Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
M
as Claimant
against the club,
D FC
as Respondent
regarding an employment-related contractual dispute
arisen between the parties.
I.
Facts of the case
1.
The player, M (hereinafter: the Claimant), signed a document named “scouting proposal”
(hereinafter: the proposal), dated “2005.02.12”, allegedly sent by the club D FC (hereinafter:
the Respondent), after some negotiations were allegedly held with two players’ agents, Mr
L, as the club’s representative, and Mr C, representing the player.
2.
The proposal established the following conditions:
-
USD 280,000 as signing-on fee,
USD 200,000 as annual salary,
USD 2,300 as bonus per match won,
30% of USD 2,300 per draw,
1 flight ticket,
one furnished apartment and a car at the disposal of the player.
3.
The proposal does not mention a starting date of the alleged employment relationship, nor
a specific duration. Moreover, although it appears to have been drafted on a paper bearing
the letter-head of the Respondent, it is not signed by any representative of the latter.
However, the document is stamped with the mention: “D Football Club – President – Z”.
Finally, the proposal contains the following sentence: “This is the final proposal”.
4.
According to the Claimant, Mr L acted as the assistant of the licensed players’ agent J,
although Mr Lee was the person conducting the activities.
5.
According to the Claimant, on 23 February 2006, he travelled to K with his lawyer.
6.
On 25 February 2006, the Claimant allegedly went to S, where the Respondent’s team was
taking part in a friendly tournament. On this day, the Claimant was allegedly presented to
the President of the Respondent, to the coach as well as other members of the Respondent’s
delegation. After the match, the Claimant was accommodated in a hotel where he awaited
further instructions from the Respondent, in particular regarding medical examinations.
7.
According to the Claimant, on 27 February 2006, he met with the team manager, Mr Y, who
purportedly asked him if he was in his best physical condition and if he could play, as a trial
match, the final of the friendly tournament which was to be disputed in the afternoon. The
Claimant replied that he was in a normal physical condition, and insisted on the fact that he
had signed the proposal on the assumption that it constituted a binding contract, and that
he had not travelled to K only to take part in trial matches.
8.
In the afternoon of the same day, Mr L allegedly informed the Claimant that the coach of D
FC was opposed to his being part of the team, and that he was to return to B.
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9.
On 6 November 2007, the Claimant lodged a claim in front of FIFA for breach of contract
against the Respondent. In this respect, the Claimant asserted that the proposal contained
all the essentialia negotii of a valid employment contract. Furthermore, he pointed out that
the proposal did not mention that it was subject to the signing of a subsequent, definitive
agreement. Thus, he argued that the proposal was meant to be a definitive agreement
between the parties.
10.
In view of the aforementioned, the Claimant stated that the Respondent is to be held liable
for breach of contract and therefore asked to be awarded a financial compensation in the
amount of USD 480,000 as alleged value of the contract (i.e. USD 280,000 as signing-on fee
and USD 200,000 corresponding to one annual income under the proposal), plus an interest
rate of 5% p.a. on the amount due as compensation, as from the date of signature of the
proposal. In this respect, he adds that he remained unemployed due to the club’s conduct,
since he refused to consider other labour proposals.
11.
The Respondent entirely rejected the Claimant’s claim and asserted that it had not prepared
nor faxed the proposal to the Claimant. It points out that in fact it had not been involved in
any relations with the Claimant or his agent. The Respondent further stated that the
proposal had been falsely drafted and forged by Mr L, an unlicensed players’ agent, under
the Respondent’s name. In support of this affirmation, the Respondent pointed out that the
proposal submitted by the Claimant contains a wrong fax number under the letterhead.
Furthermore, the Respondent noted a difference between the date of the document, i.e.
“12 February 2005”, and the date when the fax was sent to the player’s agent, i.e. 12
February 2006.
12.
Finally, the Respondent submitted a written and certified statement from Mr L, in which the
latter admitted that he had prepared the proposal without the approval of the Respondent
in order to make the Claimant come to K. He also underlined that, on 20 January 2006, he
had recommended the Claimant to the Respondent, using a DVD which illustrated the
Claimant’s performances, and that the Respondent had, at this point, shown some interest
in the Claimant. However, Mr L was allegedly compelled to provide a forged proposal to the
Claimant’s agent in order for the Claimant to accept to travel to K. This is allegedly why he
sent the proposal to the Claimant, via the offices of the sports company he was employed
with, on 12 February 2006. In this respect, Mr L indicated that the proposal falsely indicated
the date of 12 February 2005 as the date when the document was drafted, and that it was
actually drafted on 12 February 2006. Mr L then personally purchased some flight tickets for
the Claimant, who came with his lawyer. Mr L further stressed that the Claimant’s lawyer
had asked him to pay an extra USD 50,000 as a condition for the Claimant to participate to a
match during a friendly tournament in order to evaluate the Claimant’s performance, and
that, “for this reason, the player was forced to return to B on 28 February 2006”.
13.
In his replica, the Claimant upheld his claim and, in particular, maintained that the proposal
constituted a final and binding agreement between the Respondent and himself. Moreover,
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he pointed out that Mr L was always present during all meetings held between the
Respondent and himself and that Mr L was in possession of the club’s stamp and
letterheads. Therefore, the Claimant rejected the latter agent’s allegations that he was
acting without the Respondent’s authorization.
14.
Finally, the Respondent reiterated its previous statement and insisted on the fact that it had
not sent the proposal to the Claimant, and that Mr L had no power or right to act on behalf
of the Respondent. Furthermore, the Respondent indicated that it initially intended to test
the Claimant after Mr L had brought him to its attention at the Respondent’s training camp
on 25 February 2006 (prior to which date it had no information about the Claimant), but
the Claimant allegedly refused to be tested. Thereupon, the Claimant returned to B, and the
Respondent did not have any more contacts with him. Therefore, the Respondent concluded
that it should not be held liable for any acts which were conducted by Mr L with regard to
the proposal, and that it had never intended to be bound by an employment contract with
the Claimant.
15.
After the Claimant returned to B, he reportedly remained unemployed. He later signed an
employment contract with the club P, valid from 29 January 2009 to 29 December 2009.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Chamber”)
analysed 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 6 November 2007. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005; hereinafter: “Procedural Rules”) are applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the 2008 edition of the Procedural Rules in
combination with art. 18 par. 2 and 3 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 2009) the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Brazilian player and a club from
K.
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 2009), and
considering that the present claim was lodged on 6 November 2007, the 2005 edition of the
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said regulations (hereinafter: “the 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 and started by acknowledging the
above-mentioned facts and documentation contained in the file as well as carefully
considering the arguments submitted by the parties involved in the present dispute.
5.
In this regard, the Chamber established that the present dispute centers around the
question as to whether a contractual relationship had come into existence between the
Claimant and the Respondent. Indeed, the Claimant, for his part, expressed the view that
the “scouting proposal” contained all the essentialia negotii of an employment contract and
should thus be considered as a final and binding agreement between the Respondent and
him. Furthermore, the Claimant insisted on the fact that, although Mr L, a non-licensed
agent, declared having contacted the Claimant without the Respondent’s authorisation,
according to him, the latter agent had clearly acted on the Respondent’s behalf, since he
was in possession of the Respondent’s stamp and letterhead. Therefore, the Claimant claims
that he should be compensated for the alleged breach of the relevant contract by the
Respondent.
6.
The Respondent, however, held that it had never entered into an employment contract with
the Claimant and, in this regard, in particular relied on Mr L declaration that the latter had
acted alone, without the Respondent’s authorisation, by using the Respondent’s letterhead
and drafting a proposal to the Claimant in order for him to travel to K. The Respondent
further admits that, upon the Claimant’s arrival in K, it had considered entering into an
employment contract with him, but that due to the Claimant’s refusal to do a trial during a
friendly tournament, it had decided not to go forward with a contract. The Respondent
therefore argues that it should not be held liable for any malpractice conducted by Mr K
and rejects the Claimant’s claim entirely.
7.
Having stated the aforementioned, the Chamber focused its attention on the “scouting
proposal” and in particular analysed whether this document contained all the essentialia
negotii of an employment contract. In this respect, the Chamber wished to emphasise that
in order for an employment contract to be considered as valid and binding, it must at least
contain the name of the parties, the object, the duration of the employment relationship,
and the signature of the parties.
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8.
In continuation, the Chamber lent particular emphasis on the fact that the Respondent
denied having signed or stamped the “scouting proposal” and had alleged that Mr L had
acted without its authorisation by using its stamp and letterhead (which, according to the
Respondent, does not contain the correct contact details). Furthermore, Mr L has, by means
of a written declaration, admitted that the facts as alleged by the Respondent are correct.
The Claimant, however, asserted that L was clearly acting on behalf of the Respondent and
that therefore the “scouting proposal” should be interpreted as having been validly
concluded by the Respondent.
9.
With the foregoing considerations in mind, the Chamber was eager to emphasise that in
accordance with the legal principle of the burden of proof mentioned under art. 12 par. 3 of
the Procedural Rules, it fell upon the Claimant to prove that Mr L was acting on behalf of
the Respondent when he stamped the “scouting proposal”, and that such proof had not
been provided by the Claimant. Furthermore, the Chamber, setting aside the aforesaid
question of whether Mr L was acting on behalf of the Respondent, underlined that the
“scouting proposal” did not contain the Respondent’s representative’s signature, but only
its stamp. In this regard, the Chamber affirmed that an employment-related document,
whichever denomination it might have, which bears only the stamp of the club, cannot be
considered as having been validly signed by the latter. Indeed, it is undoubtedly the
signature by a representative of the club which will bind the club in question to the
employment relationship.
10.
In view of the aforementioned, the Chamber came to the conclusion that the “scouting
proposal” lacked one of the essentialia negotii, i.e. a valid signature, in order to be
considered a valid employment contract.
11.
In addition, and for the sake of good order, the Chamber, having thoroughly studied the
contents of the “scouting proposal”, also found that the said document does not mention a
specific starting date nor a specific duration of the employment relationship, which is to be
considered as an essentialia negotii of an employment contract between a club and a
professional football player, also bearing in mind art. 18 par. 2 of the Regulations.
12.
In view of all of the above, the Dispute Resolution Chamber agreed that the “scouting
proposal” does not contain all the essentialia negotii of an employment contract, since it
lacks a valid signature as well as a starting date and a specific duration, and thus cannot be
considered as a legally binding contract.
13.
Therefore, the Chamber established that the Respondent was not bound by the “scouting
proposal”, and that no breach of contract has been committed by the Respondent.
14.
In conclusion, the Chamber decided that, in view of the absence of a breach of contract by
the Respondent, the claim of the Claimant clearly lacks ground and thus that he is not
entitled to any compensation in accordance with art. 17 par. 1 of the Regulations.
Therefore, the Chamber decided that the claim of the Claimant must be rejected in its
entirety.
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, M, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto.
Within another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with
the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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