Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 May 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Eirik Mons en (Norw ay ), member
Todd Durbin (US A), member
Pav el Piv ov arov (Russ ia), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
According to the Player of Country B, Player A (hereinafter: the Claimant), on 12 May
2016, he signed an employment contract (hereinafter: the alleged contract) with the
Club of Country D, Club C (hereinafter: the Respondent), valid as from 1 June 2016
until 31 May 2018.
2.
In accordance with the alleged contract, the Claimant was entitled to the total amount
of EUR 190,000, corresponding to:
EUR 90,000 for the season 2016/2017, payable in 10 monthly salaries of EUR 9,000 as
from August 2016 to May 2017, due on the last day of each month.
EUR 100,000 for the season 2017/2018, payable in 10 monthly salaries of EUR 10,000
each as from August 2017 until May 2018, due on the last day of each month.
3.
On 10 June 2016, the Respondent addressed the Embassy of Country D in Country B in
writing, filing a request for the Claimant “to visit Country D from 21 June 2016 to 21
September 2016”. In accordance with the letter, the Respondent requested said
embassy to “please make all necessary arrangements for [the Claimant] to take visa for
multiple entries for Country D to participate in our football team’s training program
because he already signed a contract with our team. Our club has the responsibility for
the transfer, accommodation and him departure from Country D“.
4.
On 23 June 2016 the Claimant signed a rental agreement for an apartment in Country
D valid until 27 June 2017.
5.
On 23 June 2016, the Claimant received EUR 3,150 from the Respondent “on a/c for
salary”.
6.
On 4 July 2016, the Respondent sent an e-mail to the Claimant, reading as follows:
“please find attached the contracts of Player A. Please check if is ok… the gross
amount I will have it until tomorrow”. According to the Claimant, he received via this
e-mail address another employment contract (hereinafter: the second alleged
contract) for him to sign, valid as from 1 July 2016 until 31 May 2018.
7.
In accordance with the second alleged contract, the Claimant was entitled to:
EUR 8,200 per month as from 31 August 2016 until 31 May 2017 “with a grace
period of 60 days”;
EUR 9,000 per month as from 31 August 2017 until 31 May 2018 “with a grace
period of 60 days”.
8.
The second alleged contract further entitled the Claimant to EUR 8,000 at the date of
signature.
Player A, Country B / Club C, Country D
Page 2 of 10
9.
In accordance with the second alleged contract, “the present contract is regulated by
the provision of the Standard Employment Contract […]. The Terms of the Standard
Employment Contract constitute an integral part of the present Contract having full
and direct implementation.”
10.
On 11 April 2018, the Claimant lodged a claim against the Respondent in front of FIFA,
requesting the total amount of EUR 186,850, consisting of:
EUR 13,050 as outstanding remuneration, corresponding to the salary of August
2016 in the amount of EUR 8,200 and EUR 8,000 due at the signing of the second
alleged contract, minus EUR 3,150 paid to the Claimant, plus 5% interest p.a. as
from 1 September 2016;
EUR 173,800 as compensation for breach of contract and corresponding to the
residual value of the second alleged contract as from the end of August 2016, plus
5% interest p.a. as from the date of the claim.
11.
More specifically, the Claimant argued that he sent back the alleged contract signed
by him to the Respondent on 18 May 2016, but never received a copy signed by the
Respondent. The Claimant further alleged that the Respondent paid him flight tickets
for him to go to Country D, and that his signature was announced on the
Respondent’s media. The Claimant argued that he signed a rental agreement for an
apartment with one year duration and that a member of the Respondent was with
him as witness and signed the rental agreement as well. According to the Claimant,
the Respondent informed him in mid-august 2016 that it was no longer interested in
his services. The Claimant further argued that the Respondent had proposed to
terminate the alleged contract against the payment of 2 monthly salaries paid to him.
12.
The Claimant argued that he participated in the Respondent’s training camp before
the beginning of the season, signed a rental agreement for a year with a member of
the Respondent’s management, received a partial salary payment and, even though he
does not have a contract signed by both parties, the alleged contract should be
recognized as valid. Moreover, according to the Claimant, the said alleged contract
had been terminated without just cause by the Respondent. The Claimant added that
he left the country on 31 August 2016 as the transfer window was coming to an end
and he had no certainty that the Respondent would comply with its contractual
obligations.
13.
Furthermore, the Claimant recalled that he had a conversation via WhatsApp with
Member E, allegedly a member of the Respondent, who replied, when asked about
the Claimant’s alleged contract, “I make your contract… I spoke with the account
department and I will let you know about your money”.
14.
In reply, the Respondent argued that the parties never signed a contract, and that the
Claimant was invited to the Respondent for a test to determine whether he could be a
good fit for the team. Regarding the letter sent to the Embassy of Country D in
Country B for the Claimant’s VISA, the Respondent argued that it was only a request
Player A, Country B / Club C, Country D
Page 3 of 10
for a visitor permit, with a maximum duration of 3 months and was needed to test the
Claimant in Country D. The Respondent further argued that the flight tickets had been
paid in order for the Claimant to be tested in Country D and a return flight for the
date of 19 July 2016 had been also booked. Moreover, the Respondent explained that
the rental agreement provided by the Claimant was not signed by the landlord and, as
such, could not be considered valid.
15.
The Respondent acknowledged having remitted EUR 3,150 to the Claimant, but
explained that it was just to cover the Claimant’s living costs in Country D during the
test period. The Respondent argued that the payment of EUR 3,150 could only be
considered as an advance payment on salary if the Respondent and the Claimant had
agreed to enter into an employment relationship.
16.
The Respondent argued that the e-mail of 4 July 2016 (cf. supra point I.6.) proves that
no contracts had been signed by the parties beforehand. Regarding the second
alleged contract, the Respondent held that there are “too many differences from the
previous agreement dated 12 May 2016”, including the dates and the salaries.
17.
Regarding the correspondence via WhatsApp of the Claimant with a member of the
Respondent, the Respondent claimed that the messages of one of its employees do
not bind it, and further argued that, in any case, the sentence “I make your contract”
proved that no contract had been signed by the parties beforehand. The Respondent
opposed that, since no contract had been signed, it could not have made a
termination proposal to the Claimant, and that in any case the Respondent “is not
bound with the [Claimant] into any employment relationship due to the
misrepresentation of his agent’s to him”.
18.
Lastly, the Respondent emphasized that the Claimant left the country on 19 July 2016
and joined a new club in August 2016 and that, before lodging the claim in front of
FIFA, he had never put the Respondent in default or contacted it regarding this issue
and that the claim had been lodged almost 2 years after the elements giving rise to
the dispute occurred.
19.
In his replica, the Claimant affirmed that the VISA request explicitly said that he
“already signed a contract with our team”, and did not make any mention of a test.
The Claimant argued that the request for a touristic VISA was a normal way for the
Respondent to be able to first get him in the country quickly and then request a work
VISA. The Claimant added that, in order to acquire a tourist VISA, a return ticket is
needed.
20.
The Claimant further rejected the Respondent’s argumentation that he left the
country on 19 July 2016, claiming that he left on 31 August 2016 only.
21.
The Claimant reiterated that the Respondent had posted on its social media his signing
and never retracted such information. The Claimant underlined that the payment of
EUR 3,150 had been marked as a salary.
Player A, Country B / Club C, Country D
Page 4 of 10
22.
Furthermore, the Claimant held that he contacted Member E on 21 July 2016
requesting a copy of the alleged contract signed by the Respondent, and that she
replied “when you will be back I give you. You have to come to my office”.
23.
In continuation, the Claimant considered that, although he does not have a copy of
the alleged contract signed by both parties, all of the above-mentioned elements
constitute a body of evidence of the existence of an employment relationship.
According to the Claimant, the alleged contract dated May 2016 contained the
essentialia negotii of an employment contract, with its duration, salaries, and essential
obligations of the parties, and was accepted by him in May 2016 with his signature
and was therefore binding since that date.
24.
Moreover, the Claimant provided a copy of the rental agreement signed by the
landlord, himself and a member of the Respondent.
25.
Lastly, the Claimant held that him and his agent complained about the situation by
contacting members of the Respondent, such as Member E or the coach but
considered that the Respondent had lost every interest in him, and that was the
reason why he left the country on 31 August 2016.
26.
In its duplica, the Respondent held that the Claimant did not provide any
substantiated evidence that he had left the country on 31 August 2016, and that,
should the DRC consider that he stayed until that date, nothing could link his alleged
stay in the country to the Respondent.
27.
Regarding the rental agreement, the Respondent considered that it was a contract
that did not bind it, regardless of the fact that one of its representatives was present
as witness at the moment such agreement was signed.
28.
Regarding the payment of EUR 3,150, the Respondent still acknowledged making such
payment but contested the payment receipt, as it makes no mention of the
Respondent, with no logo of the Respondent “also not any other evidence indicating
the nature of this document”. The Respondent reiterated that had an employment
contract been signed following the test of the Claimant, that amount would have
been deducted from the 1st salary of the Claimant, but according to the Respondent,
that never happened.
29.
In its duplica, the Respondent introduced an argument concerning the admissibility of
the claim, maintaining that FIFA had no competence over this dispute. The
Respondent argued that, should the DRC “accept the existence of the alleged
employment contract dated 01/07/2016”, in application of the second alleged contract,
which refers to the Standard Employment Contract of Country D, FIFA is not
competent. The Respondent held that the Standard Employment Contract provides the
following: “Any employment dispute between the [Respondent] and the [Claimant]
shall fall under the exclusive jurisdiction of the National Dispute Resolution Chamber
of the Football Association F and shall be resolved according to the applicable
regulations of the Football Association F”.
Player A, Country B / Club C, Country D
Page 5 of 10
30.
According to the information available on the Transfer Matching System (TMS), on 29
August 2016 and modified on 17 January 2017, the Claimant and the Club of Country
G, Club H, signed an employment contract valid as from the date of signature until 29
May 2017 for a total remuneration of EUR 20,000. On 12 August 2017, the Claimant
and the Club of Country J, Club K signed an employment contract valid as from 13
August 2017 until 12 June 2018, in accordance with which the Claimant was entitled to
a monthly remuneration of USD 8,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 11
April 2018. Consequently, the DRC concluded that the 2018 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 2019), the
Dispute Resolution Chamber is, in principle, competent to deal with the matter at
stake, which concerns a dispute with an international dimension between a Player of
Country B and a Club of Country D in relation to an alleged employment relationship
between the parties.
3.
Having said that, the Chamber recalled the Respondent’s last position that, should the
DRC consider that an employment contract had been entered into by and between the
Claimant and the Respondent, it contested the DRC’s competence in favour of
deciding bodies of the Football Association of Country D referring to the contents of
the Standard Employment Contract.
4.
In this regard, the Chamber concluded that the relevant jurisdiction clause invoked is
not directly contained in any of the two alleged contracts produced in the course of
the proceedings. Moreover, the DRC observed that the Respondent raised its
argument on the competence only with its second submission. In reply to the claim, in
fact, the Respondent only took position on the substance of the matter, without
challenging FIFA’s competence and, therefore, implicitly accepting it.
5.
Consequently, the members of the Chamber confirmed that the DRC is competent to
deal with the present matter in accordance with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players.
Player A, Country B / Club C, Country D
Page 6 of 10
6.
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. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2019),
and considering that the present claim was lodged on 11 April 2018, the 2018 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as
to the substance.
7.
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.
8.
Having said that, the members of the Chamber acknowledged that, according to the
Claimant, on 12 May 2016 he had concluded an employment contract with the
Respondent valid as from 1 June 2016 until 31 May 2018, in accordance with which the
Respondent allegedly had undertaken to pay him a total remuneration of EUR
190,000. According to the Claimant, the Respondent was not interested in his services
after the alleged signing of the employment contract and, therefore, the Claimant
asked to be awarded compensation for breach of contract by the Respondent in the
amount of EUR 186,850, as EUR 3,150 had already been paid to him.
9.
On the other hand, the DRC noted that the Respondent, for its part, categorically
denied the conclusion of an employment contract with the Claimant. The Respondent
admitted that it had tested the Claimant, paid him the amount of EUR 3,150 in order
to cover his living costs during the trial period but that, eventually, the said test did
not prove to be conclusive and the parties did not sign any contract.
10.
In light of the above, the members of the Chamber observed that the pivotal issue in
this dispute, considering the diverging position of the parties, was to determine
whether or not an employment contract had been concluded between the Claimant
and the Respondent. The DRC further observed that, only if this was to be answered in
the affirmative, it would be necessary to determine whether the contract had been
terminated without just cause by the Respondent as claimed by the Claimant and, if
so, to decide on the consequences thereof.
11.
Having said that, 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 DRC to conclude that it was up
to the Claimant to prove that the employment contract, on the basis of which he
claimed compensation for breach of contract from the Respondent, indeed existed.
12.
Having stated the above, the Chamber recalled that the Claimant maintained that the
parties had signed two contracts, one in May 2016 and one in July 2016, and that the
Player A, Country B / Club C, Country D
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Respondent had asked him to fly to Country D and, to that end, had provided him
with a VISA, plane tickets and even paid him EUR 3,150. The Claimant was not able to
provide an employment contract signed by both parties. However, he submitted a
series of documents in support of his claim, which were in continuation examined by
the members of the Chamber.
13.
First of all, the copy of the alleged contract of July 2016 provided by the Claimant not
only lacks the Respondent’s signature, but also that of the Claimant. Consequently, the
Chamber decided not to take into account this document as from the start.
14.
That said, with regards to the contract allegedly concluded in May 2016, the members
of the Chamber noted that the Claimant had submitted, in brief: (i) a VISA request
made by the Respondent, stating that a contract had been signed; (ii) a receipt of
payment of EUR 3,150; (iii) a copy of a signed rental agreement for an apartment in
Country D for one year and (iv) extracts of WhatsApp messages exchanged with an
alleged representative of the Respondent, whereby the latter declared that she would
“make [his] contract”.
15.
In respect of the above, the members of the Chamber first and foremost observed that
the only signed document that had been provided by the Claimant was a copy of a
rental agreement for an apartment in Country D for one year. With regards to the
payment of EUR 3,150 performed by the Respondent towards the Claimant, the
Chamber observed that the Respondent contested that such remittance represented a
salary payment and that, in any case, the said amount does not correspond to any
salary under the alleged contract. According to the alleged contract, in fact, the first
monthly salary that the Respondent supposedly undertook to pay was EUR 9,000 on 31
August 2016. Consequently, the members of the DRC deemed that such payment could
not be allocated to any alleged monthly salary. In the DRC’s opinion, all that can be
inferred from the fact that the payment was “on a/c for salary” (cf. supra point I.5.) is
that, had the parties concluded a contract, that amount might have been deducted to
the Claimant’s first salary.
16.
Having said this, the DRC proceeded to examine the exchange of e-mails and
WhatsApp messages submitted by the Claimant, in order to verify whether it was
possible to retrieve an express acceptance of an offer containing the essentialia
negotii of an employment agreement.
17.
In this respect, the DRC acknowledged that the Respondent had initiated the
proceedings in order to obtain a VISA for the Claimant. However, regardless of the
reason indicated by the Respondent in its request, the Chamber observed that the
Respondent had requested a temporary VISA, with a duration limited to 3 months.
Considering that the alleged employment relationship was meant to run for 2 years, in
the Chamber’s opinion, the recalled request – if indicative of any intention from the
Respondent – was to allow the Claimant to reside in Country D during a trial period
rather than for the execution of a 2-year employment contract.
Player A, Country B / Club C, Country D
Page 8 of 10
18.
What is more, the DRC deemed important to underline that, from the documentation
produced by the Claimant, no written acceptance by both parties of a specific contract
emerges. In other words, the DRC concluded that, based on the documents provided
by the Claimant, it could not be proven that either of the parties had unequivocally
accepted in writing to bind themselves to an employment contract.
19.
In continuation, the Chamber turned its attention to the other documentation
produced by the Claimant. In this respect, the members of the DRC concluded that the
statements apparently made by the Respondent on social media, as well as the
reference made by a representative of the Respondent to a contract that would have
possibly been drafted in the future, cannot by themselves constitute conclusive
evidence strong enough to, substantially, replace the submission of a signed contract.
20.
Having duly taken note of the aforementioned documentation presented by the
Claimant, 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 to an
employment contract with the terms as described by the Claimant, it had to be
established, with comfortable satisfaction, by documentary evidence, that said parties
had indeed entered into a 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 the 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 DRC
must be very careful with accepting documents, other than the employment contract
duly signed by the parties, as evidence for the conclusion of a contract.
21.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove to the Chamber’s comfortable
satisfaction that the Respondent and the Claimant had validly entered into an
employment contract.
22.
What is more, even assuming that it was possible to establish on the basis of the
documents on file, other than an employment contract, that the parties had entered
into a labour agreement, the Chamber wished to highlight that it would have needed
to be in possession of such labour agreement in order to be able to properly assess the
claim of the Claimant.
23.
Furthermore, and only for the sake of argument, the Chamber took into account the
Claimant’s stance and observed that he never addressed the Respondent with a
default notice requesting the execution of any contract nor any formal termination of
the alleged contracts and lodged his claim almost 2 years after the events giving rise to
the dispute occurred.
24.
As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove that an employment contract had validly been concluded
between himself and the Respondent, there was no need for the Chamber to enter
Player A, Country B / Club C, Country D
Page 9 of 10
into the question of whether or not such alleged employment contract had been
breached.
25.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain all
the elements in accordance with point 2 of the directives issued by the CAS, a copy of which
we enclose hereto. Within another 10 days following the expiry of the time limit for filing
the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player A, Country B / Club C, Country D
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