F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 26 November 2015, by Philippe Diallo (France), DRC judge, 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 (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 26 November 2015, by Philippe Diallo (France), DRC judge, 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. Player A from country B (hereinafter: the Claimant), and Club C from country D (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as from 8 June 2014 until 7 June 2019. 2. The contract provided for a monthly salary of USD 1,000, payable to the Claimant on the 10th of the following month. 3. The contract also foresaw that the Respondent was to provide the Claimant with accommodation and a return flight ticket Country B - Country D every season. 4. On 18 June 2015, the Claimant informed the Respondent that he had not received an invitation letter for a visa or a flight ticket to country D and it did not pay his salary from the signing of the contract. The Claimant also questioned the Respondent regarding the International Transfer Certificate (ITC). The Claimant further explained that he “is stuck with an employment agreement but has not received income. Due to the existing employment agreement no club is willing to sign him”. The Claimant therefore offered the Respondent to sign a termination agreement and “In the event [the Respondent] does not want to terminate the employment agreement, but instead actually want to make use of the services of [the Claimant] would need to apply for a visa and needs to receive a ticket”. 5. On 23 June 2015, the Claimant put the Respondent in default, regarding the outstanding amount of USD 11,000, granting it ten days to proceed to the payment. 6. On 30 June 2015, the Claimant underlined the absence of reaction of the Respondent and reiterated his will to play for the Respondent. The Claimant informed the Respondent in this respect that he was still waiting for the invitation letter for a visa and the flight ticket to country D. The Claimant also emphasised that it had been almost a year without receiving any salary. The Claimant finally warned the Respondent “in the event the current status doesn’t change the [Claimant] will file a FIFA (DRC) petition by the end of this week”. 7. On 7 July 2015, the Claimant lodged a complaint before FIFA against the Respondent, requesting the following amounts:  USD 11,000 as outstanding salaries from 10 July 2014 until 10 May 2015, plus 5% interest p.a. as of 30 April 2015;  USD 1,000 as salary due on 10 June 2015, plus 5% interest p.a. as of the date of the decision. Alternatively, in the event the Respondent claimed that it terminated the contract with the Claimant, the latter requested compensation amounting to USD 55,200 corresponding to unpaid salaries and the remaining value of the contract, “minus the estimated potential domestic income over the next 4 years”. The Claimant also requested the imposition of sporting sanctions on the Respondent as well as legal costs to be borne by the Respondent. 8. According to the Claimant, as from the signing of the contract, the Respondent never paid his salary. 9. The Claimant then provided the statement of his former club, Club E, which reported to the Football Association of country B on 10 July 2015 that the Respondent had never requested the International Transfer Certificate (ITC) of the Claimant until recently, although they concluded the transfer agreement on 23 October 2013. 10. The Claimant subsequently acknowledged not having played for a year and sustained that he had not received a proper training, resulting in his “development being damaged seriously until he can resume competing in official matches”. 11. The Claimant further asserted not being aware of any unilateral termination of the contract by the Respondent but in the event that it replied that such is the case, the Claimant was of the opinion that such termination was without just cause since he alleged not having obstructed the execution of the contract. 12. The Claimant also emphasised that in the best case scenario, and in order to limit the income loss, he could conclude a “domestic contract” providing for a monthly salary of USD 100, i.e. USD 4,800 over the next 4 years. 13. In its statement of defence, the Respondent acknowledged that, in the first place, it was interested in signing a professional contract with the Claimant and confirmed its interest by sending to his agent, on 23 October 2013, an e-mail containing the contract offer dated 8 June 2014. According to said offer, the employment contract was to start on 8 June 2014, i.e. the day after the player turned 18 years old. 14. The Respondent further sustained that the Claimant arrived in country D on 25 January 2014 for trial and left the Respondent on 2 February 2014. In this respect, the Respondent provided the Claimant’s e-ticket in order to corroborate its allegations. During that period, the Respondent asserted that no professional contract was signed as it was allegedly agreed with the Claimant that he “will settle all the necessary documentation with visa and comes back to country D shortly before 18 to sign professional contract with the [Respondent]”. 15. The Respondent also acknowledged that “Before season 2014”, the Claimant was “conditionally” included in its list of players in order to “make him allegeable to play after signing of contract and receiving of International Transfer Certificate”. 16. However, according to the Respondent, “Due to contact with [the Claimant] as well as its representatives and contact persons was lost”, the Claimant never came back to country D after 2 February 2014 and the Respondent thus could not conclude a professional contract with the player. The Respondent underlined that the copy of the contract offer was only remitted to it by the Claimant, bearing his signature, on 18 June 2015. 17. In addition, and as a consequence of the foregoing, the Respondent stressed that it did not register the Claimant with the Football Federation of country D or requested his ITC. In this regard, the Respondent provided a statement from the Football Federation of country D, specifying that “the professional transfer (…) was never requested” and “his professional contract was never registered in Football Federation of country D”. 18. The Respondent therefore deemed that, since there was “no originally signed professional contract” between the parties to date, it had no obligation to provide the Claimant with visa documents. Also, referring to the Country D labour law according to which “no organization can pay salary to foreign citizen before it receive work and residence permit”, the Respondent emphasised that it was not able to apply for a work permit for the Claimant since the latter never came back to country D since 2 February 2014. 19. Consequently, the Respondent rejected the Claimant’s claim, especially as regards the payment of his salary as from June 2014. 20. Notwithstanding the above, the Respondent maintained that it was still interested in the Claimant’s services and was willing to “finalize signing of professional contract” with him, under the same conditions offered beforehand. 21. In his replica, the Claimant acknowledged that he was not in country D on 8 June 2014 to sign the contract with the Respondent and that the contract was dated 8 June 2014 and was signed by him in country B, at the same time as the transfer agreement dated 23 October “2015” between himself, Club E and the Respondent “for the definitive transfer of [the Claimant]”. In this respect, the Claimant provided a copy of the said transfer agreement dated 23 October 2013. 22. According to said transfer agreement, the Respondent had to pay to Club E a transfer compensation of USD 100,000 by 28 October 2013. The relevant transfer agreement also provided that its validity was subject to the signing of the employment contract between the Claimant and the Respondent. Therefore, the Claimant deemed that it was unlikely that the Respondent was unaware of the employment contract signed by both parties, before 18 June 2015. 23. Moreover, the Claimant explained that between 7 July 2015, i.e. subsequent to his claim before FIFA, and 13 July 2015, the Respondent and the Claimant exchanged emails, the Claimant mainly discussing the visa options and the Respondent stressing the urgency of dealing with the transfer first since the “window close in 8 days”. 24. Subsequently, the Claimant sustained that, on 14 July 2015, the Respondent made him an offer to sign a new contract, which he refuted due to provisions which he considered as a “severe deterioration” of his rights. The Claimant provided the email dated 14 July 2015 in this regard. 25. On the same date, the Respondent replied to the Claimant, offering to amend the relevant provisions and emphasising upon the Claimant’s former club, which was the one apparently obstructing his transfer the previous year. In this respect, the email dated 14 July 2015 from the Respondent was provided by the Claimant. 26. In view of the foregoing, the Claimant deemed that, up to its reply to his claim before FIFA, the Respondent did not deny the existence of an employment contract with the Claimant. Therefore, the Claimant maintained his previous request and added a further amount of USD 4,000 as outstanding salary from 10 July to 10 October 2015. 27. Finally, the Claimant reiterated that he was willing to comply with the terms of the contract but reserved his right to terminate the said contract with the Respondent, on the basis of the Respondent’s breach and, thus, to claim for compensation. 28. In spite of having been invited to do so, the Respondent did not provide its final comments as per the matter at stake. 29. Upon FIFA’s request, the Claimant confirmed that he “has not terminated the contract with the [Respondent] nor signed a contract with another club”. II. Consideration of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 7 July 2015. Consequently, the 2015 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. art. 21 of the Procedural Rules). 2. With regard to the competence of the DRC judge to decide on the present matter, the DRC judge 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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015) the DRC judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D. 3. Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present dispute which value does not exceed CHF 100,000. 4. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he 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 7 July 2015, the 2015 version of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. The DRC judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 6. In this respect, the DRC judge took note of the Claimant’s correspondence sent on 18 June 2015 to the Respondent, by means of which the Claimant inter alia informed the Respondent that he had not yet received an invitation letter for a visa or a flight ticket to travel to country D as well as it had not paid his salary from the signing of the contract; thus offering the Respondent an option to terminate amicably the contract. The DRC judge also took into account the Claimant’s default notice addressed to the Respondent on 23 June 2015. 7. In continuation, the DRC judge noted that the Claimant lodged a claim against the Respondent, claiming from the latter, in principal, his unpaid salaries as from the signing of the contract and, alternatively, compensation corresponding to the residual value of the contract. In particular, the DRC judge observed that the Claimant asserted that the Respondent never paid him his salary, did not provide him with a flight ticket in order to go to country D, and consequently could not play for more than a year. The DRC judge also took note that the Claimant was not aware of any unilateral termination by the Respondent but in the event it was the case, the Claimant deemed that such termination was without just cause. 8. The DRC judge also took note that the Respondent, on the other hand, deemed that the relevant document serving as employment contract was part of an offer made to the Claimant’s agent on 23 October 2013, and that no professional contract was further concluded between the parties. The DRC judge further observed that the Respondent alleged that the Claimant left the country on 2 February 2014 after his trial with the Respondent and never came back to sign a “professional contract” so that the Respondent was thus unable to provide him with visa documents, to register him with the Football Federation of country D or request his ITC. The DRC judge finally noted that the Respondent was still interested in the Claimant’s services and was willing to sign a “professional contract” with the Claimant. 9. From the outset, the DRC judged highlighted that there did not seem to be any disagreement between the parties as to the fact that the terms of the agreement were not performed. Thereafter, the DRC judge focused his attention on the question as to whether a legally binding employment contract had been concluded by and between the Claimant and the Respondent. 10. In this respect, the DRC judge recalled 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 and their role, the duration of the employment relationship, the remuneration and the signature of both parties. After a careful study of the document serving as employment contract presented by the Claimant, the DRC judge concluded that all such essential elements are included in the pertinent document, in particular, the fact that the contract established that the Claimant was entitled to receive remuneration, i.e. a monthly salary in the amount of USD 1,000, in exchange for his services to the club as a player. 11. In addition, the Chamber deemed it important to highlight that the employment contract bore the signature of both parties, which was not contested by the Respondent. 12. Consequently, and regardless the date of signature of the employment contract at the basis of the present dispute, the DRC judge decided that the Respondent’s argument as to the fact that the parties had not signed a “professional contract” was to be rejected and that the employment contract set to run as from 8 June 2014 until 7 June 2019 was valid and legally binding. 13. Subsequently, the DRC judge outlined that it was uncontested that the Claimant left country D after his trial with the Respondent ended on 2 February 2014 and did not come back afterwards. In this regard, the DRC judge deemed it fit to emphasise that if the Respondent was effectively interested in starting or continuing the contractual relationship with the Claimant, it should have, in the first place, requested his ITC, registered the player with the Football Federation of country D and also urged the Claimant to travel back to country D by providing him a flight ticket to do so, as explicitly foreseen in the contract. However, and instead of doing so, the DRC judge stressed that the Respondent did not provide him with the relevant flight ticket and remained inactive until the Claimant decided to lodge a complaint in front of FIFA on 7 July 2015. In view of the above, the DRC judge held that the Respondent’s attitude clearly demonstrated that it was no longer interested in maintaining the contractual relationship. 14. The DRC judge acknowledged, on the other hand, that albeit the Claimant satisfactorily proved having informed the Respondent, on 18 June 2015 and 23 June 2015, of its non-compliance with the contract, the Claimant had remained silent prior to that date and had not taken any other measure in order for the contract to be executed until June 2015, i.e. for about a year, manifesting by doing so his satisfaction with the situation and, like the Respondent, his lack of interest in maintaining the contractual relationship. 15. In light of the foregoing, the DRC judge held that both parties, by their respective behaviour, manifestly expressed their intention of not executing their reciprocal obligations and being no longer bound by the contractual relationship. Therefore the DRC judge concluded that none of them could be held liable for the nonexecution of the contractual relationship. 16. All the above led the DRC judge to conclude that the claim of the Claimant had to be rejected. III. Decision of the DRC judge The claim of the Claimant 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 DRC judge: Markus Kattner Acting Secretary General Encl. CAS directives