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 24 August 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 24 August 2018,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Joaquim Evangelista (Portugal), member

Todd Durbin (USA), member

Stefano La Porta (Italy), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. According to the Player of Country B, Player A (hereinafter: the Claimant), on 30 September 2016, him and the Club of Country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from 1 January 2017 until 31 December 2019.

2. In accordance with the contract, the Claimant was entitled to receive a monthly remuneration of EUR 41,500.

3. The contract does not contain a clause relating to compensation for breach of contract.

4. Furthermore, according to the Claimant, on the same date on which the contract was signed, i.e. 30 September 2016, him and the Respondent concluded a document labelled “Side Agreement” (hereinafter: the side agreement), pursuant to which the Claimant was entitled to receive EUR 50,000 by no later than 30 October 2016.

5. On 14 February 2017, the Claimant lodged a claim against the Respondent before FIFA for the total amount of EUR 1,544,000, corresponding to the “compensation for his loss of income as consequence of the [Respondent’s] unilateral breach of the employment contract”, broken down as follows:

- EUR 1,494,000 corresponding to the total value of the contract (36*41,500);

- EUR 50,000 for the amount established in the side agreement.

6. The Claimant further asked to be awarded interest of 5% p.a. as from 30 October 2016 on the amount of EUR 50,000 and interest of 5% p.a. as from 1 January 2017 on the amount of EUR 1,494,000.

7. In addition, the Claimant asked that the Respondent be sanctioned and be ordered to pay the procedural costs.

8. In support of his claim, the Claimant submitted the declaration of his representative, Agent E, as witness. In particular, the Claimant argued that “in or around late September 2016” he entered into negotiations with the Respondent “regarding the terms of his possible future employment contract”. According to the Claimant, the parties reached an agreement on the terms of the employment contract, “which it was agreed would commence on 1 January 2017”.

9. As a result of the above, the Claimant stated that on 30 September 2016 he signed the employment contract in City F, Country D. According to the Claimant, the contract was also signed by the Respondent’s general manager, Manager G, in presence of the Claimant’s representative and the Respondent’s “president, sport director and scout”.

10. Furthermore, the Claimant argued that “in accordance with the [Respondent’s] wishes”, he was registered as from October 2016 with the Club of Country H, Club J, to maintain his fitness level until he could be finally registered with the Respondent as of 1 January 2017.

11. Within this context, the Claimant held that he concluded the side agreement with the Respondent pursuant to which he was entitled to receive EUR 50,000. According to the Claimant, “a fully executed copy was never circulated” to him or his representative.

12. In continuation, the Claimant argued that he and his representative contacted the Respondent on several occasions to join the Respondent’s pre-season in City K, “which was due to commence in late December 2016”. In this regard, the Claimant stated that he did not receive any instructions or the tickets to join the Respondent’s pre-season and that his representative was informed that he “was no longer wanted in the [Respondent’s] first team”.

13. In the light of these circumstances, the Claimant explained that on 16 January 2017, his legal representatives sent a first letter to the Respondent “to reiterate the provisions of the employment contract which had been signed between the parties and to request immediate compliance with the same”.

14. On 23 January 2017, and “in the absence of any acknowledgement or response to the above letter”, the Claimant sent a new letter to the Respondent granting a 48 hours deadline to provide him with “the schedule for the remainder of the Pre Season Tour and to make arrangements for the Claimant to travel to City K to join the rest of the Respondent’s first team”.

15. According to the Claimant, the Respondent failed again to reply to this letter “perpetuating its material breach of all of its obligations” under the contract. In particular, the Claimant argued that the Respondent failed to provide him with the opportunity to work as a professional footballer, to request his International Transfer Certificate (ITC), to register the contract with the relevant bodies and to make any payment by way of salary.

16. In this regard, the Claimant sustained that he was trapped in a “limbo” since he was unable to train with the Respondent and was also prevented from playing for another team “as a consequence of the existence of the employment contract”.

17. Within this context, the Claimant explained that on 30 January 2017 he sent a last letter to the Respondent by means of which he informed that in the absence of any objection within the next 24 hours, he would begin to seek employment opportunities with other football clubs “in order to mitigate his losses and protect his career”. According to the Claimant, the Respondent, once again, failed to reply to his letter.

18. In view of the above-mentioned circumstances, the Claimant stated that the Respondent’s actions constituted a unilateral termination of the employment contract without just cause “which left him with no alternative but reluctantly seek alternative employment in order to avoid suffering any other detriment”.

19. In its reply, the Respondent rejected the Claimant’s claim and argued that it “never concluded an employment contract” with the Claimant.

20. More specifically, the Respondent contested the validity of the contract. The Respondent argued that notwithstanding that this document contains a signature “similar” to that of Manager G, its general manager, the seal affixed to the signature “was not valid as of the date when the contract was concluded”. According to the Respondent, this seal impression “is outdated since 8 January 2016 as the [Respondent] replaced the seal with a new impression”.

21. In this regard, the Respondent argued that “the use of an invalid forged seal of the [Respondent] incites our utter resentment and suggest that in relation to the [Respondent] there have been committed criminal offences stipulated by the Criminal code of Country D – forgery, manufacture or delivery of falsified documents, stamps, seals – with the aim to cause harm to the [Respondent], to prejudice its image”.

22. Subsequently, the Respondent pointed out that the Claimant failed to provide and did not request, during the alleged contract’s negotiations, “documents that could confirms powers of the person who acted on behalf of the [Respondent] to engage the [Claimant] with the [Respondent]”.

23. Furthermore, the Respondent held that it only knew of the existence of the contract and side agreement by means of the claim lodged by the Claimant before FIFA. In this respect, the Respondent also argued that it never received any of the letters mentioned by the Claimant in his claim.

24. In addition, the Respondent stressed that the side agreement is not signed and that it is dated 1 January 2017. Consequently, it “obviously runs counter to common sense” that the EUR 50,000 established in said document should be paid on 30 October 2016.

25. The Claimant submitted his replica, reiterating his arguments and confirming his position with regards to his statement of claim and arguing that the Respondent’s reply is “entirely false”.

26. The Claimant further held that “this is not a case in which the [Claimant] has entered into an employment contract via third parties without ever meeting the signatory on behalf of the relevant club”. On the contrary, the Claimant stated that the contract “was negotiated and signed by both parties face-to-face”.

27. In this regard, the Claimant argued that the Respondent’s argument of “copies of powers of attorney” is “redundant in the circumstances, given that the [Claimant] and Agent E recognized the individuals involved from [the Respondent’s] official website and were dealing with them personally, in the Director’s Box of [the Respondent’s] stadium, to which it was reasonable to assume only limited personnel would have had access”.

28. Moreover, the Claimant explained that he “had no doubt whatsoever as to the authority of Manager G to ratify the contractual and the pre-contractual discussions he had undertaken with other officials from [the Respondent]”. In support of this allegation, the Claimant submitted a document labelled “contract offer”, dated 26 September 2016 and signed by the alleged Respondent’s director, by means of which the Respondent allegedly offered him to conclude a contract with a duration of 3 years (1 January 2017 until 31 December 2019), a monthly salary of EUR 40,000 net plus a sign-on fee of EUR 50,000.

29. With regard to the validity of the seal used in the contract, the Claimant indicated that the Respondent’s argumentations are irrelevant as “the contract was hand signed by [the Respondent’s] general manager on each page, in the presence of the [Claimant], and therefore the obligations thereunder were self-evidently accepted by the [Respondent]”. According to the Claimant, if an incorrect seal was used by the Respondent, “this was totally unbeknown” by him and “it would not be fair or reasonable for [the Respondent] to be able to rely on the use of an incorrect seal to avoid its obligations under the contract”.

30. Concerning the Respondent’s allegation of fraud, the Claimant argued that the Respondent has to demonstrate the nature and effect of such alleged fraud in accordance with art. 12 par.3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. According to the Claimant, “there was, in fact, no fraud and [the Respondent] simply changed its mind about the contract after validly entering into it and is therefore now disingenuously denying its existence”.

31. In relation to the side agreement, the Claimant reiterated that this “was signed in the same meeting as the contract” but that he never received a signed copy of it. Moreover, the Claimant argued that he acted in accordance with this document, from the date on which it was signed, “by playing for and training with Club J for a number of months as he was requested to do”.

32. Finally, and as regards the letters sent to the Respondent, the Claimant explained that all of them were sent to “the email address which had been used by the [Claimant] and Agent E when corresponding with the administration department of [the Respondent]”.

33. Despite having been invited to do so, the Claimant did not submit an original version of the contract allegedly signed by him and the Respondent.

34. The Respondent submitted its duplica, confirming its positions with regard to the Claimant’s claim.

35. In this respect, the Respondent reiterated that its general manager, Manager G, never signed an employment contract with the Claimant. However, the Respondent did not deny that the Respondent’s general manager could have met the Claimant, as he is “involved in numerous introductions and meeting with players and their representative throughout the entire season”.

36. Subsequently, the Respondent explained that the Respondent’s representatives mentioned by the Claimant have “no relation to the [Respondent]”. In particular, the Respondent held that said persons “are familiar to the [Respondent] based on their activity when they as intermediaries/representatives of players offered player for trails by the club”.

37. Finally, the Respondent pointed out that the witness statement of the Claimant’s representative cannot be admitted as evidence due to the fact that the Claimant’s representative “is a person interested in the present dispute”.

38. By means of an unsolicited correspondence dated 10 January 2018, the Claimant submitted his comments on the duplica presented by the Respondent.

39. Upon FIFA’s request, the Claimant informed that he signed a contract with the Club of Country B, Club L, valid as from 24 February 2017 until 31 December 2019. According to this contract, the Claimant is entitled to receive a basic monthly remuneration amounting to 100,000 gross.

40. Additionally, the Claimant informed that he was registered “on a temporary basis“ and signed another contract with the Club of Country B, Club M, valid as from 16 August 2017 until 31 December 2017. This contract provides a monthly salary in the amount of 77,778 gross.

41. Finally, the Claimant explained that after the expiration of the contract with Club M he “has become registered with Club L and is subject to the Club L contract once more”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 14 February 2017. Consequently, the 2017 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 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 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 alleged employment relationship between the two aforementioned parties invoked by the Claimant.

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 matter was submitted to FIFA on 14 February 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the members of the Chamber entered into the substance of the matter, while emphasizing that, although having acknowledged all the above-mentioned facts, 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 Claimant, he had, on 30 September 2016, concluded an employment contract with the Respondent valid as from 1 January 2017 until 31 December 2019, in accordance with which the Respondent had undertaken to pay him a monthly remuneration in the amount of EUR 41,500.

6. In this respect, the Chamber observed that the Claimant explained that the contract was signed in City F by him and by the Respondent’s general manager, Manager G, in presence of the Claimant’s representative and the Respondent’s “president, sport director and scout”.

7. Moreover, the DRC noticed that, according to the Claimant, on the same date on which the contract was signed, i.e. 30 September 2016, him and the Respondent concluded a side agreement, pursuant to which he was entitled to receive EUR 50,000 by no later than 30 October 2016. The Chamber further observed that, according to the Claimant, he never received a copy duly signed by both parties of the side agreement.

8. In this regard, the members of the Chamber acknowledged that, the Claimant argued that “in accordance with the [Respondent’s] wishes”, he was registered as from October 2016 with the Club of Country H, Club J, to maintain his fitness level until he could be finally registered with the Respondent as of 1 January 2017.

9. Furthermore, the DRC observed that, by means of his letters dated 16 January 2017, 23 January 2017 and 30 January 2017, the Claimant informed and reminded the Respondent of the alleged situation of breach of contract.

10. The Chamber further noticed that, on 14 February 2017, the Claimant lodged a claim against the Respondent before FIFA requesting the payment of EUR 1,544,000 as compensation for breach of contract, corresponding to the total value of the contract (EUR 1,494,000) and the amount established in the side agreement (EUR 50,000).

11. In continuation, the Dispute Resolution Chamber took due note of the fact that the Respondent, on its part, had categorically denied the conclusion of an employment contract with the Claimant. In particular, the DRC observed that the Respondent argued that its general manager, Manager G, never signed an employment contract with the Claimant and that the contract presented by the Claimant bears a signature “similar” to the one of Manager G and a stamp that is invalid and forged.

12. The members of the Chamber equally took into account that the Respondent stressed that the side agreement is not signed and that it is dated 1 January 2017. In this respect, the DRC observed that the Respondent argued that it “runs counter to common sense” that the EUR 50,000 established in said document should be paid on 30 October 2016.

13. Subsequently, the DRC noted that the Claimant, after the notification of the closure of the investigation of the matter at hand, submitted an unsolicited correspondence with his comments on the duplica presented by the Respondent. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as its constant jurisprudence in this regard, the members of the Chamber decided not to take into account the above-mentioned letter of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase.

14. This being established, and in view of the aforementioned dissent between the parties in respect of the basic question as to whether or not an employment contract between the Claimant and the Respondent 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 Claimant to prove the existence of the employment contract on the basis of which compensation for breach of contract by the Respondent is claimed.

15. Having stated the above, the Dispute Resolution Chamber recalled that the Respondent maintained that it never signed a written employment contract with the Claimant and maintained that this document does not contain the signature of its general manager, Manager G, and the stamp affixed to the signature is invalid and forged. What is more, despite having been invited to do so, the Claimant did not provide the relevant employment contract in its original form signed by the hand of the parties. On account of these considerations, the Chamber held that the fact that the Claimant had only submitted a copy of the disputed contract was insufficient to establish the existence of the alleged contractual relationship.

16. For the sake of completeness, the members of the Chamber wished to point out that the signature of Manager G on the disputed document looks rather different than the signature on others documents provided during the course of the proceedings as well as documents contained in the Transfer Matching System (hereinafter: TMS) (cf. art. 6 par. 3 of Annexe 3 of the Regulations).

17. Furthermore, the Chamber reverted to the side agreement presented by the Claimant in support of his petition and highlighted that the Claimant was unable to provide the Chamber with a copy of said document duly signed by both the Claimant and the Respondent. Therefore, the Chamber decided that the side agreement does not contain the essential element of the signature of both the employer and the employee, as a result of which such document cannot be considered as valid and binding upon the parties.

18. In addition, the DRC was eager to underline that it could not follow the Claimant’s argument about his registration with the Club of Country H, Club J, as from October 2016 until he could be finally registered with the Respondent on 1 January 2017. In particular, the Chamber observed that according to the information contained in the TMS, the Claimant signed a contract with said club on 7 October 2016, i.e. after the alleged signature of the contract with the Respondent, valid as from the date of signature until 15 June 2017, covering five and a half months of the alleged period of validity of the contract with the Respondent.

19. In view of the above-mentioned circumstances and in the absence of any other element on the contrary, the members of the Chamber had to conclude that the documents presented by the Claimant did not prove beyond doubt that the Respondent and the Claimant had validly entered into an employment contract.

20. As a consequence, the Dispute Resolution Chamber decided that, since the Claimant had not been able to prove beyond doubt that an employment contract had validly been concluded between itself 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 by the Respondent.

21. 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 / 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