F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 7 March 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 7 March 2019,

in the following composition:

Geoff Thompson (England), Chairman

Stijn Boeykens (Belgium), member

Tomislav Kasalo (Croatia), member

Daan de Jong (Netherlands), member

Elvis Chetty (Seychelles), 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 23 March 2017, the Player of Country B, Player A (hereinafter: the player), and the Club of Country D, Club C (hereinafter: the club), allegedly agreed upon an employment contract (hereinafter: the alleged contract), valid for a period of three seasons, starting as from an undefined day in July 2017. In this regard, the player submitted a copy of the alleged contract, drafted in the English, Language of Country D and Language of Country B, and signed by himself and the alleged president of the club, President E.

2. Further, the player referred to an agreement dated 24 February 2017, signed between an intermediary company, Company F (hereinafter: Company F) and Director G, the alleged “Director of Football” of the club. In this respect, the player explains that by means of said agreement, the club ‘gave an exclusive agreement to Company F to operate in the Market of Country B’. Furthermore, the player stated that the alleged contract between the player and the club was concluded with the help of said intermediary company.

3. According to the player, the alleged contract entitled him to receive the following amounts:

 a monthly salary of USD 25,000 ‘free of taxes’;

 a signing fee of USD 1,000,000 ‘if the athlete is in good condition of activities’ ;

 a commission of USD 500,000 to ‘those involved in the “negoti”’;

 a ‘bonus for victories and goals scored (values to be stipulated later)’;

 ‘household, food and average insurance’, as well as life insurance in the amount of USD 1,000,000;

 health insurance for the player and his family, as well as 1 car and 2 ‘airfares per year to Country B’.

4. Moreover, article 8 of the alleged contract holds the following clause: ‘With a fine of termination of contract of USD “2000.000.00 Americans”’.

5. On 1 June 2018, the player lodged a claim against the club in front of FIFA, requesting that the club be ordered to pay compensation for breach of contract in the total amount of USD 3,296,340, specified as follows:

 USD 2,000,000 as the contractual fine for terminating the contract;

 USD 900,000 as 36 monthly salaries of USD 25,000 each for the period between July 2017 and June 2020;

 USD 46,440 as household allowance for three consecutive seasons, taking into account that, according to the player, an average apartment in the city of City H, costs USD 1,290 per month and that the player had a contract for 36 months;

 USD 75,038.40 as food allowance for three consecutive seasons, taking into account that, according to the player, three average three course meals in a mid-range restaurant in the city of City H, cost USD 69.48 per day and that the player had a contract for 36 months;

 USD 31,780.20 as insurance contribution for three consecutive seasons, taking into account that, according to the player, the costs of insurance in Country D cost USD 10,593.40 per year and that the player had a contract for 36 months;

 USD 243,018.41 as bonuses for victories and goals scored for three consecutive seasons, taking into account that, according to the player, an average player in the First League of Country D earns a yearly salary of USD 594,104.61 including bonuses, as well as that the player was entitled to receive an amount of USD 351,086.20 as salary, household, food and insurance allowance;

 5% interest p.a. on the abovementioned amounts as from 1 August 2017 until the date of effective payment.

Finally, the player requested that the club should be held liable for the payment of procedural and legal costs (‘equivalent to 10% of the amount claimed’).

6. In his claim, the player explains that after the conclusion of the alleged contract, the club informed him that it would ‘take all the necessary measures to enable the issuance of the player’s Work Visa for Country D’. Further, the player explains that he complied with all his administrative obligations towards the club and the Authorities of Country D in order ‘to allow the issuance of the player’s visa’, however that he did not receive said Work Visa for Country D, as ‘many months passed without this situation being resolved’. In this regard, the player submitted a copy of several emails exchanged between the player and Company F in the period between 17 April 2017 and 5 June 2017, regarding the documentation needed for the issuance of a Work Visa for Country D.

7. Further, the player explains that on 5 June 2017, he ‘heard back from the club with regards to his visa’, which allegedly informed him that he was authorized to enter Country D as of 15 June 2017. In this regard, the player submitted a copy of an email sent by Company F to the player, requesting him to sign several documents, as well as an undated copy of the visa request for entering Country D, referred to as ‘Application for employment as a professional football soccer in Capital J’, allowing the player to enter Country D as from 15 June 2017, if the payment of the relevant fees would be made before 6 June 2017.

8. In addition, the player explains that – while in process of waiting for the approval of the visa - Company F booked a flight for the player, in order for him to be able to travel to Country D on 24 July 2017, as Company F had understood from the club that ‘the visa is almost ready’. In this regard, the player submitted a copy of an email dated 24 July 2017, sent by Company F to the player, as well as a copy of an electronic flight ticket for a flight from City K (Country B) via Capital L (Country M) to Capital J (Country D) on 24 July 2017. However, as the visa situation had not been solved, the player explains that the flight had to be postponed to an unspecified date.

9. Moreover, the player explains that on 5 August 2017, the ‘Consulate General of the city of Capital J’ sent an official letter to the club, explaining that the visa procedure would be ‘close to a final decision’. In this regard, the player submitted a copy of said letter, dated 5 August 2017, which is, however, not addressed to a specific party. What is more, the player states that in the period between 5 August and 5 September 2017, ‘he continued to seek information’, as he did not hear back from the club. According to the player, on 6 September 2017, the club requested the player for more patience, because of the ‘bureaucracy that depended on the Authorities of Country D’. Further, the player explains that the club informed him that it ‘was willing to send money to [him] in case it takes longer’. In this regard, the player submitted a copy of an email dated 12 September 2017, sent by Company F to the player, as well as a copy of an alleged email of the club, which confirmed said circumstances and which was sent from an e-mail address allegedly belonging to the club: XXX.

10. In this respect, the player deems that on 6 September 2017, the club ‘in an express and unequivocal manner, counted on the player to integrate the club’s professional team and play for the club’. Further, the player explains that he informed the club that he was still willing to join its team. However, according to the player, on 29 October 2017, he was informed by the club, that due to their poor sporting performance and the delay in the issuance of the player’s visa, it ‘could only count on the player for tournaments to follow, since the Visa procedure would be facilitated in November of that year’. In this regard, the player submitted a copy of an alleged email of the club dated 29 October 2017, sent from the email address XXX, confirming that the club allegedly still counts on the player, as well as that Company F is allegedly willing to ‘put another player in his place’.

11. In addition, the player explains that - after not having heard from the club anymore – on 21 December 2017, he put the club in default, requesting to be integrated in the club’s team, however to no avail. What is more, on 22 January 2018, the player again put the club in default, stating that due to the club’s failure to comply with the alleged contract, he deemed that said contract was terminated without just cause. Moreover, the player requested payment of damages in the amount of USD 2,900,000 to be paid by the club, however to no avail.

12. As to the alleged contract, the player explains that said document is to be considered a valid employment agreement, as both parties had expressed their will to execute the contract, which moreover contained obligations for both parties. The player argues that by not issuing his Work Visa for Country D and by not executing the contract, the club had breached its contractual obligations and infringed article 18 par. 4 of the FIFA Regulations, as a contract cannot be made valid upon the issuance of a work visa.

13. Moreover, the player points out that he ‘has not been a prominent footballer throughout his career’, and that by signing a contract with the club, he ‘found a chance to improve his earning in what truly was a one-in-a-lifetime chance’. Further, the player argues that in the period between March and December 2017, he did not negotiate with other clubs in order to mitigate his potential damages, as he was still bound to his contract with the club.

14. In conclusion, the player states that the club terminated the contract without just cause, and that it is liable to pay him the contractually agreed penalty of USD 2,000,000, as well as the amount of USD 900,000 as residual value of his contract. Further, the player requests to be awarded the other amounts as pointed out by the player in his claim.

15. In its reply to the player’s claim, the club first of all argues that it has ‘totally no idea what this issue is about as the player has never employed by our club’, as well as that there is no ‘employment relationship’ with the player.

16. Furthermore, and as to the substance of the matter at hand, the club argued that the alleged contract provided by the player, is ‘not official’ and contains ‘gross inaccuracies’, as well as that it was neither made by the club, nor by anyone representing the club. In this respect, the club argues that it might have been a victim of a fraud, and submitted copies of four contracts it concluded with other players, which documents, according to the club, contain more financial details and articles, compared to the alleged contract, and also hold a different letterhead. Further, according to the club, the alleged contract incorrectly uses the club’s unofficial name “Club CC”, whereas itself, in official documents, only uses its official name “Club C”.

17. In addition, the club explains that the alleged contract contains a signature and the name of President E, allegedly the president of the club. In this respect, the club explains that President E was not on the staff lists as from 2017, and that at the time the alleged contract was signed, President N was its president. In this regard, the club submitted a copy of an undated list of the 2017 staff members of the club, which contains the club’s seal and does not hold the name of President E. Moreover, the club argues that the club never uses the Language of Country B in its official documents, and that as a result of the aforementioned circumstances, the alleged contract cannot be considered as a valid and binding contract, signed by or on behalf on the club.

18. In addition, the club argues that the player was never registered at its club, as well as that there was never an ITC-request for the player. In this regard, the club submitted a copy of a declaration dated 3 August 2018, issued by the Football Association of Country D, and confirming that the player was never registered at the Football Association of Country D. Further, the club referred to several printouts from the websites www.transfermarkt.com and www.soccerway.com, on which webpages the club’s squad on different dates is listed, without mentioning the name of the player.

19. Further, the club contests having signed any agreement with Company F and argues that the version of said alleged agreement submitted by the player (cf. point I./2. above), is false. In this respect, the club states that the person with the name Director G, who allegedly signed the agreement with Company F, does not work for its club and is, above all, not entitled to represent its club.

20. With regard to the email correspondence the player alleges to have received from the club and its representatives, the club points out that all emails submitted by the player are sent from the email address “XXX”, whereas the club’s official and only email addresses are “YYY” and “ZZZ”. In view of the foregoing, the club concludes that the emails exchanged between the player and the address “XXX”, are ‘not made with the club or representatives thereof’.

21. Furthermore, the club explains that it never issued any flight tickets to the player, as it was Company F which booked said ticket for the player.

22. Regarding the alleged request for a work visa for Country D, the club argues that said ‘application is evidently a falsified document’ and that it contains clear errors, such as the wording “Capital J Special Administrative Region”, which according to the club, is a non-existing region in Country D. Further, the club submitted a ‘blank example of the correct visa application form’, as well as foreign visa and work permit for two of its players, which are, according to the club, both different from the version submitted by the player.

23. As to the two default letters the player alleges to have sent to the club (cf. point I./11. above), the club argues that those letters were sent to President E, ‘someone that the club has no connection to’.

24. As a result of the aforementioned circumstances, the club asks for the rejection of the player’s claims, as well as to order him to pay procedural costs.

25. In his replica, as to the substance of the matter at hand, the player points out that the club did not deny that the physical address the player mentioned in his claim, belongs to its club. Further, the player explains that he sent his two default notices by courier to this address, as well as to the email addresses “XXX” and “ZZZ”, as a result of which the club should have been aware of the contents of these default letters.

26. Furthermore, the player points out that President E, according to various sources on the internet, ‘exercises a relevant role at the club’. Also, the player argues that the club uses the name “Club CC”, as well as the letterhead and a logo holding such name, on several official occasions, such as official presentations of new players.

27. Based on the foregoing, and reiterating the contents of article 18 par. 4 of the FIFA Regulations, the player concludes that he and the club concluded a valid employment agreement for three seasons.

28. In addition, the player explains that the agreement between Company F and the club is valid and binding, as it was signed by Director G, who is, according to the official website of the club, the ‘Director-Leader’ of the club’s coaching staff.

29. Regarding the email addresses of the club, the player points out that the email sent from the address “XXX” contained the letterhead of the club, and that therefore, he could reasonably expect that said emails were sent on behalf of the club.

30. In conclusion, the player asks for the rejection of the club’s arguments and for the acceptance of his initial claims.

31. In its duplica, the club reiterated its previous argumentation and denied the player’s argumentation. Furthermore, the club pointed out that in the international media it is sometimes referred to as “Club CC”, but however its official name is “Club C”.

32. What is more, in relation to the player’s default notices, the club states that ‘it is not unreasonable for mail bearing the name of those unknown to the recipient to be routinely ignored in the same way that would be done for all junk mail […]’. Further, the club argues that the transfer window in Country D was open in the period between 1 January 2017 and 28 February 2017, and that for this reason the alleged contract was signed ‘out of time’ (i.e. on 23 March 2017).

33. In addition, the club confirms that Director G is employed by its club as ‘team leader’, however further explains that he does not speak the English language, and that he is not authorized to sign contracts or to represent the club. Further, the club explains that the signature on the alleged contract with Company F and the signature in Director G’s passport are ‘both significantly different’. In this regard, the club submitted a copy of Director G’s passport.

34. In conclusion, the club asks for the rejection of the player’s claim.

35. After having been requested to do so, the player informed FIFA that after the alleged breach of the contract by the club, he did not sign any further contracts with professional clubs until today, as he is currently playing for local amateur clubs in City K, Country B.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 1 June 2018. Consequently, the DRC concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is 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 June 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 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 Player (edition June 2018), and considering that the present claim was lodged on 1 June 2018, the June 2018 edition of said regulations (hereinafter: the 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. 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).

5. In doing so, the members of the Chamber started by acknowledging that, according to the player, he had, on 23 March 2017, concluded an employment contract with the club, valid for a period of three seasons, starting as from an undefined day in July 2017, in accordance with which the club allegedly had undertaken to pay him the remuneration as described in point I./3 above. In this regard, the DRC took note that the player submitted a copy of the alleged contract, which was signed by himself and by President E, i.e. the alleged president of the club.

6. In continuation, the Chamber also acknowledged that the player referred to an agreement dated 24 February 2017, allegedly signed between Company F and the club and according to which, the club “gave an exclusive agreement to [Company F] to operate in the Market of Country B”. In this regard, the DRC took note that the player submitted a copy of said agreement, which was concluded between the intermediary company and Director G, i.e. the alleged “Director of Football” of the club. The DRC also noted that the player stated that his alleged contract with the club had been concluded with the help of said intermediary company.

7. Furthermore, the Chamber observed that the player stated that, in the months after signing said contract, the club failed to arrange a work visa for him on time and allegedly no longer wanted to give execution to the contract. In this regard, the player held that, following a default notice dated 21 December 2017, by means of which the player requested to be integrated in the club’s team, he had put again the club in default on 22 January 2018, stating that the club, by refusing to give execution to the contract, had unilaterally terminated the contract without just cause. As a result, the player deemed that he was therefore entitle to receive compensation for breach of contract from the club in the total amount of USD 3,296,340.

8. The Dispute Resolution Chamber furthermore took due note of the fact that the club, on its part, categorically denied the conclusion of an employment contract with the player. In this respect, the club held that the alleged contract provided by the player is “not official” and contains “gross inaccuracies” and that it was not concluded by the club or anyone representing the latter for that matter. In this regard, the club stated that the alleged contract was signed by President E, allegedly as the “president of the club” and affirmed that, contrary to the allegations of the player, President E was not on the club’s staff list as from 2017 and that, at the time the alleged contract was signed, the president of the club was, in fact, President N.

9. In addition, the Chamber took note that the club denied having signed any agreement with Company F and argued that the copy of the alleged agreement submitted by the player is “false” and that, in any case, the person with the name Director G, who allegedly signed the agreement with Company F on behalf of the club, was never authorized to sign contracts and to represent the club.

10. Moreover, the DRC noted that the club declared that the player was never registered with the club and that no ITC-request for the player had been issued in relation with his alleged transfer which, according to the club, further demonstrate that no employment contract had been concluded.

11. 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 led 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.

12. Having stated the above, and having considered the parties’ submissions, the Dispute Resolution Chamber firstly observed that the player himself admitted that the alleged contract between the player and the club had allegedly been concluded with the help of the intermediary company. Furthermore, the Chamber also noted that the player submitted several exchange of correspondence between himself and Company F in support of his claim, which were in continuation examined by the members of the DRC. In this context, the members of the Chamber considered that from the documentation on file, it appears that the player was never in direct contact with the club, since all the communication always circulated via the intermediary company. Therefore, the Chamber deemed that the exchange of correspondence between the player and Company F is by far not sufficient to confirm that an employment contract had indeed been concluded between the player and the club and cannot be considered as a reliable source of evidence in this regard.

13. In continuation, the members of the DRC turned their attention to the alleged agreement concluded between the intermediary company and a person named Director G, who allegedly signed said agreement as the “Director of Football” of the club.

14. In particular, the Chamber took note of the club’s allegation that the alleged agreement is “false” and not reliable, considering that: i) Director G never acted as a “Director of Football” of the club but only as a “team leader”; ii) Director G had never been authorized to sign contracts or to represent the club on a broader scope; iii) Director G does not speak the English language and iv) the signature contained in the alleged agreement is very different from the signature in Director G’s official passport, a copy of which was submitted by the club.

15. In this context, the members of the Chamber deemed it important to firstly recall that, according to the DRC’s well established jurisprudence, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones concerning falsified signature of documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.

16. In respect of the above, the members of the Chamber, nevertheless, pointed out that all the documentation remitted would be considered with free discretion and, therefore, they focused their attention on the copy of the alleged agreement produced by the Claimant, which contains a signature of Director G as well as on the official passport of Director G, which was submitted by the club in the context of the present dispute.

17. The members of the DRC, thus, proceeded to thoroughly examine the documents on file. In particular, they compared the relevant signatures and had no other option but to conclude that, for a layman, the signature on Director G’s official passport appears to be totally different from the one placed on the alleged agreement.

18. Considering the abovementioned considerations, the Chamber referred once again to art. 12 par. 3 of the Procedural Rules and considered that the player did not provide sufficient documentary evidence in relation with the alleged involvement of the club with the intermediary company. Consequently, the Chamber concluded that it cannot be established with certainty that the intermediary company acted on behalf of the club.

19. In continuation, the DRC noted that the club affirmed that the alleged contract was not concluded by the club or anyone representing the club for that matter. In this regard, the club stated that the alleged contract was signed by a person named President E and affirmed that contrary to the allegations of the player that President E was the president of the club, the latter was not on the club’s staff list as from 2017. In this respect, the Chamber duly noted that the club submitted a list of the 2017 staff members of the club, which does not mention the name of President E. The club further underlined that at the time the alleged contract was signed, President N was, in fact, the president of the club. What is more, the Chamber equally noted that the club underlined that the email address from which the documentation of relevance was apparently sent via the intermediary company to the player, was not the club’s official email address.

20. Moreover, and with regard to the allegations of the club that the alleged contract provided by the player is not “official” and contains “gross inaccuracies”, the Chamber noted that, according to the club, the alleged contract contains the wrong name of the club and holds a different letterhead. In this regard, the Chamber further observed that the club submitted copies of four contracts it concluded with other players, containing, according to the club, more financial details and articles compared to the alleged contract and also a different letterhead.

21. Having duly taken note of the aforementioned documentation presented by the parties, 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, and taking into account the categorical denial of the club that it ever signed a contract with the player, the DRC pointed out that the alleged contract provided by the player does not prove beyond doubt that a contract was signed between him and the club.

22. As to the alleged agreement, the Chamber was eager to emphasise that the nature of such evidence, which was vehemently contested by the club, 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.

23. Therefore, after making reference to art. 12 par. 6 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.

24. 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.

25. 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. The Chamber was also comforted with such conclusion by the fact that, the player did not try to enter in contact with the club directly.

26. As a consequence, the DRC decided that, since the player had not been able to prove beyond doubt that the parties had validly entered into an employment contract, there was no possibility for the Chamber to enter into the question whether or not such alleged contract had been breached.

27. All the above led the Dispute Resolution Chamber to conclude 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 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:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives