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 20 February 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 February 2020,

in the following composition:

Clifford Hendel (USA), Deputy Chairman

Roy Vermeer (The Netherlands), member

Daan de Jong (The Netherlands), member

on the claim presented by the club,

Club A, Country B

as Claimant

and the player,

Player C, Country B

as First Respondent

and the club,

Club D, Country E

as Second Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 30 April 2017, the club from Country B, Club A (hereinafter: the Claimant or the club) and the player from Country B, Player C (hereinafter: the First Respondent or the player) concluded a contract titled “Contrat de Joueur Stagiaire-Professionnel de Football” (hereinafter: the contract), valid for 2 years as from 1st May 2017 until the end of the season 2018/2019.

2. According to Art. III. e) of the contract, the Claimant had an option to extend the contract for two additional years, by sending a registered letter remitted by a bailiff or in person to the player, by no later than 31 March 2019. Should the Claimant decide to use this option, the contract provided that the player’s new contract would automatically become a professional contract.

3. According to Art. VI. of the contract, the player was entitled to a gross monthly salary of 35,000, as well as potential bonuses at the discretion of the Claimant. Art. VI. of the contract also stipulated that the annual gross salary will be increased by at least 60,000 on the condition that the player has played in at least 70% of the official matches of the Claimant. In addition, Art. VI. provided that the Claimant may reimburse the player’s transportation, accommodation and catering.

4. In the event that the Claimant decided to extend the contract for two additional years, as set out in Art. III of the contract, Art. VI. stipulated that the player shall be entitled to an increase of at least 100% of his monthly salary.

5. By means of a letter dated 20 July 2018, the club from Country E, Club D (hereinafter: the Second Respondent or the new club) informed the Claimant of its interest in the player. In this context, the new club suggested to invite the player to Country E “to train with our first team” from 5 to 17 August 2018. The new club also added that “(i)n case of successful trainings, we will be ready to discuss a possible transfer of the player.”

6. The trial was authorised by the Claimant for the aforementioned period. In this regard, the Claimant asked that all the costs related to the trial be borne by the Second Respondent. Moreover, the Claimant indicated that “if you are interested in our player, we will be ready to discuss a possible transfer. In this case, I will discuss with an official representative of your Club or with any other person officially mandated from you.”

7. On 24 July 2018, the player’s father remitted to the Claimant, via a bailiff, the termination of the contract (hereinafter: the termination notice). In the termination notice, the player’s father indicated, in particular, that the contract had been signed by the player without his father’s and mother’s consent. In this context, the player’s father indicated that he had sued the Claimant in order to prevent it from using the contract. On the same day, the player informed the Football Federation of Country B, via a bailiff, of the termination of the contract with the Claimant.

8. By means of a letter dated 30 July 2018, the Claimant contested the player’s termination of the contract. On 3 August 2018, the club reiterated its contestation, via a bailiff, of the termination of the contract by the player.

9. On 4 October 2018, the player and the new club concluded an employment contract, valid as from the date of signature until 31 May 2023. According to this contract, the player was entitled to a gross monthly salary of EUR 9,579, as well as to a monthly incentive fee in the amount of the EUR 3,449 gross. The player was further entitled to salary increases based on the time played for the new club.

10. By a letter addressed to the new club dated 25 October 2018, the Claimant expressed its stupefaction regarding the conclusion of a professional contract between the new club and the player. The Claimant considered that this situation constituted a breach of art. 18 and 19 of FIFA Regulations and asked the new club for a compensation of its damages.

11. On 9 November 2018, the Second Respondent asked the Football Federation of Country B to confirm whether the player was amateur and whether his contract with the Claimant was still valid and binding. On 13 November 2018, the Football Federation of Country B confirmed that the player was amateur.

12. On 14 November 2018, the Second Respondent replied to the Claimant, stating that the player was amateur as indicated by the Football Federation of Country B and therefore, that the contract was not valid and binding.

13. On 29 November 2018, the Claimant informed the Second Respondent that the player was professional as he was perceiving remuneration from the club and that the new club was as such not entitled to conclude a contract with the player. According to the Claimant, the fact that the Football Federation of Country B indicated that the player was amateur was irrelevant.

14. On 19 December 2018, the Players Status Committee of the Football Federation of Country B issued a decision, following its seizure by the player’s father on 13 April 2018, pertaining to the cancellation of the player’s contract with the club. It appears that the jurisdictional body decided to cancel the contract between the player and the club considering that the player was not 18 years old at the moment of the conclusion of the contract. In the course of these proceedings, the player’s father argued that the player had signed the contract without his authorisation.

15. It further appears that the club appealed this decision on 31 January 2019. On 19 April 2019, the Central Appeal Commission of the Football Federation of Country B, the appeal body, decided to overrule the decision of 19 December 2018, on the basis that the Players Status Committee was not the competent jurisdiction for the dispute. It appears that the matter was sent to the Tribunal Arbitral du Football for a new decision.

16. On 31 December 2018, the Football Federation of Country E requested the ITC from the Football Federation of Country B in order to register the player with the new club. On the same day, the Football Federation of Country B rejected the request, providing a letter of the club, stating that the player was still under contract.

17. On 5 February 2019, the Football Federation of Country E requested the provisional registration of the player to FIFA. On 15 February 2019, the Single Judge of the Players’ Status Committee authorised the Football Federation of Country E to provisionally register the player with the new club with immediate effect. The Single Judge of the Players’ Status Committee emphasised that this decision “is a provisional measure and, as such, without prejudice to any decision as to a potential contractual dispute between the club from Country B and the player (as well as the new club).”

18. By a letter dated 22 May 2019 addressed to the new club, the Claimant referred to the decision of the Central Appeal Commission of the Football Federation of Country B dated 19 April 2019 and indicated that “it is now clear that Player C was actually under contract with Club A when he moved to Country E and signed a working contract with Club D.” In this regard, the Claimant considered that the player terminated his contract without just cause and that the new club induced him do so. As such, the Claimant granted the Second Respondent a deadline until 31 May 2019 to initiate negotiations “with a view to settlement of this dispute”, failing which it would submit the case to FIFA.

19. On 23 August 2019, the Claimant lodged a claim against the First Respondent and the Second Respondent in front of FIFA.

20. In its claim, the Claimant firstly underlined that the contract provided for a remuneration of the player. In this regard, the Claimant submitted acknowledgement of receipts related to the payment of monthly salaries, allegedly signed by the player. According to the Claimant, this document constitutes clear evidence that the player perceived a salary for his activity at the club. As such, the Claimant considered that it was clear that the player was a professional pursuant to FIFA Regulations.

21. The Claimant further argued that the fact that the Football Federation of Country B does not have a Professional League may explain why the player was registered as an amateur.

22. According to the Claimant, the Second Respondent was well aware that the player was under contract, considering that it asked the Claimant for its authorisation to offer the player a trial. The Second Respondent even indicated that it would be ready to discuss a possible transfer in case of interest.

23. Moreover, the Claimant recalled that the decision of 19 December 2019 of the Players Status Committee of the Football Federation of Country B, cancelling the contract, was overturned by the appeal body on 19 April 2019, thus rendering the contract fully valid.

24. In light of the above, the Claimant considered that the First Respondent and the Second Respondent terminated the contract without just cause and requested the total amount of EUR 4,000,000, plus 5% interest as from 1 October 2018, as compensation for breach of contract. The Claimant also requested that the disciplinary bodies of FIFA impose the appropriate sporting sanctions on the First Respondent and the Second Respondent.

25. As substantiation for the amount requested as compensation for breach of contract, the Claimant emphasised that the player was one of the most talented young players of the club. Moreover, as reference, the Claimant provided examples of other players, who also played with the national team of Country B in the U-17 World Cup and who were allegedly transferred from clubs from Country B to European clubs against transfer fees. Finally, in order to complete the amount due as compensation, the Claimant asked the Second Respondent to provide a copy of the employment contract signed with the player.

26. In their replies to the claim, the First Respondent and the Second Respondent rejected the Claimant’s claim.

27. First of all, the First Respondent held that he was an amateur player when he concluded the employment contract with the Second Respondent. In this regard, the First Respondent submitted a copy of his player’s passport which mentioned that he was amateur at the time of playing with the Claimant.

28. In addition to the above, the First Respondent deemed that his status of amateur player was confirmed by the fact that his remuneration did not exceed his expenses. Furthermore, the First Respondent considered that the status of the Claimant is a youth academy, whose objective is to train and educate young football players.

29. In relation to the contract itself, the First Respondent stated that the contract did not provide for the obligation of the Claimant to register him with the Football Federation of Country B, which is a pre-requisite for a player to be considered as a professional. The Claimant also affirmed that the term “Stagiaire-Professionel” in the contract only confirmed his status as an intern and thus as an amateur. In addition, the Claimant referred to Art. III. lit. e. of the contract which mentioned that “(e)n cas d’option par le CLUB, ce contrat Stagiaire-Professionel devient automatiquement un contrat Professionel”, meaning that he could only be considered as an amateur player. Finally, the First Respondent deemed that, in any case, the contract was not valid as he was not entitled to sign it as a minor, without his parents’ consent.

30. This said, the First Respondent also affirmed that the Claimant stopped paying his salaries as from March 2018, thus demonstrating that it no longer showed any interest in him.

31. Further to this, the First Respondent considered that the contract had been validly terminated on 24 July 2019, when the termination notice was remitted to the Claimant.

32. In this context, the First Respondent emphasised that he was in good faith when he concluded the employment contract with the Second Respondent, given that he was an amateur player and that he had validly terminated the contract with the Claimant.

33. However, in the alternative, should the Dispute Resolution Chamber award compensation for breach of contract to the Claimant, the First Respondent considered that the loss of transfer fee should not be taken into account as it lacks any legal basis, and that should only be taken into account his remuneration, which on average between his salaries with the Claimant and the Second Respondent, amounts to EUR 56,866. In this context, the First Respondent underlined that the Claimant did not provide any evidence to substantiate the amount of EUR 4,000,000, claimed as compensation for breach of contract.

34. Finally, the First Respondent asked not to be sanctioned with sporting sanctions.

35. On its side, the Second Respondent mentioned that on 24 July 2018, it was provided an attestation confirming that the player was amateur by the Football Federation of Country B. The Second Respondent further affirmed that the Football Federation of Country B sent the player’s passport on 27 August 2018, which confirmed that the player was registered in the youth categories only.

36. In light of the above, the Second Respondent considered to be in good faith when it concluded the employment contract with the player, as it was absolutely certain that the player was an amateur. In this regard, the Second Respondent stressed that it only received a copy of the contract between the Claimant and the player after the conclusion of the employment contract with the player.

37. In these circumstances, the Second Respondent argued that it did not induce the player to terminate the contract, as it was terminated long before the conclusion of the employment contract between the First Respondent and the Second Respondent.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 23 August 2019. Consequently, 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.

2. Subsequently, 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 combination with art. 22 lit. a) of the Regulations on the Status and Transfer of Players (edition 2020), the Dispute Resolution Chamber was competent to decide on the present matter, which concerns a dispute between a club from Country B, a player from Country B and a club from Country E, “in relation to the maintenance of contractual stability, where there has been an ITC request and a claim from an interested party in relation to said ITC request, in particular regarding the issue of the ITC, sporting sanctions or compensation for breach of contract”.

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 2020), and considering that the present claim was lodged on 23 August 2019, the June 2019 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

4. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. 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. In this respect, the Chamber first acknowledged that the parties dispute the validity of the contract between the Claimant and the player, as well as the status of the player, namely if he was an amateur or a professional at the moment he concluded a new employment contract with the Second Respondent.

6. The Chamber took note of the extensive argumentation of all parties and noted, in particular, that while the Claimant argues that the player was a professional and that he terminated the contract without just cause when he concluded the employment contract with the Second Respondent, the player and the Second Respondent claim that the player was an amateur and that he could, as such, freely conclude the new employment contract.

7. In view of the foregoing, the Chamber established that the main issue to be resolved in the present dispute was whether the player was a professional or an amateur when he concluded the employment contract with the Second Respondent.

8. At this point, the Chamber deemed it necessary to recall the content of art. 2 par. 2 of the Regulations, which defines a professional player as follows: “A professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs.”

9. Having said this, the Chamber also deemed it important to recall the content of 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.

10. Bearing in mind the foregoing, the Chamber first took note of the decision of the Players Status Committee of the Football Federation of Country B, dated 19 December 2018, by which the contract was cancelled due to the fact that the player was not 18 years old at the moment of the conclusion of the contract. The Chamber further observed that this decision was overruled by the appeal body, the Central Appeal Commission of the Football Federation of Country B on 19 April 2019, on the basis that the Players Status Committee was not the competent jurisdiction for the dispute. Finally, the Chamber acknowledged that the present matter was referred to the Tribunal Arbitral du Football for a new decision.

11. With this established, the Chamber observed that the player was a minor when he concluded the contract and that the Players Status Committee of the Football Federation of Country B had decided to cancel the contract. This being said, the Chamber took good note that the matter was not yet final and binding.

12. Furthermore, the Chamber noted, by reading the title of the contract, i.e. “Contrat de Joueur Stagiaire-Professionel de Football”, that the player’s status was difficult to determine precisely at first glance.

13. The Chamber then acknowledged the content of Art. III. lit. e. of the contract and closely analysed the final part reading “(e)n cas d’option par le CLUB, ce contrat Stagiaire-Professionel devient automatiquement un contrat Professionel”. Moreover, the Chamber also noted that the contract stipulated that the player would be entitled to an increase of his remuneration should the contract be extended. In this context, the Chamber was of the view that it was the clear intention of the parties that the contract would automatically become a contract for a professional player in the event that the Claimant decided to extend the duration of the contract.

14. In these circumstances, the Chamber was of the opinion that pursuant to the aforementioned provision, the player could not be considered as a professional as long as the contract had not been extended by the Claimant. Therefore, the Chamber concluded that the contract was not a contract for a professional player.

15. Bearing in mind the above, the Chamber then decided to focus its attention on the documentation provided by the Football Federation of Country B to the Second Respondent.

16. First, the Chamber turned its attention to the player’s passport dated 27 August 2018, as established by the Football Federation of Country B. In this context, the Chamber recalled that players’ passports contain the relevant details of a player and are issued by the registering association (Art. 7 of the Regulations).

17. This being said, the Chamber observed that according to the player’s passport, the player was registered with the Claimant for the seasons 2014-2015, 2015-2016, 2016-2017 and 2017-2018, in the categories “Minime”, “Cadet” and “Junior”. More importantly, the Chamber noted that the status of the player, during said seasons, was “AMATEUR”.

18. Second, the Chamber focused on the “Attestation” established by the Football Federation of Country B on 24 July 2018 and emphasised that said document confirmed that the player is a “joueur amateur et international A du pays B”.

19. Therefore, in view of all the aforementioned, the DRC concluded that the player was an amateur, not bound by a professional contract, at the moment of the conclusion of the employment contract with the Second Respondent. In these circumstances, the Chamber considered that the player and the Second Respondent were of good faith when concluding the employment contract as it appeared clear, from all the documentation above, that the player was an amateur, who could thus register freely with a new club.

20. In consequence, the DRC decided that the First Respondent had not terminated the contract without just cause.

21. In view of the above, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Club A, 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 relating 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.

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