F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 9 February 2017

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 February 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Joaquim Evangelista (Portugal), member

Taku Nomiya (Japan), member

Todd Durbin (USA), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts

1. According to the Player of Country B, Player A, (hereinafter: the Claimant), on 15 June 2016, he concluded a “pre-contract” with the Company of Country D, “Company E” (hereinafter: the Company), valid as from 1 August 2016 until 31 May 2017.

2. In particular, the Claimant provided a copy of the pre-contract bearing the logo of the Club of Country D, Club C, (hereinafter: the Respondent), and apparently signed by himself and “Mr F” as alleged representative of the company.

3. Following the third clause of the pre-contract, the Claimant was entitled to a monthly salary in the amount of USD 12,000.

4. On 30 August 2016, the Claimant lodged a claim against the Respondent for breach of contract without just cause, and requested the payment of the total amount of USD 120,000 as compensation, corresponding to ten months of salaries as provided in the pre-contract.

5. In particular, the Claimant stated that he trained with the Respondent for seven days and that, on “22 July 2016”, he was dismissed by the Respondent on the grounds that “he was not with rhythm game for the national championship contest that was still about to begin.”

6. In this regard, the Claimant attached a document dated 12 July 2016 and referred to as “Extrajudicial Notification”; according to which he apparently requested the Respondent to pay the amount of USD 120,000 within seven days as from the date of said notification.

7. In its reply, the Respondent acknowledged that it held several tests with the Claimant in the beginning of June 2016, but that after two weeks its technical management team considered that his level was not sufficient for the practice of professional football. Thus, the Respondent explained that it decided not to hire the Claimant, although offered to pay him his return tickets to Country B.

8. In relation to the pre-contract, the Respondent stated that it was concluded with a company that has no relationship with it, since the company operating it is “Company G”. The Respondent invited FIFA to verify said statement by comparing other contracts concluded by it and that are uploaded into the Transfer Matching System (TMS).

9. In his replica, the Claimant argued that contracts cannot be subject to the approval of physical and technical tests.

10. In addition, the Claimant considered that the Respondent did not prove that “Mr F” was not a legal representative of the latter. Moreover, the Claimant underlined that the pre-contract included the Respondent’s official letterhead and was “duly signed by club official”. Under any circumstance, the Claimant considered that he was entitled to believe in good faith that he was concluding a contract with the Respondent.

11. As final comments, the Respondent insisted on its previous arguments, and attached a notarized version, dated 9 August 2001, of the articles of association of the company, “Company G”, which, according to the Respondent, is the only one entitled to conclude contracts on its behalf.

12. Despite being requested to do so, the Claimant failed to provide FIFA with his contractual situation as from July 2016.

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, it took note that the present matter was submitted to FIFA on 30 August 2016. Consequently, the 2015 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 2015 and 2017 editions 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 2016) 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 two aforementioned parties invoked by the Claimant.

3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present matter was submitted to FIFA on 30 August 2016, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber having been established as well as the applicable regulations, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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 this respect, the Chamber observed that, according to the Claimant, he concluded a “pre-contract” with the Company of Country D, “Company E”, (hereinafter: the company), valid as from 1 August 2016 until 31 May 2017.

6. Moreover, the Chamber observed that the copy of the pre-contract provided by the Claimant included the logo of Respondent, and was apparently signed by the Claimant and “Mr F” as alleged representative of the company.

7. Within this context, the Chamber took note of the Claimant’s request, and understood that, according to the latter, the aforementioned pre-contract concluded with said Company of Country D was in fact an employment contract concluded with the Respondent.

8. Conversely, the Chamber noted that, according to the Respondent, the disputed contract was concluded with a company that has no relationship with it, since the company operating the club is “Company G”.

9. In view of the dissent between the parties as to the signature of the aforementioned document, the Chamber determined that, prior to analysing all other relevant facts to the dispute, it had to establish whether the Claimant and the Respondent were contractually bound by means of a valid employment agreement.

10. In this respect, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

11. In application of said consideration, the Chamber proceeded to analyse other employment contracts uploaded by the Respondent into the TMS during the month of June 2016, i.e. when the pre-contract was allegedly signed.

12. In this regard, the Chamber noted that, inter alia, the Respondent uploaded several employment contracts into the TMS. In this regard, the Chamber observed that said contracts were concluded between a player and “Company G”.

13. Consequently, the Chamber unanimously understood that, indeed, from the information available in the TMS, it can be presumed that the company “Company G”, as expressed by the Respondent, is entrusted with the legal capacity to conclude employment contracts on its behalf. The Chamber also noted that the Claimant did not contest the Respondent’s allegation in relation to its operating company.

14. Moreover, the DRC recalled the basic principle of burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

15. In this respect, the Chamber observed that the Claimant did not provide any reliable evidence that may prove that the Company of Country D, “Company E”, had any specific legal relationship with the Respondent, let alone that it had any capacity to conclude any binding employment agreement with the Claimant on behalf of the Respondent. In addition, the Chamber also noted that the Claimant failed to bring any evidence in order to prove that “Mr F”, who appears to be a signatory to the disputed pre-contract, had any relationship with the Respondent.

16. Having duly taken note of all of the aforementioned documentation and arguments presented by the Respondent and the Claimant, as well as of the information contained into the TMS, the DRC unanimously decided that the pre-contract provided by the Claimant cannot be accepted as a valid agreement concluded between the parties involved in the dispute at stake and 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.

17. All the above led the DRC to conclude that the claim of the Claimant has to be rejected in full.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is rejected.

*****

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