F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 29 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 January 2020,

in the following composition:

Geoff Thompson (England), Chairman (did not take part in the deliberations)

Daan de Jong (The Netherlands), member

Alexandra Gomez Bruinewood (Uruguay), member

on the claim presented by the player,

Darren Raekwon Mcintosh-Buffonge, England

represented by Mr Cristiano Caús

as Claimant

against the club,

Genoa Cricket and Football Club, Italy

represented by Messrs Ian Laing and Paolo Lombardi

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 2 April 2019, the Claimant and the Respondent (hereinafter jointly referred to as: the parties) signed a document named “Proposal for an Employment Contract” (hereinafter: the proposal) while the player was still registered and contractually bound with the club Manchester United until 30 June 2019.

2. The proposal read as follows: “Subject: Without prejudice proposal for an Employment Contract of the Player Darren Raekwon McIntosh-Buffonge, born on 07/11/1998 in London, England, English nationality, presently registered with, Manchester United, England (…)”.

3. The proposal set out the financial terms and conditions of “an eventual Employment Contract” over 5 years (salary and bonuses) and concluded with the mention “Acceptance of this proposal does not constitute a valid and binding agreement and shall only be regarded as confirmation that Genoa and Player are willing to conclude an employment agreement in compliance with the FIFA/FIGC regulations, only upon the medical tests.”

4. By a letter to the Respondent dated 15 April 2019, the Claimant expressed his concerns following the cancellation of the medical test by the Respondent, which was supposed to take place on 9 April 2019. In this context, the Claimant asked the Respondent to convene another date for the medical test, and indicated that he would be available on 24 April 2019.

5. On 5 June 2019, the Claimant sent a second letter to the Respondent, granting a 5-day deadline to schedule a new date for the medical test. By means of the same letter, the Claimant also asked the Respondent whether it had already notified his current club, Manchester United.

6. By a letter dated 15 June 2019, the Respondent replied that “due to recent changes in the Technical Area, the player is no longer part of the Club’s technical program”.

7. On 21 June 2019, the Claimant requested that the Respondent comply with the terms of the proposal, to perform the medical test and to sign an employment contract. Should the Respondent refuse the latter, the Claimant indicated that he would submit the case in front of FIFA, seeking compensation equal to the residual value of the “contract prematurely terminated” and sporting sanctions against the Respondent. The latter did not answer.

8. On 23 July 2019, the Claimant concluded an employment contract with the Italian club Spezia Calcio, playing in Serie B (Italian second division), for a duration of 1 year. According to the said employment contract, the Claimant is entitled to an annual salary of EUR 151,000.

9. On 21 September 2019, the Claimant submitted his claim against the Respondent in front of FIFA, claiming the total amount of EUR 1,599,000, plus interest of 5% p.a pro rate tempore, corresponding to the salaries as provided in the proposal, over 5 seasons (EUR 350,000 per season and EUR 1,750,000 in total), mitigated with the Claimant’s annual salary at the club Spezia Calcio (EUR 151,000). The Claimant also requested the application of disciplinary sanctions against the Respondent.

10. According to the Claimant, the parties concluded the proposal because he was still under contract with the club Manchester United until 30 June 2019, thus making the conclusion of a full employment contract impossible. In this context, the Claimant argued that following the conclusion of the proposal, his agents stopped searching for a new club for the season 2019/2020, as he was convinced that the proposal with the Respondent was binding.

11. The Claimant considered that the proposal presented all the necessary elements of a contract, i.e. the essentialia negotti, thus making it binding upon the parties. In this context, the Claimant highlighted that the proposal contained a date, the name of the parties, the duration, the amount of remuneration and the signature of the parties.

12. The Claimant further argued that upon the conclusion of the proposal, it was the Respondent’s obligation to provide the date and relevant information in order for the Claimant to pass his medical test. In this regard, the Claimant emphasized that the completion of the medical test was not a condition for the proposal to be valid, and even in the hypothetical event where the medical test was a condition for its validity, he considered that it would have been the Respondent’s sole responsibility to complete this condition.

13. Moreover, the Claimant stated that due to the late termination by the Respondent, he had no more time to find a club of the same level as the Respondent, and thus had no other choice but to agree to a one-year contract and a salary almost three times less than the salary offered by the Respondent in the proposal. In addition, the Claimant emphasized that he also suffered damages to his career, having to play in the Italian Serie B, rather than in the Italian Serie A with the Respondent.

14. In view of the above, the Claimant claimed to be entitled to compensation for the early termination of the proposal.

15. In its reply, the Respondent considered that it had made it clear in the subject line of the proposal that the document was a “without prejudice proposal for an Employment Contract”, not to be considered as a formal contractual offer. In other words, the proposal was “just a way to discuss the terms of a possible employment contract”. According to the Respondent, the text at the end of the proposal according to which “Acceptance of this proposal does not constitute a valid and binding agreement (…)” only confirmed the foregoing.

16. As such, the Respondent claimed that the proposal was not a pre-contract, but merely a letter of intent, outlining the understanding between the parties to conclude a future binding agreement. The Respondent held that the mention “We look forward to your reply, with best regards” at the end of the proposal only confirmed that the document was a letter, not a contract.

17. The Respondent then entered into an explanation about the language and the use of words in the proposal, which would only confirm the non-binding nature of the document.

18. The Respondent further claimed that the Claimant did not request the conclusion of an employment contract at the time of signing the proposal. In this regard, the Respondent argued that when the parties signed the proposal, the Claimant was free to conclude an employment contract as he was within the last six months of his contract with the club Manchester United. In other words, the Respondent considered that the parties could have signed an employment contract on 2 April 2019, instead of the proposal.

19. As regards the medical tests, the Respondent held that the latter could not possibly form a condition for an employment contract to be concluded.

20. The Respondent also argued that, even if the proposal was considered as a valid employment contract, said proposal could not be deposited as such with the Federazione Italiana Giuoco Calcio (FIGC), as it would not comply with the applicable FIGC rules, which require specific formalities for an employment contract to be validly concluded.

21. Finally, the Respondent considered that the Claimant had plenty of time to negotiate with other clubs following the conclusion of the proposal.

22. In light of the above, the Respondent considered to have terminated its interest in signing an employment contract with the Claimant by its letter dated 15 June 2019.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber took note that the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018, hereinafter: Procedural Rules) were applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2019), it was competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between an English player and an Italian club.

3. In this respect, the Chamber was eager to emphasise that contrary to the information contained in FIFA’s letter dated 24 January 2020 by means of which the parties were informed of the composition of the Chamber, the Chairman Mr Geoff Thompson refrained from participating in the deliberations in the case at hand, due to the fact that Mr Thompson has the same nationality as the Claimant.

4. In continuation, 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 June 2019), and considering that the present claim was lodged on 21 September 2019, the June 2019 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

5. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. 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.

6. In this regard, the Dispute Resolution Chamber noted that the parties signed the proposal on 2 April 2019, which set out the financial terms and conditions over five years, while the Claimant was still contractually bound to the club Manchester United.

7. The Chamber emphasised that the central element of the present matter was to determine whether the proposal concluded between the parties was legally binding or not.

8. First, the Chamber noted that the proposal contained a date, the name of the parties, the duration, the amount of remuneration and the signature of the parties. Therefore, the Chamber considered that the proposal presented all the essential elements of an employment contract, i.e. the essentialia negotti.

9. Second, the Chamber took note of the explicit disclaimers and specific wording used in the proposal. In this regard, the Chamber observed in particular the following disclaimers and wording (emphasis added):

- “Subject: Without prejudice proposal for an Employment Contract”

- “an eventual Employment Contract”

- “Acceptance of this proposal does not constitute a valid and binding agreement and shall only be regarded as confirmation that Genoa and Player are willing to conclude an employment agreement in compliance with the FIFA/FIGC regulations, only upon the medical tests”

10. In light of the above, it appeared clear to the Chamber that it was the parties’ intention to include the said disclaimers and specific use of words, in order to ensure the non-binding effect of the proposal.

11. The Chamber considered that said wording reflected the clear intention of the parties as this wording would not have been included if the parties had wished to confer a binding legal effect to the document.

12. In these circumstances, the Chamber highlighted that the clear intention of the parties should always be taken into account. The express and explicit mention, inserted by the parties, that the proposal does not constitute a valid and binding contract must therefore prevail.

13. In consequence, the Dispute Resolution Chamber decided that the proposal did not constitute a valid and binding contract between the parties.

14. Accordingly, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Darren Raekwon Mcintosh-Buffonge, is rejected.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the appeal procedure:

According to article 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. 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.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

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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