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 August 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 August 2019,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay), member

Stijn Boeykens (Belgium), member

Wouter Lambrecht (Belgium), member

Abu Nayeem Shohag (Bangladesh), 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 between the parties

I. Facts of the case

1. On 30 January 2018, the club, Club C (hereinafter: the club or the Respondent) sent the player, Player A (hereinafter: the player or the Claimant) a “contract proposal” providing, inter alia, a basic salary of USD 90,000 “net/year” and “air ticket payment 2 times a year”.

2. On 1 February 2018, the club sent the player a draft of employment contract which provided a monthly salary of 17,440 without, however, specifying its duration.

3. On 2 February 2018, the club provided the player with a loan agreement, signed by the Respondent only, for the temporary transfer of the player from the Club of Country B, Club E (hereinafter: Club E) to the Respondent until 31 December 2018.

4. On 21 February 2018, the player requested the club to be provided with a flight ticket and a visa in order to join the club, within the following five days.

5. On 26 February 2018, the player urged the club to “execute the employment relationship” and insisted on his previous requests, granting a 2 days’ time-limit in order to comply.

6. On 6 April 2018, the player lodged a claim for breach of contract against the club in front of FIFA and requested the following:

a) USD 90,000 as compensation for breach of contract, plus 5% interest p.a. as from 10 February 2018 until the date of effective payment;

b) USD 45,000 as additional compensation based on the specificity of sport, plus 5% interest p.a. as from the date of notification of the relevant FIFA decision until the date of effective payment;

c) Sporting sanctions on the club;

d) Reimbursement of legal expenses in the amount of CHF 15,000.

7. In his claim, the player considered that he concluded an employment contract with the club on 30 January 2018, which was valid until 31 December 2018. In particular, the player held that the proposal he received from the club on 30 January 2018 contained all the essentialia negotii.

8. In this respect, the player argued that the aforementioned proposal constituted a valid and binding agreement and that the draft he eventually received on 1 February 2018 was to be signed upon his arrival to Country D.

9. Moreover, the player affirmed that his former club, Club E, and the Respondent signed “on almost a simultaneous basis” a loan agreement for his temporary transfer to the club until 31 December 2018 (as detailed in point I.3 above).

10. Furthermore, according to the player, on 10 February 2018, an alleged representative of the club informed him, via whatsapp, that the latter was not interested in his services anymore as the club was “interested in another player from Country F”.

11. Consequently, the player concluded that, on 10 February 2018, the club terminated the contract concluded on 30 January 2018 without just cause and, therefore, he was entitled to compensation for breach of contract.

12. In its reply, the Respondent acknowledged having started negotiations with the player’s former club, Club E, “for the Country D football season of 2018 year”. In this context, the Respondent also admitted having sent a contractual proposal to the player on 30 January 2018 “in case of the loan agreement signature” with Club E.

13. Moreover, the club confirmed having sent the player a draft of employment contract on 1 February 2018, in order to “discuss the details” once the loan agreement was concluded.

14. Nevertheless, the club emphasised that no loan agreement was eventually concluded with Club E and argued that the proposal sent on 30 January 2018 could not be considered as an official contract nor as a valid and binding agreement.

15. In particular, the club stressed that both the aforementioned proposal and the loan agreement were not signed by both parties and did not contain the essentialia negotii as they did not specify the duration of the alleged employment relationship.

16. Along those lines, the club added that, during the month of February 2018, it decided to “cancel further negotiations” with the Claimant as it was interested in a different profile of player.

17. In conclusion, the Respondent requested the rejection of the player’s claim as no valid contract had been concluded by the Claimant and the Respondent.

18. In his replica, the player reiterated his previous arguments and argued that the club considered the proposal dated 30 January 2018, the draft sent on 1 February 2018 and the loan agreement “as part of the same contractual engagement”. As such, the player held that it was clear that the Claimant had been hired as a football player by the club until 31 December 2018.

19. Moreover, the Claimant held that the conclusion of the contract between the player and the club was not subject to the execution of the loan agreement. In particular, the player pointed out that, pursuant to art. 5 of the loan agreement, the club “undertakes to conclude an individual contract on mutually agreed terms with the Player […] for the period since _____ till December 31, 2018”.

20. In its final comments, the club insisted on its previous argumentations and reiterated that the proposal of 30 January 2018 could not create “any legal effect in the employment relationship between the parties”.

21. Furthermore, the club maintained that the information sent via whatsapp on 10 February 2018, which the player referred to in his claim, was sent on behalf of the Respondent by an “unknown person” who “with high probability was not entitled to do so”.

22. Upon request of the FIFA administration, the player informed that, for the period between 10 February 2018 until 31 December 2018, he was under contract with his former club, Club E. According to the relevant contract, signed on 11 January 2017 and valid until the end of the season 2018-2019, he was entitled to a monthly salary of 60,000.

23. Moreover, the player acknowledged having eventually signed, during the aforementioned period, an employment contract with the Club of Country G Club H and, then, with the Club of Country J, Club K. Nevertheless, he affirmed that he was not in possession of a copy of said contracts.

24. According to the information contained in the Transfer Matching System (TMS), on 1 March 2018, the player and the club, Club H concluded an employment contract valid until 31 December 2018 and providing a monthly salary of USD 12,500.

25. Furthermore, in accordance with the TMS, on 14 June 2018, the player and the club, Club K concluded an employment contract valid as from 22 June 2018 until 31 December 2018, providing a total salary of USD 102,000.

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 6 April 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; 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 June 2019), the Dispute Resolution 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 June 2019), and considering that the present claim was lodged on 6 April 2018, the January 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. 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. In particular, the Chamber recalled that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. First of all, the Chamber acknowledged that it remained undisputed that the Respondent sent a contractual proposal and a draft of employment contract to the Claimant on 30 January 2018 and 1 February 2018 respectively. Moreover, the Respondent also provided the Claimant, on 2 February 2018, with a loan agreement between the club and Club E, which was signed by the Respondent only.

6. In this respect, the Claimant held that the proposal sent by the Respondent on 30 January 2018 contained all the essentialia negotii and, consequently, a valid and binding employment contract valid until 31 December 2018 was concluded between the Claimant and Respondent on 30 January 2018.

7. The Claimant further alleged that, nevertheless, the Respondent did not provide him with the flight tickets in order to reach Country D and it eventually terminated the contract without just cause on 10 February 2018. On account of the above, the Claimant requested to be awarded compensation for breach of contract.

8. The Dispute Resolution Chamber equally took due note of the fact that the Respondent, for its part, admitted having sent the contractual proposal to the Claimant on 30 January 2018; it denied, however, having concluded any employment contract with the Claimant. In particular, the Respondent considered that the aforementioned proposal, and the subsequent draft of contract sent on 1 February 2018, depended on the conclusion of a loan agreement between the Respondent itself and the player’s former club, Club E, which, however, did not occur.

9. In this respect, the Respondent concluded that, as no loan agreement had been concluded with Club E, no valid and binding employment contract had been consequently concluded between the player and the club.

10. 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.

11. Having stated the above, the Dispute Resolution Chamber wished to recall that, at the time the Claimant received the contractual proposal of the Respondent on 30 January 2018, he was, in principle, still under contract with the Club E. Indeed, it was only later, namely on 2 February 2018, that the club provided the player with a loan agreement between the Respondent and Club E which, nevertheless, was not signed by the latter.

12. Moreover, the DRC duly considered that the Claimant did not provide evidence, to the Chamber’s comfortable satisfaction, that he expressly accepted the Respondent’s contractual proposal, which he received on 30 January 2018.

13. In addition, the members of the Chamber duly noted that, despite the Respondent provided the Claimant with the loan agreement on 2 February 2018, effectively said agreement was never concluded between the Respondent and Club E, which did not sign it. In particular, the members of the Chamber considered that, in order to demonstrate having validly entered into an employment agreement with the Respondent, the Claimant should have first and foremost proven that a valid loan agreement had been concluded between the Respondent and Club E.

14. Nevertheless, the DRC emphasised that the Claimant did not submit sufficient evidence that the aforementioned loan agreement was ever concluded, nor that he was not under contract with the club, Club E when he allegedly accepted the Respondent’s offer.

15. Consequently, the members of the Chamber came to the unanimous conclusion that the player, at least until the date of alleged termination (i.e. 10 February 2018), remained bound to the contract previously concluded with the club, Club E on 11 January 2017 and, thus, was never not even in the position to accept the Respondent’s contractual proposal.

16. As a consequence and in view of all the aforementioned considerations, the DRC decided that, since the Claimant had not been able to prove that an employment contract had been validly concluded between himself and the Respondent, there was no possibility for the Chamber to enter into the question as to whether or not such alleged employment contract had been breached.

17. Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs, in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

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. 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