Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 14 September 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Jérôm e Perlem uter (France), member
Elv is Chetty (S ey chelles ), member
S tefano S artori (Italy ), member
Takuy a Yam azaki (Japan), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
According to the player of Country B, Player A (hereinafter: Claimant), he and
the club of Country D, Club C (hereinafter: Respondent), entered into an
employment relationship by signing the “Confirmation of Participation in
Club C Participation Agreement” (hereinafter referred to as: the alleged
contract or pre-contractual agreement), valid as from 1 January 2018 until 31
December 2018.
2.
According to the alleged contract, The [Claimant] is welcome to join the
[Respondent] in the position of “Player” effective from 1 January 2018 until
31 December 2018.” and that “The [Claimant] will get 144,000 US Dollar net
for total contract”, consisting of a payment of USD 24,000 “net ahead
(deducted from the [Claimant]’s total contract salary) in the following day
after passing medical tests […]” and a monthly salary of USD 10,000 to be
paid the 10th day of each month. In addition, the alleged contract provided,
inter alia, for “accommodation with at the [Respondent]’s sole discretion
during [the Claimant’s] participation with the [Respondent]” and “1 (one) car
to use during the above-mentioned term”, plus 3 round trip tickets in
economy class Country B - Country D.
3.
The alleged contract further stipulates that “If you agree to the details and
conditions contained in this Agreement including the Standard Terms of
Participation and the Rules and Regulations attached hereto which shall be
integral parts hereof, please sign below and initial every page and return one
original copy to the [Respondent]”.
4.
By letter dated 5 March 2018, the Claimant informed the Respondent that in
spite of the alleged failure to remit his salary, he was “desirous of complying
with [his] contractual obligations and joining the team as soon as possible”,
while putting it in default of payment of USD 24,000 for the abovementioned advance payment as well as of his monthly salaries of January and
February 2018. With the same correspondence, the Claimant asked the
Respondent to provide him with: (i) “proof of accommodation + transport”;
(ii) a flight ticket from Country B to Country D and (iii) the Respondent’s
“training schedule” in order to “resume duties” by no later than 14 March
2018.
5.
By letter dated 14 March “2017”, the Claimant unilaterally terminated the
alleged contract, claiming that, by then, the Respondent had failed to remit
him USD 24,000 as “signing fee” and USD 30,000 representing his salaries of
January, February and March 2018.
6.
On 23 April 2018, the Claimant lodged a claim against the Respondent in
front of FIFA, maintaining that he had just cause to terminate the alleged
contract and requesting to be paid the total amount of USD 231,600,
consisting of:
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a. USD 56,400 as outstanding remuneration, corresponding to: USD 30,000
for salaries (namely, USD 10,000 each month from January to March 2018),
USD 24,000 for the signing-on fee and USD 2,400 for accommodation and
transportation expenses for 3 months, “calculated ex aequo et bono”, plus
5% interest p.a. “on the amount requested for payment arrears from the
day the payment was due, until the day these sums are effectively paid”;
b. USD 175,200 as compensation for breach of the alleged contract,
corresponding to: (i) USD 90,000 as its residual value; (ii) USD 7,200 as
compensation for rent and accommodation “calculated ex aequo et
bono”; (iii) USD 3,000 for 3 round trips Country B – Country D; (iv) USD
7,500 for moral damages; (v) USD 7,500 for legal fees and (vi) USD 60,000
for specificity of sport, plus 5% interest p.a. on the total amount “from
the day current claim was lodged”.
7.
With his claim, the Claimant further asked that the Respondent be
sanctioned.
8.
More specifically, the Claimant argued that, after having been contacted by
the Respondent, the latter and he entered into an employment agreement
valid as from 1 January 2018 until 31 December 2018.
9.
The Claimant claimed that he “patiently waited for the [Respondent] to
contact him to join the team for the first training sessions” and that,
considering the Respondent’s inertia, he “reacted very proactively by calling
the [Respondent] […] seeking for an explanation” but to no avail.
10.
Moreover, the Claimant explained that he “kept on trying to get a hold on
someone at the [Respondent]” whereas the latter did not react “showing a
disinterest” in his professional services. Moreover, the Claimant argued that,
after having put the Respondent in default, he terminated the alleged
contract with just cause since, by 14 March 2018, three monthly salaries and
the signing-on fee were outstanding.
11.
In its reply, the Respondent asked that the claim be rejected in its entirety.
12.
More in particular, the Respondent argued that there was no contractual
agreement in place between the parties. In this respect, the Respondent
explained that, on 5 September 2017, it had been contacted by the agency
“Agency E” as the agent representing the Claimant, which was exploring the
possibility of an engagement of the player with the Respondent. The latter
added that, consequently, it had forwarded the agency a copy of the “precontractual agreement”, in order for the Claimant to evaluate it.
13.
With regards to the above, the Respondent pointed out that it had signed
the “pre-contractual agreement” and then forwarded it to the agency but
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that it had not received it back signed by the Claimant until March 2018,
when the latter attached it to his default notice.
14.
Moreover, the Respondent argued that the agency had informed both the
Respondent itself and the Claimant that the pre-contractual agreement had
been cancelled due to the non-acceptance of the Claimant and that neither
of the parties had raised any argument in that regard. In this respect, the
Respondent submitted a statement of the agency, whereby the latter
declared that, on 5 September 2017, being the authorised agent of the
Claimant, it had forwarded the agreement to the Claimant and informed him
“to accept and sign off within 3 days, otherwise the offer will be cancelled
[…]”. With the same statement, the agency added that, 3 weeks later, it had
informed the Claimant that “the offer from the [Respondent] was cancelled
and terminated since his delayed responses” and that “the [Claimant]
accepted the termination without any argument”.
15.
In addition, the Respondent explained that the Claimant never contacted the
Respondent and never expressed the intention to accept its offer and
perform his duties in accordance with the pre-contractual agreement, while
reaching out only in March 2018 to ask the Respondent to pay him
compensation.
16.
Moreover, the Respondent added that the fact that the parties had never
concluded an employment contract is confirmed by a series of circumstances,
namely, (i) the Respondent had never requested the international transfer
certificate (hereinafter: ITC) and never registered the Claimant on the
Transfer Matching System (TMS); (ii) the Claimant never underwent the
medical tests.
17.
In his replica, the Claimant reiterated his position and added that the precontractual agreement concluded between the parties contained all the
essentialia negotii required in order for it to constitute a valid and binding
employment contract.
18.
In continuation, the Claimant explained that, the validity of the alleged
contract could not be affected by the fact that the Respondent did not
proceed with the medical tests and the request of the ITC.
19.
Furthermore, the Claimant pointed out that the agency’s statement
submitted by the Respondent could not be deemed reliable since “there is a
close connection” between the agency and the Respondent and, thus, the
latter’s position is not impartial. The Claimant added that what the agency
had stated is false anyway and that there was no clause in the pre-contractual
agreement providing for a cancellation of the offer after three days.
20.
In its duplica, the Respondent entirely reiterated the position expressed in its
reply to the claim and asserted that it has no close connection with the
agency. Furthermore, the Respondent specified that its arguments concerning
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the medical tests and the ITC were only serving as supporting details to the
main reasoning that there was no contract in place between the parties.
21.
Upon request of FIFA, the Claimant informed that he did not enter into any
new employment relationship after signature of the alleged contract.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC
or Chamber) analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 23 April 2018. Consequently, the DRC concluded that
the 2018 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2018), the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns a dispute with an international
dimension between a player of Country B and a club of Country D in relation
to an alleged employment relationship between the parties.
3.
Subsequently, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2018), and considering that the present claim was
lodged on 23 April 2018, the 2018 edition of said regulations (hereinafter: the
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.
Having said that, the members of the Chamber acknowledged that, according
to the Claimant, he entered into an employment relationship with the
Respondent by signing the pre-contractual agreement, valid as from 1
January 2018 until 31 December 2018, in accordance with which the
Respondent allegedly had undertaken to pay him USD 144,000 for the whole
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duration of the employment relationship. The Respondent had allegedly not
been interested in his services after the alleged signing of the employment
contract and, therefore, the Claimant asked to be awarded compensation for
breach of contract by the Respondent in the total amount of USD 231,600.
6.
On the other hand, the DRC noted that the Respondent, for its part,
categorically denied the conclusion of an employment contract with the
Claimant. The Respondent admitted that it had carried out negotiations with
the Claimant’s agent but that the Claimant, after having received a copy of
the pre-contractual agreement, did not send it back countersigned until
March 2018, when he put the Respondent in default and requested flight
tickets to Country D.
7.
Moreover, the Chamber observed that, according to the Respondent, its
version of the facts was confirmed by the Claimant’s agent “Agency E”, which
had declared that it had duly informed its client that the offer it had
forwarded to him on 5 September 2018 had to be considered cancelled due
to the Claimant’s lack of acceptance.
8.
In light of the above, the members of the Chamber observed that the
underlying issue in this dispute, considering the diverging position of the
parties, was to determine as to whether or not an employment contract had
been concluded between the Claimant and the Respondent. The DRC further
observed that, only if this was to be answered in the affirmative, it would be
necessary to determine, also in light of the parties’ stance in the period of
time preceding and following the alleged conclusion of a contract, whether
the latter had been terminated without just cause by the Respondent as
claimed by the Claimant and, if so, to decide on the consequences thereof.
9.
Having said that, the members of the Chamber firstly referred to art. 12 par. 3
of the Procedural Rules, according to which any party claiming a right on the
basis of an alleged fact shall carry the respective burden of proof. The
application of the said principle in the present matter led the members of the
DRC to conclude that it was up to the Claimant to prove that the
employment contract, on the basis of which he claimed compensation for
breach of contract from the Respondent, indeed existed.
10. Having stated the above, the Chamber recalled that the Claimant maintained
that the Respondent’s offer contained all the essentialia negotii of an
employment agreement. In this respect, the DRC, taking into account the
documentation submitted by the Claimant, recognised that the offer, at first
glance, contained by and large the aforementioned requirements. More
specifically, the DRC acknowledged that: i) the Respondent had negotiated
with the Claimant’s agency the terms of a future employment relationship; ii)
the Respondent had drafted an offer referring to the parties, indicating the
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duration of the possible employment relationship and outlining the
remuneration, plus further fringe benefits, such as accommodation and flight
tickets to and from Country D.
11. However, the DRC deemed of utmost importance to underline that, with
regards to the necessary requirement of the parties’ acceptance, the
Respondent claimed that the Claimant had never sent back the countersigned
offer until it was put in default in March 2018. In this respect, bearing in
mind the above-mentioned provision of the Procedural Rules, the members
of the DRC found that the Claimant had not provided any evidence
concerning the day on which he delivered the pre-contractual agreement
with his signature back to the Respondent.
12. As a consequence, the Dispute Resolution Chamber decided that the Claimant
had not been able to prove beyond any reasonable doubt that an
employment contract had been indeed concluded between himself and the
Respondent via, amongst other things, the express acceptance of an offer
that could be unequivocally traced.
13. However, the Chamber was eager to emphasise that, even assuming that the
Claimant had sent his acceptance in a timely manner and therefore fulfilled
all the requirements in order to bind himself to an employment relationship
with the Respondent, the ensuing considerations had to be taken into the
highest account.
14. In this context, the Chamber, first and foremost, underlined that, during the
course of the proceedings, the Respondent produced a statement by means
of which the Claimant’s agency recalled in detail the course of the events
during the relevant period of time. More in particular, the DRC took note
that “Agency E” declared the following:
a. on 5 September 2017, it had forwarded the Respondent‘s offer to the
Claimant explicitly requesting the latter to sign it within the following
three days if he were to accept it;
b. the following day, the Claimant had communicated the agency that he
had received at least two other offers from Indonesian clubs;
c. three weeks after, the agency informed the Claimant that the offer had to
be considered cancelled due to the fact that he had not communicated his
acceptance.
15. Moreover, the DRC observed that, with the same statement, the agency
added that the Claimant had allegedly “accepted the termination without
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any argument” and that he had not raised any objection regarding the deal
being cancelled.
16. In respect of the above, the Chamber found it worthwhile to observe that the
Claimant did not explicitly object the recollection of facts as presented by his
agent but only limited himself to claiming that such statement was given in
bad faith due to the alleged close connection that the agency had with the
Respondent, without presenting any documents in support of such
allegation.
17. Furthermore, the foregoing being emphasised, the members of the Chamber
found of utmost importance to go through the Claimant’s stance during the
relevant period of time.
18. In relation to the above, the DRC turned its attention to the Claimant’s
behaviour following the moment in which the alleged employment
relationship should have started, i.e. 1 January 2018, and the documents
produced in support of his allegations. In this regard, the DRC noticed that
the Claimant explained that, after having signed the pre-contractual
agreement, he “patiently waited for the [Respondent] to contact him to join
the team for the first training sessions” and that he showed a proactive
attitude “by calling the [Respondent] […] seeking for an explanation” and by
“trying to get a hold on someone at the [Respondent]”. However, once again
mindful of the aforementioned provision of the Procedural Rules, the
members of the Chamber concurred in the conclusion that the Claimant did
not provide sufficient evidence corroborating the allegations on the basis of
which he duly put his services at disposal of the Respondent.
19. In other words, due to the lack of any proof whatsoever submitted by the
Claimant, the members of the Chamber endorsed the Respondent’s remark
that the Claimant reached out to it showing interest in executing the alleged
contract only on 5 March 2018, i.e. more than two months after the alleged
employment relationship should have started and seven months from the day
in which he received the offer from the Respondent.
20. Consequently, the Chamber concluded that the Claimant had failed to prove
that he had accepted the Respondent’s offer prior to putting it in default in
March 2018 and that, in any case, he showed that he was no longer
interested in pursuing his contractual relationship with the Respondent,
assuming he ever was in the first place.
21. All the above led the Dispute Resolution Chamber to conclude that the claim
of the Claimant has to be rejected.
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 21 days of receipt of notification of this
decision and shall contain all the elements in accordance with point 2 of the
directives issued by the CAS, a copy of which we enclose hereto. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
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