Labour Disputes
Texto da decisão
REF. FPSD-XXXXX
Decision of the
Dispute Resolution Chamber
passed on 24 March 2025
regarding an employment-related dispute concerning the Player
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), Member
Angela COLLINS (Australia), Member
CLAIMANT:
Player, Country A
Represented by
RESPONDENT:
Club A, Country B
pg. 2
REF. FPSD-XXXXX
I.
Facts of the case
1.
On an unspecified date, the Country A player, Player A (hereinafter: the Player or the
Claimant) and the Country B club, Club A (hereinafter: the Club or the Respondent) entered
into an employment contract (hereinafter: the First Contract) valid as from 1 September
2023 until 30 June 2024.
2.
Pursuant to the First Contract, the Respondent undertook to pay the Claimant a gross
remuneration of EUR 25,200, payable in equal monthly instalments on the first day of the
following month.
I.A Facts described based on the information and documentation provided by the
Player
3.
On 28 May 2024, a person named “Person A,” which, according to the Player was a Club’s
representative, sent a voice message to the Player asking her who her agent was and telling
her that they were “looking forward to having [her] here next season”. The Player then
provided him with the number of Agent A, who was acting as her agent at the time
(hereinafter: the Agent).
4.
On 24 June 2024, a person called “Person B” (hereinafter: Person B) introduced himself to
the Player as the Club’s new team manager and informed her about the formalities around
the medical tests, the WhatsApp group for the next season and the pre- season training
plan. Person B and the Player stayed in contact over WhatsApp until her planned return to
Country B on 18 July 2024. It is to be noted that the Player provided a transcript of the
mentioned exchanges. Part of the communications’ extract is provided below for ease of
reference:
“[…]
[2024-06-24 17:45:28] Person B: Hi, my name is Person B. I'm the new team manager for Club
A.
Over the next few days I'll set up a whatsapp group for official communications and I'll relay
the info for your medicals and the restart of training sessions. Meanwhile, Person C asked me
to forward his offseason training plan: he has prepared two, one suitable if you have access
to a gym, another to be followed if you don't.
[…]”
5.
On 25 June 2024, the Agent informed the Player that he received a draft employment
contract from the Respondent for one season (2024/2025) with a salary of EUR 36,000 net.
The Player informed the Agent that she agreed to the new contract but requested the Agent
to negotiate that the Club would take care of her flights too, which according to the Player
the Club ultimately did. It is to be noted that no documentation was provided.
pg. 3
REF. FPSD-XXXXX
6.
On 9 July 2024, the Agent received a new employment contract for the Player.
7.
On 10 July 2024, the Agent sent the Player the new employment contract and the following
WhatsApp messages:
“Goodmorning Player, How are you today?
Let's try to have the call in this early afternoon, III be in office at 15.00
In the meantime, this is the contract the Club has sent.
Gross amount is 64,000 […] net is 37.165.40. Its included […] 800€ flight tickets. It was […] easiest
way to put the amount inside. [a copy of an employment contract was shared as document]”
8.
The Player provided an unsigned copy of an employment contract (hereinafter: the First
Draft Contract) valid for the 2024/2025 season until 30 June 2025, with a salary of EUR
64,000 gross.
9.
On 11 July 2024, the Player allegedly drew the Agent’s attention to a typo in the First Draft
Contract regarding the spelling of her name. It is to be noted that no evidence was provided.
10. Also on 11 July 2024, the Player was added to a WhatsApp group called “Club A Team” for
the 2024/2025 season. The group was created by Person B.
11. The Player provided a copy of a training schedule for the period between 17 July and 2
August 2024, which according to the Player was shared via the WhatsApp group.
12. On 11 July 2024, Person B informed the Player that the medical exams had been scheduled
on 17 and 18 July and that they had arranged housing for the Player until 24 July 2024. It is
to be noted that the Player provided a transcript of the mentioned exchanges, as follows
(quoted verbatim):
“[…] [2024-07-11 14:31:50] Person B: Hi Player, medicals scheduled on the 17th and 18th. Did
you manage to arrange the flight in time? Would you need picking up at the airport?
If you need it, we have arranged lodging for the first week of training in a villa adjacent the
training center, up to july 24th, when we leave for training camp.
[2024-07-11 14:33:07] Player: Hi! I got info that i have medicals 19, so can book flights who
coming to City A earliest 18 aug afternoon
[2024-07-11 14:33:42] Player: And i would need somewhere to live before the training camp
and also get pick up from airport
[2024-07-11 14:35:36] Person B: Ok, I'll set it up for later
pg. 4
REF. FPSD-XXXXX
[2024-07-11 14:35:39] Person B: Ok
[2024-07-11 14:35:53] Person B: Send me the flight details
[2024-07-11 14:36:50] Player: I havent book yet but the one i maybe can take should arrive
18:00
[2024-07-11 14:37:02] Player:
[2024-07-11 14:37:27] Person B: Ok, I have Person D landing at 19:30
[2024-07-11 14:37:46] Person B: I could set up a van for you two
[2024-07-11 14:37:59] Person B: Coming straight to the villa
[2024-07-12 12:46:15] Person B: The van picking you up at the airport is confirmed, the driver
will contact you after your landing. If you need anything you can text me
[2024-07-18 18:13:53] Person B: Hi Player, the van will come pick you both up when Person D
lands, I only had one van available and had to set it up like this, you'll have to wait a bit after
you pick up your luggage
[2024-07-18 18:18:04] Person B: Have you landed already? […]”
13. On 12 July 2024, the Player found out she was pregnant.
14. On 15 July 2024, the Agent and the Player exchanged messages on how to inform the Club
of her pregnancy, and the Player was determined to inform the Club prior to signing any
contract, as a matter or courtesy. It is to be noted that no evidence was provided.
15. On 17 July 2024, a medical certificate was issued in which it was confirmed that the Player
was pregnant.
16. On 18 July 2024, the Player asked the Agent to inform the Club that she was pregnant and
to ask them to keep it confidential.
17. On 18 July 2024, the Club sent the updated employment contract to the Agent. It is to be
noted that no evidence was provided.
18. The Player provided an unsigned copy of an employment contract between the parties
(hereinafter: the Second Draft Contract) which was valid from an unspecified date until 30
pg. 5
REF. FPSD-XXXXX
June 2025 with a gross salary of EUR 64,000. The Player mentioned that the Second Draft
Contract was sent on 18 July 2024.
19. On 18 July 2024, the Agent informed Person E – according to the Player, the secretary to the
sports unit of Club A – through a phone call that the Player was pregnant. Later on the same
day, the Agent also informed Person F (hereinafter: Person F) – according to the Player, the
Sporting Director of Club A – through a phone call that the Player was pregnant. The Agent
explicitly requested the Club officials not to disclose this information.
20. On 18 July 2024, the Agent sent to Person F the Player’s certificate confirming she was
pregnant.
21. On 21 July 2024, a player (hereinafter: the other player) and the Player held the following
discussions via the application WhatsApp (quoted verbatim):
“ [unknown player]: Person G says you are pregnant?
Just talked with Person H.. I feel so bad for you that Person G had said it without you to want
us to know”.
[The Player] “Not chocked
but i have been sick latest 2,5 week so went on Wednesday to
doctor beacuse i needed to check before i know if i could come this week and tgen i got to
know it! Thats why i dint know before! So its so early and still not like "safe" yet beacuse so
early and risks and my agent told the Club on thursday and told not talk about it before they
solve the situation.
And i havent sign yet so thats why i also dont know whats going on
And havent told our familys yet beacuse its so early! So yes wei that the team know and also
people i dont know […] but not”
22. According to the Player, on 21 July 2024, the Club informed the Agent through a phone call
that, as no contract had been signed, the Club had no obligation towards the Player, and it
would not continue with the employment contract due to the Player’s pregnancy.
23. On 22 July 2024, the Player was removed from the WhatsApp Group “Club A Team” by
Person B.
24. On 2 August 2024, the Player via her legal representative sent the following letter to the
Club (quoted verbatim) :
“We contact you on behalf of our member, the Player, who was employed by your club during
the 2023/2024 season. Please note that we are representing the Player and we therefore kindly
request you to address any future correspondence to the undersigned.
pg. 6
REF. FPSD-XXXXX
In this respect, we wish to recall that following a successful 2023/2024 season, your club
communicated to the Player a desire to continue the employment relationship in the
2024/2025 season and thus to renew the employment contract. As such, the renewal of the
employment contract was sent to the Player and she subsequently accepted the renewal of
the employment contract for the 2024/2025 season.
However, on 18 July 2024, out of courtesy the Player informed your club through an
intermediary that she was pregnant. Subsequently, on 21 July 2024, an official of the called
the intermediary and told him that the contract of the Player would not be renewed because
of her pregnancy. She was then also removed from the team's WhatsApp group.
In this regard, we wish to underline that we deem that your decision to withdraw from the
employment contract due to the Player’s pregnancy is not lawful, constitutes a breach of
contract as well as an act of discrimination on the basis of gender.
Furthermore, it is also understood that the club - without the Player’s consent - communicated
the pregnancy to various members of the team, including other players. Please note that also
this act was unlawful given that sensitive personal medical data was disclosed even though
the Player did not consent to this.
As a result, while the exact amount of the damage for the Player is currently being assessed,
we kindly request you to inform us within the next 5 days whether you acknowledge liability
and are willing to compensate the damage.”
25. On 6 August 2024, the Club replied to Player, the following (quoted verbatim) :
“on behalf of Club A I acknowledge your letter of 2 August, whose contents surprised me.
Your Client, who had declared her willingness to renew her employment contract for the
2024/2025 season, did not accept the company's invitation sent to her twice without providing
any justification: the Club therefore considered the silence as a manifestation of a contrary
will and replaced your Client in the preparation programmes for the championship that is
about to begin.
No contract was therefore concluded because the Player did not wish to conclude it.
As for the news of the Player’s pregnancy, I can assure you that the Club, which had no
knowledge of it, did not disclose this. If the former colleagues of the Player have been
informed, this is the result of the interpersonal relations that were obviously consolidated
during the past sports season.”
26. The Player informed FIFA that she did not find a new club.
pg. 7
REF. FPSD-XXXXX
II. Proceedings before FIFA
27. On 30 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ respective positions is detailed below.
a. Claim of the Claimant
28. The Claimant lodged a claim for breach of contract as follows:
i)
There was an employment contract in place and the Club terminated the
contract without just cause
29. The Claimant first argued that there was an employment contract between the parties and
that the Respondent terminated the employment relationship without just cause.
30. The Claimant stated that:
-
the Respondent offered the Claimant an employment contract which was accepted
by her: “It is clear that during the summer of 2024 the Club offered the Player an
employment contract and that the Player accepted the contract“;
-
“Not only was a contract offer made, but the Club also even sent the full version of the
newly agreed employment contract to the Agent of the Player, invited the Player to return
to Country B and the employment contract was supposed to be signed on the 18th of July
2024. The Player had also already been provided with accommodation, the pre-season
training schedule and was included in the team’s WhatsApp group for the 2024/2025
season. The Club therefore showed beyond doubt that it considered the Player to be part
of the team for the 2024/2025 season.”
-
The intention of the parties was to continue with the employment relation following
the previous contract.
-
The assertation of the Club – in its reply dated 6 August 2024 – that it had “no
knowledge” of the pregnancy, is false.
-
“[…] the parties had already come to an agreement and that the execution of the
employment relationship had already started. Indeed, all the terms of the renewed
employment relationship had been agreed on and the Player had been provided with
accommodation, the pre-season schedule and had been included in the WhatsApp group
for the 2024/2025 season. Only the signature of the contract had not been placed on the
contract, yet this was merely a formality given the behavior of the parties which clearly
showed that there was already an agreement in place.“
pg. 8
REF. FPSD-XXXXX
31. The Claimant argued that following the disclosure that she was pregnant, on 18 July 2024,
the Club informed the Agent that they would not continue with the signing of the contract
and that they had no further obligations towards her as the contract had not been
registered. The Claimant was of the opinion that “there cannot therefore be any question that
the reason for the Club’s decision to withdraw from the contract was the Player’s pregnancy.
This, however, equals to the termination of the employment contract without just cause”.
32. The Claimant further argued that the Club’s assertion on 6 August 2024, is contrary to all
the evidence provided and cannot be considered as credible and by behaving in the way
as it did, the Club acted unlawfully and discriminated against the Player on the basis of her
sex. The Claimant mentioned that “it cannot seriously be argued by the Club that it was not
aware of the Player’s pregnancy and that this would not have been the reason for the Club’s
decision not to continue with the Player. Two days before the Club decided to withdraw from the
contract, the Agent sent Person F written proof of the Player’s pregnancy and in between 18 and
21 July 2024 other players started to reach out to the Player asking her if it was true what the
Club had informed them about her pregnancy”.
33. In view of all the above, the Claimant concluded that the Contract contained all essentialia
negotii and that the parties entered into an employment contract.
34. The Claimant then referred to art. 18quarter of the FIFA Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) and concluded that the Club terminated
the Contract without just cause because of the pregnancy. Compensation is therefore due
on the basis of art. 18quater of the Regulations. Therefore, the Player is entitled to:
ii)
-
EUR 64,000 as the residual value of the contract as per art. 18quater par. 3 lit. a) i. of
the Regulations;
-
EUR 32,000 as the additional compensation as per art. 18quater par. 3 lit. a) iii. of the
Regulations.
The Club discriminated against the Player on the basis of sex
35. In the alternative that FIFA concludes that no contract was concluded, the Player stated
that the Club acted unlawfully towards the Player and compensation is due to her. The
Claimant referred to the FIFA Statutes, European Convention on Human Rights, Universal
Declaration of Human Rights, and concluded that:
“in accordance with international and European law, which are both evidently applicable to
the Country B club, but also to FIFA, is clear that the renewal of the contract of a professional
player cannot be prevented on the basis of her pregnancy and that – would this occur – it
would constitute a direct discrimination on the basis of sex.
pg. 9
REF. FPSD-XXXXX
Therefore, as soon as the Club decided to withdraw from the contract when they found out
of the Player’s pregnancy, the Club discriminated against her on the basis of sex.
As to the consequences of that finding, the same consequences should apply as mentioned in
Chapter E2) given that should the Club not have discriminated against her on the basis of sex,
the Player would have played for the Club against remuneration in the 2024/2025 season.
iii)
The Club is liable as per the doctrine of culpa in contrahendo
36. In the alternative, the Player submitted that the Club breached the principle of culpa in
contrahendo. The Player stated that it may be evident that the Club did not act in good faith
and abandoned the contract without compelling reasons as soon as it found out that the
Player was pregnant. Therefore, the Club would be obliged to compensate the Player on
the basis of art. 17 of the Regulations and the FIFA Dispute Resolution Chamber is
requested to award her the amount of EUR 64,000 as the residual value of the employment
contract, this being in compliance with the ruling of CAS in CAS XXXX/X/XXXX.
iv)
Disclosure of pregnancy by the Club
37. The Player mentioned that the Club had disclosed the pregnancy to the staff as well as to
the other players and thus everyone in the Club found out without her consent. The Player
referred to art. 238B of the Swiss Code of Obligations; Art. 6 par. 7 of the Swiss Federal Act
on Data Protection (FADP); Art. 30 par. 5 of the FADP, and mentioned that Club was in
violation of the above-mentioned rules and the Player therefore requests a compensation
in the amount of EUR 32,000 for a violation of her personality rights and the distress she
has suffered from.
38. The Player stressed:
“Indeed, the Player is requesting an additional compensation of EUR 32,000 on the basis of
the Club’s unlawful and unethical decision to disclose her pregnancy to other individuals
working in the club, which has led to distress on the side of the Player.
If such amount is not awarded on the basis of the provisions outlined above, it – in the
alternative – should be awarded on the basis of the specificity of sport (as a component to
come to a fair compensation) or on the basis of moral damages, as already previously done
in severe cases of breach by the FIFA DRC.”
39. The Claimant requested the following relief:
“In conclusion, the Player is questing the FIFA DRC to order the Club to pay her the following
amounts:
pg. 10
REF. FPSD-XXXXX
- EUR 96,000 as compensation for the termination of the contract without just cause plus 5%
interest as from 21 July 2024; and
- EUR 32,000 as compensation for disclosing the pregnancy plus 5% interest as from 21 July
2024.
In the alternative:
- EUR 96,000 as compensation for the discriminatory and unlawful act which prevented the
renewal of the contract plus 5% interest as from 21 July 2024; and
- EUR 32,000 as compensation for disclosing the pregnancy plus 5% interest as from 21 July
2024.
In the further alternative:
- EUR 64,000 as compensation for a violation of the doctrine of culpa in contrahendo plus 5%
interest as from 21 July 2024; and
- EUR 32,000 as compensation for disclosing the pregnancy plus 5% interest as from 21 July
2024.
In addition, sporting sanctions are to be imposed on the Club on the basis of art. 18quater of
the FIFA RSTP.”
b. Position of the Respondent
40. The Respondent failed to provide its position to the claim.
c. Information provided by the Country B Football Federation
41. On 10 February 2025, the FIFA General Secretariat requested the Country B Football
Federation provide the following information:
-
the Player’s history of transfers within the Country B Football
Federation (i.e. the player’s official passport);
-
the period(s) of registration of said player with the Club together with a copy of
all the contract(s), if any, executed between said parties.
42. The Country B Football Federation provided the Player’s transfer history and the
Contract. The Player had the following transfers:
pg. 11
REF. FPSD-XXXXX
Season
2023-2024
Exact registration
Loan
dates
or
Player
Status
Name of Club
Category*
National
permanent
(amateur
until (d/m/y)
registration
professional)
05/09/2023-
PERMANENT
AMATEUR
[the Club]
4
Country B
PERMANENT
AMATEUR
[the Club]
1
Country B
RELEASED
AMATEUR
(d/m/y)
or
(Category*)
Association
30/06/2024
2024-2025
01/07/202410/07/2024
2024-2025
05/09/2023-
Country B
30/06/2024
43. Upon receipt of the above information, the FIFA general secretariat requested further
information regarding the Player’s registration from 1 July 2024 to 10 July 2024 as well as
the employment contract for the aforementioned period or further information regarding
this registration.
44. The Country B Football Federation replied:
“please be advised that, in accordance with our internal regulations, when the club is
promoted to the professional level, the player's registration is extended until July 10th to allow
both parties to finalize a professional contract.
Should this not occur, the player is released, as is the case here”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
45. First of all, the Dispute Resolution Chamber (hereinafter: the 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 presented to FIFA on 30 August 2024 and submitted for decision
on 24 March 2025. Taking into account the wording of art. 31 and 34 of the January 2025
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
46. Furthermore, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) (January
2025 edition), 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 Country A player and a Country B club.
pg. 12
REF. FPSD-XXXXX
47. Subsequently, 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. 29 of the
Regulations, the January 2025 edition of the Regulations is applicable to the matter at hand
as to the substance.
48. On a separate note, the Chamber wished to remark that the Claimant referred in its
submissions that Swiss law and European law are applicable as to the substance. In this
respect, the Chamber referred to article 3 of the Procedural Rules, which establishes inter
alia that “In their application and adjudication of law, the chambers shall apply the FIFA Statutes
and FIFA regulations, whilst taking into account all relevant arrangements, laws, and/or
collective bargaining agreements that exist at national level.” The FIFA Football Tribunal’s longstanding jurisprudence and practice in line with the rules, the Dispute Resolution Chamber
assess the disputes based on the Regulations, referring to the FIFA Statutes and other FIFA
regulations where appropriate.
49. In this regard, the Chamber emphasised that the main objective of the FIFA regulations is
to create a standard set of rules to which all the actors within the football community are
subject to and can rely on (cf. art. 1 par. 1 of the Regulations). As has long been held by the
Football Tribunal, it is in the interest of football that cases are decided based on uniform
criteria rather than on provisions of national law that may vary considerably from country
to country.
50. Therefore, the Chamber concluded that FIFA regulations, general principles of law and,
where existing, the Football Tribunal’s well-established jurisprudence shall apply.
b. Burden of proof
51. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
52. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
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
assessing the matter at hand.
pg. 13
REF. FPSD-XXXXX
i. Main legal discussion and considerations
53. This is a claim brought by a player against a club for termination of the employment
relationship.
54. The Claimant argued that despite not having signed the contract, the parties had entered
into an employment agreement considering all the terms were allegedly accepted, and that
the Respondent terminated said contract due to the Player's pregnancy without just cause,
in application of art. 18quarter of the Regulations.
55. The Club, on the other hand, did not respond to the claim, entailing that the Chamber’s
decision must be made on the basis of the documentation on file, that is, the
argumentation and evidence filed by the Claimant in line with art. 14 par. 1 and art. 21 par.
1 of the Procedural Rules.
56. In this context, the Chamber acknowledged that its task was to determine whether the
parties had entered into a valid and binding contract between and to draw the
consequences thereof.
57. On the basis of the allegations and evidence in the present case, the Chamber observed
the following:
-
The Player conceded that no contract had been signed.
-
The Player did not provide any evidence as to the role of the persons referred to as
Person A and Person B.
-
With regard to the communication with the person called "Person A" on 28 May 2024,
the Chamber was able to observe that a printout of a WhatsApp communication
between the Player and a person called "Person A" was provided, but no information
was provided as to the number and role of this person at the Club, if any.
-
With regard to the Player's First Draft Contract and Second Draft Contract, as stated
by the Player herself, these two documents were provided to the Player by the Agent.
However, no evidence was provided to show that these two documents were sent by
the Club or an employee of the Club.
-
With regard to the communications with Person B, the Chamber was unable to
determine the number of the sender and no evidence of the role. The only evidence
provided is the transcript itself.
pg. 14
REF. FPSD-XXXXX
-
As far as the WhatsApp group is concerned, the Chamber could establish that Person
B added the Player to a group containing the Club's logo, and that she was removed
from this group on 22 July 2024.
-
As for the training plan, the Chamber could not determine the channel it was sent
from. The Player mentioned it was sent via the WhatsApp group, but she did not
provide evidence in this respect.
-
Regarding the alleged calls and information provided on those calls - while the
Chamber is aware that the content of a call is not easy to corroborate, no evidence
was provided regarding the calls and/or the roles of the people she mentioned.
-
As for the communication with the other player, the Chamber was unable to
corroborate who the sender was and was not able to identify the person.
-
As for the communication with the other player, the Chamber also observed that the
communications were carried on 21 July 2024 and on that date, the Claimant
informed the other player that she did not sign a contract with the Club (cf. quoted
verbatim “[…] And i havent sign yet so thats why i also dont know whats going on […]”
A. Is there an employment contract between the parties?
58. The Chamber started by recalling the well-established jurisprudence of the Football
Tribunal which dictates that, in order for an employment contract to be considered as valid
and binding, apart from the signature of both parties or any other proof of consent, it
should contain the essentialia negotii of an employment contract, such as the parties to the
contract and their role, the duration of the employment relationship and the remuneration
payable by the employer to the employee.
59. The Chamber further recalled that the signature of a contract by both parties is an
important element in order to establish an employment relationship, essentially because
this is the easiest way to demonstrate mutual consent. However, having an unsigned
specimen of the contract does not automatically mean there is no employment relationship
between the parties, because this shall be established on a case-by-case basis and
considering the entirety of the facts of the case and the elements at the disposal of the
deciding authority.
60. Furthermore, the Chamber recalled that a party that asserts a fact has the burden of
proving it (cf. art. 13 par. 5 of the Procedural Rules).
61. With the above in mind, the Chamber then referred to the evidence provided by the
Claimant, namely: (i) the WhatsApp communications between the Player and Person B, and
the Player and Person A; (ii) the First and Second Draft Contracts, which clearly refer to the
Club as one of the parties; (iii) the Player’s adherence to the Club’s WhatsApp
pg. 15
REF. FPSD-XXXXX
group; and (iv) the Player’s previous tenure with the Club. The Chamber was able to
conclude that the parties were in discussions regarding the renewal of the Player’s contract.
62. However, the majority of the Chamber was unable to establish that the parties reached an
agreement in the discussions and concluded an employment contract. This conclusion is
based on the lack of evidence regarding communications between the Club and the Player,
or the Club and the Agent, specifically: (i) the Club’s remittance of the documentation
provided by the Player, such as the First Draft Contract and the Second Draft Contract, or
whether these were the final versions of the contract; and (ii) the Player’s acceptance of the
Second Draft Contract and the communication thereof.
63. In particular, regarding the second point, the majority of the Chamber observed that while
the Player stated that both parties agreed they had a contract, she contradicted herself by
saying she did not sign the contract. She also clearly mentioned in her communication with
the other player that she had not yet signed a contract with the Club. This led to the
conclusion that, as of 22 July 2024, the contract was not concluded, as no acceptance was
made.
64. Indeed, according to the communications provided, the Player was in Country B and was
added to a WhatsApp group. However, the majority of the Chamber could not conclude
that the parties were executing a contract, as the terms were not finalized.
65. In view of the above, the majority of the Chamber concluded that the documentation
provided does not establish with the required degree of certainty that the parties executed
a contract, as the Player did not appear to communicate her acceptance of the terms.
Consequently, the majority of the Chamber concluded that she did not communicate her
intention to accept the contract.
66. Therefore, the majority of the Chamber concluded that the Player failed to establish that
the parties had entered into an employment relationship.
B. Is art. 18quarter par. 1 and par. 2 applicable to the present case?
67. As a preliminary remark, the Chamber recalled that the regulatory framework for the
protection of female players and coaches has been progressively implemented, in
particular with the latest set of rules included in the June 2024 edition of the Regulations
(cf. art. 18 par. 7, 18quater, 18quinquies), which are a set of minimum working conditions
for female players and maternity protection to be applied in all member associations.
68. In the light of the above considerations, the Chamber wished to recall the precise wording
of art. 18quarter par. 1 and par. 2:
“Validity of an employment contract
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REF. FPSD-XXXXX
1. The validity of a contract may not be made subject to the taking of, or the result of, a
pregnancy test, the player being or becoming pregnant during its term, being on maternity,
adoption or family leave, or utilising rights related to maternity, adoption or family leave in
general.
Terminating a contract without just cause and consequences
2. If a club unilaterally terminates a contract on the grounds of a player refusing to take a
pregnancy test, being or becoming pregnant, being on maternity, adoption or family leave, or
utilising rights related to maternity, adoption or family leave in general, the club will be
deemed to have terminated the contract without just cause.
It shall be presumed, unless proven to the contrary, that the unilateral termination of a
contract by a club during a pregnancy or maternity, adoption or family leave occurred as a
result of a player being or becoming pregnant, adopting a child or utilising rights related to
family leave.”
69. Moreover, the Chamber made reference to the Explanatory Note on New Provisions in the
Regulations on the Status and Transfer of Players Regarding Female Players which
stipulated that the application of art. 18quarter par. 4 of the Regulations was to provide
basic rights to a player who becomes pregnant during the term of her contract.
70. Having in mind the above and considering that the majority of the Chamber found that the
parties did not have a valid employment contract, the majority of the Chamber concluded
that the present case would not fall under the application of art. 18quarter par. 1 as the
parties did not conclude the employment contract, and the Player’s pregnancy occurred
prior to it. Therefore, in the majority of the Chamber’s view the application of this article
would be triggered in case the parties had a valid employment contract, which was not
case.
71. Consequently, the majority of the Chamber was not able to apply art. 18quarter par. 1 and
par. 2 and grant the Player a compensation under art. 18quarter par. 3 or art. 17 of the
Regulations.
C. Did the Club discriminate against the Player on the basis of sex? And did the
Club disclose the Player's pregnancy?
72. The Chamber recalled that the Player requested compensation on the basis of
discrimination (EUR 96,000) and the disclosure of her pregnancy (EUR 32,000). In particular,
the Player stressed that the Club informed her that it would not sign the Contract because
of the Player’s pregnancy.
73. In this regard, as a preliminary point, the Chamber wishes to unequivocally state that it
condemns any form of discrimination, whether based on sex or any other grounds, and, in
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REF. FPSD-XXXXX
accordance with FIFA Statutes, is committed to respecting all internationally recognized
human rights. However, in the present case, the majority of the Chamber stressed that it
did not find evidence of discriminatory conduct.
74. The majority of the Chamber observed that the only documentation on file as to the
allegations of discrimination was a WhatsApp message to Person F, in which a copy of the
Player’s pregnancy test was shared. Nonetheless, there is not any communication showing
or informing the Player that the Club would not sign a contract after the information was
shared.
75. Moreover, as to the call’s allegations, while the Chamber was aware that proving the
information exchanged during calls is not possible unless registering those calls, the
Chamber did not receive evidence that indeed these calls in fact happened and the roles
of the persons with whom she or the Agent allegedly discussed.
76. Therefore, the majority of the Chamber was not able to conclude, on the basis of the
evidence provided, that the Club discriminated against the Player due to her pregnancy.
77. Moreover, as to the alleged disclosure of her pregnancy, the majority of the Chamber was
not able to find evidence as to this point and was not able to conclude that the Club
disclosed this information. In particular, the majority of the Chamber was not able to
identify who was the other player and that the Club provided this information to the other
player. The majority of the Chamber also observed that as per the WhatsApp
communication with the other player, the players mentioned a person named “Person G”,
however his identification was not provided.
78. Therefore, the majority of the Chamber rejected the Player’s claims in this respect.
D. Culpa in contrahendo
79. In the alternative, the decision that the parties did not enter into an employment
relationship is without prejudice to the Player’s claim for compensation on the basis of the
principle of culpa in contrahendo.
80. In this respect, the Chamber referred to the understandings in CAS XXXX/X/XXXX, to which
the Chamber adhered:
“As a preliminary contract is a contract under the law of obligations that creates the
obligation to conclude a main contract at a later point in time, a party to the preliminary
contract is not entirely free to exclude itself from the negotiations in relation to the
conclusion of a final agreement. Instead, the parties must negotiate in good faith and
should not abandon the negotiations without compelling reason for doing so. The duty
to act in good faith already exists at the time of contractual negotiations and is known
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REF. FPSD-XXXXX
as culpa in contrahendo. Under Swiss Law culpa in contrahendo means the
negligent/intentional breach of pre-contractual duties. A finding of culpa in contrahendo
requires the existence of contractual negotiations, trust that merited protection, a
breach of a duty, harm, a causal connection, and fault. The breach of a duty in particular
derives from the principle of good faith. At the contractual negotiation stage it includes –
regardless of whether a contract is concluded later on – certain duties of care,
considerateness, good faith, and of providing information, including the duty to negotiate
seriously and in a fair manner. It essentially constitutes an independent basis of liability,
somewhere between a contract and a tort. According to Swiss legal doctrine, it is a special
form of liability for breaches of trust” (emphasis added by the DRC).
81. Applying the above to the present case, the Chamber observed that the parties were in
discussions regarding the renewal of the Player’s contract.
82. Nevertheless, the DRC also emphasized that a finding of culpa in contrahendo would still
require evidence of a breach of the duty to act in good faith during the pre-contractual
stage / harm / fault on the part of the other party (i.e., the Club) and evidence of the damage
suffered by the party claiming such a compensation (i.e., the Player).
83. On the basis of the evidence provided, the majority of the Chamber was not persuaded
that the Player has succeeded in proving the above.
84. The majority of the Chamber was not able to conclude that the Club did not continue with
the signature due to a breach of the duty to act in good faith during the pre-contractual
stage / harm / fault. Moreover, the majority of the Chamber observed that the Player did
not even provide a consent or acceptance as to the signature of the contract and it was
unclear as to what stage in the discussions as to conclude the Contract the parties were.
85. As to the second condition, i.e., damages, the majority of the Chamber confirmed that it
did not need to analyse further on account of the fact that the first condition was not
proven.
86. Consequently, the majority of the Chamber concluded that the cumulative conditions were
not met and therefore also decided to reject the Player's claim for damages on the basis of
culpa in contrahendo.
d. Costs
87. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
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REF. FPSD-XXXXX
88. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
89. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-XXXXX
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-XXXXX
NOTE RELATED TO THE APPEAL PROCEDURE:
According to art. 50 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., art. 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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