Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 August 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay ), member
S tijn Boey kens (Belgium ), member
Wouter Lam brecht (Belgium ), member
Abu Nay eem S hohag (Banglades h), member
on the claim presented by the player,
Play er A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 30 January 2018, the club, Club C (hereinafter: the club or the Respondent)
sent the player, Player A (hereinafter: the player or the Claimant) a “contract
proposal” providing, inter alia, a basic salary of USD 90,000 “net/year” and “air
ticket payment 2 times a year”.
2.
On 1 February 2018, the club sent the player a draft of employment contract
which provided a monthly salary of 17,440 without, however, specifying its
duration.
3.
On 2 February 2018, the club provided the player with a loan agreement, signed
by the Respondent only, for the temporary transfer of the player from the Club
of Country B, Club E (hereinafter: Club E) to the Respondent until 31 December
2018.
4.
On 21 February 2018, the player requested the club to be provided with a flight
ticket and a visa in order to join the club, within the following five days.
5.
On 26 February 2018, the player urged the club to “execute the employment
relationship” and insisted on his previous requests, granting a 2 days’ time-limit
in order to comply.
6.
On 6 April 2018, the player lodged a claim for breach of contract against the
club in front of FIFA and requested the following:
a) USD 90,000 as compensation for breach of contract, plus 5% interest p.a. as
from 10 February 2018 until the date of effective payment;
b) USD 45,000 as additional compensation based on the specificity of sport,
plus 5% interest p.a. as from the date of notification of the relevant FIFA
decision until the date of effective payment;
c) Sporting sanctions on the club;
d) Reimbursement of legal expenses in the amount of CHF 15,000.
7.
In his claim, the player considered that he concluded an employment contract
with the club on 30 January 2018, which was valid until 31 December 2018. In
particular, the player held that the proposal he received from the club on 30
January 2018 contained all the essentialia negotii.
Player A, Country B / Club C, Country D
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8.
In this respect, the player argued that the aforementioned proposal constituted
a valid and binding agreement and that the draft he eventually received on 1
February 2018 was to be signed upon his arrival to Country D.
9.
Moreover, the player affirmed that his former club, Club E, and the Respondent
signed “on almost a simultaneous basis” a loan agreement for his temporary
transfer to the club until 31 December 2018 (as detailed in point I.3 above).
10.
Furthermore, according to the player, on 10 February 2018, an alleged
representative of the club informed him, via whatsapp, that the latter was not
interested in his services anymore as the club was “interested in another player
from Country F”.
11.
Consequently, the player concluded that, on 10 February 2018, the club
terminated the contract concluded on 30 January 2018 without just cause and,
therefore, he was entitled to compensation for breach of contract.
12.
In its reply, the Respondent acknowledged having started negotiations with the
player’s former club, Club E, “for the Country D football season of 2018 year”.
In this context, the Respondent also admitted having sent a contractual proposal
to the player on 30 January 2018 “in case of the loan agreement signature” with
Club E.
13.
Moreover, the club confirmed having sent the player a draft of employment
contract on 1 February 2018, in order to “discuss the details” once the loan
agreement was concluded.
14.
Nevertheless, the club emphasised that no loan agreement was eventually
concluded with Club E and argued that the proposal sent on 30 January 2018
could not be considered as an official contract nor as a valid and binding
agreement.
15.
In particular, the club stressed that both the aforementioned proposal and the
loan agreement were not signed by both parties and did not contain the
essentialia negotii as they did not specify the duration of the alleged
employment relationship.
16.
Along those lines, the club added that, during the month of February 2018, it
decided to “cancel further negotiations” with the Claimant as it was interested
in a different profile of player.
Player A, Country B / Club C, Country D
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17.
In conclusion, the Respondent requested the rejection of the player’s claim as
no valid contract had been concluded by the Claimant and the Respondent.
18.
In his replica, the player reiterated his previous arguments and argued that the
club considered the proposal dated 30 January 2018, the draft sent on 1
February 2018 and the loan agreement “as part of the same contractual
engagement”. As such, the player held that it was clear that the Claimant had
been hired as a football player by the club until 31 December 2018.
19.
Moreover, the Claimant held that the conclusion of the contract between the
player and the club was not subject to the execution of the loan agreement. In
particular, the player pointed out that, pursuant to art. 5 of the loan agreement,
the club “undertakes to conclude an individual contract on mutually agreed
terms with the Player […] for the period since _____ till December 31, 2018”.
20.
In its final comments, the club insisted on its previous argumentations and
reiterated that the proposal of 30 January 2018 could not create “any legal
effect in the employment relationship between the parties”.
21.
Furthermore, the club maintained that the information sent via whatsapp on 10
February 2018, which the player referred to in his claim, was sent on behalf of
the Respondent by an “unknown person” who “with high probability was not
entitled to do so”.
22.
Upon request of the FIFA administration, the player informed that, for the
period between 10 February 2018 until 31 December 2018, he was under
contract with his former club, Club E. According to the relevant contract, signed
on 11 January 2017 and valid until the end of the season 2018-2019, he was
entitled to a monthly salary of 60,000.
23.
Moreover, the player acknowledged having eventually signed, during the
aforementioned period, an employment contract with the Club of Country G
Club H and, then, with the Club of Country J, Club K. Nevertheless, he affirmed
that he was not in possession of a copy of said contracts.
24.
According to the information contained in the Transfer Matching System (TMS),
on 1 March 2018, the player and the club, Club H concluded an employment
contract valid until 31 December 2018 and providing a monthly salary of USD
12,500.
Player A, Country B / Club C, Country D
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25.
Furthermore, in accordance with the TMS, on 14 June 2018, the player and the
club, Club K concluded an employment contract valid as from 22 June 2018 until
31 December 2018, providing a total salary of USD 102,000.
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 6 April 2018. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
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 June 2019), the Dispute Resolution is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Player of Country B and a Club of Country
D.
3.
In continuation, 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 June 2019), and considering that the present claim was lodged on 6
April 2018, the January 2018 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand. 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).
Player A, Country B / Club C, Country D
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5.
First of all, the Chamber acknowledged that it remained undisputed that the
Respondent sent a contractual proposal and a draft of employment contract to
the Claimant on 30 January 2018 and 1 February 2018 respectively. Moreover,
the Respondent also provided the Claimant, on 2 February 2018, with a loan
agreement between the club and Club E, which was signed by the Respondent
only.
6.
In this respect, the Claimant held that the proposal sent by the Respondent on
30 January 2018 contained all the essentialia negotii and, consequently, a valid
and binding employment contract valid until 31 December 2018 was concluded
between the Claimant and Respondent on 30 January 2018.
7.
The Claimant further alleged that, nevertheless, the Respondent did not provide
him with the flight tickets in order to reach Country D and it eventually
terminated the contract without just cause on 10 February 2018. On account of
the above, the Claimant requested to be awarded compensation for breach of
contract.
8.
The Dispute Resolution Chamber equally took due note of the fact that the
Respondent, for its part, admitted having sent the contractual proposal to the
Claimant on 30 January 2018; it denied, however, having concluded any
employment contract with the Claimant. In particular, the Respondent
considered that the aforementioned proposal, and the subsequent draft of
contract sent on 1 February 2018, depended on the conclusion of a loan
agreement between the Respondent itself and the player’s former club, Club E,
which, however, did not occur.
9.
In this respect, the Respondent concluded that, as no loan agreement had been
concluded with Club E, no valid and binding employment contract had been
consequently concluded between the player and the club.
10.
In view of the aforementioned dissent positions of the parties in respect of the
basic question as to whether or not an employment contract had been
concluded between them, the members of the Chamber firstly referred to art.
12 par. 3 of the Procedural Rules, according to which any party claiming a right
on the basis of an alleged fact shall carry the respective burden of proof. The
application of the said principle in the present matter led the members of the
Dispute Resolution Chamber to conclude that it was up to the Claimant to prove
the existence of the conclusion of an employment contract with the Respondent.
Player A, Country B / Club C, Country D
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11.
Having stated the above, the Dispute Resolution Chamber wished to recall that,
at the time the Claimant received the contractual proposal of the Respondent
on 30 January 2018, he was, in principle, still under contract with the Club E.
Indeed, it was only later, namely on 2 February 2018, that the club provided the
player with a loan agreement between the Respondent and Club E which,
nevertheless, was not signed by the latter.
12.
Moreover, the DRC duly considered that the Claimant did not provide evidence,
to the Chamber’s comfortable satisfaction, that he expressly accepted the
Respondent’s contractual proposal, which he received on 30 January 2018.
13.
In addition, the members of the Chamber duly noted that, despite the
Respondent provided the Claimant with the loan agreement on 2 February 2018,
effectively said agreement was never concluded between the Respondent and
Club E, which did not sign it. In particular, the members of the Chamber
considered that, in order to demonstrate having validly entered into an
employment agreement with the Respondent, the Claimant should have first
and foremost proven that a valid loan agreement had been concluded between
the Respondent and Club E.
14.
Nevertheless, the DRC emphasised that the Claimant did not submit sufficient
evidence that the aforementioned loan agreement was ever concluded, nor that
he was not under contract with the club, Club E when he allegedly accepted the
Respondent’s offer.
15.
Consequently, the members of the Chamber came to the unanimous conclusion
that the player, at least until the date of alleged termination (i.e. 10 February
2018), remained bound to the contract previously concluded with the club, Club
E on 11 January 2017 and, thus, was never not even in the position to accept the
Respondent’s contractual proposal.
16.
As a consequence and in view of all the aforementioned considerations, the DRC
decided that, since the Claimant had not been able to prove that an
employment contract had been validly concluded between himself and the
Respondent, there was no possibility for the Chamber to enter into the question
as to whether or not such alleged employment contract had been breached.
17.
Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to legal costs, in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
18.
All the above led the Dispute Resolution Chamber to conclude that the claim of
the player has to be rejected.
Player A, Country B / Club C, Country D
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III.
Decision 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 article 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. 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player A, Country B / Club C, Country D
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