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 30 June 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Country E, on 30 June 2017,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (Netherlands), member

Zola Majavu (South Africa), member

on the claim presented by the club,

Club A, Country B

as Claimant

against the player,

Player C, Country B

as Respondent I

and the club,

Club D, Country E

as Respondent II

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 5 January 2016, the Club of Country B, Club A (hereinafter: Claimant) lodged a claim in front of FIFA against the Player of Country B, Player C (d.o.b. 1 July 1995) (hereinafter: Respondent I) and the Club of Country E, Club D (hereinafter: Respondent II), for breach of contract, requesting to be awarded the amount of EUR 43,500, which was detailed as follows:

 EUR 28,500 corresponding to costs allegedly borne by the Claimant to replace the Respondent I, i.e. EUR 21,000 corresponding to the transfer fee allegedly paid by the Claimant to the Club of Country B, Club F, for the player, Player G, and EUR 7,500 corresponding to the total remuneration allegedly paid to Player G;

 EUR 15,000 corresponding to an estimated minimum amount of the transfer fee that the Respondent II allegedly received for the transfer of the Respondent I to the Club of Country E, Club H;

 the Claimant further asked that procedural costs and legal fees be borne by the counterparties and that sporting sanctions be imposed on both the Respondent II and the Respondent I.

2. In support of its claim, the Claimant presented an undated document, entitled in its translated version “For young players” (hereinafter: document 1), valid for the season “2010/2011”, containing the signatures of the Respondent I, of his parents and the Claimant.

3. The Claimant further submitted a document, dated 25 August 2014, bearing the signatures of the Claimant, the Respondent I and the Respondent II, by means of which the aforementioned parties agreed upon the temporary transfer of the Respondent I to the Respondent II for the “sport season 2014-2015” (hereinafter: document 2) without any pecuniary mention. In addition to a temporary transfer, the document 2 also establishes that the transfer was on a definitive basis “given the international rules in the matter”.

4. The document 2 establishes that the Respondent II “undertakes, unless otherwise agreed with Club A, at simple request, to return the player, Player C, to Club A on 30 June 2015; the footballer Player C, with the acceptance of this writing, undertakes to sign, on request, the new contract with Club A with effect from 1 July 2015.”

5. The Claimant further referred to the rules of the Football Federation of Country B, according to which the Respondent I allegedly was bound to it until the sporting season of his 25th birthday.

6. According to the Claimant, the Respondent I refused to return to it after his loan, in spite of its written request. In this regard, the Claimant submitted a letter dated 11 August 2015 sent by the Claimant to the Respondent I, whereby it requested his return. The Claimant further alleged that the Respondent II transferred him to another club, Club H.

7. The Claimant deemed that the Respondent I and the Respondent II acted in breach of contract. It further alleges that it suffered damages due to the non-return of the Respondent I and the need to replace him. In this regard, the Claimant presented the employment contract signed with Player G on 1 September 2015, valid as of 4 September 2015 until 30 June 2016, and the transfer agreement signed with Club F on 1 September 2015.

8. In his reply to the Claimant’s claim, the Respondent I indicated that he informed the Claimant of his wish to remain in Country E, where he was playing as an amateur. The Respondent I further explained that he is currently playing with the Club of Country E, Club H as an amateur.

9. In spite of having being invited to do so, the Respondent II did not reply to the claim.

II. Considerations of the Dispute Resolution Chamber

1. First of all, 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 5 January 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 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 and par. 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 Club of Country B, a Club of Country E and a Player of Country B.

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 2016) and considering that the present claim was lodged on 5 January 2016, the 2015 edition of said 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.

5. Having established the above, the Chamber started by acknowledging that according to the Claimant, the Respondent I and the Respondent II must be held liable for the payment of compensation based on damages it allegedly incurred due to the non-return of the Respondent I following his alleged loan with the Respondent II.

6. The members of the Chamber noted that the Respondent I, for his part, confirmed that he had informed the Claimant of his wish to remain in Country E, where he plays as an amateur, and, thus, not to return to the Claimant.

7. The Respondent II, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this respect, the Chamber considered that, in this way, the Respondent II renounced its right to defence.

8. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant and the Respondent I.

9. In continuation, the members of the Chamber turned their attention to the documentation presented by the Claimant in support of its position and considered that, first and foremost, they had to determine whether a legally binding written employment contract had been concluded by and between the Claimant and the Respondent I.

10. In this context, the Chamber 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, for example, the parties to the contract and their role, the duration of the employment relationship, the remuneration.

11. Turning their attention to the undated document 1 presented by the Claimant, referred to in its translated version as “For young players”, the members of the Chamber unanimously concluded that such document, signed by and between the Claimant and the Respondent I, did not contain any remuneration payable by the Claimant to the Respondent I for the latter’s services. In addition, the Chamber took note that the document 1 lacks clearly established contractual obligations of the Claimant and the Respondent I towards each other as well as the exact duration.

12. On account of the above, the Chamber decided that the document 1 presented by the Claimant cannot be qualified as a valid and legally binding employment contract between the Claimant and the Respondent I.

13. In continuation, reverting to the second document presented by the Claimant, by means of which the Claimant, the Respondent I and the Respondent II, on 25 August 2014, agreed upon the transfer of the Respondent I to the Respondent II, the DRC took note that said document contains contradictory terms in that it refers both to a temporary transfer as well as a definitive transfer of the Respondent I to the Respondent II. Furthermore, the Chamber concluded that the document 2 merely constitutes a tripartite agreement regarding the transfer of the Respondent 1 to the Respondent II. What is more, the Chamber deemed that the Respondent I’s statement contained in the document 2, by means of which the Respondent I undertook to sign a contract with the Claimant with effect as of 1 July 2015 upon the Claimant’s request, did not alter the fact that the Respondent I was not contractually bound to the Claimant by an employment contract.

14. The Claimant appears to hold the position that the Respondent I acted in breach of the document 2 by not returning to it following its request, as a result of which, obviously, the Respondent I did not sign a contract with the Claimant. In this regard, the Chamber concurred that such argumentation could not be followed. Indeed, as established above, the Respondent I was not contractually bound to the Claimant and, thus, should the transfer agreement be considered a valid loan agreement, the Respondent I had no obligation to return to the Claimant. Furthermore, the Chamber rejected the concept that on the basis of the document 2 the Respondent I would have been obliged to sign an employment contract with the Claimant if and when the Claimant would have asked the Respondent I to do so.

15. In continuation, reverting to the Claimant’s argumentation according to which the Respondent I was bound to the club until the sporting season of his 25th birthday in application of the alleged rules of the Football Federation of Country B, the DRC took note that the Claimant’s argumentation, if at all to be considered valid, was not corroborated with relevant documentary evidence. Consequently, the DRC concluded that this argument could also not be upheld and did not need to be further assessed in the light of the absence of relevant documentation.

16. On account of all of the above, the Chamber established that the Respondent I was never bound to the Claimant by means of a valid written employment contract.

17. Consequently, the Chamber concluded its deliberations in the present matter by deciding to reject the claim of the Claimant.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Club 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:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives