F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 21 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 February 2020,

in the following composition:

Clifford Hendel (USA), Deputy Chairman

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), member

on the claim presented by the club,

Al Dhafra, United Arab Emirates represented by Mr Salvatore Civale and Mr Roberto Terenzio

as Claimant

and the player,

Sheraldo Rudi Salomo Willem Becker, the Netherlands

represented by Mr Horst Kletke

as First Respondent

and the club,

1. FC Union Berlin, Germany

represented by Mr Markus Buchberger

as Second Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. According to the Emirati club, Al Dhafra FC (hereinafter: the Claimant), the Dutch player, Sheraldo Rudi Salomo Willem Becker (hereinafter: the First Respondent or the player) signed a document titled “Offer to the player” (hereinafter: the offer) on 15 May 2019.

2. Said offer reads, inter alia, as follows:

“Al Dhafra FC offers your client, the player, Sheraldo Rudi Salomo Willem Becker […] to joining Al Dhafra FC Club during summer transfer window for the sport season of 2019-2020 on a basis according to the following terms and conditions:

A. The acquiring of the player’s Federative rights on a permanent basis for the seasons 2019/2020 – 2020/2021 and 2021/2022. The full amount of the agreement and the employment agreement for every sporting seasons above will be equal to: USD 1,200,000 […] that will be divided as bellow:

- As advanced contract for the player USD 200,000 […].

- Amount USD 1,000,000 […] divided as monthly salary.

- The contract isn’t included: net of taxes.”

3. Furthermore, the offer contained the following paragraph: “Kindly be informed that this offer shall not cause any contractual liability on Al Dhafra FC at any stage unless the player successfully passes all the required medical tests, sign the Agreement and the Employment Agreement in respect of the aforementioned terms and conditions, and Al Dhafra FC receives the ITC from his Club.”

4. According to the Claimant, once the Player arrived in the UAE on the club’s costs in order to fulfil the medical checks and subsequently sign the contract, he left the country on 22 May 2019, without prior notice.

5. On 27 May 2019, the Claimant sent a notification to the First Respondent, requesting him to “join its premises”, to no avail.

6. On 7 June 2019, the First Respondent signed an employment contract with the German club, 1. FC Union Berlin (hereinafter: Second Respondent), valid as from 1 July 2019 until 30 June 2023.

7. On 22 August 2019, the Claimant lodged a claim against the First and Second Respondent I in front of FIFA for breach of contract and requested the payment of USD 1,430,000, corresponding to the “player’s value of market”, 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 offer signed by the player constituted e “preliminary contract” and contained all essentialia negotii, which was subsequently breached by the First Respondent without just cause, when he joined the second Respondent. Moreover, the Claimant held that the Second Respondent induced the player to breach the contract. As a consequence, the Claimant deemed the second Respondent should be held jointly and severally liable.

9. For its part, the Player first held that the offer could not be considered as a pre-contract as no acceptance from the Player had been provided, which led to the inexistence of any contract between him and the Claimant. In this respect, the First Respondent referred to the Swiss Code of Obligations in order to define the concept of an offer. Moreover, the player sustained that said offer had been addressed to the player’s agent, the player’s signature being only the confirmation of the transmission of the offer, not an acceptance. In this sense, the player referred to the authorization empowering his agent, which strictly conditioned any legal engagement of the player. Furthermore, the player referred to the fact that the offer was clearly conditioned and, as such, that said conditions having not been fulfilled, the offer could not have any contractual liability. Finally, the player rejected the Claimant’s request in full deeming it to be unfounded.

10. In parallel, the second Respondent explained that, after having been informed by the player of the facts occurred prior to their contractual relationship, it appeared that the player left the UAE due to the Claimant’s alleged pressure forcing him to sign the employment contract, which he didn’t. Consequently, as from the start of the registration process, the second Respondent sustained that no elements appeared to link the player to any other ongoing contract. As such, it subsequently concluded the contract with the player.

11. Therefore, the second Respondent deemed that the Claimant’s requests were unfounded due to the absence of any employment contract or preliminary contract, the player having only recognized by his signature that his agent informed him of the offer. In this respect, the second Respondent referred also to the concept of the offer and the acceptance in order to conclude that the player did not accept said offer. In addition, the second Respondent referred as well to the conditions of the offer and to the liability of the Claimant which would be excluded if said conditions would not be fulfilled. Finally, no contract at all having been concluded between the Claimant and the player, the second Respondent rejected the Claimant’s request entirely.

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 22 August 2019. 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January 2020) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute with an international dimension between a Emirati club, a Dutch player and a German club in relation to an alleged employment relationship.

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 January 2020), and considering that the present claim was lodged on 22 August 2019, the June 2019 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, on 15 May 2019, the Claimant issued an offer to the First Respondent and invited him to the United Arab Emirates.

6. On account of the above, and since the First Respondent left the United Arab Emirates on 22 Amy 2019 and subsequently joined the second Respondent, the Claimant argued that the player breached the contract. In this regard, the Claimant requests compensation for breach of contract and to hold the second Respondent jointly and severally liable.

7. In continuation, the members of the DRC took note that the First Respondent rejected the Claimant’s claim and having concluded a contract with the Claimant, mainly since he never accepted the offer and since the offer was conditioned.

8. Moreover, the DRC took note of the position of the second Respondent, endorsing the player’s position, rejecting the Claimant’s claim and denying any inducement.

9. 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 between the Claimant and the First Respondent was 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 and, in case, the consequences thereof.

10. In view of this dissent between the parties 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.

11. Consequently, the members of the Chamber started examining the content of the offer, which, prima facie, included the essentialia negotii. Furthermore, the members took note of the following paragraph, included in the offer as well:

“Kindly be informed that this offer shall not cause any contractual liability on Al Dhafra FC at any stage unless the player successfully passes all the required medical tests, sign the Agreement and the Employment Agreement in respect of the aforementioned terms and conditions, and Al Dhafra FC receives the ITC from his Club.”

12. The DRC concluded that the offer is conditioned and if the above-mentioned requirements would not be fulfilled, the Claimant could not be held liable and in analogy, also not the First Respondent.

13. The Chamber acknowledged that no employment contract was signed and therefore the condition of the offer was not fulfilled. Therefore, no further examination of the offer and its alleged acceptance, was necessary.

14. 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 itself and the First Respondent, there was no possibility for the Chamber to enter into the question of 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

The claim of the Claimant, Al Dhafra, is rejected.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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:

Emilio García Silvero

Chief Legal & Compliance Officer