Labour Disputes
Texto da decisão
REF FPSD-7106
Decision of the
Dispute Resolution Chamber
passed on 10 November 2022
regarding an employment-related dispute concerning the player
Uros Deric
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Acting Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), Member
Stijn Boeykens (Belgium), Member
CLAIMANT:
Uros Deric, Serbia
Represented by Rafael Meirelles Gomes de Ávila
RESPONDENT:
Hà Nội, Vietnam
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I. Facts of the case
1.
On 20 June 2022, the Vietnamese club, Hà Nội (hereinafter: the club or the Respondent)
sent the Serbian player, Uros Deric (hereinafter: the player or the Claimant), a letter with
inter alia the following content, quoted verbatim:
“On behalf of [the club] I would like to officially inform you that we are interested in the
possibility of recruiting [the player] and hope to enter into a negotiation regarding
specific contract.
We here at [the club] are very excited about the prospect of working with you in the
future and look forward to hearing back from you soon.
Thank you for your cooperation and we look forward to your prompt reply”.
2.
On 26 June 2022, the club confirmed its interest in hiring the player and addressed him
an employment offer (hereinafter: the Offer) with the following terms and conditions,
quoted verbatim:
“By signing this letter, we confirmed that your proposed terms, to be faithfully reflected
in the Contract to be developed no later than 2 weeks after you pass the medical test,
will be:
•
•
•
•
The duration of the contract will be 05 (five) months or end of season 2022.
Your fix salary will be USD 15,000 NET per month.
The club will support for housing cost according regulation USD 500 per month.
The sign on fee is USD 175,000 NET.
Furthermore, in order to ensure the legal registration, please prepare a contract
termination letter, certificate of experience, and criminal record, which must be
presented when signing the official contract.
We hope that our offer is acceptable to you and we look forward to your presence here
in Hanoi at the soonest possible date”.
3.
The Offer was signed by the club and countersigned by the player on the same date.
4.
In parallel, the player was also provided with a draft of the employment contract including
the same financial conditions mentioned in the Offer (hereinafter: the Draft). The club
confirmed the delivery of the Draft to the player, however argued that it was never signed
and only remitted for negotiation purposes.
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5.
On 13 and 14 July 2022, the player travelled from Belgrade (Serbia) to Hanoi (Vietnam)
with a stopover in Doha (Qatar).
6.
On 15 July 2022, the player underwent medical examinations conducted by the club.
According to the player, the results of said exams were only delivered to him
approximately 11 days after they had been conducted.
7.
On 16 July 2022, the player allegedly joined the club’s trainings for the first time. According
to the player, he attended the club’s practices until 23 July 2022, when he was informed
by the club that it was no longer interested in retaining his services due to the outcome
of the medical examinations.
8.
On 24 July 2022, the player underwent medical examinations at his own initiative and in
private hospital.
9.
On 2 August 2022, the player served the club with a default notice. In this opportunity, he
acknowledged that the club had withdrawn the Offer for no valid reason and confirmed
that he was physically able to perform his services. The player attached to his notice a
signed copy of the Draft and requested either to be reintegrated to the club’s team or to
be compensated for the breach of contract for an amount of USD 250,000 (cf. the Draft)
within the following 15 days.
10. On 3 August 2022, the club replied to the player’s message and argued that the Draft and
its annexes were only sent to the player for negotiation purposes. However, as the
documents were never signed, they were not valid and binding to the parties entailing
that the club would not be liable to pay him any type of compensation.
11. On 15 August 2022, the player acknowledged the termination of the employment
relationship by the club and requested it to issue flights tickets for him to return home.
He furthermore informed that due to the frustrated attempts to solve the controversy
amicably, the case would be referred to FIFA.
12. The player confirmed that he remained unemployed following the termination of the
alleged employment relationship with the club.
II. Proceedings before FIFA
13. On 18 August 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim and additional comments of the player
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14. In his claim, the player argued that the club sent him the Offer, engaged in an employment
relationship, but later departed from the execution of said agreement without just cause.
In particular, the player stressed that he was physically healthy to join the trainings,
reason why he was incorporated to the club’s team and joined the trainings for around
10 days.
15. Notwithstanding the above, the player pointed out that the club refused to honour its
commitment, hence he was forced to leave the country and incurred in all the related
expenses (i.e. flights and accommodation).
16. In light of the above, the player referred to the general principle of pacta sunt servanda
and claimed that the club should be liable to the consequences of the unlawful breach of
contract. In particular, he requested to be awarded the total amount of USD 252,500,
corresponding to the entire remuneration under the Offer, plus 5% interest over said
amount.
17. On 30 August 2022, the player submitted additional comments in connection to his claim.
In this opportunity, he provided a copy of a correspondence sent by the club on 18 August
2022 stating that it would only issue with flight tickets for him to return to Serbia if the
parties’ (hence, the player) would agree to waive any future claims that they might have
towards each other.
18. In view of the foregoing, the player pointed out to the bad faith of the club and explained
that he had to purchase his flight tickets and to pay for his accommodation himself.
Consequently, he amended his claim and requested to be awarded a total of USD
255,550, broken down as follows:
a.
b.
c.
d.
USD 75,000 as fixed remuneration;
USD 2,500 as housing support;
USD 175,000 as sign-on fee; and
USD 3,050 as reimbursement of housing expenses in Vietnam and flight tickets.
b. Reply of the club
19. On 6 September 2022, the club filed its reply to the player’s claim and strongly opposed
that the parties had ever entered into an employment relationship.
20. According to the club, the Offer contained a condition precedent that was never fulfilled:
the player did not pass the medical examinations; hence no employment contract was
concluded. In this respect, the club confirmed that the player joined some of the trainings,
but only as part of the “physical and fitness tests”. It furthermore insisted that the player’s
result of the exams were not satisfactory vis-à-vis his medical condition of football player.
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21. Based on the above, the club concluded that there was not a unilateral termination by
the club insofar as there was no employment relationship between the parties.
Consequently, it argued that the player’s claim should be rejected and mentioned that “to
support the player, [the club] is willing to cover all his expenditures throughout his time in
Vietnam”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 18 August 2022 and
submitted for decision on 10 November 2022. Taking into account the wording of art. 34
of the June 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
23. 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 par.
1 lit. b) of the Regulations on the Status and Transfer of Players (July 2022 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 Vietnamese club.
24. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (July 2022 edition), and
considering that the present claim was lodged on 18 August 2022, the cited edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. 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
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26. 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
27. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it consists of a claim for breach of contract lodged
by the player against the club. The parties strongly disputed whether there was an
employment relationship between them and, if so, the consequences thereof.
28. In this context, the DRC acknowledged that its task was to determine the following:
a. Was the Offer a valid and binding document, the acceptance of which resulted in
the establishment of an employment relationship between the parties?
b. If affirmative, was the employment relationship terminated without just cause by
the club?
c. What are the consequences that follow?
29. The DRC proceeded then to analyse each matter in turn.
A. Was the Offer a valid and binding document, the acceptance of which resulted
in the establishment of an employment relationship between the parties?
30. First and foremost, the DRC recalled its well-established jurisprudence which dictates
that, in order for contract to be considered as valid and binding, apart from the signature
of both the employer and the employee (or, generally, the proof of mutual consent, which
is denoted by each party’s signature), it shall 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.
31. In casu, the Chamber was satisfied with the conclusion that all essential elements were
included in the Offer. In other words, the document provides for the duration of the
employment relationship and the payable remuneration to the player, as well as it relates
to the player as being employed as a footballer with the club and contains their proper
identification.
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32. Furthermore and as opposed to the club’s argumentation to the contrary, the Offer is
designed to be a bilateral document insofar as it contains fields for the signature of both
parties. In particular, the Offer was signed and stamped by the club, as well as
countersigned by the player – which corroborates that both parties unequivocally
consented to the terms and conditions therein established. Such consent is also
confirmed by the undisputed remittance and delivery of a copy of the Draft from the club
to the player, even if not signed by the club’s representative.
33. In parallel and also in line with its solid jurisprudence, the DRC highlighted that: (i) the fact
that the Offer refers to the subsequent signing of an employment contract does not
prevent the document from coming into effect; and (ii) the mere reference to the medical
examinations to be conducted before the signature of such employment contract was
also not sufficient to prevent the Offer from coming into force. On the contrary, the
Chamber was of the opinion that in case the club wanted to validly stipulate conditions
precedent (e.g. medical examinations) as suggested, it should not have sent a signed legal
document to the player, let alone requested his countersignature as proof of acceptance.
Equally, the DRC underlined, also in opposition to the club’s stance in these proceedings,
that in accordance with the clear contents of art. 18 par. 4 of the Regulations, the validity
of a contract may not be made subject to a successful medical examination.
34. In the DRC’s view, the abovementioned conclusion and the lack of diligence of the club
was even clearer when considering that it waited almost 10 days after the medical
examinations to withdraw its consent, period in which the player was undisputedly
attending the club’s trainings and performing his obligations under contract. Therefore,
while considering the actions taken by the club towards the player, the Chamber
concluded that it effectively engaged the services of the player and subsequently
departed from the formal hiring. As a consequence, the DRC determined that the club
could not rely on the allegation that a contract was formally never signed vis-à-vis its
controversial behaviour.
35. In conclusion, taking the overall developments of the case and the behaviour of the
parties into consideration, the DRC decided that the Offer was indeed valid and binding
to the parties. As such, the Chamber established that they entered into an employment
relationship (i.e. per the Offer) valid from July until December 2022.
B. If affirmative, was the employment relationship terminated without just
cause by the club?
36. Having established the above, the DRC moved to the issue of the termination and
concluded that the club departed from the execution of the Offer and the consequent
signature of the Draft.
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37. Specifically, the members of the Chamber believed the employment relationship was de
facto terminated by the club on 3 August 2022, precisely when it informed the player that
he was not approved in the medical examinations and no employment relationship had
been nor would be established. Such termination was then acknowledged by the player
(and not disputed by the club) by means of his letter of 15 August 2022.
38. On this note and due to the lack of any argumentation and/or evidence on the contrary,
combined with the already referred contents of art. 18 par. 4 of the Regulations, the DRC
also decided that such termination took place without just cause, entailing that the club
shall be liable to the consequences that follow.
C. What are the consequences that follow?
39. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
club.
40. In doing so, the Chamber initially observed that the player requested to have his expenses
with accommodation and flight tickets reimbursed by the club; and made the following
remarks in this regard:
•
Regarding the flight tickets, the player did only advance a copy of his itinerary, but
the document did not include the costs of such tickets. Therefore, the player did
not meet his burden of proof (cf. art. 13, par. 5 of the Procedural Rules), reason
why the DRC decided that this specific part of his claim should be rejected;
•
Regarding the accommodation costs: the player filed an invoice issued by a hotel
in the amount of VND 13,350,000. The club, on the other hand, suggested that it
could possibly cover the expenditures “to support the player”. As such, the DRC
decided that said amount should be reimbursed, in national currently.
Furthermore, the Chamber pointed out that no interest should arise over this
concept because it was not specifically requested by the player (ne ultra petita).
41. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including
in particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
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42. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent contract contained a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the Offer.
43. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
44. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the Offer. In
doing so, the Chamber concluded that the amount of USD 251,500 net serves as the basis
for the determination of the amount of compensation for breach of contract, broken
down as follows:
•
USD 75,000 net as the salaries for 5 months (i.e. USD 15,000 each);
•
USD 175,000 net as the sign-on fee; and
•
USD 2,000 net as accommodation allowance for 4 months (i.e. USD 500 each). In
this respect, the Chamber considered that the accommodation allowance for the
first month should not be included in the calculation because the club had already
been held liable to reimburse the player’s expenses with the hotel.
45. In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
46. Indeed, the player did not find a new employment following the termination of the
employment relationship with the club, thus was not able to mitigate his damages.
47. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the
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termination did not take place due to the cited reason, and therefore decided that the
player was not entitled to additional compensation.
48. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 251,500 net to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
49. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the claim (i.e. 18 August 2022) until
the date of effective payment.
ii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
51. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
52. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become immediately
effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
53. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
54. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
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d. Costs
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Uros Deric, is partially accepted.
2.
The Respondent, Hà Nội, has to pay to the Claimant the following amounts:
- VND 13,350,000 as outstanding remuneration; and
- USD 251,500 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 18 August 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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