Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Takuya Yamazaki (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 arisen between the parties
I.
Facts of the case
1.
On 20 August 2014, the Player A from country B (hereinafter: player or Claimant)
allegedly signed an employment contract (hereinafter: document) with the Club
C from country D (hereinafter: club or Respondent), with a duration as from
November 2014 until the end of the country D’s sporting season 2015.
2.
The document contains a signature of a “Director” as well as a handwritten name
likely referred to as “Mr E”.
3.
According to the preamble of the document and its art. 1, it is stipulated that
“After considering the needs and prepare plans forces Club C in season 2015, the
Club C decided: Agreed to sign a labor contract with Player E.”
4.
According to art. 4 of the document, it is stipulated that “Salary of player by
month is: 7.000 USD/month. Club C will pay direct to player everymonth.”
5.
According to art. 5 par. 2 of the document, “ticket for player’s family, house for
player’s family: Club C and partner of club (Mr F) will pay all.”
6.
According to art. 5 par. 3 of the document, it is stipulated that “Two sides will
sign the labor contract in detail on 15/11/2014, all the terms on wages, transfer
fees and other benefits must be made in accordance with this commitment. And
player must go hospital to test injury and health care before sign contract. If he
have any injury or problem about health, Club C will stop contract and give ticket
money for him fly back home.”
7.
On 14 December 2015, the player lodged a claim for breach of contract against
the club in front of FIFA based on the assertion that although a contract was
signed between the parties and he started to play for the club, the latter never
paid him any salaries and “send him back home without rescind his contract”.
8.
Against such background, the player requested that the club be ordered to pay
him USD 28,000 as compensation for breach of contract without just cause, plus
5% interest p.a. as from the due date. In this respect, the player specified that the
alleged contract was valid as from November 2014 until February 2015.
9.
In reply to the player’s claim, the club denied having signed a contract with the
player and deemed that the document the player presented is forged.
10.
In support of its standpoint, the club asserted that it does not know the player
and that he does not appear in any of its records.
11.
Furthermore, the club stressed that the document “is not made by Club C” since
(i) its layout does not correspond to the club’s template (logo and header), (ii) it
does not set forth any clear date, time and location for the parties’ meeting, (iii)
Player A, country B / Club C, country D
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the club’s name is wrongly drafted in country D’s language as it reads Club C
JOINT STOCK COMPANY instead of Club C, and (iv/v) the contract is neither
stamped nor is the signature of the club’s former director genuine.
12.
In support of this last argument, the club presented a written testimony issued by
the club’s former director, Mr E, whose signature reportedly appears on the
document. According to said testimony, which was made before a public notary,
the club’s former director stated that the signature and handwriting of his name
thereon are not his and that the club’s seal is missing on the document. Before
concluding that the document is a forgery, the club’s former director also stated
that he does not know the player and has no archives in connection with his
recruitment.
13.
In his replica, the player maintained his position that the document was signed by
the club. In particular, the player referred to a written conversation his lawyer
had via facebook with the club’s alleged TMS officer, Mr F, who approached him
and with whom he negotiated the contractual terms. In this respect, the player
stressed that in said conversation, the TMS officer wrote him that he was not able
to amend the draft since “this is PDF file from [his] boss, can not edit”. The
alleged TMS officer also answered the player’s question about signing a two
years contract instead of a single season by replying “Only 1 season because we
need to see how [you] play, after three months, if [you] play good, I can sign 1
more season.”.
14.
The player submitted a print-out of the conversation his lawyer allegedly had
with said person. Upon FIFA’s request to be provided with the original version of
the document, the player forwarded the computer print-out of the document he
received from Mr F and bearing the alleged signature of the club’s former
director.
15.
In this regard, the player alleged that the club sent him a written offer already
containing the club director’s signature, which he accepted, as well as flight
tickets. In this respect, he stressed that he “flew to another country and started
to play by the Respondent”. He further underlined that even if the document
only consisted of an offer, his acceptance thereof led the parties to be bound by
a valid contract.
16.
On account of the aforementioned, the player maintained his claim in full.
17.
In its final comments, the club asserted that the person the player allegedly
negotiated with, Mr F, is neither its TMS officer nor does he belong to the club’s
staff. Consequently, the club reiterated that the club neither signed a contract
with the player nor did it negotiate any agreement with the player.
18.
In this respect, the club specified that “all transaction with partners is done by Mr
F himself. (…) Mr. F introduced foreign and domestic players to Club C and he
Player A, country B / Club C, country D
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was also authorised by players to negotiate with our club. Club C provides Power
of Attorneys which players authorizing Mr. F so as to demonstrate that Mr. F is
not the staff of Club C.”
19.
In support of its assertion that Mr F is a middleman to whom players give a
mandate to represent them in recruitment negotiations with the club, the club
submitted copies of the respective power of attorney that four players gave to
the aforementioned person to assist them within the framework of employment
contract-related negotiations with the club.
20.
According to the information contained in the Transfer Matching System (TMS),
the player was registered with a club in country G as from January 2014 and
subsequently registered with a club in country H as from November 2015.
II.
Considerations of the Dispute Resolution Chamber
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 14 December 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
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 and par. 2
in combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2016) 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 from country B and a club from
country D.
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 par. 2 of the Regulations on the Status and Transfer of Players
(edition 2016), and considering that the present claim was lodged on 14
December 2015, the 2015 edition 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 DRC 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
Player A, country B / Club C, country D
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the assessment of the matter at hand. Furthermore, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use,
within the scope of proceedings pertaining to the application of the Regulations,
any documentation or evidence generated or contained in the Transfer Matching
System (TMS).
5.
Having said that, the Chamber noted that the Claimant argued that after he
concluded a valid contract with the Respondent following negotiations with the
Respondent’s alleged TMS officer and he started to play for the club, the
Respondent never paid him any of his salaries and “send him back home without
rescind his contract.”
6.
As a consequence of the aforementioned, the Claimant considered that the
Respondent acted in breach of contract and requested inter alia that it be
ordered to pay him compensation in the amount of USD 28,000 for the period of
time as from November 2014 until February 2015.
7.
In continuation, the Chamber noted that the Respondent, for its part, held that it
never signed an employment contract with the Claimant and that the signature
on the document the latter presented in support of his claim is forged, in that it
does not correspond to its former director’s signature.
8.
The Respondent further held that the person the Claimant allegedly was
negotiating with was not employed by the Respondent or entitled to represent
it. Therefore, the Respondent rejected the Claimant’s claim.
9.
Having established the aforementioned, the Chamber deemed that the
underlying issue in this dispute, considering the claim of the Claimant and the
arguments of the Respondent, was first to determine as to whether a valid
employment contract had been entered into by and between the parties.
10.
Accordingly, the Chamber went on to deliberate as to whether the document
submitted by the Claimant in support of his claim for breach of contract without
just cause against the Respondent consists of a valid and binding employment
contract.
11.
In this context, 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
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 a
valid employment contract binding the parties in dispute.
12.
In this respect, the Dispute Resolution Chamber recalled that the Respondent, for
its part, had inter alia maintained that it never signed an employment contract
Player A, country B / Club C, country D
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with the Claimant and that the signature on the document remitted by the
Claimant was forged.
13.
Against such background, the members of the Chamber were eager to underline
that the Claimant was unable to provide the original version of the document
signed by the hand of the parties involved.
14.
In addition, the Chamber acknowledged that the Respondent had supported its
aforementioned argument by a notarised statement issued by its former director,
Mr E, and that said testimony had not been conclusively challenged by the
Claimant.
15.
Additionally, the Chamber reverted to the Claimant’s argument that the
contractual negotiations were held between his lawyer and the Respondent’s
alleged TMS officer, which line of argumentation was rejected by the
Respondent, who denied that the person referred to by the Claimant in this
respect was the TMS officer or any other member of staff.
16.
In this respect, the Chamber deemed that, in the absence of information or
documentation on file establishing that said person was an employee of the
Respondent at that time or that he ever was empowered by the Respondent to
conduct employment-related negotiations with the Claimant, the Respondent
could not be bound by statements that individual made out of his own initiative
within the framework of the conversation he apparently had with the Claimant’s
lawyer via facebook.
17.
Furthermore, the members of the Chamber noted that the Claimant had not
corroborated his statement that he started to play for the Respondent with
documentary evidence.
18.
To conclude in this respect, the Chamber referred to art. 6 par. 3 of Annexe 3 of
the Regulations and highlighted that the TMS does not include any link between
the Claimant, who was registered with a club from country G at the time when
the alleged facts occurred, and the Respondent.
19.
In respect of all of the foregoing, the members of the Chamber concurred that the
Claimant had failed to prove that he and the Respondent had entered into a valid
and binding employment contract.
20.
In continuation, the Dispute Resolution Chamber concluded that, since no valid and
binding employment contract had been concluded between the parties, there was no
need for the Chamber to analyse as to whether a breach of contract had occurred.
21.
On account of the aforementioned, the DRC concluded its deliberations in the
present matter by deciding that the Claimant’s claim against the Respondent is
rejected.
Player A, country B / Club C, country D
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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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