Labour Disputes
Texto da decisão
REF. FPSD-11968
Decision of the
Dispute Resolution Chamber
passed on 25 January 2024
regarding an employment-related dispute concerning
the player Uros Cosic
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Mario Flores Chemor (Mexico), member
Angela Collins (Australia), member
CLAIMANT:
Uros Cosic, Serbia
Represented by Mr Rafael Meirelles
RESPONDENT:
Qingdao Hainiu FC, China PR
Represented by Grandall Law Firm
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REF. FPSD-11968
I. Facts of the case
1.
On 14 March 2022, the Chinese club Qingdao Hainiu FC (hereinafter: club or Respondent)
allegedly sent an offer of employment (hereinafter: the Offer) to the Serbian player Uros
Cosic (hereinafter: Claimant or player).
2.
According to the Offer, the Claimant and the Respondent would enter into an employment
contract valid as from 1 January 2022 until 31 December 2022.
3.
Furthermore, the Offer stipulated that the Claimant would be entitled to a total
remuneration over the course of the purported contract of USD 250,000 net.
4.
Lastly, the Offer stipulated as follows:
“This offer shall valid only if player can join our club as free player. This contract is valid when
the player passes all the necessary Covid virus test, get visa successfully and player once arrived
China.”
5.
On the same day as receiving the Offer, the Claimant requested to terminate his contract
with his former club, PAEEK Keryneias.
6.
On 15 March 2022, the Respondent agreed to said request and formally replied to the
Claimant that the contract was therewith terminated, and that the Claimant had to pay a
compensation of three monthly salaries to the former club as compensation (in accordance
with their contract).
7.
On 16 March 2022, the Claimant received a draft of an employment contract valid as from
1 January 2022 until 31 December 2022.
8.
In accordance with the respective draft contract, the Claimant would have been entitled to
a total annual salary of USD 250,000 net.
9.
On the same day, the Claimant allegedly returned the signed Offer and the draft contract
to the Respondent.
10. At an unspecified date, the Claimant provided the Respondent with a “commitment letter
of the working experience” corroborating that he had previously been employed in a
professional football club – i.e. PAEEK Keryneias.
11. On 10 August 2023 (sic) the Claimant put the Respondent in default and requested
USD 250,000 net as compensation for failing to comply with the Offer and, consequently,
the respective employment contract. The Claimant requested payment within 15 days.
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REF. FPSD-11968
12. On 21 July 2023, the Claimant signed an employment contract with the Serbian club IMT
Beograd (hereinafter: the New Club) valid as from 21 July 2022 until 30 June 2023
(hereinafter: the New Contract).
13. In accordance with the New Contract, the Claimant was entitled to a monthly salary of
RSD 35,000 (approx. USD 325).
14. On 24 August 2023, the Respondent replied to said letter, outlining as follows:
-
-
The Respondent never countersigned the Offer, thus not giving effect to it;
The Claimant had not sent any correspondence to the Respondent enquiring
about the contractual situation for more than a year;
The Claimant had signed a new contract with IMT Beograd in July 2022, pursuant
to public sources;
The Claimant never travelled to China to attend the contract himself;
In line with the above, the Respondent denied the existence of any contract.
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REF. FPSD-11968
II. Proceedings before FIFA
15. On 27 September 2023, 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
16. In his claim, the Claimant argued that the Respondent breached the employment
relationship that had been given rise to by making an Offer, as well as sending an
employment contract for the former to sign, and subsequently never gave effect to such
contract.
17. The Claimant emphasised that he had to terminate his previous employment contract with
PAEEK Keryneias for the sake of joining the Respondent, making the fact that the latter
failed to follow up on the Offer even more egregious.
18. The Claimant specified that, as he “did not know” that he could submit a claim before FIFA,
but only discovered this after speaking to a teammate, he only submitted his claim after a
year. Moreover, the Claimant argued that he gave the Respondent a grace period” until
submitting the claim to comply with the terms of the Offer / corresponding contract, to no
avail.
19. In conclusion, the Claimant requested USD 244,423.07 as compensation, corresponding to
the residual value of the employment contract allegedly concluded, minus the mitigated
value of the New Contract signed with IMT Beograd.
b. Position of the Respondent
20. In its reply, the Respondent argued that the Offer is not authentic, as it was never sent by
the Respondent to begin with and that this is clearly visible from the formatting of the Offer.
Two offers sent by the Respondent around the same time to other players was adduced in
this respect.
21. Even if the Chamber were to assume that the Offer was authentic, the Respondent argued
that it was never ratified, as the Claimant failed not only to provide a proof of remittance
of the signed Offer to the Respondent, but equally that the Claimant had simply resumed
his activity (based on the evidence available in the public domain) with PAAEK Keryneias
until signing the New Contract.
22. Therefore, the Respondent argued that the Offer, in any event, should not be held to have
given rise to legal relations between the Claimant and the Respondent.
23. In conclusion, the Respondent requested the rejection of the claim.
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REF. FPSD-11968
c. Comments of the Claimant
24. The Claimant was invited by the FIFA administration to provide additional comments in
reply to the Respondent’s submission.
25. The Claimant adduced as follows:
-
The Claimant insisted that the Respondent had made the Offer and that it was stamped
authentically. The fact that he had not initially mentioned the employee of the
Respondent who had communicated the Offer was not relevant for the sake of
establishing the validity thereof.
-
The Claimant equally reiterated that he “attempted to implement the club’s proposal”
but that the Respondent ignored his services.
-
The Claimant emphasised that the Respondent was “playing the market” and tentatively
sent many offers to players, but only hired a small number of them. The same fate had
reached the Claimant in this case.
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REF. FPSD-11968
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, he
took note that the present matter was presented to FIFA on 27 September 2023 and
submitted for decision on 25 January 2024. Taking into account the wording of art. 34 of
the March 2023 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.
27. Subsequently, 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 May 2023 edition), 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 Serbian player and a Chinese club.
28. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 27 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
29. 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
30. His competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, he 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 he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment
of the matter at hand.
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REF. FPSD-11968
i. Main legal discussion and considerations
31. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute revolved around the
question whether or not any contract had, in fact, been given effect to, and subsequently,
whether or not there had been a breach thereof by the Respondent – to the extent of giving
rise to compensation in the Claimant’s favour.
32. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence and submission(s) on file, whether or not the Offer had been formally accepted,
whether as a result thereof a valid and binding employment contract had been concluded,
and whether such contract was breached in any way, to the extent of entitling the Claimant
to compensation.
33. Prior to entering the analysis of the matter, the Chamber recalled the parties’ submissions,
starting with the Claimant, pursuant to whom the Respondent significantly breached the
Contract by failing to give effect to it. The Claimant particularly argued that the
Respondent’s course of actions caused him prejudice as he had to depart from his previous
contract. The Claimant emphasised that an Offer was validly made by the Respondent, and
that following the signature of the Offer, a formal employment contract had been
concluded.
34. Equally, the Chamber noted that the Respondent argued that the Offer and eventual
purported contract were never given effect to, as they not only lacked the requisite
formalities, but beyond this the Claimant failed to travel to China to perform the
obligations. The Respondent, therefore, argued that the contract was both de iure, and de
facto non-existent.
35. Lastly, the Chamber wished to once again stress the importance of the principle of burden
of proof, laid down by art. 13 par. 5 of the Procedural Rules, which stipulates that a party
which intends to assert a certain fact also bears the burden of proving its veracity.
36. Having stated the above, the Chamber went on to consider – as a preliminary matter – the
validity of the Offer submitted by the Respondent.
37. In this respect the Chamber noted that the Claimant provided a copy of the Offer stamped
by the Respondent and subsequently signed by himself. The Claimant equally provided a
copy of the “Commitment Letter of Compliance” and evidence of having terminated his
previous employment contract on the same day as the purported signature of the Offer.
38. Whilst the Respondent argued that the Claimant provided no proof of remittance of the
original Offer and contests the validity of the Offer by arguing that no specification as to
who from the club had sent the Offer, the Chamber observed that the Respondent failed
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REF. FPSD-11968
to make a convincing argument to overturn the clear circumstances pointing to the Offer
having indeed been sent, and signed as returned by the Claimant.
39. In line with the above, the Chamber was satisfied that the Claimant met the burden of
proving that the Offer had been authentic and validly communicated.
40. With this in mind, the Chamber moved on to consider the question of the Offer being
formally ratified.
41. The Chamber recalled that the Claimant asserted having received the Offer from the
Respondent already stamped with the latter’s official seal, and that he subsequently
returned the Offer signed by himself.
42. At this point, the Chamber deemed it important to recall the principles of essentialia negotii,
in accordance with which a contractual document may be construed as a valid and binding
employment contract if it contains certain fundamental elements – salary, duration,
specifying that the player is employed as a professional football player and exhibiting an
intention to be legally bound.
43. In the present case, the Chamber considered that the Offer, on its own, amounted to a
valid and binding employment contract as it contained all the relevant essentialia negotii.
More specifically, the Offer outlines the duration, a salary, it was clear that the Claimant is
employed as a professional football player and it is signed / stamped by both parties.
44. Moreover, the Claimant confirmed that he had received a draft employment contract on
the basis of such Offer, signed such draft contract, and returned it to the Respondent in
order to formally give effect thereto.
45. The Chamber also did not fail to notice that the Respondent had not signed the
aforementioned draft, and that the Claimant acknowledged in his submission that the
purported contract indeed corresponds to a “draft”. For completeness’ sake, the Chamber
pointed out that this draft contract was not, per se, sufficient to give rise to new
employment relations, superseding those which were already formally established by the
Offer.
46. By way of consequence, as an interim conclusion, the Chamber determined that a formal
and valid employment contract had been validly given effect to, and that such contract
(hereinafter: the Contract) bound the parties as from 14 March 2023.
47. Having established the above, the Chamber moved on to consider the crucial question of
the Contract’s termination.
48. In this respect, there were several aspects in the timeline of the matter at hand that the
Chamber considered noteworthy. On one hand, the Chamber wished to point out the lack
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REF. FPSD-11968
of communication between the Claimant and the Respondent following the purported
termination and the first notice of the Claimant – more than a year later.
49. The Chamber equally noted that the Claimant failed to travel to China, or showed any
urgency whatsoever as to any (potential) issues concerning entry visa, documentation,
travel arrangements, et al..
50. The Chamber did take note of the allegation of the Claimant that he purportedly acted in
good faith in allowing the Respondent to “give effect” to the Contract, yet considered it of
significance that the Claimant had – in contrast to this statement – returned to his former
club and resumed his previous contractual obligations, which, in practice, prevented him
from moving to the Respondent thereafter – in accordance with art. 18 par. 5 of the
Regulations.
51. All of the above led the Chamber to the conclusion that, despite the existence of a valid
and binding employment contract at one point, the mutual lack of interest to pursuing its
performance from either party resulted in a mutual abandonment of the contractual
relationship. Whilst the Respondent did, from what the evidence on file revealed, show no
interest in pursuing the Contract, the Claimant had not exhibited any commitment or
urgency to this extent either.
52. Given that the parties had mutually abandoned the Contract, therefore, the Chamber was
able to conclude that no liability had arisen against either party.
53. By way of consequence, the Chamber decided that the player’s claim had to be rejected.
d. Costs
54. 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.
55. 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.
56. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-11968
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Uros Cosic, 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-11968
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 Governing the Football
Tribunal).
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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