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 12 June 2020

Decision of the

DRC Judge

passed via videoconference, on 12 June 2020,

regarding an employment-related dispute concerning the player Yves Ekwalla HERMANN

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

Yves Ekwalla HERMANN, Cameroon

Represented by Koray Akalp

RESPONDENT:

AL-ZAWRA’A SPORT CLUB, Iraq

Represented by Nezar Ahmed

Contractual basis

1. On 25 January 2019, the Cameroonian player, Yves Ekwalla Hermann (hereinafter: the Claimant or the player), and the Iraqi club, Al-Zawra’a Sport Club (hereinafter: the Respondent or the club) allegedly concluded an employment contract (hereinafter: “the alleged contract”) valid as from 24 January 2019 until 1 July 2019.

2. The alleged contract, inter alia, foresaw the following financial conditions:

“The two sides agreed on the following:

1. Distracted first party second party (100,000) $ (ONE hundred thousand DOLLARS) type. As the value of the contract paid in three instalments scheduled in agreement with the parties.

30% upon signature, 30% as monthly salaries, and 40% at the end of the seasons (sic).”

3. According to art. 15 of the alleged contract, “Iraqi courts are competent to resolve disputes that arise between the parties”.

4. According to the information available in the Transfer Matching System (hereinafter: TMS), there is no transfer instruction inputted.

5. According to the information available in TMS, the TMS manager of the Respondent is Mr Abdalrahman Rasheed Kaream and is official email address is rr_sport@yahoo.com.

Chain of events

6. On 11 February 2019, the Claimant, “due to the failure of the Respondent to register the Claimant”, put the Respondent in default by correspondence sent to the email address alzawraa_club@yahoo.com.

7. In particular, the Claimant requested the following: “(i) [to] receive the total remuneration stipulated in the above-mentioned employment contract and to (ii) train and play football for the Club”.

8. The Claimant reiterated his default on 4 March 2019 by correspondence sent to the email address alzawraa_club@yahoo.com.

9. In this respect, the Claimant stated the following:

“Please be aware that the employment contract signed between the parties, valid from 24 January 2019 until 1 July 2019 (…) IS STILL VALID AND IN FORCE. Therefore, [the Claimant] still has the right to (i) receive the total remuneration stipulated in the above-mentioned employment contract and to (ii) train and play football for [the Respondent].

(…)

Considering that the total value of the signed employment contract, [the Claimant] is entitled to 30% of his salary upon signature of the contract, 30% as monthly salaries and 40% at the end of the season.

Considering that the total value of the employment contract is USD 100,000 and that the employment contract entered into force on 24 January 2019, the payment of USD 30,000 was also due and payable to [the Claimant] on the same date (i.e. 24 January 2019).

In addition, on a pro-rata basis, as of today, [the Claimant] is entitled to his January 2019 and February 2019 salaries which is calculated to be USD 6,835. However, until today the above-mentioned payments still remain unpaid to [the Claimant].

Therefore, this email is served to you as an official warning, in accordance with article 14is of the FIFA Regulations on the Status and Transfer of Players that your club is hereby provided 15 days from the date of this e-mail to pay the outstanding remuneration of [the Claimant] (i.e. USD 36,835).”

10. The Claimant terminated the alleged contract on 20 March 2019 in view of the absence of reaction from the club.

Requests of the parties

11. On 18 June 2019, the Claimant lodged a claim in front of FIFA and submitted the following requests for relief:

- “To accept the claims of [the] player”;

- “To condemn the Respondent (…) to pay in favour of the Claimant the total unpaid and overdue salary payments of Net USD 36,835 along with interest rate of 5% p.a. starting from the below due dates until the date of effective payment:

o Net USD 30,000 on 25 January 2019;

o Net USD 1,519 on 1 February 2019;

o Net USD 5,316 on 1 March 2019”

- “To condemn the Respondent (…) to pay in favour of the Claimant Net USD 63,165 as compensation for the breach of contract along with its interest starting from the date of the present claim, in accordance with article 17 para. 1 of the Regulations on the Status and Transfer of Players and FIFA’s commentary on the Regulations.”

12. The Respondent primarily requested the rejection of the claim of the Claimant.

13. Alternatively, in case the alleged contract is considered as genuine, the Respondent requested FIFA to determine that the claim is inadmissible.

Position of the parties

a. Admissibility of the claim

14. The Claimant deemed that FIFA is competent to entertain his claim on the basis of art. 22 lit. a) of the FIFA Regulations on the Status and Transfer of Players, as it concerns a dispute between a player and a club “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 fro breach of contract.”

15. The Respondent, besides contesting the authenticity and validity of the contract, also argued that should the alleged contract be deemed valid and binding, it contained a clear and specific jurisdiction clause in favour of the Iraqi national courts and therefore FIFA should not be competent to hear the contractual dispute.

16. In fact, the Respondent underlined that according to clause 15. “Iraqi courts are competent to resolve disputes that arise between the parties”. In particular, the Respondent referred to the DRC decision dated 28 January 2016 in which the Chamber decided that the courts of Iraq were competent on the basis of the exact same wording.

b. As to the substance

17. According to the Claimant, “the Club stayed silent and did not take the necessary steps before the Iraq Football Federation to register the Claimant as a professional football player according to the Employment contract”.

18. In this context, on 27 January 2019, he allegedly requested the Respondent to proceed with the player’s registration before the Iraqi Football Federation (hereinafter: the IFF).

19. The Claimant further indicated “that according to the signed Employment Contract, our Client is entitled to 30% of his salary upon signature of the contract”.

20. According to the Claimant, “despite the request of the Claimant the Respondent has failed to fulfil its obligations and did not register the Claimant and the Employment Contract before the Iraq Football Federation”. Having said this, the Claimant further held that “the Respondent did not even invite the Claimant to Iraq to train and to enter medical examination”.

21. In view of the above, the Claimant indicated that it terminated the alleged contract on 20 March 2019.

22. In its reply to the claim the Respondent sustained that “the alleged employment contract attached to claim as “Exhibit 2” is forged and as such the Respondent hereby formally contests the validity of such employment contract”.

23. In particular, the Respondent declared the following:

“In this respect, the Respondent’s position is simple. First, the Respondent denies concluding and signing an employment contract with the Respondent. Second, the alleged employment contract attached to the claim (…) is forged and as such the Respondent hereby formally contests the validity of such employment contract. In fact, one fails to understand how such contract can be signed considering that i) the Claimant never visited Iraq and ii) no encounter of any kind was ever made between the Claimant and the Respondent. What is more, it defies common sense that the Respondent would enter into an employment relationship with the Claimant only not to request his ITC.”

24. In this context, in order to clarify the validity of the employment contract, the FIFA administration requested to be provided with the original version of the contested document by courier.

25. In its replica, the Claimant held “that he does not have the original version of the employment contract dated 24 January 2019 (attached to the claim) since this document was signed via email exchange, which was initiated by the Respondent”, via the address rr_sport@yahoo.com. In this regard, the Claimant firstly sustained that “the original document was supposed to be signed when the Claimant would arrive in Iraq. However, this never took place because of the failure of the Respondent to honour the agreement and to invite the Claimant to Iraq, despite the notices sent to the Club by the undersigned on behalf of the Claimant”.

26. Moreover, in support of his allegations, the Claimant pointed out that “the background of the signing phase of the employment contract via digital platforms is as follows:

1. On 24 January 2019, the Claimant has mandated Mr Abdul Rahman Khalifeh (…) and Mr Elias Kharma to negotiate a contract with the Respondent. The mandate also stated that the Claimant was also represented by Mr Ibe Onyekachu Michael.

2. Following the negotiations held between Mr Khalifeh as well as Mr Karma and the Respondent club during January 2019, Mr Abdel Rahman Abou Azad, the Respondent’s press representative and translator, has sent phots of both pages of the employment contract (containing the stamp and signature of the Respondent) from his phone number (…) to Mr Khalifeh, via Whatsapp.

3. Mr Abdul Rahman Khalifeh immediately forwarded the two pages of the employment contract (containing the stamp and signature of the Respondent) via e-mail to Mr Ibe Onyekachu Michael (…)

4. On the same date, Mr Ibe Onyekachu Michael has sent the agreement to the Claimant via e-mail and on the next date (i.e. 25 January 2019) the document was countersigned by the Claimant and was sent back to Mr Ibe Onyekachu Michael via e-mail.

5. On the same date Mr Ibe Onyekachu Michael has sent the countersigned agreement to Mr Elias Kharma via e-mail.

6. At the same time, Mr Abdul Rahman Khalifeh (…) has requested from Mr Abdel Rahman Abou Azad (…) the e-mail address for forwarding the agreement for the attention of the Respondent. Mr Abdel Rahman Abou Azad has provided the following e-mail address: rr_sport@yahoo.com

7. Finally, on 25 January 2019, Mr Elias Kharma has forwarded the countersigned employment contract to the e-mail address (rr_sport@yahoo.com) provided by Mr Abdel Rahman Abou Azad.”

27. Lastly, the Claimant underlined that the Respondent did not reply to any of the e-mails sent on 11 February and 4 March 2019. In this context, as per the Claimant, “if in fact the employment agreement entered between the Parties was forged and not valid, the Respondent could have easily challenged this in its reply. Instead, the Respondent chose to remain silent and forced the Claimant to unilaterally terminate the employment contract with just cause and to initiate the present legal action”.

28. In its duplica, the Respondent mainly reiterated that the alleged contract was not valid and binding and has been forged. The Respondent highlighted that it was electronically signed, and that it was not a written and signed by hand agreement. In this respect, the Respondent claimed that the DRC does not generally take into account document that are not in their original form and signed by hand.

29. Then, the Respondent stated that Mr Abdel Rahman Abou Azad, who allegedly represented the Respondent as a press officer, is not known to the Respondent, and is neither a club official, an authorized signatory nor a third party duly mandated to act on its behalf.

30. What is more, the Respondent pointed out that the chain of events presented by the Claimant, supported by screenshots of WhatsApp conversations (which according to the Respondent are generally considered by courts and by the DRC of low value) does not permit to conclude that the Respondent has negotiated and signed the alleged contract. The Respondent pointed out that the names of the contacts in the relevant WhatsApp conversations were changed in order to fake the alleged sending of the contract by the Respondent to the Claimant, and that is seems inconceivable that within less than 24 hours, 5 individuals of 5 different nationalities working in 5 different countries on the alleged deal managed to negotiate and conclude an employment contract.

31. Finally, the Respondent stated that the signature of its representative at the bottom of the contract was not genuine as it is completely different from the “regular” signature of this individual. The Respondent provided a comparison of the signatures – see below:

Abstract of the Respondent’s duplica

32. In view of all the above, the Respondent indicated that when the authenticity of a contract is disputed the DRC must be convinced beyond reasonable doubt that the contract has been agreed and signed by both parties. As the Claimant failed to provide any corroborative evidence, the Respondent concluded that the claim should be rejected.

1. First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 18 June 2019, and was submitted to the DRC judge for decision on 12 June 2020. Consequently, the 2019 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2020), the DRC judge is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Cameroonian player and an Iraqi club.

3. However, the DRC judge observed that the club had contested the competence of FIFA’s deciding bodies on the basis of art. 15 of the alleged contract, according to which “Iraqi courts are competent to resolve disputes that arise between the parties”.

4. On the other hand, the DRC judge noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim he lodged against the Respondent.

5. As a preliminary remark, the DRC judge underlined that the first requirement that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the agreement. What is more, the DRC judge recalled that, in consistency with the jurisprudence of the DRC in this regard, it would declare himself competent in instances where the parties have not made a clear and unambiguous reference to the exclusive jurisdiction of their choice.

6. Although emphasising that this principle is imbedded in the jurisprudence of the Dispute Resolution Chamber and the Player’s Status Committee, the DRC judge was keen to point out that each dispute had to be assessed on its own merits.

7. Having examined the relevant provision, the DRC judge determined that art. 15 does not constitute an clear and specific clause in favour of the exclusive jurisdiction of Iraqi courts, since it established their competence without excluding the jurisdiction of other dispute resolution organs such as the DRC or the Court of Arbitration for Sports.

8. In view of all the above, the DRC judge established that it could not be established with certainty that the wording of art. 15 would permit to derive from the DRC jurisprudence in respect of jurisdiction clauses as established in art. 5 above.

9. As such, the DRC judge concluded that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the DRC judge is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

10. Subsequently, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 18 June 2019, the June 2019 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

11. His competence and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. In particular, the DRC judge recalled that, in accordance with art. 6 par. 3 of Annex 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 TMS.

12. Having said this, the DRC judge proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

13. The DRC judge acknowledged that the player has alleged that he and the club signed an employment contract valid as from 24 January 2019 until 1 July 2019. In this respect, the DRC judge remarked that the alleged contract foresaw fixed monetary benefits, including but not limited to a signing-on fee and a monthly salary (cf. I.2 above).

14. Then, the DRC judge observed that on 11 February 2019 and 4 March 2019, the player had put the club in default regarding the non-payment of the remuneration foreseen in the alleged contract, as well as to the fact that he was yet to be registered by and with the club (cf. I.5 to 8).

15. Furthermore, the DRC judge noted that in view of the absence of reply to his notices, the player unilaterally terminated the contract on 20 March 2019 (cf. I.9 above). In this respect, the DRC judge acknowledged that the Claimant is arguing that he had just cause to terminate the contract based on the absence of payment of his fixed remuneration allegedly due to him at the time of termination (i.e. USD 36,835 corresponding to the signing-on fee allegedly due on 25 January 2019 as well as the salaries of February and March 2019 pro-rata), and is claiming said outstanding remuneration as well as compensation for breach of contract.

16. On the other hand, the DRC judge observed that the Respondent had denied the existence of a valid and binding employment contract between the parties. In fact, the DRC judge remarked that the Respondent had declared that the alleged contract was never signed by any of its authorised representative, and that it had been forged.

17. In this context, the DRC judge determined that the main issue at stake surrounded the validity of the alleged contract. Recalling the jurisprudence of the Dispute Resolution Chamber concerning forgery allegations, the DRC judge emphasised that the DRC is not competent to decide on issues of criminal nature such as the alleged forgery of documents.

18. Having said that, the DRC judge also recalled that, in line with the general practice of the DRC, he could however use all the evidence at his disposal in order to determine whether it could be established that the parties indeed entered into a valid and binding employment relationship or not. The DRC judge insisted that for matters where a party is denying the authenticity of a contract, the party alleging the validity of the contract shall meet the burden of proving “beyond any reasonable doubt” that such relationship exists.

19. In other words, the DRC judge emphasised that he was required to determine if the Claimant had managed to prove beyond any reasonable doubt that he in fact had concluded a valid employment contract with the club or not.

20. Having thoroughly analysed the submissions and behaviour of the parties, the DRC judge first pointed out that no transfer instruction had been entered in TMS with respect to the registration of the player with the Respondent.

21. The DRC judge underlined that the provisions of art. 1, par. 5 of Annexe 3 of the Regulations, according to which “the use of TMS is a mandatory step for all international transfers of professional and amateur players (both male and female) within the scope of eleven-a-side football, and any registration of such a player without the use of TMS will be deemed invalid”, were unequivocal, and was of the opinion that the absence of any indication of an attempted registration in TMS was curious in view of the allegations made by the Claimant.

22. Then, the DRC judge remarked that the Claimant was not in a position to provide with an original copy of the alleged contract, but argued that the alleged contract had been exchanged by email.

23. Nevertheless, the DRC judge paid particular attention to the argumentation of the club concerning the signature of the Respondent’s president (cf. I. 30 above), and, having compared the signature of the Respondent’s president in the power of attorney and the signature of the Respondent’s president in the alleged contract, the DRC judge observed that, to a layman, these two signatures were significantly different.

24. As to the chain of events that led to the conclusion of the alleged contract as presented by the Claimant, the DRC judge noted that the alleged negotiations started upon the initiative of the player, who mandated three intermediaries to negotiate with the club.

25. The DRC judge acknowledged that these intermediaries claimed to have been in contact with Mr Abdel Rahman Abou Azad, the alleged “press representative and translator” of the club. In this regard, the DRC judge duly noted that there was no evidence of any contact made by the player and/or any of his representatives with an actual club official (i.e. president, manager, member of board) and/or an authorized representative of the club (i.e. duly mandated agent).

26. In this respect, the DRC judge emphasised that, in principle, it cannot be considered that a party in good faith considers that a “press representative and translator” – without the appropriate mandate of any club official – should be authorised to negotiate and conclude employment contracts on behalf of a club.

27. What is more, the DRC observed noted that the Respondent denied having any relationship with Mr Abdel Rahman Abou Azad, and that the Claimant failed to provide substantial evidence of Mr Abdel Rahman Abou Azad’s professional link to the club.

28. In particular, the DRC judge noted that (1) the alleged contract was only sent by the alleged club representative to the player’s intermediaries via a private mobile number, (2) that the contract countersigned by the player was sent to the email address rr_sport@yahoo.com, which is indeed the email of the TMS manager of the club in TMS, Mr Abdalrahman Rasheed Kaream and not Mr Abdel Rahman Abou Azad, but that there is no conclusive evidence that any correspondence was in fact received from rr_sport@yahoo.com (or any other official email of the club).

29. In view of the above, the DRC judge determined that it could not be established that the player and/or his representatives had negotiated with a club official of the Respondent and/or any individual authorized to conduct contractual negotiations and/or concluded contracts on its behalf.

30. Therefore, the DRC judge concluded that the Claimant failed to prove beyond reasonable doubt that he and the Respondent had concluded a valid and binding employment relationship.

31. As a consequence, the DRC judge rejected the claim of the Claimant.

III.

1. The claim of the Claimant, Yves Ekwalla Hermann, is admissible.

2. The claim of the Claimant is rejected.

For the DRC Judge:

Emilio García Silvero

Chief Legal & Compliance Officer

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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

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