Dispute Resolution Chamber
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 8 April 2021,
regarding an employment-related dispute concerning the Player A
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislav Kasalo (Croatia) member
Jérôme Perlemuter (France), member
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B, Country B
Represented by
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I. FACTS OF THE CASE
1.
The player, Player A (hereinafter: the Claimant or Player) maintained that on 28 December 2019
concluded and employment contract with the Country C club, Club C (hereinafter: Club C), valid as
of 1 January 2020 until 31 December 2022.
2.
An unknown date, the player received from his agent, Agent A, an offer from the Country B club,
Club B (hereinafter: the Respondent or Club), according to which the club offered the player an
employment contract valid as of 1 October 2020 until 31 May 2021 for a total remuneration of USD
230,000, if the player will be a free agent by 15 September 2020.
3.
The player held that given the offer received from the Respondent, on 4 August 2020, he terminated
his contract with Club C.
4.
On 10 August 2020, the Respondent, via email, sent an unsigned draft of an employment contract
to the player.
5.
According to the player, after his termination with Club C, false news began to circulate according to
which he had problems with his right knee.
6.
The player further explain that after having forwarded the MRI scans of his right knee to the club, the
latter, unjustifiably, decided to end the negotiation with him, arguing that after obtaining a
professional opinion from medical experts it had decided to not employ the player.
7.
In order to corroborate his allegation about his good physical conditions, the player pointed out that
on 6 November 2020 he concluded a contract with the Country D Club D valid as from the date of
signature until the end of the sporting season 2020.
8.
On 10 October 2020, the player lodged a claim against the Respondent in front of FIFA, claiming,
inter alia, the amount of USD 230,000 as per the employment contract concluded with the club plus
interest.
9.
In its reply to the claim, the Respondent stated that as a normal process it reached out to the player’s
agent, Agent A, to inquire about the player’s status and availability for employment and that the
actions of the club were actions to simply check on the availability and status of a player.
10. The club added that it was further informed by the agent that the player was already undergoing
talks and initiated termination with Club C on his own accord and for mutual reasons and therefore
he shall be free to discuss a possible employment with the club as soon as the formality of mutual
termination is executed and to be expected by 15 September 2020.
11. Moreover, the club highlighted that in its email to the player’s agent, it specified that is shall not be
considered in any way as involved in the ongoing termination process already initiated by the player
with Club C.
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12. In continuation, the club held that only after having received a communication from the player’s agent
stating that the player was a free agent as of 4 August 2020, it prepared a draft employment contract
for the player and sent out a non-signed version via email on 10 August 2020, however,
coincidentally, and right after doing so, it stated that the club management were informed of a recent
knee injury to the player.
13. In light of the above, the club explained that, on 12 August 2020, requested clarifications and details
of the knee injury the player unearthed prior to the execution of any contract with him along with
previous MRI’s of the player and also, that it put no restrictions on the player to negotiate terms with
other clubs just in case his reports did not depict satisfactory results to meet the standards required
by the club.
14. The club further explained that post assessment and official opinion form the club doctor it inform
the player that the club “would be unable to accept and employ the Player on account of a "fitness non clearance" given by the Doctor.”
15. Furthermore, the club stated that “in light of respect of Article 18.4 of the FIFA RSTP, the duty and
prudence of a Club to carry out all possible fitness and due diligence prior to execution of a player
contract, the club till the very last minute carries out its diligence and in doing so the Club unearthed
an injury that had been concealed by the Agent and the Player and the Club on not being satisfied
with the fitness reports of the Player post proper examination by the medical team could not be
expected to employ the player.”
16. The club added that “with regard to the Player’s claim that he secured a short 2 month employment
with a 2nd category Country D Club – Club D, currently playing in the First xxx of Country D which
plays in the 2nd Level of Country D League Football, B as a club is a professional level Club participating
at the top level international football league whereby during the Season the Club can register a
maximum of only 7 foreign Players and therefore on account of the players the Club fields it would
seek utmost professional fitness standards specially as in this case the contract in question would be
not of a short duration but a longer duration from October 2020 till May 2021 and thereby apart
form a question mark on the fitness involve a question of the Player’s sustainability through the term
of Contract.”
17. Moreover, the club stated that from the fact the player signed an employment contract with Country
E club, Club E, valid as from 1 August 2020 until 31 December 2020, it is evident that the player was
negotiating with other clubs as well looking to terminate the existing contract with Club C
independently of any involvement by the club and as stated by the player.
18. The club further maintained that the unsigned draft contract, which is clearly non-binding in the
absence of any signature by the club, renders the entire claim infructuous as there is/was never any
finalized employment relationship and that “In a nutshell the Player and the Club have no contractual
relationship in any form whatsoever.”
19. In continuation, the club held that it “was well within its rights to carry out its medical due diligence
till the execution of the player contract and therefore in the event of being non-satisfied was well
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within its rights to not employ the Player. In fact it was the Agent and Player who failed to disclose
information as important as a knee injury taking into account the specificity of sport of football.”
20.
Finally, the club maintained that “Since there exists no employment/concluded contract in the present
set of facts and claim mentioned by the claim by the Player it is clear to state that there exists no
reason for admissibility and maintainability of this claim and intervention required by this forum at
FIFA as an employment related claim as there was no employment contract to claim or cause of
action essentially required to place the present claim as admissible and maintainable under FIFA DRC.
(…) therefore the entire claim is in admissible.”
21.
In its request for relief, the club requested, inter alia, the following:
- “The entire Claim of the Player be and rejected as non-maintainable.
- The Forum may be pleased to direct the Player to pay and compensate the Club for this
frivolous and baseless allegation as the DRC deems fit.”
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 10 October 2020. Taking into account the wording of art. 21 of the
2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
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 February 2021), the Dispute Resolution Chamber is
competent to deal with the matter at stake. The matter concerns an employment-related dispute with
an international dimension between a Country A player and a Country B club.
3.
In continuation, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (February 2021 edition), and considering that the
claim was lodged on 10 October 2020, the October 2020 edition of the aforementioned 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 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.
Having said that, the members of the Chamber acknowledged that, according to the Claimant, he
had, on 10 August 2020, concluded with the Respondent an employment contract, in accordance
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with which the latter had undertaken to pay him the total amount of USD 230,000. Further, the
Chamber also took note of the Claimant’s allegations according to which the Respondent after he
forwarded the MRI scans of his right knee to the club, it decided to end the negotiation with him,
arguing that after obtaining a professional opinion from medical experts it had decided to not employ
the player. Therefore, the Claimant asked to be awarded, inter alia, compensation for breach of
contract by the Respondent in the amount of USD 230,000.
6.
The DRC furthermore 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 this regard, the Chamber
observed that whereas the Respondent had admitted to have sent an unsigned draft of the
employment contract to the player on 10 August 2020, it, however, stated that no legally binding
employment contract had come into effect between the Claimant and the Respondent, as the parties
never signed a written employment contract due to the unsatisfactory results of the player’s medical
examination, that did not meet the Respondent’s requirements.
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 DRC recalled that the Claimant maintained that he never received a copy
duly signed by both parties of the employment contract he asserts having concluded with the
Respondent.
9.
In view of the foregoing circumstances, the DRC deemed it important to highlight that, in order for
an employment contract to be considered as valid and binding, it must bear the signature of both the
employer and the employee. In this respect, the DRC observed that the Claimant was unable to
provide the Chamber with a copy of the employment contract duly signed by both the player and the
club.
10. Having duly taken note of the documentation presented by the parties, 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.
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11. In respect of the foregoing, the members of the Chamber had to conclude that the documents
presented by the Claimant did not prove that the Respondent and the Claimant had validly entered
into an employment contract.
12. As a consequence, the DRC decided that, since the Claimant had not been able to prove that he
signed the employment contract and therefore that it had validly been concluded between himself
and the Respondent, there is no possibility to enter into the question whether or not such alleged
employment contract had been breached, as a result of which the draft of the employment contract
provided by the Claimant cannot be considered as valid and binding upon the parties.
13. All the above led the DRC to conclude that the claim of the Claimant has to be rejected.
14. Finally, the Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and a player
are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed
on the parties.
15. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the
Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Player A, is rejected.
2.
The decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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