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 24 November 2016
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Takuya Yamazaki (Japan), 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 1 July 2013, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club E signed an employment contract (hereinafter: the contract) valid as from the date of signature until 30 June 2015, according to which the Claimant was entitled, inter alia, to a monthly salary of EUR 7,000 net for the period between the commencement of the contract until 30 June 2014 and a monthly salary of EUR 7,500 net for the period between 1 July 2014 until 30 June 2015, payable “until day 10 of the month following the month concerned”.
2. Moreover, on the same date, the Claimant and Club E signed a document titled “Annex 1: Premium Regulation” (hereinafter: the annex), by means of which Club E undertook the obligation to pay several bonus payments to the Claimant, inter alia, the amount of 1,000,000 if Club E wins the Cup of Country D and 50,000 based on the points obtained by Club E.
3. On 25 March 2014, the Claimant signed a document addressed to Club E (hereinafter: the termination), and in which it is stated that:
“Dear Club E.,
With regard to the liquidation of Club E, I hand in my immediate resignation… I state that I do not have any claims, requirements towards Club E in addition to my salary due by the date when the liquidation enter into force.”.
4. The Claimant alleged that, also on 25 March 2014, he signed an employment contract with the Club of Country D, Club C (hereinafter: the Respondent), which was, allegedly, identical to the contract signed with Club E.
5. On 24 March 2016, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract, asking that the Respondent be ordered to pay to him the following amounts:
EUR 126,322, corresponding, according to the Claimant, to the monthly remuneration he was supposed to receive from the Respondent for the period between April 2014 until June 2015 in the amount of EUR 111,000 plus bonuses in accordance with the annex, in the amount of EUR 15,322;
EUR 8,211, corresponding to interest for late payment;
EUR 30,000, corresponding to “non-material damage” ;
An unspecified amount for costs and legal fees.
6. In his claim, the Claimant sustained that, on 25 March 2014, a meeting was held with the president of Club E where the squad was informed that due to the difficult financial situation of Club E, and in order to avoid disqualification and to continue with the activities and participation of said club in the championship, all contracts would be transferred to a new legal entity, i.e. the Respondent.
7. Moreover, the Claimant confirmed signing the termination on 25 March 2014. In this regard, the Claimant held that he signed the termination after he was assured by Club E’s president during the abovementioned meeting that terminating the contract was just a formality needed to ensure the club could continue with its activities.
8. Subsequently, the Claimant sustained that on that very same day, and simultaneously to the signature of the termination, he signed a new employment contract with the Respondent, which was allegedly identical to the contract that he signed with Club E. In this regard, the Claimant held that this new contract was collected by the president of the Respondent and his staff for signature, after he was assured that he would get this contract back immediately. The Claimant further explained that despite numerous requests to get the signed contract back and promises made by the president of the Respondent, the signed contract was not returned to him.
9. The Claimant further declared that he still does not have a copy of the signed contract with the Respondent.
10. The Claimant insisted that despite not having a copy of the signed contract, the behavior of the Respondent corroborated that the parties indeed signed a contract on 25 March 2014. In this regard, the Claimant held that, on 16 April 2014, the Respondent paid an amount to him via bank transfer, which according to the Claimant, confirms that a contract was entered with the Respondent.
11. To support his allegations regarding the events of 25 March 2014, the Claimant submitted several written testimonies of other players, and enclosed a photograph of a contract allegedly signed on that date between another player and the Respondent.
12. Moreover, the Claimant declared that at the end of April 2014, he had a telephone conversation with the president of the Respondent, during which he was allegedly informed that “[The Respondent]’s plans have changed” and that “he no longer saw a place for [the Claimant]” and where the Claimant informed the president of the Respondent, that he did not agree as it was “explicitly and personally promised to all players that all of them would be transferred to the new club [the Respondent]” .
13. Finally, the Claimant maintained that as a result of “fraud”, the Respondent has not paid his remuneration as from April 2014. The Claimant argued that such fraudulent conduct cannot be accepted.
14. In its reply, the Respondent rejected the Claimant’s claim. In this respect, the Respondent sustained that the Claimant terminated his contract with Club E “by himself, with his free will, nobody forced to do so and he knew exactly that he would not playing in Club E anymore”.
15. Moreover, the Respondent sustained that the Claimant was not deceived and that no employment contract was signed between it and the Claimant.
16. In relation to the evidence presented by the Claimant in order to prove that a contract was indeed signed, the Respondent contested the testimonies offered by the Claimant, and acknowledged the payment referred by the Claimant from it to him and held that this payment was made due to an agreement between Club E and the Respondent, by means of which the latter undertook the responsibility of paying the salaries to players as Club E could not perform the payments anymore.
17. The Claimant submitted his replica, in which he repeated his initial position and request for relief. Moreover, the Claimant rejected the arguments of the Respondent. The Claimant further held that it should not be “permissible” that a new club acquires all the rights attached to the old club but is relieved of all obligations. The Claimant sustained that, according to European Union Directive 2001/23/EC, it is necessary to provide for the protection of employees in the event of a change of employer, to ensure that the employees’ rights are safeguarded.
18. Furthermore, in support of his allegation regarding the events that transpired on 25 March 2014, the Claimant enclosed additional witness statements and text message conversations he had with his agent.
19. The Respondent submitted its duplica, where it repeated its position, emphasizing that the Claimant explicitly gave his consent to the termination to Club E, where it is stated that he has no further claims towards Club E, and that he has never signed a contract with the Respondent.
20. The player confirmed that, on 25 June 2014, he signed a contract with the Club of Country B, Club F. Moreover, according to the information contained in the Transfer Matching System (TMS), the termination was uploaded as “Proof of last contract end date”, in the corresponding transfer instruction.
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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 24 March 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) are applicable to the matter at hand (cf. art. 21 of the 2015 edition of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 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 an employment-related 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 player.
3. The competence of the Chamber having been established, 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 and 2 of the Regulations on the Status and Transfer of Players (editions 2015 and 2016), and considering that the present matter was submitted to FIFA on 24 March 2016, the 2015 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 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. In particular, 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).
5. The members of the Chamber first took note that Claimant and the club, Club E, were contractually bound by means of an employment contract signed on 1 July 2013 and valid until 30 June 2015, according to which the Claimant was entitled, inter alia, to a monthly salary of EUR 7,000 net for the period between the commencement of the contract until 30 June 2014 and a monthly salary of EUR 7,500 net for the period between 1 July 2014 until 30 June 2015. In this respect the DRC highlighted that, as acknowledged by the Claimant, on 25 March 2014 he signed the termination quoted in point I.3 above.
6. In this regard, the Chamber recalled that according to the Claimant, he signed the termination of the contract with the Club E, as he was allegedly assured that terminating the contract was just a formality needed to ensure that Club E could continue with its activities, and that all the contracts would be then transferred to the new entity, i.e. the Respondent. In this respect, the Chamber was eager to emphasise that, in line with its jurisprudence, a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility.
7. Subsequently, the Chamber took due note that, according to the Claimant, on 25 March 2014, simultaneously with the termination mentioned above, he concluded an employment contract with the Respondent which was allegedly identical in its terms to the one originally concluded with Club E.
8. The members of the Chamber furthermore took due note of the fact that the Respondent, on its part, categorically denied the conclusion of an employment contract with the Claimant.
9. 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 Chamber to conclude that it was up 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.
10. Having stated the above, the DRC recalled that the Claimant maintained that he was unable to provide a copy of the contract allegedly signed with the Respondent, since the contract was allegedly collected by it and not returned to him. However, the Claimant held that indeed a contract was concluded with the Respondent, as on 16 April 2014, the Respondent paid an amount to him via bank transfer. Moreover, to support his allegations regarding the events of 25 March 2014, and in order to prove that the alleged employment contract was concluded with the Respondent, the Claimant submitted several written testimonies of other players, text message conversations he had with his agent and enclosed a photograph of a contract allegedly signed on that same date between another player and the Respondent.
11. In this regard, the Chamber turned its attention to the payment made on 16 April 2014, which the Claimant maintained to be a proof that a contract was concluded with the Respondent, whereas the Respondent held that such payment was made to the Claimant due to an agreement between Club E and the Respondent, as Club E could not perform the payments anymore. In this respect, the Chamber acknowledged that the relevant document presented by the Claimant in support of his position, stated that on 16 April 2014 “Club C” deposited 2.162.439.00, as “2014.03 salary”. Consequently, the Chamber concluded that this document refers to a payment for the month of March 2014, and therefore does not substantiate the Claimant’s allegation that such payment was made on the basis of the alleged employment contract between the parties, nor does it prove the existence of such alleged contract.
12. Furthermore, the Chamber took note of the other evidence submitted by the Claimant, namely, written testimonies of other players, text message conversations he had with his agent, as well as the photograph of a contract allegedly signed on that same date between another player and the Respondent. In this respect, the DRC underscored that the probative value of the testimonies of other players and the text conversation held with his agent is reduced in view of the fact that they consist in personal statements that may be subject to impartiality., Moreover, in respect to the photograph of a contract allegedly signed on that same date between another player and the Respondent, the DRC pointed out that this cannot indisputably lead to the conclusion that the parties indeed entered into an employment contract, since said alleged contract refers to another player.
13. Having duly taken note of the aforementioned documentation presented by the Respondent, 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.
14. 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.
15. What is more, even if it would have been possible to establish on the basis of the documents on file, other than an employment contract, that the parties had entered into a labour agreement, the Chamber wished to highlight that it would need to be in possession of such labour agreement in order to be able to properly assess the claim of the Claimant.
16. As a consequence, the Chamber 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.
17. Furthermore, and for the sake of completeness, the members of the Chamber highlighted that the Claimant had waited for almost two years before lodging a claim in front of FIFA and that in accordance with the information contained in the TMS, the termination of his contract with Club E was uploaded as “Proof of last contract end date” in the corresponding transfer instruction with the Club of Country B, Club F, therefore, apparently manifesting, by doing so, his satisfaction with the situation.
18. All the above led the members of the Chamber to conclude that the claim of the Claimant has to be rejected, due to its lack of contractual basis.
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 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, 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
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives