Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 March 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (The Netherlands ), member
Alex andra Góm ez (Uruguay ), member
Wouter Lam brecht (Belgium ), member
Joel Talav era (Paraguay ), member
on the claim presented by the player,
Play er 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 cas e
1.
On 7 August 2016, the player of Country B, Player A (hereinafter: the player or
Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent)
allegedly signed an employment contract (hereinafter: the alleged contract), valid
for the period between 7 August 2016 and 31 May 2019.
2.
According to the player, he was allegedly entitled to receive the following amounts:
950,000 in the currency of Country D (approximately EUR 43,302) as ‘basic
salary during the 2016/2017 season’;
1,050,000 in the currency of Country D (approximately EUR 47,860) as ‘basic
salary during the 2017/2018 season’;
1,150,000 in the currency of Country D (approximately EUR 52,418) as ‘basic
salary during the 2018/2019 season’.
Further, according to the player, the alleged contract allegedly stipulated that the
player was entitled to a bonus of 50,000 in the currency of Country D ‘each year’,
‘in case team finishes league of Country D upon 4 top tier clubs’, as well as USD 840
as ‘player’s and intermediary’s flight ticket to Country D’.
3.
On 3 March 2017, the player lodged a claim against the club in front of FIFA,
requesting the payment of the total amount of 4,000,000 in the currency of Country
D (approximately EUR 182,325) by the club, as follows:
Compensation for breach of contract in the total amount of 3,200,000 in the
currency of Country D, as follows:
3,200,000 in the currency of Country D as the entire value of the contract in the
period between 7 August 2016 and 31 May 2019;
Compensation related to the specificity of the sport in the total amount of 800,000
in the currency of Country D, as follows:
800,000 in the currency of Country D, corresponding to 25% of the player’s
total salaries and ‘reflecting player’s damage to his reputation derived from the
club’s declarations explaining breaching the agreement with player’;
Player A, Country B / Club C, Country D
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Furthermore, the player requested to be awarded 5% interest p.a. on the
abovementioned amounts as from the respective due dates, as well as to impose
sporting sanctions on the club.
4.
In his claim, the player explains that on 7 August 2016, he signed a contract with the
club. Furthermore, the player states that he was not provided with a copy of the
signed agreement, as the club informed him that both copies first had to be sent to
the Football Association of Country D. According to the player, he requested on
several occasions to be provided with the contract, however to no avail.
5.
Furthermore, the player explains that the club’s general director, Club’s general
director E, confirmed in an interview on the radio that the club and the player had
signed a contract, inter alia with the quote: ‘Yes, Player A signed a contract with
Club C for 3 years. We are hopeful’. In addition, the player also explains that on 7
August 2016, a newspaper of Country D published an article, confirming that the
player and the club signed a contract, inter alia containing the following sentence:
‘The Club C succeeded in signing player of Country B, Player A, Club F’s left
defender and Country B ‘A’ national team player, on a free transfer, for a period of
3 football season’.
6.
What is more, the player states that on 8 August 2016, he successfully passed a
medical examination and subsequently participated in the club’s training sessions
and 2 friendly games.
7.
In addition, the player explains that on 14 August 2016, the club’s general secretary
informed him that ‘the Agreement is unilaterally cancelled by the club’, as well as
that he had ‘to leave the club immediately’. According to the player, said
cancellation of the contract was confirmed by at least four newspapers of Country
D.
8.
Finally, the player explains that on 25 December 2016, he put the club in default
and requested the payment of the total amount of 3,200,000 in the currency of
Country D as total value of the contract and the amount of USD 840 as
reimbursement of costs of a flight ticket, however to no avail.
9.
In its reply to the player’s claim, the club argues that it did not sign a contract with
the player. In this respect, the club explains that it was offered the services of the
player via an intermediary, Intermediary G. As it was not aware of the player’s
qualities, the club explains that – after the player had arrived in Country D on 7
August 2016 - on 8 August 2016, he started ‘a technical test’, which lasted 2 days.
According to the club, the team manager ‘decided not to engage the player’, as a
result of which on 10 August 2017 the club informed the player about its decision
Player A, Country B / Club C, Country D
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not to sign a contract with him. Further, the club explains that on 11 August 2016,
the player left Country D.
10.
In addition, the club argues that the pictures submitted by the player, do not prove
the numbers as claimed by the player, as well as that the club would never be in the
position to offer the player an amount of 3,200,000 in the currency of Country D,
which is according to the club above its budget. Furthermore, the club states that
the four media articles submitted by the player cannot be taken into account, as
there are ‘hundreds of cases in which the media did reports unreal cases and unreal
situations of players, clubs […]’.
11.
Moreover, the club points out that it never requested the player’s ITC, which proves
that it never signed a contract with the player. The club further refers to a witness
declaration of Intermediary G, who confirmed that the club did not conclude a
contract with the player due to his low technical level, and that the player left
Country D on 11 August 2016.
12.
In his replica, the player submitted a witness statement of Player’s Agent H, a
player’s agent who according to the player, ‘negotiated and witnessed the signing
of the agreement between player and club’. Further, the player points out that
Player’s Agent H confirmed that the parties signed a contract, that the player played
in friendly games as well as that the club refused to provide the player with a
signed version of the contract. Also, the player argues that Player’s Agent H
confirmed that he recorded the conversations between the club and player.
13.
What is more, the player argues that the club never challenged the authenticity of
the pictures, as well as that the club did not challenge the authenticity of the radio
interview. Further, the player argues that the fact that no ITC was requested, is not
relevant, as this was ‘under the full responsibility of the club’.
14.
In addition, in reply to the club’s arguments that an amount of 3,200,000 in the
currency of Country D is above its budget, the player requests that the club submits
a copy of all the contracts it signed with different players, in order the ‘prove that
club does reach such numbers’.
15.
In its duplica, the club stated that Player’s Agent H is not the player’s official agent,
as this was Intermediary G. Further, the club contests the credibility of the witness
declaration of Player’s Agent H.
16.
After having been requested to do so, the player informed FIFA that ‘in order to
minimize his damages occurred to him due to the breach of the agreement by the
club’, he returned to his club of origin, the club of Country B, Club M. Based on two
consecutive contracts, the first contract being valid between 21 June 2015 and 21
Player A, Country B / Club C, Country D
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June 2017, and the second contract being valid between 1 July 2017 and 30 June
2018, the player was entitled to receive a monthly salary of USD 3,000. For the
period between 14 August 2016 and 30 June 2018, this corresponds to USD 67,500
(approximately 1,198,400 in the currency of Country D).
II.
Cons iderations of the Dis pute Res olution Cham ber
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 3 March
2017. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2017; 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 (editions 2016 and 2018) 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 player from Country B and an club of Country
D.
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
2016 and 2018), and considering that the present claim was lodged on 3 March
2017, the 2016 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.
5.
In doing so, the members of the Chamber started by acknowledging that, according
to the player, he had, on 7 August 2016, concluded an employment contract with
the club, valid for the period between 7 August 2016 and 31 May 2019, in
accordance with which the club allegedly had undertaken to pay him – next to
Player A, Country B / Club C, Country D
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several bonuses - 950,000 in the currency of Country D for the 2016/2017 season,
1,050,000 in the currency of Country D for the 2017/2018 season and 1,150,000 in
the currency of Country D for the 2018/2019 season. The club had allegedly not
been interested in his services after the alleged signing of the employment contract
and, therefore, after having sent a default letter to the club which remained
without any results, the player asked to be awarded, inter alia, compensation for
breach of contract by the club in the amount of 3,200,000 in the currency of
Country D, as well as additional compensation in the amount of 800,000 in the
currency of Country D.
6.
The Dispute Resolution Chamber furthermore took due note of the fact that the
club, on its part, had categorically denied the conclusion of an employment contract
with the player. In this respect, the club had admitted that the player came to
Country D in August 2016 and participated in trainings, in order for the club’s coach
to decide if the player would fit the club’s needs, but declared that finally, on 10
August 2016, the player was informed that no employment contract would be
concluded with him, due to the player’s inability to meet the club’s requirements.
According to the club, the player left Country D on 11 August 2016. What is more,
the club points out that it never requested the payer’s ITC.
7.
In view of this fundamental 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 first 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 lead the members of the Dispute Resolution
Chamber to conclude that it was up to the player to prove that an employment
contract, on the basis of which he claims compensation for breach of contract from
the club, had in fact been concluded between the parties.
8.
Having stated the above, the Dispute Resolution Chamber recalled that the player
maintained that he never received a copy of the employment contract he asserts
having signed with the club, as a copy first needed to be sent to the Football
Association of Country D. However, the player had submitted several documents in
support of his claim, which were in continuation examined by the members of the
Chamber.
9.
In this regard, the Dispute Resolution Chamber took note of the player’s allegation
that he passed a medical examination and took part in two friendly games of the
club, which should prove that he indeed entered into an employment relationship
with the club. These circumstances are however not backed by any documentary
evidence, and therefore, while reiterating the contents of art. 12 par. 3 of the
Player A, Country B / Club C, Country D
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Procedural Rules, the Chamber decided could not take the arguments of the player
is this respect into account.
10.
The members of the Chamber then took note of the pictures of the alleged signing
of the contract, which were submitted by the player, as well several reports and
articles allegedly published in the press of Country D, dealing with the alleged
conclusion of an employment contract between the parties. The club, for its part,
contested the trustworthiness of said articles and explained that they do not reflect
the real course of the events.
11.
Having duly taken note of the aforementioned documentation presented by the
player, the members of the Chamber held that in order for the Chamber to be able
to assume that the player and the club had indeed been bound through a
contractual relationship with the terms as described by the player, 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 are not certain. In particular, the members of the Chamber
pointed out that the photos provided by the player neither prove beyond doubt
that a contract was signed between him and the club, nor the actual content of
such an alleged contract. As to the press articles, the Chamber was eager to
emphasise that the non-official nature of such evidence is by far not sufficient to
confirm the existence of an alleged employment legal bond between the player and
the club, let alone of its precise terms.
12.
The Chamber further referred to the allegations of the player that the employment
contract was signed in the presence of Player’s Agent H, his alleged agent. In
addition, the members of the Chamber took note of the club’s argumentation that
not Player’s Agent H, but Intermediary G was the agent of the player, and that this
person provided another witness statement, explicitly confirming that the club and
the player did not conclude a contract.
13.
With respect to these contradictory witness statements, the Chamber deemed it fit
to outline that the status of the witnesses remains unclear, as neither the player nor
the club could clarify who these persons were and what their exact relation to the
player and the club and their involvement in an alleged negotiation between the
parties was. Further, if these persons were indeed the agent of the player or of the
club, in the Chamber’s view, the impartiality of the statements made by them could
not be guaranteed. Therefore, after making reference to art. 12 par. 3 of the
Procedural rules, according to which inter alia the evidence shall be considered with
free discretion, the Chamber concluded that the player did not satisfactorily carry
Player A, Country B / Club C, Country D
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the burden of proof regarding the alleged conclusion of a contract between him
and the club.
14.
Furthermore, the Chamber also deemed it appropriate to point out that – even
though the player’s registration is not a condition for the validity of an employment
contract signed between a player and a club – no transfer instruction could be
found in the Transfer Matching System (TMS), involving the Claimant and the
Respondent.
15.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the player did not prove beyond doubt that the player and
the club had validly entered into an employment contract.
16.
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 a contractual basis.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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, 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
Player A, Country B / Club C, Country D
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For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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