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

Daan de Jong (the Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay/the Netherlands), member

on the claim presented by the player,

Jorge Ambrosio Mendonca, Brazil,

represented by Mr Marcelo Amoretty Souza

and Mr Eduardo Amoretty Souza

as Claimant

against the club,

Club Olimpik Donetsk, Ukraine

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 1 July 2019, the Brazilian player, Jorge Ambrosio Mendonca (hereinafter: the Claimant or the player) and the Ukrainian club, Club Olimpik Donetsk (hereinafter: the Respondent or the club) signed a document called a pre-contract (hereinafter: the pre-contract). The pre-contract established as follows (quoted verbatim):

“1) salary – 2500 $

2) bonus for match – the victory in the home – 800 $

- for winning an away match – 800 $

- draw in away match – 400 $

3) Apartment

4) Term – 2 years”

2. The pre-contract further provided that “conditions come into effect after passing a medical examination and signing a contract”. Further, although it did contain a specific area for the signature of the club, where the club representative placed his signature, it did not contain a specific area or field in the document for the player to place his signature. Notwithstanding the above, the player signed the document just below the club’s signature.

3. On 3 July 2019, the club provided the player with an invitation letter, inviting the player “to training camp in Kyiv from 5 July 2019 to 20 July 2019”, and granting him accommodation and meal during his stay.

4. On 4 July 2019, the player arrived in Kyiv and attended the training camp until 12 July 2019, when he departed for Brazil.

5. The player lodged a claim against the club in front of FIFA and requested the total amount of USD 60,000, which the player states corresponds to “the residual value of the contract that was prematurely terminated”.

6. The Claimant held that he received an offer containing all the necessary elements to be considered a valid contract, was invited by the club to join the team for a training camp, but was asked to leave by the club on 12 July 2019.

7. The player further requested sporting sanctions to be imposed on the club.

8. In its reply, the club entirely rejected the claim of the player. To this extent, it clarified that, at the request of the intermediary Mr Paul Sanchez Sierra, a pre-contract containing the possible future contractual conditions for the player was drafted, and later sent via text message.

9. The club specified that the purpose of such pre-contract was to show the player the conditions under which a contract could be concluded in future, if he succeeded during the training camp he attended in Kyiv from 5 July 2019.

10. The club argued that the pre-contract was not a contract, nor an invitation to sign a contract afterwards, yet admitted that the player, on 4 July 2019, arrived in Ukraine, where together with other players he attended several training sessions.

11. In this sense, the Respondent stated that, on 12 July 2019, the player left the training camp without any explanation, and further submitted that “before the arrival of Jorge Ambrosio Mendoca and while staying in Ukraine, in no way [the club] discussed with him the terms of the contract and did not sign any preliminary agreements and contracts. The terms of the player’s arrival were discussed and determined exclusively with the football intermediary Paul Sanchez Sierra.”

12. Additionally, the club pointed out that the statement of the player in which he affirmed that both parties have duly signed the pre-contract, is not true and that the parties did not exchange a signed version of said document. To this extent, the club was of the position that the pre-contract sent to Mr Paul Sanchez Sierra was signed by the player with the scope of creating “the illusion of a contract before the competent authorities of FIFA in order to justify his claim.”

13. In conclusion, the club stated that “The filing of the claim by the player is the result of a violation of the obligation to act honestly during negotiations.”

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the 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 8 November 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the DRC referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition January 2020) it is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Brazilian player and an Ukrainian club.

3. Furthermore, the DRC 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 par. 2 of the Regulations on the Status and Transfer of Players (edition January 2020), and considering that the present claim was lodged on 8 November 2019, the October 2019 edition of said regulations (hereinafter: 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 DRC entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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 this, the DRC acknowledged that the Claimant and the Respondent signed on 1 July 2019 a pre-contract which would “come into effect after passing a medical examination and signing a contract”, then entitling the player to a monthly remuneration of USD 2,500, plus bonuses and an apartment, for the period of 2 years.

6. Subsequently, the DRC noted both that on 3 July 2019, the club invited the player to attend a training camp, and that player arrived in the city of Kyiv on for such camp on 4 July 2019.

7. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has terminated the pre-contact “prematurely” and therefore should pay him the total amount of USD 60,000, corresponding to his salaries of 24 months, i.e. from 1 July 2019 to 30 June 2021.

8. Subsequently, the DRC took into account that the Respondent, for its part, contested the player’s claim and held that a pre-contract, with the possible future contractual conditions for the player was drafted and sent at the request of the agent, Mr Paul Sanchez Sierra, via a text message.

9. The club specified that the purpose of the pre-contract was to show to the player the conditions under which a contract could be concluded in future. The Respondent further argued that the pre-contract was not a contract, nor an invitation to sign a contract afterwards.

10. Additionally, the club admitted that the player, on 4 July 2019, arrived in Ukraine, where together with other players, he attended several training sessions, and that, on 12 July 2019, the player left the training camp without any explanation.

11. From the outset, the members of the Chamber highlighted that there does not seem to be any disagreement between the parties as to the fact that the terms of the pre- contract were not performed, including the payment of the remuneration. The Respondent did not contest such allegation made by the Claimant. The fundamental disagreement between the Claimant and the Respondent – and the central issue to the present dispute – is whether the pre-contract signed between them established a valid and binding employment contract between the parties.

12. The Chamber noted that according to the Respondent, as opposed to the Claimant, no legally binding employment contract had come into effect between the Claimant and the Respondent, as the parties merely signed a “pre-contract” (emphasis added), the object of which was simply to set forth the provisions of a prospective employment contract.

13. Consequently, the Chamber, first and foremost, focused its attention on the question as to whether a legally binding employment contract had been concluded by and between the Claimant and the Respondent.

14. In this regard, the Chamber recalled that in order for an employment contract to be considered as valid and binding, and regardless of the name given to the document, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration, and the signature of both parties.

15. After a careful study of the pre-contract presented by the Claimant, the Chamber concluded that such essential elements are not fully included in the pertinent document, in particular, the fact that the so called pre-contract does not contain a specific field for the player to sign it; the player’s signature was placed on top of the document’s footer, which happened to have a straight line.

16. Finally, the DRC took note of the fact that the Player did not at any time demand from the club that his alleged situation be amended. Specifically, the DRC emphasized that the player never challenged what he later called a “premature termination” of the pre-contract. As such, the DRC found that such posture by the Claimant demonstrates that he was no longer interested in signing an employment contract with the Respondent.

17. In light of the foregoing, and bearing in mind the evidence produced on file, the DRC concluded that the Claimant’s claim should be rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Jorge Ambrosio Mendonca, 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 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 III./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 (CAS)

Avenue de Beaumont 2, CH-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