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
Jerom e Perlem uter (France), member
Elv is Chetty (S ey chelles ), member
Takuy a Yam azaki (Japan), member
S tefano S artori (Italy ), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the player,
Play er C, Country D
as Respondent I
and the club,
Club E, Country D
as Respondent II
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
According to the Club of Country B, Club A (hereinafter: the Claimant), it concluded
an employment contract (hereinafter also referred to as: the alleged employment
contract) with the Player of Country D, Player C (hereinafter: the Respondent I or the
player) on 22 April 2016, allegedly valid as from 26 April 2016 until 30 June 2018.
2.
According to the alleged employment contract, the Claimant undertook to pay the
Respondent I a monthly salary of EUR 795, payable until the 15th day of the following
month as well as a bonus “equivalent to his salary”, “at the beginning of his holidays
and during the Christmas season”.
3.
Furthermore, clause eleven of the alleged employment contract reads as follows: “In
the event of a breach of this Contract by the Player, or early termination thereof, the
Player undertakes to pay the Club, as a penalty clause, the sum of € 1,000,000.00 (one
million Euros).”
4.
According to the information contained in the Transfer Matching System (TMS), on
an unknown date, the Respondent I signed an employment contract with the Club of
Country D, Club E (hereinafter: the Respondent II), valid as from 15 July 2016 until 14
July 2021, in turn of a monthly salary of 83,300.
5.
Moreover, according to information contained in the TMS, the Respondent I was
registered with the Respondent II on 15 July 2016, after his previous contract with the
Club of Country B, Club F was mutually terminated. In this regard, the TMS contains a
document dated 15 July 2016, whereby Club F confirms that the Respondent I has
“no contract with this club since 19/4/2016”.
6.
On 16 November 2016, the Claimant sent a letter to the Respondent I and to the
Respondent II, requesting payment of EUR 1,000,000 in accordance with clause eleven
of the alleged employment contract.
7.
On 21 December 2016, the Claimant lodged a claim against the Respondent I and the
Respondent II in front of FIFA for breach of contract and requested the payment of
EUR 1,000,000, plus 5% interest p.a. as well as sporting sanctions to be imposed on
the Respondents.
8.
In its arguments, the Claimant held that the Respondent I left Country B after signing
the alleged employment contract and that it was not able to contact him anymore
under the address provided therein.
9.
Moreover, the Claimant argued that it became aware that the Respondent I signed a
contract with the Respondent II, thus breaching the employment contract allegedly
signed with it on 22 April 2016.
Club A, Country B / Player C, Country D / Club E, Country D
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10.
In this context, the Claimant invoked clause eleven of the alleged employment
contract and requested the amount of EUR 1,000,000 as compensation.
11.
The Claimant further pointed out that the notification it had sent on 16 November
2016 remained unanswered by the Respondent I and the Respondent II.
12.
In his reply to the claim, the Respondent I explained that the only club he was
registered with in Country B was Club F. In this respect, he confirmed having trained
with the Claimant, however he denied having signed any employment contract with
it. In this context, the Respondent I maintained that he returned to Country D to play
for the Respondent II after the employment relationship with Club F was mutually
terminated.
13.
Despite having been invited to do so, the Respondent II did not submit its position
regarding the claim.
14.
In its replica, the Claimant entirely reiterated the position expressed with its claim
and held that its submission had “nothing to do with the [Respondent I]’s previous
contract” with Club F.
15.
Furthermore, the Claimant argued that the alleged employment contract was duly
signed, however it could not have been registered with the Football Federation of
Country B since the Respondent I left without authorisation, “making it impossible to
apply for his residence visa”.
16.
Despite having been invited to do so, the Respondent I, as well as the Respondent II,
did not submit further rejoinders.
17.
Moreover, following an explicit request of the FIFA administration, right before the
present decision was rendered, the Claimant produced what it claimed to be the
original copy of the alleged employment 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 21
December 2016. Consequently, the DRC concluded that the 2015 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
Club A, Country B / Player C, Country D / Club E, Country D
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Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns a dispute with an international dimension between a Club of Country B and
a Player of Country D in relation to an alleged employment relationship between the
two aforementioned parties invoked by the club.
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 2018),
and considering that the present claim was lodged on 21 December 2016, the 2016
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, on 22 April 2016, it had concluded an employment contract with the
Respondent I, valid as from the date of signature until 30 June 2018 and in
accordance with which it had undertaken to pay the latter a monthly salary of EUR
795, as well as a bonus “equivalent to his salary”. The DRC further acknowledged
that, according to the Claimant, the Respondent I, after the alleged signing of the
employment contract, left Country B to sign with the Respondent II. Consequently,
the Claimant asked to be awarded compensation for breach of contract by the
Respondents in the amount of EUR 1,000,000 plus 5% interest p.a., in accordance
with clause eleven of the alleged employment contract, as well as sporting sanctions
to be imposed on them.
6.
On the other hand, the DRC noted that the Respondent I, for its part, categorically
denied the conclusion of an employment contract with the Claimant. The Respondent
I admitted having trained with the Claimant but maintained that he never signed an
employment contract with it and that the only Club of Country B with which he was
registered in Country B was Club F.
7.
In continuation, the members of the DRC took note that the Respondent II, for its
part, failed to present its response to the claim of the Claimant, despite having been
invited to do so. In this way, so the Chamber deemed, the Respondent II renounced
its right to defence.
8.
In light of the above, the members of the Chamber observed that the pivotal issue in
this dispute, considering the diverging position of the Claimant and the Respondent
I, was to determine as to whether or not an employment contract between them had
been concluded. The DRC further observed that, only if the previous question were to
Club A, Country B / Player C, Country D / Club E, Country D
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be answered in the affirmative, it would be necessary to determine whether the
contract had been terminated without just cause by the Respondent I and, in case,
the consequences thereof.
9.
In view of this dissent between the Claimant and the Respondent I in respect of the
basic above-mentioned underlying question, 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 alleged
employment contract, on the basis of which it claimed compensation for breach of
contract from the Respondents, indeed existed.
10.
Having stated the above, the Chamber recalled that, after the closure of the
investigation in the present matter and only right before the present decision was
rendered, the Claimant produced the alleged original version of the document at the
basis of the dispute.
11.
Consequently, the DRC took note of the evidence provided by the Claimant.
However, the members of the Chamber deemed it important to firstly recall that,
according to the DRC’s well established jurisprudence, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as
the ones concerning falsified signature of documents, and that such affairs fall into
the jurisdiction of the competent national criminal authority.
12.
In respect of the above, the members of the Chamber, nevertheless, pointed out that
all the documentation remitted would be considered with free discretion and,
therefore, they focused their attention on the version of the alleged employment
contract lastly produced by the Claimant as well as on other documents
uncontestably containing the Respondent I’s signature, provided by the parties in the
context of the present dispute.
13.
The members of the DRC, thus, proceeded to thoroughly examine the documents on
file. In particular, they compared the relevant signatures of the Respondent I in the
various documents provided in the present affair and had no other option but to
conclude that, for a layman, the signatures on the documents the validity of which
was not contested, such as the Respondent I’s new employment contract with the
Respondent II as well as his declaration concerning third party ownership (TPO)
contained in the TMS, appear to be totally different from the one placed on the
alleged employment contract.
14.
In light of the foregoing, the members of the Chamber decided that the document
presented by the Claimant in support of its allegation that it had entered into an
employment relationship with the Respondent I could not be taken into account as
an employment contract legally binding between the parties.
Club A, Country B / Player C, Country D / Club E, Country D
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15.
As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove that an employment contract had validly been concluded
between himself and the Respondent I, there was no possibility for the Chamber to
enter into the question of whether or not such alleged employment contract had
been breached.
16.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Club 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Club A, Country B / Player C, Country D / Club E, Country D
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