Labour Disputes
Texto da decisão
REF FPSD-5747
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Rassambek Akhmatov
BY:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Rassambek Akhmatov
Represented by Mr Ludovic Deléchat
RESPONDENT:
A.S.F.C. Universitatea Cluj, Romania
Represented by Mihai & Co. Business Lawyers
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REF FPSD-5747
I.
Facts of the case
1.
Allegedly on 23 August 2021, the French player Rassambek Akhmatov (hereinafter the Claimant
or the player) and the Romanian club A.S.F.C. Universitatea Cluj sent the following offer
(hereinafter the Offer) regarding the potential employment agreement:
“Player AKHMATOV RASSAMBEK, born on May 31, 1996, french nationality. A.S. F.C University
of Cluj propose the following offer:
Period 23.08.2021 - 30.06.2022
- 2.500 euro/net salary
- 400 lei/net the point at the match won as a holder (the bonus will be received if the player
plays at least 45 minutes of the match)
- 2.500 euro bonus if the team promotes in League 1 (the bonus will be received if the player
participates at 70% of the matches)
- the equivalent of 300 euro/month for rent/apartment
- 2 flight tickets France Cluj
- 2.500 euro/net signing bonus, upon receipt of the contract signing bonus, the player gives
up his salary for the last month of contract (August)”
2.
The Claimant’s flight to travel to Romania, to join the Respondent’s team, was scheduled on
26 August 2021.
3.
On 25 August 2021, the Claimant tested positive for COVID-19.
4.
The Claimant allegedly informed the Respondent about his health status.
5.
On 27 August 2021, Claimant tested negative for COVID-19.
6.
The Claimant allegedly contacted the Respondent in order to organise his travels to Romania.
7.
On 31 August 2021, the Respondent sent the following letter to the Claimant:
“Asociatia Sportiva Fotbal Club Universitatea Cluj, hereby wants to thank the player
AKHMATOV RASSAMBEK for his interest in our club, in order to sign a sports activity contract.
Given the global situation caused by the Covid-19 pandemic and the test result for the diagnosis
of Covid-19, our club want to cancel our agreement, regarding the signing of the sports activity
contract.
In the hope of a future collaboration we send you all our good thoughts.”
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II. Proceedings before FIFA
8.
On 12 April 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the Claimant
9.
In his claim, the Claimant argued that it is “evident that the Defendant signed an employment
contract with the Player and must therefore be liable to pay compensation to the Claimant for
breaching it”.
10. Consequently, the Claimant requested USD 33,300 as compensation, plus 5% interest p.a. as from
the end of the employment relationship.
b. Position of the Respondent
11. The Respondent rejected the claim of the Claimant as it argued that the Claimant and the
Respondent (hereinafter jointly referred to as the Parties) did not sign a binding employment
agreement.
12. In this respect, the Respondent was of the opinion “that the Player failed to demonstrate the
existence of an employment contract to the comfortable satisfaction of a third impartial party.”
13. Furthermore, the Respondent argued that the Offer “was not intended by the Parties to be a
binding employment agreement”.
14. The Respondent further argued that whereas the Claimant submitted a copy of the Offer, the
Respondent “never received back the document signed by the Player. Indeed, the Player failed to
demonstrate that the Club acknowledged his acceptance of the conditions. If the offer is not
followed by its firm acceptance, then the agreement is not fulfilled”.
15. Moreover, it added that it “was in a confusing situation as it never had the certainty that the
discussions were serious from the Player's side”.
16. Finally, the Respondent argued that:
- “the Player did not insist in the contract's performance;
- he did not address his specific obligations towards the Club and the conditions of their
fulfilment (taking into account the fact that the Proposal did not expressly provide the
Player's obligations);
- the Player did not put himself at the Club's service;
- he did not come to Romania in order to fulfil his obligations;
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- he did not notify the Club regarding the fulfilment of its obligations but, instead, on the
5th of March, 2022, he concluded an agreement with another club, FC Maktaaral (according
to FIFA TMS -Exhibit 5), after which he filed the current claim.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 12 April 2022 and submitted for decision on
9 June 2022. Taking into account the wording of art. 34 of the October 2021 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
18. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (March 2022 edition), 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 French player and a Romanian club.
19. Subsequently, 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 (March 2022), and considering that the present
claim was lodged on 12 April 2022, the March 2022 edition of said regulations (hereinafter the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
20. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4
of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
c. Merits of the dispute
21. Its competence and the applicable regulations having been established, the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. 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.
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i. Main legal discussion and considerations
22. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the Parties strongly dispute if the Offer can be considered a valid
employment agreement.
23. In this context, the Chamber started by recalling the well-established jurisprudence which dictates
that, in order for an employment contract to be considered valid and binding, it should contain
the essentialia negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship and the remuneration payable by the employer
to the employee.
24. After thoroughly analysing the documentation on file, the DRC noted that the following essential
elements of a contract described above are present in the Offer: Duration of the agreement,
subordination of the employee to the employer, personal performance, wages.
25. Equally, the Chamber turned its attention to the factual framework involving the negotiations
between the Parties and, specifically, to the correspondence exchanged in the context of the
acceptance of the employment proposal.
26. In particular, the DRC recalled that the Respondent objected that he has received the signed Offer
back from the Claimant. In this respect, the Chamber noted that no documentation whatsoever
was made available by the Claimant to counter the argument of the Respondent.
27. Referring to art. 13 par. 5 of the Procedural Rules and the principle of the burden of proof, the
Chamber concluded the Claimant did not meet his burden of proof in order to demonstrate that
he accepted the Offer to unmistakably convey his agreement to the establishment of a valid and
binding employment relationship with the Club.
28. What is more, the DRC pointed to the fact that the Player neither reported for duty and/or
demanded specific performance in terms of the alleged contract concluded between August 2021
and lodging the claim in April 2022. In fact, the Chamber highlighted that the Claimant failed to
provide any evidence to have ever contacted the Respondent.
ii. Consequences
29. Based on the above, the Chamber decided to reject the Claim of the Claimant due to its lack of a
contractual basis.
d. Costs
30. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures
are free of charge where at least one of the parties is a player, coach, football agent, or match
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REF FPSD-5747
agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the
parties.
31. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of
the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
32. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Rassambek Akhmatov, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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