Labour Disputes
Texto da decisão
REF. FPSD-14774
Decision of the
Dispute Resolution Chamber
passed on 29 August 2024
regarding an employment-related dispute concerning
the player Artur Craciun
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Michele COLUCCI (Italy), Member
Dana MOHAMED AL-NOAIMI (Qatar), Member
CLAIMANT:
Doxa Katokopias, Cyprus
Represented by Duarte Costa
RESPONDENT:
Artur Craciun, Romania & Moldova
pg. 2
REF. FPSD-14774
I. Facts of the case
1.
On 18 June 2023, the Cypriot club, Doxa Katokopias (hereinafter: the Claimant or the Club),
sent the Romanian and Moldovan player, Artur Craciun (hereinafter: the Respondent or the
Player), a document titled “Proposal – Artur Craciun” (hereinafter: the Offer) via WhatsApp.
2.
The Offer was drafted as follows:
“Nicosia, 18 June 2023
To: Mr. Artur Craciun
Dear Sir, With the present invitation DOXA KATOKOPIAS FC expresses its desire to enter
into negotiations with the player Artur Craciun, from Romania (29.06.I998), based upon
the following financial terms and conditions:
Seasons 2023/24 & 2024/25
• Salary 2023/2024 - €55 000 net payable in 10 installments of €5 500 starting from 31st
of August 2023 until 31 May 2024
• Salary 2024/2025 - €65.000 net payable in 10 installments of €6.500 starting from 31st
of August 2024 until 31 May 2025.
• €10 000 net if the team qualifies at the position 1-7
• €400 per month for accommodation
• Use of a Car (Valid Driving License Require)
• Round way Flight Ticket
Please note that the present invitation is by no means an employment contract and that
the positive conclusion of any negotiations between the parties will be considered to have
taken place only if it is in writing. For avoidance of any doubt, the acceptance of the
present invitation does not constitute in any way a legal contract between the parties.
Also, take into consideration that any written contract should include all mandatory
contract clauses as those are extensively described in the regulation adopted by the
Cyprus Football Association regarding the Standard Contract of Employment.
Waiting for your feedback. Yours Sincerely,
Costas Christodoulou
Chairman”
3.
On 19 June 2023, the Player signed and returned the proposal via WhatsApp, expressly
stating:
“I accept the above proposal
Artur Craciun”
pg. 3
REF. FPSD-14774
4.
According to the Club, on 27 June 2023 it sent the Player the contracts via email, which had
already been signed by the chairman and contained the exact conditions agreed upon in
the Offer. According to the Player, he never received the alleged email.
5.
On an unspecified date, the Player and the Club’s director had the following conversation
via WhatsApp (quoted verbatim):
“Club’s Director: I text you because I need to know when are you planning to come in
Cyprus I know you was with the national team and maybe you want some days more for
rest
Player: When is the team getting together and what is the plan? Are we going away for
training camp?
Club’s Director: We will start next Monday 3/7 with physical and medical tests. Then we
are going to train for 3 weeks in nicosia and then in 24/7 we are going at the mountains
for 10 days
Player: Can I let you know by the evening when I could come?
Club’s Director: Ok thank you. I also need to know about your training clothes size ans
what number you want to play with?
Player: XI shorts
L t shirt
I want number 14 if its possible
Club’s Director: Ok”
6.
Also on an unspecified date, the Player and the Club’s Director exchanged the following
messages via WhatsApp (quoted verbatim):
“Player: Hi Andreas How are you? I wanted to ask if I can take 2-3 days off and come
after? I am buying an apartment and I need to be here for the documents i can come
after 6th of July, is that ok?
Club’s Director: Hello Artur Yes No problem we will be in touch. Just to know, the players
that participate in National teams will arrive at 10/7”
7.
On 4 July 2023, the Player informed the Club of his withdrawal from the Offer, arguing that
the Club had not taken any further actions towards the subsequent signing of the contract
and that he considered the Club had lost interest in pursuing the negotiation process.
Moreover, the Player stated that the Offer was null and void, as it did not have any deadline
and was potestative by its nature. Additionally, the Player mentioned that, since the Offer
stated that the acceptance of the invitation did not constitute a legal contract between the
parties, he did not consider himself bound to the Club.
8.
On 6 July 2023, the Player signed a one-year contract with the Polish club Puszcza
Niepolomice, with a total gross remuneration of PLN 560,880. If the club remained at the
Ekstraklasa league, the contract would be automatically extended for one more season,
with a total gross remuneration of PLN 590,300.
pg. 4
REF. FPSD-14774
9.
On 11 July 2023, the Club replied to the Player’s letter, stating that there was a contract
between the parties and that the Player intended to breach it. In this respect, the Club
asserted that the parties had engaged in extensive negotiations, addressing several
aspects of the agreement, and that the Player had obligations under the contract that was
willingly signed by both parties. Therefore, the Club expressed its intention to solve the
matter amicably but stated that if that was not possible, it would seek compensation.
10. On 15 July 2023, the Player sent the Club a new letter, stating that no breach of contract
had ever occurred, as there was no employment contract between the parties. The Player
argued that the parties only signed the Offer, which included a disclaimer ensuring the nonbinding effect of the proposal.
II. Proceedings before FIFA
11. On 29 May 2024, 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
12. According to the Claimant, the parties had a valid and binding contract, and the Player
breached it. Therefore, the Player should be ordered to pay compensation.
13. The Club assured that the Parties were bound by a legal and binding employment contract,
considering:
a) The negotiations established and concluded by the Parties;
b) the signing of a commitment by both Parties in which all contractual assumptions were
enshrined and the essential terms were embodied;
c) the subsequent behaviour of the Parties in which they appear obligated to each other;
d) the Club’s sending of the final contracts, where the agreed elements were reflected;
e) the Player’s request for Club’s authorisation to report later to start the pre-season; and
f) the selection of the jersey number for the 23/24 season.
14. Additionally, the Club argued that the Offer contained all the elements that characterise a
contract: the parties, the work to be performed, the salary, the term and other
remunerations. The Club mentioned that they had to transcribe all these elements, only as
a formality, into contracts, as the Cyprus’ member association requires specific formalities.
Despite this, the Club assured that the true intention of the parties must prevail over the
wording of the Offer, especially its last paragraph. In this respect, the Club stated that the
parties’ true intention was to be bound by the Offer.
pg. 5
REF. FPSD-14774
15. The Club also argued that the Player took advantage of the Club’s trust and good faith when
he was actually negotiating with another club. Since the Player terminated the contract
without just cause, the Club indicated that the Player was liable to pay compensation for
the damages incurred by the Club. In this respect, the Club stated that the Player should
pay compensation of EUR 120,000 as it is the residual value of the contract in the absence
of any valid liquidated damages. Alternatively, the Club mentioned that at least it should be
considered that there was a “pre-contract”, and it still must be considered that the Player
was liable.
16. The requests for relief of the Claimant were the following:
“i) A labor relationship was effectively established between the claimant club and the
respondent player to be valid for the sports seasons 2023/2024 and 2024/2025;
ii) The player terminated such labor relationship unilaterally and without just cause;
iii) Determining the payment by the respondent player to the claimant club, as
compensation for the breach of contract without just cause, of the amount of €120,000,
in accordance with Article 17 of the FIFA RSTP;
iv) Alternatively, if it is understood that a labor relationship was not established but only
a pre-contract, that it still be considered that the player broke his obligations defined
therein and consequendy be obliged to compensate the club under the terms also defined
in Article 17.1 of the FIFA RSTP.
v) The payment of interest of 5% as of 4 July 2023 until the date of effective payment.
vi) The payment by the respondent player to the claimant club a total amount of CHF
5,000 as a contribution towards its legal expenses incurred in connection with these
proceedings.”
b. Position of the Respondent
17. According to the Respondent, the Club’s assertion that the Player breached a binding
employment contract was unfounded and unsupported. In this respect, the Player pointed
out that the Offer contained a disclaimer stating that it was not an employment contract,
and that it was explicitly titled as “proposal”, indicating its nature as an initial offer subject
to further discussion. Moreover, the phrase “positive conclusion of negotiations” indicated
that the process was ongoing and not finalised. According to the Player, the discussions
about salary, term and other logistical details were typical of preliminary negotiations and
did not constitute a binding agreement.
18. Additionally, the Player indicated that the Club did not prove it suffered any specific
damages or losses attributable to him, and also that the Club had sufficient time to recruit
another player after his withdrawal.
19. The Player assured that he never received the alleged email with the contracts, and he
argued that the document on file provided by the Club as evidence appeared to be forged,
pg. 6
REF. FPSD-14774
as there was an inconsistency between the domain and lacked the typical metadata and
bottom-line information that accompanies a legitimate email. Moreover, according to the
Player, there were no records of any discussion via WhatsApp regarding this alleged email
and the Club did not mention these alleged contracts in the letter sent on 11 July 2023.
20. The Player highlighted that he withdrew from the Offer based on:
a) The explicit disclaimer, which made it clear that the document was not a binding
employment contract;
b) the Club’s inaction, which indicated a lack of interest and commitment to finalising an
employment contract; and
c) the potential potestative nature of the Offer, as it left the signing of the employment
contract entirely at the Club’s discretion.
21. In addition, the Player explained that, while it was true that the WhatsApp conversations
took place during 25 and 29 June 2023, these communications were only indicative of his
interest in potential employment and not necessary a binding commitment.
22. Furthermore, the Player highlighted that the principle nemo auditor propriam turpitudinem
allegans should be applied to prevent the Club from claiming a breach of contract based on
terms that it established to be non-binding.
23. The requests for relief of the Respondent were the following:
“In light of the above, we respectfully request that the claim be dismissed, and no
compensation be sought, as the club's assertions are unfounded based on the provided
evidence and legal precedents.”
c. Rejoinder of the Claimant
24. Despite having been invited to do so, the Claimant did not make any further comments.
pg. 7
REF. FPSD-14774
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25.
First of all, the Dispute Resolution Chamber (hereinafter: the 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 29 May 2024 and submitted for decision on
29 August 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.
26. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Cypriot club and
a Romanian and Moldavian player.
27. 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 (June 2024 edition), and
considering that the present claim was lodged on 29 May 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
28. 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
29. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 8
REF. FPSD-14774
i.
Main legal discussion and considerations
30. The Chamber then moved to the substance of the matter and took note of the fact that the
parties strongly dispute whether they were bound by a valid and binding contract, and
whether the Player breached it and shall pay compensation.
31. In this context, the Chamber acknowledged that its first task was to determine whether the
parties were bound by a valid and binding contract or not.
32. The Chamber recalled the Club’s argument that the Offer should be considered as a valid
and binding contract, because it contained all the essentialia negotii, i.e., the parties, the
remuneration, the duration, and the work to be performed.
33. Conversely, the Player stated that the Offer included a disclaimer that specifically
mentioned that the Offer was not a contract.
34. First, the Chamber considered that, according to the long-standing jurisprudence of the
Football Tribunal, for an employment contract to be considered as valid and binding, apart
from the signature of both the employer and the employee (or corresponding proof of
consent to the contract), 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.
35. In this respect, the Chamber noted that the Offer (i) had the signature of both Parties, (ii)
stated that the Respondent would be a player, (iii) although it did not provide the specific
start date, mentioned that the contract would be valid for the season 2023/2024 and
2024/2025 and (iv) provided the remuneration payable to the Player. Therefore, the
Chamber observed that all the essential elements of a contract appear to be present in the
Offer.
36. Notwithstanding the above, the Chamber also highlighted that the Offer included a
statement in which it was established that the Offer was by no means an employment
contract and that the acceptance of the invitation did not constitute in any way a legal
contract between the parties.
37. In this respect, the Chamber found that it was crystal-clear that, although the Offer
contained the essentialia negotii, it was not an employment contract but only an “invitation”
that was part of the negotiations between the Parties.
38. The Chamber wished to remark that it is undisputed that the Offer was drafted by the Club.
From the wording, the Chamber could conclude that the Club’s intention was to include
this specific disclaimer to ensure the non-binding effect of the Offer. In this sense, the Club
clearly clarified that, in order for the parties to be bound, they had to sign the contracts
including all mandatory clauses established by the Cyprus Football Association. If the
pg. 9
REF. FPSD-14774
parties’ intention had been to be bound by the Offer, this disclaimer would not have been
included.
39. In this regard, the Chamber considered that arguing now that the Offer was valid and
binding when the Club itself was the one that included this disclaimer to ensure that the
Offer was non-binding, violates the legal principles of venire contra factum propium and
nemo auditur propriam turpitudinem allegans. Furthermore, and also expressly stated in the
Offer, with the Offer the Club was only expressing its desire to “enter into negotiations”
with the Player and not concluding any valid and binding contract.
40. The Chamber also noted that the Player accepted the Offer on the basis that this specific
wording was included. It is therefore not possible to know whether the Player would have
accepted the Offer without this wording or whether he would have acted differently in the
absence of this wording.
41. Additionally, the Chamber mentioned that, according to the well-established
jurisprudence, the jurisprudence according to which offers are usually considered as valid
and binding employment contracts – provided that they contain all the essentialia negotii –
was developed in order to protect players from unemployment, in line with the legal
principles of in dubio pro operario and in dubio contra stipulatorum. Therefore, all the
jurisprudence to that effect does not apply to this case, where the Club itself drafted the
Offer and is now using this document to try to establish that the Parties had a valid and
binding contract.
42. In light of all the above, the Chamber considered that the Offer was not a valid and binding
contract.
43. Then, the Chamber moved to address the remaining arguments raised by the Club. In the
Chamber’s view, the conversations held by the parties were normal conversations to be
held in the middle of a negotiation, especially when the Player was so interested in joining
the Club that he accepted the Offer. However, the Chamber stressed that the Player’s
behaviour cannot, in any event, indicate that the Parties were bound by a contract if no
contract was signed.
44. Furthermore, and regarding the alleged email sent by the Club with the contracts, the
Chamber highlighted that, even if the Club had indeed sent the contracts to the Player,
there is no evidence on file that shows that both Parties signed any contract, which was
also acknowledged by the Claimant. Therefore, the Chamber considered that the dispute
regarding the alleged email is not relevant and that the parties were also not bound by any
other document.
45. Consequently, the Chamber considered that the Parties were not bound by a valid and
binding contract and, therefore, the Player did not breach such contract.
pg. 10
REF. FPSD-14774
ii.
Consequences
46. Having stated the above, the Chamber decided that the Claimant’s claim be rejected.
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.
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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-14774
IV.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Doxa Katokopias, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-14774
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13