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 9 May 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 May 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Eirik Monsen (Norway), member

Todd Durbin (USA), member

Pavel Pivovarov (Russia), 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. According to the Player of Country B, Player A (hereinafter: the Claimant), on 12 May 2016, he signed an employment contract (hereinafter: the alleged contract) with the Club of Country D, Club C (hereinafter: the Respondent), valid as from 1 June 2016 until 31 May 2018.

2. In accordance with the alleged contract, the Claimant was entitled to the total amount of EUR 190,000, corresponding to:

 EUR 90,000 for the season 2016/2017, payable in 10 monthly salaries of EUR 9,000 as from August 2016 to May 2017, due on the last day of each month.

 EUR 100,000 for the season 2017/2018, payable in 10 monthly salaries of EUR 10,000 each as from August 2017 until May 2018, due on the last day of each month.

3. On 10 June 2016, the Respondent addressed the Embassy of Country D in Country B in writing, filing a request for the Claimant “to visit Country D from 21 June 2016 to 21 September 2016”. In accordance with the letter, the Respondent requested said embassy to “please make all necessary arrangements for [the Claimant] to take visa for multiple entries for Country D to participate in our football team’s training program because he already signed a contract with our team. Our club has the responsibility for the transfer, accommodation and him departure from Country D“.

4. On 23 June 2016 the Claimant signed a rental agreement for an apartment in Country D valid until 27 June 2017.

5. On 23 June 2016, the Claimant received EUR 3,150 from the Respondent “on a/c for salary”.

6. On 4 July 2016, the Respondent sent an e-mail to the Claimant, reading as follows: “please find attached the contracts of Player A. Please check if is ok… the gross amount I will have it until tomorrow”. According to the Claimant, he received via this e-mail address another employment contract (hereinafter: the second alleged contract) for him to sign, valid as from 1 July 2016 until 31 May 2018.

7. In accordance with the second alleged contract, the Claimant was entitled to:

 EUR 8,200 per month as from 31 August 2016 until 31 May 2017 “with a grace period of 60 days”;

 EUR 9,000 per month as from 31 August 2017 until 31 May 2018 “with a grace period of 60 days”.

8. The second alleged contract further entitled the Claimant to EUR 8,000 at the date of signature.

9. In accordance with the second alleged contract, “the present contract is regulated by the provision of the Standard Employment Contract […]. The Terms of the Standard Employment Contract constitute an integral part of the present Contract having full and direct implementation.”

10. On 11 April 2018, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the total amount of EUR 186,850, consisting of:

 EUR 13,050 as outstanding remuneration, corresponding to the salary of August 2016 in the amount of EUR 8,200 and EUR 8,000 due at the signing of the second alleged contract, minus EUR 3,150 paid to the Claimant, plus 5% interest p.a. as from 1 September 2016;

 EUR 173,800 as compensation for breach of contract and corresponding to the residual value of the second alleged contract as from the end of August 2016, plus 5% interest p.a. as from the date of the claim.

11. More specifically, the Claimant argued that he sent back the alleged contract signed by him to the Respondent on 18 May 2016, but never received a copy signed by the Respondent. The Claimant further alleged that the Respondent paid him flight tickets for him to go to Country D, and that his signature was announced on the Respondent’s media. The Claimant argued that he signed a rental agreement for an apartment with one year duration and that a member of the Respondent was with him as witness and signed the rental agreement as well. According to the Claimant, the Respondent informed him in mid-august 2016 that it was no longer interested in his services. The Claimant further argued that the Respondent had proposed to terminate the alleged contract against the payment of 2 monthly salaries paid to him.

12. The Claimant argued that he participated in the Respondent’s training camp before the beginning of the season, signed a rental agreement for a year with a member of the Respondent’s management, received a partial salary payment and, even though he does not have a contract signed by both parties, the alleged contract should be recognized as valid. Moreover, according to the Claimant, the said alleged contract had been terminated without just cause by the Respondent. The Claimant added that he left the country on 31 August 2016 as the transfer window was coming to an end and he had no certainty that the Respondent would comply with its contractual obligations.

13. Furthermore, the Claimant recalled that he had a conversation via WhatsApp with Member E, allegedly a member of the Respondent, who replied, when asked about the Claimant’s alleged contract, “I make your contract… I spoke with the account department and I will let you know about your money”.

14. In reply, the Respondent argued that the parties never signed a contract, and that the Claimant was invited to the Respondent for a test to determine whether he could be a good fit for the team. Regarding the letter sent to the Embassy of Country D in Country B for the Claimant’s VISA, the Respondent argued that it was only a request for a visitor permit, with a maximum duration of 3 months and was needed to test the Claimant in Country D. The Respondent further argued that the flight tickets had been paid in order for the Claimant to be tested in Country D and a return flight for the date of 19 July 2016 had been also booked. Moreover, the Respondent explained that the rental agreement provided by the Claimant was not signed by the landlord and, as such, could not be considered valid.

15. The Respondent acknowledged having remitted EUR 3,150 to the Claimant, but explained that it was just to cover the Claimant’s living costs in Country D during the test period. The Respondent argued that the payment of EUR 3,150 could only be considered as an advance payment on salary if the Respondent and the Claimant had agreed to enter into an employment relationship.

16. The Respondent argued that the e-mail of 4 July 2016 (cf. supra point I.6.) proves that no contracts had been signed by the parties beforehand. Regarding the second alleged contract, the Respondent held that there are “too many differences from the previous agreement dated 12 May 2016”, including the dates and the salaries.

17. Regarding the correspondence via WhatsApp of the Claimant with a member of the Respondent, the Respondent claimed that the messages of one of its employees do not bind it, and further argued that, in any case, the sentence “I make your contract” proved that no contract had been signed by the parties beforehand. The Respondent opposed that, since no contract had been signed, it could not have made a termination proposal to the Claimant, and that in any case the Respondent “is not bound with the [Claimant] into any employment relationship due to the misrepresentation of his agent’s to him”.

18. Lastly, the Respondent emphasized that the Claimant left the country on 19 July 2016 and joined a new club in August 2016 and that, before lodging the claim in front of FIFA, he had never put the Respondent in default or contacted it regarding this issue and that the claim had been lodged almost 2 years after the elements giving rise to the dispute occurred.

19. In his replica, the Claimant affirmed that the VISA request explicitly said that he “already signed a contract with our team”, and did not make any mention of a test. The Claimant argued that the request for a touristic VISA was a normal way for the Respondent to be able to first get him in the country quickly and then request a work VISA. The Claimant added that, in order to acquire a tourist VISA, a return ticket is needed.

20. The Claimant further rejected the Respondent’s argumentation that he left the country on 19 July 2016, claiming that he left on 31 August 2016 only.

21. The Claimant reiterated that the Respondent had posted on its social media his signing and never retracted such information. The Claimant underlined that the payment of EUR 3,150 had been marked as a salary.

22. Furthermore, the Claimant held that he contacted Member E on 21 July 2016 requesting a copy of the alleged contract signed by the Respondent, and that she replied “when you will be back I give you. You have to come to my office”.

23. In continuation, the Claimant considered that, although he does not have a copy of the alleged contract signed by both parties, all of the above-mentioned elements constitute a body of evidence of the existence of an employment relationship. According to the Claimant, the alleged contract dated May 2016 contained the essentialia negotii of an employment contract, with its duration, salaries, and essential obligations of the parties, and was accepted by him in May 2016 with his signature and was therefore binding since that date.

24. Moreover, the Claimant provided a copy of the rental agreement signed by the landlord, himself and a member of the Respondent.

25. Lastly, the Claimant held that him and his agent complained about the situation by contacting members of the Respondent, such as Member E or the coach but considered that the Respondent had lost every interest in him, and that was the reason why he left the country on 31 August 2016.

26. In its duplica, the Respondent held that the Claimant did not provide any substantiated evidence that he had left the country on 31 August 2016, and that, should the DRC consider that he stayed until that date, nothing could link his alleged stay in the country to the Respondent.

27. Regarding the rental agreement, the Respondent considered that it was a contract that did not bind it, regardless of the fact that one of its representatives was present as witness at the moment such agreement was signed.

28. Regarding the payment of EUR 3,150, the Respondent still acknowledged making such payment but contested the payment receipt, as it makes no mention of the Respondent, with no logo of the Respondent “also not any other evidence indicating the nature of this document”. The Respondent reiterated that had an employment contract been signed following the test of the Claimant, that amount would have been deducted from the 1st salary of the Claimant, but according to the Respondent, that never happened.

29. In its duplica, the Respondent introduced an argument concerning the admissibility of the claim, maintaining that FIFA had no competence over this dispute. The Respondent argued that, should the DRC “accept the existence of the alleged employment contract dated 01/07/2016”, in application of the second alleged contract, which refers to the Standard Employment Contract of Country D, FIFA is not competent. The Respondent held that the Standard Employment Contract provides the following: “Any employment dispute between the [Respondent] and the [Claimant] shall fall under the exclusive jurisdiction of the National Dispute Resolution Chamber of the Football Association F and shall be resolved according to the applicable regulations of the Football Association F”.

30. According to the information available on the Transfer Matching System (TMS), on 29 August 2016 and modified on 17 January 2017, the Claimant and the Club of Country G, Club H, signed an employment contract valid as from the date of signature until 29 May 2017 for a total remuneration of EUR 20,000. On 12 August 2017, the Claimant and the Club of Country J, Club K signed an employment contract valid as from 13 August 2017 until 12 June 2018, in accordance with which the Claimant was entitled to a monthly remuneration of USD 8,000.

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 11 April 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 2019), the Dispute Resolution Chamber is, in principle, 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 alleged employment relationship between the parties.

3. Having said that, the Chamber recalled the Respondent’s last position that, should the DRC consider that an employment contract had been entered into by and between the Claimant and the Respondent, it contested the DRC’s competence in favour of deciding bodies of the Football Association of Country D referring to the contents of the Standard Employment Contract.

4. In this regard, the Chamber concluded that the relevant jurisdiction clause invoked is not directly contained in any of the two alleged contracts produced in the course of the proceedings. Moreover, the DRC observed that the Respondent raised its argument on the competence only with its second submission. In reply to the claim, in fact, the Respondent only took position on the substance of the matter, without challenging FIFA’s competence and, therefore, implicitly accepting it.

5. Consequently, the members of the Chamber confirmed that the DRC is competent to deal with the present matter in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players.

6. Subsequently, 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 (edition 2019), and considering that the present claim was lodged on 11 April 2018, the 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

7. 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.

8. Having said that, the members of the Chamber acknowledged that, according to the Claimant, on 12 May 2016 he had concluded an employment contract with the Respondent valid as from 1 June 2016 until 31 May 2018, in accordance with which the Respondent allegedly had undertaken to pay him a total remuneration of EUR 190,000. According to the Claimant, the Respondent was not interested in his services after the alleged signing of the employment contract and, therefore, the Claimant asked to be awarded compensation for breach of contract by the Respondent in the amount of EUR 186,850, as EUR 3,150 had already been paid to him.

9. On the other hand, the DRC noted that the Respondent, for its part, categorically denied the conclusion of an employment contract with the Claimant. The Respondent admitted that it had tested the Claimant, paid him the amount of EUR 3,150 in order to cover his living costs during the trial period but that, eventually, the said test did not prove to be conclusive and the parties did not sign any contract.

10. In light of the above, the members of the Chamber observed that the pivotal issue in this dispute, considering the diverging position of the parties, was to determine whether or not an employment contract had been concluded between the Claimant and the Respondent. The DRC further observed that, only if this was to be answered in the affirmative, it would be necessary to determine whether the contract had been terminated without just cause by the Respondent as claimed by the Claimant and, if so, to decide on the consequences thereof.

11. Having said that, 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 DRC to conclude that it was up to the Claimant to prove that the employment contract, on the basis of which he claimed compensation for breach of contract from the Respondent, indeed existed.

12. Having stated the above, the Chamber recalled that the Claimant maintained that the parties had signed two contracts, one in May 2016 and one in July 2016, and that the Respondent had asked him to fly to Country D and, to that end, had provided him with a VISA, plane tickets and even paid him EUR 3,150. The Claimant was not able to provide an employment contract signed by both parties. However, he submitted a series of documents in support of his claim, which were in continuation examined by the members of the Chamber.

13. First of all, the copy of the alleged contract of July 2016 provided by the Claimant not only lacks the Respondent’s signature, but also that of the Claimant. Consequently, the Chamber decided not to take into account this document as from the start.

14. That said, with regards to the contract allegedly concluded in May 2016, the members of the Chamber noted that the Claimant had submitted, in brief: (i) a VISA request made by the Respondent, stating that a contract had been signed; (ii) a receipt of payment of EUR 3,150; (iii) a copy of a signed rental agreement for an apartment in Country D for one year and (iv) extracts of WhatsApp messages exchanged with an alleged representative of the Respondent, whereby the latter declared that she would “make [his] contract”.

15. In respect of the above, the members of the Chamber first and foremost observed that the only signed document that had been provided by the Claimant was a copy of a rental agreement for an apartment in Country D for one year. With regards to the payment of EUR 3,150 performed by the Respondent towards the Claimant, the Chamber observed that the Respondent contested that such remittance represented a salary payment and that, in any case, the said amount does not correspond to any salary under the alleged contract. According to the alleged contract, in fact, the first monthly salary that the Respondent supposedly undertook to pay was EUR 9,000 on 31 August 2016. Consequently, the members of the DRC deemed that such payment could not be allocated to any alleged monthly salary. In the DRC’s opinion, all that can be inferred from the fact that the payment was “on a/c for salary” (cf. supra point I.5.) is that, had the parties concluded a contract, that amount might have been deducted to the Claimant’s first salary.

16. Having said this, the DRC proceeded to examine the exchange of e-mails and WhatsApp messages submitted by the Claimant, in order to verify whether it was possible to retrieve an express acceptance of an offer containing the essentialia negotii of an employment agreement.

17. In this respect, the DRC acknowledged that the Respondent had initiated the proceedings in order to obtain a VISA for the Claimant. However, regardless of the reason indicated by the Respondent in its request, the Chamber observed that the Respondent had requested a temporary VISA, with a duration limited to 3 months. Considering that the alleged employment relationship was meant to run for 2 years, in the Chamber’s opinion, the recalled request – if indicative of any intention from the Respondent – was to allow the Claimant to reside in Country D during a trial period rather than for the execution of a 2-year employment contract.

18. What is more, the DRC deemed important to underline that, from the documentation produced by the Claimant, no written acceptance by both parties of a specific contract emerges. In other words, the DRC concluded that, based on the documents provided by the Claimant, it could not be proven that either of the parties had unequivocally accepted in writing to bind themselves to an employment contract.

19. In continuation, the Chamber turned its attention to the other documentation produced by the Claimant. In this respect, the members of the DRC concluded that the statements apparently made by the Respondent on social media, as well as the reference made by a representative of the Respondent to a contract that would have possibly been drafted in the future, cannot by themselves constitute conclusive evidence strong enough to, substantially, replace the submission of a signed contract.

20. 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 to an employment contract with the terms as described by the Claimant, it had to be established, with comfortable satisfaction, by documentary evidence, that said parties had indeed entered into a 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 the 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 DRC must be very careful with accepting documents, other than the employment contract duly signed by the parties, as evidence for the conclusion of a contract.

21. In respect of the foregoing, the members of the Chamber had to conclude that the documents presented by the Claimant did not prove to the Chamber’s comfortable satisfaction that the Respondent and the Claimant had validly entered into an employment contract.

22. What is more, even assuming that it was 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 have needed to be in possession of such labour agreement in order to be able to properly assess the claim of the Claimant.

23. Furthermore, and only for the sake of argument, the Chamber took into account the Claimant’s stance and observed that he never addressed the Respondent with a default notice requesting the execution of any contract nor any formal termination of the alleged contracts and lodged his claim almost 2 years after the events giving rise to the dispute occurred.

24. As a consequence, the Dispute Resolution Chamber decided that, since the Claimant had not been able to prove that an employment contract had validly been concluded between himself and the Respondent, there was no need for the Chamber to enter into the question of whether or not such alleged employment contract had been breached.

25. 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 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 (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:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives