Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 6 December 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Mons en (Norw ay ), 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. According to the player, Player A (hereinafter: the Claimant), on 22 July 2017, he
concluded an employment contract with the Club of Country D, Club C
(hereinafter: the Respondent), valid as of 1 August 2017 until 31 May 2018, and
according to which the Respondent undertook to pay him a monthly salary of
USD 10,000 and a sign-on fee of USD 30,000. In order to prove his allegations,
the Claimant submitted the following documents:
a) A picture of him and the president of the Respondent, allegedly after
signing the contract;
b) An article of the local press reporting that the Respondent signed a
contract with him;
c) A printout from transfermarkt.com, according to which he was part of
the Respondent.
2. On 30 October 2017, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract and requested the following monies:
a) USD 30,000 corresponding to the sign-on fee;
b) USD 100,000 as compensation for breach of contract, corresponding to
the total value of the contract;
c) USD 60,000 as additional compensation corresponding to six monthly
salaries.
Furthermore, the Claimant requested 5% interest p.a. as of 10 August 2017 on
the above-mentioned amounts.
3. In his arguments, the Claimant held that the Respondent invited him to Country
D on 22 July 2017, in order to sign an employment contract.
4. Equally, the Claimant maintained having passed a medical exam in Country D on
22 July 2017.
5. Moreover, the Claimant stressed that he did sign a copy of a contract which was
however never provided to him, even though he requested it several times.
6. The Claimant further highlighted that he was part of the Respondent’s team
during a pre-season tournament in Country D (cf. point I.2 above).
7. Nevertheless, he was reportedly told by the Respondent to leave on 10 August
2017, since no employment contract was signed.
8. In this framework, the Claimant held that the Respondent breached the contract
on 10 August 2017 without just cause and that he is entitled to the sign-on fee
as outstanding remuneration and compensation for breach of contract
corresponding to the residual value of the contract.
Player A, Country B / Club C, Country D
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9. In its reply to the claim, the Respondent argued that FIFA is not competent since
no contractual relationship was concluded.
10. Furthermore, the Respondent denied having signed an employment contract
with the Claimant and rejected the Claimant’s arguments.
11. The Respondent explained that the Claimant indeed played two friendly
matches for the Respondent, but that since he did not convince the coaching
staff, no contract negotiations took place and no contract was concluded.
12. In his replica, the Claimant insisted that FIFA is competent since it is an
employment related dispute with an international dimension.
13. Furthermore, the Claimant reiterated his position and held that a written
contract was concluded, but no copy was given to him.
14. Moreover, and in the event the DRC would decide that no written employment
contract was concluded, the Claimant maintained that a factual employment
relationship between the parties was established due to the undisputed fact that
that the Claimant took part in two friendly matches.
15. Finally, and despite having been invited to do so, the Respondent did not submit
its duplica.
16. The Claimant informed FIFA, that, on 1 March 2018, he signed an employment
contract with the Club of Country E, Club F, valid as from 1 March 2018 until 28
August 2018, including a monthly salary of USD 1,000.
II. Cons iderations of the Dis pute Res olution Cham ber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analyzed whether it was competent to deal with the case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 30
October 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 21 of the 2017 editions of the Procedural Rules).
2. Subsequently, the DRC noted that, in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the aforementioned Regulations on the Status
and Transfer of Players (edition 2016), the Dispute Resolution Chamber would, in
principle, be 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.
Player A, Country B / Club C, Country D
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3. However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies. In particular, the Chamber turned its
attention to the argument brought up by the Respondent, according to which
the Claimant’s claim should be deemed inadmissible, since no contract was
concluded between the parties.
4. In this regard, the Chamber, established that the Respondent’s objection
towards the alleged lack of competence of FIFA to deal with the present matter
has to be rejected, and that the Dispute Resolution Chamber is competent, on
the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of
Players. Therefore, the DRC agreed to reject the Respondent’s argument in
relation to the competence, and confirmed that the Claimant’s the claim is
admissible.
5. Its competence having been established, the Chamber decided thereafter to
analyse 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, and considering that
the present matter was submitted to FIFA on 30 October 2017, the 2016 edition
of the aforementioned regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
6. Having established the foregoing, and entering into the substance of the
matter, the DRC continued by acknowledging the above-mentioned facts as well
as the documentation contained in the file in relation to the substance of the
matter. However, the Chamber emphasized 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.
7. In doing so, the members of the Chamber started by acknowledging that,
according to the Claimant, he had, on 22 July 2017, concluded an employment
contract with the Respondent valid as from 1 August 2017 until 31 May 2018, in
accordance with which the Respondent allegedly had undertaken to pay him a
monthly salary of USD 10,000 and a sign-on fee of USD 30,000.
8. The Dispute Resolution Chamber furthermore took due note of the fact that the
Respondent, on its part, had categorically denied the conclusion of an
employment contract with the Claimant. The Respondent had admitted that the
Claimant participated in two friendly matches, but declared that finally no
employment contract had been concluded since the Claimant did not convince
the coaching staff.
9. 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
Player A, Country B / Club C, Country D
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shall carry the respective burden of proof. The application of the said principle in
the present matter led the members of the Dispute Resolution Chamber to
conclude that it was up to the Claimant to prove that the employment contract,
on the basis of which he claims outstanding salaries and compensation for
breach of contract from the Respondent, indeed existed.
10. Having stated the above, the Dispute Resolution Chamber recalled that the
Claimant maintained that he never received a copy of the employment contract
he asserts having signed with the Respondent. However, the Claimant had
submitted a series of documents in support of his claim which were in
continuation examined by the members of the Chamber. Moreover, the
Chamber observed that the Claimant argued that a factual employment
relationship between the parties was established due to the undisputed fact that
the Claimant took part in two friendly matches with the Respondent.
11. Having duly taken note of the aforementioned documentation presented by the
Respondent, 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, beyond doubt, by documentary evidence,
that the said parties had indeed entered into a respective labour agreement,
and, if so, under which terms. 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, 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.
12. In respect of the foregoing, the members of the Chamber had to conclude that
the documents presented by the Claimant did not prove beyond doubt that the
Respondent and the Claimant had validly entered into an employment contract.
13. What is more, even if it would have been possible to establish on the basis of the
documents on file, other than an employment contract, that the parties had
entered into a labour agreement, the Chamber wished to highlight that it would
need to be in possession of such labour agreement in order to be able to
properly assess the claim of the Claimant.
14. As a consequence, the Dispute Resolution Chamber decided that, since the
Claimant had not been able to prove beyond doubt 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.
Player A, Country B / Club C, Country D
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15. All the above led the Dispute Resolution Chamber to conclude that the claim of
the Claimant has to be rejected.
III. Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player 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 (CAS)
Avenue de Beaumont 2
CH-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 & Compliance Officer
Enclosed: CAS directives
Player A, Country B / Club C, Country D
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