Labour Disputes
Texto da decisão
REF FPSD-1913
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Karolis
Chvedukas
BY:
DE WEGER, Frans (The Netherlands), Chairperson
MOHAMED AL-NOAIMI, Dana (Qatar), member
VAN GAALEN, Johan (South Africa), member
CLAIMANT / COUNTER-RESPONDENT:
U.S. Anconitana A.S.D, Italy
Represented by Mario de Luca
RESPONDENT 1 / COUNTER-CLAIMANT:
Karolis Chvedukas, Lithuania
RESPONDENT 2:
KPV, Finland
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REF FPSD-1913
I.
Facts of the case
1.
According to US Anconitana, on an unknown date, the said Italian club US Anconitana
(hereinafter: Anconitana) and the Latvian player Karolis Chvedukas (hereinafter: the player)
concluded an employment contract (hereinafter: the Contract) valid as from “when the
Regional Championship resumes (…) until the end of the Championship, which can
presumably go beyond the date of 30 June 2021”.
2.
According to art. 3 of the Contract, the player was entitled to a salary of EUR 1,600 per
month during the 2020/2021 season. In addition, Anconitana undertook to cover the player’s
accommodation up to an amount of EUR 400 per month.
3.
On an uncertain date, the player concluded an employment contract with the Finnish club
KPV (hereinafter: KPV), valid as from 8 March 2021 until 31 October 2021 (hereinafter: the
KPV Contract).
4.
According to the KPV Contract, the player was entitled to a monthly salary of EUR 3,300
gross.
II. Proceedings before FIFA
5.
On 1 March 2021, Anconitana 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
6.
According to Anconitana following some long negotiations, it concluded the Contract with
the player. Nevertheless, Anconitana submits that it learned through social media that the
player had concluded another contract with KPV. Anconitana states that it immediately
contacted the player as well as KPV’s team manager, reminding the latter two parties that
the player was bound by a contract with Anconitana.
7.
According to Anconitana, the player informed them that he did not wish to honour their
contract.
8.
In this regard, Anconitana emphasised that the player’s breach of contract caused a financial
damage as well as damage to its reputation, since the player had already been presented as
part of the squad on their various online platforms. Anconitana further submitted that the
press began discrediting the work of the club’s management as a result.
9.
Anconitana argued that since the player manifested that he would not join the club,
Anconitana suspended all formalities with respect to his registration.
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10. Anconitana stated that the Contract contains all essentiali negotii such as the denomination
of the parties, the duration of the employment relationship and the parties’ respective
obligations. Furthermore, Anconitana underlined that the starting date of the employment
relationship depended on the official announcement of the starting date of the league.
11. Furthermore, Anconitana referred to art. 18 par. 5 RSTP, according to which, should a player
conclude several contracts valid over the same period, he shall be liable for sanctions. Equally,
it underlined that KPV, as a third party, could not interfere in the employment relationship
between Anconitana and the player. In this regard, Anconitana underlined that it had
attempted to contact KPV and the player multiple times in order to settle the matter amicably,
to no avail.
12. Anconitana filed the following requests for relief (free translation from original in French):
i)
Payment by the Player Karolis Chvedukas and jointly and severally by KPV the sum of
EUR 8,000, equal to the 4 months paid to player as a reference the sports performance
contract concluded with the Anconitana until the end of the 2020/21 season to which
a sum must be added as compensation for damage to the image and economic
compensation for the non-arrival of player, for the discredit caused and for the abusive
insertion by the third company KPV the sum of EUR 20,000 for a total of € 28,000 in
accordance with article 17 paragraph 1 RSTP;
ii)
The application of the sporting sanctions against the player (…) and against KPV;
b. Position of the First Respondent / Counter-claimant
13. The player submitted his position, rejecting the claim and lodging a counter-claim against
Anconitana.
14. The player explained that he was initially under contract with the Maltese club Oratory Youths
FC. During such employment relationship, he had a verbal agreement with the president of
the said club that he could leave the club at any time if he would get a better offer.
15. During his time in Malta, he was contacted by an intermediary, Mr Mario De Luca, who
offered to look for a club for him in Italy. In this context, the player signed a non-exclusive
mandate with Mr De Luca.
16. The player acknowledged that he had received an offer from Anconitana via Mr De Luca, but
he stated that he had not accepted the offer. The player categorically denied having signed
the contract or any other documents with Anconitana. In particular, the player asserted that
the signature of the Contract and one document of Anconitana’s claim under the title
“Exclusive mandate” is not his. The player also underlined that he never went to Italy. He
emphasised that Anconitana cannot produce any e-mail whereby he would have sent back
the Contract duly signed.
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17. The player further explained that, around the same time he received the offer from
Anconitana, he received another offer from KPV, which was a much better offer from a
sporting and financial point of view. Consequently, he decided to accept KPV’s offer and
concluded a contract with the said Finnish club.
18. The player, in conclusion, condemns the actions of Anconitana, as well as Mr De Luca’s, and
claims he suffered a moral damage as well as damage to his reputation.
19. The player filed the following requests for relief:
“Due all of that I would like to ask compensation from Club US Anconitana ASD for the whole
situation which happened recently in amount of EUR 20,000 Euro and also to put a transfer
ban for upcoming 2 years (4 transfer windows) for Club US Anconitana ASD in which the
Club couldn’t register any new player”.
c. Position of the Second Respondent
20. KPV replied to the claim and emphasised that the player’s transfer was carried out in
accordance with all applicable FIFA regulations. Indeed, the transfer from his previous Maltese
club was duly inserted in TMS.
21. KPV submitted that according to the relevant TMS instruction, it is indicated that the player
was representing himself, and both the player and the Maltese club signed the declaration of
no TPO.
22. Furthermore, KPV indicated that the player contacted them in early February 2021 and he did
a short trial with them on 12 February 2021.
23. After KPV announced the player’s signing, Mr De Luca contacted them, claiming that the
player was bound by a contract with Anconitana. KPV then confronted the player with such
information and the latter claimed that the mandate included by Mr De Luca was incorrect
and the player provided them with messages in which he claimed that he had never
concluded any contract with Anconitana.
24. In addition, KPV claimed that Mr De Luca manipulated his mandate from 2020 with the player
and created a new one for 2021. Furthermore, KPV requested Mr De Luca to send them
evidence of any email correspondence sent by the player where he would have returned a
signed copy of the employment contract, but they never received anything in this regard.
25. KPV concludes that it acted correctly, requests for Mr De Luca to be banned for life and to be
condemned for filing an unsubstantiated claim in the amount of EUR 50,000 “for wasting
the club’s time and making false claims against them, which impeded the club’s operations”.
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d. Anconitana’s answer to the Counterclaim
26. In reaction to the counter-claim lodged by the player, Anconitana insisted in its previous
position by underlining that KPV signed a contract after the player had signed a contract with
Anconitana. It emphasised that as soon as Anconitana heard about the player had concluded
a contract with KPV, it contacted the latter club, but KPV still decided to proceed with the
registration of the player.
27. Anconitana, through its representative, Mr De Luca, explained that the player signed their
contract while he was still in Malta and in the presence of Mr De Luca.
28. Anconitana underlined that the player’s e-mails whereby he denies having signed a contract
with Anconitana are all dated later than 8 February 2021, which is when he signed with KPV.
However, Anconitana states that the player omitted to include the messages which Mr De
Luca sent him prior to that date, warning him that he should not sign with another club since
he is bound with Anconitana. It concludes that the player’s and KPV’s documentation sent in
support of their respective position are without any legal effect.
29. In conclusion, Anconitana maintained its claim in full.
e. FIFA’s request for original documents
30. Considering the allegations presented by the parties, FIFA Administration requested
Anconitana to provide the original specimen of the Contract allegedly signed by the player.
31. In this regard, the Claimant’s counsel Mr De Luca stated that there is no original since the
Contract was signed remotely, meaning that the player signed it first then a copy was sent to
the club.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. 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 1 March 2021 and submitted for decision
on 28 October 2021. Taking into account the wording of art. 34 of the October 2021 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
33. 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) and f)
of the Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
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Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Latvian player, an
Italian club and a Finnish club.
34. 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 (August 2021 edition), and
considering that the present claim was lodged on 1 March 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
35. 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
36. 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
37. 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 the existence of the Contract.
38. In this context, the Chamber acknowledged that it its task was to ascertain as to whether the
player and Anconitana had concluded an employment contract which had binding effect on
both parties.
39. In particular, the Chamber observed that the player alleges that his signature had been
manipulated. The DRC further noted that the player recognised having signed a mandate
with Mr De Luca in the year 2020 and that he had been offered a contract by Anconitana,
however, the player vehemently denied having signed an employment contract with
Anconitana.
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40. Furthermore, the Chamber observed the explanations provided by Anconitana regarding the
way the Contract was allegedly signed and the lack of information on TMS.
41. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence
which dictates that, in order for an employment contract to be considered valid and binding,
apart from the signature of both the employer and the employee, 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.
42. The Chamber also recalled the content of art. 13 par. 5 of the Procedural Rules (October 2021
edition), according to which a party claiming a right on the basis of an alleged fact shall carry
the respective burden of proof. With this in mind, the Chamber deemed that it was up to
Anconitana to prove that the employment relationship, on the basis of which it claimed
compensation for breach of contract, from the player, indeed existed.
43. In this context, the Chamber turned its attention to the documentation brought forward by
the parties and acknowledged that Anconitana solely relied on WhatsApp messages from the
player were he expressed his will to sign with Anconitana. Moreover, the members of the
Chamber gave particular weight to the fact that Anconitana has failed to produce the original
specimen of the Contract and/or any ancillary evidence which could assist in corroborating
the alleged signature of the Contract, such as email correspondence, text messages or any
other sort of supporting evidence.
44. In light of the above and taking into consideration the player’s argumentation regarding the
inconsistencies of the alleged employment contract, the Chamber understood that
Anconitana did not meet its burden of proof in order to demonstrate that the document was
indeed concluded with between the parties. Therefore, the Chamber decided that no valid
and biding employment contract had been concluded between the player and Anconitana,
hence the latter’s claim had no legal basis.
45. Having stated the above, the members of the Chamber decided that the claim of Anconitana
had to be rejected.
46. Turning to the counterclaim filed by the player requesting moral damages, the DRC decided
that it had to be rejected due to lack of contractual basis.
d. Costs
47. 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.
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48. 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.
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IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant/Counter-Respondent, U.S. Anconitana A.S.D, is rejected.
2. The counterclaim of First Respondent / Counter-Claimant, Karolis Chvedukas, is rejected.
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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