F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision29 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

Alexandra Gómez (Uruguay), member

Wouter Lambrecht (Belgium), member

Joel Talavera (Paraguay), 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 7 August 2016, the player of Country B, Player A (hereinafter: the player or Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent) allegedly signed an employment contract (hereinafter: the alleged contract), valid for the period between 7 August 2016 and 31 May 2019.

2. According to the player, he was allegedly entitled to receive the following amounts:

 950,000 in the currency of Country D (approximately EUR 43,302) as ‘basic salary during the 2016/2017 season’;

 1,050,000 in the currency of Country D (approximately EUR 47,860) as ‘basic salary during the 2017/2018 season’;

 1,150,000 in the currency of Country D (approximately EUR 52,418) as ‘basic salary during the 2018/2019 season’.

Further, according to the player, the alleged contract allegedly stipulated that the player was entitled to a bonus of 50,000 in the currency of Country D ‘each year’, ‘in case team finishes league of Country D upon 4 top tier clubs’, as well as USD 840 as ‘player’s and intermediary’s flight ticket to Country D’.

3. On 3 March 2017, the player lodged a claim against the club in front of FIFA, requesting the payment of the total amount of 4,000,000 in the currency of Country D (approximately EUR 182,325) by the club, as follows:

Compensation for breach of contract in the total amount of 3,200,000 in the currency of Country D, as follows:

 3,200,000 in the currency of Country D as the entire value of the contract in the period between 7 August 2016 and 31 May 2019;

Compensation related to the specificity of the sport in the total amount of 800,000 in the currency of Country D, as follows:

 800,000 in the currency of Country D, corresponding to 25% of the player’s total salaries and ‘reflecting player’s damage to his reputation derived from the club’s declarations explaining breaching the agreement with player’;

Furthermore, the player requested to be awarded 5% interest p.a. on the abovementioned amounts as from the respective due dates, as well as to impose sporting sanctions on the club.

4. In his claim, the player explains that on 7 August 2016, he signed a contract with the club. Furthermore, the player states that he was not provided with a copy of the signed agreement, as the club informed him that both copies first had to be sent to the Football Association of Country D. According to the player, he requested on several occasions to be provided with the contract, however to no avail.

5. Furthermore, the player explains that the club’s general director, Club’s general director E, confirmed in an interview on the radio that the club and the player had signed a contract, inter alia with the quote: ‘Yes, Player A signed a contract with Club C for 3 years. We are hopeful’. In addition, the player also explains that on 7 August 2016, a newspaper of Country D published an article, confirming that the player and the club signed a contract, inter alia containing the following sentence: ‘The Club C succeeded in signing player of Country B, Player A, Club F’s left defender and Country B ‘A’ national team player, on a free transfer, for a period of 3 football season’.

6. What is more, the player states that on 8 August 2016, he successfully passed a medical examination and subsequently participated in the club’s training sessions and 2 friendly games.

7. In addition, the player explains that on 14 August 2016, the club’s general secretary informed him that ‘the Agreement is unilaterally cancelled by the club’, as well as that he had ‘to leave the club immediately’. According to the player, said cancellation of the contract was confirmed by at least four newspapers of Country D.

8. Finally, the player explains that on 25 December 2016, he put the club in default and requested the payment of the total amount of 3,200,000 in the currency of Country D as total value of the contract and the amount of USD 840 as reimbursement of costs of a flight ticket, however to no avail.

9. In its reply to the player’s claim, the club argues that it did not sign a contract with the player. In this respect, the club explains that it was offered the services of the player via an intermediary, Intermediary G. As it was not aware of the player’s qualities, the club explains that – after the player had arrived in Country D on 7 August 2016 - on 8 August 2016, he started ‘a technical test’, which lasted 2 days. According to the club, the team manager ‘decided not to engage the player’, as a result of which on 10 August 2017 the club informed the player about its decision not to sign a contract with him. Further, the club explains that on 11 August 2016, the player left Country D.

10. In addition, the club argues that the pictures submitted by the player, do not prove the numbers as claimed by the player, as well as that the club would never be in the position to offer the player an amount of 3,200,000 in the currency of Country D, which is according to the club above its budget. Furthermore, the club states that the four media articles submitted by the player cannot be taken into account, as there are ‘hundreds of cases in which the media did reports unreal cases and unreal situations of players, clubs […]’.

11. Moreover, the club points out that it never requested the player’s ITC, which proves that it never signed a contract with the player. The club further refers to a witness declaration of Intermediary G, who confirmed that the club did not conclude a contract with the player due to his low technical level, and that the player left Country D on 11 August 2016.

12. In his replica, the player submitted a witness statement of Player’s Agent H, a player’s agent who according to the player, ‘negotiated and witnessed the signing of the agreement between player and club’. Further, the player points out that Player’s Agent H confirmed that the parties signed a contract, that the player played in friendly games as well as that the club refused to provide the player with a signed version of the contract. Also, the player argues that Player’s Agent H confirmed that he recorded the conversations between the club and player.

13. What is more, the player argues that the club never challenged the authenticity of the pictures, as well as that the club did not challenge the authenticity of the radio interview. Further, the player argues that the fact that no ITC was requested, is not relevant, as this was ‘under the full responsibility of the club’.

14. In addition, in reply to the club’s arguments that an amount of 3,200,000 in the currency of Country D is above its budget, the player requests that the club submits a copy of all the contracts it signed with different players, in order the ‘prove that club does reach such numbers’.

15. In its duplica, the club stated that Player’s Agent H is not the player’s official agent, as this was Intermediary G. Further, the club contests the credibility of the witness declaration of Player’s Agent H.

16. After having been requested to do so, the player informed FIFA that ‘in order to minimize his damages occurred to him due to the breach of the agreement by the club’, he returned to his club of origin, the club of Country B, Club M. Based on two consecutive contracts, the first contract being valid between 21 June 2015 and 21 June 2017, and the second contract being valid between 1 July 2017 and 30 June 2018, the player was entitled to receive a monthly salary of USD 3,000. For the period between 14 August 2016 and 30 June 2018, this corresponds to USD 67,500 (approximately 1,198,400 in the currency of Country D).

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 3 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 (editions 2016 and 2018) 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 from Country B and an 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 3 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 doing so, the members of the Chamber started by acknowledging that, according to the player, he had, on 7 August 2016, concluded an employment contract with the club, valid for the period between 7 August 2016 and 31 May 2019, in accordance with which the club allegedly had undertaken to pay him – next to several bonuses - 950,000 in the currency of Country D for the 2016/2017 season, 1,050,000 in the currency of Country D for the 2017/2018 season and 1,150,000 in the currency of Country D for the 2018/2019 season. The club had allegedly not been interested in his services after the alleged signing of the employment contract and, therefore, after having sent a default letter to the club which remained without any results, the player asked to be awarded, inter alia, compensation for breach of contract by the club in the amount of 3,200,000 in the currency of Country D, as well as additional compensation in the amount of 800,000 in the currency of Country D.

6. The Dispute Resolution Chamber furthermore took due note of the fact that the club, on its part, had categorically denied the conclusion of an employment contract with the player. In this respect, the club had admitted that the player came to Country D in August 2016 and participated in trainings, in order for the club’s coach to decide if the player would fit the club’s needs, but declared that finally, on 10 August 2016, the player was informed that no employment contract would be concluded with him, due to the player’s inability to meet the club’s requirements. According to the club, the player left Country D on 11 August 2016. What is more, the club points out that it never requested the payer’s ITC.

7. In view of this fundamental 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 first 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 lead the members of the Dispute Resolution Chamber to conclude that it was up to the player to prove that an employment contract, on the basis of which he claims compensation for breach of contract from the club, had in fact been concluded between the parties.

8. Having stated the above, the Dispute Resolution Chamber recalled that the player maintained that he never received a copy of the employment contract he asserts having signed with the club, as a copy first needed to be sent to the Football Association of Country D. However, the player had submitted several documents in support of his claim, which were in continuation examined by the members of the Chamber.

9. In this regard, the Dispute Resolution Chamber took note of the player’s allegation that he passed a medical examination and took part in two friendly games of the club, which should prove that he indeed entered into an employment relationship with the club. These circumstances are however not backed by any documentary evidence, and therefore, while reiterating the contents of art. 12 par. 3 of the Procedural Rules, the Chamber decided could not take the arguments of the player is this respect into account.

10. The members of the Chamber then took note of the pictures of the alleged signing of the contract, which were submitted by the player, as well several reports and articles allegedly published in the press of Country D, dealing with the alleged conclusion of an employment contract between the parties. The club, for its part, contested the trustworthiness of said articles and explained that they do not reflect the real course of the events.

11. Having duly taken note of the aforementioned documentation presented by the player, the members of the Chamber held that in order for the Chamber to be able to assume that the player and the club had indeed been bound through a contractual relationship with the terms as described by the player, 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. In particular, the members of the Chamber pointed out that the photos provided by the player neither prove beyond doubt that a contract was signed between him and the club, nor the actual content of such an alleged contract. As to the press articles, the Chamber was eager to emphasise that the non-official nature of such evidence is by far not sufficient to confirm the existence of an alleged employment legal bond between the player and the club, let alone of its precise terms.

12. The Chamber further referred to the allegations of the player that the employment contract was signed in the presence of Player’s Agent H, his alleged agent. In addition, the members of the Chamber took note of the club’s argumentation that not Player’s Agent H, but Intermediary G was the agent of the player, and that this person provided another witness statement, explicitly confirming that the club and the player did not conclude a contract.

13. With respect to these contradictory witness statements, the Chamber deemed it fit to outline that the status of the witnesses remains unclear, as neither the player nor the club could clarify who these persons were and what their exact relation to the player and the club and their involvement in an alleged negotiation between the parties was. Further, if these persons were indeed the agent of the player or of the club, in the Chamber’s view, the impartiality of the statements made by them could not be guaranteed. Therefore, after making reference to art. 12 par. 3 of the Procedural rules, according to which inter alia the evidence shall be considered with free discretion, the Chamber concluded that the player did not satisfactorily carry the burden of proof regarding the alleged conclusion of a contract between him and the club.

14. Furthermore, the Chamber also deemed it appropriate to point out that – even though the player’s registration is not a condition for the validity of an employment contract signed between a player and a club – no transfer instruction could be found in the Transfer Matching System (TMS), involving the Claimant and the Respondent.

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

16. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected, due to its lack of a contractual basis.

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:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives