Dispute Resolution Chamber
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 03 June 2021
regarding an employment-related dispute concerning the player A
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
Represented by
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I.
FACTS OF THE CASE
1.
In the beginning of December 2019, Mr. C (hereinafter: Mr. C), intermediary of the Country
A player, A (hereinafter: the player or the Claimant), started negotiations via WhatsApp
with a person named “D” (hereinafter: Mr. D), regarding a possible employment
relationship with the Country B club, B (hereinafter: the club or the Respondent).
2.
On 5 December 2019, Mr. C forwarded Mr. D a copy of the player’s passport. On the same
date, the parties exchanged messages regarding the terms of an employment contract with
the club (i.e. salary, duration and commission to be earned by them in consideration of the
intermediary services).
3.
On 18 December 2019, Mr. D sent Mr. C an “official offer”, supposedly signed by the club’s
chairman, Mr. XXX (hereinafter: the employment offer).
4.
According to the employment offer, the club offered the player the following conditions
for the season of 2020:
“1. Monthly Salary: USD 8,000 (net)
2. Contract tenure: 1st January – 30th November 2020 (option to renew further based on
performance). The club can cancel contract unilaterally during the time of the Contract.
3. Accommodation: fully furnished room in the club camp.
4. Flight tickets: Economy Class (Return)
5. Medical: free medical benefit inclusive of hospitalization expense to the Player (Under
term of conditions)
6. Bonus: This will be solely at the discretion of the Team Management”.
5.
Additionally, the employment offer also stipulated the following: “for your information, this
offer is not an official contract and we hope that you would consider our offer favourably
and revert to as soon as it warrants”.
6.
The employment offer was countersigned by the player, at the bottom of the page.
7.
On an unspecified date and in addition to the employment offer, the player also received
from the club a draft of a “standard labour employment contract” in order to formalize
their relationship (hereinafter: the employment contract).
8.
In accordance with clause 1.1 of the employment contract, the club would employ the
player for the period between 1 February 2020 and 31 January 2023. Nonetheless, as per
clause 1.2 of the employment contract, said term could be extended or renewed by the
parties at least six months prior to its expiry.
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9.
Furthermore, the Appendix 1 to the employment contract read that the player would be
entitled to a monthly salary of USD 8,727 in 2020 and USD 8,000 as from 2021, being each
salary payable until “the 10th day of the month following the payroll month”.
10.
In addition to the monthly remuneration, according to said Appendix 1, the player would
also be entitled to, inter alia: (i) “bonuses according to the match bonus regulations
developed by B for each competition season at B’s discretion”; (ii) “allowances to cover the
elements of working conditions”; (iii) “food and accommodation and normal living
equipment”; (iv) “3 return tickets by B from the time the Player come to Country B for
probation until the expiry of the contract (1 return ticket per year)”.
11.
Finally, clause 8 of the Appendix 1 to the employment contract established that: “this
Appendix takes effect on the effective date of this Contract and is deemed to be an integral
part of this Contract”.
12.
It remained undisputed between the parties that the employment contract was never signed
by any of them.
13.
In parallel, on 23 December 2020, Mr. D sent Mr. C via WhatsApp flight tickets for the
player to travel from Country A to Country B, scheduled to 26 December 2020 at 23:50
(local time).
14.
On 25 December 2020, Mr. D sent Mr. C via WhatsApp the documentation regarding the
player’s visa to enter Country B. Accordingly, the player and a Mr. xxx were granted
“permissions to enter Country B for tourism” from 10 December 2019 to 10 March 2020.
15.
On 27 December 2019 and as per the flight tickets sent by Mr. D, the player flew from city
T, Country A to city S, Country A. On the following day, 28 December 2019, the player
flew from city S to city V, Country C, and, on 29 December 2019, from city V to city W,
Country B.
16.
On 7 January 2020, the player terminated his previous employment contract with the
Country A club, E (hereinafter: E), by mutual agreement. A copy of the termination
agreement signed between the parties was sent by Mr. C to Mr. D via WhatsApp on 9
January 2021.
17.
On 8 January 2020, the player was hospitalized in the Military Hospital (Country B) and
underwent a “surgical treatment of fracture of zygomatic arch by correction”, being
discharged from the hospital only on 10 January 2020.
18.
On an unspecified date, the player exchanged some WhatsApp messages with a person
referred to as “Z” (allegedly a club’s representative), who stated, inter alia:
[Player]: “then the club’s decision is to return it to me? Send me away?”
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[Z]: “yes because likes I tell you the club has no choice. They must have player to get the
good result this season. But the doctor said you must at least 1 month no activity. And 6
months no play professional level. And the first game will start February 22nd. This is unlucky
we cannot control. No one expected hope you can understand that”.
[Player]: “ok so ask them to let me know the club’s decision with a letter I’m leaving”.
19.
On 7 February 2020, the player sent the club a “notice of default” and requested it to
proceed the payment of USD 8,000, corresponding to the salary of January 2020.
20.
On 5 March 2020, the player sent the club a “second (and last) notice of default” and
granted it with a 15 days’ deadline (i.e. until 25 March 2020) in order to proceed the
payment of USD 16,000 (salaries of January and February 2020), under penalty of
termination with just cause.
21.
In the same letter, the player wrote, inter alia, the following:
a. “Furthermore, it is important to stress the Club is not providing to the Player the
necessary medical assistance after the injury that the latter had in his face. In fact, the
Player has been training completely alone in the last days without any support
whatsoever from its medical team”;
b. “Last but not least, we kindly remind you that the Club has still not taken any measure
in order to obtain the work visa of the Player. In this regard, we kindly remind you that
the tourist visa of the Player expire on 10 March 2020, which obviously demands your
best attention in order to avoid any problem for the Player with the immigration
authorities of Country B”; and
c. “Furthermore, we kindly request you to provide the necessary medical assistance to
the Player, as well as settle all pending issues relating the issuance of the referenced
work visa before the local authorities”.
22.
On 11 March 2020, the player notified the club the termination of the “employment
contract entered with the Club, unilaterally and with just cause in accordance with article
14 of the FIFA RSTP” and informed that he would “would exercise his right to claim the
payment of all referenced outstanding amounts, as well as the pertinent compensation by
the Club”.
23.
The player further stated the following: “[the club] has not paid any of the outstanding
amounts, failed to provide the necessary medical assistance to the Player or the required
support during his training sessions. What is more, the club did not provide the Player with
the necessary permanent work visa, despite of having received our expenses requests to
fulfil the referenced contractual demands. Nevertheless, on 9 March 2020, the club forced
the player to leave the accommodation in its academy that the latter was temporarily staying
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without any reason or explanation whatsoever. With all due respect, such attitude is
regrettable and unacceptable within any sort of scenario or circumstances”.
24.
On 18 May 2020, the player signed a new employment agreement with the Country A club
F (hereinafter: F), valid as from 16 May 2020 until 25 November 2020.
25.
In accordance with the employment agreement with F, the player is entitled to a monthly
remuneration of Country A currency 12,000.
II.
PROCEEDINGS BEFORE FIFA
26.
On 26 October 2020, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the player
27.
In his claim, the player firstly informed that, after the signature of the employment offer,
the club purchased him flight tickets and procured the necessary travel visa for him to travel
from Country A to Country B.
28.
The player then stated that he was supposed to sign the employment contract with the club
upon his arrival in the country. However, while the document was being revised by his legal
representatives, the player went on training with the first team of the club and suffered a
severe injury in his head, which demanded an immediate surgery.
29.
As a consequence, the player stated that his doctors defined that he would not be able to
perform any physical activity for the period of one month, as well as that he would not be
able to compete at a professional level for at least four months.
30.
On account of the above, the player held that he “was made to train and undergo the
rehabilitation alone as the medical staff of the club failed to provide any sort of support
whatsoever”. Nevertheless, “due to the fact that the player was incapable of playing for
the club for a period of 4 months and the new Country B league season was to begin on
22 February 2020, the Club opted to dispense off the player”.
31.
Even though the club supposedly failed to pay “any amounts of remuneration for the entire
period [the player] spent with the club”, the player confirmed that “the club took care of
the medical expenses at the hospital, which the player incurred through because of the
medical surgery and days hospitalised”.
32.
In this context, the player referred to his notices of default and informed that the club had
never answered his correspondences nor provided payment of the outstanding
remuneration. In addition, the player argued that the club forced him “to leave the
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accommodation in its academy where the latter was temporarily staying at without any
reason or explanation whatsoever”.
33.
In view of the above, the player maintained that he had no other option but to immediately
terminate the employment relationship with the club with just cause (and before the expiry
of the 15-day period granted in the second notice of default).
34.
In support of his allegations, the player recalled, inter alia, the principle of pacta sunt
servanda and CAS’ jurisprudence regarding the validity of contracts. Accordingly, the player
is of the opinion that the employment offer “fulfilled with those elements mandatory to be
considered a valid and binding contract, that is to say, the so-called ‘essentialia negotii’”.
35.
At this point, the player made the following remarks:
a. the employment offer “does not leave any room for doubts or misunderstandings that
the parties of said employment relationship were the player and the club”;
b. “there is no doubt regarding the employment relationship and term of [the
employment offer], which was a period of one season and an additional season at the
sole option of the club”;
c. “it is also undisputed the remuneration that the player was going to receive from the
club during the aforementioned period”; and
d. “the bottom of the page [the employment offer] contains the signature of the
Chairman of the Club”.
36.
Subsequently, the player referred to the content of FIFA Circular No. 1625 and to the
amendment to art. 14 of the FIFA Regulations on the Status and Transfer of Players (RSTP)
regarding “abusive situations where the stance of a party (ether a player or a club) is
intended to force the counterparty to terminate or change the provisions of the contract”.
Furthermore, the player also recalled art. 14bis of the FIFA RSTP, explaining that the club
failed to pay him the monthly salaries of January and February 2020 – even though the
player had duly put it in default.
37.
The player then argued that the club had acted in an abusive manner in several
opportunities, as follows:
a. the club refused to sign the employment contract after the player’s medical surgery;
b. the club refused to obtain a work permit and/or to renew the player’s tourist visa;
c. the club refused to provide the player with any sort of assistance after the latter having
passed through the medical surgery, including by not providing him with any sort of
physiotherapy or special training session; and
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d. the club forced the player to compulsorily leave the accommodation at its premises.
38.
Lastly, the player referred to the content of art. 17 of the FIFA RSTP in order to calculate the
compensation due by the club as a result of the breach of the employment offer. In this
regard, the player claimed that the club should be deemed liable for the payment of USD
88,000, corresponding to the residual (and total) value of the employment offer. The player
also stated that the pertinent sportive sanctions should be imposed on the club because the
alleged breach occurred during the protected period.
39.
As a subsidiary request, the player referred to FIFA’s jurisprudence on pre-contracts and
stated that “a party to a preliminary contract is not entirely free to exclude itself from the
negotiations in relation to the conclusion of a final agreement […] the duty to act in good
faith already exists at the time of contractual negotiations is known as culpa in
contrahendo”. Therefore, “even if the FIFA DRC decides the employment contract is not a
(employment) contract but a pre-contract, the club shall anyway pay the amount of net
USD 88,000 (eighty-eight thousand dollars) to the player due as compensation, whatsoever
the scenario may be”.
40.
Based on the foregoing, the requests for relief of the player were the following:
a. “to order the Club to pay to the Player the amount of USD 88.000 (eighty-eight
thousand dollars) due as compensation for the breach of the [employment offer], plus
default interest at the rate of 5% per annum as from 31 January 2020 until the effective
date of payment”; and
b. alternatively, “to confirm that by breaching the [employment offer], the club violated
the principle of culpa in contrahendo and as such, shall pay a compensation to the
Player amounting to 88,000 (eighty-eight thousand dollars) plus default interest at a
rate of 5% per annum as from 31 January 2020 until the effective date of payment”.
b.
The reply of the club
41.
In its reply, the club firstly maintained that “with respect to the player’s injury during a
friendly game of trial test purpose, albeit there has not been any valid and binding
employment agreement between the parties, the club has in fact, to the maximum extent
possible and reasonable, carried out certain acts of care concerning the Player’s situation,
including (i) paying all medical expenses for player’s medical surgery and hospitalization
between 8 January and 10 January 2020, and (ii) providing the player accommodation
during his time of recovery subsequent to the discharge from hospital till 9 March 2020 (a
total of two months)”.
42.
As to its relationship with the player, the club stressed that “it is a common practice that
players should satisfy certain trial test prior to commencement of any labour relationship
with the club. In practice, the player’s first game was only a friendly game. The club’s acts,
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in this case, only amount to and shall not exceed the standard of care considering that the
accident happened to incur at its site”. Accordingly, the club argued that “there is no a
valid contract with the player”.
43.
Regarding the player’s stay at its accommodation, the club referred to the COVID-19
situation in Country B, claiming that “the club’s arrangement should be recognized as its
best attempt considering such situation”.
44.
In continuation, the club firmly asserted that the employment offer “was not prepared and
signed either by Mr. xxx – Director of Club or any competent authorized representative of
the club. The Director of the club categorically denied having ever signed such offer and
someone created this document and forged his signature, which is easily observable by way
of comparison with other samples of his signatures”.
45.
Later, the club also argued that the employment offer does not contain a valid signature of
the parties and, as such, does not satisfy the essentialia negotii. In this respect, the club
concluded that the player should carry the respective burden of proof regarding the
authenticity of the document.
46.
In continuation, the club listed all steps of its standard recruitment process and stressed that
it had never sent the employment offer to the player. In the same direction, the club
informed that it had never registered any labor contract with the player at the Country A
Football Association for the issuance of the International Transfer Certificate (ITC).
47.
Furthermore, the club pointed out that it had only sent the draft of the employment
contract to the player “for his consideration and commencement of negotiation procedure
at very first stage”. On this matter, the club specified that “it is notable that the monthly
salary in the draft of [the employment contract] is different from the one in submitted offer
letter, specifically, the monthly salary in 2020 in the draft of contract is USD 8,727, higher
than the one in submitted offer letter. There was no practical reason for the club to increase
monthly salary up to USD 8,727 if an amount of USD 8,000 was offered and accepted by
the player”.
48.
In addition to this conclusion, the club recalled art. 12, para. 1 of the employment contract,
according to which “the contract takes effective from the date in which the contract is
signed by the parties”.
49.
Having established the above, the club then stated that, even in the event that the
employment offer is deemed to be valid, the document expressly established that is was
not an official contract and, thus, that it was not binding nor official.
50.
To this extent, the club is of the opinion that the employment offer “could not be accepted
as a valid pre-contract concluded between the parties” and that “since the player has not
been able to prove beyond doubt that a labor contract had validly been concluded between
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player and the club, there was no possibility for conclusion that such alleged contract had
been breached by the club”.
51.
Regarding the other allegations made by the player, the club stressed that it had neither
purchased a flight ticket nor procured an entry visa for the player. As such: “(I) no document
evidencing that we arranged and paid the flight ticket for Player respectively; (ii) the entry
visa approval granted by the immigration authority of Country B in Exhibit 5 was issued for
tourism purpose and addressed to xxx as legal sponsor for visa application of player under
the laws of Country B, not addressed to the club”.
52.
As to the WhatsApp messages supposedly exchanged between the player and a club’s
representative (Z), the club indicated that “the player always required an official notice from
the club (but not from that person) and it is no doubt that the player was clearly and fully
aware that person appeared in the exhibit 8 is not a competent authorized representative
of the club and that such person never ever has legal authorization, on behalf us, to
conclude any binding commitment with the player”.
53.
Finally, the club pointed out that online records show that the player was transferred to a
new club after leaving Country B in March 2020. Consequently, the club stated that the
player acted in bad faith and requested that “in the event DRC decides that a valid contract
has been concluded between the club and the player, and requires the club to pay for
compensation due to the player, the value of his new contract with new club from March
2020 to November 2020 shall be deducted from the residual value of the offer letter”.
c.
The rejoinder of the player
54.
Subsequently, in his rejoinder, the player opposed the club’s allegations and reiterated his
own.
55.
In particular, the player stressed that the “the club failed to carry the burden of proof of its
assumption and consequently any eventual attempt to affirm that the signature placed in
[the employment offer] is not valid or binding shall be in full set aside”.
56.
The player then rebutted the club’s allegation that he did not fulfil its policy of recruitment
of new football players. Accordingly, the player informed that “when the club
demonstrated any interest in signing the player, the latter was still under contract with the
Country A professional club E which had to be terminated prematurely only for the sake of
signing the Employment Contract with the club”.
57.
In continuation, the player contested the club’s allegation that the employment offer was
not valid because it had never been registered before the Country B Football Federation. In
this respect, the player claimed that “the registration of any employment contract is an
administrative procedure that players in general do not have any sort of access. It is
reasonable thus that the validity of an employment contract is never conditioned upon its
registration (or not) before a national football association”.
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58.
In addition, the player clarified that the differences between the employment offer and the
employment contract delivered by the club arise from “the impressive performance of the
player during his first training sessions and non-official matches after his arrival in Country
B”. What is more, the difference between the remuneration provided for in which of the
documents arises from the fact that “the remuneration stated in [the employment offer is
net (USD 8000) and the remuneration stated in the Country B Football Federation
standardises employment contracts are gross (USD 8727)”. Therefore, the player stated that
said document is to be considered as “an incontestable proof that the parties were also
going to sign such new (standard) contract if the player had not injured just before signing
it”.
59.
Regarding the medical treatment, the player reiterated his statement of claim and
concluded that if the employment offer was not valid and binding, “there was no reason
whatsoever for the club having permitted the player to remain residing in its academy”.
Moreover, the player recalled the default notices sent to the club, to no avail.
60.
By way of conclusion, the player made the following remarks:
a. The player was previously employed with another Country A club (i.e. E) and
terminated his contractual relationship after the club’s offer;
b. The club’s representative, D, sent the employment offer via WhatsApp to Mr. C, as well
as the flight tickets and the tourist visa, that would afterwards be converted in to a
permanent (or working one);
c. The club failed to meet its burden of proof regarding the allegation that the signature
placed in the employment offer did not belong to Mr. XXX. What is more, the terms
and conditions of the employment offer are the same as the ones discussed between
the parties’ representatives via WhatsApp;
d. If the employment offer was not valid and binding at all, the club would not have any
reason to allow the player to take part in its friendly match nor to pay all the medical
expenses related to his injury;
e. “The only reason the club opted to dispense off the player and not utilize his services
despite having a valid contract was the fact that he could not take part in official games
for a period of 4 months”. Consequently, “such behaviour of the club is contradictory
to say the least and is of outrageous bad faith and an evident violation of the venire
contra factum proprium doctrine”;
f. The club failed to pay the player’s remuneration amounting to USD 16,000,
corresponding to his salaries of January and February 2020 “without providing to the
latter any valid reason in spite of all the opportunities granted in good faith to rectify
such breach”; and
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g. The player put the club in default in two different opportunities, but “the club neither
answered nor complied with the referenced financial obligations towards the player”.
Therefore, the player had just cause to terminate the employment offer in line with art.
14bis of FIFA RSTP.
61.
Based on the foregoing, the player amended his requests for relief in order to break down
the amounts due by the club as outstanding remuneration and compensation for breach of
contract.
62.
As to the outstanding remuneration, the player requested the total amount of USD 16,000,
corresponding to the salaries of January and February 2020, plus 5% interest p.a. as from
the due dates until the date of effective payment.
63.
As to the compensation for the breach of the employment offer, the player stressed that
he is entitled to USD 62,129, equivalent to the residual value of the contract (i.e. USD
72,000) minus the alleged mitigation of USD 9,871, plus interest of 5% p.a. as from 31
March 2020 until the date of effective payment.
64.
At the end, the player reiterated his considerations about the applicability of art.12bis, 24bis
and 17 para. 4 of the FIFA RSTP to the case at stake.
d.
The final comments of the club
65.
Finally, the club presented its final comments as to the player’s rejoinder.
66.
To this end, the club submitted that the signature added to the employment offer does not
meet the requirements described in the Country B Law. In this regard, it argued that
“comparing the relevant signatures – the signature placed in the [employment offer] and
the authentic signature of Mr. xxx, we have another opinion, but to conclude that, which
is easily observable, the divergence is crystal clear”. Furthermore, the club added that the
player was not able to provide a copy of the original document supposedly sent by the club.
67.
Subsequently, the club explained that “[Mr. D] has definitely never ever been an employee
of the club, or at least, authorized to act on behalf of the club, under any power of attorney
signed by an authorized person of the club whatsoever, which authorized him to take part
in our recruitment process”. In this respect, the club quoted a message sent by Mr. D to
Mr. C on 6 January 2020 allegedly confirming that he was not a legal representative from
the club, in verbis: “Send me an authorization later, because I will have to make another
one in the name of my company as well, to pass it to B”.
68.
Notwithstanding the above, the club also mentioned that “Mr. D and Mr. Z have never ever
been employed by the club, or have never ever been authorized to act on behalf of the club
for recruitment activities. As for this allegation, it is obligation of Claimant who claims for
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such groundless allegation to carry the burden of proof by all means that D is an authorized
representative of [the club]”.
69.
Moreover, the club several following technical remarks about the employment offer
considered “unacceptable flaws and omissions”.
70.
In light of the above, the club held that “these obvious differences prove that such unknown
person who attempted to forge this document, basically even did not know full information
of [the Respondent]” and “the player could not rely on an electronic document without
original, provided by a vague person”. Therefore, the club concluded that “the player had
not been able to prove beyond doubt that [the employment letter] / labor contract had
validity between player and the club” and “there was no possibility for conclusion that such
alleged contract had been breached by the club”.
71.
Furthermore, the club pointed out that, in the event that the employment offer is deemed
to be valid, its term was from 1 January 2020 until 30 November 2020 while the
employment contract signed with E, the player former club, was only terminated on 7
January 2020. Consequently, those two contracts would have an overlapping period, what
constitutes a violation to FIFA RSTP.
72.
Finally, the club remarked that the player injured his head during a friendly game of trail
test purpose and that the club paid his medical expenses and provided him with
accommodation in good faith. In addition, the club also reiterated its points concerning the
issuance of the flight tickets and the visa documentation.
73.
In conclusion, the club stressed that: “the club acknowledges that every one of the football
industry are well aware that the main contractual obligation of a club towards a player is to
pay the remuneration as agreed. However, in this case, there have never been any payment
obligation of the club arising from an official labor agreement, from which the wage
requirement arises. Therefore, no constitution of such breach of payment obligations made
by the club, since there has never been a valid contract between the club and the player”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
74.
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 26 October 2020 and submitted
for decision on 3 June 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
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75.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Country A
player and a Country B club.
76.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 26 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
77.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
78.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
Merits of the dispute
79.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
80.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the main aspect of the dispute lies in whether the
employment offer received by the player on 18 December 2019 is to be considered a valid
and binding contract between the parties and, if so, whether the club is liable for the
consequences of an unlawful termination.
81.
In this context, the Chamber acknowledged that it is its task to determine the following:
a. Is the employment offer a valid and binding document on the parties?
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b. Did the player have just cause to terminate the employment relationship (if any)?
c. What are the consequences of the termination?
d. Is art. 24bis applicable to the matter at hand?
82.
The DRC then proceeded to examine each matter.
i. Is the employment offer a valid and binding document on the
parties?
83.
The DRC started, first of all, by recalling the Chamber’s well-established jurisprudence which
dictates that, in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it should contain the
essentialia negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship and the remuneration payable by the
employer to the employee.
84.
In casu, after a careful analysis of the employment offer, the DRC was satisfied with the
conclusion that all such elements are included in the document filed by the player. In other
words, the members of the Chamber concurred that the employment offer included all the
relevant information at the basis of an employment relationship between the parties.
Specifically, the document contains the signature of both parties, provides for the duration
of the employment relationship, provides for the payable remuneration to the player, and,
moreover, it can be clearly inferred that said document relates to the player as being
employed in order to play as a footballer with the club.
85.
In this respect, the DRC acknowledged that the club vehemently alleged that the signature
of its director added to the employment offer was forged. Accordingly, the Chamber
deemed appropriate to remark that, as a general rule, FIFA’s deciding bodies are not
competent to decide upon matters of criminal law, such as the one of alleged falsified
signatures of documents, and that such affairs fall into jurisdiction of the competent
national criminal authority.
86.
After a thorough analysis of the evidences brought forward by the parties the DRC
concluded that, in spite of the technical remarks made by the club, there was not enough
substance to conclude that the consent given by the club was forged. In particular, the
Chamber found it pivotal to its conclusion the fact that, in spite of the differences between
the signatures collected by the club, the terms and conditions set forth in the employment
offer sent by Mr. D were reflected in the draft of the standard employment agreement
undisputedly sent by the club to the player, with some minor differences.
87.
Consequently, the Chamber unanimously decided to set aside the club’s argumentation in
this regard.
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88.
Subsequently, the DRC also took due note of the fact that the club challenged Mr. D’S
capacity to act on its behalf, as well as that it stressed that the arrangements involving the
player did not observe the standard recruitment process generally adopted by the club.
89.
In this regard, the members of the Chamber firstly recalled that, in accordance with FIFA
well-established jurisprudence, the internal proxy rule of one of the parties to a contract
cannot have legal effect on the validity of the contract itself, unless the contracting party
has been duly informed of its contents.
90.
Furthermore, the DRC highlighted that:
(i)
all the negotiations between the parties were conducted by Mr. D, including the
issuance of the flight tickets and the visa documentation;
(ii)
the club did not submit any evidence to support its allegation that the player – or
his intermediary – had ever been informed of its standard recruitment process (or
even of the so-called “trial period”);
(iii)
the player took part in the club’s football activities and, moreover, injured his head
during a friendly match in the club’s premises;
(iv)
the club provided the player with a temporary accommodation and paid for his
medical expenses; and
(v)
in this interim, Mr. D’s legal capacity to act on the club’s behalf was never contested
by the club.
91.
Having established the above, the members of the Chamber were of the opinion that the
overall developments of the case demonstrate that the player could assume in good faith
that Mr. D was duly authorized to act on the club’s behalf. Moreover, the DRC deemed that
the same background also confirmed that the parties have validly agreed upon the basis of
their employment relationship.
92.
As to the matter of registration and the possible contradiction with the player’s older
employment contract with E, the DRC stressed that in line with the contents of article 18
par. 4 of the Regulations, as well as the jurisprudence of the Chamber, the validity of an
employment contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the registration procedure in connection with the
international transfer of a player, which are of the sole responsibility of a club and on which
a player has no influence
93.
With the above in mind, the DRC outlined that the responsibility of the engaging club to
ensure that the player is properly registered with his new club in order to be able to provide
it with his services. Since the club is supposedly interested in acquiring the rights of the
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player and in benefiting from his services, it is also expected from it to act accordingly in
view of obtaining, for instance, the player’s ITC and his subsequent registration. In order
words, the registration or not of the contract is irrelevant in determining if the contract was
a valid and binding document.
94.
Therefore, the DRC decided to set aside the argumentation of the club and to confirm that
the document of 18 December 2019 i.e. the employment offer is a valid contract concluded
by the parties.
ii. Did the player have just cause to terminate the employment
relationship (if any)?
95.
Having defined that the employment offer was valid and binding on the parties, the DRC
moved to the issue of the termination by the player. In doing so, the Chamber confirmed
that it remained undisputed by the parties that: (i) the club did not pay the player any
remuneration i.e. salaries from January and February 2020; (ii) the player put the club in
default twice, to no avail; and (iii) the player was requested by the club to leave its
accommodation with urgency.
96.
Based on the above and turning to the evidence on file, the members of the Chamber
observed that it was clear that the club not only defaulted the player more than two
monthly salaries, but also that it forced the player to leave its accommodation irrespective
of his medical condition.
97.
Consequently, the DRC unanimously concluded that the club substantially breached its
contractual duties, entailing therefore that the player had just cause to terminate the
contract.
98.
Thus, the club shall hence bear the consequences that follow.
iii. What are the consequences of the termination?
99.
The foregoing being established, the members of the Chamber turned their attention to
the question of the consequences of such unjustified breach of contract committed by the
club.
100. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to two salaries
under the employment offer, i.e. January and February 2020, amounting to USD 8,000
each.
101. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay said amounts to the player i.e.
USD 16,000.
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102. In addition, taking into consideration the player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player
interest at the rate of 5% p.a. on the outstanding amounts as from their due dates until
the date of effective payment.
103. Subsequently, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, the Chamber firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the
new contract, the time remaining on the existing contract up to a maximum of five years,
and depending on whether the contractual breach falls within the protected period.
104. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber observed
that no such clause exists in the contract at stake (i.e. the employment offer).
105. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
106. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the employment
offer until its expiry date. Consequently, the Chamber concluded that the amount of USD
72,000 serves as the basis for the determination of the amount of compensation for breach
of contract (i.e. the player’s salaries from March to November 2020).
107. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
108. Indeed, the player found employment with F between 16 May 2020 until 25 November
2020. In accordance with the pertinent employment agreement, the player was entitled to
a monthly remuneration of Country A currency 12,000 for the cited period. Therefore, the
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Chamber concluded that the player mitigated his damages in the approx. amount of USD
14,408.50.
109. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to
overdue payables. In the case at hand, the Chamber confirmed that the termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
110. In this respect, the DRC highlighted that theoretically the player would be entitled to USD
24,000 as additional compensation. However, the Chamber recalled that as per the clear
wording of article 17 of the Regulations, the amount of compensation (including any
additional compensation) cannot exceed the residual value of the contract.
111. As a consequence, it was decided to award the amount of additional compensation of USD
14,408.50 to the player.
112. On account of all of the above-mentioned considerations and the specificities of the case
at hand, the Chamber decided that the club, in principle, should pay the amount of USD
72,000 to the player (i.e. USD 72,000 minus USD 14,408.50 plus USD 14,408.50), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
113. However, taking into consideration the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber duly observed that the player’s
request is limited to USD 62,129. Hence, in accordance with the principle of non ultra petita,
the DRC confirmed that the amount of USD 62,129 is to be awarded to the player
114. Finally, the Chamber also decided to award the player interest on said compensation at the
rate of 5% p.a. as of the date of claim until the date of effective payment.
iv. Is art. 24bis applicable to the matter at hand?
115. Finally, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences
deriving from the failure of the concerned party to pay the relevant amounts of outstanding
remuneration and/or compensation in due time.
116. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
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117. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does
not pay the amounts due to the player within 45 days as from the moment in which the
player communicates the relevant bank details to the club, provided that the decision is final
and binding, a ban from registering any new players, either nationally or internationally, for
the maximum duration of three entire and consecutive registration periods shall become
effective on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.
118. The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
119. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
120. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
121. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, has to pay to the Claimant, the following amounts:
- USD 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020
until the date of effective payment;
- USD 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020 until
the date of effective payment; and
- USD 62,129 as outstanding remuneration plus 5% interest p.a. as from 26 October 2020
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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