Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 October 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
S tefano La Porta (Italy ), member
Muzam m il Bin Moham ed (S ingapore), member
Tom is lav Kas alo (Croatia), member
Joaquim Ev angelis ta (Portugal), 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, Player A (hereinafter: the Claimant or the player), on 12
January 2016, the player and Club C (hereinafter: the Respondent or the club)
signed an employment contract valid as from its date of signature until 29 May
2016 (hereinafter: the contract).
2. In accordance with “clausula septima” of the contract, the Claimant was entitled
to a monthly salary of USD 5,000, payable on the 10th day of each subsequent
month. Moreover, the Respondent committed to cover the costs for the player’s
accommodation and for “the air transportation to City E for the player and his
wife” (free translation from Spanish).
3. On 10 July 2017, the player lodged a claim against the club for breach of
contract in front of FIFA, requesting the following:
a) USD 25,000 corresponding to the monthly salaries as from January until May
2016, plus 5% interest as of the due dates;
b) USD 2,167 for the cost of the flight tickets which “would have been used” by
the player, plus 5% interest as of the due dates;
c) USD 15,000 as compensation for the specificity of sport, plus 5% interest as of
the date of the DRC decision;
d) EUR 3,650 as compensation for “other objective criteria”, namely the salary
which the player was allegedly entitled to receive from the Club of Country F,
Club G (hereinafter: Club G) for the period between January and May 2016,
plus 5% interest as of the date of the DRC decision;
e) payment of “the attorney’s fees at the rate of 20% on the value of the
conviction”.
4. In his claim, the Claimant affirmed that the Respondent offered him a contract
in the beginning of January 2016, while he was registered with the club, Club G
pursuant to a contract concluded between them valid as from 21 August 2015
until 14 May 2016.
5. According to the Claimant, upon his request, he and Club G mutually terminated
their contract allegedly “on 7 or 8 of January”, upon which the Respondent sent
him the new contract already “signed and stamped”.
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Player A, Country B / Club C, Country D
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6. The Claimant also averred that the Respondent announced the signature of the
contract on its official Facebook page on 13 January 2016 and the player booked
a flight on the same date from Country F to Country B. The Claimant also alleged
that, from Country B, he would have eventually left for Country D.
7. However, according to the Claimant, once he arrived to Country B on 14 January
2016 and requested the Respondent to provide him with flight tickets from
Country B to Country D, the club “disappeared”.
8. Moreover, the Claimant pointed out that the Respondent, on 17 January 2016,
allegedly released a statement whereby it declared that the player would not
join the club due to “lack of diligence”.
9. Consequently, the Claimant argued that the Respondent breached the alleged
contract and he was entitled to outstanding remuneration and compensation for
breach of contract.
10. In its reply, the Respondent contested the argumentations of the Claimant. In
particular, the Respondent admitted that it entered into negotiations with the
player and that it sent him a provisional draft via e-mail, which, allegedly, the
Claimant did not reply to. As a consequence thereof, the Respondent affirmed
that no contract was ever concluded with the player who, reportedly, never
arrived to Country D. Moreover, the Respondent emphasised that, consequently,
no transfer instruction was opened on the TMS.
11. In continuation, the Respondent denied having issued the statements alleged by
the Claimant.
12. Furthermore, the Respondent affirmed that the copy of the contract submitted
by the Claimant was forged, adducing the following reasons:
a) the club’s president and the club’s secretary did not sign the contract and
their signature, as it appears on the last page of the contract, is different
from their genuine signature. In this context, the Respondent submitted copy
of the identity card of the president and secretary, containing their signature;
b) only the last page of the contract, i.e. the one containing signatures, is
printed on the current letterhead of the club. The other pages of the contract
are printed on the former letterhead of the latter, which the latter allegedly
ceased to use as of 5 August 2015.
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Player A, Country B / Club C, Country D
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c) the last page of the contract is overlapped on the other pages, as it repeats
the clauses “undécima, duodécima, décimo tercera y la décimo cuarta”, which
are contained also in the previous pages. In particular, the Respondent
argued that this fact shows how the last page of the contract was just added
to the draft the club had previously sent to the player.
13. In his replica, the Claimant rejected the Respondent’s position in full and
maintained that the document the club sent him via e-mail was neither a
preliminary document nor a draft but, rather, a complete contract signed and
stamped by the representatives of the Respondent, containing all the essentialia
negotii.
14. Despite having been invited to do so by the FIFA administration, the Claimant
did not provide the original version of the contract allegedly signed with the
club and the Respondent did not provide further comments on the present
affair.
15. Finally, upon request of FIFA, the Claimant informed that he remained
unemployed from 17 January 2016 until 29 May 2016.
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 10 July 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
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 2018), 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 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 2018), and considering that the present claim was lodged on 10 July
2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
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Player A, Country B / Club C, Country D
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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. First, the Chamber noted that, according to the Claimant, on 12 January 2016
the player and the club concluded an employment contract valid as from the
date of signature until 29 May 2016. The Claimant further alleged that,
nevertheless, the Respondent did not provide him with the flight tickets in order
to reach Country D and eventually announced that such contract had not been
concluded. On account of the above, the Claimant requested to be awarded
compensation for breach of contract.
6. The Dispute Resolution Chamber equally took due note of the fact that the
Respondent, for its part, admitted having sent an alleged draft of contract to the
Claimant; it denied, however, having concluded any employment contract with
the Claimant.
7. 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.
8. Having stated the above, the Dispute Resolution Chamber recalled that the
Respondent affirmed that it never signed a written employment contract with
the Claimant and maintained that the copy of the contract remitted by the
Claimant was forged.
9. What is more, the members of the Chamber stressed that the Respondent,
despite having been invited by the FIFA administration to do so, was unable to
provide an original specimen of the employment contract.
10. At this stage, the Dispute Resolution Chamber considered 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.
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Player A, Country B / Club C, Country D
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11. In continuation, the DRC recalled that, according to art. 12 par. 6 of the
Procedural Rules, all documentation remitted shall be considered with free
discretion and, therefore, it focused its attention on the copy of the alleged
contract submitted by the Claimant.
12. On account of these considerations, the Chamber held that, in accordance with
its long-standing jurisprudence, the fact the Claimant had only submitted a copy
of the disputed contract was, per se, insufficient to establish the existence of the
alleged contractual relationship.
13. The members of the Chamber were comforted with such conclusion by the fact
that the copy of the alleged contract presented by the Claimant appeared
inconsistent. In particular, its last page was apparently drafted on a different
letterhead and, what is more, it repeated some of the clauses already inserted in
the previous page. Based on these elements, the members of the DRC concurred
that the last page of the contract, the only one bearing the alleged signatures of
the parties, appeared, even to the naked eye, to not be part of the rest of the
contested document.
14. Consequently, the members of the Chamber concluded that the Claimant did not
prove that the Respondent and the Claimant had validly entered into an
employment contract, regardless of the fact that, as acknowledged by both
parties, some negotiations took place between the parties. In this regard, the
DRC emphasised that the circumstantial evidence presented by the Claimant, in
particular the alleged statement made by the club, is insufficient to prove to the
Chamber’s satisfaction the existence of an employment relationship.
15. Therefore, on account of all the aforementioned considerations, 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, there was no possibility for the Chamber to enter into the
question 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 player has to be rejected.
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Player A, Country B / Club C, Country D
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III.
Decis ion 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, 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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
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Player A, Country B / Club C, Country D
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