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 25 October 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 October 2018,
in the following composition:
Geoff Thompson (England), Chairman
Stefano La Porta (Italy), member
Muzammil Bin Mohamed (Singapore), member
Tomislav Kasalo (Croatia), member
Joaquim Evangelista (Portugal), 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. According to the player, Player A (hereinafter: the Claimant or the player), on 12 January 2016, the player and Club C (hereinafter: the Respondent or the club) signed an employment contract valid as from its date of signature until 29 May 2016 (hereinafter: the contract).
2. In accordance with “clausula septima” of the contract, the Claimant was entitled to a monthly salary of USD 5,000, payable on the 10th day of each subsequent month. Moreover, the Respondent committed to cover the costs for the player’s accommodation and for “the air transportation to City E for the player and his wife” (free translation from Spanish).
3. On 10 July 2017, the player lodged a claim against the club for breach of contract in front of FIFA, requesting the following:
a) USD 25,000 corresponding to the monthly salaries as from January until May 2016, plus 5% interest as of the due dates;
b) USD 2,167 for the cost of the flight tickets which “would have been used” by the player, plus 5% interest as of the due dates;
c) USD 15,000 as compensation for the specificity of sport, plus 5% interest as of the date of the DRC decision;
d) EUR 3,650 as compensation for “other objective criteria”, namely the salary which the player was allegedly entitled to receive from the Club of Country F, Club G (hereinafter: Club G) for the period between January and May 2016, plus 5% interest as of the date of the DRC decision;
e) payment of “the attorney’s fees at the rate of 20% on the value of the conviction”.
4. In his claim, the Claimant affirmed that the Respondent offered him a contract in the beginning of January 2016, while he was registered with the club, Club G pursuant to a contract concluded between them valid as from 21 August 2015 until 14 May 2016.
5. According to the Claimant, upon his request, he and Club G mutually terminated their contract allegedly “on 7 or 8 of January”, upon which the Respondent sent him the new contract already “signed and stamped”.
6. The Claimant also averred that the Respondent announced the signature of the contract on its official Facebook page on 13 January 2016 and the player booked a flight on the same date from Country F to Country B. The Claimant also alleged that, from Country B, he would have eventually left for Country D.
7. However, according to the Claimant, once he arrived to Country B on 14 January 2016 and requested the Respondent to provide him with flight tickets from Country B to Country D, the club “disappeared”.
8. Moreover, the Claimant pointed out that the Respondent, on 17 January 2016, allegedly released a statement whereby it declared that the player would not join the club due to “lack of diligence”.
9. Consequently, the Claimant argued that the Respondent breached the alleged contract and he was entitled to outstanding remuneration and compensation for breach of contract.
10. In its reply, the Respondent contested the argumentations of the Claimant. In particular, the Respondent admitted that it entered into negotiations with the player and that it sent him a provisional draft via e-mail, which, allegedly, the Claimant did not reply to. As a consequence thereof, the Respondent affirmed that no contract was ever concluded with the player who, reportedly, never arrived to Country D. Moreover, the Respondent emphasised that, consequently, no transfer instruction was opened on the TMS.
11. In continuation, the Respondent denied having issued the statements alleged by the Claimant.
12. Furthermore, the Respondent affirmed that the copy of the contract submitted by the Claimant was forged, adducing the following reasons:
a) the club’s president and the club’s secretary did not sign the contract and their signature, as it appears on the last page of the contract, is different from their genuine signature. In this context, the Respondent submitted copy of the identity card of the president and secretary, containing their signature;
b) only the last page of the contract, i.e. the one containing signatures, is printed on the current letterhead of the club. The other pages of the contract are printed on the former letterhead of the latter, which the latter allegedly ceased to use as of 5 August 2015.
c) the last page of the contract is overlapped on the other pages, as it repeats the clauses “undécima, duodécima, décimo tercera y la décimo cuarta”, which are contained also in the previous pages. In particular, the Respondent argued that this fact shows how the last page of the contract was just added to the draft the club had previously sent to the player.
13. In his replica, the Claimant rejected the Respondent’s position in full and maintained that the document the club sent him via e-mail was neither a preliminary document nor a draft but, rather, a complete contract signed and stamped by the representatives of the Respondent, containing all the essentialia negotii.
14. Despite having been invited to do so by the FIFA administration, the Claimant did not provide the original version of the contract allegedly signed with the club and the Respondent did not provide further comments on the present affair.
15. Finally, upon request of FIFA, the Claimant informed that he remained unemployed from 17 January 2016 until 29 May 2016.
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 10 July 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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. In continuation, 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 10 July 2017, the 2016 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. First, the Chamber noted that, according to the Claimant, on 12 January 2016 the player and the club concluded an employment contract valid as from the date of signature until 29 May 2016. The Claimant further alleged that, nevertheless, the Respondent did not provide him with the flight tickets in order to reach Country D and eventually announced that such contract had not been concluded. On account of the above, the Claimant requested to be awarded compensation for breach of contract.
6. The Dispute Resolution Chamber equally took due note of the fact that the Respondent, for its part, admitted having sent an alleged draft of contract to the Claimant; it denied, however, having concluded any employment contract with the Claimant.
7. In view of the aforementioned dissent positions of the parties in respect of the basic question as to whether or not an employment contract had been concluded between them, 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 Dispute Resolution Chamber to conclude that it was up to the Claimant to prove the existence of the conclusion of an employment contract with the Respondent.
8. Having stated the above, the Dispute Resolution Chamber recalled that the Respondent affirmed that it never signed a written employment contract with the Claimant and maintained that the copy of the contract remitted by the Claimant was forged.
9. What is more, the members of the Chamber stressed that the Respondent, despite having been invited by the FIFA administration to do so, was unable to provide an original specimen of the employment contract.
10. At this stage, the Dispute Resolution Chamber considered appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.
11. In continuation, the DRC recalled that, according to art. 12 par. 6 of the Procedural Rules, all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the copy of the alleged contract submitted by the Claimant.
12. On account of these considerations, the Chamber held that, in accordance with its long-standing jurisprudence, the fact the Claimant had only submitted a copy of the disputed contract was, per se, insufficient to establish the existence of the alleged contractual relationship.
13. The members of the Chamber were comforted with such conclusion by the fact that the copy of the alleged contract presented by the Claimant appeared inconsistent. In particular, its last page was apparently drafted on a different letterhead and, what is more, it repeated some of the clauses already inserted in the previous page. Based on these elements, the members of the DRC concurred that the last page of the contract, the only one bearing the alleged signatures of the parties, appeared, even to the naked eye, to not be part of the rest of the contested document.
14. Consequently, the members of the Chamber concluded that the Claimant did not prove that the Respondent and the Claimant had validly entered into an employment contract, regardless of the fact that, as acknowledged by both parties, some negotiations took place between the parties. In this regard, the DRC emphasised that the circumstantial evidence presented by the Claimant, in particular the alleged statement made by the club, is insufficient to prove to the Chamber’s satisfaction the existence of an employment relationship.
15. Therefore, on account of all the aforementioned considerations, the Dispute Resolution Chamber decided that, since the Claimant had not been able to prove 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.
16. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected.
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 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