Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 September 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Mario Gallavotti (Italy), member
Taku Nomiya (Japan), member
on the claim presented by the player,
Player 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 case
1.
On 27 April 2016, the Player of Country B, Player A (hereinafter: the Claimant),
lodged a claim in front of FIFA against the Club of Country D, Club C (hereinafter:
the Respondent), for breach of contract. In this regard, the Claimant alleged that he
had concluded an employment contract with the Respondent valid as of 25 July
2015 until 15 June 2016, and provided, in support of such allegation, a copy of a
contract which is not signed by either of the parties.
2.
Clause second of the contract stipulates that “[t]his Contract will come into effect
after passing fitness test and approved by the Football Federation of Country D and
the General Organization for Youth & Sports.”
3.
According to clause third of the contract, the Claimant was entitled to the following
remuneration:
USD 20,000 payable “when receiving The International Card and when the
[Claimant] passes the medical examination”;
USD 5,000 per month (USD 5,000 x 10 months);
Accommodation;
A private car
4.
In continuation, clause third article 5 e- of the contract reads as follows: “If the
[Respondent] wishes to terminate the contract for general interest it do not pay any
amount”.
5.
Pursuant to clause third article 5 f- of the contract “if [the Claimant] wishes to
terminate the Contract for any reason, he should pay [the Respondent] US $
85,000.00”.
6.
The Claimant requested to be awarded with the amount of USD 85,000 to be paid
by the Respondent as “a penalty for the [Claimant] because of the early rescission of
the contract in the same way the [Claimant] would pay if the termination had
happened because of him”.
7.
According to the Claimant, he arrived in City E, and started training with the team
after being provided by the Respondent with flight tickets, accommodation and a
private car.
Player A, Country B / Club C, Country D
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8.
Moreover, the Claimant claims that the Respondent, after one week of training,
notified him that “they wouldn’t like to continue with him at the squad”. In this
regard, the Claimant asserts that the Respondent kept him at its disposal without
giving him a signed copy of the employment contract and that it terminated said
contract without just cause.
9.
In reply to the Claimant’s claim, the Respondent alleges that the contract provided
by the Claimant in his claim was an “unsigned offer”, which was sent to the
Claimant for information purposes.
10.
As for the termination alleged by the Claimant, the Respondent acknowledges
having invited the Claimant to Country D and asserts that the arrival of the latter to
Country D was on 20 July 2015 and his departure on 12 August 2015, i.e. 22 days.
11.
The Respondent declares that it did not conclude a contract with the Claimant
because the latter, after “several exercises and matches to find out his skills”, failed
to pass the trial tests and, therefore, the coaching staff of the team did not approve
his acquisition. According to the Respondent, after failing the relevant test, it
agreed “verbally” with the Claimant that he would return to Country B and bought
for him the relevant flight tickets.
12.
In his replica, the Claimant reiterates that the Respondent unilaterally terminated
the contract highlighting that he was already receiving part of his remuneration by
the provision of accommodation and a private car.
13.
Furthermore, the Claimant stresses that the Respondent itself in its reply to the
claim acknowledged that the Claimant was an official member of the team as he
was training and playing for the Respondent. In this context, the Claimant affirms
that the 22-day period cannot be considered as a “fitness test” because it clearly
exceeded the time to observe if the Claimant was fit for the team.
14.
In its duplica, the Respondent declares that “it was clear to the [Claimant] from the
beginning that the signing of the contract will take place after the technical
evaluation by his team head coach”.
15.
Consequently, the Respondent maintains that, after not passing the trial tests, the
Claimant agreed to return to his homeland under the expenses of the Respondent.
In this context, the Respondent provided a document, dated 12 August 2015 and
signed by the Claimant, called “Financial Clearance” which establishes the
following:
“I, the undersigned Mr. Player A Holding Passport of Country B No XXX, Leaving
Country D after being involved with the [Respondent], First Team Football as a
Professional Player under evaluation.
Player A, Country B / Club C, Country D
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And according to the previous agreement with the Club management, that I got
only return air ticket to my country, If I don’t pass the medical test and technical
evaluation.
I sign this notification, without any liabilities towards the club”.
16.
In his final comments, the Claimant declares that the signature contained in the
“Financial Clearance” is not his signature and further alleges that he “would never
leave the [Respondent] and the country without any financial compensation”,
denying having signed the “Financial Clearance”. In this regard, the Claimant
highlights that the signature contained in the “Financial Clearance” does not match
with the signature contained in the power of attorney attached to the claim and his
passport.
17.
Moreover, the Claimant remarks that the number of his passport contained in the
“Financial Clearance” belongs to his old passport, concluding that the “Financial
Clearance” is a fake document.
18.
In its final comments, the Respondent firstly acknowledged its mistake regarding
the passport number and highlighted that the signature contained in the Claimant’s
passport “is the authorized signature for the [Claimant]”. Regarding the Claimant’s
allegations for the fake signature contained in the “Financial Clearance”, the
Respondent affirms the veracity of the document and denies that the signature
contained in said document is fake. In this context, the Respondent provided FIFA
with the original of the “Financial Clearance”.
19.
The Respondent ascertains that the Claimant uses several signatures, which explains
why the signature contained in the “Financial Clearance” is different from the one
contained in his passport and power of attorney. Nevertheless, the Respondent
points out that the signature contained in a previous employment contract of 2012
between the parties and in a document called “Original Payment Receipt Voucher
in Language F” dated 8 August 2015, is the same as the one contained in the
“Financial Clearance”.
20.
Finally and by an unsolicited statement, the Claimant insists that the signature
contained in the “Financial Clearance” is fake and that it does not match with the
other two documents attached by the Respondent in its last correspondence.
21.
Upon request of FIFA, the Claimant informed that he did not sign a new
employment contract with any other club.
Player A, Country B / Club C, Country D
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II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 submitted to FIFA on 27 April
2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. article 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 2015) the Dispute Resolution Chamber is 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 employmentrelated relationship between the two aforementioned parties, invoked by the
Claimant.
3.
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 Players (edition
2015), and considering that the present claim was lodged on 27 April 2016, the 2015
version 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.
5.
In doing so, the members of the Chamber acknowledged that, according to the
Claimant, on 25 May 2015, he had concluded with the Respondent an employment
contract valid from 25 July 2015 until 15 June 2016. The Chamber also took note of
the Claimant’s allegations according to which the Respondent had terminated said
contract without just cause.
6.
The DRC further took due note of the fact that the Respondent, on its part, had
categorically denied the conclusion of an employment contract with the Claimant.
In particular, the Chamber noted that albeit it acknowledged having remitted an
unsigned offer to the Claimant, the Respondent alleges that due to the Claimant’s
Player A, Country B / Club C, Country D
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failure to comply with the technical and physical requirements, the parties agreed
that they would not enter into an employment contract.
7.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them had been concluded, 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 up to the Claimant to prove that the employment contract, on the basis of
which he claims compensation for breach of contract from the Respondent, indeed
existed.
8.
Having stated the above, the DRC recalled that the Claimant maintained that he
never received a copy duly signed by both parties of the employment contract he
asserts having signed with the Respondent. In this regard, the Chamber held that
the fact the Claimant had only submitted a copy of the disputed contract which did
not bear any signatures was insufficient to establish the existence of the alleged
contractual relationship.
9.
Nevertheless, the Claimant had submitted documentation in support of his claim
which were subsequently examined by the members of the Chamber.
10.
First, the Chamber analysed the round-trip flight ticket providing for a return on 9
June 2016. In this regard, the DRC pointed out that it is likely that having in mind
the potential signature of a one-year contract with the Claimant, the Respondent
initially chose 9 June 2016 as return date, but then, and after the Claimant’s failure
to pass the technical and physical tests, decided to change it to 12 August 2015.
Thus, the Chamber held that the mere fact that the Respondent had initially
provided the Claimant with a return ticket on 9 June 2016 is not sufficient to prove
the existence of a contractual relationship between them.
11.
In continuation, the DRC emphasised that the Claimant did not submit any element
demonstrating that the Respondent had started to execute the contract by
providing him with accommodation and a private car.
12.
Thereafter, the Chamber focused its attention on the “Financial Clearance”, which
the Claimant alleged he had not signed. In this regard, the Chamber considered it
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 ones of alleged
falsified signature or document, and that such affairs fall into the jurisdiction of the
competent national criminal authority.
Player A, Country B / Club C, Country D
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13.
This being said, the Chamber recalled that all documentation remitted shall be
considered with free discretion and, therefore, compared the signature on the
“Financial Clearance” to the ones contained in other documents containing the
Claimant’s signature, provided by the parties in the context of the present dispute.
In this regard, the Chamber pointed out that the original version of the “Financial
Clearance” was provided by the Respondent.
14.
After a thorough analysis of the aforementioned documents, in particular,
comparing the relevant signatures of the Claimant in the various documents
provided in the present affair, the Chamber had no other option but to conclude
that, for a layman, the signatures on such documents appear to be the same.
15.
Therefore, and recalling its well-established jurisprudence according to which a
party signing a document of legal importance, as a general rule, does so on its own
responsibility, the Chamber established that said document constitutes an
acknowledgment that the parties did not enter into an employment relationship.
16.
Finally, the members of the Chamber highlighted that the fact that the Claimant
has never requested the Respondent to comply with its obligations prior to lodging
his claim on 27 April 2016, i.e. almost 9 months after his departure from Country D,
seems to confirm that the contract was actually never signed.
17.
In light of all the aforementioned considerations, 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 by a contractual relationship, it had to be
established, beyond doubt, by documentary evidence, that the said parties had
indeed entered into a respective 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 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
Dispute Resolution Chamber must be very careful with accepting documents, other
than the employment contract, as evidence for the conclusion of a contract.
18.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove beyond doubt that the
Respondent and the Claimant had validly entered into an employment contract.
19. As a consequence, the DRC decided that, since the Claimant had not been able to
prove beyond doubt that an employment contract had validly been concluded
between himself and the Respondent, there was no possibility for the Chamber to
enter into the question whether or not such alleged employment contract had been
breached.
Player A, Country B / Club C, Country D
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20. All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The
full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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