Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Mohamed Al-Saikhan (Saudi Arabia), member
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), 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 arisen between the parties
I.
Facts of the case
1.
On 29 May 2015, the player from country B, Player A (hereinafter: the Claimant)
lodged a claim in front of FIFA against the club from country D, Club C (hereinafter:
the Respondent) for breach of contract, requesting to be awarded with the amount
of USD 70,000 plus “a default interest rate of 5% per annum as from the date in
which the payment should be made”.
2.
In support of his claim, the Claimant presented a “contract for a Non-country D
Professional Football Player” (hereinafter: the contract) dated 1 August 2013 and
valid as of 1 August 2013 until the “expiry at the end of the last game of Sports
Season of 2013-2014”. In particular, the contract contains the following provisions:
“Second:This contract shall only come into effect after passing fitness test and approved by
the Football Federation of country D and the General Organization for Youth &
Sports.
Third: (…) Club’s Undertakings & Rights:
(1)
The [Respondent] shall pay an amount of US$ 70,000.00 (Seventy thousand
U.S. Dollars only), for One season distributed as follows:
a. An amount US $ 20,000.00 It’s submitted when receiving The International
Card and when the [Claimant] passes the medical examination.
b. An amount of US $ 50,000.00 distributed as a monthly salary at a US $
5000.00 monthly is paid as of the beginning of his attendance at the training.
(…)
(4) [The Respondent] shall provide economy return air tickets for the [Claimant] and
his family on an airline of the [Respondent]’s choice, if the contract is renewed, and
one way ticket only if the contract not renewed to his country”.
3.
In view of the above, the Claimant explains that in spite of having provided him
with a round-trip flight ticket to travel to country D with a return date of 15 June
2014, the Respondent did not provide him with a work permit and that, therefore,
he had to leave the country. The Claimant further alleges that the Respondent has
never paid the sign-on fee, nor his salaries.
4.
In its reply to the Claimant’s claim, the Respondent asserts that the parties never
entered into an employment contract. In this respect, the Respondent stresses that
the contract submitted by the Claimant is not drafted on its official paper and does
not bear its official stamp. Moreover, the Respondent sustains that the signature of
its CEO contained therein is forged. In support of its assertion, the Respondent
presented various documents drafted in Arabic containing the alleged signature of
its CEO.
5.
In continuation, the Respondent explains that it sent an unsigned offer to the
Claimant for him to have an overview of the potential employment conditions in
case he would pass the technical and physical examination as per clause second of
the contract. In this regard, the Respondent asserts that as from 26 July 2013 until 4
Player A, country B / Club C, country D
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August 2013, the Claimant “played several exercises and matches” but failed to
comply with the physical and technical requirements and that, therefore, it was
verbally agreed that he would not be hired.
6.
In his replica, the Claimant outlines that the Respondent acknowledged having
presented him an offer, which was accepted by him. Therefore, and since the offer
contained the essential terms of the contract, the Claimant alleges the contract
became final and binding. In this regard, the Claimant stresses that the
Respondent’s recognition that he “played several exercises and matches” constitutes
an evidence that the contract was in force.
7.
In addition, the Claimant maintains that the DRC jurisprudence considers null and
void clauses such as clause second of the contract that make the validity of a
contract subject to medical examination.
8.
In its final comments, the Respondent reiterates its previous argumentation
emphasising that the Claimant “willingly” agreed to return to his country on 4
August 2013.
9.
Having been invited to submit the original version of the contract, the Claimant
informed FIFA that he was only in possession of the copy delivered to him by the
Respondent.
10.
On 1 January 2014, the Claimant and the club from country E, Club F, entered into
an employment contract valid until 31 May 2015 and according to which he was
entitled to a monthly remuneration of EUR 1,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 29 May 2015.
Consequently, the 2015 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. article 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 2015) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns a dispute with an international dimension between
a player from country B and a club from country D in relation to an alleged
Player A, country B / Club C, country D
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employment-related relationship between the two aforementioned parties, invoked
by the Claimant.
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 (edition
2015), and considering that the present claim was lodged on 29 May 2015, the 2015
version 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.
5.
In doing so, the members of the Chamber acknowledged that, according to the
Claimant, he had, on 1 August 2013, concluded with the Respondent an
employment contract valid from 1 August 2013 until “expiry at the end of the last
game of Sports Season of 2013-2014”, in accordance with which the Respondent
allegedly had undertaken to pay him the total amount of USD 70,000. Further, the
Chamber also took note of the Claimant’s allegations according to which the
Respondent had breached the alleged contractual relationship by failing to provide
him with a work permit and to pay his sign-on fee as well as his salaries.
6.
The DRC further took due note of the fact that the Respondent, on its part, had
categorically denied the conclusion of an employment contract with the Claimant.
In particular, the Chamber noted that albeit it acknowledged having remitted an
unsigned offer to the Claimant, the Respondent alleges that due to the Claimant’s
failure to comply with the technical and physical requirements, the parties agreed
that they would not enter into an employment contract.
7.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them had been concluded, 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 for to the Claimant to prove that the employment contract, on the basis
of which he claims compensation for breach of contract from the Respondent,
indeed existed.
8.
Having stated the above, the Dispute Resolution Chamber recalled that the
Respondent maintains that it never signed a written employment contract with the
Player A, country B / Club C, country D
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Claimant and that its signature contained on the copy of the contract remitted by
the Claimant was forged. What is more, the Claimant expressly admits being unable
to provide the relevant employment contract in its original form signed by the hand
of the parties. On account of these considerations, the Chamber held that the fact
the Claimant had only submitted a copy of the disputed contract was insufficient to
establish the existence of the alleged contractual relationship.
9.
Nevertheless, the Claimant had submitted documentation in support of his claim
which were subsequently examined by the members of the Chamber.
10.
In this context, the Chamber noted that the Claimant submitted a round-trip flight
ticket providing for a return on 15 June 2014 as evidence of the existence of a
contractual relationship between him and the Respondent. In this regard, the DRC
considered it useful to underline that for economical reasons, it is a common
practice to buy an open return flight ticket setting a return date that can be
changed depending on the circumstances. The Chamber further held that the facts
of the case, and in particular the return flight ticket dated 4 August 2013 presented
by the Respondent, tended to corroborate that the Respondent resorted to said
mechanism. In particular, the DRC pointed out that it is likely that having in mind
the potential signature of a one-year contract with the Claimant, the Respondent
initially chose 15 June 2014 as return date, but then, and after the Claimant’s failure
to pass the technical and physical tests, decided to change it to 4 August 2013.
11.
In continuation, the members of the Chamber highlighted that the fact that the
Claimant has never requested the Respondent to comply with its obligations prior
to lodging his claim on 29 May 2015, i.e. almost 22 months after the alleged
signature of the contract, seems to confirm that the contract was actually never
signed.
12.
Having duly taken note of the aforementioned documentation presented by the
Respondent and the Claimant, the members of the Chamber held that in order for
the Chamber to be able to assume that the Claimant and the Respondent had
indeed been bound through a contractual relationship with the terms as described
by the Claimant, it had to be established, beyond doubt, by documentary evidence,
that the said parties had indeed entered into a respective 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 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 Dispute Resolution Chamber must be very careful with
accepting documents, other than the employment contract, as evidence for the
conclusion of a contract.
13.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove beyond doubt that the
Respondent and the Claimant had validly entered into an employment contract.
Player A, country B / Club C, country D
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14. As a consequence, the DRC decided that, since the Claimant had not been able to
prove beyond doubt that an employment contract had validly been concluded
between himself and the Respondent, there was no possibility for the Chamber to
enter into the question whether or not such alleged employment contract had been
breached.
15. 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, Player A, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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