Labour Disputes
Texto da decisão
REF FPSD-5248
Decision of the
Dispute Resolution Chamber
passed on 29 August 2022
regarding an employment-related dispute concerning the player Andreas
Beyer Maxsø
BY:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Jerome Perlemuter (France), member
CLAIMANT:
Andreas Beyer Maxsø, Denmark
Represented by Mr Luca Tettamanti
RESPONDENT:
FC Rostov, Russia
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I. Facts of the case
1.
As from 9 September 2019, the Danish player Andreas Beyer Maxsø (hereinafter the
Claimant or the player) was employed by the Danish club Brøndby (hereinafter Brøndby).
The respective employment agreement is valid until 30 June 2023.
2.
On an unspecified date, around 29 July 2021, the Russian club FC Rostov (hereinafter the
Respondent) and the Claimant started to discuss the conditions of a potential employment
agreement.
3.
On 29 July 2021, the Claimant sent the Respondent (hereinafter jointly referred to as
the parties) a revised draft of an employment agreement and supplementary agreement
with the following remarks:
“Please consider the following:
1.
I am not aware of the economic conditions, so I will have to get the green light from
the client for the numbers.
2.
I used the final version that we extensively negotiated at the time of the Gigovic deal
so consider that the integrations I made in this draft are the ones already agreed at
the time of Gigovic. I think we can easily agree on both sides to use these integrations.
3.
The only part that I added now is the part highlighted in green because they are
particular for this player.” (Note: Armin Gigovic is a Swedish player who was
previously transferred to Rostov)
4.
30 July 2021, the Respondent replied to the draft of the above-mentioned contract as
follows:
“I am writing this letter regarding the employment contract and the addendum (…)
However, we do not think that using Armin Gigovic contract would be appropriate in this
case as his deal took place long time ago and his conditions were applicable for only one
particular person - Armin Gigovic himself. (…)”
5.
In particular, the following remarks were made:
“1. Art. 2.2
Initially our offer included 50.000 euro salary, however, sign-on fees that would not be
dependent to the Player’s being a registered player of the Club were never mentioned. We
propose to use our edition with a monthly salary (25.000 euro) and lump sums (see the
schedule of payment) which are subject to Player’s being registered in the FCR.”
6.
On 30 July 2021, in reply to the above-mentioned email of the Respondent, the Claimant
made the following remarks:
“1. Art. 2.2
(…)
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I drafted like that because my understanding is that the Player shall earn € 600.000 net
guaranteed every season. I think we can amend as follows if you agree:
“For the avoidance of doubts, two one time remunerations apply to the same season and
they are matured respectively by the Player on 1st September (and then paid on 31st
December) and on 30th June (and then paid on 31st July, with the only exception of 31 May
2025) if on these dates (1st September and 30th June) the Player has a valid employment
contract with the Club”. With your wording the risk for the Player is that he plays for FK
Rostov from January to June but then if he is sold on 1st July he basically loses 50% of his
6 months’ salary.”
7.
On 2 August 2021 (11:53), the Claimant sent the following correspondence to the
Respondent:
“Basically, the two points pending are clause 2.2 on the dates of maturity of the one‐time
remunerations each season and clause 2.3 about adding a wording ‐ as I suggested ‐ which
may balance the proportionality of any internal disciplinary sanction by the Club to the
violation effectively occurred. I therefore think we are very close to the final version of the
contract.”
8.
On 2 August 2021 (23:11), the Claimant sent additional correspondence to the
Respondent:
“As I had no news from you I was in contact with the Player and his agent to further explain
the last open points.
Eventually the Player accepts your last proposal.
As to the salary, he is ok with the payment of the second one time remuneration on 31st July
of the next season. This means clause 2.2 can stay in the version you drafted.
As to the possible high reductions of the incentive bonuses at clauses 2.3 and 3. the Player
pointed me out that he is a very committed professional and for him will not be a problem
to fully comply with his duties. So he deems there will be no case when you will have to apply
any sanction. Eventually, also clauses 2.3 and 3. are therefore accepted in the way you
drafted them.
Therefore, considering we have a final agreement on the Contract and its Annex 1, I just wait
for its formalization by way of a signed version. If you prefer, I can also tell the Player to sign
one first and send you.
Please be in touch with the agents to organize his trip to Rostov and further formalities.”
9.
On 5 August 2021, the Claimant further wrote to the Respondent:
“I refer to my email below, to which I received no answer, because the Player is willing to
know the next steps for him to organize his arrival in Rostov. Therefore, we provide you
herewith a copy of his passport.
Please let us know which other documents you may need to prepare his visa and work
permit in order for us to quickly collect them.
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We kindly request you to proceed further as soon as possible considering that the Player
has not been training since some days now and he wants to keep his shape, especially
considering that the Russian PL is already going on.”
10. On 5 August 2021 (12.08), the Respondent informed Brøndby, i.e. the club of the Claimant,
that it will not proceed with the transfer:
“We would like to inform you that on the August 4, 2021 FC Rostov had to accept the
statement of resignation of the head coach – Valery Karpin. Having considered the opinion
of the new head coach, the board of directors and shareholders had to review our transfer
policy and took the decision to block the transfer of Andreas Maxsø to FC Rostov.
Due to this fact as well as the fact that the parties have not concluded and signed the
Transfer Agreement and the Employment Contract – we inform you that FC Rostov is forced
to pull out of the deal.
We are deeply sorry that it is impossible to finalize this deal due to the objective causes.
Nonetheless, we extend our deepest appreciation for the incredible amount of job done
within a very short period of time. We hope for your understanding and fruitful cooperation
in the future.”
11. The Claimant was included in copy of the above-quoted correspondence.
12. On 6 August 2021, the Claimant sent a default notice to the Respondent, alleging that the
essentialia negotii of the employment agreement have been duly agreed upon as from
29 July 2021 and, consequently, that there is a legal and binding employment agreement
as of such date. In the same correspondence, the Claimant pointed out:
“(…) we take note of your clear intention not to comply anymore with the Employment
Contract and the Transfer Agreement. Considering the necessity for the Player to keep his
shape with trainings and matches in this pivotal part of the season and his right to legal
certainty, he will consequently rejoin back Brondby IF without this possibly being construed
against him in view of your clear unjustified breach.”
13. By a correspondence of 9 August 2021, the Respondent (first time via a legal counsel),
disagreed that the employment agreement and the transfer agreement were valid. In
support of its arguments, it pointed out the following:
−
−
−
“only negotiations took place, which is a standard practice;
“the transfer agreement was never finally agreed and signed by FC Rostov. Moreover,
its validity was under the condition of signing an employment contract with Mr.
Maxsø and passing a medical check, which never happened”;
“Mr. Maxsø had never started the actual execution of the alleged employment
contract and had never even requested to appear at FC Rostov’s premises, let alone
taken any practical steps in this regard. Therefore, there is no need to inform FC
Rostov that Mr. Maxsø returns to Brøndby IF, as he has never actually left it.”
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14. On 10 August 2021, the Claimant sent a further correspondence to the Respondent,
rejecting the latter’s arguments mentioned above by reiterating its previous position and,
furthermore, adding the following:
“new argument according to which the Player would have “failed to pass a preliminary
medical examination before the signature of the employment contract” is not only generic
but belated and artificial. Suffice to mention that it is raised 8 (eight) days after the actual
conclusion of the Employment Contract and did not appear in the letters whereby FC Rostov
communicated its intention not to fulfil it on 5 and 6 August 2021.”
15. On 11 August 2021, the Respondent answered to the Claimant, further underlining the
reasons as to why no contract has been concluded between the parties.
16. On 7 October 2021, the Claimant sent a default notice to the Respondent, requesting the
amount of EUR 1,691,881 for the compensation of damages arising from the alleged
employment agreement.
Offer from the Respondent to Brøndby regarding the potential transfer of the
Player/Claimant
17. In parallel, on 24 July 2021, the Respondent sent an official correspondence to Brøndby
showing a potential interest in the Claimant. In this first correspondence, the Respondent
suggested a payment of a transfer fee of EUR 2,000,000, payable in three instalments as
follows:
“a. 1st instalment of 700.000 euro shall be paid up within 60 days after signing;
b. 2nd instalment of 700.000 euro shall be paid up to 1st March 2022;
c. 3rd instalment of 600.000 euro shall be paid up to 15th August 2022.”
18. On the same day (23:11), Brøndby responded to the offer, proposing a different payment
schedule and additional sell-on fee:
“Euro 1’000’000.00 on or before September 1, 2021
Euro 1’000’000.00 on or before September 1, 2022
Future Transfer to a third club / Sell on
In the event that FCR agrees to transfer the Player’s registration to a third party club then
FCR shall pay to BIF a share of the profit equivalent to 15% of the Net Income (hereinafter
“Sell-on Fee”) that exceeds the amount already paid to BIF.”
19. On 25 July 2021 (13:09), the Respondent replied to Brøndby with the following
counteroffer:
“Euro 700’000.00 within 60 days after signing the Player;
Euro 700’000.00 on or before March 1, 2022;
Euro 600’000.00 on or before August 15 2022.
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Future Transfer to a third club / Sell on
In the event that FCR agrees to transfer the Player’s registration to a third party club then
FCR shall pay to BIF a share of the profit equivalent to 5% of the Net Income (hereinafter
“Sell-on Fee”) that exceeds the amount already paid to BIF.”
20. On the same date (16:45), Brøndby reacted as follows:
“Euro 1’000’000.00 on or before September 1, 2021
Euro 500’000.00 on or before March 1, 2022
Euro 500’000.00 on or before September 1, 2022
Future Transfer to a third club / Sell on
In the event that FCR agrees to transfer the Player’s registration to a third party club then
FCR shall pay to BIF a share of the profit equivalent to 10% of the Net Income (hereinafter
“Sell-on Fee”) that exceeds the amount already paid to BIF. Further correspondence between
the Claimant and the Respondent as from 5 August 2022.”
21. On the same date (18:12), the Respondent replied:
“Euro 700’000.00 on or before September 10;
Euro 700’000.00 on or before March 1, 2022;
Euro 600’000.00 on or before August 15 2022.
Future Transfer to a third club / Sell on
In the event that FCR agrees to transfer the Player’s registration to a third party club then
FCR shall pay to BIF a share of the profit equivalent to 5% of the Net Income (hereinafter
“Sell-on Fee”) that exceeds the amount already paid to BIF.”
22. On 26 July 2021 (00:55), Brøndby further adapted the conditions as follows:
“Euro 700’000.00 on or before September 10, 2021
Euro 700’000.00 on or before March 1, 2022
Euro 600’000.00 on or before August 15, 2022
Future Transfer to a third club / Sell on
In the event that FCR agrees to transfer the Player’s registration to a third party club then
FCR shall pay to BIF a share of the profit equivalent to 10% of the Net Income (hereinafter
“Sell-on Fee”) that exceeds the amount already paid to BIF.”
23. On the same date (11:01), the Respondent informed Brøndby that the “board will look into
the possibility of improving our offer. It might take a while but once the decision is ready I will
contact you immediately.”
24. Equally on 26 July 2021 (12:14), Brøndby sent the Respondent a “proposed draft of the
transfer agreement”.
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25. In reply thereto (16:33), the Respondent answered as follows: “Having considered your
proposal on the sell on fee, FCR suggests that we include 5% sell-on fee of the Net Income that
exceeds the amount already paid to BIF. This is the most improved offer Rostov can provide.”
26. On 27 July 2021(14:33), Brøndby inquired as to “who will do the signatures for Rostov to
complete the draft”, to which the Respondent replied, “It’s Rybakov Vadim”.
27. On 27 July 2021 (16:02), Brøndby sent the Respondent “the final document” including the
signature on behalf of Brøndby. It shall be noted that following remark has been made:
“Be aware one final adjustment from our side in section 2. (e) concerning delayed payments.”
28. On 27 July 2021 (18:35), the Respondent replied to the above-mentioned correspondence
as follows:
“We have studied the contract you sent us earlier.
Most likely it will be sent back with a Russian translation tomorrow morning as we have to
comply with the Russian legislation on the oficial paperwork language. It means the contract
will include both Russian and English versions where English version shall prevail.
There is one detail we would like to clarify so we avoid any further doubts for both parties.
The amount we offered (2 mln euro) includes all the solidarity payments for the player.
That means that having paid 2 mln euro to BIF, FCR is free from any claims of solidarity to
other clubs.”
29. On 28 July (16:07), the Respondent sent an unsigned version of the transfer agreement in
both Russian and English language. The email contained the following remark: “Please let
me know if you have any questions”. The said document contained, inter alia, the following
conditions:
“(b) This Agreement is subject to the satisfaction of the following condition precedent:
i.)
conclusion of a mutual termination agreement regarding the Employment
Contract between [Brøndby] and the [Claimant]”.
30. On 28 July (17:54), Brøndby sent a signed version of the transfer agreement back to the
Respondent. The transfer agreement has equally been signed by the Claimant.
31. As already mentioned above, on 5 August 2021, the Respondent informed Brøndby that
it will not proceed with the transfer.
32. In reply thereto, Brøndby answered on the same day:
“Dear Mr. Vadim Rybakov,
With reference to your email of today we maintain the agreement between the parties. Both
Brøndby IF and the Player definitely agreed the terms with FK Rostov and the player is, as
agreed, ready for the transfer to FC Rostov.
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FC Rostov is not entitled to terminate the agreement unilaterally and if you do not before
the end of the business day tomorrow confirm that you will fulfill the agreement in full, we
will pursue the matter upon FIFA.
We are looking forward to receiving your confirmation.”
33. On 6 August 2021, the Respondent sent the following letter to Brøndby:
“(…) As you all know, FC Rostov was eager to obtain the services of the Player. However, the
unforeseen circumstances prevent FC Rostov from entering into the transfer agreement.
As the draft of the transfer agreement is not signed by all the Parties (including FC Rostov),
it did not become a valid agreement. Consequently, FC Rostov docs not consider itself bound
by any contractual obligations with your club in this regard.
FC Rostov apologizes for the time and effort spent in the negotiating procedure from your
side, however, kindly asks you to respect FC Rostov's position. As you all know, negotiations
do not always lead lo their positive conclusion, which, unfortunately, is the case.
Despite all the above, re Rostov wishes good luck to your club and the Player and hopes that
employment relations of your club and the Player eventually result for your mutual benefit.”
34. On 8 October 2021, Brøndby sent a default notice to the Respondent requesting the
amount of EUR 2,000,000 for the compensation of damages arising from the alleged
transfer agreement.
35. On 12 October 2021, the Respondent reiterated its position than no transfer agreement
has been concluded.
36. On 7 February 2022, the Respondent sent a letter to Brøndby, inquiring as to if the latter
would be willing to negotiate the transfer of the Claimant.
Correspondence between the Agents
37. During the respective period of time, between 24 and 28 July 2022 (i.e. prior to the
email exchange portrayed above), various WhatsApp messages have been exchanged
between Mr Nour Eddine Ghelam, agent acting on behalf of the Claimant, and
Mr Andrei Stepanov, allegedly acting on behalf of the Respondent, concerning the
transfer of the Claimant, i.e. the draft of the contract appears to have been circulated
on 27 July 2022, financial conditions and certain general information regarding visa in
Russia/COVID-19 test and HIV test were shared. Finally, a copy of the passport of the
Claimant has been sent to Mr Stepanov.
38. On 2 August 2021 (14:21), the agents exchanged documents concerning “medical
examinations” of the Claimant.
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39. On 4 August 2021, the agent acting on behalf of the Respondent sent the following
message to the agent of the Claimant: “Rostov is out. Director called me. Doctor said he has
problems in his back and new coach play only with 4 defenders.”
II. Proceedings before FIFA
40. On 23 February 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
41. The requests for relief of the Claimant were the following:
“I. The claim filed by Mr Andreas Beyer Maxsø before the FIFA DRC against Joint- Stock
Company Football Club Rostov is upheld.
II. Joint-Stock Company Football Club Rostov is condemned to pay Mr Andreas Beyer Maxsø
as compensation for breach of contract the amount of EUR 1,841,564 (one million eight
hundred and forty-one thousand five hundred and sixty-four euros) plus 5% interest p.a.
from 6 August 2021 until the date of effective payment.
III. Joint-Stock Company Football Club Rostov is sanctioned pursuant to article 17.4 of the
FIFA RSTP.
On a subsidiary basis
IV. Joint-Stock Company Football Club Rostov is condemned to pay Mr Andreas Beyer Maxsø
as damages for culpa in contrahendo and precontractual liability the amount of
EUR 325,000 (three hundred and twenty-five thousand euros) plus 5% interest p.a. from
6 August 2021 until the date of effective payment or the amount considered fair and just by
FIFA DRC.
In any case
V. Joint-Stock Company Football Club Rostov shall bear any and all the possible costs of this
procedure.”
42. With reference to CAS jurisprudence, the Claimant argued that if parties “reciprocally and
by mutual consent, expressed their common intent on all its essential elements”.
(CAS 2019/A/6463 Saman Ghoddos v. SD Huesca & Östersunds FC & Amiens Sporting Club
& FIFA & CAS 2019/A/6464 Östersunds FK Elitfotboll AB v. SD Huesca & FIFA & Saman
Ghoddos & Amiens Sporting Club).
43. In this respect, the Claimant was of the opinion that the essentialia negotii have been
agreed upon and, consequently, a valid and binding employment contract was concluded.
44. The Claimant argued that the “first draft of the Rostov Contract and Rostov Addendum (…)
already contained all the essential elements verbally agreed upon, namely: duration until
31 May 2025, the monthly salary of EUR 25,000 net as well as the amount of the sign-on fee of
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EUR 1,150,000, the name and identification of the parties and their main obligations and roles”
and that the intermediaries confirmed this information via WhatsApp.
45. Furthermore, the Claimant alleged that only “secondary terms” were left open and,
consequently, those have been discussed via email. The Claimant believed this has,
however, no bearing on the fact that essentialia negotii were agreed upon.
46. The Claimant further argued that he “was allowed by Brøndby to suspend his trainings with
the first team and was not called for the matches” and highlighted that the Respondent “(i)
asked the Player to provide it with a copy of his passport, (ii) that Rostov also provided the
Player with the conditions of entry into Russia and the steps to be taken in order to obtain a
visa (iii) and finally, it cannot be denied that the Player took steps to comply with the conditions
of entry and the steps to be taken in order to obtain a visa by a blood test.”
47. The Claimant also pointed out that signature is not a valid pre-requisite to establish the
existence of a contract, in particular when a consent is established.
48. The Claimant further rejected that a medical exam was a pre-requisite for the validity of
the contracts as alleged by the Respondent in his late correspondence of August 2021.
49. Finally, the Claimant anticipated that Mr Gridnev (responsible for the communication on
behalf of the Respondent) has authority to represent the Respondent, i.e. to enter into
binding agreements on its behalf.
50. In view of the above, considering that the employment agreement and its addendum
were correctly concluded, the Claimant was of the opinion that the Respondent
committed a clear breach of those contracts and, consequently, must bear the financial
consequences therefrom.
51. The Claimant asserted that a compensation in accordance with art. 17 of the Regulations
shall be payable by the Respondent.
52. The Claimant provided for the following breakdown:
“Therefore, the residual value of the Rostov Contract and its Rostov Addendum in this case,
after mitigation with the Brøndby Contract, is equal to EUR 1,691,564 net considering the
following calculation:
EUR 1,150,000 net corresponding to the Player’s salaries with Rostov from 1 August 2021 to
31 May 2025 pursuant to clause 2.1 of the Rostov Addendum
+
EUR 1,150,000 net pursuant to clause 2.2 of the Rostov Addendum
–
EUR 608,436 net corresponding to the Player’s salaries with Brøndby from 1 August 2021 to
31 May 2025;“.
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b. Position of the Respondent
53. The Respondent rejected the claim of the Claimant in its entirety and arguing as follows:
“By the date of 5 August 2021:
−
−
−
−
−
−
−
−
the draft of the Transfer agreement of the Player was not signed by Rostov;
the draft of the Contract of the Player was not signed neither by the Player, nor by
Rostov;
the current Contract of the Player with Brøndby was not terminated;
no invitation to Russia was sent to the Player;
no Russian Visa for the Player was issued because the Player didn't collect all the
documents needed,
no Russian Working permission for the Player was issued;
therefore, the Player has not come to Rostov's place and has not started to
perform his professional duties;
no ITC for the Player was issued, no necessary actions in FIFA TMS concerning the
Player were made.”
54. In particular, the Respondent pointed out that there was only a draft employment
agreement between the parties, which was never signed by neither of them.
55. The Respondent further pointed out that the Claimant never terminated his employment
agreement with Brøndby, which was also a condition foreseen in the draft transfer
agreement. In this respect, not only was the Claimant unable to sign a new employment
contract with the Respondent, but what is more, the transfer could have never been
concluded as the respective condition was not fulfilled.
56. As to the medical test, the Respondent confirmed that the results of the medical checkups were “suspicious”, nonetheless, that such practices are not uncommon in football and
that the Claimant was immediately notified of Respondent’s concerns.
57. As to the CAS jurisprudence presented by the Claimant, the Respondent was of the
opinion that no analogy can be drawn from it on the present case. In this regard, the
Respondent pointed out:
“After an exchange of negotiation proposals SD Huesca - through its General Manager made a formal proposal with time validity to Ostersunds FC regarding the transfer of the
player. Rostov has never made such formal proposals to Brøndby or to the Player after
the negotiation process.
The player Saman Ghoddos physically went to Spain by himself in order to join to SD Huesca.
In the case at hand Mr Maxsø has never gone to Russia and stayed in Denmark during
July-August 2021.
The player Saman Ghoddos underwent an advanced medical examination in Spain in SD
Huesca' s clinic.
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In the case at hand Mr Maxsø has undergone a not-advanced medical examination
outside of Russia and the Medical Department of Rostov could analyse their results
only distantly.
What's the most important: The player Saman Ghoddos has signed the Employment
Contract with SD Huesca.
In our case nothing like that has ever happened.”
58. The Respondent reiterated that:
“No Employment Contract was ever concluded between FC Rostov and Andreas Beyer Maxsø.
No Transfer Agreement was ever concluded between FC Rostov and Brøndby IF.”
59. Finally, the Respondent deemed that the present claim is a “malicious collusion and
orchestrated manoeuvres aimed at obtaining unjust enrichment from Rostov in bad faith” as
“only an unambiguous offer and its acceptance can lead to the conclusion of the contract.
Otherwise, any negotiations concerning the text of the contracts between lawyers, agents and
translators will lead to the conclusion of the contracts. As it is widespread known, in
professional football business not all of negotiations always lead to a conclusion of agreements
or other positive results for all the parties involved. And exactly this is the situation at hand.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
60. 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 23 February 2022 and
submitted for decision on 29 August 2022. Taking into account the wording of art. 34 of
the June 2022 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.
61. 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 (July 2022), 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 Danish player
and a Russian club.
62. 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 (July 2022), and considering
that the present claim was lodged on 23 February 2022, the August 2021 edition of said
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regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
63. 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
64. 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 above-mentioned 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
65. 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 an employment
contract has been concluded between them.
66. In this context, the Chamber acknowledged that its task was to decide if the parties in the
matter at hand are indeed bound by an employment contract.
67. 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.
68. The members of the DRC further recalled that in cases in which a clear consent and
intention to conclude an employment contract was sufficiently established, the Chamber
previously decided that an employment relationship was indeed concluded. Nonetheless,
the DRC pointed out that in those cases, clear evidence was presented by the claiming
party.
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69. Thereafter, the Chamber recalled the arguments of the Claimant, alleging that the
essentialia negotii have already been included in the WhatsApp exchange between the
agents and that only “secondary terms” were left open and discussed via the email
exchange. Consequently, the DRC observed that the Claimant argued that an
employment contract has been validly concluded.
70. Equally, the Chamber took note of the arguments of the Respondent that no contract(s)
were concluded in the matter at hand as the respective exchanges were part of
negotiations which are common in football. The DRC observed that in support of its
argumentation, the Respondent pointed out that the Claimant has remained with
Brøndby for the whole period of these negotiations, without any visit to Russia to undergo
further steps concerning the transfer.
71. Thereafter, the Chamber turned its attention to the factual background of the case, in
particular to the correspondence between the parties in the period of 29 July 2021 and
2 August 2022.
72. In this context, the DRC firstly wished to remark that there was, indeed, a lack of clarity in
the negotiations between the parties.
73. Nonetheless, the Chamber continued with the summary of the facts:
-
The player never arrived at the premises of the Respondent to undergo a trial
nor a medical exam;
-
The player remained registered with Brøndby, i.e. no mutual termination of the
employment agreement between the player and Brøndby was concluded;
-
Whereas the parties were indeed in negotiations regarding a potential
employment agreement, there is uncertainty regarding the agreed
remuneration;
-
There is no signed employment contract in the present matter;
-
The player was never registered with the Respondent and that no International
Transfer Certificate (ITC) procedure was initiated;
-
No visa nor work permit were issued for the player.
74. Considering the evidence on file, the DRC believed that no employment agreement has
been established as it was impossible to determine the consent of the parties, in
particular, the correspondence up to 2 August 2021 does not suffice to establish a mutual
intention to enter into the employment relationship. In other words, a clear consent and
intention to conclude an employment contract could not be sufficiently established.
75. In view of the above, the Chamber decided that no employment agreement was
concluded between the parties.
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REF FPSD-5248
76. However, the Chamber continued with the assessment of the subsidiary request for relief
of the Claimant based on culpa in contrahendo, i.e. negligent/intentional breach of precontractual duties.
77. In this context, the DRC recalled the CAS jurisprudence concerning such basis of liability:
“A finding of culpa in contrahendo requires the existence of contractual negotiations, trust
that merited protection, a breach of a duty, harm, a causal connection, and fault [includes
intent and negligence]. The breach of a duty in particular derives from the principle of good
faith. At the contractual negotiation stage it includes – regardless of whether a contract is
later concluded – certain duties of care, considerateness, good faith, and of providing
information, including the duty to negotiate seriously and in a fair manner. It essentially
constitutes an independent basis of liability, somewhere between a contract and a tort.”
(CAS 2016/A/4489, par. 103)
78. Applying the above-mentioned doctrine, the Chamber was of the opinion that the
Claimant failed to demonstrate any harm derived from the negotiations, despite the
context thereof.
79. The members of the Chamber decided that no liability arises from the pre-contractual
negotiations of the parties.
ii. Consequences
80. In conclusion, the members of the Chamber decided to reject the claim of the Claimant.
d. Costs
81. 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.
82. 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.
83. 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, Andreas Beyer Maxsø, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-5248
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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