Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), 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 11 July 2013, the player from country B, Player A (hereinafter: the Claimant), and
the club from country D, Club C (hereinafter: the Respondent), allegedly concluded
an employment contract (hereinafter: the contract), valid for two seasons until 30
June 2015. The Claimant does not possess a copy of such contract.
2.
According to the player, the parties agreed upon a monthly salary of EUR 5,000.
3.
On 18 September 2013, the Claimant lodged a claim against the club in front of FIFA,
requesting after amending his claim, the payment of EUR 120,000 as remuneration
for the entire contractual period (i.e. EUR 5,000 x 24 months).
4.
Alternatively, the Claimant requested that the minimum monthly salary in Serie B
(i.e. EUR 2,319.75) is taken into account, and that he should be granted at least the
amount of EUR 54,674.
5.
In his claim, the Claimant stated that, after signing the contract, he injured his ankle
during one of the training sessions with the Respondent. Since the estimated
recovery time was 6 weeks, the Claimant is of the opinion that the club tried to avoid
its obligations by deleting any and all evidences of their contractual relationship,
including all references in the Respondent’s website.
6.
Furthermore, the Claimant asserted that, in spite of having signed the contract and
having specifically requested his copy of it, the Respondent neither provided him
with a copy of the contract nor registered it at the Federation from Country D.
However, the Claimant held that there are many pieces of evidence supporting his
position.
7.
In particular, the Claimant submitted the following evidence:
a. a letter of the former club of the player, i.e. Club E (hereinafter: Club E),
addressed to the club requesting the payment of the transfer fee;
b. the transfer agreement signed between the two clubs for the transfer of the
player, signed on 11 July 2013;
c. the report of the medical exam of the player dated 3 July 2013;
d. pictures of the player with two men, allegedly the Sports Director and the
Secretary General of the Respondent, signing documents;
e. a letter from Club E to the club dated 24 August 2013, in which Club E insists
on the validity of the transfer agreement and requests from the Respondent
the payment of the relevant transfer fee;
f. the declaration of the agent that represented the Respondent in the
supposed transfer of the player;
g. an article from the Respondent’s website on the acquisition of the player;
and
h. pictures of the official Facebook page of the Respondent in which the
Claimant appears to be training with the club’s jersey.
8.
The Claimant claims that, in view of the alleged conclusion of the new contract with
the Respondent, he terminated his previous contract with Club E on 11 July 2013 and,
thus, found himself without a club after the Respondent denied the existence of
their contractual relationship.
Player A, country B / Club C, country D
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9.
In its reply to the Claimant’s claim, the Respondent stated that it had never signed an
employment contract with the Claimant and that was the reason why he did not
have a copy of it. In this respect, the Respondent rejected the legal validity of the
evidence provided by the Claimant and assessed that he “pre-fabricated” the present
“temerarious dispute and asked for a contract which had never been stipulated”.
10.
As to the transfer agreement between Club E and the Respondent, the latter
referred to art. 4 of said transfer agreement, in accordance with which, the
requirement for its validity is that the Respondent and the Claimant enter into an
employment contract. Consequently, the Respondent is of the opinion that the
agreement cannot be considered as a proof of the existence of the employment
contract.
11.
Furthermore, the Respondent referred to the Transfer Matching System (TMS), which
does not include any reference to the employment contract the Claimant claims to
have signed with the Respondent.
12.
As to the statement of the involved agent, the Respondent stated that he has an
economic interest in the present dispute since he was hired by the Respondent to
carry out the deal. As there was no agreement, he was not remunerated.
13.
In addition, the Respondent provided a confirmation of the Football Federation from
country D dated 21 August 2013 according to which the Claimant has never been
registered for the Respondent.
14.
In his replica, the Claimant pointed out that Club E and the Respondent agreed upon
a transfer fee payable in instalments, the first one of which was payable when
signing the contract. Consequently, the Claimant concluded that this fact evidences
the irreversible intention of the parties to transfer the player and that no condition
can be opposable to it.
15.
The Claimant further argued that the Respondent breached the contract, amongst
others, by failing to register it in the Football Federation from country D and to
provide him with a copy of it. As a result, the Claimant insisted on the fact that the
Respondent cannot reproach him for not having a copy of the contract.
16.
In this respect, the Claimant asserted that some of the evidence remitted in order to
prove the relationship between the Claimant and the Respondent were written
and/or published by the Respondent itself. Thus, in the Claimant’s opinion, the
challenge of the Respondent at this point is not valid.
17.
In its duplica, the Respondent stated that both national and international regulations
stipulate that employment contracts shall be written as a formality in order to have a
proof of the agreement. Hence, the Respondent rejected that any media articles or
other evidence of that kind can substitute the written contract.
18.
Furthermore, the Respondent stated that it had not paid any amount to the former
club of the player for his transfer. In this respect, the Respondent underlined that the
validity of the transfer agreement depended on the existence of an employment
contract, which was never signed.
Player A, country B / Club C, country D
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19. Lastly, and as to the amount of compensation requested by the Claimant, the
Respondent held that such claim had no legal basis and that he has not provided any
evidence supporting the alleged damages suffered due to the non-conclusion of the
contract.
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 19 August
2013. Consequently, the 2012 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 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions
2012 and 2014) 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 employment
relationship between the two aforementioned parties.
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 (editions 2012
and 2014), and considering that the present claim was lodged on 19 August 2013, the
2012 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
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.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
6.
The members of the Chamber started by acknowledging that, according to the
Claimant, he had, on 11 July 2013, concluded an employment contract with the
Respondent for two seasons, in accordance with which he was entitled to receive the
total amount of EUR 120,000. The Respondent, however, failed to provide him with a
copy of such contract.
7.
The Dispute Resolution Chamber furthermore took due note of the fact that the
Respondent, on its part, categorically denies the conclusion of an employment
contract with the Claimant. The Respondent had admitted that it had contacted an
agent in order to carry out the deal but that there was no agreement.
8.
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
Player A, country B / Club C, country D
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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 player to prove that the employment contract, on the basis of which
he claims compensation for breach of contract from the Respondent, indeed existed.
9.
Having stated the above, the Dispute Resolution Chamber recalled that the Claimant
maintained that he never received a copy of the employment contract he asserts
having signed with the Respondent. However, the player had submitted a series of
documents in support of his claim which were in continuation examined by the
members of the Chamber.
10.
In this regard, the Dispute Resolution Chamber took note of the evidences provided
by the Claimant, mentioned in point I.7 above. In this respect, the DRC underscored
that said evidences consisted in: a) the transfer agreement and correspondence
addressed by Club E to the Respondent, requesting the transfer fee for the transfer
of the Claimant, which cannot be taken into account in the present proceedings since
the transfer agreement was conditional to the signature of an employment contract
between the Claimant and the Respondent and does not necessarily imply the actual
conclusion of a contract; b) a report of the medical exam of the player dated 3 July
2013, which cannot indisputably lead to the conclusion that the parties indeed
entered into an employment contract after such exams; c) an article for the
Respondent’s website and pictures of the alleged official Facebook page of the
Respondent in which the Claimant appears to be training with the Respondent’s
jersey as well as pictures of three men allegedly signing the employment contract,
the value of which is informative only and, thus, non-official; and d) the declaration
of the agent that represented the Respondent in the supposed transfer of the
Claimant, the probative value of which is reduced in view of the fact that it is a
personal statement that may be subject to impartiality.
11.
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 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.
12.
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.
13. What is more, even if it would have been 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 need to be
Player A, country B / Club C, country D
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in possession of such labour agreement in order to be able to properly assess the
claim of the Claimant.
14. As a consequence, the Dispute Resolution Chamber 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
player has to be rejected, due to its lack of contractual basis.
III.
Decision of the Dispute Resolution Chamber
1.
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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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