Dispute Resolution Chamber
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021
regarding an employment-related dispute concerning the Player A
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Muzzamil Bin Mohamed (Singapore), member
Stéphane Burchkalter (France), member
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B, Country B
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I. FACTS OF THE CASE
1.
On 3 August 2020, Mr B, allegedly acting on behalf of the Country B club, Club B (hereinafter: club
or Respondent) and the Country A player, Player A (hereinafter: player or Claimant) via his player’s
agent exchanged messages in WhatsApp, whereby Mr B sent an initial offer (hereinafter: initial offer)
to the player’s agent, which was sent back for revision and amendments.
2.
On 4 August 2020, Mr B sent the player’s agent an invitation letter issued by the club to travel to
Country B “to negotiate for transfer of professional Player A”.
3.
On 4 August 2020, Mr B sent the player’s agent the following offer for the player (hereinafter: offer):
“To: Mr B
Re: Player A
Dear Sir,
We as Club B, hereby would like to offer a professional contract for the period of two plus one years
(2020-2022 seasons plus one season) to Player A. 04.08.2020.
After many deliberations and consultations with our administration, we have agreed to make the
following offer:
For 2020-2021 Season,
450.000 EUR as 10 months' salary,
Total 450.000 EUR.
For 2021-2022 Season
475.000 EUR as 10 months' salary,
Total 475.000 EUR.
If player plays 20 games in 2021-2022 Season, the contract, between parties will automatically extend
one more year to 2022-2023 season.
If the contract extends automatically for 2022-2023 season:
500.000 EUR as 10 months' salary,
Total 500.000 EUR.
The club declares, agrees and undertakes for the player for his transportation and accommodation as
agreed when the contract is effective.
The dates of payments will be discussed in further negotiations.
This offer is valid for next 48 hours. The player must be notified in writing of his answer.”
4.
On 5 August 2020, the player’s agent replied to the club as follows:
“On behalf of my exclusive client Player A we accept the salary terms and the finer details mentioned in
your clubs letter of offer dated 4.08.2020 however this is all subject to all final terms which include the
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accommodation, transportation, club bonuses and provisions which we will discuss and finalise when
we arrive in City B, Country B.
I would also require that the club arranges the flight and accommodation of Player’s Agent A (player’s
exclusive agent) to travel from City A to City B to conclude the final negotiations and signing of the
players official contract with Club B”.
5.
According to the player, “on or about 14 August 2020, the club advised the Player’s Intermediary that
it had elected not to proceed with the Player’s employment”.
6.
On 15 August 2020, the player sent a letter to the club insisting that a binding employment contract
existed. In this letter, the player requested the club to “arrange travel for the player” in order to execute
the contract until 19 August 2020.
7.
On 20 August 2020, the player terminated the contract with the club due to its “serious unilateral
breach”.
8.
On 4 September 2020, the player signed a contract with the Country C club, Club C, valid as from 4
September 2020 until 31 December 2020, including a monthly salary of Country C Currency 70,000
(approx. EUR 9,400).
9.
On 14 October 2020, the Claimant lodged a claim against the Respondent for breach of contract,
requesting compensation for breach of contract in the amount of EUR 1,387,372 as well as interest
“at the prevailing rate” as of 20 August 2020.
10. In his claim, the player argued that a binding employment contract was concluded when he accepted
the club’s offer within the stipulated time-limit and that the club breached such contract subsequently.
11. The player further pointed out that he travelled to Country B and stayed in a hotel in City B2 while
waiting for the club to contact him.
12. On account of the above, the player claims compensation corresponding to the total value of the
contract (EUR 1,425,000) less the value of his new contract (EUR 37,628).
13. In its reply to the claim, the club rejected the player’s claim and denied having offered a contract to
the player.
14. In this regard, the Respondent pointed out that the addressee of the offer was not the player’s agent
and that “a contract proposal has been made to Mr B for the Player A. However, contrary to what is
claimed, the signature and the name of the representative are not present in the document”.
15. Furthermore, the Respondent submitted a list of its board members and held that Mr B “is not an
authorized person to represent” the club.
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16. Moreover, the club held that the offer was not signed and therefore cannot be valid.
17. In his replica the player reiterated his position and rejected the club’s argument that Mr B was not
acting on behalf of the club.
18. In this regard, the player held that Mr B acted on behalf of the club during the negotiations. The
Respondent’s argument that Mr B is not a member of its board does not proof that he was not acting
on their behalf, since it is common practice for club’s to work with intermediaries.
19. Furthermore, the player pointed out that the offer bears the letterhead of the club and if the
Respondent now alleges that said document was forged then it would carry the burden of proof to
do so.
20. The player further held that a stamp of the club on the offer is sufficient and that the absence of a
signature shows the bad faith of the club in order to try to “opt-out” of the document, if needed. Such
behaviour cannot be supported.
21. On account of the above, the player argued that the offer is valid and binding since he accepted it
within the time-limit set.
22. In its duplica, the club reiterated its position and denied again having empowered Mr B to act on its
behalf.
23. The club pointed out that it was never in contact with the player, that it does not know Mr B and that
the offer does not contain a signature of any person empowered by the club.
24. Moreover, the club held that the document might be “fabricated” and that the player carries the
burden of proof to establish the contractual relationship.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, the Chamber took note that
the present matter was submitted to FIFA on 14 October 2020. Consequently, the DRC concluded that
the October 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is 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 (edition February 2021), the Dispute Resolution Chamber is
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competent to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension.
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 Player (edition February 2021), and considering that the present claim was
lodged on 14 October 2020, the June 2020 edition of said 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the
Regulations, any documentation or evidence generated or contained in the Transfer Matching System
(TMS).
5.
First of all, the members of the Chamber noted that the Claimant lodged a claim against the
Respondent maintaining that a valid and binding employment contract was concluded between the
parties since he allegedly accepted the contract offer submitted by the Respondent on 4 August 2020.
In this respect, the Claimant asks to be awarded compensation for breach of contract.
6.
The Chamber then noted that the Respondent, for its part, rejected the player’s claim and argued that
it never made such an offer and that it did not empower the intermediary to do so.
7.
From the outset, the members of the Chamber highlighted that there does not seem to be any
disagreement between the parties as to the fact that the offer of the alleged contract were not
performed, including the payment of the remuneration established therein. The fundamental
disagreement between the Claimant and the Respondent – and the central issue to the present dispute
– is whether the offer dated 4 August 2020 and the player’s answer accepting it, established a valid
and binding employment contract between the parties.
8.
Consequently, the Chamber first and foremost, focused its attention on the question as to whether a
legally binding employment contract had been concluded by and between the Claimant and the
Respondent.
9.
At this point, the DRC deemed important to highlight that, in accordance with its well established
jurisprudence, in order for an employment contract to be considered as valid and binding, it needs to
contain the “essentialia negotii” of an employment contract, such as the parties to the contract and
their role, the duration of their employment relationship as well as the remuneration. Moreover, the
members of the Chamber highlighted that the denomination of the document is not an element of
validity. In this context, after a careful study of the offer presented by the Claimant, the Chamber
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concluded that all such essential elements are included, in particular, the fact that the relevant offer
establishes a time period for the contractual relationship, and the financial terms, i.e. a salary.
10. In this regard, the Chamber established that the offer as such contained all “essentialia negotii” of a
contract and therefore represents a contract offer.
11. However, the DRC took note of the Respondent’s argumentation that it never issued such offer, nor
empowered Mr B to submit it to the player. Furthermore, the Chamber took notice of the argument
that such offer was not signed.
12. In this regard, the members of the Chamber examined the offer as well as the circumstances
surrounding it in detail and noted that the documents submitted by the player, i.e. the initial offer, the
invitation letter and the offer) are all issued on the official letterhead of the club and that none of the
documents are signed by a person, but contain the club’s stamp. Taking into account those very
specific circumstances, especially the official letterhead and the club’s stamp on the offer, the Chamber
concluded that the club wanted to sign the player, but then, in bad faith, changed its mind, after the
player accepted the terms as stipulated in the offer.
13. Therefore, on account of the above, the DRC established that a valid and legally binding employment
contract had been concluded between the Claimant and the Respondent for the period between 5
August until the end of the season 2021/2022. The Chamber decided not to take into account the
extension option provided for in the offer.
14. In this regard, the Chamber went on to analyse as to whether such contract had been breached and,
in the affirmative, which party is to be held liable for breach of contract.
15. In this context, the Chamber was eager to emphasize, once established that the parties concluded a
valid and legally binding contract, that the Respondent had not performed any of its obligations under
said agreement and the DRC considered that it did not have just cause not to execute the contract
which unavoidably, leads to the decision that such contract was breached by the Respondent.
16. On account of the above circumstances, the Chamber established that the Respondent had obviously
no longer been interested in the Claimant’s services by sustaining that no valid employment contract
existed between the parties and failing to remit any of the Claimant’s salaries. The Chamber concluded
that such conduct clearly constitutes a breach of contract and, accordingly, decided that the
Respondent has produced the premature termination without just cause of the employment contract
entered into between the parties.
17. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that
the Claimant is entitled to receive compensation for breach of contract from the Respondent.
18. In continuation, the Chamber focused its attention on the calculation of the amount of compensation
for breach of contract in the case at stake. In doing so, the members of the Chamber firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation
shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the
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dispute, with due consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including, in particular, the remuneration and other benefits due to the
Claimant under the existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the contractual breach falls within
the protected period.
19. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether
the pertinent employment contract contains a provision by means of which the parties had beforehand
agreed upon an amount of compensation payable by the contractual parties in the event of breach of
contract. In this regard, the Chamber established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
20. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the other parameters
set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into account at the discretion
of the deciding body. In this regard, the Dispute Resolution Chamber emphasised beforehand that
each request for compensation for contractual breach has to be assessed by the Chamber on a caseby-case basis taking into account all specific circumstances of the respective matter.
21. The members of the Chamber then turned their attention to the remuneration and other benefits due
to the Claimant under the existing contract and/or the new contract, which criterion was considered
by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that
the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract, if any, in the calculation of the amount of compensation.
22. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to
the player under the terms of the employment contract as from the date of termination with just cause
by the Claimant until its natural expiration. Furthermore, the Chamber took into account the amount
claimed by the player and consequently, the Chamber concluded that the amount of EUR 925,000
serves as the basis for the final determination of the amount of compensation for breach of contract
in the case at hand.
23. In continuation, the Chamber verified as to whether the Claimant had signed an employment contract
with another club during the relevant period of time, by means of which he would have been enabled
to reduce his loss of income. According to the constant practice of the DRC, such remuneration under
a new employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to mitigate his
damages.
24. In this respect, the Chamber noted that the Claimant, on 4 September 2020, signed a contract with
the Country C club, Club C, valid as from 4 September 2020 until 31 December 2020, including a
monthly salary of Country C Currency 70,000 (approx. EUR 9,400). Therefore, the mitigated amount
of EUR 37,600 has to be deducted.
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25. Consequently, on account of the above-mentioned considerations, the Chamber decided that the
Respondent must pay the amount of EUR 887,400 as compensation for breach of contract to the
Claimant, which is considered by the Chamber to be a fair and reasonable amount.
26. In addition, taking into consideration the player’s claim, the Chamber decided to award the Claimant
interest at the rate of 5% p.a. as of the date of the claim until the date of effective payment.
27. The DRC concluded its deliberations by rejecting any further claim of the Claimant.
28. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred
to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent
FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party
to pay the relevant amounts of outstanding remuneration and/or compensation in due time.
29. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the Respondent. More in particular, the DRC pointed out that,
against clubs, the sanction shall consist in a ban from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods.
30. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does
not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant,
following the notification of the present decision, communicates the relevant bank details to the
Respondent, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
31. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the
Regulations.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, the following amount:
- EUR 887,400 as compensation for breach of contract plus 5% interest p.a. as from 14 October
2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this decision
to [email protected], duly translated, if applicable, into one of the official FIFA languages (English,
French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This 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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