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 6 December 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 6 December 2018,

in the following composition:

Geoff Thompson (England), Chairman

Eirik Monsen (Norway), member

Jérôme Perlemuter (France), 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. According to the player, Player A (hereinafter: the Claimant), on 22 July 2017, he concluded an employment contract with the Club of Country D, Club C (hereinafter: the Respondent), valid as of 1 August 2017 until 31 May 2018, and according to which the Respondent undertook to pay him a monthly salary of USD 10,000 and a sign-on fee of USD 30,000. In order to prove his allegations, the Claimant submitted the following documents:

a) A picture of him and the president of the Respondent, allegedly after signing the contract;

b) An article of the local press reporting that the Respondent signed a contract with him;

c) A printout from transfermarkt.com, according to which he was part of the Respondent.

2. On 30 October 2017, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract and requested the following monies:

a) USD 30,000 corresponding to the sign-on fee;

b) USD 100,000 as compensation for breach of contract, corresponding to the total value of the contract;

c) USD 60,000 as additional compensation corresponding to six monthly salaries.

Furthermore, the Claimant requested 5% interest p.a. as of 10 August 2017 on the above-mentioned amounts.

3. In his arguments, the Claimant held that the Respondent invited him to Country D on 22 July 2017, in order to sign an employment contract.

4. Equally, the Claimant maintained having passed a medical exam in Country D on 22 July 2017.

5. Moreover, the Claimant stressed that he did sign a copy of a contract which was however never provided to him, even though he requested it several times.

6. The Claimant further highlighted that he was part of the Respondent’s team during a pre-season tournament in Country D (cf. point I.2 above).

7. Nevertheless, he was reportedly told by the Respondent to leave on 10 August 2017, since no employment contract was signed.

8. In this framework, the Claimant held that the Respondent breached the contract on 10 August 2017 without just cause and that he is entitled to the sign-on fee as outstanding remuneration and compensation for breach of contract corresponding to the residual value of the contract.

9. In its reply to the claim, the Respondent argued that FIFA is not competent since no contractual relationship was concluded.

10. Furthermore, the Respondent denied having signed an employment contract with the Claimant and rejected the Claimant’s arguments.

11. The Respondent explained that the Claimant indeed played two friendly matches for the Respondent, but that since he did not convince the coaching staff, no contract negotiations took place and no contract was concluded.

12. In his replica, the Claimant insisted that FIFA is competent since it is an employment related dispute with an international dimension.

13. Furthermore, the Claimant reiterated his position and held that a written contract was concluded, but no copy was given to him.

14. Moreover, and in the event the DRC would decide that no written employment contract was concluded, the Claimant maintained that a factual employment relationship between the parties was established due to the undisputed fact that that the Claimant took part in two friendly matches.

15. Finally, and despite having been invited to do so, the Respondent did not submit its duplica.

16. The Claimant informed FIFA, that, on 1 March 2018, he signed an employment contract with the Club of Country E, Club F, valid as from 1 March 2018 until 28 August 2018, including a monthly salary of USD 1,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analyzed 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 30 October 2017. Consequently, the 2017 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 2017 editions of the Procedural Rules).

2. Subsequently, the DRC noted that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations on the Status and Transfer of Players (edition 2016), the Dispute Resolution Chamber would, in principle, be 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. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies. In particular, the Chamber turned its attention to the argument brought up by the Respondent, according to which the Claimant’s claim should be deemed inadmissible, since no contract was concluded between the parties.

4. In this regard, the Chamber, established that the Respondent’s objection towards the alleged lack of competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players. Therefore, the DRC agreed to reject the Respondent’s argument in relation to the competence, and confirmed that the Claimant’s the claim is admissible.

5. Its competence having been established, the Chamber decided thereafter to analyse 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, and considering that the present matter was submitted to FIFA on 30 October 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

6. Having established the foregoing, and entering into the substance of the matter, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasized 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.

7. In doing so, the members of the Chamber started by acknowledging that, according to the Claimant, he had, on 22 July 2017, concluded an employment contract with the Respondent valid as from 1 August 2017 until 31 May 2018, in accordance with which the Respondent allegedly had undertaken to pay him a monthly salary of USD 10,000 and a sign-on fee of USD 30,000.

8. The Dispute Resolution Chamber furthermore took due note of the fact that the Respondent, on its part, had categorically denied the conclusion of an employment contract with the Claimant. The Respondent had admitted that the Claimant participated in two friendly matches, but declared that finally no employment contract had been concluded since the Claimant did not convince the coaching staff.

9. In view of this 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 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 that the employment contract, on the basis of which he claims outstanding salaries and compensation for breach of contract from the Respondent, indeed existed.

10. Having stated the above, the Dispute Resolution Chamber recalled that the Claimant maintained that he never received a copy of the employment contract he asserts having signed with the Respondent. However, the Claimant had submitted a series of documents in support of his claim which were in continuation examined by the members of the Chamber. Moreover, the Chamber observed that the Claimant argued that a factual employment relationship between the parties was established due to the undisputed fact that the Claimant took part in two friendly matches with the Respondent.

11. Having duly taken note of the aforementioned documentation presented by the Respondent, the members of the Chamber held that in order for the Chamber to be able to assume that the Claimant and the Respondent had indeed been bound through a contractual relationship with the terms as described by the Claimant, it had to be established, beyond doubt, by documentary evidence, that the said parties had indeed entered into a respective labour agreement, and, if so, under which terms. 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, in general, may be likely but are not certain to indicate the signing of a contract. In addition, the members of the Chamber agreed that the Dispute Resolution Chamber must be very careful with accepting documents, other than the employment contract, as evidence for the conclusion of a contract.

12. In respect of the foregoing, the members of the Chamber had to conclude that the documents presented by the Claimant did not prove beyond doubt that the Respondent and the Claimant had validly entered into an employment contract.

13. What is more, even if it would have been possible to establish on the basis of the documents on file, other than an employment contract, that the parties had entered into a labour agreement, the Chamber wished to highlight that it would need to be in possession of such labour agreement in order to be able to properly assess the claim of the Claimant.

14. As a consequence, the Dispute Resolution Chamber decided that, since the Claimant had not been able to prove beyond doubt 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.

15. All the above led the Dispute Resolution Chamber to conclude that the claim of the Claimant has to be rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant is rejected.

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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 & Compliance Officer

Enclosed: CAS directives