F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 5 August 2020

Decision of the

Dispute Resolution Chamber

passed on 5 August 2020,

regarding an employment-related dispute concerning the player Abdoulaye BA

COMPOSITION:

Clifford J. Hendel (USA / France) Deputy Chairman Joel Talavera (Paraguay), member Alexandra Gómez Bruinewoud (Uruguay / The Netherlands) member

CLAIMANT:

Abdoulaye BA, Senegal

Represented by Mr. Pedro Macieirinha

RESPONDENT:

AL AIN FC, United Arab Emirates

Represented by Mr. Nezar Ahmed

I. FACTS OF THE CASE

1. On 30 August 2017, the Senegalese player Abdoulaye Ba (hereinafter: the player or the Claimant) and the Spanish club, Rayo Vallecano (hereinafter: Rayo Vallecano) signed an employment contract valid as from the date of signature until 30 June 2021.

2. As per said contract, the player was entitled inter alia to EUR 250,000 “gross” for the 2019/2020 season, payable in 14 instalments of EUR 17,857.14 each.

3. According to the player, on 21 January 2020, the Emirati club, Al Ain FC (hereinafter: the club or the Respondent) sent a loan offer (hereinafter: the loan offer) to Rayo Vallecano regarding the temporary transfer of the player from Rayo Vallecano to the Respondent for a period of “6 months”.

4. In accordance with the loan offer, the club committed itself to pay Rayo Vallecano EUR 300,000. Moreover, the loan offer included an option to permanently register the player with the club, provided that the club pay Rayo Vallecano EUR 1,000,000.

5. In accordance with the loan offer, for the option to be activated, the club would have to inform Rayo Vallecano of its intention to register the player permanently before 30 May 2020.

6. According to the player, on 21 January 2020, the club sent him an employment contract offer (hereinafter: the offer) valid for “half a season (6 months)”. The offer also included an “option to buy” for the duration of “2 years (24 months)”.

7. As per the offer, the player would be entitled to EUR 600,000, payable as follows:

 EUR 150,000 as sign on fee;

 EUR 450,000 “divided equally for 6 months”.

8. Furthermore, the offer provided that in case the temporary transfer of the player would become permanent, the player would then be entitled to the following:

 EUR 900,000 for the first year;

 EUR 1,100,000 for the second year.

9. Subsequently, the player signed the offer.

10. According to the player, on 23 January 2020, he travelled to United Arab Emirates, in order to meet with the club.

11. On 5 February 2020, the player put the club in default arguing that he had signed the offer, Rayo Vallecano also signed the loan offer but that in the end the club refused to sign the final loan agreement and the employment contract with the player.

12. In the default letter, the player held that the club “breached the agreements negotiated with the Spanish club and the player” and that in the player’s case, he should be compensated EUR 300,000 for the alleged breach. The player gave 15 days for the club to pay.

13. On 28 February 2020, the player lodged a claim against the club in front of FIFA for breach of the contract, requesting, inter alia, the total amount of EUR 300,000, “corresponding to half the retribution for the first 6 months of the loan offer”, as compensation as well as 5% interest p.a. as from 21 January 2020.

14. The player held that, after travelling to the UAE, the club “suddenly changed its mind”, and refused to sign neither the loan agreement with Rayo Vallecano nor the employment contract with the player.

15. In reply to the claim of the player, the club argued that on 22 January 2020, it had bought tickets for the player to travel to United Arab Emirates (UAE) on 24 January 2020. In this respect, the club pointed out that the tickets had been bought in the Emirates by a travel agency they closely work with.

16. Moreover, the Respondent held that on the same day it had sent to the player an itinerary according to which he had to undergo medical examination on 25 January 2020 at 6pm.

17. The Respondent indicated that having not heard back from Ray Vallecano, it sent once again its loan offer on 23 January 2020.

18. The club declared that on 28 January 2020, after not having heard back from Rayo Vallecano, it sent then a correspondence to Rayo Vallecano in which the club stated the following: “we retract our offer dated 23 January 2020, regarding the transfer of the player (…) due to the short time left in the winter registration period to the UAEFA to conclude and sign a formal loan agreement with you and perform a medical exam on the player. As such said offer shall be deemed null and void.”

19. The Respondent denied having entered into a contractual relationship with the player. The club underlined that in its correspondence sent to the player on 21 January 2020, it had stipulated that “[t]his is only an initial agreement, the Club only becomes committed once the contract is signed and all the necessary recruitment procedures are completed successfully”. The club insisted that this correspondence was a contractual offer should Rayo Vallecano and the club agree to the terms of the loan.

20. Making reference to CAS jurisprudence, the club pointed out that as it had clearly mentioned that this was not an employment contract it could not be interpreted as such: “[h]owever, good practice requires from the parties to expressly mention that the document is not the final contract and that it does not represent the definitive agreement between the parties.” [CAS 2008A/1589].

21. What is more, the club contested that the player had signed the offer prior to the withdrawal of his loan offer. In fact, the club pointed out to a what’s app conversation between the player’s intermediary and the club in which the club asked the offer to be signed and sent back and the player’s intermediary answered: ““[h]e prefer sign in Dubai”.

22. The club stated that the player did not travel in Dubai and did not undergo medical examination, and that in any case it was barred from entering into a contractual relationship with the player without the consent of Rayo Vallecano, a consent it did not receive in writing.

23. Finally, the club pointed out that should the contractual offer be deemed a valid and binding contract, the player only suffered losses for the month of February as he then signed for Deportivo La Coruna in March 2020.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed whether it was competent to deal with the case at hand. In this respect, the DRC took note that the present matter was submitted to FIFA on 28 February 2020. Consequently, the Chamber concluded that the November 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 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 2020) the Dispute Resolution Chamber is, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Senegalese player and an Emirati 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 28 February 2020, the January 2020 edition of said regulations (hereinafter: the 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 doing so, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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 DRC acknowledged that it was undisputed by the parties that the club had sent an offer on 21 January 2020, valid for six months, in accordance with which the player was entitled to receive the amount of EUR 600,000.

6. Furthermore, the DRC noted that it was also undisputed by the parties that, on 21 January 2020, the Respondent sent a loan offer to Rayo Vallecano regarding the temporary transfer of the player from latter to the club for the period of “6 months”.

7. The DRC further noted that, the Claimant claims that the Respondent refused to sign neither the loan agreement with Rayo Vallecano nor the employment contract with the player and refused to offer him an official employment contract, although the parties signed the offer and the loan offer.

8. The DRC took note that as consequence, the Claimant requests, inter alia, from the Respondent, the payment of the amount of EUR 300,000, “corresponding to half the retribution for the first 6 months of the loan offer”, as compensation for non-execution of the contract.

9. The DRC equally noted that the Respondent, on the other hand, maintained that on 28 January 2020, after not having heard back from Rayo Vallecano, it sent a correspondence to the latter, in which the club stated the following: “we retract our offer dated 23 January 2020, regarding the transfer of the player (…) due to the short time left in the winter registration period to the UAEFA to conclude and sign a formal loan agreement with you and perform a medical exam on the player. As such said offer shall be deemed null and void.”

10. Moreover, the DRC noted that club contested that the player had signed the offer prior to the withdrawal of his loan offer; to have entered into a contractual relationship with the player and insisted that its correspondence dated 21 and 23 January 2020 were a contractual offer should Rayo Vallecano and the club agree to the terms of the loan. The club, in particular, held that the player did not travel to Dubai, he did not undergo medical examination, and that in any case it was barred from entering into a contractual relationship with the player without the consent of Rayo Vallecano, a consent it did not receive in writing.

11. Having established the aforementioned, the DRC deemed that the underlying issue in this dispute was to determine whether the parties were contractually bound by the offer sent by the club to the player on 21 January 2020.

12. In this context, the DRC deemed it appropriate to remind the parties of the basic elements of a valid and binding contract, namely an offer, consisting of an expression of willingness to contract on a specific set of terms, with a view that they are accepted by its counterparty and that all sides involved will become contractually bound, and an acceptance of said offer, consisting of an expression of absolute and unconditional agreement to all terms set out in the offer, by means of signature. After a careful study of the offer, the DRC concluded that such essential elements are included in the pertinent document, in particular, the fact that the contract establishes that the Claimant is entitled to receive remuneration in exchange for his services to the Respondent as a player and the duration of the employment relationship. Notwithstanding the foregoing, the DRC highlighted that, among the essential requirements, each party must receive a signed copy of the contract.

13. Within this context, the DRC recalled the Respondent’s argument, according to which the parties did not enter into a contractual relationship as well as the Claimant’s allegation according to which he signed the offer and that he travelled to UAE in order to meet with the club. In this regard, the members of the Chamber further recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

14. In this respect, the DRC noted that the Claimant did not present any evidence demonstrating: (i) he sent a signed copy of the offer to the club prior to the withdrawal of the loan offer it made to Rayo Vallecano on 28 January 2020; (ii) that he travelled to UAE in order to meet with the club; (iii) nor did he undergo medical examination.

15. The DRC further noted that the club made both offers at the same time and clearly stipulated in the offer sent to the player that “[t]his is only an initial agreement, the Club only becomes committed once the contract is signed and all the necessary recruitment procedures are completed successfully”.

16. In view of the above, and in particular in view of: (1) the absence of loan agreement between the club and Rayo Vallecano, (2) the stipulation that the offer was suspended to the clubs reaching an agreement and, (3) that the player never travelled to the UAE nor sent a signed copy back on or before 28 January 2020; the Chamber considered that the offer lost its objects upon the club’s withdrawal of its offer made to Rayo Vallecano on 28 January 2020.

17. In conclusion, the DRC decided to follow the argumentation of the Respondent and reject the claim of the Claimant.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Abdoulaye Ba, is rejected.

For the Dispute Resolution Chamber:

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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