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 25 October 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 October 2018,

in the following composition:

Geoff Thompson (England), Chairman

Stefano La Porta (Italy), member

Muzammil Bin Mohamed (Singapore), member

Tomislav Kasalo (Croatia), member

Joaquim Evangelista (Portugal), 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. According to the Player of Country B, Player A (hereinafter: the Claimant), he and the Club of Country D, Club C (hereinafter: the Respondent), entered into an employment relationship by signing an offer on 19 May 2016 (hereinafter referred to as: the alleged contract), valid “for the season 2016/2017”.

2. According to the alleged contract, “the value of the contract for the season 2016/2017 is US$ 600000”. In addition, the alleged contract provided, inter alia, that “all financial conditions will be applied after the [Claimant] successfully passed the medical and technical tests upon his arrival to Country D”.

3. The alleged contract further stipulates that “the final conditions of the contract and its final approval subject to executive board of [the Respondent]” and that “this offer is valid for a period of 10 days Only”.

4. By letter dated 1 August 2017, the Claimant informed the Respondent that the year before, in August 2016, the latter had unilaterally terminated the alleged contract without just cause and requested to be paid “a compensation of half of the contractual value”, i.e. USD 300,000.

5. On 18 May 2018, the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent had terminated the alleged contract without just cause and requesting to be awarded the total amount of USD 300,000 as compensation, plus 5% interest p.a. “as of 13 August 2016 until the date of effective payment”.

6. More specifically, the Claimant recalled that, back in May 2016, he had been contacted by the Respondent and that, “after some talks”, on 19 May 2016 the latter presented him an offer which allegedly contained the essentialia negotii of a contract. Moreover, the Claimant explained that, after having evaluated other offers, he accepted and signed the one received from the Respondent.

7. The Claimant explained that he “started to doubt if the [Respondent] wished to honour the concluded employment contract because all communication between the parties stopped for about two months”. However, he added, the Respondent eventually sent him the entry VISA and the flight tickets to join the team in Country E on 9 August 2016 for the preseason training camp.

8. Moreover, the Claimant recalled that, on said date, he flew to Country E, passed the medical exams and joined the team. However, “to his big surprise”, after a few days, he was allegedly sent back to Country B because the Respondent’s coach “did not like his performance”.

9. The Claimant further pointed out that the Respondent’s stance caused him financial damages since he had to terminate the employment relationship he had in place with his former club and refused other good offers received at the time.

10. In its reply, the Respondent asked that the claim be rejected in its entirety.

11. More in particular, the Respondent argued that it never signed any contract with the Claimant. In this respect, the Respondent explained that the offer made it clear that the Claimant had to pass the medical tests before any employment contract could be signed. The Respondent added that the Claimant never went to Country D and that, in any case, given its 10-days validity, the offer could not be considered as an employment contract.

12. In continuation, the Respondent pointed out that the Claimant never provided it with his acceptance on time. In this regard, the Respondent underlined that the Claimant did not submit any evidence of his timely acceptance and that his signature on the copy of the offer he attached to his claim could have been done “even by today’s date”. The Respondent explained that, not having received the Claimant’s reply, it had considered that the latter had refused the offer and this was the reason why it had not sent him the VISA for Country D.

13. Moreover, the Respondent argued that, after the Claimant had contacted the team’s director in July 2016, it issued his entry VISA to go to Country D, but the Claimant “gave excuses” not to go there. The Respondent added that, subsequently, after the Claimant had manifested his intention to join the team in Country E, it sent him flight tickets to Country E in order to proceed with the medical tests there. The Respondent specified that the Claimant knew he was flying to Country E specifically to undergo medical tests.

14. In this respect, the Respondent maintained that the tests showed that the Claimant was injured and, thus, was not “able to fulfil the team requirements” and rebutted the Claimant’s argument that it was the coach who decided to dismiss him. The Respondent recalled that, afterwards, the Claimant “refused to travel to Country D and returned back”.

15. Furthermore, the Respondent pointed out that the first correspondence it received from the Claimant was only in August 2017, i.e. a year after the abovementioned facts.

16. In his replica, the Claimant reiterated his position and added that, contrary to what the Respondent stated, the medical results were all “normal” and no indication of an injury was mentioned therein.

17. Despite having been invited by FIFA to do so, the Respondent did not present further comments on the matter.

18. Upon request of FIFA, the Claimant informed that he signed an employment contract with the Club of Country F, Club G, valid as from 6 September 2016 until 30 June 2017 for a monthly salary of 50,000.

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, the Chamber took note that the present matter was submitted to FIFA on 18 May 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 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 parties.

3. 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 2018), and considering that the present claim was lodged on 18 May 2018, the 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.

5. Having said that, the members of the Chamber acknowledged that, according to the Claimant, on 19 May 2016 he had concluded an employment contract with the Respondent valid “for the season 2016/2017” and pursuant to which the Respondent allegedly had undertaken to pay him a total amount of USD 600,000. The Respondent had allegedly not been interested in his services after the signing of the alleged employment contract and, therefore, the Claimant asked to be awarded compensation for breach of contract by the Respondent in the amount of USD 300,000.

6. 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 forwarded an offer to the Claimant but that said offer had made it clear that, prior to the conclusion of an employment contract, the Claimant had to pass medical exams.

7. Moreover, the Chamber observed that, according to the Respondent, the Claimant had failed to send back the offer with his signature in a timely manner and, therefore, the Respondent believed that the offer had been refused by the Claimant.

8. 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 as to 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.

9. Against such background, the Chamber wished to highlight first and foremost that, in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract, their role, the duration of the employment relationship and the remuneration. After a close look at the document presented by the Claimant, the members of the Chamber were satisfied with the conclusion that all such elements were included, given that said offer contained: i. a clear reference to the parties; ii. the parties’ acceptance of the conditions outlined therein, manifested through their respective signatures; iii. in particular, the obligation for the Claimant to render his services towards the Respondent in turn of a remuneration.

10. In respect of the above, and considering the Respondent’s position on the point, the DRC deemed it worthwhile to spend a few more words on the issue concerning the Claimant’s signature. In this respect, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the members of the Chamber concluded that the Claimant had produced satisfactory evidence demonstrating that he had indeed countersigned the offer on the same date in which it had been sent to him by the Respondent.

11. In this context, and mindful that an offer bearing all the above described components is tantamount to a contract with regards to the obligations arising among the parties who signed it, the DRC turned its attention to further circumstances emerged throughout the course of the proceedings.

12. First of all, the members of the Chamber considered of utmost importance the circumstance that the Respondent itself confirmed that, after it had sent the offer to the Claimant, it invited the latter to Country E, where the team was undergoing training camps, in order to undergo medical tests.

13. Consequently, the DRC concluded that, not only from the Claimant’s perspective but also from the Respondent’s point of view, the parties had signed an employment contract and bound themselves to an employment relationship. In the Chamber’s opinion, the Respondent would have not had any reason to obtain a VISA for the Claimant and send it to him together with the flight tickets in order for the latter to be in Country E for the preseason training camp if it was not convinced that the parties had signed an employment contract already.

14. In this respect, the members of the Chamber further observed that the Claimant, for his part, had undeniably showed his willingness to start rendering his services for the Respondent by flying to Country E and joining the team there in August 2016.

15. Moreover, the members of the Chamber observed that, in its reply to the claim, the Respondent maintained that the medical examinations carried out in Country E showed that the Claimant was injured and, thus, was not “able to fulfil the team requirements”. In light of this very statement, the members of the DRC wished to emphasise that on the basis of art. 18 par. 4 of the Regulations and the Chamber’s respective jurisprudence, a club wishing to employ a player has to exercise due diligence and carry out all relevant medical examination prior to entering into an employment contract with a player.

16. In light of all the aforementioned considerations, the members of the Chamber concluded that the Respondent and the Claimant had validly concluded a contract and, thus, entered into a binding employment relationship by signing, on 19 May 2016, the above-mentioned offer and that the parties were necessarily aware of it when they met in Country E.

17. Consequently, the Chamber decided that the Respondent substantially refused to accept the Claimant’s services without any valid reason and, thus, is to be held liable for the early termination of the employment contract without just cause.

18. In continuation and having established the above, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract.

19. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

20. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the contract at the basis of the matter at stake.

21. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its termination and concluded that the Claimant would have been entitled to receive USD 600,000 as remuneration had the employment contract been executed until its regular expiry date, i.e. the end of the season 2016/2017.

22. In continuation, the Chamber assessed as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

23. In respect of the above, the Chamber recalled that the Claimant signed an employment contract with the Club of Country F, Club G, valid as from 6 September 2016 until 30 June 2017 for a monthly salary of 50,000. Therefore, the DRC concluded that the Claimant was able to mitigate his damages during the relevant period for the amount of 450,000.

24. Having said that, the Chamber referred to its constant practice and the general obligation to mitigate damages and pointed out that, although the relevant employment contract was fully valid and enforceable, the execution thereof had actually never started. The Chamber deemed that such circumstance should be taken into consideration in the calculation of the amount of compensation for breach of contract, and decided that, after currency conversion and mitigation, the amount of USD 189,989 as compensation was to be considered reasonable and justified.

25. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of USD 189,989 to the Claimant as compensation for breach of contract.

26. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 18 May 2018, until the date of effective payment.

27. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 189,989, plus 5% interest p.a. as from 18 May 2018 until the date of effective payment.

3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.

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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:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives