Dispute Resolution Chamber
Texto da decisão
REF FPSD-42
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021
regarding an employment-related dispute concerning the player Jairo Samperio Bustara
COMPOSITION:
Clifford J. Hendel (USA / France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stéphane Burchkalter (France), member
CLAIMANT:
Jairo Samperio, Spain
Represented by Mr Mario Resino Sastre
RESPONDENT:
Schalke 04, Germany
Represented by Schickhardt Rechtsanwälte
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REF FPSD-42
I.
FACTS OF THE CASE
1.
On 29 August 2014, the Spanish player, Jairo Samperio Bustara (hereinafter: the player),
and the German club, Mainz 05 (hereinafter: Mainz), concluded an employment contract.
2.
On 24 August 2017, Mainz published –in its Twitter account– a message stating that the
player is transferable until 31 August 2017, i.e. until the end of the summer transfer
window, and that he is able to enter into negotiations with other clubs which were willing
to engage him, but that Mainz could not sell the player. The original text in German reads
as follows: “RS: #Jairo wird bis zum 31.8 freigestellt. Er hat die Möglichkeit, sich einen
neuen Verein zu suchen. Wir müssen ihn aber nicht verkaufen“.
3.
In this context, the German club, Hannover 96 (hereinafter: Hannover) expressed its interest
in signing the player and, on 22 August 2017, sent an unsigned contract to the player´s
agent (hereinafter: Hannover´s proposal), which contained the conditions offered by
Hannover.
4.
In the email sent by Hannover to the player, the former stated, inter alia, the following: “At
8:30 a.m. the cardio test will take place at the OSP and afterwards we will go to the doctor's
office and, if necessary, to the MRI. Our team manager will pick you up at 8:15 am at the
Marriott. Then he gets clothes in the cabin! The team trains at 11 am in the weight room
which is not an issue for him but we try to get everything ready so he can train with the
team at 3 pm. He must be top prepared for Schalke ;-)”.
5.
The above-quoted is a free translation from the original text in German, which reads as
follows: “Um 8.30 Uhr ist im OSP der Kardiotest und danach geht’s zum Dok in die Praxis
und ggfs noch zum MRT. Unser Teammanager holt euch um 8.15 Uhr im Marriott ab. Dann
bekommt er Klamotten in der Kabine! Die Mannschaft trainiert um 11 Uhr in der
Kraftkammer was kein Thema für ihn ist aber wir versuchen alles fertig zu bekommen, dass
er um 15 Uhr mit der Mannschaft trainieren kann. Er muss für Schalke topvorbereitet sein
;-)”.
6.
In accordance with Exhibit 1 to Hannover´s proposal, Hannover offered the player, inter alia,
the following monthly remuneration:
7.
EUR 130,000 gross as from 23 August 2017 until 30 June 2018;
EUR 135,000 gross as from 1 July 2018 until 30 June 2020;
EUR 140,000 gross as from 1 July 2020 until 30 June 2021.
On the same date, i.e. 22 August 2017, the player´s agent and the German club, Schalke
04 (hereinafter: Schalke) entered into negotiations regarding the transfer of the player to
Schalke.
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8.
As regards the conclusion of a contract between the player and Hannover, on 22 August
2017, the player´s representative communicated to Schalke, inter alia, the following: “And
with H96 is still missing an agreement regarding fees. There we are at all not clear”.
9.
In a Whatsapp message sent by Schalke to the player´s agent on the aforementioned date,
the former stated, inter alia, the following: “We would make a contract with him as of
1.7.18. and he receives 1 million as compensation distributed over the duration of the
contract. Then his loss evens out. Of course, we would probably get him in winter, and then
the signing bonus would be halved. But then Jairo has to take the blame and say he doesn't
feel good about [Hannover] and cancel it. (if you can't extend it)”.
10.
Furthermore, in a Whatsapp message sent by the CEO of Schalke to the player´s agent on
23 August 2017, the former stated that Schalke is committed to sign Jairo either on 1
January 2018 or, at the latest, on 1 July 2018 if it does not work out now.
11.
On 23 August 2017, after some negotiations undertaken between the parties, Schalke sent
an email to the player´s agent, whereto the former attached 2 different employment
proposals duly signed by Mr Arnd Hovemann, Director of Sport Administration of Schalke:
Option A (hereinafter: Schalke´s proposal A): This option contemplated the scenario
where the contractual relationship would run as from 1 July 2018 until 30 June 2021
(i.e. 36 months). The player would receive a monthly remuneration of EUR 150,000,
as well as 4 lump sums, payable as follows: EUR 250,000 in September 2018, EUR
250,000 in February 2019, EUR 250,000 in September 2019 and EUR 250,000 in
February 2020;
Option B (hereinafter: Schalke´s proposal B): This option contemplated the scenario
where the contractual relationship would run as from 1 January 2018 until 30 June
2021 (i.e. 42 months). The player would receive a monthly remuneration of EUR
150,000, as well as 4 lump sums, payable as follows: EUR 125,000 in September
2018, EUR 125,000 in February 2019, EUR 125,000 in September 2019 and EUR
125,000 in February 2020.
12.
Both proposals contained, at the end of their clauses, the following statement: “The
contract offer is subject to the final approval of the Supervisory Board”. The original text in
German reads as follows: ”Das Vertragsangebot gilt vorbehaltlich der endgültigen
Genehmigung des Aufsichtsrates” (emphasis not added, the said statement was underlined
in both proposals).
13.
In the Whatsapp messages exchanged between the player´s agent and the CEO of Schalke
on 30 August 2017, the former stated that it would be best if the player was transferred to
Schalke during the following winter transfer window or during the following summer
transfer window, at the latest; to which the CEO of Schalke replied stating the following:
“HEY CH[hristian]. I ALWAYS KEEP MY WORD! WE WANT JAIRO AND I WORK ON IT LIKE
CRAZY […]”.
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14.
Moreover, on 31 August 2017 –also via Whatsapp messages exchanged between the
aforesaid individuals–, the player´s agent stated that, in view of the situation, they would
need to sign everything for the following year; to which the CEO of Schalke replied stating
the following: “Yes. Unfortunately […]”.
15.
Short before the opening of the winter transfer window of the season 2017/2018, Schalke
informed the agent of the player that (i) Schalke would not reach an agreement with Mainz
to transfer the player in January 2018, as it made no sense to pay a transfer fee for a player
who would be signed as a free agent on 1 July 2018; and (ii) that Schalke would therefore
execute Schalke´s proposal A, in accordance with which the employment contract between
Schalke and the player would enter into force on 1 July 2018, with the player already being
a free agent without any connection to Mainz, thus exempting Schalke from having to pay
a transfer fee for a player who would be signed as a free agent on 1 July 2018.
16.
On 31 December 2017, the player was transferred from Mainz to the Spanish club, UD Las
Palmas, for a period of 6 months (until the end of the contract with his parent club, Mainz),
i.e. the said parties agreed that the player would be rendering his services for UD Las Palmas
until 30 June 2018.
17.
On 5 June 2018, the CEO of Schalke informed the player´s agent that the club's Supervisory
Board had not approved the signing of the player, given his sporting performance in the
2017/2018 season.
18.
On 1 July 2018 the player's agent contacted the CEO of Schalke, the latter informing the
former about the club's refusal to comply with the terms and conditions embodied in the
proposals sent to the player on 23 August 2017.
19.
On 6 July 2018, the player –who was already a free agent– signed a contract with the
German club, Hamburger SV (hereinafter: HSV), valid as from the date of its signature until
30 June 2019 (information extracted from TMS), in accordance with which the player was
entitled to a monthly remuneration of EUR 60,000 gross, i.e. the player received a total
fixed remuneration of EUR 720,000 during the season 2018/2019.
20.
In March 2019, the player and HSV allegedly signed a novation to the contract, extending
their contractual relationship until the end of the season 2019/2020. In accordance with
the said extension to the contract, the club allegedly undertook to pay to the player a
monthly salary of EUR 20,000 gross, i.e. the player received a total fixed remuneration of
EUR 240,000 during the season 2019/2020 (no documentation in this regard was uploaded
into TMS).
21.
At this point in time, after having been engaged by HSV, the player was still in contact with
Schalke, seeking to find an amicable settlement. In this context, on 6 May 2020, the player
sent a letter to Schalke, thereby urging the latter to conclude an amicable settlement with
the player to compensate him for the damages suffered, granting the club a 7 days´ deadline
to contact the player to start the said negotiations.
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REF FPSD-42
22.
By means of its email dated 20 May 2020, Schalke replied, stating that the argumentation
of the player could not be upheld, insofar: (i) the player never formally accepted any of the
proposal(s); (ii) the proposal(s) were issued by Mr Arnd Hovemann, who is not a member of
the Supervisory Board of Schalke; (iii) the proposal(s) stated that they were subject to the
approval of the Supervisory Board, which did not approve any of them; (iv) if the player
considered he had a valid contract with Schalke, he breached the contract himself when
signing contracts with UD Las Palmas and HSV during the term of the proposal(s).
23.
On 21 May 2021, the player replied thereto, stating –inter alia– the following: (i) that the
player did accept the offer; (ii) that the conversations maintained between the parties and
the actions undertaken by Schalke implying the hiring of the player were so conclusive, that
the player rejected a very lucrative offer of Hannover; (iii) that despite the proposal(s) being
signed by Mr Arnd Hovemann, all negotiations were conducted with the CEO of Schalke,
who is of course part of the Supervisory Board; (iv) that the player only signed subsequent
contracts with third clubs because Schalke had already breached their contractual
relationship when Schalke failed to respect the terms of the proposal(s).
II.
PROCEEDINGS BEFORE FIFA
24.
On 23 June 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
25.
26.
The claim of the Claimant
In his claim, the Claimant is requesting compensation for breach of contract and, subsidiary,
damages, in the total amount of EUR 5,440,000, broken down by the Claimant as follows:
EUR 5,440,000 corresponding to the difference between the whole value of
Schalke´s proposal A, i.e. EUR 6,400,000 (36 monthly salaries of EUR 150,000 plus
the 4 lump sums of EUR 250,000 each, which equals EUR 6,400,000) minus the
remuneration actually obtained by the player from Hamburg during the overlapping
period, i.e. EUR 960,000 (EUR 720,000 during the season 2018/2019 and EUR
240,000 during the season 2019/2020) [6,400,000 – 960,000 = 5,440,000]; plus
5% interests p.a. as from the date of notification of the DRC decision until the date
of effective payment.
Subsidiary, EUR 5,440,000 as damages, in accordance with the general principle of
law, culpa in contrahendo (cf. explanation displayed here below).
In his claim, the Claimant held that his claim is fully admissible, insofar the date that shall
serve as basis to determine whether the claim is to be considered time-barred as per art.
25.5 of the FIFA RSTP is 1 July 2018, i.e. the date on which the club committed itself to sign
the player.
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27.
Moreover, the Claimant argued that the proposals sent by Schalke to the player on 23
August 2017 contained all the elements of a valid and binding employment contract for
the parties.
28.
Moreover, the Claimant wished to stress that the interest of the Respondent in signing the
player was so high, that the CEO of Schalke already stated the possibility that the
contractual relationship between the parties would start on 1 July 2018, in the event that
Schalke and Mainz did not reach a definitive agreement over the transfer of the player, and
this was ratified by the CEO of Schalke himself in subsequent messages, making clear the
Respondent´s desire to sign the player, either in the summer transfer window of the season
2017/2018, or in the month of January 2018 or July 2018, which explains why the
Respondent sent 2 different proposals to the player.
29.
The Claimant further held that Schalke even accepted to pay to the player, for the purpose
of mitigating the economic losses arising from the non-acceptance of offers received from
third clubs, 4 lump sums of EUR 250,000 each, as per Schalke´s proposal A.
30.
As to the events that occurred, the Claimant held that the Respondent club failed to reach
an agreement for the permanent transfer of the player to Schalke during the summer
transfer window of the season 2017/2018 and that, therefore, the parties assumed that the
player would be transferred to Schalke during the winter transfer window –if a transfer
agreement was reached in January 2018– or –at the latest– on 1 July 2018, when the player
would be a free agent.
31.
In this context, the Claimant held that, since Schalke continued to assure that it was
interested in the player´s services, in view of the different proposals made by Schalke and
the Whatsapp messages exchanged, the Claimant rejected the offer received from
Hannover, in the conviction that the player would be signed by Schalke.
32.
In addition, the Claimant argued that, in this context, since he was waiting for the said
transfer to finally occur, he had no choice but to remain with Mainz at least until the
opening of the winter transfer window of the season 2017/2018.
33.
The Claimant further held that, given the special situation he was facing, i.e. Mainz being
willing to transfer him to a third club and Schalke preferring to wait until July 2018, he
accepted to be transferred to UD Las Palmas, for a period of 6 months, until 30 June 2018,
expecting to be transferred to Schalke on 1 July 2018.
34.
The Claimant argued that –later on, when Schalke informed the player that it would not
sign the player–, for the purpose of mitigating the very serious sporting and economic
damage that Schalke had caused to the player, the latter had no choice but to accept the
best contract offer he received in July 2018, i.e. the offer made by HSV.
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35.
As to the extension of the contract concluded with HSV, the player explained that he
suffered a knee injury in August 2018, which prevented him from playing during almost
the entire 2018/2019 season, reason why the player renewed his employment contract with
HSV for one more sporting season, i.e. the 2019/2020 season, being forced to accept a
reduction of his monthly salary from EUR 60,000 gross to EUR 20,000 gross.
36.
The Claimant wished to stress that the Respondent illegitimately took advantage of the
player's willingness to accept the proposal(s) made by Schalke, which led the player to reject
Hannover´s proposal, which –in words of the Claimant– would have changed the player's
professional career; and then Schalke breached the contractual commitment construed by
virtue of the proposal(s) dated 23 August 2017, which were expressly accepted by the player
in several occasions.
37.
Subsidiary to the above, the Claimant argued that, should the DRC consider that the parties
did not enter into an employment relationship stricto sensu, the Respondent shall still be
considered liable in application of the general principle of law, culpa in contrahendo, in
accordance with which either party to a negotiation will be obliged to pay the damages
caused to the other party, if it is proven that the damages caused are the result of a
voluntary and deliberate breach of the party's obligation to act in good faith during the
negotiations, in violation of contractual good faith.
38.
In this context, the Claimant held that, since the player acted at all times in good faith, and
in view of the fact that the employment contract was not executed as a consequence of
the behaviour of the Respondent, the latter shall be obliged to pay to the player a
compensation for the damages suffered and the losses incurred. In this regard, the Claimant
requested, as damages, the difference between the remuneration that the player would
have received from Schalke and the remuneration received by the player from HSV during
the overlapping period, i.e. EUR 5,440,000.
b.
39.
Position of the Respondent
In its reply to the claim, as to the competence, the Respondent argued that –if ever
concluded, quad non– all contracts concluded between the Respondent and its players
contain competence clauses in favour of the Deutsche Fußball-Liga GmbH (hereinafter: DFL)
and, subsidiary, to the German Labour Courts. What is more, explained the Respondent,
clauses granting competence to either DFL or German Labour Courts are normally included
in all employment contracts concluded between German clubs and their players. As
evidence thereof, the Respondent referred to Hannover´s proposal, which section I.2 and
I.3 state the following: “I.2 In the event that the parties are unable to resolve their disputes
on their own and by mutual agreement, either party may apply to the DFL for clarification
by an arbitration board. The other party shall participate in such arbitration proceedings. In
this conciliation procedure, a solution to the dispute that is swift, constructive, confidential
and favourable in terms of procedural costs shall be brought about for both parties”; “I.3
All disputes between the parties in connection with the Player Contract shall be subject to
the exclusive jurisdiction of the German labour courts”. In adition, the Respondent provided
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REF FPSD-42
a draft of a standard employment agreement allegedly regularly concluded between
Schalke and its players, where the same clauses are included. In this respect, the Respondent
stressed that all disputes in connection with Schalke and its players must be decided by
German Labour Courts exclusively.
40.
What is more, the Respondent challenged the competence of FIFA to decide upon the
present case on the grounds that more than 2 years have elapsed since the occurrence of
the event giving rise to the dispute, ex. art. 25.5 RSTP. In this sense, the Respondent
disputed the allegation of the Claimant that the date of the breach of contract by Schalke
is to be dated 1 July 2018. In this regard, the Respondent argued that the Claimant himself
refers quite predominantly to the documents dated 23 August 2017, on the basis of which
the time limit of art. 25.5 RSTP has expired at the time of filing the claim. In addition,
continued the Respondent, left aside the fact that proposal A and proposal B were to come
into force at different times (once again, if the Respondent's Supervisory Board had
approved them) it is certainly not possible to argue that if proposal B (contract eventually
running as from 1 January 2018) does not come into effect, then automatically proposal A
(contract eventually running as from 1 July 2018) comes into effect.
41.
In addition to the above, the Respondent argued that, since both proposals were sent to
the Claimant on 23 august 2017, it created the expectation on the player that one of the
proposals was to be concluded in a timely manner, which leads to the logical assumption
that the dies a quo of the period of art. 25.5 RSTP started on that date. Therefore, the
Respondent held that, according to art. 25.5 RSTP, no claim could have been lodged by the
player as from 24 August 2019.
42.
Subsidiary to the above, the Respondent held that, even if the DRC was to see this
differently, the dies a quo for the prescription of the present matter ex. art. 25.5 RSTP was
on 5 June 2018, insofar it was on that date when Schalke informed the player via email
that the parties would not conclude any employment contract (cf. point 17 above).
43.
Consequently, continued the Respondent, it was at this point in time at the latest, that the
player was fully aware that the Respondent would not fulfil the alleged contractual promise
of 23 August 2017. Thus, according to the Respondent, the date of 5 June 2020 was the
last day on which the player could have lodged a claim before FIFA, but he failed to do so
and only filled a claim before FIFA 23 June 2020.
44.
In his claim, as to the substance, the Respondent firstly disputed that the player and
Hannover had reached a final agreement regarding the signing of the player, which was
–later on– rejected by the player in the understanding that he would be signed by Schalke.
In this respect, the Respondent held that the evidence submitted by the Claimant himself
proves the opposite, namely that between the player and Hannover no final agreement had
yet been reached. In this regard, the Respondent referred to the WhatsApp message sent
by the player´s representative to the CEO of Schalke on 22 August 2017, where the player´s
representative stated the following: “[a]nd with H96 is still missing an agreement regarding
fees. There we are at all not clear" (cf. point 8 above).
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45.
As to the proposals sent by the Respondent to the Claimant on 23 August 2017, the former
acknowledged having sent those to the player, but held that the said proposals mere offers,
which were –as acknowledged by the player himself– one-sided / unilaterally elaborated
proposals, and thus, the said proposals were not the result of a consensus already reached.
46.
In addition, the Respondent argued that the said proposals were signed by Mr. Arnd
Hovemann, who was not authorized to issue legally binding employment offers on behalf
of the Respondent, insofar he is not a member of the Board of Directors of Schalke. In this
respect, the Respondent referred to art. 8 para. 4 of its articles of association, which
provides that “In external relations, the [club] shall always be represented by two members
of the Board of directors”. In addition to the aforementioned, the Respondent stressed that
all contracts concluded with players can only be concluded in writing and must be signed
by at least two members of the Board of Directors. However, -continued the Respondentthe referred proposals were not signed by any member of the Board of Directors and are,
therefore, not binding.
47.
What is more –pointed out the Respondent– as contained in the proposals, the approval of
the Supervisory Board was also necessary for the proposal(s) to be binding, not only in
accordance with what is stated in the proposal(s), but also in accordance with art. 7 para.
5 of the articles of association of the club, which provides that offers which involve a
monetary transaction higher than EUR 500,000 must be approved by the Supervisory Board.
48.
In this regard, the Respondent argued that, according to the financial magnitudes of the
proposals, it was imperative to explicitly include the reservation of approval by the
Supervisory Board. Thus, concluded the Respondent, the proposals were not yet binding
contracts, but only offers, and their validity and binding nature were subject to the condition
precedent that they were approved by the Supervisory Board at a later stage, which did not
occur.
49.
As to the validity of the condition precedent included in the proposals, i.e. the approval of
the Supervisory Board, the Respondent referred to art. 18.4 FIFA RSTP, which provides the
condition precedents that may not be permissibly agreed upon in a contract / offer, i.e.
medical examination or work permit, which are irrelevant in the present matter. In addition,
the Respondent held that the said approval is not a condition precedent prohibited by the
jurisprudence of the DRC, such as the registration of the player for the employment
relationship to be considered effective, which is not a valid condition precedent.
50.
The Respondent referred to the Whatsapp message sent by the player´s representative on
31 August 2017 (cf. point 14 above) and held that, had the player´s agent assumed that
the parties had concluded a binding agreement when the club sent the proposals to the
player, it would make no sense that he stated that the parties needed to sign everything for
the following year.
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51.
In this point, the Respondent referred to the communication made by Schalke to the
Claimant on 5 June 2018, whereby the former informed the latter that the approval of the
Supervisory Board had not been granted and that, therefore, Schalke would not sign the
player.
52.
In addition, the Respondent insisted in the fact that the Claimant was very much aware of
the fact that no contract had been concluded between the parties, insofar –in the summer
of 2018–, the player did not insist that he was already in a legally binding employment
relationship with the Respondent, but merely asked to examine any new possibilities that
may have arisen. The above being said, the Respondent emphasized that it is simply wrong
to claim that the player, convinced that the offer of an employment contract was binding
and final, first rejected an offer of millions from Hannover 96 and then limited a contract
with Las Palmas to only 6 months.
53.
As to the non-approval of the signing of the player by the Supervisory Board, the
Respondent argued that, neither in the preliminary round nor in the second half of the
season 2017/2018 did the player show satisfactory performances. In this regard, the
Respondent affirmed that the player only had 2 short appearances in the preliminary round
of the season 2017/2018 with Mainz and, in the second half of the season at Las Palmas,
he only played 21 championship matches, totalizing 600 minutes.
54.
Therefore, explained the Respondent, his hiring neither occurred in the winter transfer
window 2017/2018 nor in the summer transfer window 2018, since neither the Supervisory
Board, nor the Board of Directors nor the coach of the first team gave their consent to such
a commitment.
55.
Furthermore, the Respondent pointed out that binding agreements could only be concluded
after the medical examination had been carried out, insofar the conclusion of sporting
contracts with players cannot be conditional on the successful result of a medical
examination as per art. 18.4 of the RSTP, which is why contracts can only be concluded
once the corresponding medical examination has taken place; medical examination that the
player never underwent.
56.
In connection with the contract concluded between the player and HSV, the Respondent
contested that the initial term of the contract was only for one season and maintained that,
although the contract was not provided by the Claimant, Annexe 1 to the said contract,
which was provided by the player, suggests that the term of the said employment contract
must have been agreed at least until 30 June 30 2022.
57.
On the other hand, as to the argument brought forward by the Claimant regarding his
subsidiary entitlement to damages in application of the general principle of law, clulpa in
contrahendo, the Respondent fully rejected the argumentation of the player and held that
if an offer is subject to a valid condition precedent, as is the case in the present situation,
and this condition does not occur, and the Claimant -allegedly- expecting that the event
triggering the condition precednet will later occur, does not accept other contract offers
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(once again, the Respondent disputed that Hannover has submitted an offer ready to be
signed and that the corresponding transfer agreement with Mainz existed), this cannot be
attributed to the Respondent.
58.
In this respect, the Respondent argued that the player could have easily stopped the
negotiations with the Respondent on the grounds that a mere conditional offer would not
provide him the necessary securities and he could have, therefore, preferred to accept the
alleged final offer from Hannover. However, stressed the Respondent, he did not do so, at
his own risk.
59.
The Respondent further rejected the calculations made by the Claimant as compensation
for breach of contract and argued that at the beginning of the "Corona crisis," the
Respondent agreed with its players on a salary reduction of 15% from March 2020 (initially
limited until June 2020) and an additional 15% reduction until matches can be resumed
with spectators.
60.
Consequently, argued the Respondent –if ever concluded– the contract entered into
between the parties would have been amended for the 2019/2020 season, contemplating
a reduction of EUR 90,000 (4 months at 15% of EUR 150,000.00) and for the 2020/2021
season -at least- EUR 135,000.00 (6 months at 15% of EUR 150,000.00) with the
consequence that the amount stated in the statement of claim under the epigraph
"Compensation Schalke 04" would need to be reduced from EUR 6.400,000 to EUR
4,917,465.
61.
In addition to the above, the Respondent held that, regarding the reductions to be applied
to the players´ salaries until 31 December 2020 the Respondent held that it was –at the
date on which the Respondent submitted its reply to the claim– under negotiations with
the players. In this respect, the Respondent held that the calculation of compensation would
be, consequently, further reduced.
62.
Furthermore, the Respondent held that the player failed to provide information as to
whether he received any bonus payments (point bonuses, signing fees, etc.) as per his
contract with HSV, which he most likely did. Consequently, the Respondent held that it can
be assumed that the balance in favour of the player would be further reduced.
63.
In this point, the Respondent held that, on top of the above, it is usual practice of the DRC
to reduce the compensation eventually awarded to a player by one third, in cases where
the contract at stake was never executed.
64.
The Respondent finally stressed that, although the wording of the proposals sent to the
player on 23 August 2017 is crystal clear in the sense that the said offers were subject to
the approval of the Supervisory Board, the actions of the player must also be taken into
account.
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65.
In this regard, the Respondent held that, even if the Claimant did not understand that the
proposals were subject to the referred approval –albeit clearly included in the said
proposals–, it is clear from the subsequent confirmations of the player´s agent, that the
Claimant did not make any attempt in the summer of 2018 to enforce the contractual
relationship, as allegedly promised to him. Instead, argued the Respondent, the Claimant
rather waited 2 years to lodge a claim.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
66.
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 June 2020 and submitted
for decision on 29 April 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
67.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Spanish player and a German club.
68.
However, the Chamber referred to the statute of limitations provided in art. 25.5 of the
Regulations, which states that “The relevant FIFA decision-making body shall not hear any
case subject to these regulations if more than two years have elapsed since the event giving
rise to the dispute. Application of this time limit shall be examined ex officio in each
individual case”. In this respect, the Chamber decided to examine, ex officio, whether the
DRC is or not competent to adjudicate upon the present dispute, considering the limits
imposed by the above-quoted article.
69.
In this respect, the Chamber –after having carefully analysed the documentation on file–
addressed the issue that concerns the date on which the event giving rise to the dispute at
hand occurred. In this context, the DRC determined that, although Schalke´s proposals were
sent to the player on 23 August 2017, the said date cannot be considered as a benchmark
in order to determine whether the claim is time-barred, since –at that moment in time– no
dispute had yet arisen.
70.
In this context –continued the DRC– the dispute in the sense of conflict of intentions only
arose on 5 June 2018, when the Respondent reliably communicated to the Claimant that
Schalke would not hire the player.
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71.
In other words, wished to emphasize the Chamber, it was precisely at that moment in time,
on 5 June 2018, when the Claimant received the clear message that the employment
relationship would not be entered into.
72.
Thus, concluded the Chamber, the date of 5 June 2018 is the date that shall be taken into
account in order to determine whether the present dispute is time-barred ex. art. 25.5 RSTP.
73.
The above being noted, the DRC determined that, insofar the present claim was lodged by
the player before FIFA on 23 June 2020, more than 2 years elapsed since the date on which
the event giving rise to the dispute occurred, i.e. 5 June 2018, and –therefore– the DRC is
in no position to adjudicate upon the present dispute, as it is time-barred.
74.
In view of the above, the DRC concluded its deliberations by determining that the claim of
the player is inadmissible ex. art. 25.5 of the Regulations.
b.
Costs
75.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
76.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Claimant, Jairo Samperio, is inadmissible.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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) 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 20 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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