Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 June 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands), member
Jon New m an (United States of America), member
Wouter Lam brecht (Belgium), member
Pav el Piv ov arov (Russia), member
on the matter between the club,
Club A, Country B
as Claimant
and the player,
Play er C, Country D
as Respondent 1
and the club,
Club E, Country F
as Respondent 2
and the club,
Club G, Country H
as Respondent 3
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
Main facts of the m atter
1.
On 21 July 2014, the player of Country D, Player C, born on 5 March 1994
(hereinafter; the player or the Respondent 1) and the club of Country H, Club G
(hereinafter; Club G or the Respondent 3), concluded an employment contract
valid as from the date of signature until 30 June 2018.
2.
On 21 July 2017, the club of Country B, Club A (hereinafter; Club A or the
Claimant) sent an email to Club G, which contained a proposal for the definitive
transfer of the player. In said proposal, the Claimant proposed a transfer
compensation of USD 2,000,000.
3.
Subsequently, on 23 July 2017, Club A received a revised counteroffer from Club
G in relation to the definitive transfer of the player.
4.
On 24 July 2017, the Claimant sent the Respondent 3, via his mother and his
alleged agent, Mrs J (hereinafter: Mrs J), a document that contained, according
to the Claimant, the “essential conditions” of the employment relationship
between itself and the player (hereinafter: the precontract).
5.
On 24 July 2017, Mrs J and Club A signed the precontract. The precontract reads
as follows:
“[The Player]
By means of this letter, we inform you the duration and economic conditions
that will be established in the employment contract that will be concluded with
[Club A], which will be the following:
Employment contract for 3 years earning the following mounts:
For the first year the net amount of USD 550,000 plus the amount of
USD 100,000 which will be distributed in bonuses or incentives.
For the second year the net amount of USD 600,000 plus the amount of
USD 100,000 which will be distributed in bonuses or incentives.
For the first year (note: this point also mentions “first year”) the net
amount of USD 550,000 plus the amount of USD 100,000 which will be
distributed in bonuses or incentives.
(signature from Mrs J)
(signature)
___________________
_______________
“BY” [the player]
Mr. L
Legal Director
(Club A’ stamp)”
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
2/20
(free translation from Spanish)
6.
On 25 July 2017, the terms of the definitive transfer of the player from Club G
to Club A (hereinafter: the transfer agreement) were finalized.
7.
On the same day, i.e. 25 July 2017, the Claimant contacted Mrs J in order to
obtain a copy of the transfer agreement signed by the player and to send the
said copy to Club G. In this respect, on the same date, Mrs J submitted a copy of
the transfer agreement signed by the player to Club A.
8.
Along this line, the Claimant clarified that although the signature of the
transfer agreement occurred on 25 July 2017, 23 July 2017 remained as the date
of signature in the document.
9.
According to the transfer agreement, the object of the agreement was the
following:
1) “Club G hereby irrevocably commits to transfer the Player to [Club A] on
a permanent basis.
2) [Club A] hereby irrevocably commits to sign the Player from Club G on a
Permanent basis.
3) The Player irrevocably commits to and accepts his permanent transfer
from Club G to [Club A]. ”.
10.
Furthermore, Club A committed to pay to Club G a transfer fee of USD
1,600,000, “net without any deductions of solidarity contribution”, payable in 4
instalments as follows:
USD 100,000 by 31 August 2017;
USD 500,000 by 28 February 2018;
USD 500,000 by 31 August 2018;
USD 500,000 by 28 February 2019.
11.
In this respect, the transfer agreement stipulated that: “Failing by [Club A] to
respect any instalment…above, will result in the entire Transfer Amount being
due immediately. ”.
12.
Moreover, the transfer agreement provided that “any solidarity contribution
that shall be distributed by [Club A] according to art. 21 and Annexe 5 of the
FIFA Regulations on the Status and Transfer of Players shall be borne by [Club A]
and paid in addition to the Permanent Transfer Amount. ”.
13.
Additionally, the transfer agreement stipulated that:
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
3/20
“In the event that the Player is transferred to a third club during his registration
with [Club A], Club G shall receive a sell-on fee in the amount of 20% of the
transfer compensation agreed with any such club….
The sell on-fee shall apply also in the following circumstances:
a) In the event of the Player breaching the employment contract concluded
with [Club A]; in such case the Sell-on fee shall be calculated on the
amount due as compensation for such breach;….”.
14.
Still on the same day, i.e. 25 July 2017 and after sending the signed copy of the
transfer agreement to Club G, Club A received from Club G the declaration of
no existence of Third Party Ownership in respect to the player and a copy of the
Transfer Matching System (TMS) report of the respective transfer instruction.
15.
On 27 July 2017, the player went to the Consulate of Country B in Country M
(hereinafter: the Consulate), which issued the player’s work permit.
16.
Subsequently, after the player’s work permit was issued, the Claimant sent the
player a copy of the flight ticket to Country B scheduled for 27 July 2017
through the WhatsApp messaging application (hereinafter: WhatsApp),. In this
regard, the player confirmed receipt of the copy of the flight ticket and
informed Club A that he would arrive with “11 pieces of luggage”.
17.
Thereafter and on that same date, i.e. 27 July 2017, the player informed Club A
he would not board the flight to Country B.
18.
On 31 July 2017, Club A released an official statement wherein it is stated, inter
alia, that it has found out through the press that the player is in Country F
performing medical tests in order to sign with the club of Country F, Club E
(hereinafter: Club E or the Respondent 2).
19.
On 2 August 2017, the Claimant sent a letter to the Respondent 1 requesting
him, inter alia, to comply with the transfer agreement and the precontract,
providing the player a 48-hour deadline to do so.
20.
On the same date, 2 August 2017, the player replied to Club A’ letter rejecting
the request of Club A, arguing, inter alia, that he has “never signed an
employment contract with [Club A]” and informing it that he would not
continue his professional career with Club A, since it is his will to play with Club
E.
21.
On 2 August 2017, Club G sent a letter to Club A by means of which it informed
Club A that it has received a transfer proposal from Club E, but that it rejected it
since Club G considered the transfer agreement signed by itself, Club A and the
player to be valid and binding.
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
4/20
22.
On 4 August 2017, the Claimant sent a formal notice to the Respondent 2, by
means of which Club A requested Club E to inform it, within 24 hours, about the
player’s situation and about its position in the present scenario. Furthermore,
Club A urged Club E to respect the agreements concluded between Club A, Club
G and the player and in consequence, to abstain from concluding an
employment contract with the player.
23.
According to the information contained in the Transfer Matching System (TMS),
the player was registered with Club Aon 4 August 2017.
24.
Upon FIFA’s request, the Respondent 1 provided a copy of the employment
contract he signed with Club E on 31 July 2017, which was valid as from 20 July
2017 until 30 June 2021, i.e. 4 seasons, according to which he was entitled to
receive the following gross remuneration:
13 monthly instalments of USD 21.444.89 per season;
USD 652,909 per season, payable in 12 monthly instalments of USD
54,409.
In this respect, according to the Respondent 1, since the gross remuneration per
season amounts to “USD 931,692.37”, taking into account the tax regime in
Country F and other applicable deductions (note: documentation provided in
this respect), he receives a net amount of USD 596,283, per season.
25.
On 15 September 2017, Club G lodged a claim in front of FIFA’s Players Status
Committee against Club A in respect to the non-payment of the transfer
compensation agreed upon in the transfer agreement.
26.
Furthermore, according to the information contained in the TMS, on 28
September 2017, Club E was authorized by FIFA to provisionally register the
player, after the decision taken by the Single Judge of FIFA’s Players’ Status
Committee on 26 September 2017.
Claim of Club A
27.
On 23 August 2017, Club A lodged a claim in front of FIFA against the player,
Club E and Club G for breach of contract. According to its request for relief, the
Claimant requested the following:
To be awarded with compensation for breach of contract in the amount
of USD 5,134,658.18, plus 5% interest p.a.;
that the Player is ordered to pay the abovementioned amount;
to consider Club E jointly and severally liable for the payment of the
aforementioned compensation;
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
5/20
to impose sporting sanctions on the player due to the alleged nonfulfilment of contractual obligations with the Claimant;
to impose sporting sanctions on Club E and Club G as a consequence of
the alleged inducement on the player to terminate the employment
relationship with Club A;
to declare the suspension of the execution of the transfer agreement.
28.
In particular, Club A sustained that it became interested in the professional
services of the player during the month of July 2017, and that it started
negotiations, on the one hand, with Club G and, on the other hand, with the
player’s mother and alleged representative, Mrs J, in order to acquire the
player’s services.
29.
According to the Claimant, on 24 July 2017, the player agreed to the essential
conditions that would govern the employment relationship between the player
and Club A, as it held that on said date “Mrs J – the player’s mother – confirmed
to Club A the explicit acceptance of [the player] to the essential conditions
proposed by [Club A] by means of the remittance of a signed copy of the
[precontract] and a copy of the player’s passport…” in order for Club A to start
the necessary administrative procedures to obtain the work and residence
permit of the player in Country B.
30.
In this regard, Club A held that before announcing the signing of the player to
the press, it had asked Mrs J if she had any inconvenience with Club A
announcing the signing officially, to which she agreed by replying “Not at all.
As I said before, I gave my word because my son said [I] want to go to Club A”. I
apologize for the inconveniences caused by the club of origin that was handling
offers with a higher value but as you and I know, the player is the one who
decides” (free translation from Spanish).
31.
Furthermore, the Claimant referred to the transfer agreement and held that it
was finalized on 25 July 2017. In this respect, according to Club A, along with
the email by means of which Mrs J submitted a copy of the transfer agreement
signed by the Respondent 1 to Club A (cf. point 7. above), Mrs J forwarded Club
A a copy of the economic offers from Club E to both the player and Club G.
32.
Club A further explained that Club G had proposed a counteroffer for a transfer
compensation of USD 1,600,000, instead of its initial offer of USD 2,000,000,
since Club G allegedly held a debt towards the player in the amount of USD
400,000, and therefore, it was proposed that Club A would pay this amount
(USD 400,000) to the player directly.
33.
Subsequently, the Claimant explained that after the issuance of player’s work
permit and after providing the Respondent 1 with a flight ticket to Country B,
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
6/20
the player informed the Claimant on 27 July 2017, the planned date for the
flight to Country B, and without prior notice and without just cause, that he
would not board the flight to Country B.
34.
According to Club A, between 28 July 2017 and 30 July 2017, it took notice
through the press that the player, allegedly, had no intention to fulfil his
contractual obligations with Club A, that the Respondent 1 had passed a
medical test with Club E and that the player would sign an employment
contract with the Respondent 2 instead. Club A maintained that the player has
been training with Club E at least since 4 August 2017.
35.
In continuation, Club A argued that the precontract, in accordance with the
jurisprudence of FIFA’s Dispute Resolution Chamber and the Court of
Arbitration for Sport (CAS), has to be considered a valid and binding agreement
between the parties.
36.
Along this line, Club A held that player’s own actions ratified the validity and
the binding effects of the precontract. In this respect, Club A highlighted that
after the signature of the precontract, the Respondent 1 did the following:
-
-
committed to conclude an employment relationship with Club A by
means of the transfer agreement;
announced on 25 July 2017, through in his social media accounts, that
“he was starting a new chapter and challenges in his professional
career”;
travelled to Country M to go to the Consulate in order to obtain his
work permit;
confirmed that he would arrive to Country B with “11 pieces of
luggage”;
On 1 August 2017, sent a letter to Club G by means of which the
Respondent 1 requested Club G to disregard the transfer agreement
and to accept Club E’s proposal instead.
37.
Club A referred to the principles contained in FIFA’s Regulations on the Status
of Transfer of Players (hereinafter: the RSTP) in respect to contractual stability
and in particular to the consequences of terminating a contract without just
cause. In this respect, Club A maintained that the player’s actions contravene
the principle of pacta sunt servanda and that in consequence, the Claimant
should be entitled to receive compensation for breach of contract since the
player failed to fulfil his contractual obligations.
38.
With respect to compensation for breach of contract, Club A requested the
amount of USD 5,134,658.18, amount that was broken down as follows:
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
7/20
Incurred costs in the player’s acquisition in accordance with the transfer
agreement:
-
Value of the sporting services of the player:
-
USD 1,600,000 (transfer compensation);
5% of solidarity contribution i.e. USD 80,000;
20% of the amount of compensation in relation to what was
established in the transfer agreement (cf. point 13. above).
USD 2,525,000 as the average between the salary for 3 seasons in
accordance with the precontract, i.e. USD 2,100,000 and the salary
for 3 seasons in accordance with Club E’s alleged offer, i.e. USD
2,950,000.
Other costs:
-
USD 4,658.18 as flight tickets;
Specificity of sport: USD 500,000.
39.
Furthermore, Club A requested that in application of art. 17.2 of the RSTP, Club
E should be held jointly liable to pay this amount.
40.
Additionally, Club A deemed that Club G is directly responsible for the unilateral
termination of the employment relationship by the player, since it allegedly
authorized the Respondent 1 to travel to Country F and held negotiations with
Club E notwithstanding the transfer agreement previously signed with the
Claimant.
Reply of the play er
41.
In his reply to the claim, the Respondent 1 first underlined that he did not sign
the precontract. The player maintained that, in consequence, an essential
element would be missing in order to consider the precontract a valid and
binding employment contract.
42.
In this regard, the player held that Club A was aware that the precontract was
in fact signed by his mother, Mrs J, and not by him. Along this line, the
Respondent 1 referred some WhatsApp conversations between Club A and Mrs J
wherein it is stated the following:
“Mrs J: I signed [the precontract] as you would understand that in Continent P is
almost 3 in the morning. That is why I put By [the player]”.
Club A: “I understand and I am thankful” (free translation from Spanish).
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
8/20
43.
Furthermore, the player referred to the WhatsApp conversations between Club
A and Mrs J and maintained that Club A told Mrs J that the precontract was
necessary to continue with the immigration proceedings and was presented to
her as a formality to this end, rather than as an employment contract. The
player held that this is the reason why his mother signed the precontract.
44.
The Respondent 1 further sustained that his mother was not his agent, that she
was not portraying herself as such and that she did not have the required legal
capacity to sign an employment contract on his behalf.
45.
Moreover, the player acknowledged having signed the transfer agreement and
remarked that said document does not contain employment conditions.
46.
In this context, the player explained that the dispute arose when he went to the
Consulate of Country B in Country M. The player declared that while presenting
the documentation in the Consulate, he realized that the documentation that
was given to him by Club A did not reflect the real terms of the negotiations
between the parties. Along this line, the Respondent 1 stated that after the
finalization of the work permit, he spoke with his agent, Agent N and his
mother, Mrs J, who informed him that the precontract was sent to his mother as
an urgent document to proceed with the issuance of the work permit. The
player maintained that the precontract was not even submitted to the
Consulate and that instead a document titled “Carta oferta de empleo”, which
was sent to him by Club A to Agent N via email on 25 July 2017, for the purpose
of the obtaining the work permit was presented instead of the precontract. The
player explained that the document titled “Carta oferta de empleo” contained
a monthly salary of 100,000 in the currency of Country B, which is approximately
USD 5,500 according to the player.
47.
Finally, the Claimant explained that the reason he did not want to continue
with the negotiations with Club A is that Club A had to pay him USD 400,000 as
part of the negotiations regarding the transfer compensation with Club G and
said amount was not included in the precontract.
Reply of Club E
48.
Club E referred to the fact that the precontract is signed by Mrs J and not by the
player. In this respect, Club E maintained that Mrs J was not the player’s agent,
that she never portrayed herself as such and that she did not have a mandate to
represent him. Club E sustained that since the precontract is not signed by the
Respondent 1, there was no employment contract concluded between the
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
9/20
Claimant and the player, and therefore, Club A cannot claim there was a breach
of contract.
49.
According to the Respondent 2, the actions of the player such as going to the
Consulate to obtain a work permit and to the airport, as well as the Whatsapp
messages cannot be considered as conclusive evidence that an employment
contract was indeed signed between Club A and the Respondent 1.
50.
In this regard, Club E declared that in the absence of an employment contract
between Club A and the player, it tried to negotiate the player’s transfer with
Club G, which rejected the negotiations explaining that a transfer agreement
was already concluded with Club A.
51.
Moreover, Club E held that, at any rate, it has not induced the player to breach
any contract since both Club A and Club E were negotiating in parallel with
both the player and Club G, even before the transfer agreement was concluded,
fact which can be allegedly corroborated as Mrs J informed Club A about Club
E’s respective offers to Club G and to the player. Moreover, Club E maintained
that the fact that it made an offer to Club G, is incompatible with any
inducement.
52.
In this respect, Club E held that the player accepted its offer once he, allegedly,
“felt betrayed by Club A”, as the USD 400,000 that Club A was supposed to pay
him in accordance with the transfer agreement negotiations between Club G
and Club A, were not included in the precontract.
53.
In respect of the amount requested as compensation by Club A, Club E stated
that there is no documentary evidence regarding the flight tickets, and that the
requested amounts in connection with the sell-on fee and solidarity mechanism,
are either only due to Club G and/or have not been paid by Club A.
Reply of Club G
54.
55.
In its reply, the Respondent 3 first highlighted that although “it has no place in
the present dispute” since Club G is not the new club of the player, it
“acknowledges FIFA’s jurisdiction and accepts being part of this dispute…”.
As a remark, Club G referred to the fact that, on 15 September 2017, it lodged a
claim before FIFA’s Players’ Status Committee against Club A in relation to the
transfer agreement due to the non-payment of the agreed transfer
compensation (case ref. no. XXX). According to Club G, the reason that Club A
summoned Club G in the present case, “is to create a false prima facie reason to
avoid paying what is due…”.
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
10/20
56.
Club G explained that since it was not a party to the contractual relationship
between Club A and the player, it will refrain from entering into the substance
of the dispute and held that Club A’ arguments against Club G are groundless
since they consist only in assumptions.
57.
In this regard, the Respondent 3 sustained that the Claimant has failed to prove
its assumptions with documentary evidence, and that as a matter of fact, Club G
has timely fulfilled all of its obligations provided in the transfer agreement.
Moreover, Club G held that it has always considered the transfer agreement to
be valid and that it has clarified its position in this respect to Club E, by means
of an email on 28 July 2017, as well as to the player, by means of a letter dated
1 August 2017 and to Club Aon 2 August 2017.
58.
Club G held that art. 17 par. 2 and 4. of the RSTP, as well as art 18. par 3. of the
RSTP are not applicable to it in the present matter and therefore, it cannot be
held liable to pay compensation and sporting sanctions cannot be imposed on it
in the present dispute.
Replica of Club A
59.
In its replica, Club A sustained that since the player signed the transfer
agreement after the precontract, this fact ratifies the validity of the precontract.
60.
Furthermore, Club A argued that contracts are perfected when providing
consent, and that in the present case, at any rate, the player has at least
provided tacit consent to an employment relationship with the Claimant.
61.
Regarding the signature of the precontract, Club A argued that a defect in the
signature does not invalidate the consent that the player has given. Club A
stated that the player’s own actions reiterated his acceptance and consent to
the precontract, and that in accordance with the principle venire contra factum
propium, “no one may set himself in contradiction to his own previous
conduct”.
62.
Club A held that if the “malicious strategy” of the Respondent 1 is followed, it
would mean that the fulfilment of the precontract and the transfer agreement
would be up to his free discretion, since he has, allegedly, caused an absence in
the signature of the contract.
63.
Moreover, Club A argued that contrary to what the player and Club E sustained,
Mrs J in fact portrayed herself as the agent of the player, taking into account,
inter alia, the following:
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
11/20
all the communication between Club A and the player was held through
Mrs J;
the player provided personal documentation, such as his passport and the
transfer agreement, to Mrs J to be then sent to Club A;
Mrs J also, allegedly, established negotiations with Club E and also had
direct contact with Club G;
Mrs J presented herself as the exclusive agent of the player to Club A. In
this regard, Club A provided a document signed by Mrs J dated 22 May
2017 which reads as follows:
“22 May 2017
EXCLUSIVE AUTHORIZATION
I, [Mrs J],…in my capacity as the exclusive agent of [the player], authorize
Mr xxxx and Mr xxxx…to perform acts for his possible link to the
following clubs….:
- xxxx
- [Club A]
- xxxx
- xxxx
The present authorization will lose its validity…on 25 June 2017.
The explicit approval of the player and his agent is required for any
employment offer that would be sent to the abovementioned clubs….”
(free translation from Spanish).
64.
Along this line, Club A held that, taking into account the described scenario, the
Respondent 1 and Mrs J have created the appearance of a mandate and that
therefore, in good faith, the Claimant could reasonably believe that the player
would fulfil the precontract and the transfer agreement.
65.
In respect of the amount of USD 400,000 that the Claimant had to pay directly
to the player in accordance with the transfer agreement negotiations held with
Club G and that was not included in the precontract, Club A declared that if the
player would have fulfilled the precontract, this amount would have been
reflected in the respective employment contract. Club A questioned why the
player nor Mrs J asked the Claimant about this amount nor requested Club A to
provide an explanation in this respect.
66.
In respect of Club E’s inducement, Club A maintained that it is “unquestionable”
since from Club G’s reply it can be seen that Club E contacted Club G on 28 July
2017, i.e. after the signature of the transfer agreement.
67.
As to Club G’s reply, Club A repeated its previous arguments with regards to
Club G’s inducement.
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
12/20
68.
Finally, Club A requested, in a subsidiary request, to consider the transfer
agreement null, in case that it is considered that the player has not expressed its
consent to the precontract.
Duplica of the play er
69.
In his duplica, the player insisted in the argumentation presented in his reply to
the claim of Club A. In particular, the Respondent 1 insisted that Mrs J was not
authorized to sign an employment contact on his behalf and referred to the
document of 22 May 2017 (cf. point I.63. above) and held that according to this
document, the explicit and specific approval of the player was needed to
conclude an employment contract.
70.
Moreover, according to the player, it is common knowledge that Agent N was
acting in the negotiations with Club A as his agent, and Mrs J as his mother, and
therefore, there could not be any confusion regarding who was his agent and
who is his mother.
71.
Finally, the player held that in accordance with the RSTP, a valid employment
contract needs to be in writing and cannot be tacitly concluded.
Duplica of Club E
72.
In its duplica, Club E reiterated the argumentation contained in its respective
reply to the claim. According to Club E, the “great mistake of Club A” was
signing the transfer agreement without making it conditional to the existence
of an employment contract between the player and Club A.
73.
Moreover, Club E sustained that the elements brought up by Club Ain order to
prove that Mrs J portrayed herself as the player’s agent only prove that Mrs J
was acting in an advisory role but not that she had the faculty to represent the
player as his agent.
74.
Club E further sustained that following Club A’ line of reasoning that the
amount of USD 400,000 - due to the player as a result of the negotiations
between the Claimant and Club G for the transfer of the player - would be
included in the eventual employment contract, in that case, the precontract
does not have all the essential elements to be considered an employment
contract, regardless of the issue of the signature, since it does contain the
“total” and “real” remuneration of the player.
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
13/20
Duplica of Club G
75.
In its duplica, Club G insisted on its previous argumentation and further held
that the transfer agreement cannot be considered null. In this respect, it
sustained that unless the transfer agreement is explicitly made conditional upon
a player signing an employment contract with his new club, which according to
Club G did not occur in the case at hand, the transfer agreement and the
employment contract are independent from one another and the transfer
agreement must be considered fulfilled by the former club with the release of
the player.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 23 August 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
hereinafter: Procedural Rules) are 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 2018) 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 club of Country B, a player of Country D
a club of Country F, as well as a club of Country H.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter at hand. 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 (editions 2016
and 2018), and considering that the present claim was lodged on 23 August
2017, the 2016 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
Having established the foregoing, and entering into the substance of the
matter, the Chamber continued 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 for the assessment of
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
14/20
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.
In doing so, the Chamber first recalled that, prior to the events giving rise to the
present dispute, the player was bound by an employment contract with Club G.
During the month of July 2017, Club G and Club A entered into some
negotiations regarding the transfer of the player to Club A, leading up to the
conclusion of a transfer agreement on 25 July 2017, agreement which the player
also signed.
6.
The parties agree on the fact that on 27 July 2017 the player went to the
consulate of Country B in Country M and obtained a work permit. On that same
day, Club A sent him a flight ticket in order to travel to Country B, but later in
the day the player finally wrote to Club A to inform them that he would not
board the plane.
7.
Thereafter, on 31 July 2017, the player concluded an employment contract with
Club E although he was subsequently registered with Club A on 4 August 2017.
The Single Judge of the Players’ Status Committee ultimately authorised Club E
to register the player on a provisional basis on 26 September 2017.
8.
The Chamber noted that the Claimant lodged a claim before FIFA regarding
compensation for breach of contract, against the player, and his new club of
Country F, Club E, as well as against his former club of Country H, Club G. The
Claimant’s claim is based on the precontract which, in its opinion, is to be
considered a valid and binding employment contract.
9.
In this regard, the members of the Chamber acknowledged that, according to
the Claimant, although the player gave his consent to conclude an employment
relationship with it, the player did not fulfil his contractual obligations and
insteadsigned an employment contract with Club E. Consequently,
the
Claimant asked to be awarded compensation for breach of contract in the
amount of USD 5,134,658.18 to be paid jointly by the player and Club E.
Furthermore, the DRC observed that the Claimant requested sporting sanctions
to be imposed on all Respondents, as a consequence of the player’s breach of
contract and the inducement of both Club E and Club G on the player to commit
breach of contract.
10.
Moreover, it was duly observed that the Claimant made requests in relation to
the transfer agreement concluded with Club G for the definitive transfer of the
player from Club G to Club A; however, the Chamber duly noted the existence
of parallel proceedings before FIFA’s Players’ Status Committee in relation to a
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
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claim lodged by Club G against Club A in connection with said transfer
agreement (case ref. no. XXX). On the basis of art. 3 par. 1 of the Procedural
Rules in connection with art. 23 par. 1 as well as art. 22 lit. f) of the Regulations,
it is within the scope of said deciding body to address the respective requests in
relation to the mentioned transfer agreement which constitutes the basis of the
dispute between two football clubs affiliated to two different associations. In
this regard, the Chamber underlined that the Single Judge of the Players’ Status
Committee has passed a decision regarding the latter dispute on 5 June 2018.
11.
The DRC equally took due note of the fact that the Respondent 1, on his part,
had categorically denied signing an employment contract with the Claimant,
and held that in consequence he has not committed any breach of contract. In
particular, the Respondent 1 alleged that the precontract cannot be considered
a valid and employment contract since it is missing one essential element i.e. his
signature. Furthermore, the Respondent 1 asserted that his mother was not
mandated by him to sign the said document on his behalf.
12.
The members of the Chamber equally observed that the Respondent 2, on its
part, supported the argumentation of the player in the present matter, and
deemed that in absence of any valid employment contract concluded between
the Claimant and the Respondent 1, no breach of contract can be attributed to
the player and as a result, it cannot be held liable for the consequences of an
inexistent breach.
13.
The member of the Chamber also gave due consideration to the arguments of
the Respondent 3. Firstly, its assessment that “it has no place in the present
dispute” and secondly that it held, art. 17 par. 2 and 4. as well as art 18. par 3.
of the Regulations are not applicable to it, since Club G is not the player’s new
club and in consequence, it cannot be held liable for the consequences of a
breach of contract committed by the player.
14.
In view of aforementioned dissent between the parties,, the members of the
Chamber stressed they need to first determine the existence of a valid and
binding employment contract between the Claimant and the Respondent 1, in
order to enter into the question whether or not such alleged employment
contract had been breached by the player, on the basis of which compensation
for breach of contract is claimed by Club A.
15.
Having stated the above, the DRC recalled that Club A asserted that the
precontract of 24 July 2017 - which is quoted in point I./5. above - contains all
the essential elements to be considered a valid and binding employment
contract between the Claimant and the player. In this regard, the Chamber
observed that it remains uncontested that the precontract involving Club A and
the Respondent 1 has not been signed by the player himself, but by his mother.
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
16/20
16.
The Chamber also considered the Claimant’s argumentation, according to
which, although the player did not sign the precontract, his subsequent actions,
in particular the fact that he had signed the transfer agreement and that he had
obtained a work permit, had ratified the validity and the binding effects of said
document. In other words, the Claimant deems that, with such course of action,
the Respondent 1 had provided his explicit and/or tacit consent to conclude an
employment contract with Club A.
17.
What is more, the Chamber noted that Club A sustained that Mrs J had created
the appearance of a mandate and that, in consequence, in good faith it could
believe that the player would fulfil the precontract.
18.
Subsequently, the members of the Chamber recalled that, in turn, the player
vehemently denied giving consent to an employment contract with Club A, and
that in his view, the consent for an employment contract cannot be tacit and
needs to be done in writing, which did not occur in casu. Moreover, the DRC
observed that the Respondent 1 insisted that Mrs J was not authorized to sign
an employment contract on his behalf and therefore, Club A cannot rely on the
precontract as a basis to establish an employment relationship between the
parties. The Respondent 1 further maintained that in accordance with the
document of 22 May 2017 (cf. point I./63 above), his explicit and specific
approval was needed to conclude any employment contract.
19.
With this in mind, the Chamber found important to highlight that according to
the Respondent 1, the present dispute arose when he found out that the
precontract did not include the amount of USD 400,000, corresponding to an
alleged debt that Club G had towards him, and that this is the reason he did not
finalize an employment contract with Club A.
20.
In this context, the DRC recalled that Club A declared that if the player would
have respected the precontract, the amount of USD 400,000 would have been
included in the respective employment contract between the parties. In other
words, Club A confirmed that the payment of the amount of USD 400,000
would have been one of the terms of the employment contract.
21.
Having duly taken note of all the aforementioned arguments of the parties, the
majority of the members of the Chamber held the opinion that the Claimant
and the player had not reached an agreement on all the essential conditions of
an employment relationship and that the precontract, which is the only
document on file referring to contractual terms, could not be viewed as a valid
and binding employment contract. In particular, Club A’ statements regarding
the amount of USD 400,000led the majority of the Chamber to the conclusion
that the remuneration due to the player - which is to be considered one of the
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
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essential elements of an employment contract in accordance with the longstanding jurisprudence of the Chamber - was not reflected in the precontract.
22.
Furthermore, the majority of the Chamber emphasised that the precontract was
not validly signed by the player and thus, another essential element of a
contract was missing. Indeed, it remained uncontested that it was not the player
himself but his mother, Mrs J, who signed the precontract. In this respect, the
members of the Chamber 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 majority of the members of the DRC to conclude
that it was up to the Claimant to provide proof that the player had indeed
mandated his mother to conclude the precontract. Equally, Club A did not
provide evidence that the player had explicitly ratified the conclusion of the
precontract at a later stage; it would appear that Club A never requested said
ratification from the player.
23.
In continuation, the majority of the Chamber did not endorse Club A’ line of
reasoning that the player had committed himself to conclude an employment
contract by means of his own subsequent actions after his mother signed the
precontract. In fact, the majority of the Chamber was of the strong opinion
that, in the absence of an agreement on the essential conditions of an
employment contract between the parties, it cannot be established under which
contractual conditions the player would have been expected to commit himself
to.
24.
In the same way, the majority of the Chamber agreed that, taking due
consideration to the fact that the transfer agreement does not contain any
employment conditions that would have governed the employment relationship
between Club A and the player, it cannot be concluded that the signature of
the transfer agreement by the player alone would suffice to establish the terms
and conditions of an employment relationship between the parties.
25.
As a consequence, the majority of the members of the Chamber decided that, in
the absence of a valid and binding employment concluded between Club A and
the player, there was no possibility for the Chamber to enter into the question
as to whether or not such alleged employment contract had been breached.
Therefore, the majority of the Chamber came to the conclusion that the claim of
Club A has to be rejected.
26.
As a final remark, the DRC unanimously deemed important to stress that
although there is no regulatory or legal basis to sanction the player’s behavior,
in the Chamber’s view, the player in question did not show proper due diligence
in the negotiations with the Claimant with respect to the potential conclusion
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
18/20
of an employment relationship between them, taking into account that he had,
in principle, already consented to his transfer to the Claimant by signing the
transfer agreement together with his former club, Club G. That being said, the
Chamber still recognized that there is, on the other hand, an even higher duty
on a club to ensure that it properly secures a player’s signature of an
employment contract.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, 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
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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Club A, Country B / Player C, Country D, and Club E, Country F, and Club G, Country H
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