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 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Shahab Zahedi Tabar, IR Iran

represented by Mr Arash Najafi

as Claimant

against the club,

Suwon Samsung Bluewings FC, Korea Republic

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 30 December 2018, the football agency SJP Entertainment addressed to the Claimant an “invitation letter” to “Discussing the business and test in Korea Football League Club”.

2. On 8 January 2019, the Claimant arrived in Seoul.

3. On 15 January 2019, the Claimant underwent medical tests at the facility ‘Dongsuwon Hospital’, the results of which are not pacific among the parties.

4. On 16 January 2019, the Claimant underwent further medical tests at the Respondent’s sports medical facilities.

5. On 22 January 2019, the Claimant returned to Iran.

6. On 9 April 2019, the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent terminated the employment contract without just cause and asking:

a. USD 200,000 as compensation “agreed in the contract”;

b. USD 1,000,000 for “breach of the agreement”;

c. Alternatively, “in case the DRC does not admit the conclusion of the contract”, “damage compensation […] at least for half a season according to objective criteria of FIFA jurisprudence”.

7. The Claimant maintained that, after having undergone 2 medical tests the first of which allegedly indicated a medical condition to his knee not affecting his performance, he claims to have signed the employment contract. In this respect, he presented a copy of such document, containing however only his signature.

8. The Claimant further recalled that, after that, the Respondent published news on its media channels concerning his recruitment.

9. However, the Claimant explained that on 17 January 2019 he received a phone call from his agent, asking him to “terminate the contract mutually”, which he rejected. The Claimant further recalled that a few days later he left Korea and returned to Iran.

10. The Claimant pointed out that, after the medical tests, the Respondent held a meeting with him to sign the employment contract and, thus, “all the elements of the conclusion of a contract are accumulated”.

11. In light of the foregoing, the Claimant concluded that the Respondent had terminated the contract without just cause and requested compensation.

12. The Respondent maintained that the parties had never entered into an employment contract.

13. Moreover, the Respondent explained that it was not the author of the document as the “invitation letter” had been drafted by a sports agency.

14. The Respondent recalled that, on 9 January 2019, the Claimant participated in its training camps and that, on 15 and 16 January 2016, he underwent the aforementioned medical tests. However, the Respondent underlined that these medical tests did not show results suitable with playing football professionally.

15. More specifically, the Respondent explained that the first test showed that the Claimant had a ruptured anterior cruciate ligament and degenerated meniscus and the second test concluded that there would be high possibilities of injuries for the Claimant.

16. That having been said, the Respondent recalled that, while waiting for the results of the second exams, the parties had a meeting where the Claimant signed a draft of the employment contract and the Respondent made it clear that it would sign after the results of the tests.

17. In this context, the Respondent argued that – by mistake – some of its staff announced via social media the recruitment of the Claimant but that, as soon as the error was clear, the announcement was removed.

18. Moreover, the Respondent explained that after the results of the second tests indicating high likelihood of injuries were provided, it was decided not to sign the employment contract with the Claimant.

19. The Respondent concluded that there could not be a breach of employment contract since there was never an employment contract in the first place. Moreover, the Respondent deemed to clarify that it never issued a note of cancellation of the employment contract but only that the recruitment of the Claimant had been cancelled.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 9 April 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand (cf. article 21 par. 2 and 3 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 par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Iranian player and a Korean 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, and considering that the present claim was lodged on 9 April 2019, the June 2018 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. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. 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 Chamber noted the diverging positions of the parties and established that the main issue in the present case is whether the parties indeed had a contractual relationship with each other. In particular, the DRC noted that while the player claims to have signed a valid and binding contract with the club, the latter denies having done so after the unsatisfactory medical results of the player.

6. At this point, the DRC deemed it important to remind the parties of the principle of burden of proof, as in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a certain right bears the burden of proof. Having said that, the Chamber emphasised that, in the present case, the burden of proof lies with the player.

7. The DRC then started by acknowledging the fundamental documentation presented in the case at hand, namely the invitation letter and the alleged employment contract.

8. As to the invitation letter, the DRC first noted that the latter was issued by the football agency SJP Entertainment, with the purpose of “Discussing the business and test in Korea Football League Club”. The letter also did not contain a designated space for the signature of the player. As to the alleged employment contract, the copy provided by the player contains his signature only. The club denies having ever signed such document and no evidence of the contrary was provided by the player.

9. In view of the foregoing, the Chamber recalled that in order for a document to be considered as valid and binding employment contract, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration and the signature of both parties. After a careful study of the invitation letter and of the alleged employment contract presented by the player, the Chamber concluded that none of the aforementioned documents actually contained such essential elements.

10. Therefore, the Chamber concluded that the player could not prove that he had a valid and binding contract with the club.

11. The Chamber concluded its deliberations by deciding that the player’s claim is rejected.

*****

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Shahab Zahedi Tabar, 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 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. 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.

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