruction appears for the Claimant’s alleged transfer to the Respondent club.
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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 7 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. article 21 of the 2017 and 2018 editions 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 2018) the Dispute Resolution Chamber shall adjudicate on 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 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 (editions 2016 and 2018), and considering that the present claim was lodged on 7 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. In this respect, the Chamber observed that, according to the Claimant, on 8 June 2016, the Respondent presented him an employment contract, which was allegedly signed by the Claimant. In particular, the Chamber noted that the Claimant was of the opinion that said contract was valid and binding. The Chamber further noted that, according to the Claimant, he passed a medical examination with the Respondent club, trained with the club, and allegedly, played a number of friendly games. In this context, the Chamber acknowledged that the Claimant obtained a short term visa, a residence permit, a lease agreement for an apartment, as well as a payment of 800 in the currency of Country D.
6. The Chamber moreover understood that the Claimant is of the opinion that his exclusion by the Respondent is to be interpreted as a termination of the employment contract without just cause, thereby granting the Claimant the right to outstanding remuneration and compensation.
7. Conversely, the Chamber noted that, according to the Respondent, the Claimant was only requested to come play for it on a probation period. Furthermore, as per the Respondent, it never signed the employment contract, because the Claimant was not up to the standards of the skills required. As a result, according to the Respondent, the Claimant is not entitled to any outstanding remuneration and/or compensation, because there is no valid and binding contract.
8. In view of this dissent between parties, the Chamber first deemed it important to recall that, in accordance with its longstanding jurisprudence, in order for an employment contract to be considered as valid and binding, it must bear the signature of both the employer and the employee. In this respect, the DRC observed that the Claimant was unable to provide the Chamber with a copy of the employment contract duly signed by himself and the Respondent.
9. Having duly taken note of the aforementioned documentation presented by the Claimant and the Respondent, 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, 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 are not certain to indicate the signing of a contract. In addition, the members of the Chamber agreed, in accordance with the longstanding jurisprudence of the Dispute Resolution Chamber, that the Chamber must be very careful with accepting documents, other than the employment contract, as evidence for the conclusion of a contract.
10. As a consequence, the DRC decided that, in general, an employment contract which is not signed by both parties cannot be accepted and 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.
11. Furthermore, the Chamber was keen to point out that, according to the information in the Transfer Matching System (TMS), there is nothing related to the alleged transfer of the Claimant to the Respondent club, such as, for example, a transfer instruction. On the contrary, the Claimant signed an employment contract with another club in August 2016. The Chamber interpreted this as to indicate that the Claimant did not consider himself bound to the Respondent club.
12. All the above led the DRC to conclude that the claim of the Claimant has to be rejected in full.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is rejected.
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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 (CAS)
Avenue de Beaumont 2
CH-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