Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 May 2014,
in the following composition:
Geoff Thompson (England), Chairman
Jahan van Gaalen (South Africa), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
Player A, country B,
as Claimant
against the club,
Club C, country D,
as Respondent
regarding a dispute arisen between the parties
I.
Facts of the case
1.
On 6 December 2010, the player from country B, Player A (hereinafter: the Claimant)
signed a letter (hereinafter: the first letter) issued by Mr E of the country D Players
Company. Pursuant to the letter, Mr E was offering the Claimant an employment
contract with the club from country D, Club C (hereinafter: the Respondent), while
specifying, inter alia, that: “Once signed the contract between the Player A (…) and
Club C from country D, the player is automatically agreed to sign a Two year contract
with Mr E to be his exclusively agent in Gulf Area and will paid 10% from his future
contracts in the area”.
2.
According to the letter, the Claimant will be entitled to receive USD 200,000 for the
2010/11 half-season and USD 500,000 for the 2011/12 season.
3.
Further to this, the Respondent addressed an “invitation letter” only signed by itself
(hereinafter: the invitation letter), dated 9 December 2010, stipulating that: “Club C
from country D is pleased to offer country D Players Company and Mr. E, (...) an
invitation letter to the Player A (..).”. According to the letter, “the contract includes”:
for the 2010/11 half-season a remuneration set at USD 350,000, of which USD 175,000
are to be paid as an advance payment and USD 175,000 to be split in monthly salaries;
and, for the season 2011/12, a remuneration set at USD 750,000. Furthermore, the
Respondent shall provide the Claimant with a fully furnished house, a car, and flight
tickets for him, his wife and children.
4.
Furthermore, it is stated in the invitation letter that “the professional contract will be
signed once the player pass throw medical and physical exam”.
5.
On 18 April 2011, the Claimant lodged a complaint against the Respondent before FIFA
requesting to be awarded the following: (i) USD 1,100,000 (plus 5% interest p.a.); (ii)
an equivalent to the expected bonus payments to be estimated by FIFA (plus 5%
interest p.a.); and (iii) moral damages. In addition, the Claimant demands sporting
sanctions to be imposed on the Respondent. The Claimant also requests the
reimbursement of costs incurred in relation to the proceedings.
6.
According to the Claimant, he was informed by an agent in the beginning of December
2010 about the Respondent’s interest in hiring him and that the conditions of the
contract would be formally sent by the club after the Claimant signed the first letter.
The Claimant signed the said letter on 6 December 2010 and afterwards received the
invitation letter, which, in the Claimant’s opinion, contains all the essential elements
of an employment contract. In particular, the Claimant deems that the invitation letter
constituted a binding pre-contract with the sole condition of successfully passing the
medical tests.
Player A, country B / Club C, country D
Page 2 of 10
7.
Subsequently, the Claimant arrived in country D on 30 December 2010 and successfully
underwent a medical test on 3 January 2011, after having trained with the Respondent
until then. However, the Claimant explains that on the same day and in spite of the
wording of the signed invitation letter, the Respondent informed him through a letter
that he would be taking part in a friendly match. The letter also read that “the contract
previously agreed will be discussed as soon as possible. In case of any damage during
the friendly match, the player will receive full treatment and the contract from the
club until his full recovery”. According to the Claimant, fearing that the Respondent
had decided to unilaterally change the conditions for the execution of the contract, he
refused to take part in the friendly match. The Claimant argued that his appearance in
a friendly game prior to the execution of the contract was not foreseen by the
invitation letter and that the execution of the contract could therefore not be made
conditional to his participation in such a match.
8.
The Claimant then apparently waited for the Respondent to fulfil its obligations
according to the invitation letter. However, instead, on 12 January 2011, the
Respondent allegedly informed the Claimant that it would not sign a contract with
him and offered him and his agent flight tickets in order to leave country D.
9.
According to the Claimant, given that the Respondent did not fulfil its obligations and
decided to terminate their contractual relationship based on the fact that he refused
to take part in the friendly match, the Respondent is liable for termination without
just cause.
10. Moreover, as the registration periods were soon to close, the Claimant states that he
was forced to sign with another club in order to avoid further damages. Coincidentally,
he signed with another club from country D, for half a season only and for a lesser
contractual value.
11. In its reply, the Respondent stresses that the first letter was not a pre-contractual
agreement but rather a pre-representation agreement with Mr E. In addition, the
Respondent stated that the invitation letter, which offered improved financial terms
to the Claimant, was only sent to the country D Players Company and Mr E and not
directly to the Claimant. Moreover, the said letter cannot be regarded as an
employment contract, because it only bears the signature and the stamp of the
Respondent and, in particular, because the latter was never informed of the Claimant’s
acceptance of the terms proposed.
12. In addition, the Respondent stated that it provided the Claimant and his agent from
country B with flight tickets to country D as well as accommodation.
Player A, country B / Club C, country D
Page 3 of 10
13. The Respondent states that the Claimant took part in training with the Respondent
until 3 January 2011 and successfully undertook the medical examination on that date.
Nevertheless, the contract could not be concluded at this point in time because there
were certain matters yet to be discussed requiring further negotiations. In addition,
the authorised signatory of the Respondent was allegedly not present on 3 January
2011.
14. It was then that the Respondent asked the Claimant to participate in a friendly match
on 3 January 2011. In relation to its letter by which it informed the Claimant that he
would be granted the necessary treatment in case of injury during the friendly match,
the Respondent states that said letter clearly illustrates that no employment
relationship had yet been established between the parties as well as conveying the
message that the Respondent was fully committed to sign an employment contract
with the Claimant as soon as possible and on the basis of the terms indicated
previously. In the Respondent’s view, the above-mentioned official letter cannot be
construed as to suggest that the Respondent had decided to unilaterally change the
conditions of the potential employment contract.
15. According to the Respondent, following the Claimant’s refusal to take part in the
friendly match, the Claimant never contacted the Respondent stating his
understanding that an employment contract existed, or requesting its execution by the
Respondent. Likewise, the Claimant did not ever present himself at the Respondent’s
premises.
16. The Respondent alleges that it then found out that the Claimant was allegedly
negotiating an employment contract with the club from country D, Club F. Thereupon,
the Respondent was no longer interested to sign the Claimant due to the Claimant’s
unprofessional and disrespectful attitude towards the Respondent. According to the
Respondent, the Claimant signed an employment contract with the club from country
D, Club F, on 30 January 2011.
17. With regard to the alleged contractual relationship, the Respondent stresses that no
written employment contract was ever signed between the parties and referred to art.
2 par. 1 of the FIFA Regulations on the Status and Transfer of Players, which requires a
written contract that binds the parties.
18. Moreover, according to the general legal principles and FIFA jurisprudence, a contract
is only valid if it bears the signature of both parties. However, the invitation letter does
not bear the Claimant’s signature but only the stamp and signature of the Respondent.
The Respondent further emphasises that, pursuant to FIFA Circular No 1171, the
invitation letter does not contain all essential elements in order to be regarded as a
valid contract.
Player A, country B / Club C, country D
Page 4 of 10
19. In this regard, the Respondent insists that the Claimant never submitted any
documentary evidence that proves his acceptance of the relevant financial conditions
proposed by the Respondent in the invitation letter. Consequently, without such
evidence of an acceptance by the Claimant there is no valid basis for alleging that a
contractual relationship ever existed between the parties.
20. In his replica, the Claimant states that he always acted in good faith and terminated a
contract in force with Club G, flew to country D, stayed in a hotel paid by the
Respondent, underwent the medical exam. Consequently, the Claimant expected that
the Respondent would fulfil its obligations. The Claimant stresses that the agreement
must be complied with and so rejected the Respondent’s argument according to which
a valid employment contract must contain all the elements set out in FIFA Circular No
1171. Similarly, the Claimant rejects that, as the Respondent is claiming, there were
other important/essential elements to be discussed.
21. In the Claimant’s view, the only formality pending would be the signature of the
standard contract. For the Claimant, the invitation letter gave him the assurance that
he was guaranteed the conditions set out in the said letter as long as he passed the
medical exams. Therefore, the Claimant considers that he was contractually bound to
the Respondent as from the moment he successfully passed the medical tests and that
the Respondent was not entitled to add new conditions to the execution of the
contract. As a conclusion, the Claimant maintains that the Respondent breached their
contractual relationship as from the medical tests since it failed to execute the contract
as agreed by the parties.
22. In addition, the Claimant admitted having entered a new employment contract at the
end of January 2011 with another club from country D, but such negotiation allegedly
started after the Claimant left country D and while he was in country B.
23. In its duplica, the Respondent argued that not only did the Claimant never accept the
offer contained in the invitation letter, but the circumstances also indicate that he did
not consider himself as bound by an employment contract. In particular, this is
corroborated by the Claimant’s refusal to take part in the friendly game, the fact that
he left country D with the flight tickets provided by the Respondent as well as the fact
that the Claimant never requested the execution of the alleged contract. In addition,
the fact that the medical exam was conducted almost a month after the invitation
letter was addressed to the Claimant also indicates that the invitation letter was merely
an offer. In this respect, it is common practice to have the Claimant pass a medical exam
prior to concluding an employment contract.
Player A, country B / Club C, country D
Page 5 of 10
24. The Respondent also refers to jurisprudence of the DRC and argues that all essentialia
negotii of an employment contract are not contained in the invitation letter since: a)
the document had not been signed by the Claimant; b) the document did not provide
for the exact starting and ending dates; c) the manner in which the remuneration for
the second sporting season was to be paid had not been set out in the document; and
d) the specific duration was not contained in the disputed document.
25. The Claimant stated that between January 2011 and December 2013 he was under
contract with the following clubs:
i.
the Club F from country D, from 2 February 2011 to 31 May 2011, for a total
contract value amounting to USD 300,000.
ii.
The Club H from country I, from 20 July 2011 to 18 January 2012, for a total
remuneration of USD 525,004 paid as follows: one advance payment amounting to
USD 300,000 to be paid upon signature of the contract; a lump sum of USD 100,000
to be paid three months later; and six monthly salaries in the amount of USD 20,834
each;
iii.
the Club J from country K, from 28 January 2012 to 31 December 2013, for a
monthly salary in the amount of USD 41,667.
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 18 April 2011.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. article 21 par. 1 and 2 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 2012) the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns a dispute with an international dimension between a player from country B
and a club from country D in relation to an alleged employment relationship between
the two aforementioned parties invoked by the Claimant.
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 (edition 2012),
and considering that the present claim was lodged on 18 April 2011, the 2010 version
Player A, country B / Club C, country D
Page 6 of 10
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,
and entering into the substance of the matter, the Chamber started by acknowledging
the above-mentioned facts as well as the documentation contained in the 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 the
assessment of the matter at hand.
5.
In this regard, the Chamber established that the core of the present dispute is to
determine whether a contractual relationship had come into existence between the
Claimant and the Respondent. Indeed, the Claimant, for his part expressed the view
that he and the Respondent were bound by an employment contract upon the
successful completion of the relevant medical tests, undergone on 3 January 2011. In
particular, the Claimant referred to the letter of invitation, dated 9 December 2010,
addressed to him by the Respondent, which provided the envisaged remuneration
that he would be entitled to for the second half of the 2010/2011 season and the
2011/12 season and stipulated that the parties would sign the relevant contract upon
the successful completion of the medical tests. Based on the content of the
aforementioned letter of invitation, the Claimant considered that undergoing of the
medical tests was to be considered as a condition to the conclusion of the
employment relationship between the parties. Therefore, the Claimant argues that
he and the Respondent were contractually bound as of 3 January 2011 in accordance
with the terms contained in the invitation letter, i.e. until the end of the 2011/12
season and for a total remuneration of USD 1,100,000. Moreover, the Claimant
explained that, in his view, by requesting him to take part in a friendly match on 3
January 2011, the Respondent was apparently making the conclusion of their
envisaged contractual relationship conditional to his participation in said match,
which had not been foreseen in the letter of invitation. Consequently, as the player
deemed that a contract existed as of 3 January 2011 and the club apparently did not
fulfil its obligations and later informed him that the ‘’standard contract’’ would not
be signed, the Claimant asked to be awarded, inter alia, compensation for breach of
contract by the Respondent in the amount of USD 1,100,000.
6.
The Dispute Resolution Chamber furthermore took due note of the fact that the
Respondent, on its part, categorically denied the conclusion of an employment
contract with the Claimant. The Respondent admitted having sent the letter of
invitation, dated 9 December 2010, to the player’s agent but insisted that the
envisaged contract had never been signed by the parties. In particular, the
Respondent claimed that the letter of invitation combined with the medical tests
undergone by the player did not constitute a binding employment relationship
Player A, country B / Club C, country D
Page 7 of 10
between the parties to the present dispute, since the invitation letter was not directly
addressed to the player, was only signed by it and the Claimant had neither signed
the document in question nor manifested in any way his agreement with the offer
contained therein. In this latter respect, the Respondent outlined that it had never
been informed by the Claimant of his alleged understanding that a contract existed
between them, or requested the Respondent to execute the payments as provided
for in the invitation letter and, in fact, entered into negotiations with another club
from country D soon after.
7. Having stated the aforementioned, the Chamber focused its attention on the
invitation letter dated 9 December 2010 and in particular analysed whether this
document contained all the essentialia negotii of an employment contract. In this
respect, the Chamber wished to emphasise that in order for an employment contract
to be considered as valid and binding, it must at least contain the name of the
parties, the object, the duration of the employment relationship, and the signature
of the parties.
8.
In view of this dissent between the parties in respect of the basic question as to
whether or not a valid 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 up to the Claimant to prove that the employment contract, on the basis of
which he claims compensation for breach of contract from the Respondent, was ever
concluded between the parties to the present dispute.
9.
Having stated the above, the Dispute Resolution Chamber recalled that the invitation
letter had not been signed by the Claimant and therefore lacked one of the essentiali
negotii, i.e. a valid signature, in order to be considered a valid employment contract.
10.
Notwithstanding the above-mentioned circumstance, the Claimant maintained that
the combination of the letter of invitation addressed to him by the Respondent and
the successful completion of medical tests - which he considers to be the sole
condition to the parties being bound by the terms set out in the invitation letter meant that they were contractually bound as of the date he underwent such tests.
11.
In this regard, the Dispute Resolution Chamber took note that the invitation letter,
stated, inter alia, that “the professional contract will be signed once the player pass
throw medical and physical exam” and the Claimant would be entitled to USD
350,000 for the second half of the 2010/11 season and USD 750,000 for the 2012/2012
season.
Player A, country B / Club C, country D
Page 8 of 10
12.
In continuation, the Chamber observed that the Claimant travelled to country D and
apparently trained with the Respondent from 30 December 2010 until 3 January 2011,
on which day he successfully underwent medical tests and was also asked to take part
in a friendly match on the same day. Furthermore, the Chamber emphasised that it
remains undisputed that the Claimant refused to take part in said friendly match and,
thereafter, the parties to the dispute never signed a formal contract, the Respondent
did not pay any amount to the Claimant and the latter accepted the flight tickets
offered by the Respondent and left country D. Equally, the Chamber noted that, prior
to lodging his claim in front of FIFA, the Claimant does not appear to have ever
informed the Respondent that he deemed that a contract existed, or requested the
Respondent to comply with the alleged contractual obligations, or provided his
services after 3 January 2011.
13.
Having duly taken note of the documentation submitted by each party and, in
particular, the undisputed facts as outlined above, 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- i.e. as per the invitation letter addressed by the
Respondent - it had to be established, beyond doubt, by documentary evidence, that
the parties to the present dispute 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 only conclude that an employment contract has been concluded
by the relevant parties whenever they have both signed a pertinent document and
had thereby doubtlessly expressed their agreement to be bound by the provisions of
the document in question.
14.
In view of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove beyond doubt the parties had
reciprocally agreed to be bound by the terms contained in the invitation letter. In
particular, Chamber deemed that taking into consideration the entire circumstances
in the present affair, and particularly the Claimant’s behaviour after 3 January 2011,
it was not possible to conclude that the Claimant had manifested an agreement to
be bound by the terms of the relevant letter addressed by the Respondent.
15. All the above led the Dispute Resolution Chamber to conclude that the claim of the
player has to be rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected.
Player A, country B / Club C, country D
Page 9 of 10
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit for
filing the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full
address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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