F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), 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

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 May 2015, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Alejandro Marón (Argentina), member Rinaldo Martorelli (Brazil), member Johan van Gaalen (South Africa), 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. On 13 January 2014, the player from country B, Player A (hereinafter: the Claimant) lodged a claim with FIFA against the club from country D, Club C (hereinafter: the Respondent), for breach of contract, demanding the amount of USD 1,150,000, broken down as follows: - USD 700,000 corresponding to the value of the contract; - USD 300,000 as compensation for non-pecuniary damages; - USD 150,000 as compensation for the loss of opportunity and the vexatious breach of contract. 2. In his claim, the Claimant stressed that on 25 August 2013, as a result of the interest shown by the Respondent and his desire to join the latter, he had amicably terminated the contract binding him to the club from country B, Club E. Following this termination, the Claimant claimed that an employment contract was signed by him and the Respondent on 1 September 2013 for a period of two sporting seasons following that date. To support his statement, the Claimant produced an offer of a contract dated 21 August 2013 (hereinafter: the offer), containing the following terms: a) Duration of the contract: as from 1 September 2013 until 30 August 2015; b) Salary in the amount of USD 300,000 and USD 400,000 for the first and second year, respectively; c) Several benefits, such as accommodation, bonuses, flight tickets and a car; d) Additionally, the document contains a statement expressly requiring the Claimant’s express acceptance by e-mail within 24 hours. 3. Furthermore, the Claimant provided a return flight ticket between country B and country D for 25 August and 25 September 2013, as well as a work permit indicating 22 October 2013 as the expiry date. 4. Moreover, the Claimant stated that, on 9 September 2013, he had given a formal demand to the Respondent, compelling it to respect it contractual obligations. In effect, according to the Claimant, the Respondent had not paid his monthly salary and had forced him to train in isolation away from the rest of the team. 5. In its response to the Claimant’s claim, the Respondent noted that in mid-August 2013, the Claimant’s agent offered it the Claimant, mentioning that the latter was still under contract with Club E. As a result, and by way of respecting the applicable regulations, the Respondent explained that on 21 August 2013 it proposed a transfer offer to Club E for a value of USD 150,000, as well as the offer of a contract to the Claimant. In this regard, the Respondent insisted on the period of validity (limited to 24 hours) for these two offers, as well as on the dependency of each offer on the other. 6. The Respondent then stated that, given the lack of a response from the club from country B, it contacted the Claimant’s agent and that the latter proposed that the Claimant travelled to country D for a trial period, during which time the two clubs could conclude a transfer agreement. The Respondent maintained that it accepted the proposal and thereby justified the purchase of the flight tickets as well as the issue of a temporary entry visa to the Claimant. 7. In addition, the Respondent stressed that the Claimant arrived in country D on 26 August 2013 and that in the subsequent days he had the opportunity to train with the team and take part in a friendly match. However, the Respondent emphasised that, due to the lack of a response from the club from country B to their offer, but also because of the increase of the Claimant’s financial demands, it decided on 1 September 2013 to terminate the contract negotiations. The Respondent therefore altered the planned return date for the flight tickets to 3 September 2013 and had the temporary visa cancelled. According to the Respondent, neither the Claimant nor his agent raised any objection to the premature return. 8. Furthermore, the Respondent stated that if the Claimant believed there was a contractual relationship binding him to the Respondent, then he should have demanded the latter to respect its obligations; something that he never did, according to the Respondent. In this regard, the Respondent considered that the correspondence dated 9 September 2013 did not, in any way, constitute a formal notification, but rather a letter noting the breach of a supposed contract. 9. In view of the above-presented facts, the Respondent concluded that no employment contract had been signed between the parties. In this context, the Respondent added that the offer – even if it had been accepted by the Claimant within the time limit – quod non, could not have constituted a valid contract as the formal requirements, i.e. the standard contract, as laid down by the country D Football Association, were not met. 10. Finally, the Respondent outlined that the Claimant played a game with Club E on 21 September 2013. 11. In response to the argument put forward by the Respondent, the Claimant recalled that a contract was the result of the convergence of two elements: an offer and an acceptance. In this regard, the Claimant maintained, on the one hand, that the offer made by the Respondent contained the two characteristics necessary for its validity, i.e. precise information and legal rigidity. On the other hand, the Claimant asserted that he accepted the offer unconditionally, highlighting in particular that the amicable termination of his contract with Club E could not be explained except by this acceptance and the creation of the resulting employment contract. Moreover, the Claimant indicated that after this amicable termination, the transfer offer made by the Respondent to Club E, together with the Respondent’s argument that the contract did not exist as the club from country B had not responded to it, became null and void. 12. The Claimant then claimed that he would never have taken the risk of terminating his contract with the sole aim of carrying out a simple trial that offered him no guarantee of securing a contract. 13. Furthermore, the Claimant explained that if he had left the country [country D] “without a word“, it would only have been through fear of not being allowed to leave the country at a later time. 14. Finally, the Claimant maintained that “[he] sent the Club C a formal demand for the payment of compensation for breach of the employment contract by the latter“. 15. Having been invited to comment on the Claimant’s response, the Respondent did not deem it necessary and maintained its previously stated position. 16. On 9 July 2014, the Claimant and the club from country B Mouloudia Club Oranais concluded an employment contract valid as of the date of signature until the end of the 2015-16 season and according to which the Claimant was entitled to receive a monthly gross remuneration of 2,160,000. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 13 January 2014. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 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 2015) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute with an international dimension between an player from country B and an club from country D in relation to an alleged employment-related 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 (edition 2015), and considering that the present claim was lodged on 13 January 2014, the 2012 version of said regulations (hereinafter: 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. In doing so, the members of the Chamber acknowledged that, according to the Claimant, he had, on 1 September 2013, concluded with the Respondent an employment contract valid from 1 September 2013 until 30 August 2015, in accordance with which the Respondent allegedly had undertaken to pay him the total amount of USD 700,000. Further, the Chamber also took note of the Claimant’s allegations according to which the Respondent had breached the alleged contractual relationship by not paying his salaries and side-lining him from the team. 6. The DRC further took due note of the fact that the Respondent, on its part, had categorically denied the conclusion of an employment contract with the Claimant. 7. In view of this dissent between the parties in respect of the basic question as to whether or not an employment contract between them 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 for to the Claimant to prove that the employment contract, on the basis of which he claims compensation for breach of contract from the Respondent, indeed existed. 8. Having stated the above, the DRC recalled that the Claimant maintained that he never received a copy duly signed by both parties of the employment contract he asserts having signed with the Respondent. However, the Claimant had submitted several documents in support of his claim which were in continuation examined by the members of the Chamber. 9. First, the Chamber took note that according to the Claimant, the offer of a contract, dated 21 August 2013, made by the Respondent to him constitutes a preliminary agreement and a proof of the subsequent conclusion of an employment contract. In this regard, the DRC deemed it crucial to underline that the validity of said offer was subject to a condition, i.e. its acceptance by the Claimant within 24 hours and by e-mail. In this respect, the members of the Chamber referred to art. 12 par. 3 of the Procedural Rules and pointed out that the Claimant did not submit any evidence proving that he expressed the acceptance correctly and on time, i.e. by e-mail within 24 hours. 10. Furthermore, the Chamber noted that the Claimant submitted a work permit as well as a round-trip flight ticket as evidence of the existence of a contractual relationship between him and the Respondent. In this respect, the DRC considered it useful to underline that the return flight was scheduled on 25 September 2013, i.e. exactly one month after the outbound flight and two days after the closure of the summer transfer window in country D. In this context, the members of the Chamber stressed that it would make no sense for a club to let a player, with whom it has just signed a contract, go back to his country when the season is about to start. In view of the foregoing elements, the DRC was of the opinion that the dates of the round-trip flight ticket tended to corroborate the Respondent’s argumentation according to which the Claimant travelled to country D in order to take trial tests in view of the potential signature of a contract. In addition, the Chamber pointed out that the expiry date indicated on the work permit, i.e. 22 October 2013, as well as the validity of his visa limited to 60 days lead to the same conclusion that the Claimant’s stay in country D was to be temporary and aimed at allowing him to take trial tests with the Respondent. 11. In continuation, the members of the Chamber highlighted that the fact that the Claimant took part in an official game with Club E on 21 September 2013 seems to confirm that the contractual relationship between the Claimant and Club E had de facto never been terminated. 12. Having duly taken note of the aforementioned documentation presented by the Respondent and 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 through a contractual relationship with the terms as described by the Claimant, it had to be established, beyond doubt, by documentary evidence, that the said parties had indeed entered into a respective 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 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 Dispute Resolution Chamber must be very careful with accepting documents, other than the employment contract, as evidence for the conclusion of a contract. 13. In respect of the foregoing, 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. 14. As a consequence, the DRC decided that, since the Claimant had not been able to prove beyond doubt that an employment contract had validly been concluded between himself 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. 15. 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 The claim of the Claimant, Player A, is rejected. ***** Note relating to the motivated decision (legal remedy): According to art. 67 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 www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl. CAS directives