F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 15 November 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 November 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Johan van Gaalen (South Africa), member

Wouter Lambrecht (Belgium), member

Pavel Pivovarov (Russia), 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

between the parties

I. Facts of the case

1. On 15 January 2018, the player of Country B, Player A (hereinafter: the player or Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent) allegedly agreed upon an employment contract (hereinafter: the alleged contract), valid for the period between 15 January 2018 and 30 June 2019.

2. According to the player, he was allegedly entitled to receive the total amount of EUR 450,000 ‘during the one and a half years that the contract should have last’, as follows:

 EUR 100,000 as ‘sign bonus’;

 EUR 350,000 as ‘monthly payment’.

3. On 4 April 2018, the player lodged a claim against the club in front of FIFA, requesting the total amount of EUR 558,000 as compensation for breach of contract to be paid by the club, broken down as follows:

Compensation for breach of contract in the total amount of EUR 418,000, as follows:

 EUR 450,000 as the entire value of the contract in the period between 15 January 2018 and 30 June 2019;

 Minus EUR 32,000 as the total value of the contract he signed on 31 January 2018 with the club of Country B, Club E;

 5% interest p.a. on the amount of EUR 418,000 as from 23 January 2018;

Compensation related to the specificity of the sport in the total amount of EUR 150,000, as follows:

 EUR 150,000, corresponding to 6 monthly salaries of EUR 25,000 each, in connection with article 337c of the Swiss Code of Obligations;

 5% interest p.a. on the amount of EUR 150,000 as from the date of the decision.

Furthermore, the player requested that sporting sanctions be imposed on the club, as well as that it should be held responsible for the payment of legal fees in the amount of CHF 20,000 and procedural costs.

4. In his claim, the player explains that on 14 January 2018, ‘in conclusion of precedent negotiations’, the club sent him an official document, which held, according to the player, ‘all the essential elements in order to consider it a valid and binding agreement’. In this respect, the player explains that crucial elements, such as the duration of the contract (January 2018 until June 2019), the remuneration (EUR 450,000), the parties (player and club) and the player’s occupation (football player) were present in said document.

5. As evidence of the foregoing allegations, the player submitted a copy of an undated email, sent by the alleged club’s General Managing Director, Mr. F, as well as an undated letter, signed by Mr. F, which contains the following wording: ‘Subject: Invitation letter. This letter is to confirm that Club C would like to sign a contract with Player A as a football player for one and a half football season on the following terms and conditions after passing medical test in Country D […] Period of contract is from Jan 2018 to June 2019. […] Amount of whole contract are as follows: 450,000 EUR, payed as EUR 100,000 sign bonus, 350,000 EUR as monthly payment. […] We would like the player to be here in Country D for medical test and also final negotiation as soon as possible during the next two days. […] Club C will provide a house with furniture for the player during his labour contract and also car with driver and two flights (round trip Continent L – Country D) for the player and his family. […] This proposal is valid till 15.01.2018’.

6. The player further explains that he wanted to accept the club’s offer, and that as a result, on 15 January 2018, he terminated his contract with his previous club, the club of Country B, Club G, which was valid until 30 June 2018.

7. Furthermore, the player explains that also on 15 January 2018, he accepted the club’s offer and that subsequently, on 19 January 2018, he travelled together with his representatives to Country D , ‘in order to conduct the relevant medical test and therefore join the team’.

8. In addition, the player explains that on an unspecified date, the club also provided him with an official version of the contract, which was based on the conditions written in the letter sent to the player on 14 January 2018, but which contract is not signed by the club.

9. Furthermore, the player explains that the club provided him with a flight ticket for a flight from Country B via Country H to Country D on 19 January 2018.

10. In addition, the player explains that on 21 and 22 January 2018, he underwent a medical examination in Country D, which according to the player is confirmed by a picture the club posted on its official Instagram-profile.

11. Furthermore, the player argues that on 23 January 2018, he was informed by the club that ‘signing the contract subjects to passing the medical test’, however that based on ‘medical committee of Club C and also medical centre standards of Football medical assessment of Country D’, he did not pass the medical examination. Based on these circumstances, the club further informed the player that ‘signing contract between Club C and you is not possible’. The player explains that this behaviour of the club constitutes a termination of the contract by the club without just cause, as based on article 18 par. 4 of the FIFA Regulations, the validity of a contract may not be subject to successfully passing a medical examination.

12. Further, the player holds that the club failed to provide him the results of the medical examination or ‘any valid medical reason’ as to why no contract could be concluded and that this is to be considered a violation of the principle that parties should act in good faith. The player further holds that on 17 January 2018, after the alleged conclusion of the contract, the club’s head coach complained to one of the club’s employees that the player had been injured for a long period in 2017. According to the player, the head coach was fearing the reaction of media and supporters, if they would find out that the club had signed a player who had been injured for a long period.

13. With respect to his injury, the player confirms that on 25 March 2017, he underwent a small surgery, but that as from 19 October 2017, he was fully recovered.

14. As a result, on 23 January 2018, the player requested the club to send him the negative medical reports. However, according to the player, the club refused to the deliver the negative medical reports to him and forced him and ‘his intermediaries to leave Country D, providing them the relevant flight tickets’.

15. Subsequently, the player explains that on 26 January 2018, his representative again requested the club to provide the negative medical reports, however to no avail.

16. Finally, the player explains that on 31 January 2018, following the club’s unilateral termination of the contract on 23 January 2018, he signed a new contract with the club of Country B, Club E. In addition, the player points out that on said date, he successfully passed a medical examination in Country B, in the scope of his transfer to Club E.

17. In its reply to the player’s claim, the club argues that the player never had a contract with its club. In this respect, the club argues that in its offer dated 14 January 2018, it only confirmed that ‘it would like to sign a contract’ with the player, ‘after passing medical test in Country D’. According to the club, this can only be understood as an intention to sign a contract with the player and as an invitation to travel to Country D to finish the negotiations.

18. The club further explains that the ‘few terms and conditions’ in the invitation letter sent on 14 January 2018 to the player, do not make the invitation a legal and binding contract, and further points out that the applicable law, the official language of the contract and the dispute resolution authority are not mentioned in the invitation letter.

19. In addition, the club argues that the aforementioned letter is not signed by the player, as well as that it provided the player and his representatives tickets to travel to Country D, only to attend a ‘final negotiation’ and that for this reason, the tickets were a round trip ticket. The club explains that only after the medical examination, it wanted to finalize the negotiations with the player and his representatives.

20. Further, the club argues that not the validity of the contract, but only the ‘final negotiation’ was depending on the outcome of the medical examination, which was unfortunately negative for the player. In this respect, the club submits a copy of the results of the medical examination of the player, which took place in the medical and rehabilitation centre in Country D. According to said report, the medical experts found some (small) irregularities in the player’s right knee and right ankle.

21. As a result of the aforementioned (negative) medical examination, the club argues that it could validly stop the final negotiations with the player and not sign a contract with him. In conclusion, the club asks for the rejection of the player’s claims.

22. In his replica, the player reiterates that the letter he received on 14 January 2018 from the club’s General Manager, contained all essentialia negotii in order to be a valid and binding contract and argues that also pre-contracts are to be considered as legal and binding. Further, the player states that it was not necessary for him to sign the letter issued to him on 14 January 2018, as per Swiss law, he could also implicitly express his acceptance of the conditions offered by the club.

23. What is more, the player refers to the fact that the club provided him with a non-signed version of the contract and states that this can be considered as a clear intention to conclude a contract with the player. This also follows from the fact that the club only booked a return flight for the player on 10 March 2018.

24. Moreover, the player argues that the medical report of the medical and rehabilitation centre in Country D cannot be taken into account, as it is not completely translated into one of the official FIFA languages. Further, the player states the club still failed to submit the ‘report of the medical committee of Club C’. Further, the player contests the trustworthiness of the report, because it is partially drafted in English, which is not the official language in Country D, and it contains a date of “9 April 1997”, which does not reflect reality.

25. In its duplica, the club reiterated that it never signed ‘any form of contractual documentation’ and that the missing signature of the player on the letter sent to him on 14 January 2018, confirms that not all essentialia negotii were present in the document.

26. Further, the club states that the ‘invitation letter is not an employment contract, but a pre-contractual agreement which merely invited the Claimant to present himself to undergo a pre-contractual medical test and enter final negotiations’. The club further specifies that the invitation letter can only be seen as ‘an intention to sign a future contract’ and not as a definitive agreement.

27. Also, the club argued that it undertook the necessary due diligence by requiring a pre-contractual medical examination of the player.

28. In the alternative, if FIFA would deem that there is a valid and binding employment contract concluded between the parties, the club requests that the player can only be entitled to compensation in the total amount of EUR 118,000, due to the non-execution of the contract. Further, the request for an additional compensation of EUR 150,000, based on the specificity of sport, has no legal basis according to the club and should be rejected.

29. After having been requested to do so, the player informed FIFA that on 31 January 2018, he ‘in order to minimize his damages’, he signed a new contract with the club of Country B, Club E, valid between 31 January 2018 and 30 June 2018. According to said contract, he was entitled to receive a sign-on fee of EUR 4,000 as well as monthly salaries in the total amount of EUR 28,000. Finally, the player confirmed that after 30 June 2018, he remained unemployed.

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 4 April 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: 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 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018) 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.

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 2018), and considering that the present claim was lodged on 4 April 2018, the 2018 edition 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 started by acknowledging that, according to the player, he had, on 15 January 2018, concluded an employment contract with the club, valid for the period between 15 January 2018 and 30 June 2019, in accordance with which the club allegedly had undertaken to pay him the total amount of EUR 450,000 for the duration of the contract. According to the player, the club - after the alleged signing of the employment contract and a medical examination which took place in Country D on 21 and 22 January 2018 - was not interested in his services any more.

6. Therefore, after having requested the club the results of the medical examinations, however to no avail, the player considered that the club had unilaterally terminated the contract without just cause on 23 January 2018, by not willing to execute the contractual relationship allegedly established between the parties. Subsequently, on 31 January 2018, the player states to have signed a new contract with a club of Country B an lodged a claim before FIFA on 4 April 2018, asking to be awarded, inter alia, compensation for breach of contract by the club in the amount of EUR 418,000, as well as additional compensation in the amount of EUR 150,000.

7. The Dispute Resolution Chamber furthermore took due note of the fact that the club, on its part, had categorically denied the conclusion of an employment contract with the player. In this respect, the club had admitted that it sent an invitation letter to the player on 14 January 2018, which contained some terms and conditions, and that it requested the player to come to Country D to undergo medical examinations on 21 and 22 January 2018, and to finalize the negotiations about the conditions of a possible employment contract. What is more, the club explains that the outcome of the medical examination would only be decisive for the decision whether or not it wanted to enter into final negotiations with the player, and not for the question whether or not the contract allegedly concluded in January 2018 would be valid. Additionally, the club explained that the outcome of the medical examinations on 21 and 22 January 2018 was negative, as a result of which it validly stopped the final negotiations with the player. In view of the foregoing circumstances, the club deems that it did not conclude an employment contract with the player, also because the player never signed the invitation letter dated 14 January 2018.

8. In view of this fundamental 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 first 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 lead the members of the Dispute Resolution Chamber to conclude that it was up to the player to prove that an employment contract, on the basis of which he claims compensation for breach of contract from the club, had in fact been concluded between the parties.

9. Having stated the above, the Dispute Resolution Chamber recalled that the player maintained he had duly accepted the conditions in the club’s invitation letter dated 14 January 2018, as a result of which an employment relationship was established, however that he never received a signed copy of the employment contract, as the club refused to sign a definitive contract with him. In this respect, the player had submitted several documents in support of his claim, which were in continuation examined by the members of the Chamber.

10. In this regard, the Dispute Resolution Chamber first of all turned its attention to the so called invitation letter dated 14 January 2018, and took note of the player’s allegation that said document contained all essentialia negotii to be a valid and binding employment contract. What is more, the player argued that on 15 January 2018, he had accepted the conditions of said offer and also had received a non-signed draft of the employment contract.

11. The members of the Chamber then referred to the fact that the letter dated 14 January 2018 explicitly contained a clause, stipulating that the offer and the corresponding employment conditions, needed to be accepted by the player by no later than 15 January 2018. According to the player, he had duly accepted the contents of the offer on 15 January 2018 and consequently, also had terminated his contract with the club of Country B, Club G. Based on these circumstances, the player is of the opinion that he and club entered into an employment relationship.

12. The Chamber however noted that the circumstances as described by the player, are not backed by any documentary evidence. In this respect, the Chamber was of the opinion that the player was only able to submit a non-signed version of a draft of an employment contract, however, had not submitted any additional documentation, such as a confirmation that he agreed with the conditions as laid down in the club’s letter dated 14 January 2018, or a signature on said letter, on the basis of which it could be established that he timely accepted the club’s offer, i.e. until 15 January 2018. What is more, the Chamber could also not find any other indications or relevant factual circumstances, on the basis of which it could be concluded that the player had implicitly accepted the club’s offer laid down in its letter dated 14 January 2018.

13. Having duly taken note of the aforementioned documentation presented by the player, the members of the Chamber held that in order for the Chamber to be able to assume that the player and the club had indeed been bound by a contractual relationship with the terms as described by the player, it had to be established, beyond doubt, by documentary evidence, that the club had made a valid offer to the player for the conclusion of an employment contract, and that said offer had been duly accepted by the player. What is more, if the parties had indeed entered into a respective labour agreement, it further needed to be established which terms said labour agreement contained.

14. 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 are not certain or backed by strong documentary evidence. In particular, the members of the Chamber pointed out that the photos provided by the player also do not prove beyond doubt that a contract was signed between him and the club.

15. In view of the foregoing, and after making reference to art. 12 par. 3 of the Procedural Rules, according to which inter alia the evidence shall be considered with free discretion, the Chamber concluded that the player did not satisfactorily carry the burden of proof regarding the alleged conclusion of a contract between him and the club. As such, the Chamber decided that the player could not prove to the Chamber’s satisfaction his allegations that a valid and binding employment contract was concluded between him and the club on 15 January 2018.

16. Furthermore, the Chamber analysed the course of events that occurred in the period between 19 January 2018, the day the player alleges to have travelled to Country D to undergo a medical examination, and 23 January 2018, the day on which the player deems that the club had unilaterally terminated the contract without just cause. In this respect, the Chamber noted that the player explained that he received a flight ticket from the club to travel to Country D on 19 January 2018, for undergoing a medical examination on 21 and 22 January 2018, and also submitted several pictures of said medical examination. What is more, after the outcome of said medical examination allegedly turned out to be negative, the club had, according to the player, informed him that it was no longer interested in concluding an employment contract with him.

17. With respect to these events, the members of the Chamber first of all wished to reiterate the contents of art. 18 par. 4 of the Regulations, which stipulates that “the validity of a contract may not be made subject to a positive medical examination and/or the granting of a work permit”. Furthermore, the Chamber deemed it important to outline that from the contents of said article, it follows that it is the club’s responsibility to conduct the necessary medical examinations, prior to the signing of an employment contract.

18. Turning to the matter at hand, the members of the Chamber took into account the club’s argumentation as well as the wording of the letter dated 14 January 2018, which stipulated that it was the club’s intention to further negotiate on the definitive details of a possible employment contract, in case the player would successfully pass a medical examination. In view of the fact that the player was not able to prove that already before the medical examinations on 21 and 22 January 2018 he had entered into a valid and binding employment relationship with the club, the Chamber had no other option than to conclude that it was the intention of the parties to only finalize the negotiations on the contractual conditions, after the successful passing by the player of the medical examination. The fact that the club had issued a return flight ticket for the player only on 10 March 2018, is in the view of the members of the Chamber not to be considered decisive proof that the parties had already entered into a final and binding employment contract.

19. Therefore, the Chamber concluded that the club, after having received the outcome of the medical examination of the player, which was apparently negative, could validly inform the player on 23 January 2018, that it was no longer interested in concluding an employment contract with him. Such approach was, according to the Chamber, not in contradiction with the aforementioned art. 18 par. 4 of the Regulations, on the contrary, the Chamber was of the opinion that the medical examination of a player before signing an employment contract with him, is in line with the mandatory nature of art. 18 par. 4 of the Regulations and the responsibilities of a due investigation before of the player’s medical status, before entering into a contractual relationship with a player.

20. Finally, the Chamber also deemed it appropriate to point out that – even though the player’s registration is not a condition for the validity of an employment contract signed between a player and a club – no transfer instruction could be found in the Transfer Matching System (TMS), involving the player and the club.

21. In respect of all the foregoing circumstances, the members of the Chamber had to conclude that on the basis of the documentation on file, it could not established that the player and the club had validly entered into an employment relationship, which would have been subsequently terminated by the club.

22. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected, due to its lack of a contractual basis.

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. 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:

Emilio García Silvero

Chief Legal Officer

Encl. CAS directives