Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 31 August 2023
regarding an employment-related dispute concerning
the player A
BY:
Lívia Silva Kägi (Brazil), Deputy Chairperson
Stijn Boeykens (Belgium), member
Calum Beattie (Scotland), member
CLAIMANT:
B, Country B
Represented by
RESPONDENT I:
A, Country A
Represented by
RESPONDENT II:
C, Country C
Represented by
pg. 2
I. Facts of the case
1.
According to the Country B club, on 23 June 2021, B (hereinafter: Claimant or club) and the
Country A player, A (hereinafter: player or Respondent I) signed the proposal (hereinafter:
alleged contract) provided by the club.
2.
Said alleged contract reads as follows:
Re: Proposal - A
B is willing to offer the binding terms and conditions hereafter:
1. The player declare that he is a free player and will provide the club all necessary documents.
2 B will pay the player a sum of 100'000 USD net per season, paid in 10 payments
3 The player will be entitled to the following bonuses
Sign on fee – 10 K $
Cup winner – 10 K $ Upper playoff –
7K$
4 The club will have an option for another season (only in premier league) in the amount of
120,000 $
S
Club will provide car, flights and fully furnished apartment
6. This proposal Is under a medical check
7
This proposal will stand valid for 24Hr
8. By signing this offer the player obligate to comply with the terms above, and that he is
approve the conditions and except the offer
(Signature)
(Signature)
X CEO
Name B
Name A
3.
On 29 June 2021, the club put the player in default and requested him to “issue all
documents relevant and to sign all needed papers” as well as to take a flight to country B until
15:00 of the same day.
4.
Between 21 June 2021 and 230 June 2021, according to the club, Mr Y and the player
exchanged messages on WhatsApp discussing the matter at hand.
pg. 3
5.
On 1 July 2021, the player signed an employment contract with the country C club, C
(hereinafter: Respondent II) valid as from 1 July 2021 until 31 May 2023, including total salary
of currency country C 95,38,382 (approx. USD 128,287) for the season 2021/2022.
II. Proceedings before FIFA
6.
On 28 December 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
7.
B lodged a claim against the player and his new club in front of FIFA and requested payment
of USD 250,000 as compensation for breach of contract.
8.
In its claim, the club argued that a valid and binding employment contact “for the season
2021/2022” was entered into when the player signed the alleged contract.
9.
The Respondent pointed out that all the essentialia negotii were included in the alleged
contract.
10. The club submitted a picture of the player allegedly signing the alleged contract on 23 June
2021, which was used for the media announcement.
11. According to the club, after the player accepted its proposal it initiated the administrative
steps to obtain the work permit, VISA and health insurance. The club alleged that the player
refused to cooperate.
12. The club submitted an extract of a WhatApp conversation between an unknown number
(the alleged agent) and the player, which inter alia, reads as follows:
pg. 4
13. According to the club, the player did not reply to the default notice sent on 29 June 2021.
14. The Claimant maintained that a few days later the player decided to sign for his new club
since he received a higher salary there. In the club’s opinion, the player breached their
employment contract when he signed for the new club.
15. On account of the above, the club deems to be entitled to compensation due to breach
without just cause.
16. As to the calculation for the compensation due to the club, it argued that the average
between the two contracts amounts to USD 119,116 (USD 110,000 and USD 128,2323).
17. The club further argued that such amount shall be “adjusted” by the DRC to USD 250,000
since the player:
- Refused to cooperate with the club immediately after signing;
- Since he signed for his new club solely due to financial motivation;
- Due to the fact that the Claimant was relegated at the end of the season 2021/2022;
- The breach occurred during the protected period.
18. Moreover, the club argued that the player’s new club shall be held jointly and severally
liable to pay the compensation in accordance with the regulations.
b. Position of the player
19. In his reply, the player rejected the claim and refused to have signed the alleged contract.
20. The player held that the club forged his signature on the documents submitted, as he had
no contract with the club at all.
21. He requested the club to submit evidence of the alleged submission of the alleged contract
as well as the original document including the alleged handwritten signature.
c. Position of C
22. In its reply to the claim, C rejected the claim and held that the alleged contract could not
be the basis of a valid and binding employment contract.
23. C pointed out that the essentialia negotii are not fulfilled as the duration/term of the
proposed contractual relationship is not mentioned.
24. Respondent II held that no contract was signed and pointed out that even though the
Claimant alleged having needed the picture of the player for the media announcement, no
such announcement was made.
pg. 5
d. Replica of the Claimant
25. In its replica, the Claimant reiterated its position.
26. It maintained that the player did sign the alleged contract. In this regard, the club referred
to the details in the picture of the player signing the document (i.e. the club’s letterhead
and its signature). Furthermore, the club argued that it is the player in the picture, referring
to his tattoos.
27. Furthermore, the club argued that the player failed to deny that he signed the document
in the correspondence with the agent.
28. Moreover, the club held that forgery is a serious allegation and that the player did not start
criminal proceedings against the club.
29. The Claimant pointed out that the essentialia negotii are fulfilled as the duration is defined
with one season, with the option of a further season.
30. The club further stated that the player accepted the proposed terms within the stipulated
24 hours.
e. Duplica of the player
31. In his duplica, the player reiterated his position and rejected the claim.
32. He confirmed that the club showed interest in his services before he signed with C, but that
he never signed an agreement.
33. According to the player, the agent of the club (Mr D) told him that he has an offer of the
Claimant. Subsequently, he received several text messages from Mr Y (employee of the
Claimant) trying to pressure him into signing an agreement.
34. According to the player, Mr D advised him to “pretend” to sign the offer in order to silence
Mr Y. The player however pointed out that he did never actually sign the alleged contract.
In support of this argument, the player held that the picture taken shows a blue ink pen in
the player’s hand, while the falsified signature is in black ink.
35. Further, he held that the signature on the submitted document is not hand-written and
that his signature looks different.
36. Subsequently, the player held that the club forged his signature and Mr Y “harassed” him
to join the club.
pg. 6
37. The player argued that he was free to sign with C as he never signed an agreement with
the Claimant. Moreover, he held that he never returned the offer to the club, therefore
there is no proof of his acceptance.
38. He also pointed out that the club waited for a long time to lodge the claim in order to claim
compensation.
39. The player requested compensation of USD 50,000 as compensation for the damages
occurred due to the forgery of the club.
f. Duplica of the player
40. In its duplica, C reiterated its position and held that the essentilia negotii were not fulfilled
as the role of the parties and the duration of the contract were not specified in the alleged
contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
41. 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 28 December 2022 and
submitted for decision on 31 August 2023. Taking into account the wording of art. 34 of the
March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
42. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (May 2023 edition), 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 player and a club.
43. 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 (May 2023 edition), and
considering that the present claim was lodged on 28 December 2022, the October 2022
edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
pg. 7
44. In this framework, taking into account that the Respondent lodged a counterclaim against
the Claimant with its duplica dated 3 August 2023, the DRC referred to art. 21 par. 2 of the
Procedural Rules, which reads as follows:
“The respondent(s) may submit a counterclaim with their response to the claim. A
counterclaim shall have the same form as a claim and shall be submitted within the same
time limit as that for the response to the claim” (emphasis added).
45. In this context, the Chamber pointed out that the club failed to submit its counterclaim
with its reply dated 3 April 2023, but only did so in the final comments. Taking into account
the clear provision in the Procedural Rules, the DRC had no other choice that to decide that
the counterclaim is inadmissible.
b. Burden of proof
46. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
47. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
i. Main legal discussion and considerations
48. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that this matter concerns a claim of a club against a player and his
new club for breach of contract based on an offer, which according to the Claimant was
accepted by the player.
49. In this context, the Chamber acknowledged that its task was to decide if the parties validly
concluded an employment relationship and if the player breached such contract.
50. The DRC also noted that the player denied having ever signed such offer. He alleged that
the club forged his signature on the alleged contract submitted in the present proceedings.
pg. 8
51. The foregoing having been established, the Chamber noted that the parties’ first
fundamental disagreement is whether the document allegedly concluded between the
parties on 23 June 2021 can be considered a valid and binding employment contract.
52. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence
which dictates that, in order for an employment contract to be considered 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.
53. The Chamber also recalled the content of art. 13 par. 5 of the Procedural Rules (October
2021 edition), according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof. With this in mind, the Chamber deemed that it
was up to the Claimant to prove that the employment relationship, on the basis of which it
claimed compensation for breach of contract from the player, indeed existed.
54. In casu, after a thorough analysis of the documentation on file, the DRC is of the opinion
that the essentialia negotii were not met in the document on file, as the duration of the
alleged contract as well as the role of the parties are missing. The vague interpretation of
the Claimant that the agreement shall cover one season cannot be followed by the
members of the Chamber.
55. Moreover, the DRC wished to emphasize that the club failed to produce evidence that the
offer was indeed accepted within 24 hours. There is no documentation on file showing that
the player sent the accepted offer back to the club. The Chamber was of the opinion that
the picture on file does not proof that the player indeed signed the document within the
given time-limit.
56. On account of the above, the DRC decided to reject the claim.
pg. 9
d. Costs
57. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
58. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
59. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
IV. Decision of the Dispute Resolution Chamber
1.
The counterclaim of Respondent I, A, is inadmissible.
2.
The claim of the Claimant, B, is rejected.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules Governing the Football
Tribunal).
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
pg. 12