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

arisen between the parties

I. Facts of the case

1. On 1 September 2013, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), signed an employment contract valid from 1 September 2013 until 30 June 2014.

2. According to the Claimant, on 28 November 2013, the parties allegedly signed an extension of the contract (hereinafter: the contract extension), valid for the 2014-2015 and 2015-2016 sporting seasons.

3. According to the Claimant, he was entitled to receive a remuneration of USD 750,000 for the 2014-2015 and 2015-2016 sporting seasons based on the alleged contract extension.

4. On 21 October 2014, the Claimant put the Respondent in default, asking the latter to clarify his contractual situation and affirming that “the owner of the club doesn’t want to give [him] free and doesn’t want to give [him] [his] money”.

5. On 13 December 2014, the Claimant put the Respondent in default a second time, claiming “he has been refused to participate in any football activities despite the fact that they both renewed in November 2013 the contract” and asking the Respondent how it wanted to resolve the matter.

6. On 12 December 2016, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the following:

a. USD 31,250 as outstanding remuneration corresponding to the alleged monthly salary of December 2014 in accordance with the alleged contract extension, plus interest of 5% p.a. from the due date;

b. USD 562,500 as compensation for breach of contract, plus interest of 5% p.a. from the date of claim, amount broken-down as follows:

i. USD 187,500 corresponding to the remaining 6 months of the 2014-2015 sporting season;

ii. USD 375,000 corresponding to the 2015-2016 sporting season.

7. In his statement of claim, the Claimant explained that the Respondent allegedly refused to give him a copy of the contract extension. The Claimant acknowledged not being able to provide a copy of the alleged contract extension in consequence.

8. Along this line, the Claimant provided FIFA with a copy of his agent’s “Professional Players Marketing Agreement”, dated 28 November 2013, signed by the player’s agent, Agent E, and the Respondent, in which it is stipulated the following: […]“whereas, the first party [i.e. Club C], which is one of the most famous sporting clubs in Country D, is desirous to renew the contract with a foreign professional football player, and whereas the second party, Agent E, is an agent of the foreign football player with whom the club wished to renew contractual relations ; whereas the first party has shown sincere desire in renewing contractual relations with the player/Player A […].

9. Despite not having a copy of the contract extension, the Claimant claims that the existence of such extension can be proven with his agent’s “Professional Players Marketing Agreement”, which stipulates in its art. 2 that “the first party shall pay the second party commission amounting to 10% of the value of the renewal of the professional player’s contract amounting to USD 75,000”. According to the Claimant, if the amount of USD 75,000 corresponds to 10% of the value of the player’s contract extension, the total value of said contract extension is USD 750,000 for the 2014-2015 and 2015-2016 sporting seasons.

10. In this regard, the Claimant claims that from the beginning of the 2014 sporting season, the relationship between the parties had deteriorated. The Claimant asserts that “at the beginning, a systematic delay in the payment of the player’s salaries had been observed” and that it further led to the Claimant not being paid anymore.

11. Furthermore, the Claimant affirms that the Respondent failed to pay his salaries for the months of August, September, October, November and December 2014 but admits that all the abovementioned alleged outstanding salaries are time-barred except his salary of December 2014.

12. After having tried to notify the claim to the Respondent on two occasions, the claim was sent for a third time to the Respondent via the Football Association of Country D. In this regard, the Football Association of Country D provided FIFA with a written confirmation of receipt of the Claimant’s claim by the Respondent on 25 September 2017.

13. In its reply, the Respondent alleges that it had not received any correspondence from FIFA or from the Claimant in the matter at hand and that “the letter we received is without any attachment in relation to the complaint”. The Respondent affirms “that the relationship with the player has been finished without any problem and also with complete satisfaction of the player”.

14. In response to FIFA’s request, the Claimant indicated that he had signed an employment contract with the Club of Country F, Club G, valid from 17 May 2015 until 30 June 2016, providing for the payment of “1,500 per week payable by monthly instalments in arrear from 15 July 2015 to 30 June 2016”.

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 12 December 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2015 edition; hereinafter: Procedural Rules) are 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 (2018 edition) 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 employment relationship between the two aforementioned parties.

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 (2018 edition), and considering that the present claim was lodged on 12 December 2016, the 2016 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. The Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. The Chamber, however, 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 members of the Chamber recalled that the parties had signed an employment contract valid from 1 September 2013 until 30 June 2014. The Chamber equally noted that, according to the Claimant, he had, on 28 November 2013, concluded an extension of said employment contract with the Respondent, allegedly valid for the 2014-2015 and 2015-2016 sporting seasons, in accordance with which the Respondent allegedly had undertaken to pay him the total amount of USD 750,000.

6. In continuation, the DRC observed that the Claimant did not provide a copy of the alleged contract extension.

7. Furthermore, the members of the DRC noted that, on 12 December 2016, the Claimant lodged a claim against the Respondent maintaining that the Respondent allegedly failed to pay the entirety of his remuneration due between August 2014 and December 2014 in accordance with the alleged contract extension. In this regard, the Chamber took not that the Claimant admitted that all the abovementioned [alleged] outstanding salaries are time-barred except his salary of December 2014. Consequently, the Claimant claims outstanding remuneration in the amount of USD 31,250, corresponding to his monthly salary of December 2014 as well as compensation for breach of contract by the Respondent in the amount of USD 562,000.

8. The DRC furthermore took due note of the fact that the Respondent, on its part, declared that “the relationship with the player has been finished without any problem and also with complete satisfaction of the player”.

9. Taking into consideration that the Claimant’s claim refers to a period of time after the natural expiry of the contract with the Respondent, i.e. 30 June 2014 and that the Claimant was not able to provide a copy of the alleged contract extension that would cover the relevant period of time, the DRC considered that the main issue is to establish whether or not an extension of the employment contract between the Claimant and the Respondent had been concluded.

10. In this regard, i.e. the basic question as to whether or not an extension of the employment contract between the parties 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 contract extension, on the basis of which he claims outstanding remuneration and compensation for breach of contract from the Respondent, indeed existed.

11. Having stated the above, the DRC recalled that the Claimant maintained that he never received a copy of the contract extension he asserts having signed with the Respondent and that, although being unable to provide a copy of the contract extension at the basis of his claim, he deemed that its existence can be proven with other means. To this end, the Claimant submitted additional documentation in support of his claim which was in continuation examined by the members of the Chamber.

12. In this context, the DRC took note of the documentation provided by the Claimant, consisting in the “Professional Players Marketing Agreement”, dated 28 November 2013, which was concluded between the Claimant’s agent and the Respondent and which established the alleged commission fees of the Claimant’s agent in relation to the contract extension allegedly concluded between the Claimant and the Respondent.

13. In this regard, the Chamber observed that the “Professional Players Marketing Agreement” does not explicitly indicate that an extension of the employment contract had been concluded between the Claimant and the Respondent and noted that such document only refers to a hypothetical extension of the employment contract. In particular, the DRC noted that said agreement stipulates that “the first party, which is one of the most famous sporting clubs in Country D, is desirous to renew the contract with a foreign professional football player […] whereas the First Party has shown sincere desire in renewing contractual relations with the player Player A […]”. Moreover, the DRC noted that the Claimant himself is not a party to this agreement.

14. 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, beyond doubt, by documentary evidence, that the said parties had indeed entered into a respective labour agreement covering a period of time after the contract, 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.

15. In respect of the foregoing, the members of the Chamber had to conclude that the “Professional Players Marketing Agreement” presented by the Claimant did not prove beyond doubt that the Respondent and the Claimant, on 28 November 2013, had validly extended the employment contract beyond its natural expiry, i.e. 30 June 2014.

16. What is more, even if it would have been possible to establish on the basis of the documents on file, other than an employment contract, that the parties had entered into a labour agreement, the Chamber wished to highlight that it would need to be in possession of such labour agreement in order to be able to properly assess the claim of the Claimant.

17. As a consequence, the DRC decided that, since the Claimant had not been able to prove beyond doubt that a contract extension covering the period as from 30 June 2014 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 contract extension had been breached.

18. 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

1. 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

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives