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

Jérôme Perlemuter (France), member

Elvis Chetty (Seychelles), member

Stefano Sartori (Italy), member

Takuya Yamazaki (Japan), 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: Claimant), he and the club of Country D, Club C (hereinafter: Respondent), entered into an employment relationship by signing the “Confirmation of Participation in Club C Participation Agreement” (hereinafter referred to as: the alleged contract or pre-contractual agreement), valid as from 1 January 2018 until 31 December 2018.

2. According to the alleged contract, The [Claimant] is welcome to join the [Respondent] in the position of “Player” effective from 1 January 2018 until 31 December 2018.” and that “The [Claimant] will get 144,000 US Dollar net for total contract”, consisting of a payment of USD 24,000 “net ahead (deducted from the [Claimant]’s total contract salary) in the following day after passing medical tests […]” and a monthly salary of USD 10,000 to be paid the 10th day of each month. In addition, the alleged contract provided, inter alia, for “accommodation with at the [Respondent]’s sole discretion during [the Claimant’s] participation with the [Respondent]” and “1 (one) car to use during the above-mentioned term”, plus 3 round trip tickets in economy class Country B - Country D.

3. The alleged contract further stipulates that “If you agree to the details and conditions contained in this Agreement including the Standard Terms of Participation and the Rules and Regulations attached hereto which shall be integral parts hereof, please sign below and initial every page and return one original copy to the [Respondent]”.

4. By letter dated 5 March 2018, the Claimant informed the Respondent that in spite of the alleged failure to remit his salary, he was “desirous of complying with [his] contractual obligations and joining the team as soon as possible”, while putting it in default of payment of USD 24,000 for the above-mentioned advance payment as well as of his monthly salaries of January and February 2018. With the same correspondence, the Claimant asked the Respondent to provide him with: (i) “proof of accommodation + transport”; (ii) a flight ticket from Country B to Country D and (iii) the Respondent’s “training schedule” in order to “resume duties” by no later than 14 March 2018.

5. By letter dated 14 March “2017”, the Claimant unilaterally terminated the alleged contract, claiming that, by then, the Respondent had failed to remit him USD 24,000 as “signing fee” and USD 30,000 representing his salaries of January, February and March 2018.

6. On 23 April 2018, the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that he had just cause to terminate the alleged contract and requesting to be paid the total amount of USD 231,600, consisting of:

a. USD 56,400 as outstanding remuneration, corresponding to: USD 30,000 for salaries (namely, USD 10,000 each month from January to March 2018), USD 24,000 for the signing-on fee and USD 2,400 for accommodation and transportation expenses for 3 months, “calculated ex aequo et bono”, plus 5% interest p.a. “on the amount requested for payment arrears from the day the payment was due, until the day these sums are effectively paid”;

b. USD 175,200 as compensation for breach of the alleged contract, corresponding to: (i) USD 90,000 as its residual value; (ii) USD 7,200 as compensation for rent and accommodation “calculated ex aequo et bono”; (iii) USD 3,000 for 3 round trips Country B – Country D; (iv) USD 7,500 for moral damages; (v) USD 7,500 for legal fees and (vi) USD 60,000 for specificity of sport, plus 5% interest p.a. on the total amount “from the day current claim was lodged”.

7. With his claim, the Claimant further asked that the Respondent be sanctioned.

8. More specifically, the Claimant argued that, after having been contacted by the Respondent, the latter and he entered into an employment agreement valid as from 1 January 2018 until 31 December 2018.

9. The Claimant claimed that he “patiently waited for the [Respondent] to contact him to join the team for the first training sessions” and that, considering the Respondent’s inertia, he “reacted very proactively by calling the [Respondent] […] seeking for an explanation” but to no avail.

10. Moreover, the Claimant explained that he “kept on trying to get a hold on someone at the [Respondent]” whereas the latter did not react “showing a disinterest” in his professional services. Moreover, the Claimant argued that, after having put the Respondent in default, he terminated the alleged contract with just cause since, by 14 March 2018, three monthly salaries and the signing-on fee were outstanding.

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

12. More in particular, the Respondent argued that there was no contractual agreement in place between the parties. In this respect, the Respondent explained that, on 5 September 2017, it had been contacted by the agency “Agency E” as the agent representing the Claimant, which was exploring the possibility of an engagement of the player with the Respondent. The latter added that, consequently, it had forwarded the agency a copy of the “pre-contractual agreement”, in order for the Claimant to evaluate it.

13. With regards to the above, the Respondent pointed out that it had signed the “pre-contractual agreement” and then forwarded it to the agency but that it had not received it back signed by the Claimant until March 2018, when the latter attached it to his default notice.

14. Moreover, the Respondent argued that the agency had informed both the Respondent itself and the Claimant that the pre-contractual agreement had been cancelled due to the non-acceptance of the Claimant and that neither of the parties had raised any argument in that regard. In this respect, the Respondent submitted a statement of the agency, whereby the latter declared that, on 5 September 2017, being the authorised agent of the Claimant, it had forwarded the agreement to the Claimant and informed him “to accept and sign off within 3 days, otherwise the offer will be cancelled […]”. With the same statement, the agency added that, 3 weeks later, it had informed the Claimant that “the offer from the [Respondent] was cancelled and terminated since his delayed responses” and that “the [Claimant] accepted the termination without any argument”.

15. In addition, the Respondent explained that the Claimant never contacted the Respondent and never expressed the intention to accept its offer and perform his duties in accordance with the pre-contractual agreement, while reaching out only in March 2018 to ask the Respondent to pay him compensation.

16. Moreover, the Respondent added that the fact that the parties had never concluded an employment contract is confirmed by a series of circumstances, namely, (i) the Respondent had never requested the international transfer certificate (hereinafter: ITC) and never registered the Claimant on the Transfer Matching System (TMS); (ii) the Claimant never underwent the medical tests.

17. In his replica, the Claimant reiterated his position and added that the pre-contractual agreement concluded between the parties contained all the essentialia negotii required in order for it to constitute a valid and binding employment contract.

18. In continuation, the Claimant explained that, the validity of the alleged contract could not be affected by the fact that the Respondent did not proceed with the medical tests and the request of the ITC.

19. Furthermore, the Claimant pointed out that the agency’s statement submitted by the Respondent could not be deemed reliable since “there is a close connection” between the agency and the Respondent and, thus, the latter’s position is not impartial. The Claimant added that what the agency had stated is false anyway and that there was no clause in the pre-contractual agreement providing for a cancellation of the offer after three days.

20. In its duplica, the Respondent entirely reiterated the position expressed in its reply to the claim and asserted that it has no close connection with the agency. Furthermore, the Respondent specified that its arguments concerning the medical tests and the ITC were only serving as supporting details to the main reasoning that there was no contract in place between the parties.

21. Upon request of FIFA, the Claimant informed that he did not enter into any new employment relationship after signature of the alleged 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 23 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 a 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 23 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, he entered into an employment relationship with the Respondent by signing the pre-contractual agreement, valid as from 1 January 2018 until 31 December 2018, in accordance with which the Respondent allegedly had undertaken to pay him USD 144,000 for the whole duration of the employment relationship. The Respondent had allegedly not been interested in his services after the alleged signing of the employment contract and, therefore, the Claimant asked to be awarded compensation for breach of contract by the Respondent in the total amount of USD 231,600.

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 the Claimant, after having received a copy of the pre-contractual agreement, did not send it back countersigned until March 2018, when he put the Respondent in default and requested flight tickets to Country D.

7. Moreover, the Chamber observed that, according to the Respondent, its version of the facts was confirmed by the Claimant’s agent “Agency E”, which had declared that it had duly informed its client that the offer it had forwarded to him on 5 September 2018 had to be considered cancelled due to the Claimant’s lack of acceptance.

8. In light of the above, the members of the Chamber observed that the underlying 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, also in light of the parties’ stance in the period of time preceding and following the alleged conclusion of a contract, whether the latter had been terminated without just cause by the Respondent as claimed by the Claimant and, if so, to decide on the consequences thereof.

9. Having said that, 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 employment contract, on the basis of which he claimed compensation for breach of contract from the Respondent, indeed existed.

10. Having stated the above, the Chamber recalled that the Claimant maintained that the Respondent’s offer contained all the essentialia negotii of an employment agreement. In this respect, the DRC, taking into account the documentation submitted by the Claimant, recognised that the offer, at first glance, contained by and large the aforementioned requirements. More specifically, the DRC acknowledged that: i) the Respondent had negotiated with the Claimant’s agency the terms of a future employment relationship; ii) the Respondent had drafted an offer referring to the parties, indicating the duration of the possible employment relationship and outlining the remuneration, plus further fringe benefits, such as accommodation and flight tickets to and from Country D.

11. However, the DRC deemed of utmost importance to underline that, with regards to the necessary requirement of the parties’ acceptance, the Respondent claimed that the Claimant had never sent back the countersigned offer until it was put in default in March 2018. In this respect, bearing in mind the above-mentioned provision of the Procedural Rules, the members of the DRC found that the Claimant had not provided any evidence concerning the day on which he delivered the pre-contractual agreement with his signature back to the Respondent.

12. As a consequence, the Dispute Resolution Chamber decided that the Claimant had not been able to prove beyond any reasonable doubt that an employment contract had been indeed concluded between himself and the Respondent via, amongst other things, the express acceptance of an offer that could be unequivocally traced.

13. However, the Chamber was eager to emphasise that, even assuming that the Claimant had sent his acceptance in a timely manner and therefore fulfilled all the requirements in order to bind himself to an employment relationship with the Respondent, the ensuing considerations had to be taken into the highest account.

14. In this context, the Chamber, first and foremost, underlined that, during the course of the proceedings, the Respondent produced a statement by means of which the Claimant’s agency recalled in detail the course of the events during the relevant period of time. More in particular, the DRC took note that “Agency E” declared the following:

a. on 5 September 2017, it had forwarded the Respondent‘s offer to the Claimant explicitly requesting the latter to sign it within the following three days if he were to accept it;

b. the following day, the Claimant had communicated the agency that he had received at least two other offers from Indonesian clubs;

c. three weeks after, the agency informed the Claimant that the offer had to be considered cancelled due to the fact that he had not communicated his acceptance.

15. Moreover, the DRC observed that, with the same statement, the agency added that the Claimant had allegedly “accepted the termination without any argument” and that he had not raised any objection regarding the deal being cancelled.

16. In respect of the above, the Chamber found it worthwhile to observe that the Claimant did not explicitly object the recollection of facts as presented by his agent but only limited himself to claiming that such statement was given in bad faith due to the alleged close connection that the agency had with the Respondent, without presenting any documents in support of such allegation.

17. Furthermore, the foregoing being emphasised, the members of the Chamber found of utmost importance to go through the Claimant’s stance during the relevant period of time.

18. In relation to the above, the DRC turned its attention to the Claimant’s behaviour following the moment in which the alleged employment relationship should have started, i.e. 1 January 2018, and the documents produced in support of his allegations. In this regard, the DRC noticed that the Claimant explained that, after having signed the pre-contractual agreement, he “patiently waited for the [Respondent] to contact him to join the team for the first training sessions” and that he showed a proactive attitude “by calling the [Respondent] […] seeking for an explanation” and by “trying to get a hold on someone at the [Respondent]”. However, once again mindful of the aforementioned provision of the Procedural Rules, the members of the Chamber concurred in the conclusion that the Claimant did not provide sufficient evidence corroborating the allegations on the basis of which he duly put his services at disposal of the Respondent.

19. In other words, due to the lack of any proof whatsoever submitted by the Claimant, the members of the Chamber endorsed the Respondent’s remark that the Claimant reached out to it showing interest in executing the alleged contract only on 5 March 2018, i.e. more than two months after the alleged employment relationship should have started and seven months from the day in which he received the offer from the Respondent.

20. Consequently, the Chamber concluded that the Claimant had failed to prove that he had accepted the Respondent’s offer prior to putting it in default in March 2018 and that, in any case, he showed that he was no longer interested in pursuing his contractual relationship with the Respondent, assuming he ever was in the first place.

21. 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 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:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives