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
Pav el Piv ov arov (Russ ia), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the player,
Play er C, Country D
as First Respondent
and the club,
Club E, Country F
as Second Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 22 August 2014, the club of Country B, Club A (hereinafter: Club A or Claimant)
and the player of Country D, Player C (hereinafter: the player or First Respondent),
signed a document referred to as ‘Offer employment contract Player C (born on
07.10.1993)’, by means of which Club A offered to conclude an employment contract
with the player, valid as from an unspecified starting date until 30 June 2017
(hereinafter: the offer letter).
2.
According to the offer letter, the player
following amounts:
would become entitled to receive the
For the season 2014/2015:
a fixed amount of EUR 80,000 net;
a variable amount of EUR 50,000 ‘at 3 official appearances (First division league
of Country B) which, if completed, will be added to the fixed amount for the
next season’;
For the season 2015/2016:
a fixed amount of EUR 80,000 net;
a variable amount of EUR 50,000 ‘at 10 official appearances (First division league
of Country B) which, if completed, will be added to the fixed amount for the
next season’;
For the season 2016/2017:
a fixed amount of EUR 80,000 net;
a variable amount of EUR 50,000 ‘at 15 official appearances (First division league
of Country B) which, if completed, will be added to the fixed amount for the
next season’.
3.
Furthermore, the offer letter contains the following clause: ‘This proposal is
conditional upon the transfer of the player from Club G to Club A’.
4.
On 3 October 2014, Club A and the club of Country F, Club G concluded a transfer
agreement for the transfer of the player from Club G to Club A. In this respect, the
parties agreed upon a transfer amount of EUR 300,000, to be paid in two
instalments, the first instalment of EUR 150,000 due on 3 January 2015 and the
second instalment of EUR 150,000 due on 30 June 2015.
5.
Furthermore, according to Club A, on 17 November 2014, it received a letter from
the player’s legal representative, with the subject “Cancellation of negotiations
between Player C and Club A”, indicating that the player did not consider the offer
letter dated 22 August 2014 as a valid employment agreement, as it should only be
considered as an offer. Further, the player states in his letter that Club A withdrew
Club A, Country B / Player C, Country D/ Club E, Country F
Page 2 of 16
from the contract negotiations and that as a result, he has no obligations towards
Club A anymore.
6.
On 1 February 2015, the player and the the club of Country F, Club E (hereinafter:
Club E or Second Respondent) concluded an employment contract, valid as from 1
February 2015 until ‘the start of the 2016 summer registration period’, according to
which the player was entitled to receive 21,500 in the currency of Country F
(corresponding to approximately EUR 179). Club A points out that the Football
Association of Country F confirmed the registration of the player with Club E on 20
February 2015.
7.
On 17 November 2016, Club A lodged a claim before FIFA against the player, as well
as against Club E, claiming compensation for breach of contract in the total amount
of ‘at least’ EUR 1,900,000, to be paid by the player and/or Club E, broken down as
follows:
EUR 350,000, according to Club A corresponding to the residual value of the
offer letter for the seasons 2014/2015, 2015/2016 and 2016/2017. In this respect,
Club A points out that it only considers the period between 4 January 2015
(when the player should have joined Club A) and 30 June 2017 (original expiry
date of the contract) as relevant period in order to calculate the remaining value
of the contract;
EUR 343,802.15 as ‘transfer expenses to Club G’, specified as follows:
-
EUR 300,000 as transfer fee set under the transfer agreement dated 3
October 2014;
-
EUR 43,802.15 as costs related to the previous ‘FIFA and the CAS proceedings’;
EUR 967,000 as ‘replacement costs’ in relation to the signing of a player of
Country H, Player L, who was signed by Club A as a replacement for the player,
specified as follows:
-
EUR 315,000 as ‘commission to the Agent M, who acted on behalf of Club A
in the scope of the transfer of the Player L’;
-
EUR 652,000 as ‘the salary of the Player L for the remaining part of the
2014/2015 season’.
an unspecified amount in relation the fact that the termination fell within the
protected period.
Furthermore, Club A requested to be awarded 5% interest p.a. as from 4 January
2015 on the amount due. In addition, Club A requests that sporting sanctions will be
Club A, Country B / Player C, Country D/ Club E, Country F
Page 3 of 16
imposed on the player and Club E, as well as that Club E should be considered jointly
and severally liable for the payment of the compensation awarded.
8.
In its claim, first of all, Club A points out that under article 22 lit a) as well as art. 22
lit b) of the FIFA Regulations, FIFA is competent to deal with the matter at hand, as
it concerns an employment related dispute between a club and a player of an
international dimension. Moreover, Club A argues that the claim is lodged within
the two-year time limit as per art. 25 par. 5 of the FIFA Regulations, as the event
that gave rise to this claim, is the player’s correspondence dated 17 November 2014.
9.
Moreover, Club A explains that, after it concluded the relevant employment
contract and the relevant transfer agreement, on 17 November 2014, the player
informed Club A that he wished ‘to pursue his football career somewhere else than
with Club A’. As Club A did not agree with the foregoing, on 6 December 2014, Club
A sent an e-mail to Club G, requesting the player to travel to the city of Club A on
27 December 2014 ‘in order to undergo his medical examination in time for the
restart of the football season after the Christmas break’.
10. Furthermore, Club A explains that the player did not show up on 27 December 2014,
but that on 3 January 2015, Club G released the player from his contract, by inter
alia indicating the following: ‘a) the club seeks compensation: Yes, b) the
compensation fee has been paid to the club: No, c) the compensation agreement
has been made with the club the player joins : Yes’ […] NOTE: the player may be
registered with any club of his own choice without any impediments imposed by the
Football Club: ONLY WITH CLUB A ON THE BASIS OF THE CONTRACT WITH THE
PAYMENT OF INDEMNITY’. Based on this document, Club A holds that the player
should have joined its club no later than 4 January 2015.
11. In addition, Club A argued that on 5 January 2015, it received a letter from Club G,
in which said club according to Club A stated that it ‘had encouraged the player to
act in accordance with the contractual arrangements’. However, despite Club G’s
efforts, the player did not go to Club A, as a result of which on 5 January 2015, Club
A had to replace the player and signed a contract with the player of Country H,
Player L, who was loaned from the club of Country H, Club N.
12. What is more, Club A explains that on 6 February 2015, Club G lodged a claim
against Club A before FIFA, holding that Club A breached the transfer agreement,
by failing to pay the transfer fee of EUR 300,000 in the transfer agreement. On 24
November 2015, FIFA decided to accept the claim of Club G and ordered Club A to
pay an amount of EUR 300,000, as well as interest.
13. On 18 February 2016, Club A appealed the decision in case xxx before CAS, however
in its award CAS 2016X/XXXX, CAS confirmed FIFA’s decision and dismissed Club A’
appeal.
Club A, Country B / Player C, Country D/ Club E, Country F
Page 4 of 16
14. In view of the foregoing, Club A argues that the player signed a valid and binding
employment contract with Club A on 22 August 2014, as the offer letter contained
all essentialia negotii, such as ‘the content of the agreement, the duration of the
contractual relationship, the financial consideration and the date and signatures of
the parties’. Club A points out that said conclusion is in line with CAS’ and FIFA’s
jurisprudence, as well as with law of Country B, ‘which applies subsidiarily in this
case’.
15. Moreover, Club A argues that the contract was not drafted in ‘the form prescribed
by the Football Federation of Country B’s rules’, but this was only because of ‘the
unfair conduct of the Player’.
16. In addition, Club A argued that the offer letter was a valid and binding contract
(albeit conditional upon the transfer of the player from Club G to Club A) as on 3
October 2014, Club A and Club G concluded a transfer agreement, which was
considered valid by both FIFA and CAS.
17. As a consequence of all the foregoing, Club A concludes that the offer letter is in
fact a valid and binding employment contract, which came into force between Club
A and the player on 3 October 2014. However, by sending the termination letter on
17 November 2014, the player terminated the contract without just cause. In
conclusion, Club A requests the player and his new club, Club E, to be held liable to
pay compensation for breach of contract.
18. In his reply, the player first of all contests FIFA’s competence to deal with the matter
at hand, as said competence cannot be based on article 22 a) of the FIFA
Regulations, since Club A never requested the ITC of the player ‘from any club’.
Moreover, the player argues that FIFA’s competence cannot be based on art. 22 b)
of the FIFA Regulations, as in Country B ‘an independent and impartial arbitral
tribunal that guarantees fair proceedings and respects the principle of equal
representation of players and clubs has been established at national level’.
19. In this respect, the player refers to art. 21 of the collective bargaining agreement
between the Football Federation of Country B, the First division league of Country B
and the players’ association (hereinafter: players’ association of Country B). Said
article stipulates as follows: ‘[…] the individual contract for sporting services must
contain an arbitration clause on the basis of which the solution of all disputes on
the subject of interpretation, performance or resolution of said contract or in any
event connected to matters pertaining to employment contracts originating
therefrom, is deferred for resolution by the Arbitration Panel, which shall make its
awards by informal arbitration’.
20. What is more, the player considers the claim of Club A time-barred, as the event
giving rise to the dispute is either “23” August 2014, the day after the player signed
the offer letter, or 4 October 2014, the day after Club A and Club G concluded the
transfer agreement, as on these days, the player ‘had not begun working for Club A
Club A, Country B / Player C, Country D/ Club E, Country F
Page 5 of 16
under the contract’. In addition, the player explicitly contests to have agreed with
Club A that he would join its club in January 2015.
21. As to the substance, only if FIFA would declare itself competent and if it would
consider the claim not time barred, the player argues that he never concluded a
valid and binding employment contract with Club A, and that Club A never
requested him to join its club.
22. In this respect, the player explains that during the summer transfer window, Club A
expressed its interest in concluding a contract with him, and that as a result, on 22
August 2014, he discussed with the staff of Club A a possible transfer and signed the
offer letter, ‘as proof of receipt’.
23. With regard to the contents of the offer letter, the player explains that said
document was not intended to constitute an employment contract, as it was drafted
in the form of a letter addressed to him, as no starting date for the supposed
employment relationship was mentioned and because it was a unilateral and
conditional declaration of Club A. Moreover, the offer does not contain words like
‘the parties herewith agree’, instead, the word ‘proposal’ is used.
24. Also on 22 August 2014, according to the player, Club A submitted an offer to Club
G for his (permanent) transfer to Club A, however, said parties did not reach a
transfer agreement during the summer transfer window of 2014. As a result, the
player holds that the offer letter ‘did not produce effects between the parties’ and
consequently, on 17 November 2014, he sent a letter to Club A, explaining that
there did not exist any further obligations between him and Club A.
25. With respect to the email dated 6 December 2014 sent by Club A to the player, the
player contests that he received said email, as the relevant email was sent by Club A
to the address xxx and later forwarded to xxx. The player further points out that it is
not logical to send such an email, as Club A already received his letter dated 17
November 2014. Moreover, the player argues that the contents of the email do not
prove that Club A considered the offer letter as a binding employment contract or
that such a contract would come into force in the future. What is more, the player
explicitly points out that there is no proof on file that he should have joined Club A
by no later than 4 January 2015.
26. Moreover, the player states that Club A did not undertake any actions, after the
player did not show up on either 27 December 2014 or 4 January 2015. As a result,
the player holds that also Club A did not consider the employment contract to be
valid and binding. Moreover, the player holds that there is also no proof on file that
Club G considered that the player and Club A signed an employment contract.
27. Subsequently, the player argued that Club A never requested the player’s ITC in
order to register him as a player of Club A, and that as such, it did not show any
intention to enter into an employment relationship with the player, as well as that it
Club A, Country B / Player C, Country D/ Club E, Country F
Page 6 of 16
explicitly denied in the proceedings before FIFA against Club G that there existed an
employment relationship between Club A and the player. According to the player,
the lack of a valid and binding employment contract is also confirmed by the
following circumstances:
-
the content of the proposal letter (which does not support the conclusion
that the parties indeed deemed the letter a valid employment contract);
-
his own intention (as he only signed for receipt of the proposal letter);
-
the intention of Club A (which never took action in order to request the
player to perform his duties under the contract after he did not show up);
-
the requisites for a binding employment contract in Country B (which must be
concluded in a form expressly provided by the Football Federation of Country
B)
-
the legal nature of the proposal letter (the proposal letter was conditional
upon the transfer of the player to Club A, which leads to the conclusion that
only the signing of the proposal letter, could not lead to a binding contract).
28. What is more, the player argues that the proposal letter did not contain the
essentialia negotii, as the starting date of the employment relationship is missing.
Furthermore, the player argues that no legal representative for Club A is specified
and that the transfer from Club G to Club A never took place.
29. As a result, the player holds that as there was no valid contract, he could never have
terminated a contract without just cause. Further, the player contests the amount of
EUR 1,900,000 claimed by Club A, as said amount is ‘blatantly exaggerated and in no
relation to any actual damage or loss that the club could have suffered […]’.
30. In conclusion, the player asks FIFA to declare the claim inadmissible due to its lack of
competence, and/or time barred and/or to reject all Club A’ claims. Further, the
player requested for procedural costs and legal fees to be paid by Club A.
31. Despite being invited to do so, Club E did not reply before 22 January 2017 to the
claim lodged by Club A. Only on 1 February 2017, it submitted a reply, indicating
that the claim of Club A is inadmissible and time-barred.
32. In its replica to the player’s reply, Club A first of all contests that FIFA is not
competent and explains that FIFA is at least competent on the basis of art. 22 b) FIFA
Regulations, as the 2016 version of the FIFA Regulations is applicable to the present
dispute, which inter alia stipulates that: ‘employment related disputes between a
club and a player of an international dimension, the aforementioned parties may
however, explicitly opt in writing for such disputes to be decided by an independent
arbitration tribunal […]. This clause is different from the article 22 b) that was
Club A, Country B / Player C, Country D/ Club E, Country F
Page 7 of 16
included in the 2014 version of the FIFA Regulations, which holds: ‘employment
related disputes between a club and a player of an international dimension, unless
an independent arbitration tribunal […]’. Based on the foregoing, Club A argues
that the article 22b) of the 2016 version, ‘clearly provides for the competence of
FIFA in every dispute with an international dimension and only provides an option
for the parties to choose for such disputes to be decided by an independent arbitral
tribunal’. Moreover, Club A recognizes that there is indeed an independent arbitral
tribunal established in Country B, which respects the principle of equal
representation, however also alleges that neither the player, nor Club E were
members of the Football Federation of Country B, when the employment contract
was breached. In addition, Club A states that ‘at the time of the claim being lodged’,
only the player was a member of the First division league of Country B, as Club A
was relegated to the Second division league of Country B and Club E played in the
competition of Country F. As such, Club A argues that there was no arbitration
agreement among the three parties and that the player did not specify whether the
Arbitration Court for the First division league of Country B or the Second division
league of Country B would be competent. In conclusion, the player holds that FIFA is
competent to deal with the matter at hand.
33. Subsequently, in relation to article 22 a) of the FIFA Regulations, Club A explains
that it did not request an ITC for the player, as he ‘revealed his unambiguous
intention not to join Club A […]’. As such, Club A argues that the ‘ITC request has
been enshrined in article 22 lit. a) since the 2005 edition of the FIFA Regulations in
order to expand FIFA’s competence, […] and certainly not to limit’.
34. What is more, in case FIFA would declare itself not competent based on article 22 a)
and/or article 22 b), Club A requests FIFA to declare itself competent based on article
22 f) of the FIFA Regulations.
35. Moreover, Club A states that its claim is not time-barred, as the event giving rise to
the dispute was the non-fulfilment of the employment contract by the player, which
took place on either 27 December 2014 or 4 January 2015.
36. As to the substance, Club A pointed out that the offer letter did not stipulate that
the transfer of the player from Club G to Club A had to be concluded before the end
of the summer transfer window of 2014. As a result, Club A concludes that ‘no
interpretation of a contract can lead to a new condition being added to it, especially
if such condition concerns the very validity of the contract’.
37. Additionally, Club A argues that the offer letter is in fact an employment contract,
because there was a clear ‘offer’, from Club A, as well as clear ’acceptance’, from the
player. Moreover, Club A argues that the offer letter contains all the essentialia
negotii. Regarding the missing starting date, Club A points out that the offer letter
mentions the seasons which would be covered by the alleged employment contract.
Club A, Country B / Player C, Country D/ Club E, Country F
Page 8 of 16
38. With regard to the proceedings before CAS in relation to the transfer agreement,
Club A argues that CAS in its award established that ‘the consent for his movement
to Club A was in principle determinable by his signature in such document’. Further,
according to Club A ‘it would be unfair that and illogical if the very same signature
was considered valid and binding consent in the scope of the proceedings between
Club A and Club G but not in the scope of the proceedings between Club A and the
player’.
39. Subsequently, Club A states that the fact that the alleged contract was not drafted
in the template the Football Federation of Country B prescribes, cannot be of
influence on the validity of such contract, as per FIFA’s jurisprudence.
40. What is more, Club A denies the fact that the player had no intention to conclude
an employment contract and argued that ‘the player is prevented from claiming
that he did not intend to conclude a contract after he signed it’. Club A points out
that the only fact that the player signed the offer letter, already indicates his
intention to sign an employment contract. Furthermore, Club A holds that it was not
its obligation to remind the player of the fact that he had to perform his duties
under the signed contract, nor that it was its obligation to reply to the letter dated
17 November 2014. In addition, Club A states that from the information provided in
the CAS procedure, it is clear that the email dated 6 December 2014 was sent to
Club G, which confirmed to have informed the player about the contents of the
email.
41. In conclusion, Club A amends it claim and requests for the total amount of EUR
1,909,922.47 to be paid by the player and/or Club E, merely specifying the amount
claimed in relation to the fact that the termination fell within the protected period.
In this respect, Club A states that this shall be considered as an ‘aggravating factor’
and lead to the additional payment of EUR 249,120.37, which is 15% of the sum of
the replace costs, residual value of the contract and transfer expenses, as claimed by
Club A.
42. In his duplica, the player again explains that FIFA is not competent to deal with the
matter at hand and that the claim is time-barred, rejecting the arguments brought
forward by Club A. Regarding the competence, the player further points out that
‘the sole fact that no ITC was ever requested, is sufficient to determine that FIFA
does not have competence based on article 22 a) of the Regulations’. Furthermore,
the player points out that FIFA’s competence cannot be based on article 22 b) of the
FIFA Regulations, if the claim is lodged against both the player and his new club.
What is more, even if the claim would have been lodged against the player only,
article 22 b) is still not applicable, as the collective bargaining agreement of Country
B between the Football Federation of Country B, the First division league of Country
B and the players’ association of Country B contains an arbitration clause ‘indicating
the exclusive competence of the Arbitration Panel of Country B in disputes between
professional football players and First division league of Country B’. Further, the
player points out that Club A was relegated to Second division league of Country B
Club A, Country B / Player C, Country D/ Club E, Country F
Page 9 of 16
in the Football season 2016/2017, but that also the Collective Bargaining Agreement
for the Second division league of Country B contains an arbitration clause, which
refers to a national arbitration tribunal.
43. As to the substance, the player reiterates that there was no binding offer from Club
A, nor that he accepted such an offer and also indicated that the essentialia negotii
are missing in the offer letter. Further, the player argues that Club A failed to prove
that the conclusion of a transfer agreement would have led to the conclusion of an
employment contract. In addition, the player holds that ‘the parties were acting
under the assumption that the proposal letter would produce effects only if a
transfer was concluded within the summer transfer window 2014’. What is more,
the player argues that even if the transfer agreement would have been concluded,
the conditional clause in the offer letter has to be considered potestative, as the
conclusion of the transfer agreement was solely in the power of the clubs involved.
44. Moreover, the player argues that the arguments upheld in the procedure between
Club A and Club G can be of no influence on the outcome of the matter at hand, as
the player was not a party in the proceedings before FIFA and CAS. What is more,
nor FIFA, nor CAS evaluated whether an employment contract was concluded or
not.
45. Finally, the player reiterates that Club A never notified him about the alleged fact
that an employment contract would be in force, which was according to the player
Club A’ responsibility. Also, the player argues that his letter dated 16 November
2014 cannot be considered as a termination letter, but merely a confirmation that
the negotiations between the player and Club A were cancelled.
46. In conclusion, the player reiterates his requests and explicitly contests the payment
of an additional amount of 15%, because of an alleged ‘aggravating factor’.
47. After being requested to do so, the player informed FIFA that on 1 February 2015,
he and Club E concluded an employment contract, valid as from 1 February 2015
until ‘the start of the 2016 summer registration period’. Moreover, according to the
player, on 10 July 2015, he concluded an employment contract with the club of
Country B, Club P, valid as from 10 July 2015 until 30 June 2019, according to which
the player was inter alia entitled to receive EUR 272,500 for the 2015/2016 season
and EUR 272,500 for the 2016/2017 season.
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 17 November
2016. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2015; hereinafter:
Club A, Country B / Player C, Country D/ Club E, Country F
Page 10 of 16
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 in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
club of Country B and a player of Country D, with the involvement of a club of Country
F.
3.
However, the Chamber acknowledged that the player contested the competence of
FIFA’s deciding bodies, alleging that the Arbitration Committee of the Football
Federation of Country B had the exclusive jurisdiction over this matter. In particular,
the Chamber took note that the player argued that the Collective Bargaining
Agreement concluded on 7 August 2012 is applicable and, in consequence, the
Arbitration Committee of the Football Federation of Country B should be the
competent body to hear the matter at stake.
4.
In this regard, the Chamber noted that Club A rejected such position and insisted
that FIFA has jurisdiction to deal with the present matter.
5.
Taking into account the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is competent
to deal with a matter such as the one at hand, unless an independent arbitration
tribunal, guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs, has been established at national level within
the framework of the association and/or a collective bargaining agreement. With
regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010
dated 20 December 2005. In this regard, the members of the Chamber further
referred to the principles contained in the FIFA National Dispute Resolution
Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
6.
While analysing whether it was competent to decide on the present matter, the
Chamber first referred to the fact that the player was not registered with the
Football Federation of Country B at the moment the event giving rise to the dispute
took place, i.e. 17 November 2014, the day that the player sent a letter to Club A,
explaining that he did not consider the offer letter as a valid and binding
employment contract. The Chamber held that, as a consequence of the fact that the
player was not registered with the Football Federation of Country B at that
moment, the player did not fall under the jurisdiction of the Football Federation of
Country B. The foregoing fact was, in the Chamber’s view, the first basis on which it
could be established that the relevant arbitration bodies in Country B were not
competent to adjudicate on the matter between Club A, the player and Club G.
Club A, Country B / Player C, Country D/ Club E, Country F
Page 11 of 16
7.
What is more, the Chamber referred to the abovementioned Collective Bargaining
Agreement, which was concluded on 7 August 2012 for the period until 30 June
2017 by and between the Football Federation of Country B, the Football League of
Country B and the Footballer’s Association of Country B and, in particular, the
Chamber focused its attention on article 21 of such agreement provided by the
player, which inter alia reads: “[…] the individual contract for sporting services must
contain an arbitration clause on the basis of which the solution of all disputes on
the subject of interpretation, performance or resolution of said contract or in any
event connected to matters pertaining to employment contracts originating
therefrom, is deferred for arbitration by the Arbitration Panel, which shall make its
awards by informal arbitration”. The Chamber emphasised that this directive of the
Collective Bargaining Agreement is furthermore in line with the DRC’s own
jurisprudence that an employment contract between a player and a club must
contain a clear and specific arbitration clause as a first pre-requisite for the Chamber
to start analysing the possible competence of a national dispute resolution chamber.
In this respect, the members of the Chamber noted that the offer letter signed on 22
August 2014 did not contain any reference to the Arbitration Panel mentioned in
the applicable version of the Collective Bargaining Agreement. As a result of the
foregoing, the Chamber concluded that therefore, the Collective Bargaining
Agreement and the possible competence of the Arbitration Panel, could not be
applicable, in any case, to the matter at stake. Thus, this first objection of the player
to the admissibility of Club A’ claim cannot be upheld.
8.
Subsequently, the DRC duly noted that – in view of the date of Club A’ claim and
the player’s allegations that said claim has to be considered time-barred – before
getting into the substance of the matter, it should also examine if the present claim,
or any part of it, could be possibly time-barred and consequently inadmissible.
9.
In this respect, the members of the Chamber first referred to art. 25 par. 5 of the
Regulations (editions 2016 and 2017), which, in completion to the general
procedural terms outlined in the Procedural Rules, clearly establishes that the
decision-making bodies of FIFA shall not hear any dispute if more than two years
have elapsed since the event giving rise to the dispute arose and that the
application of this time limit shall be examined ex officio in each individual case.
10.
Bearing in mind the foregoing, the DRC noted that the claim of Club A was lodged
on 17 November 2016 and that the event giving rise to the dispute, that is, the
unilateral termination of the contract by the Respondent, occurred on 17 November
2014. In this respect, the members of the Chamber, referring not only to art. 25 par.
5 of the Regulations (editions 2016 and 2017), but also to art. 132 of the Swiss Code
of Obligations and art. 16 par. 6 of the Procedural Rules, considered that it had to
reject the respective argument of the player, as it appears that Club A’ claim was
lodged in front of the DRC within said two years’ period of time. In conclusion, the
Chamber established that the matter at hand is, thus, not barred by the statute of
limitations in accordance with art. 25 par. 5 of the Regulations on the Status and
Transfer of Players.
Club A, Country B / Player C, Country D/ Club E, Country F
Page 12 of 16
11.
As a result, and taking into consideration the above circumstances, the Dispute
Resolution Chamber concluded that all players’ objections to the competence of
FIFA to hear the present dispute have to be rejected, and that the Dispute
Resolution Chamber is therefore competent, on the basis of art. 22 b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as
to the substance.
12.
In continuation, the Chamber analysed which edition of the regulations should be
applicable as to the substance of the matter at hand. 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 (editions 2016 and 2017), and considering that the present claim
was lodged on 17 November 2016, the 2016 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
13.
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.
14.
Turning to the substance of the matter at hand, the Dispute Resolution Chamber
took due note of the fact that the player, on its part, had categorically denied the
conclusion of a valid and binding employment contract with Club A. On the other
hand, Club A argued that the player, by signing the offer letter on 22 August 2014,
had entered into a valid and binding employment contract with its club as from the
summer transfer window of 2014, which ended in Country B on 1 September 2014,
as said document contained all essentialia negotii. What is more, Club A explained
that on 6 December 2014, it requested the player to join its club on 27 December
2014, however that the player did not do so. As a result, on 5 January 2015, Club A
signed a contract with another player, allegedly in order to replace him.
15.
In view of this dissent between the parties in respect of the basic question as to
whether or not a valid and binding 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.
16.
Having stated the above, the Dispute Resolution Chamber recalled that the offer
letter, signed on 22 August 2014, did not specify the date on which the contractual
relationship between the parties should have started, however the offer letter
contains a reference to the 2014/2015 season, as well as to the 2015/2016 and
2016/2017 seasons. Thus, the DRC noted that the offer in fact contained the names
of the parties, the duration of their relationship, the player’s remuneration due for
Club A, Country B / Player C, Country D/ Club E, Country F
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providing his services as a football player and the signature of both parties.
Consequently, the Chamber considered that all essentialia negotii were present in
the offer and therefore, it should be considered per se as a valid and binding
contract.
17.
Notwithstanding the foregoing, the Chamber noted that even though the offer was
already valid for the entire 2014/2015 season, on 17 November 2014, when the
player sent the club his letter mentioned in points I./9., I./24. and I./25. Above, he
had not yet been able to start performing his contract with Club A and that due to
the undisputed fact that the club did not manage to conclude his ITC request in TMS
and his registration with the Football Federation of Country B in a timely manner.
18.
In addition to that, the Chamber referred to the fact that only on 6 December 2014,
i.e. after the player had sent his letter dated 17 November 2014, Club A for the first
time since the end of the summer transfer window of 2014 on 1 September 2014,
contacted the player and requested him to join its club. In the Chamber’s view, said
behaviour and said request appear to be a mere reaction to the player’s letter sent
on 17 November 2014, in which he declared to Club A that no valid and binding
employment contract was signed and therefore, he would pursue his career
somewhere else.
19.
What is more, after the player did not show up at Club A, after its letter dated 6
December 2014, the Chamber noted that Club A remained silent for almost two
years, and finally on 17 November 2016 lodged a claim against the player, claiming
that he had breached the employment contract allegedly concluded between them
by not willing to render his services to Club A.
20.
The Chamber deemed it important to emphasize that, from the information on file,
it appears that after the signing of the offer letter on 22 August 2014, Club A never
requested the player’s ITC, although it still had 10 days to do so, as the summer
transfer window of 2014 in Country B ended on 1 September 2014. Bearing in mind
that, according to Annexe 3 of the Regulations, an ITC request depends on the new
club’s application to the new association to register a professional, it appeared to
the members of the Chamber that Club A willfully chose not to proceed with the
application for an ITC request and, therefore, prevented the player from being
registered in Country B and being able to start performing his services with the club.
21.
In this context, the Chamber considered relevant to refer to art. 18. par. 4 of the
Regulations, as well as to recall its jurisprudence in accordance with which the
granting of a work permit or the execution of (administrative) formalities, such as,
but not limited to, the registration procedure in connection with the international
transfer of a player are the sole responsibility of a club, on which a player has no
influence. As regards the matter at stake, it appears that Club A never requested an
ITC to enable the player’s registration.
Club A, Country B / Player C, Country D/ Club E, Country F
Page 14 of 16
22.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the documents presented by Club A, and the
development of the factual circumstances as displayed by the parties, the Chamber
had to conclude that even though a valid and binding contract per se had been
signed by the parties, due to Club A’ fault to obtain the player’s ITC and to finish his
registration with its club for the 2014/2015 season, in which the contract was
supposed to start, the player had well-founded reasons to believe that Club A was
no longer interested in his services and consequently send his letter dated 17
November 2014, announcing the ‘failure’ of his transfer to Club A and the pursuit of
his career somewhere else.
23.
All the above led the Dispute Resolution Chamber to conclude that the claim of
Club A is admissible, but has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Club A, is admissible.
2. The claim of the Claimant 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
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
Club A, Country B / Player C, Country D/ Club E, Country F
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For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Club A, Country B / Player C, Country D/ Club E, Country F
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