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 16 August 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 16 August 2019,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Pavel Pivovarov (Russia), member

on the claim presented by the club,

Club A, Country B,

as Claimant

against the player,

Player C, Country D,

as First Respondent

and the club,

Club E, Country D,

as Second Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 24 May 2018, Mr. F, a representative of the club of Country B, club A (hereinafter: club A Claimant), addressed a correspondence to Mr. G, one of the alleged agents of Player C (hereinafter: the player or First Respondent), containing an offer for the player’s sport services for the season 2018/2019 and 2019/2020 as well as the optional following season 2020/2021 and the related financial entitlements.

2. More specifically, the said offer provided, with regards to the season 2018/2019, a basic salary of EUR 5,000 and accommodation allowance “of up to € 1,000”. For the season 2019/2020, the player would be entitled to the “final salary of season 18/19”. For the optional third season, “20% increase of final basic salary of 19/20”.

3. On 29 May 2018, Mr. F sent a new offer via e-mail to Mr. G, by means of which he proposed that “the first year, [the player] will get an additional € 15,000 given the signing bonus of € 30,000. In the second year, he will earn € 3,000 gross more, which will also give him around € 1,500 net more to spend”.

4. On 7 June 2018, Mr. F addressed Mr. G and the second alleged agent of the player, Mr. H, via e-mail with an unsigned version, in Country B language, of the “draft-contract” for the player. The said contract provided for a “gross basic monthly salary” of EUR 5,000 for the season 2018/2019 and EUR 8,000 for the following one.

5. On 24 June 2018, an unsigned version, in English language, of the “draft-contract” for the player was forwarded to the above-mentioned addressees.

6. On 28 June 2018, the player signed an employment contract with the Country D club, Club E (hereinafter: Club E or Second Respondent), valid as from 1 July 2018 until 30 June 2021, providing for a monthly salary of EUR 5,000.

7. On 20 December 2018, the Claimant lodged a claim against the player and Club E in front of FIFA, asking:

a. for a “declaratory judgment that there was a legally binding employment contract between the player and [the Claimant]”;

b. to be awarded compensation in the amount of EUR 550,101.62 in accordance with art. 17.1 of the FIFA RSTP;

c. that Club E be held jointly and severally liable and that sporting sanctions be imposed on the player.

8. More in particular, the Claimant maintained that, on 4 June 2018, the player had accepted its second offer by replying via WhatsApp to Mr F, telling him that he was “also very happy that we’ve been able to reach an agreement”.

9. The Claimant further recalled that, after the draft in club of Country B of the employment contract had been sent to the player, it had started looking for a “suitable apartment” for him.

10. Moreover, the Claimant explained that it had even accepted to postpone the player’s medical visits in order to allow him to go to Country J for personal reasons and that, in reply, the player confirmed that the club was “a really good step for [him]”.

11. Furthermore, the Claimant recalled that, on 26 June 2018, it had reminded the player that the medical tests would take place the following day and that, right after, the player first asked few more days to think about the offer and then stopped replying. The Claimant recalled that, on 27 June 2018, Mr. K (i.e. the second alleged player’s agent) told the club that the offer was financially not satisfying.

12. The Claimant explained that, by then, it had understood that the player was in negotiation with Club E and, therefore, it got in touch with an alleged representative of the said Country D club, Mr. L, who – however – according to the Claimant, declared via telephone that Club E was going to continue its negotiations with the player.

13. The Claimant concluded that the player had terminated his contract with the club without just cause since it was “clear that an agreement between [the Claimant] and the player was indeed already reached”.

14. In light of the above, the Claimant requested compensation in the amount of EUR 550,101.62, due to “the remunerations and other benefits due to the player under the existing contract, the time remaining on the existing contract, the fees and expenses paid or incurred by [the Claimant]”.

15. In his reply, the player asked that the claim be rejected and maintained that the parties had never reached any agreement but only “discussed a possible medical check which in the end never took place”.

16. Moreover, the player contested that it had ever mandated Mr. G and/or Mr. K to negotiate an employment contract with the Claimant on his behalf.

17. The player added that he was never involved in all the correspondences between the Claimant’s representative and the above-mentioned alleged agents.

18. The player further pointed out that the Claimant itself did not contest that there was never a signed agreement between them. According to the player, the fact that in a WhatsApp message he used the word agreement “cannot be equated to the formal acceptance of a specific employment agreement” between the parties.

19. Subsidiarily, in case the DRC decided that a valid employment contract had been breached, the player contested the Claimant’s calculation of compensation, since “only the basic salaries of the first two years of the contract could have been considered as guaranteed income for the player”.

20. For its part, in reply, Club E explained that the First Respondent “presented himself as a free player”, with a contract in place with the Country D club Standard de Liège expiring on 30 June 2018. Moreover, Club E argued that it had exercised due diligence by verifying this information prior to signing an employment contract with him on 28 June 2018.

21. Furthermore, Club E recalled that, on 1 July 2018, the Claimant for the first time sent an email to it, claiming that it had already an employment agreement in place with the player but that, when asked to provide a copy of it, the Claimant replied that there was “no undersigned agreement” with the player. With regards to the alleged conversation with Mr. L, Club E maintained that the Claimant “couldn’t claim any rights out of an alleged WhatsApp message it has sent to Mr. L on 27th June”, since that message “remained unanswered and was certainly sent to the wrong person within [Club E]”.

22. Club E concluded that, based on the evidence provided by the Claimant, the latter seemed to have proved only that it had “negotiated with the player at a certain stage but never signed an actual agreement”.

23. Consequently, Club E asked that the claim be rejected and, in case the DRC deemed that a valid employment agreement had been entered into between the player and the Claimant, it “question[ed] in subsidiary order the amount [of compensation] claimed” by the latter. Moreover, in this case, Club E asked not to be held jointly liable in light of the due diligence it had carried out prior to signing the player.

24. In its replica, the Claimant entirely reiterated its position. It added that a legal mandate for the agents to operate on behalf of the player was “in the present situation superfluous”. Moreover, according to the Claimant, the contract forwarded to the player on 7 June (i.e. the club of Country B version) and on 24 June 2018 (i.e. the English version) contains all the essentialia negotii, except for the player’s signature. However, the Claimant explained that the player had clearly accepted its offer via a WhatsApp message. In this respect, the Claimant pointed out that “such messaging is already widely classified as legal written medium similar to e-mail”.

25. The Claimant further argued that its request for compensation takes into account the fact that, in order to sign the player, it had to “terminate the agreement” with another footballer of its squad, which costs it had to include in the calculation of compensation.

26. Finally, the Claimant maintained that Club E is jointly liable since it did not properly investigate the player’s history before concluding the employment contract with him.

27. In his rejoinder, player entirely reiterated his position and further stressed that there is no legal proof that he was “aware of receiving any offer from [the Claimant]”.

28. Moreover, the player pointed out that the signature of the parties is indeed one of the essentialia negotii to deem an employment contract valid and binding upon them and that, in the case at stake, there is no signature of the parties anywhere. According to the player, the Claimant built his case “around two alleged offers”.

29. The player concluded that no formal acceptance of any offer could be derived from the aforementioned WhatsApp conversation, given that it did not refer to any specific offer, let alone a full employment agreement. The player added that, however on 19 June 2018 via WhatsApp, he had expressed concerns about the offer rather than acceptance, writing “I still need some days to think about your offer”.

30. Lastly, Club E reiterated its position. It underlined once more that it acted in good faith when it negotiated with the player, also considering that his player passport confirmed that he was free from other employment contracts.

31. Club E further maintained that it “is not convinced that the parties reached an agreement on the essentialia negotii”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Chamber was eager to emphasize that, contrary to the information contained in FIFA’s letter dated 12 August 2019, by means of which the parties were informed of the composition of the Chamber, the member L. and the member M. refrained from participating in the deliberations in the case at hand, due to the fact that the member L. has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member M. refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members.

2. Its composition having been defined, 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 20 December 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).

3. 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 June 2019), the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns a dispute with an international dimension between a club of Country B, a Country D player and a Country D club in relation to an alleged employment relationship between the first two parties.

4. 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 June 2019), and considering that the present claim was lodged on 20 December 2018, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

5. 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.

6. Having said that, the members of the Chamber took note that, according to the Claimant, on 4 June 2018, it had concluded an employment contract with the player valid for the season 2018/2019 and 2019/2020 as well as the optional following season 2020/2021. More in particular, the Chamber observed that the player’s alleged financial entitlements were the result of a combination of two subsequent offers as follows: A. for the season 2018/2019, a basic salary of EUR 5,000 and accommodation allowance “of up to € 1,000”; for the season 2019/2020, the “final salary of season 18/19” and for the optional third season, “20% increase of final basic salary of 19/20”; B. “the first year, […] an additional € 15,000 given the signing bonus of € 30,000. In the second year, […] € 3,000 gross more”.

7. The members of the DRC further observed that, according to the Claimant, the player had ultimately decided to renounce to provide his services after having allegedly concluded the employment contract and, therefore, the Claimant asked to be awarded compensation for breach of contract by the player in the amount of EUR 550,101.62 and that his new club, Club E, be held jointly and severally liable.

8. On the other hand, the DRC noted that the player, for his part, categorically denied the conclusion of an employment contract with the Claimant, contesting that it had ever mandated Mr. G and/or Mr. K to negotiate an employment contract with the Claimant on his behalf in the first place. The members of the Chamber observed that, in any case, the player pointed out that he never signed any contract with the Claimant.

9. Moreover, the Chamber took note that, for its part, the Second Respondent adhered with the player’s position and explained that it had exercised due diligence by verifying the he was a ‘free agent’ prior to signing an employment contract with him on 28 June 2018. Furthermore, the DRC observed that the Claimant acknowledged that no employment contract had been signed with the player but that, however, the latter had de facto concluded an employment contract by writing via WhatsApp on 4 June 2018 to its representative, Mr. F, that he was “also very happy that we’ve been able to reach an agreement”.

10. 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 whether or not an employment contract had been concluded between the Claimant and the First Respondent. The DRC further observed that, only if this was to be answered in the affirmative, it would be necessary to determine whether the contract had been terminated without just cause by the player as claimed by the Claimant and, if so, to decide on the consequences thereof.

11. 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 it claimed compensation for breach of contract from the player, indeed existed.

12. Having stated the above, the Chamber recalled that the Claimant confirmed that the parties had not signed any employment contract. However, the Chamber noted that the Claimant maintained that, on 4 June 2018, it had concluded an employment contract with the player due to the fact that the latter, after having received two offers, replied with regards to the second via WhatsApp to the Claimant’s representative that he was “also very happy that we’ve been able to reach an agreement”.

13. In other words, the Chamber underlined that, according to the Claimant, by saying via WhatsApp that he was “very happy that [they]’ve been able to reach an agreement”, on 4 June 2018 the player had formally accepted the second offer he had received from the Claimant.

14. Having said this, the DRC proceeded to examine the exchange of e-mails and WhatsApp messages submitted by the Claimant, in order to verify whether it was possible to retrieve an express acceptance of an offer containing the essentialia negotii of an employment agreement.

15. In this respect, the DRC acknowledged that the Claimant had addressed twice via e-mail two persons allegedly representing the player with financial offers. However, the Chamber observed that player never expressly accepted any of those offers in writing but only wrote a message to the Claimant’s representative, merely saying that he was “also very happy that we’ve been able to reach an agreement”.

16. Consequently, the members of the Chamber, bearing in mind the above-mentioned art. 12 para. 3 of the Procedural Rules, pointed out that all that could be inferred from the documentation produced by the Claimant, and assuming that the agents, Mr. G and Mr. K were indeed representing the player, thing which had not been proven in any case, was that the parties only negotiated the terms of a possible employment relationship. Furthermore, the members of the DRC observed that, from the documents on file it appears that, at some point, the negotiations did not come to a signing of an agreement.

17. What is more, the DRC deemed important to underline that, from the documentation produced by the Claimant, no written acceptance by the Claimant and the player of a specific contract emerges anywhere. In other words, the DRC concluded that, based on the documents provided by the Claimant, it could not be proven that the player had unequivocally accepted in writing to bind himself to an employment contract, since a generic text message with no reference to any particular offer or employment contract cannot be equated to a formal acceptance.

18. Moreover, the Chamber observed that the two contracts produced by the Claimant, the one in Country B and the one in English language, are not signed either. Consequently, the members of the DRC concluded that the documents at the basis of the claim do not have the required elements to be valid and binding upon the parties and cannot by themselves constitute conclusive evidence strong enough to, substantially, replace the submission of a signed contract.

19. Having duly taken note of the aforementioned documentation presented by the Claimant, the members of the Chamber held that in order for the Chamber to be able to assume that the Claimant and the player had indeed been bound to an employment contract with the terms as described by the Claimant, it had to be established, with comfortable satisfaction, by documentary evidence, that said parties had indeed entered into a labour agreement, and, if so, under which terms. In general, the members of the Chamber held that they could not assume that an employment contract had been concluded by and between the parties simply based on circumstances which, in general, may be likely but are not certain to indicate the signing of a contract. In addition, the members of the Chamber agreed that the DRC must be very careful with accepting documents, other than the employment contract duly signed by the parties, as evidence for the conclusion of a contract.

20. In respect of the foregoing, the members of the Chamber had to conclude that the documents presented by the Claimant did not prove to the Chamber’s comfortable satisfaction that the player and the Claimant had validly entered into an employment contract.

21. What is more, even assuming that it was possible to establish on the basis of the documents on file, other than an employment contract, that the parties had entered into a labour agreement, the Chamber wished to highlight that it would have needed to be in possession of such labour agreement in order to be able to properly assess the claim of the Claimant.

22. 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 himself and the player, there was no need for the Chamber to enter into the question of whether or not such alleged employment contract had been breached.

23. 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, Club 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

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