Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 February 2020,
in the following composition:
Clifford Hendel (US A), Deputy Chairman
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the club,
Al Dhafra, United Arab Emirates
represented by Mr Salvatore Civale and Mr Roberto Terenzio
as Claimant
and the player,
S heraldo Rudi S alom o Willem Becker, the Netherlands
represented by Mr Horst Kletke
as First Respondent
and the club,
1. FC Union Berlin, Germany
represented by Mr Markus Buchberger
as Second Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
According to the Emirati club, Al Dhafra FC (hereinafter: the Claimant), the Dutch
player, Sheraldo Rudi Salomo Willem Becker (hereinafter: the First Respondent or the
player) signed a document titled “Offer to the player” (hereinafter: the offer) on 15
May 2019.
2.
Said offer reads, inter alia, as follows:
“Al Dhafra FC offers your client, the player, Sheraldo Rudi Salomo Willem Becker […]
to joining Al Dhafra FC Club during summer transfer window for the sport season of
2019-2020 on a basis according to the following terms and conditions:
A. The acquiring of the player’s Federative rights on a permanent basis for the
seasons 2019/2020 – 2020/2021 and 2021/2022. The full amount of the agreement
and the employment agreement for every sporting seasons above will be equal
to: USD 1,200,000 […] that will be divided as bellow:
As advanced contract for the player USD 200,000 […].
Amount USD 1,000,000 […] divided as monthly salary.
The contract isn’t included: net of taxes.”
3.
Furthermore, the offer contained the following paragraph: “Kindly be informed that
this offer shall not cause any contractual liability on Al Dhafra FC at any stage unless
the player successfully passes all the required medical tests, sign the Agreement and
the Employment Agreement in respect of the aforementioned terms and conditions,
and Al Dhafra FC receives the ITC from his Club.”
4.
According to the Claimant, once the Player arrived in the UAE on the club’s costs in
order to fulfil the medical checks and subsequently sign the contract, he left the
country on 22 May 2019, without prior notice.
5.
On 27 May 2019, the Claimant sent a notification to the First Respondent, requesting
him to “join its premises”, to no avail.
6.
On 7 June 2019, the First Respondent signed an employment contract with the
German club, 1. FC Union Berlin (hereinafter: Second Respondent), valid as from 1
July 2019 until 30 June 2023.
7.
On 22 August 2019, the Claimant lodged a claim against the First and Second
Respondent I in front of FIFA for breach of contract and requested the payment of
USD 1,430,000, corresponding to the “player’s value of market”, plus 5% interest p.a.
as well as sporting sanctions to be imposed on the Respondents.
Club Al Dhafra, UAE / Player Sheraldo Rudi Salomo Willem Becker, Netherlands / Club 1. FC Union Berlin, Germany
Page 2 of 6
8.
In its arguments, the Claimant held that the offer signed by the player constituted e
“preliminary contract” and contained all essentialia negotii, which was subsequently
breached by the First Respondent without just cause, when he joined the second
Respondent. Moreover, the Claimant held that the Second Respondent induced the
player to breach the contract. As a consequence, the Claimant deemed the second
Respondent should be held jointly and severally liable.
9.
For its part, the Player first held that the offer could not be considered as a precontract as no acceptance from the Player had been provided, which led to the
inexistence of any contract between him and the Claimant. In this respect, the First
Respondent referred to the Swiss Code of Obligations in order to define the concept
of an offer. Moreover, the player sustained that said offer had been addressed to the
player’s agent, the player’s signature being only the confirmation of the transmission
of the offer, not an acceptance. In this sense, the player referred to the authorization
empowering his agent, which strictly conditioned any legal engagement of the
player. Furthermore, the player referred to the fact that the offer was clearly
conditioned and, as such, that said conditions having not been fulfilled, the offer
could not have any contractual liability. Finally, the player rejected the Claimant’s
request in full deeming it to be unfounded.
10.
In parallel, the second Respondent explained that, after having been informed by the
player of the facts occurred prior to their contractual relationship, it appeared that
the player left the UAE due to the Claimant’s alleged pressure forcing him to sign the
employment contract, which he didn’t. Consequently, as from the start of the
registration process, the second Respondent sustained that no elements appeared to
link the player to any other ongoing contract. As such, it subsequently concluded the
contract with the player.
11.
Therefore, the second Respondent deemed that the Claimant’s requests were
unfounded due to the absence of any employment contract or preliminary contract,
the player having only recognized by his signature that his agent informed him of
the offer. In this respect, the second Respondent referred also to the concept of the
offer and the acceptance in order to conclude that the player did not accept said
offer. In addition, the second Respondent referred as well to the conditions of the
offer and to the liability of the Claimant which would be excluded if said conditions
would not be fulfilled. Finally, no contract at all having been concluded between the
Claimant and the player, the second Respondent rejected the Claimant’s request
entirely.
Club Al Dhafra, UAE / Player Sheraldo Rudi Salomo Willem Becker, Netherlands / Club 1. FC Union Berlin, Germany
Page 3 of 6
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 22
August 2019. Consequently, the DRC concluded that the 2018 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 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 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January
2020) the Dispute Resolution Chamber is competent to deal with the matter at stake,
which concerns a dispute with an international dimension between a Emirati club, a
Dutch player and a German club in relation to an alleged employment relationship.
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 January
2020), and considering that the present claim was lodged on 22 August 2019, the
June 2019 edition of 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. 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.
Having said that, the members of the Chamber acknowledged that, on 15 May 2019,
the Claimant issued an offer to the First Respondent and invited him to the United
Arab Emirates.
6.
On account of the above, and since the First Respondent left the United Arab
Emirates on 22 Amy 2019 and subsequently joined the second Respondent, the
Claimant argued that the player breached the contract. In this regard, the Claimant
requests compensation for breach of contract and to hold the second Respondent
jointly and severally liable.
7.
In continuation, the members of the DRC took note that the First Respondent
rejected the Claimant’s claim and having concluded a contract with the Claimant,
mainly since he never accepted the offer and since the offer was conditioned.
Club Al Dhafra, UAE / Player Sheraldo Rudi Salomo Willem Becker, Netherlands / Club 1. FC Union Berlin, Germany
Page 4 of 6
8.
Moreover, the DRC took note of the position of the second Respondent, endorsing
the player’s position, rejecting the Claimant’s claim and denying any inducement.
9.
In light of the above, the members of the Chamber observed that the pivotal issue in
this dispute, considering the diverging position of the parties, was to determine as to
whether or not an employment contract between the Claimant and the First
Respondent was concluded. The DRC further observed that, only if the previous
question were to be answered in the affirmative, it would be necessary to determine
whether the contract had been terminated without just cause and, in case, the
consequences thereof.
10.
In view of this dissent between the parties in respect of the basic above-mentioned
underlying question, 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 shall carry the respective burden of proof. The application of the said
principle in the present matter led the members of the DRC to conclude that it was
up to the Claimant to prove that the alleged employment contract, on the basis of
which it claimed compensation for breach of contract from the Respondents, indeed
existed.
11.
Consequently, the members of the Chamber started examining the content of the
offer, which, prima facie, included the essentialia negotii. Furthermore, the members
took note of the following paragraph, included in the offer as well:
“Kindly be informed that this offer shall not cause any contractual liability on Al
Dhafra FC at any stage unless the player successfully passes all the required medical
tests, sign the Agreement and the Employment Agreement in respect of the
aforementioned terms and conditions, and Al Dhafra FC receives the ITC from his
Club.”
12.
The DRC concluded that the offer is conditioned and if the above-mentioned
requirements would not be fulfilled, the Claimant could not be held liable and in
analogy, also not the First Respondent.
13.
The Chamber acknowledged that no employment contract was signed and therefore
the condition of the offer was not fulfilled. Therefore, no further examination of the
offer and its alleged acceptance, was necessary.
14.
As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove that an employment contract had validly been concluded
between itself and the First Respondent, there was no possibility for the Chamber to
enter into the question of whether or not such alleged employment contract had
been breached.
Club Al Dhafra, UAE / Player Sheraldo Rudi Salomo Willem Becker, Netherlands / Club 1. FC Union Berlin, Germany
Page 5 of 6
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
The claim of the Claimant, Al Dhafra, is rejected.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 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. 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 & Compliance Officer
Club Al Dhafra, UAE / Player Sheraldo Rudi Salomo Willem Becker, Netherlands / Club 1. FC Union Berlin, Germany
Page 6 of 6