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 4 October 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 4 October 2018,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Abu Nayeem Shohag (Bangladesh), member

Alexandra Gómez Bruinewoud (Uruguay), member

Stijn Boeykens (Belgium), 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 of Country B, Player A (hereinafter: the Claimant), he and the Club of Country D, Club C (hereinafter: the Respondent), entered into an employment relationship by signing, on 25 December 2017, the “Invitation Letter to sign professional footballer contract with Club C” (hereinafter also referred to as: the alleged contract or the offer), valid as from 1 January 2018 until 31 December 2019.

2. According to the alleged contract, “the offer from the [Respondent]” provided for an annual salary of USD 500,000 for the first season, USD 550,000 for the second and comprised “accommodation allowance, transportation and tickets including family”.

3. The alleged contract further specified that “this offer will be valid only if [the Claimant] can get a Visa for Country D and arrive in Country D before 5th Jan 2018 and free from contract with the other club”.

4. By letter dated 17 January 2018, the Claimant informed the Respondent that he was waiting for the flight tickets in order to join the team in Capital E and asked the Respondent to “provide them within the shortest time possible”. With the same correspondence, the Claimant enquired whether the Respondent needed any document “in order to start with the issuance of the pertinent visa”.

5. Two days later, the Claimant addressed the Respondent again in writing, urging the latter to take care of the aforementioned issues.

6. On 22 January 2018, the Respondent replied to the Claimant, substantially stating that the parties had not signed any contract, since the document dated 25 December 2017 was an offer containing conditions precedent that the Claimant had not fulfilled.

7. On 26 January 2018, the Claimant addressed the Respondent in writing with one “last reminder”, asking once again to be provided with flight tickets and VISA arrangement within two days, threatening to lodge a claim before FIFA otherwise.

8. On 5 April 2018, the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent terminated the alleged contract without just cause and requesting to be paid the total amount of USD 1,387,500, consisting of:

a. USD 1,125,000 as compensation for breach of contract, plus 5% interest p.a. as from 28 January 2018 until the date of effective payment;

b. USD 262,500 based on the ‘specificity of sport’, plus 5% interest p.a. “starting from the date in which the FIFA decision is communicated”.

9. The Claimant further asked the reimbursement of legal fees in the amount of CHF 15,000 and that the Respondent be sanctioned.

10. More specifically, the Claimant argued that, following previous negotiations, he and the Respondent entered into an employment agreement valid as from 1 January 2018 until 31 December 2019, by signing the alleged contract on 25 December 2017.

11. The Claimant further explained that, on 26 December 2017, the parties started arranging the VISA issuance in order for him to join the team in Country D.

12. Moreover, the Claimant explained that, on 31 December 2017, he terminated his employment relationship with his previous club, i.e. Club F, as prescribed in the alleged contract. Furthermore, he explained that, after having participated to the Tournament G between 22 December 2017 and 5 January 2018, on 17 January 2018 he contacted the Respondent in order to obtain from the latter flight tickets and a working VISA but to no avail. In this respect, he pointed out that the Respondent was aware of his intention to participate in Tournament G and did not oppose it.

13. The Claimant further recalled the above-described exchange of correspondence with the Respondent and explained that, after his last notice of 26 January 2018, it was “crystal clear that the [Respondent] was not willing to honor the Contract signed”. Consequently, according to the Claimant, since the Respondent had not complied with his requests by the given deadline, i.e. 28 January 2018, he considered that on that date the Respondent breached the contract without just cause.

14. In relation to the above, the Claimant argued that the alleged contract contained all the essentialia negotii required in order to be binding, i.e. a clear reference to the parties and their role as well as their signatures, the duration of the employment relationship and the remuneration, plus some “extra elements”, such as accommodation, transportation and flight tickets. Therefore, according to the Claimant, said document showed the intention of the parties to enter into a legally binding relationship.

15. In continuation, the Claimant explained that the 3 conditions precedent envisaged in the alleged contract, namely, i. “medical examination and work permit”, ii. “Presence in Capital E before 5 January 2018” and iii. “Termination of the [Claimant]’s previous employment contract”, were to be considered “abusive and non-existent” and “not occurred due to the [Respondent]’s gross negligence”.

16. With regards to the first condition, the Claimant pointed out that, according to the FIFA Regulations, the validity of a contract cannot be made subject to the grant of a work permit and positive results of medical examinations. Furthermore, the Claimant claimed that it was the Respondent’s obligation to provide him with a valid VISA.

17. Concerning the second condition, the Claimant highlighted that without a working permit he could not reach Capital E. Consequently, he concluded that the non-fulfilment of the second condition precedent was due to the Respondent’s inability to provide him with a working permit timely. Moreover, the Claimant explained that the Respondent should have provided him with the flight tickets to Capital E as “part of the necessary administrative formalities”. The Claimant added that the Respondent had an explicit obligation in that sense since the alleged contract indicated, among the Respondent’s duties, to provide him with “transportation and tickets including family”. Furthermore, the Claimant underlined that the Respondent was aware of his participation to Tournament G taking place in Country H between 22 December 2017 and 5 January 2018 and that, thus, he could not be in Country D before.

18. Lastly, with regards to the third condition, the Claimant recalled that he had terminated his employment relationship with his previous club on 31 December 2017.

19. The Claimant, therefore, concluded that the Respondent’s stance constituted a breach of contract without just cause for which he had to be compensated as follows: i. USD 1,050,000 as residual value of the contract; ii. USD 75,000 for accommodation, transportation and flight tickets; iii. USD 262,500 for ‘specificity of sport’.

20. In its reply, the Respondent asked that the claim be rejected in its entirety.

21. More in particular, the Respondent argued that there was no contractual agreement in place between the parties. In this respect, the Respondent explained that the negotiations with the Claimant’s agent were restricted to WhatsApp and Voicemails exchanges. Furthermore, the Respondent pointed out that there was a certain degree of confusion regarding the identity of the Claimant’s agent, as two different persons interacted with the Respondent until 25 December 2017, i.e. Agent J and Agent K, the latter being the one with whom the Respondent kept negotiating after said date.

22. The Respondent further pointed out that, from the very beginning of the negotiations, it had made it clear that the Claimant’s presence in Country D in early January 2018 was crucial and that Agent K had been made aware of this.

23. Moreover, the Respondent argued that at any time both the agents involved in the negotiations were aware that any exchanged document had to be considered only an offer subject to the Respondent’s final approval once the Claimant had arrived in Country D.

24. In addition, the Respondent explained that the offer dated 25 December 2017 had been sent to the Claimant’s representative following his explicit request, “for the sole purpose to enable the [Claimant] to obtain an entry visa for Country D” since he allegedly “would not have had any chance to apply for without such invitation from a person or entity based in Country D”. The Respondent added that, notwithstanding the urgency, the Claimant did not submit his VISA application until 7 January 2018.

25. In continuation, the Respondent stressed that, in order to be binding, any employment contract had to be signed by its chairman, whereas only its general manager, i.e. Manager L, had signed the above-mentioned offer. Moreover, the Respondent argued that the Regulations of the Football Association of Country D impose the use of standard contracts with requirements that the alleged contract did not meet.

26. The Respondent further underlined that the Claimant’s argument concerning the validity of a contract not being subject to work permit or medical examinations should be considered irrelevant since in the case at stake there was no contract but only an offer. Equally, the Respondent deemed irrelevant the Claimant’s argument concerning his presence at Tournament G and added that, even assuming its relevance, the Claimant would have been able to join the team in Country D since the National Team of Country B had been eliminated in the semi-final on 2 January 2018.

27. Lastly, the Respondent explained that, even assuming that its offer constituted a contract, it could not be argued that it had breached it without just cause, since it was rather the Claimant not having put in place all the necessary steps in a timely manner. On the contrary, according to the Respondent, the Claimant “should be considered the one who actually breached a contract, if any”.

28. In his replica, the Claimant reiterated his position underlying that his acceptance rendered the Respondent’s offer a contract. The Claimant added that Agent K’s testimony should be disregarded as given in bad faith and in the hope of getting future commissions from the Respondent.

29. In continuation, the Claimant explained that his willingness to enter into a valid and binding agreement was further demonstrated by his VISA application, although, according to him, that was in any case the Respondent’s duty.

30. Furthermore, the Claimant argued that Manager L is not only the Respondent’s general manager but also a member of the Respondent’s executive committee and, as such, is entitled to bind the Respondent to employment contracts.

31. Moreover, the Claimant insisted that he could not apply for a working VISA in Country D without the initiative of the Respondent, as the first step of the application process allegedly requires that “the Employer may apply for work permit in advance at Department of Employment”. The Claimant further indicated that the second step allegedly requires that “the applicant’s prospective employer in Country D” submits a specific form to the Ministry of Labour of Country D.

32. In its duplica, the Respondent entirely reiterated the position expressed in its reply to the claim and, referring to Agent K’s alleged bad faith, asserted that “there has never been any business between the [Respondent] and Agent K before, nor are there any intentions to develop such business in the future”.

33. With regards to Manager L’s capacity, the Respondent pointed out that she “is not a member of the Directors of the [Respondent] who are entitled to bindingly sign documents on [its] behalf”.

34. Moreover, with regards to the VISA issue, the Respondent argued that, after the offer had been sent to the Claimant, it should have been the latter to apply for the entry VISA first and only afterwards the Respondent would have applied for the long term VISA and work permit.

35. Upon request of FIFA, the Claimant informed that he signed an employment contract with the Club of Country B, Club M, valid as from January 2018 until December 2019 for a total remuneration of USD 80,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 5 April 2018. Consequently, the DRC concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is 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 a dispute with an international dimension between an Player of Country B and a Club of Country D in relation to an alleged employment relationship between the parties.

3. Subsequently, 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 5 April 2018, the 2018 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 said that, the members of the Chamber acknowledged that, according to the Claimant, on 25 December 2017 he had concluded an employment contract with the Respondent valid as from 1 January 2018 until 31 December 2019 and pursuant to which the Respondent allegedly had undertaken to pay him an annual salary of USD 500,000 for the first season and USD 550,000 for the second, as well as “accommodation allowance, transportation and tickets including family”. The Respondent had allegedly not been interested in his services after the signing of the alleged employment contract and, therefore, the Claimant asked to be awarded compensation for breach of contract by the Respondent in the amount of USD 1,125,000, plus USD 262,500 for “specificity of sport”.

6. On the other hand, the DRC noted that the Respondent, for its part, categorically denied the conclusion of an employment contract with the Claimant. The Respondent admitted that it had carried out negotiations with the Claimant’s agent but that from the beginning of said negotiations it had made it clear that, prior to the conclusion of an employment contract, the Claimant had to be in Country D in early January 2018.

7. Moreover, the Chamber observed that, according to the Respondent, the alleged contract had not been signed by the Respondent’s chairman but by its general manager, Manager L, and, as such, it was not binding on the Respondent.

8. In light of the above, the members of the Chamber observed that the pivotal issue in this dispute, considering the diverging position of the parties, was to determine as to whether or not an employment contract had been concluded between the Claimant and the Respondent. The DRC further observed that, only if this was to be answered in the affirmative, it would be necessary to determine whether the contract had been terminated without just cause by the Respondent as claimed by the Claimant and, if so, to decide on the consequences thereof.

9. Against such background, the Chamber wished to highlight first and foremost 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 the parties to the contract, their role, the duration of the employment relationship and the remuneration. After a close look at the document presented by the Claimant, the members of the Chamber were satisfied with the conclusion that all such elements were included, given that said offer contained: i. a clear reference to the parties; ii. the parties’ acceptance of the conditions outlined therein, manifested through their respective signatures; iii. in particular, the obligation for the Claimant to render his services towards the Respondent in turn of a remuneration and iv. the duration of the employment relationship (i.e. as from 1 January 2018 until 31 December 2019).

10. The members of the Chamber further observed that the offer submitted by the Claimant, in addition to the above, indicated that “accommodation allowance, transportation and tickets including family” were to be provided in favour of the Claimant.

11. In this context, and mindful that an offer bearing all the above described components is tantamount to a contract with regards to the obligations arising among the parties who signed it, the DRC turned its attention to further circumstances emerged throughout the course of the proceedings.

12. First of all, the members of the DRC observed that the Respondent mentioned in its reply that the Claimant had not applied for a (working) VISA in a timely manner, notwithstanding the urgency that the situation required, as the Respondent did not consider the employment relationship validly established yet. In this respect, the Chamber considered relevant to recall art. 18 par. 4 of the Regulations as well as its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of administrative formalities, such as, but not limited to, the application for a work permit, which are of the sole responsibility of a club and on which a player has no influence.

13. Having stated the above, the DRC moved to the Respondent’s argument that the person who signed the offer on its behalf, i.e. Manager L, was not entitled to validly bind the Respondent.

14. In this regard, the members of the Chamber were eager to emphasise that, in accordance with the principle of good faith, to be respected by the parties during the conclusion of contracts, the Claimant could reasonably believe, in good faith, that the person signing the relevant document on behalf of the Respondent was legally authorized to sign it. Equally, and bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the DRC underlined that the Respondent did not provide any documentary evidence demonstrating that the Claimant was aware of the situation outlined by the Respondent at the moment of signing the pertinent document. Consequently, the Chamber dismissed the Respondent’s argument on this point.

15. Having established the foregoing, the Chamber recalled the Respondent’s main defensive argument, according to which, during the negotiations, the parties were both aware that the Claimant’s presence in Country D before 5 January 2018 was absolutely indispensable for the Respondent to consider itself bound to a contractual relationship with him.

16. However, the DRC could not uphold the Respondent’s position in this respect, as it considered it too feeble an argumentation to justify, per se, the persuasion of not being bound to an employment contract it had signed a few days before, also in light of the following circumstances.

17. First of all, as already stated above, the Chamber was aware that the application for a work permit is an administrative formality that is the sole responsibility of a club and on which a player has no influence.

18. Secondly, the DRC noticed that, in any case, as recognised by the Respondent itself, the Claimant had indeed applied for a VISA, although at a slightly later stage than hoped for by the Respondent, showing an undeniable degree of proactivity and willingness to start rendering his services.

19. Moreover, the members of the Chamber observed that the Claimant had to cope with quite a tight schedule, considering that the offer had been signed only on 25 December 2017 and that it remained uncontested that the Claimant participated to Tournament G in Country N at least until 2 January 2018. In this respect, the DRC deemed it worthwhile to recall that the documents the parties attached to their submissions showed that, during the phase of the negotiations it had emerged that the Claimant was going to take part in said tournament and, therefore, the Respondent was aware of the circumstance.

20. For the sake of completeness, although confident that the foregoing line of reasoning was self-explaining, the members of the Chamber took a further look at the parties’ stance. In particular, the members of the Chamber noticed that the Claimant effectively did the only thing that was in his power to do in order to respect the indications contained in the offer, namely terminate the contract he had in place with his previous club before the contract with the Respondent started running.

21. In light of all the aforementioned considerations, the members of the Chamber concluded that the Respondent and the Claimant had validly concluded a contract and, thus, entered into a binding employment relationship by signing, on 25 December 2017, the “Invitation Letter to sign professional footballer contract with Club C”.

22. Consequently, the Chamber decided that the Respondent substantially refused to accept the Claimant’s services without any valid reason and, thus, is to be held liable for the early termination of the employment contract without just cause.

23. In continuation and having established the above, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract.

24. In this context, the Chamber outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

25. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the contract at the basis of the matter at stake.

26. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its termination and concluded that the Claimant would have been entitled to receive USD 1,050,000 as remuneration had the employment contract been executed until its regular expiry date, i.e. 31 December 2019.

27. In continuation, the Chamber assessed as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

28. In respect of the above, the Chamber recalled that the Claimant signed an employment contract with the Club of Country B, Club M, valid as from January 2018 until December 2019 for a total remuneration of USD 80,000. Therefore, the DRC concluded that the Claimant was able to mitigate his damages during the relevant period for the amount of USD 80,000.

29. Having said that, the Chamber referred to its constant practice and the general obligation to mitigate damages and pointed out that, although the relevant employment contract was fully valid and enforceable, the execution thereof had actually never started. The Chamber deemed that such circumstance should be taken into consideration in the calculation of the amount of compensation for breach of contract, and decided that, after mitigation, the amount of USD 323,333 as compensation was to be considered reasonable and justified.

30. Consequently, on account of all of the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of USD 323,333 to the Claimant as compensation for breach of contract.

31. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 5 April 2018, until the date of effective payment.

32. Furthermore, in the absence of any monetary value in the employment contract relating to “accommodation allowance, transportation and tickets including family” and of any documentary evidence in this connection (cf. art. 12 par. 3 of the Procedural Rules), the Chamber had to reject the Claimant’s claim amounting to USD 75,000 relating to said fringe benefits.

33. In addition, as regards the claimed legal expenses, the DRC referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the Dispute Resolution Chamber, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses.

34. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 323,333, plus 5% interest p.a. as from 5 April 2018 until the date of effective payment.

3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.

*****

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 (CAS)

Avenue de Beaumont 2

CH-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 & Integrity Officer

Encl.: CAS directives