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 (US A), member
Wouter Lam brecht (Belgium ), member
Pav el Piv ov arov (Rus s 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
arisen between the parties
I.
Facts of the cas e
1.
According to the Player of Country B, Player A (hereinafter: the Claimant),
he and the Club of Country D, Club C (hereinafter: the Respondent), signed
an employment contract (hereinafter referred to as: the alleged contract)
on 8 June 2017, valid as from 1 July 2017 until 30 June 2020.
2.
According to the Claimant, the content of the alleged contract was
identical to that of the “Agreement on Professional Football Playing”
(hereinafter: the alleged agreement) which was allegedly sent via e-mail
on 6 June 2017 to his agent, Agent E, by the Respondent’s representative,
Representative F.
3.
In this respect, the Claimant submitted, inter alia, the following
documentation:
a. an exchange of e-mails, dated 23, 26 and 29 May 2017, between Agent
E and Representative F concerning negotiations about the financial
terms of a possible engagement of the Claimant with the Respondent;
b. an unsigned copy of the alleged agreement, dated 7 June 2017,
allegedly sent on 6 June 2017 via e-mail by Representative F to Agent E,
which document indicates, inter alia, the Claimant and the Respondent
as parties, a duration as from 1 July 2017 until 30 June 2020 and an
annual salary of EUR 94,800 plus EUR 10,000 for each contractual year;
c. a copy of an agreement, dated 8 June 2017, signed by and between the
agency of the Claimant’s agent, ‘World in Motion’ and the Respondent,
according to which the former represented, inter alia, that “this
Agreement shall not give rise to any obligation of the [Respondent] to
conclude the agreement with the [Claimant]”;
d. a picture of himself while signing a document taken from what was
claimed to be the Respondent’s website;
e. screenshots from the Respondent’s alleged website showing the
Claimant in a trophy room, apparently signing a document, with a
caption reading “Player A […] has joined Club C!”, plus Facebook and
Twitter accounts referring to an interview apparently given by the
Claimant after the alleged signing.
4.
According to the Claimant, pursuant to the alleged contract replicating the
content of the alleged agreement sent on 6 June 2017 by the Respondent’s
representative, he was entitled to, inter alia, an annual remuneration of
EUR 94,800 payable in monthly instalments in the amount of EUR 7,900 for
3 seasons.
Player A, Country B / Club C, Country D
2/11
5.
On 12 September 2017, the Claimant lodged a claim against the
Respondent in front of FIFA for breach of contract, requesting:
a. that the Respondent be ordered to pay EUR 331,800 as compensation
for breach of contract, plus 5% interest p.a. as of 7 July 2017, consisting
of EUR 94,800 for each of the 3 years plus EUR 47,400 for “specificity of
sport”;
b. that sporting sanctions be imposed on the Respondent.
6.
More specifically, the Claimant argued that, on 8 June 2017, after he had
successfully passed all the medical tests, the parties signed the alleged
contract replicating the content of the alleged agreement.
7.
In respect of the above, the Claimant explained that he was not in
possession of a copy of the alleged contract since, after the signature, the
Respondent’s representative allegedly had taken all the copies away.
8.
Moreover, the Claimant pointed out that the parties, through the abovementioned exchange of e-mails, had agreed on all the essentialia negotii
required in order for a contract to be legally binding.
9.
In continuation, the Claimant explained that, on 1 July 2017, he arrived in
City G in order to start the employment relationship and “tried to contact
the [Respondent], but nobody answered”. The Claimant further pointed
out that the Respondent replied to his offers of rendering his services only
after having been solicited twice in writing, asking him to provide a copy
of the employment contract. The Claimant added that, in reply to a third
correspondence, dated 4 July 2017, by means of which he again offered his
services threatening to lodge a claim before FIFA, the Respondent, on 7
July 2017, declared in writing that the Claimant had not passed the
medical and physical tests.
10.
The Claimant further argued that the Respondent’s position concerning his
unsuccessful medical examinations is contradictory, since on 8 June 2017,
i.e. the same day as the date of signature of the alleged contract, the
Respondent announced via its media channels that it had just signed a 3year contract with the Claimant in clear terms and without referring to any
future conditions.
11.
Moreover, the Claimant added that the Respondent’s stance violated art.
18 par. 4 of the FIFA Regulations on the Status and Transfer of Players
according to which “the validity of a contract may not be made subject to
a successful medical examination”, and that the club’s behaviour
constituted a case of venire contra factum proprium.
Player A, Country B / Club C, Country D
3/11
12.
The Claimant concluded that the club terminated the alleged contract
“without just cause through its implicit conduct on 7 July 2017”.
13.
In its reply, the Respondent asked that the Claimant’s claim be rejected
and, in the alternative, that the present matter be referred to the NDRC of
Country D.
14.
More in particular, the Respondent argued that the only undisputable fact
was that it had entered into negotiations with the Claimant’s agent in
order to explore the possibility of concluding an employment contract with
his client. However, the Respondent added that, from the beginning of the
negotiations, it had made it clear that, prior to the conclusion of an
employment contract, the Claimant had to pass medical tests. In this
respect, the Respondent pointed out that the medical tests took place in
two parts, a first one on 8 June 2017 and a second one on 28 June 2017
and that, due to massive overweight, the Claimant did not pass the second
test and he had been informed accordingly on the same day.
15.
In continuation, the Respondent explained that, as a result of the above, it
decided not to sign an employment contract with the Claimant.
Consequently, according to the Respondent and contrary to what the
Claimant claimed, no such contract exists.
16.
In addition, the Respondent explained that the above-mentioned
announcement on its official website was made only in future terms in
case the Claimant would sign the contract.
17.
Moreover, the Respondent added that the fact that it never affiliated the
Claimant was confirmed by a series of circumstances, namely: (i) the
Claimant signed a contract with the Club of Country H, Club J after having
failed said medical tests; (ii) on Club J’s official website “Club K” is
considered the Claimant’s former club rather than the Respondent, and (iii)
the Respondent was not requested to issue any transfer certificate in order
for the Claimant to sign with Club J.
18.
Furthermore, the Respondent denied that its stance constituted a case of
venire contra factum proprium, given that it had made it clear to the
Claimant’s agent during the negotiations that the conclusion of a contract
was subject to a successful medical examination. In other words, according
to the Respondent, what it had proposed to the Claimant was simply a
conditional offer.
19.
In any case, the Respondent added that, should the DRC deem instead that
an employment contract had been concluded between the parties, the
competence to hear the related matter would be of the “relevant
Player A, Country B / Club C, Country D
4/11
authorities/tribunals established within the Football Association of Country
D ([…] such as the DRC of the Football Association L and the Football
Arbitration Court of the Football Association L)”. In this respect, the
Respondent explained that the alleged agreement would contain a clear
arbitration clause in favour of an independent arbitral tribunal established
within the framework of the Football Association of Country D. More
specifically, the Respondent referred to the unsigned copy of the alleged
agreement submitted by the Claimant which, at Section 12, art. 8, reads as
follows: “Any disputes arising out of the Agreement shall be finally settled
by the Dispute Resolution Chamber of the Football Association of Country
D […] or Football Arbitration Court of Country D […] relevant to the
competence of this authorities”.
20.
In his replica, the Claimant reiterated his position and, in relation to the
Respondent’s subsidiary defence, argued that the FIFA DRC should be
deemed competent in light of the fact that: (i) the dispute is of an
international dimension; (ii) the Respondent did not challenge the FIFA
DRC competence in reply to the letter sent by the Claimant on 4 July 2017,
where the latter had clearly indicated he would lodge a claim before FIFA;
(iii) the NDRC of Country D does not fulfil the requirements of an
independent arbitral tribunal; (iv) the provision mentioned by the
Respondent does not make a clear reference to the NDRC of Country D.
21.
In continuation, the Claimant explained that, in its reply, the Respondent
did not contest the existence of an offer, the content of which he alleges is
the same as the one of the agreement which was allegedly signed by the
parties. Moreover, the Claimant argued that the announcement on the
English version of the Respondent’s website was in present and not future
or conditional terms.
22.
Finally, the Claimant pointed out that the results of the second medical
test could not affect the validity of the alleged contract since, by then,
according to him the alleged contract had been already signed. The
Claimant concluded that, in any case, his unconditional acceptance of the
Respondent’s offer is sufficient to deem the alleged agreement valid and
binding.
23.
In its duplica, the Respondent entirely reiterated the position expressed in
its reply to the claim.
24.
The Claimant informed FIFA that, on 9 August 2017, he signed a contract
with the Club of Country H, Club J, valid as from the date of signature until
30 November 2017 for a total remuneration of 99,035 and, on 8 January
2018, he signed a contract with the Club of Country D, Club K, valid as
from the date of signature until 30 June 2019 for a total remuneration of
EUR 9,360.
Player A, Country B / Club C, Country D
5/11
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 12 September 2017. Consequently, the DRC
concluded that the 2017 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 2018), 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 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 alleged agreement.
4.
In this regard, the Chamber concluded that no arbitration agreement had
been in place between the Claimant and the Respondent, since the alleged
agreement, which was referred to by the Respondent in respect of its
position relating to competence, does not contain the signature of the
parties concerned.
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.
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 2018), and considering that the
present claim was lodged on 12 September 2017, the 2016 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
Player A, Country B / Club C, Country D
6/11
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 abovementioned 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 8 June 2017 he had concluded an
employment contract with the Respondent valid as from 1 July 2017 until
30 June 2020, in accordance with which the Respondent allegedly had
undertaken to pay him an annual salary of EUR 94,800 over 3 years. The
Respondent had allegedly not been 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 284,400, plus EUR 47,400 for “specificity
of sport”.
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 carried out negotiations
with the Claimant’s agent but that from the beginning of said
negotiations it had made it clear that, prior to the conclusion of an
employment contract, the Claimant had to pass medical tests.
10. Moreover, the Chamber observed that, according to the Respondent, the
employment contract had not been signed due to the Claimant’s failure to
pass the medical test as a result of massive overweight.
11. 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 as to 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.
Player A, Country B / Club C, Country D
7/11
12. 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.
13. Having stated the above, the Chamber recalled that the Claimant
maintained that he never received a copy of the employment contract he
asserts having signed with the Respondent, since the latter’s management
allegedly had taken away all the copies soon after. However, the Claimant
submitted a series of documents in support of his claim, which were in
continuation examined by the members of the Chamber.
14. In this regard, the DRC took note of the documentation submitted by the
Claimant, mentioned in number I./3. above. In this respect, the members of
the Chamber noted that the Claimant had submitted, in brief: (i) an
exchange of e-mails between his agent and the Respondent’s
representative concerning the financial terms of a possible engagement of
the Claimant with the Respondent; (ii) an unsigned copy of the alleged
agreement allegedly sent by the Respondent’s representative to his agent
via e-mail; (iii) a copy of an agency agreement, signed by and between the
agency of the Claimant’s agent and the Respondent and (iv) a few pictures
taken from the alleged Respondent’s website and extracts referring to an
interview allegedly given after the alleged signing of the 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 an agency agreement, dated 8 June 2017, signed
by and between the agency of the Claimant’s agent and the Respondent,
according to which the former expressly represented that “this Agreement
shall not give rise to any obligation of the [Respondent] to conclude the
agreement with the [Claimant]”.
16. Having said this, the DRC proceeded to examine the exchange of e-mails
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.
Player A, Country B / Club C, Country D
8/11
17. In this respect, the DRC acknowledged that the parties negotiated the
terms of a future employment contract, exchanging to that end financial
offers referring to the duration of the possible employment relationship.
However, the Chamber observed at the same time that the parties never
reached an agreement on any of such offers.
18. In relation to the above, the Chamber pointed out that, in a first e-mail
dated 23 May 2017, Agent E, i.e. the Claimant’s agent, informed
Representative F, i.e. the Respondent’s representative, that the Claimant
was willing to join the Respondent at certain financial conditions. The DRC
further took note that in reply, on 26 May 2017, Representative F made an
offer to Agent E, containing different financial conditions, namely, inter
alia, EUR 7,000 per month for 3 seasons and EUR 10,000 for each
contractual year.
19. In continuation, the DRC noticed that, on 29 May 2017, Agent E addressed
a counter-offer to Representative F, which contained higher financial
demands, namely, inter alia, a salary of EUR 8,500 per month for the
2017/18 season and of EUR 10,000 per month for the 2 following seasons
as well as EUR 12,000 for each contractual year or EUR 30,000 upfront. In
other words, the Chamber observed that the Respondent’s offer dated 26
May 2017 had not been accepted by the Claimant, who instead counterproposed a higher remuneration.
20. What is more, the DRC deemed important to underline that, from the
documentation produced by the Claimant, no written acceptance by the
Respondent of the Claimant’s counter-offer dated 29 May 2017 emerges.
For the sake of completeness, the members of the Chamber added that the
non-signed copy of the alleged agreement submitted by the Claimant,
which was apparently sent to the latter by the Respondent on 6 June 2017,
includes a lower remuneration than that asked by the Claimant in his
counter-offer of 29 May 2017. 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 the other
party’s offer.
21. 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 pictures attached to the claim, as well as the
reference to an extract of an interview, cannot by themselves constitute
conclusive evidence strong enough to, substantially, replace the submission
of a signed contract.
Player A, Country B / Club C, Country D
9/11
22. For the sake of argument, although confident that the foregoing line of
reasoning was self-explaining, the members of the DRC observed that,
even assuming that the above-mentioned pictures were taken in the
Respondent’s trophy room and that an interview had indeed been released
to an official channel, such circumstances do not prove beyond any
reasonable doubt that an employment contract had been signed. By the
same token, the fact that the Respondent’s media department had
communicated, via its social media channels, that “Player A […] has joined
Club C!”, does not mean and cannot prove, in and of itself, that the
Claimant had signed a contract with the Respondent.
23. 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, beyond any reasonable
doubt, 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.
24. In respect of the foregoing, the members of the Chamber had to conclude
that the documents presented by the Claimant did not prove beyond any
reasonable doubt that the Respondent and the Claimant had validly
entered into an employment contract.
25. 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.
26. As a consequence, the Dispute Resolution Chamber decided that, since the
Claimant had not been able to prove beyond any reasonable doubt that an
employment contract had validly been concluded between himself and the
Respondent, there was no need for the Chamber to enter into the
question of whether or not such alleged employment contract had been
breached.
Player A, Country B / Club C, Country D
10/11
27. All the above led the Dispute Resolution Chamber to conclude that the
claim of the Claimant has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player 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 (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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
11/11