Labour Disputes
Texto da decisão
REF FPSD-3772
Decision of the
Dispute Resolution Chamber
passed on 7 April 2022
regarding an employment-related dispute concerning the player Jacques Bakulu
BY:
Frans de Weger (Netherlands)
Michele Colucci (Italy)
Jerome Perlemuter (France)
CLAIMANT:
Jacques Bakulu, Congo
Represented by Taoufik Khaled, Gauthier Bouchat and Gregory Ernes
RESPONDENT:
AL AKHDAR SC, Libya
Represented by Nasr Eldin Azzam
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I.
Facts of the case
1.
In February 2021, the Congolese player Jacques Bakulu (hereinafter the player or the Claimant)
signed an employment contract with the Zambian club Zananco FC (hereinafter the former club)
for the period of 2 years, i.e. until 31 January 2023.
2.
Allegedly in August 2021, the Libyan club Al Akhdar SC (hereinafter the club or the Respondent)
sent the Claimant an undated offer (hereinafter the Offer) regarding the potential employment
agreement.
3.
The Offer contained the following conditions between the parties:
-
Duration of the contact: 1 year (season 2021/2022);
Contract value: USD 55,000;
Advance payment: USD 20,000, whereas the rest of the contract value shall be
distributed as monthly salaries.
4.
The Offer further stipulated that the Claimant “must bring: the [f]inancial clearance from his last
club before signing contract [and] TPO signed and sealed by his former club.”
5.
The Offer contains a signature of Mr. Naser Aldeen Boflega signed as the “President of the Al
Akhdar club”.
6.
Based on the evidence on file, the Claimant obtained the said documents from the former club
and on 31 August 2021 via its Intermediary, allegedly returned the signed Offer to the club (to the
email address [email protected]).
7.
On 18 September 2021, the Intermediary of the Claimant contacted the Respondent, inquiring
why the latter did not follow up after the Offer had been returned on 31 August 2021.
8.
In reply thereto, on 18 September 2021, the “Hamdi President Alakhder SC”, i.e. allegedly the
Respondent, replied that since the Claimant “had not played and scored much in the previous
season”, the Respondent decided that it no longer required his services.
9.
According to the Transfer Matching System (TMS), on 1 January 2022, the Claimant signed a new
employment agreement (hereinafter the New Employment Agreement) with the Tunisian club,
Esperance Sp. De Zarzis, valid as from 1 January 2022 until 30 June 2023.
10. As to the financial conditions with Esperance Sp. De Zarzis, the Claimant’s New Employment
Agreement established that the player is entitled to the following amounts:
½ Season 2021/2022 (6 months)
- Monthly salary of TND 2,000 (Tunisian Dinar)
- “prime de rendement” (freely translated as “performance bonus”) in the amount of
TND 38,000
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Season 2022/2023 (12 months)
- Monthly salary of TND 2,500 (Tunisian Dinar)
- “prime de rendement” (freely translated as “performance bonus”) in the amount of
TND 70,000.
II. Proceedings before FIFA
11. On 23 September 2021, the Claimant filed the claim at hand before FIFA.
12. On 14 November 2021, the Respondent submitted its answer to the claim.
13. On 21 February 2022, the Claimant provided for the replica.
14. On 7 March 2022, the Respondent provided for the duplica.
15. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
16. In his claim, the Claimant requested the amount of USD 55,000, plus 5% interest p.a. as “from the
date of the termination”, corresponding to the compensation for the breach of contract.
17. The Claimant argued that the Offer shall be considered a valid employment agreement since it
contains all essentialia negotii, i.e. the identity of both parties, subordination of the employee to
the employer, duration of the contract as well as the remuneration.
18. Furthermore, the Claimant argued that “the Offer was signed by the Club and therefore
constituted a binding offer to contract, requiring only the Player's acceptance to form a contract”.
19. In support of his allegations, the Claimant added that “the Offer was unconditionally accepted by
the Player in two ways: (i) expressly by countersigning and returning it to the Club but also
(ii) tacitly by obtaining the Balance of Account and the TPO declaration in accordance with the
terms and conditions set out in the Offer”.
20. Therefore, the Claimant concluded that as of 31 August 2021, an employment contract has come
into effect between the parties.
21. The Claimant added that he consequently made himself available to the club.
22. Taking into account that, regardless the above, the Respondent indicated to him via the
Intermediary that it would not execute the contract in light of the Claimant’s performance in the
previous season, the latter argued that the Respondent terminated the contract without just
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cause and, consequently, that it should pay the Claimant the compensation amounting to the
residual value of the contract, i.e. USD 55,000.
23. In alternative, the Claimant requested the amount of Zambian Kwacha 776,361.96 (ZMW), plus
5% interest p.a. as from “the date of fault”, basing the claim on the Swiss legal principle in culpa
contrahendo.
24. In this respect, the Claimant argued that the elements of in culpa contrahendo were fulfilled:
(i) the existence of a contractual negotiation, (ii) fault; (iii) damage; (iv) a causal link between the
fault and the damage.
25. As a consequence thereof, the Respondent should pay the Claimant the compensation amounting
to the residual value of the employment contract with the former club, i.e. ZMW 776,361.96.
b. Position of the Respondent
26. The Respondent rejected the claim in its entirety, arguing that:
“A. There is no agreement or communication between the Club and the Player or his Agent.
i. The Club had not issued any offer through any mean of communication to the Player
a. The Club's official mean of communication
b. The Club's legal representative as the only person authorized to conclude any contracts or to
enter into any agreements
ii. The so-called offer couldn’t be issued by the club.
a. The fake signature on the alleged offer was of the Club's former president of the board of
directors who was not longer president of the Club from 28 August 2021 due to the club’s board
new elections took place on 28 August 2021.
b. The player not complying by his obligation to tell the truth.
B. FIFA should dismiss all WhatsApp-related evidence for lack of credibility as also they are
not made with any official from the club.
C. The Offer, if considered by FIFA as valid, it should not be assessed as a final and binding
contract on the parties.” (emphasis added)
27. In support of its allegations above, the Respondent firstly argued that “alleged offer is fake issued
by third party and not official offer from the Club”.
28. It further continued that in accordance with article 15 para. 3 of the uniform clubs’ statutes of the
Libyan Olympic Committee, only the club’s president of the board of directors is the authorized
person to conclude contracts and agreements for the club.
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29. In this respect, the Respondent asserted that the president of the board of directors elected on
28 August 2021 is Mr Anas Saed Alhomri. The fact that he is the only person entitled to sign the
respective documents can be seen from the contracts signed after the said elections.
30. Regarding the signature of Mr. Naser Aldeen Boflega on the Offer, the Respondent acknowledged
that Mr Naser Aldeen Boflega belonged to the previous management yet argued that he was “not
authorized to sign any contract after he was ordered by the Libyan ministry of sports not to sign
any contract or conclude any agreements, from 21 August 2021, as he wasn’t authorized to sign
any agreements till the end of the club’s presidency elections”.
31. Overall, the Respondent argued that it was not aware or responsible for any agreement or
communication with the Claimant’s Intermediary and that the Claimant “did not perform its due
diligence in searching the official means of communication belonging to the Club in order to start
the so-called negotiations or had any communication direct with the club to verify any alleged
offer to him” (emphasis added).
32. With regard to the Offer allegedly sent by the Claimant via email on 31 August 2021, the
Respondent was of the opinion that “the alleged acceptance sent by the player was sent to an
address mail called [email protected] which is not the official mail of the club and doesn’t
belong by any means to the official ways of communication with the club”.
33. It continued that “[t]here were no emails whatsoever sent to the official email address of the Club
in this regard, which is [email protected] (via which FIFA informed the Club of the
lodged claim)”.
34. In the same line, the Respondent added that Mr Hamdy (to whom the WhatsApp messages have
been sent) is “not the president of the Club nor any member of the board of the club or an
authorized person to undertake such alleged negotiations. In addition, there is no evidence or
official communications presented by the claimant that assert that there were negotiations
between the club and the player nor confirming any agreement by both parties”.
c. Replica of the Claimant
35. In his replica, the Claimant first of all argued that he reasonably believed, in good faith, that the
Offer was signed by an authorised person and, consequently, that the Respondent’s argument in
this regard shall be rejected.
36. In support of his allegations, the Claimant provided evidence such as written confirmations,
photos from the official website, showing that the mentioned persons (Messrs Naser Aldeen
Boflega and Hamdy) were linked to the club.
37. Furthermore, the Claimant argued that he was never informed about the administrative change
within the club (nor that the Respondent provided any evidence thereof).
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38. Second of all, the Claimant reiterated that the Offer indeed contained all essentialia negotii and
that it was duly accepted. As to the Respondent’s argument concerning the allegedly incorrect
email address, the Claimant noted that the countersigned Offer was sent to the email address
provided by the club and, furthermore, pointed out that the Intermediary has also sent the Offer
to Mr Hamdy via WhatsApp.
39. Finally, the Claimant reiterated its initial request for relief.
d. Duplica of the Respondent
40. In its duplica, the Respondent rejected the allegations of the Claimant.
41. The Respondent reiterated that Messrs Naser Aldeen Boflega and Hamdy had no authority to
negotiate on behalf of the club. Furthermore, the Respondent alleged that Mr Salama El-Darsy is
not an employee of the club.
42. In support of its allegations, the Respondent provided official letters by the Ministry of Sports.
43. In this respect, the Respondent was of the opinion that the Claimant (or his Intermediary) did not
act diligently when they were dealing with the alleged officials of the club.
44. In a different line of argumentations, the Respondent reiterated that the Offer was never sent to
an official email of the club and that the Claimant therefore failed to prove the conclusion of the
employment agreement.
45. Furthermore, the Respondent was of the opinion that the Offer submitted by the Claimant was
“forged, fake, and created for the purpose of these proceedings”. In this respect, the Respondent
provided the following:
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46. Finally, the Respondent was of the opinion that the Claimant failed to present any evidence that
he received a valid offer from the club and that, on the contrary, the Respondent “proved that it
never issued this offer but the alleged offer was forged and fake and should not take into
consideration”.
47. In view of all the above, the Respondent requested “to fully reject the case at hand, and consider
all allegations submitted by the player is dismissed”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
48. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the 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 23 September 2021 and submitted for decision on
7 April 2022. Taking into account the wording of art. 31 and 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.
49. 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 DRC is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between a Congolese player and a Zambian club.
50. 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 edition), and considering that the
present claim was lodged on 23 September 2021, the August 2021 edition of said regulations
(hereinafter the Regulations) is applicable to the matter at hand as to the substance.
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b. Burden of proof
51. 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 TMS.
c. Merits of the dispute
52. 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.
i. Main legal discussion and considerations
53. 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.
54. 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.
55. 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.
56. 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.
57. In particular, the Chamber noted that, based on the documentation on file, the player failed to
provide sufficient evidence that he accepted the Offer to unmistakably convey his agreement to
the establishment of a valid and binding employment relationship with the club.
58. In this respect, the Chamber was of the opinion that the email address to which the alleged Offer
has been sent to by the Claimant cannot be established as an official email address of the club as
there is no evidence on file supporting such Claimant’s allegation, e.g. that the Claimant has
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received the Offer or any other correspondence from this account and/or that such email address
was agreed between the parties for official communications.
59. Furthermore, the DRC equally established that the WhatsApp account to which the alleged Offer
has been sent to cannot be, with comfortable satisfaction, linked to the Respondent.
60. Referring to art. 13 par. 5 of the Procedural Rules and the principle of the burden of proof, as set
out above, the Chamber concluded that the Claimant did not meet his burden of proof in order to
demonstrate that he duly accepted the club’s Offer. In fact, the documentation provided by the
latter does not support his argument that he had accepted the Offer, that the countersigned Offer
was sent to the correct email address of the club, and consequently, that a valid employment
agreement has been established.
61. Based on the above, the Chamber decided to reject the Claim of the Claimant due to its lack of a
contractual basis.
d. Costs
62. 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
agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the
parties.
63. 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.
64. 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, Jacques Bakulu, 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
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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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