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 14 September 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 14 September 2018,

in the following composition:

Geoff Thompson (England), Chairman

Jerome Perlemuter (France), member

Elvis Chetty (Seychelles), member

Takuya Yamazaki (Japan), member

Stefano Sartori (Italy), member

on the claim presented by the club,

Club A, Country B

as Claimant

against the player,

Player C, Country D

as Respondent I

and the club,

Club E, Country D

as Respondent II

regarding an employment-related dispute between the parties

I. Facts of the case

1. According to the Club of Country B, Club A (hereinafter: the Claimant), it concluded an employment contract (hereinafter also referred to as: the alleged employment contract) with the Player of Country D, Player C (hereinafter: the Respondent I or the player) on 22 April 2016, allegedly valid as from 26 April 2016 until 30 June 2018.

2. According to the alleged employment contract, the Claimant undertook to pay the Respondent I a monthly salary of EUR 795, payable until the 15th day of the following month as well as a bonus “equivalent to his salary”, “at the beginning of his holidays and during the Christmas season”.

3. Furthermore, clause eleven of the alleged employment contract reads as follows: “In the event of a breach of this Contract by the Player, or early termination thereof, the Player undertakes to pay the Club, as a penalty clause, the sum of € 1,000,000.00 (one million Euros).”

4. According to the information contained in the Transfer Matching System (TMS), on an unknown date, the Respondent I signed an employment contract with the Club of Country D, Club E (hereinafter: the Respondent II), valid as from 15 July 2016 until 14 July 2021, in turn of a monthly salary of 83,300.

5. Moreover, according to information contained in the TMS, the Respondent I was registered with the Respondent II on 15 July 2016, after his previous contract with the Club of Country B, Club F was mutually terminated. In this regard, the TMS contains a document dated 15 July 2016, whereby Club F confirms that the Respondent I has “no contract with this club since 19/4/2016”.

6. On 16 November 2016, the Claimant sent a letter to the Respondent I and to the Respondent II, requesting payment of EUR 1,000,000 in accordance with clause eleven of the alleged employment contract.

7. On 21 December 2016, the Claimant lodged a claim against the Respondent I and the Respondent II in front of FIFA for breach of contract and requested the payment of EUR 1,000,000, plus 5% interest p.a. as well as sporting sanctions to be imposed on the Respondents.

8. In its arguments, the Claimant held that the Respondent I left Country B after signing the alleged employment contract and that it was not able to contact him anymore under the address provided therein.

9. Moreover, the Claimant argued that it became aware that the Respondent I signed a contract with the Respondent II, thus breaching the employment contract allegedly signed with it on 22 April 2016.

10. In this context, the Claimant invoked clause eleven of the alleged employment contract and requested the amount of EUR 1,000,000 as compensation.

11. The Claimant further pointed out that the notification it had sent on 16 November 2016 remained unanswered by the Respondent I and the Respondent II.

12. In his reply to the claim, the Respondent I explained that the only club he was registered with in Country B was Club F. In this respect, he confirmed having trained with the Claimant, however he denied having signed any employment contract with it. In this context, the Respondent I maintained that he returned to Country D to play for the Respondent II after the employment relationship with Club F was mutually terminated.

13. Despite having been invited to do so, the Respondent II did not submit its position regarding the claim.

14. In its replica, the Claimant entirely reiterated the position expressed with its claim and held that its submission had “nothing to do with the [Respondent I]’s previous contract” with Club F.

15. Furthermore, the Claimant argued that the alleged employment contract was duly signed, however it could not have been registered with the Football Federation of Country B since the Respondent I left without authorisation, “making it impossible to apply for his residence visa”.

16. Despite having been invited to do so, the Respondent I, as well as the Respondent II, did not submit further rejoinders.

17. Moreover, following an explicit request of the FIFA administration, right before the present decision was rendered, the Claimant produced what it claimed to be the original copy of the alleged employment contract.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred 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 21 December 2016. Consequently, the DRC concluded that the 2015 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 a Club of Country B and a Player of Country D in relation to an alleged employment relationship between the two aforementioned parties invoked by the club.

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 21 December 2016, the 2016 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 22 April 2016, it had concluded an employment contract with the Respondent I, valid as from the date of signature until 30 June 2018 and in accordance with which it had undertaken to pay the latter a monthly salary of EUR 795, as well as a bonus “equivalent to his salary”. The DRC further acknowledged that, according to the Claimant, the Respondent I, after the alleged signing of the employment contract, left Country B to sign with the Respondent II. Consequently, the Claimant asked to be awarded compensation for breach of contract by the Respondents in the amount of EUR 1,000,000 plus 5% interest p.a., in accordance with clause eleven of the alleged employment contract, as well as sporting sanctions to be imposed on them.

6. On the other hand, the DRC noted that the Respondent I, for its part, categorically denied the conclusion of an employment contract with the Claimant. The Respondent I admitted having trained with the Claimant but maintained that he never signed an employment contract with it and that the only Club of Country B with which he was registered in Country B was Club F.

7. In continuation, the members of the DRC took note that the Respondent II, for its part, failed to present its response to the claim of the Claimant, despite having been invited to do so. In this way, so the Chamber deemed, the Respondent II renounced its right to defence.

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 Claimant and the Respondent I, was to determine as to whether or not an employment contract between them had been concluded. The DRC further observed that, only if the previous question were to be answered in the affirmative, it would be necessary to determine whether the contract had been terminated without just cause by the Respondent I and, in case, the consequences thereof.

9. In view of this dissent between the Claimant and the Respondent I in respect of the basic above-mentioned underlying question, 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 DRC to conclude that it was up to the Claimant to prove that the alleged employment contract, on the basis of which it claimed compensation for breach of contract from the Respondents, indeed existed.

10. Having stated the above, the Chamber recalled that, after the closure of the investigation in the present matter and only right before the present decision was rendered, the Claimant produced the alleged original version of the document at the basis of the dispute.

11. Consequently, the DRC took note of the evidence provided by the Claimant. However, the members of the Chamber deemed it important to firstly recall that, according to the DRC’s well established jurisprudence, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones concerning falsified signature of documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.

12. In respect of the above, the members of the Chamber, nevertheless, pointed out that all the documentation remitted would be considered with free discretion and, therefore, they focused their attention on the version of the alleged employment contract lastly produced by the Claimant as well as on other documents uncontestably containing the Respondent I’s signature, provided by the parties in the context of the present dispute.

13. The members of the DRC, thus, proceeded to thoroughly examine the documents on file. In particular, they compared the relevant signatures of the Respondent I in the various documents provided in the present affair and had no other option but to conclude that, for a layman, the signatures on the documents the validity of which was not contested, such as the Respondent I’s new employment contract with the Respondent II as well as his declaration concerning third party ownership (TPO) contained in the TMS, appear to be totally different from the one placed on the alleged employment contract.

14. In light of the foregoing, the members of the Chamber decided that the document presented by the Claimant in support of its allegation that it had entered into an employment relationship with the Respondent I could not be taken into account as an employment contract legally binding between the parties.

15. As a consequence, 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 I, there was no possibility for the Chamber to enter into the question of 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 Claimant has to be rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Club 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 (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

Encl.: CAS directives