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), Deputy Chairman
Muzammil Bin Mohamed (Singapore), 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
between the parties
I. Facts of the case
1. On 28 June 2017, the Player of Country B, Player A (hereinafter : the Claimant), received, via his agent a contract proposal (hereinafter: the proposal), signed by the Club of Country D, Club C (hereinafter: the Respondent).
2. In accordance with the proposal, the Respondent offered the following:
a “2 years contract”;
EUR 5,000 net per month;
bonuses ”for winning the Cup of Country D”, “for qualifying in Play off”, and “for winning the Championship of Country D”.
3. Moreover, according to the proposal “the [Claimant] is free if the team is relegated from the top Division of the League of Country D”.
4. According to the documentation on file, the proposal was stamped and signed by the General Manager of the Respondent and reads “We are waiting for your answer”.
5. On the same day, the Claimant, via his agent, submitted a document to the Respondent titled “COUNTER-PROPOSITION”(hereinafter: the counterproposal).
6. The counterproposal reads as follows:
“Dear Sir, I would like to thank you for the contract offer of today regarding Player A and I am writing to officially communicate our counter-proposition for a work contract of 2 years with the following conditions:
1st year net of tax salary of EUR 5,000 (2017-2018)
2nd year net of tax salary of EUR 6,000 (2018-2019)
Transfer clause of EUR 300,000
Apartment paid by the club
Car paid by the club”
7. On 7 July 2017, the Claimant, via his agent, sent an email to the Respondent, which reads as follows: “Please find enclosed the work contract countersigned by the [Claimant] Mr Player A. Please arrange the registration and send us the plane tickets. If you have prepared a more detailed version of the work contract, please feel free to send it so we can already have a look”.
8. According to the documentation on file, the abovementioned email enclosed a signed version of the proposal by the Claimant.
9. On 17 July 2017, the Claimant put the Respondent in default requesting that the Respondent “take the necessary actions to proceed to the invitation / registration of [The Claimant] within 48 hours”. The Claimant argued that since the proposal contains the following elements ”the parties and their role, the duration of the employment relationship; the remuneration and the signature of both parties”, it is a “valid and binding work contract”.
10. On 23 August 2017, the Claimant put the Respondent in default a second time. The Claimant argued that the Respondent never complied with his first notice and informed the Respondent that he had signed an employment contract (hereinafter: the new contract) with the Club of Country E, Club F, “for a monthly salary of 1,000 starting from 27 July 2017 and ending on the 31 May 2018”. The Claimant requested that the Respondent pay him within 10 days, “EUR 4,500 for the month of July corresponding to the difference between the contract breached and his current salary in Country E”, stating that otherwise he would lodge a claim in front of FIFA.
11. On 22 February 2018, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the following:
“to establish that the Parties had signed a valid and binding work contract and that the Respondent has been in breach of the said contract and is the only party causing the non-performance of the work contract”;
that the Respondent is ordered to pay the following:
EUR 120,000 corresponding to 24 monthly salaries of EUR 5,000, “from which the current contract’ salary of 500 can be deducted until May 2018”,
EUR 30,000 as “additional compensation” corresponding to 6 monthly salaries, in application of art. 337c para. 3 of the “Code des Obligations”,
Plus 5% interest on the whole amount “due from the time of the contract breach (7 July 2017)”.
12. In his claim, the Claimant explained having received the proposal of the Respondent on 28 June 2017 and submitting his counterproposal to it on the same day. In this regard, the Claimant held that since the Respondent did not reply to his counterproposal, he assumed that “the [Respondent] had no intention to raise their offer” and therefore, on 7 July 2017 “he decided through his agent to agree on the contract offer initially signed by the [Respondent]”, and sent it a signed version of the proposal.
13. The Claimant claimed that by signing it and sending it back to the Respondent 10 days after the proposal was received, the Claimant had made the proposal binding and valid as an employment contract. Furthermore, the Claimant argued that according to art. 5 para. 1,2 &3 of the Swiss Code of Obligations “an employment contract sent without any deadline clearly engages the [Respondent] until an acceptance or refusal is formulated by the [Claimant]”.
14. Moreover, the Claimant argued that in application of art. 337c para. 3 of the Swiss Code of Obligations, the amount of compensation due to him should be increased as a consequence of “specificity of sport”.
15. Finally, the Claimant clarified that in the absence of an answer from the Respondent, he signed a contract with the Club of Country E, Club F, valid as from 27 July 2017 until 31 May 2018.
16. Despite being asked to do so, the Respondent did not reply to the claim of the Claimant.
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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 22 February 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, edition 2018).
2. In this respect, the sub-committee was eager to emphasize that contrary to the information contained in FIFA’s letter dated 8 October 2018, by means of which the parties were informed of the composition of the sub-committee, the member Tomislav Kasalo refrained from participating in the deliberations in the case at hand due to professional circumstances. In order to comply with the prerequisite of equal representation of club and player representatives, also the member Stephano La Porta refrained from participating and thus the sub-committee adjudicated the case in presence of three members.
3. 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 conjunction 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 an Player of Country B and a Club of Country D.
4. 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 (editions 2018), and considering that the present claim was lodged on 22 February 2018, the 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.
5. 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.
6. In this regard, the Chamber established that the present dispute revolves around the question as to whether or not an employment relationship had come to exist between the Claimant and the Respondent. Indeed, the Claimant for his part, express the view that the proposal had been signed by both parties and should thus be considered as a final and binding agreement between the Respondent and him. Furthermore, the Claimant insisted on the fact that the proposal he received was signed by the Respondent and that seeing that the Respondent never replied to his counter proposal, he signed the initial proposal and sent it back to the Respondent, making it binding and valid as an employment contract. Therefore, the Claimant claimed that he should be compensated for the alleged breach of the relevant contract by the Respondent.
7. Furthermore, the DRC noted that the Respondent had been given the opportunity to reply to the claim submitted by the Claimant, but that the Respondent had failed to present its response in this respect. In this way, the DRC deemed that the Respondent renounced to its right of defense.
8. As a consequence of the preceding consideration, the Chamber established that in accordance with art. 9 par. 3 of the Procedural Rules, the Chamber should take a decision upon the basis of the documents on file.
9. On account of the above, the DRC observed that on 28 June 2017, the Claimant had received a signed proposal via email from the Respondent, according to which the Claimant would be entitled to 2 years contract with a monthly salary of EUR 5,000 and various bonuses.
10. The DRC further observed that on the same day, the Claimant sent a counterproposal to the Respondent amending the terms of the proposal. In accordance with the counterproposal, the Claimant requested to receive a monthly remuneration of EUR 5,000 for the first season and of EUR 6,000 for the second season, plus a transfer clause of EUR 300,000, as well as an apartment and a car paid by the club.
11. The Chamber took note that in the absence of a reply from the Respondent to his counterproposal, the Claimant sent to the Respondent the original proposal that he signed. Moreover, the Chamber observed that in the absence of a reply to the signed proposal, the Claimant signed an employment contract with his new club, the Club of Country E, Club F, on 27 July 2017.
12. Taking into account all of the above, the Chamber was of the opinion that by sending a counter proposal to the Respondent and modifying the content of the proposal explicitly requesting several other benefits, the Claimant had clearly rejected the proposal of the Respondent. The DRC was of the unanimous opinion that an offer regarding an employment contract can only be accepted in full and not part of it only. As such, the DRC was eager to underline that the Claimant cannot claim rights under a proposal he rejected first. In particular, the DRC deemed that the parties never agreed on the same terms of the proposal at the same time and as such, the parties were not bound by an employment contract.
13. Consequently, the Dispute Resolution Chamber came to the conclusion that the Claimant and the Respondent were not bound by an employment contract and that no breach of contract had been committed by the Respondent.
14. In conclusion, the Chamber decided that, in view if the absence of a breach of contract by the Respondent, the claim of the Claimant clearly lacks grounds and thus that he is not entitled to any compensation in accordance with art. 17 par. 1 of the Regulations. Therefore, the Chamber decided that the claim of the Claimant must be rejected in its entirety.
15. In the light of all of the above, the Dispute Resolution Chamber decided that it must reject the claim put forward by the Claimant in its entirety.
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