Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 November 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Johan v an Gaalen (S outh Africa), member
Wouter Lam brecht (Belgium ), member
Pav el Piv ov arov (Rus s ia), 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 15 January 2018, the player of Country B, Player A (hereinafter: the player or
Claimant) and the club of Country D, Club C (hereinafter: the club or Respondent)
allegedly agreed upon an employment contract (hereinafter: the alleged contract),
valid for the period between 15 January 2018 and 30 June 2019.
2.
According to the player, he was allegedly entitled to receive the total amount of EUR
450,000 ‘during the one and a half years that the contract should have last’, as
follows:
3.
EUR 100,000 as ‘sign bonus’;
EUR 350,000 as ‘monthly payment’.
On 4 April 2018, the player lodged a claim against the club in front of FIFA, requesting
the total amount of EUR 558,000 as compensation for breach of contract to be paid
by the club, broken down as follows:
Compensation for breach of contract in the total amount of EUR 418,000, as follows:
EUR 450,000 as the entire value of the contract in the period between 15 January
2018 and 30 June 2019;
Minus EUR 32,000 as the total value of the contract he signed on 31 January 2018
with the club of Country B, Club E;
5% interest p.a. on the amount of EUR 418,000 as from 23 January 2018;
Compensation related to the specificity of the sport in the total amount of EUR
150,000, as follows:
EUR 150,000, corresponding to 6 monthly salaries of EUR 25,000 each, in
connection with article 337c of the Swiss Code of Obligations;
5% interest p.a. on the amount of EUR 150,000 as from the date of the decision.
Furthermore, the player requested that sporting sanctions be imposed on the club, as
well as that it should be held responsible for the payment of legal fees in the amount
of CHF 20,000 and procedural costs.
4.
In his claim, the player explains that on 14 January 2018, ‘in conclusion of precedent
negotiations’, the club sent him an official document, which held, according to the
player, ‘all the essential elements in order to consider it a valid and binding
agreement’. In this respect, the player explains that crucial elements, such as the
Player A, Country B / Club C, Country D
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duration of the contract (January 2018 until June 2019), the remuneration (EUR
450,000), the parties (player and club) and the player’s occupation (football player)
were present in said document.
5.
As evidence of the foregoing allegations, the player submitted a copy of an undated
email, sent by the alleged club’s General Managing Director, Mr. F, as well as an
undated letter, signed by Mr. F, which contains the following wording: ‘Subject:
Invitation letter. This letter is to confirm that Club C would like to sign a contract with
Player A as a football player for one and a half football season on the following terms
and conditions after passing medical test in Country D […] Period of contract is from
Jan 2018 to June 2019. […] Amount of whole contract are as follows: 450,000 EUR,
payed as EUR 100,000 sign bonus, 350,000 EUR as monthly payment. […] We would
like the player to be here in Country D for medical test and also final negotiation as
soon as possible during the next two days. […] Club C will provide a house with
furniture for the player during his labour contract and also car with driver and two
flights (round trip Continent L – Country D) for the player and his family. […] This
proposal is valid till 15.01.2018’.
6.
The player further explains that he wanted to accept the club’s offer, and that as a
result, on 15 January 2018, he terminated his contract with his previous club, the club
of Country B, Club G, which was valid until 30 June 2018.
7.
Furthermore, the player explains that also on 15 January 2018, he accepted the club’s
offer and that subsequently, on 19 January 2018, he travelled together with his
representatives to Country D , ‘in order to conduct the relevant medical test and
therefore join the team’.
8.
In addition, the player explains that on an unspecified date, the club also provided
him with an official version of the contract, which was based on the conditions
written in the letter sent to the player on 14 January 2018, but which contract is not
signed by the club.
9.
Furthermore, the player explains that the club provided him with a flight ticket for a
flight from Country B via Country H to Country D on 19 January 2018.
10.
In addition, the player explains that on 21 and 22 January 2018, he underwent a
medical examination in Country D, which according to the player is confirmed by a
picture the club posted on its official Instagram-profile.
11.
Furthermore, the player argues that on 23 January 2018, he was informed by the club
that ‘signing the contract subjects to passing the medical test’, however that based
on ‘medical committee of Club C and also medical centre standards of Football
medical assessment of Country D’, he did not pass the medical examination. Based on
these circumstances, the club further informed the player that ‘signing contract
between Club C and you is not possible’. The player explains that this behaviour of
Player A, Country B / Club C, Country D
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the club constitutes a termination of the contract by the club without just cause, as
based on article 18 par. 4 of the FIFA Regulations, the validity of a contract may not
be subject to successfully passing a medical examination.
12.
Further, the player holds that the club failed to provide him the results of the medical
examination or ‘any valid medical reason’ as to why no contract could be concluded
and that this is to be considered a violation of the principle that parties should act in
good faith. The player further holds that on 17 January 2018, after the alleged
conclusion of the contract, the club’s head coach complained to one of the club’s
employees that the player had been injured for a long period in 2017. According to
the player, the head coach was fearing the reaction of media and supporters, if they
would find out that the club had signed a player who had been injured for a long
period.
13.
With respect to his injury, the player confirms that on 25 March 2017, he underwent
a small surgery, but that as from 19 October 2017, he was fully recovered.
14.
As a result, on 23 January 2018, the player requested the club to send him the
negative medical reports. However, according to the player, the club refused to the
deliver the negative medical reports to him and forced him and ‘his intermediaries to
leave Country D, providing them the relevant flight tickets’.
15.
Subsequently, the player explains that on 26 January 2018, his representative again
requested the club to provide the negative medical reports, however to no avail.
16.
Finally, the player explains that on 31 January 2018, following the club’s unilateral
termination of the contract on 23 January 2018, he signed a new contract with the
club of Country B, Club E. In addition, the player points out that on said date, he
successfully passed a medical examination in Country B, in the scope of his transfer to
Club E.
17.
In its reply to the player’s claim, the club argues that the player never had a contract
with its club. In this respect, the club argues that in its offer dated 14 January 2018, it
only confirmed that ‘it would like to sign a contract’ with the player, ‘after passing
medical test in Country D’. According to the club, this can only be understood as an
intention to sign a contract with the player and as an invitation to travel to Country
D to finish the negotiations.
18.
The club further explains that the ‘few terms and conditions’ in the invitation letter
sent on 14 January 2018 to the player, do not make the invitation a legal and binding
contract, and further points out that the applicable law, the official language of the
contract and the dispute resolution authority are not mentioned in the invitation
letter.
Player A, Country B / Club C, Country D
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19.
In addition, the club argues that the aforementioned letter is not signed by the
player, as well as that it provided the player and his representatives tickets to travel
to Country D, only to attend a ‘final negotiation’ and that for this reason, the tickets
were a round trip ticket. The club explains that only after the medical examination,
it wanted to finalize the negotiations with the player and his representatives.
20.
Further, the club argues that not the validity of the contract, but only the ‘final
negotiation’ was depending on the outcome of the medical examination, which was
unfortunately negative for the player. In this respect, the club submits a copy of the
results of the medical examination of the player, which took place in the medical and
rehabilitation centre in Country D. According to said report, the medical experts
found some (small) irregularities in the player’s right knee and right ankle.
21.
As a result of the aforementioned (negative) medical examination, the club argues
that it could validly stop the final negotiations with the player and not sign a contract
with him. In conclusion, the club asks for the rejection of the player’s claims.
22.
In his replica, the player reiterates that the letter he received on 14 January 2018 from
the club’s General Manager, contained all essentialia negotii in order to be a valid
and binding contract and argues that also pre-contracts are to be considered as legal
and binding. Further, the player states that it was not necessary for him to sign the
letter issued to him on 14 January 2018, as per Swiss law, he could also implicitly
express his acceptance of the conditions offered by the club.
23.
What is more, the player refers to the fact that the club provided him with a nonsigned version of the contract and states that this can be considered as a clear
intention to conclude a contract with the player. This also follows from the fact that
the club only booked a return flight for the player on 10 March 2018.
24.
Moreover, the player argues that the medical report of the medical and rehabilitation
centre in Country D cannot be taken into account, as it is not completely translated
into one of the official FIFA languages. Further, the player states the club still failed
to submit the ‘report of the medical committee of Club C’. Further, the player contests
the trustworthiness of the report, because it is partially drafted in English, which is
not the official language in Country D, and it contains a date of “9 April 1997”, which
does not reflect reality.
25.
In its duplica, the club reiterated that it never signed ‘any form of contractual
documentation’ and that the missing signature of the player on the letter sent to him
on 14 January 2018, confirms that not all essentialia negotii were present in the
document.
26.
Further, the club states that the ‘invitation letter is not an employment contract, but
a pre-contractual agreement which merely invited the Claimant to present himself to
undergo a pre-contractual medical test and enter final negotiations’. The club further
Player A, Country B / Club C, Country D
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specifies that the invitation letter can only be seen as ‘an intention to sign a future
contract’ and not as a definitive agreement.
27.
Also, the club argued that it undertook the necessary due diligence by requiring a
pre-contractual medical examination of the player.
28.
In the alternative, if FIFA would deem that there is a valid and binding employment
contract concluded between the parties, the club requests that the player can only be
entitled to compensation in the total amount of EUR 118,000, due to the nonexecution of the contract. Further, the request for an additional compensation of EUR
150,000, based on the specificity of sport, has no legal basis according to the club and
should be rejected.
29.
After having been requested to do so, the player informed FIFA that on 31 January
2018, he ‘in order to minimize his damages’, he signed a new contract with the club
of Country B, Club E, valid between 31 January 2018 and 30 June 2018. According to
said contract, he was entitled to receive a sign-on fee of EUR 4,000 as well as monthly
salaries in the total amount of EUR 28,000. Finally, the player confirmed that after 30
June 2018, he remained unemployed.
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 4 April 2018.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2018; 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.
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 4 April 2018, the 2018 edition
of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to
the substance.
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.
In doing so, the members of the Chamber started by acknowledging that, according
to the player, he had, on 15 January 2018, concluded an employment contract with
the club, valid for the period between 15 January 2018 and 30 June 2019, in
accordance with which the club allegedly had undertaken to pay him the total
amount of EUR 450,000 for the duration of the contract. According to the player, the
club - after the alleged signing of the employment contract and a medical
examination which took place in Country D on 21 and 22 January 2018 - was not
interested in his services any more.
6.
Therefore, after having requested the club the results of the medical examinations,
however to no avail, the player considered that the club had unilaterally terminated
the contract without just cause on 23 January 2018, by not willing to execute the
contractual relationship allegedly established between the parties. Subsequently, on
31 January 2018, the player states to have signed a new contract with a club of
Country B an lodged a claim before FIFA on 4 April 2018, asking to be awarded, inter
alia, compensation for breach of contract by the club in the amount of EUR 418,000,
as well as additional compensation in the amount of EUR 150,000.
7.
The Dispute Resolution Chamber furthermore took due note of the fact that the club,
on its part, had categorically denied the conclusion of an employment contract with
the player. In this respect, the club had admitted that it sent an invitation letter to
the player on 14 January 2018, which contained some terms and conditions, and that
it requested the player to come to Country D to undergo medical examinations on 21
and 22 January 2018, and to finalize the negotiations about the conditions of a
possible employment contract. What is more, the club explains that the outcome of
the medical examination would only be decisive for the decision whether or not it
wanted to enter into final negotiations with the player, and not for the question
whether or not the contract allegedly concluded in January 2018 would be valid.
Additionally, the club explained that the outcome of the medical examinations on 21
and 22 January 2018 was negative, as a result of which it validly stopped the final
negotiations with the player. In view of the foregoing circumstances, the club deems
that it did not conclude an employment contract with the player, also because the
player never signed the invitation letter dated 14 January 2018.
8.
In view of this fundamental 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 first referred to art. 12 par. 3 of the
Player A, Country B / Club C, Country D
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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 lead the members of the Dispute Resolution Chamber
to conclude that it was up to the player to prove that an employment contract, on
the basis of which he claims compensation for breach of contract from the club, had
in fact been concluded between the parties.
9.
Having stated the above, the Dispute Resolution Chamber recalled that the player
maintained he had duly accepted the conditions in the club’s invitation letter dated
14 January 2018, as a result of which an employment relationship was established,
however that he never received a signed copy of the employment contract, as the
club refused to sign a definitive contract with him. In this respect, the player had
submitted several documents in support of his claim, which were in continuation
examined by the members of the Chamber.
10.
In this regard, the Dispute Resolution Chamber first of all turned its attention to the
so called invitation letter dated 14 January 2018, and took note of the player’s
allegation that said document contained all essentialia negotii to be a valid and
binding employment contract. What is more, the player argued that on 15 January
2018, he had accepted the conditions of said offer and also had received a non-signed
draft of the employment contract.
11.
The members of the Chamber then referred to the fact that the letter dated 14
January 2018 explicitly contained a clause, stipulating that the offer and the
corresponding employment conditions, needed to be accepted by the player by no
later than 15 January 2018. According to the player, he had duly accepted the
contents of the offer on 15 January 2018 and consequently, also had terminated his
contract with the club of Country B, Club G. Based on these circumstances, the player
is of the opinion that he and club entered into an employment relationship.
12.
The Chamber however noted that the circumstances as described by the player, are
not backed by any documentary evidence. In this respect, the Chamber was of the
opinion that the player was only able to submit a non-signed version of a draft of an
employment contract, however, had not submitted any additional documentation,
such as a confirmation that he agreed with the conditions as laid down in the club’s
letter dated 14 January 2018, or a signature on said letter, on the basis of which it
could be established that he timely accepted the club’s offer, i.e. until 15 January
2018. What is more, the Chamber could also not find any other indications or relevant
factual circumstances, on the basis of which it could be concluded that the player had
implicitly accepted the club’s offer laid down in its letter dated 14 January 2018.
13.
Having duly taken note of the aforementioned documentation presented by the
player, the members of the Chamber held that in order for the Chamber to be able
to assume that the player and the club had indeed been bound by a contractual
relationship with the terms as described by the player, it had to be established,
Player A, Country B / Club C, Country D
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beyond doubt, by documentary evidence, that the club had made a valid offer to the
player for the conclusion of an employment contract, and that said offer had been
duly accepted by the player. What is more, if the parties had indeed entered into a
respective labour agreement, it further needed to be established which terms said
labour agreement contained.
14.
In general, the members of the Chamber held that they could not assume that an
employment contract had been concluded by and between parties simply based on
circumstances which are not certain or backed by strong documentary evidence. In
particular, the members of the Chamber pointed out that the photos provided by the
player also do not prove beyond doubt that a contract was signed between him and
the club.
15.
In view of the foregoing, and after making reference to art. 12 par. 3 of the
Procedural Rules, according to which inter alia the evidence shall be considered with
free discretion, the Chamber concluded that the player did not satisfactorily carry the
burden of proof regarding the alleged conclusion of a contract between him and the
club. As such, the Chamber decided that the player could not prove to the Chamber’s
satisfaction his allegations that a valid and binding employment contract was
concluded between him and the club on 15 January 2018.
16.
Furthermore, the Chamber analysed the course of events that occurred in the period
between 19 January 2018, the day the player alleges to have travelled to Country D
to undergo a medical examination, and 23 January 2018, the day on which the player
deems that the club had unilaterally terminated the contract without just cause. In
this respect, the Chamber noted that the player explained that he received a flight
ticket from the club to travel to Country D on 19 January 2018, for undergoing a
medical examination on 21 and 22 January 2018, and also submitted several pictures
of said medical examination. What is more, after the outcome of said medical
examination allegedly turned out to be negative, the club had, according to the
player, informed him that it was no longer interested in concluding an employment
contract with him.
17.
With respect to these events, the members of the Chamber first of all wished to
reiterate the contents of art. 18 par. 4 of the Regulations, which stipulates that “the
validity of a contract may not be made subject to a positive medical examination
and/or the granting of a work permit”. Furthermore, the Chamber deemed it
important to outline that from the contents of said article, it follows that it is the
club’s responsibility to conduct the necessary medical examinations, prior to the
signing of an employment contract.
18.
Turning to the matter at hand, the members of the Chamber took into account the
club’s argumentation as well as the wording of the letter dated 14 January 2018,
which stipulated that it was the club’s intention to further negotiate on the definitive
details of a possible employment contract, in case the player would successfully pass
Player A, Country B / Club C, Country D
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a medical examination. In view of the fact that the player was not able to prove that
already before the medical examinations on 21 and 22 January 2018 he had entered
into a valid and binding employment relationship with the club, the Chamber had no
other option than to conclude that it was the intention of the parties to only finalize
the negotiations on the contractual conditions, after the successful passing by the
player of the medical examination. The fact that the club had issued a return flight
ticket for the player only on 10 March 2018, is in the view of the members of the
Chamber not to be considered decisive proof that the parties had already entered
into a final and binding employment contract.
19.
Therefore, the Chamber concluded that the club, after having received the outcome
of the medical examination of the player, which was apparently negative, could
validly inform the player on 23 January 2018, that it was no longer interested in
concluding an employment contract with him. Such approach was, according to the
Chamber, not in contradiction with the aforementioned art. 18 par. 4 of the
Regulations, on the contrary, the Chamber was of the opinion that the medical
examination of a player before signing an employment contract with him, is in line
with the mandatory nature of art. 18 par. 4 of the Regulations and the responsibilities
of a due investigation before of the player’s medical status, before entering into a
contractual relationship with a player.
20.
Finally, the Chamber also deemed it appropriate to point out that – even though the
player’s registration is not a condition for the validity of an employment contract
signed between a player and a club – no transfer instruction could be found in the
Transfer Matching System (TMS), involving the player and the club.
21.
In respect of all the foregoing circumstances, the members of the Chamber had to
conclude that on the basis of the documentation on file, it could not established that
the player and the club had validly entered into an employment relationship, which
would have been subsequently terminated by the club.
22.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
player has to be rejected, due to its lack of a contractual basis.
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 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
Player A, Country B / Club C, Country D
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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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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