Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 November 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (Netherlands ), member
S tefano S artori (Italy ), member
Pav el Piv ov arov (Rus s ia), member
Jérôm e Perlem uter (France), 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 between the parties
I.
Facts of the cas e
1.
On 10 October 2016, the Player A (hereinafter: player or Claimant) and the
club of Country B, Club E terminated their employment contract concluded on
20 May 2016.
2.
On 14 January 2017, the club from Country D, Club C (hereinafter: club or
Respondent) sent a letter to the player, to “reinstate” interest to employ him.
In this regard, the club offered, inter alia, the following terms:
- USD 65,000 as “total package” arising from USD 13,000 as monthly salary;
- USD 5,000 for “Winning International Football Tournament”;
- USD 5,000 for “ Winning League”;
- USD 10,000 for “Winning Continental Cup”.
Furthermore, the letter contains the wording: “We look forward to receiving
your acceptance to any of the above options and for a successful season with
you. Please reply back on the Club fax on: XXX”.
3.
On 16 January 2017, Club E issued a declaration dated 16 January 2017, which
reads as follows: “Club E declares to the due effects, that has no economic
rights of a third party and did not celebrate any agreement concerning the
economic rights with the athlete”.
4.
On 27 March 2017, the player lodged a claim in front of FIFA against the club
maintaining that the club failed to comply with its contractual obligations
arising from the letter dated 14 January 2017 and requested to condemn the
club to comply with it or, alternatively, to be awarded payment of the total
amount of USD 85,000 as value of the “proposal” and USD 15,000 as moral
damages.
5.
In his arguments, the player held that the club “induced him” to breach his
contract with Club E and subsequently “gave up on the deal”.
6.
Moreover, the player argued that he asked Club E to terminate his contract, in
order to join the club as it was interested in his services.
7.
Furthermore, the player pointed out that, after having received the club’s
letter on 14 January 2017, he accepted the “proposal”.
8.
In its answer, the club requested to dismiss the player’s claim since there was
no contract concluded between the parties.
9.
The club maintained that it was not involved in the termination of the player’s
contract with Club E. In this regard, it pointed out that it contacted the player
more than three months after such termination, which, according to the
documents submitted by the player, was initiated by the employer, Club E.
Player A, Country B / Club C, Country D
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10.
Regarding the letter dated 14 January 2017, the club argued that the player
never accepted the offer made by the club.
11.
In his replica, the player reiterated his position and submitted a statement of
his agent, confirming that the club contacted him in January 2017 in order to
employ the player. The agent further explained that he forwarded the letter
dated 14 January 2017 to the player, who accepted the offer on 15 January
2017. Allegedly, the agent forwarded “the written proposal signed” by the
player to the club.
12.
Furthermore, the player argued that the letter dated 14 January 2017
mentions the words “reinstated interest”, which according to him shows that
the club contacted him long before.
13.
The player brought forward that he accepted the “offer” sent by the club by
signing the proposal, orally via phone, by sending WhatsApp messages,
through his agent and again by the letter sent by his representative on 30
January 2017
14.
Moreover, the player referred to a declaration issued by Club E and argued
that the contract was terminated only on 16 January 2017, in order “to be free
to sign” with the club.
15.
In its duplica, the club reiterated its position and argued that no contract was
concluded since the player never accepted the offer.
16.
In this regard, the club rejected the player’s argumentation and pointed out
that none of the documents submitted contain the player’s signature.
17.
Furthermore, the club pointed out that according to its letter sent on 14
January 2017, the player needed to accept the offer via fax. In this regard, the
club held that even if the documents submitted by the player would proof an
acceptance, it would be invalid since the player failed to accept the offer via
fax. The club further clarified that it denies that any of the documents
submitted by the player prove his acceptance of the offer.
18.
Moreover, the club argued that the letter dated 14 January 2017 was not an
offer, which could have been consented to with immediate effect, but only to
formulate interest in the player in general.
19.
Finally, the player confirmed that he remained unemployed during the
relevant period.
Player A, Country B / Club C, Country D
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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 27 March 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 2016) 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 from Country D in
relation to an alleged employment relationship between the two aforementioned
parties invoked by the player.
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 2016), and considering that the present claim was lodged on
27 March 2017, the 2016 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 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 of all, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that a valid and binding
employment contract was concluded between the parties since he allegedly
accepted the contract offer submitted by the Respondent on 14 January 2016.
In this respect, the Claimant asks to be awarded compensation for breach of
the employment contract as well as an indemnity for moral damages.
6.
The Respondent, for its part, rejected the player’s claim and argued that the
letter dated 14 January 2016 did not represent an offer to which the player
could have immediately consented. Furthermore and notwithstanding the
Player A, Country B / Club C, Country D
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above, the Respondent held that the player failed to submit any proof that he
accepted such alleged proposal.
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 was up to the player to prove that the
employment contract, on the basis of which he claims compensation for
breach of contract from the Respondent, indeed existed.
8.
In this regard, the Chamber recalled that it has remained undisputed that the
Respondent sent a letter to the Claimant on 14 January 2016 containing an
offer to conclude an employment contract.
9.
Moreover, the DRC observed that the player alleged having subsequently
accepted such offer by signing the respective offer. Along these lines, the
Chamber took note of the player’s allegation that he verbally via phone, via
WhatsApp messages and via a subsequent letter of his representative accepted
the Respondent’s offer.
10.
Having duly taken note of the aforementioned documentation presented by
the Claimant, 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 through a contractual relationship with the terms as
described by the Claimant, it had to be established, to its satisfaction, by
documentary evidence, that the said parties had indeed entered into a
respective labour agreement, and, if so, under which terms. In general, the
DRC held that they could not assume that an employment contract had been
concluded by and between the 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.
11.
In this context, after having exhaustively examined the documents on file, the
members of the Chamber noted that none of the submitted copies of the
letter dated 14 January 2016 contain the player’s signature.
12.
Moreover, the DRC noted that the Claimant did not submit corroborating
evidence supporting his allegation that he indeed accepted the club’s proposal
dated 14 January 2016. In particular, the Chamber stressed that the WhatsApp
messages submitted by the Claimant are undated and that it remained unclear
Player A, Country B / Club C, Country D
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with whom said correspondence was concluded and if said person was an
official representative of the club. In this regard, the DRC agreed that these
messages cannot constitute an acceptance of the offer in question.
13.
Furthermore, the members of the Chamber referred to the letter dated 30
January 2016, sent by the player’s legal representative to the club and
established that said letter does not constitute an acceptance of the offer
dated 14 January 2016, but rather a reminder to comply with the allegedly
already concluded contract. As a consequence, the DRC decided that said
letter cannot be considered as acceptance of the offer.
14.
As a consequence, the DRC 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.
15.
In view of the above, the Chamber concluded that the claim of the player has
to be rejected.
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
Player A, Country B / Club C, Country D
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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
Player A, Country B / Club C, Country D
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