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 15 November 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 November 2018,
in the following composition:
Geoff Thompson (England), Chairman
Roy Vermeer (The Netherlands), member
Johan van Gaalen (South Africa), member
Wouter Lambrecht (Belgium), member
Pavel Pivovarov (Russia), 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. On 15 January 2016, the Club of Country D, Club C (hereinafter: the Respondent or the club) sent to the Player of Country B, Player A (hereinafter: the Claimant or the player) a letter (hereinafter: the proposal), by means of which it invited him “to sign contract our club Season 2016”. The proposal was signed by Manager E as “Manager Club C”.
2. The proposal stipulates the following:
“[…] 2. Player will need to pass Medical, fisical test before [signing] a contract with Club C
3. The player will join the club in a free transfer loan from the Club of Country B, Club F
4. The player will receive the salary of 560,000 after deduction 5% tax = 532,000
5. The player will receive a signing fee 1,000,000”.
3. According to the Claimant, on 22 January 2016, the player and the club signed an employment contract valid as from the date of signature until 31 December 2016 (hereinafter: the contract), pursuant to which the club committed to pay the player:
a) a monthly salary in the amount of 385,000, payable “on the fifth date of the next month”;
b) a signing fee in the amount of 1,000,000, payable on 5 February 2016.
4. According to the Claimant, also on 22 January 2016, the player, the club and the Club of Country B, Club F (hereinafter: Club F) concluded an agreement for the transfer of the Claimant on loan from Club F to the Respondent (hereinafter: the loan agreement), as of the same date until 31 December 2016. Pursuant to the loan agreement, the Respondent committed to pay Club F a transfer fee in the amount of USD 60,000 in 11 instalments as of 1 March 2016.
5. On 17 May 2017, the Claimant lodged a claim against the Respondent for breach of contract in front of FIFA, requesting the payment of 5,620,000 plus 5% interest p.a. as from “the date in which the payment should be made”, broken-down as follows:
a) 1,155,000 as outstanding salaries for the first three months of the contract;
b) 1,000,000 for the signing-fee set out in the contract;
c) 3,465,000 as compensation for breach of contract corresponding to the remaining value of the contract.
6. In his claim, the Claimant alleged that, on 6 April 2016, he sent a letter to the Respondent, by means of which he terminated the contract due to the alleged “non-fulfilment of [the club’s] financial obligations and other violations”. Within the same letter, the Claimant also requested the payment of the first three monthly salaries, in the amount of 1,155,000, within 10 days.
7. Furthermore, the Claimant argued that he terminated the contract with just cause due to the Respondent’s failure to comply with his payment obligations for the first three months of the contract.
8. In its reply, the Respondent admitted that it sent the proposal to the Claimant, pointing out that the conclusion of the contract was subject to the passing of the medical tests upon his arrival in Country D. In this regard, the Respondent affirmed that it met the Claimant in Country D on 28 January 2016 and, on the same date, it allegedly received, from the Claimant himself, the first draft of the loan agreement. Nonetheless, according to the Respondent, the negotiations with Club F eventually failed and no loan agreement was concluded between the aforementioned clubs.
9. In this context, the Respondent argued that the version of the loan agreement presented by the Claimant was forged because it was not bearing the club’s seal and, despite indicating Director G as club’s representative, it contained the signature of another person, namely Manager E who, however, the Respondent acknowledged to be its manager. More in detail, the Respondent maintained that only Director G, in his quality of club’s “one director” was authorized to sign on behalf of the Respondent and to use the club’s seal. In any case, the Respondent argued that neither Director G nor Manager E signed the loan agreement.
10. Furthermore, the Respondent affirmed that, in view of the failure of the negotiations with Club F, it did not sign an employment contract with the Claimant. In particular, the Respondent stressed that it did not enter into a contractual relationship with the Claimant for the following reasons:
a) the contract submitted by the Claimant was allegedly just a draft, not validly signed since, despite indicating Director G as club’s representative, it contained the signature of Manager E;
b) the contract did not contain the club’s seal;
c) the contract was not registered with the Football Association of Country D and no ITC was requested.
11. Finally, the Respondent pointed out that “after that day, the player left without any notified and never be here for any physical test nor medical check” and affirmed that it did not receive the default notice dated 6 April 2016 and, even more, it “did not have any more contacts with [the Claimant]”.
12. In his replica, the Claimant maintained that he entered into a valid and binding employment relationship with the Respondent by just accepting the club’s proposal. Furthermore, the Claimant alleged that the Respondent “tried to trick [him] into thinking that the employment relationship was concluded, in order to attract him to Country D and, there, decide if it really wanted to be bound by the agreement”.
13. Despite having been invited to do so by the FIFA administration, the Respondent did not provide any comments to the Claimant’s replica.
14. Furthermore, despite the request from the FIFA administration, the Claimant did not submit the original version of the loan agreement and of the employment contract.
15. Finally, upon request of FIFA, the Claimant informed that:
a) he concluded an employment contract with the club, Club F, valid as of 1 July 2012 until 31 January 2017, providing a salary of 2,000;
b) he was registered on loan with the Club of Country B, Club H as of 26 March 2016 until 26 June 2016, with a salary of 1,000;
c) he did not return to Club F at the end of the loan period with Club H.
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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 17 May 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are 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 an employment-related dispute with an international dimension between a Player of Country B and a Club of Country D.
3. In continuation, 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 17 May 2017, the 2016 edition of said regulations (hereinafter: 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. First, the Chamber observed that, on 15 January 2016, the Respondent sent a proposal to the Claimant regarding the signature of the employment contract upon the player passing a “fisical test” with the Respondent and the conclusion of a loan agreement between the latter and the club, Club F.
6. Moreover, the Chamber noted that, according to the Claimant, on 22 January 2016, he signed the loan agreement with the Respondent and Club F and, on the same date, he also concluded an employment contract with the Respondent.
7. Furthermore, the Claimant alleged that the he terminated the contract on 6 April 2016, as the Respondent allegedly did not pay him the first three monthly salaries.
8. The Dispute Resolution Chamber equally took due note that the Respondent, on its part, denied having concluded the loan agreement as well as the employment contract with the Respondent, asserting that both the documents submitted by the Claimant in this regard were forged. Nonetheless, the Respondent admitted that he entered into negotiations with the Claimant and the club, Club F, however to no avail. Furthermore, the Respondent denied having received any letter of termination of the contract from the Claimant.
9. In view of the aforementioned dissent positions of the parties in respect of the basic question as to whether or not an employment contract had been concluded between them, 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 the existence of the conclusion of an employment contract with the Respondent.
10. Having stated the above, the Dispute Resolution Chamber recalled that the Respondent affirmed that it signed neither the loan agreement nor the employment contract with the Claimant and maintained that the copies of the contracts remitted by the Claimant were forged.
11. What is more, the members of the Chamber stressed that the Respondent, despite having been invited by the FIFA administration to do so, was unable to provide an original specimen of the disputed contracts, namely the loan agreement and the employment contract.
12. At this stage, the Dispute Resolution Chamber considered appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.
13. In continuation, the DRC recalled that, according to art. 12 par. 6 of the Procedural Rules, all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the copy of the alleged contracts submitted by the Claimant.
14. On account of these considerations, the Chamber held that, in accordance with its long-standing jurisprudence, the fact that the Claimant had only submitted a copy of the disputed contracts was, per se, insufficient to establish the existence of the alleged contractual relationship.
15. The members of the Chamber were comforted with such conclusion by the fact that the Claimant acknowledged that his employment contract with his former club, Club F, was valid also for the entire year 2016 and that, even more, he was registered on loan with the Club of Country B, Club H as of 26 March 2016 until 26 June 2016. What is more, the DRC wished to recall that the Claimant did not provide any evidence that he sent a letter of termination of the alleged employment contract to the Respondent on 6 April 2016.
16. Consequently, the members of the Chamber concluded that the Claimant did not prove that the Respondent and the Claimant had validly entered into an employment contract, regardless of the fact that, as acknowledged by both parties, some negotiations took place between them. In this regard, the DRC emphasised that the evidence presented by the Claimant, in particular the proposal sent by the Claimant on 15 January 2016, is, per se, insufficient to prove to the Chamber’s satisfaction the existence of an employment relationship, as the same was subject to the fulfilment of conditions (in particular the conclusion of the loan agreement) which were not proved by the Claimant.
17. Therefore, on account of all the aforementioned considerations, 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, there was no possibility for the Chamber to enter into the question whether or not such alleged employment contract had been breached.
18. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected.
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 article 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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives