Labour Disputes
Texto da decisão
REF. FPSD-14705
Decision of the
Dispute Resolution Chamber
passed on 30 October 2024
regarding an employment-related dispute concerning the Player Mouhamed
Diop
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Jon NEWMAN (USA), Member
Iñigo RIESTRA (Mexico), Member
CLAIMANT:
Mouhamed Diop, Senegal
Represented by FIFPro Division Africa
RESPONDENT:
AFC Campulung – Muscel 2022, Romania
pg. 2
REF. FPSD-14705
I. Facts of the case
1.
In January 2024, the Romanian Club AFC Campulung – Muscel 2022 (hereinafter: the
“Respondent” or “Club”) sent an offer letter (hereinafter: the “Offer Letter”) to the Senegalese
player Mouhamed Diop (hereinafter: the “Claimant” or “Player”), inviting him to “negotiate a
possible Sports Activity Contract” and
“to come and give some sports test (fizic+medical+sign [sic] contract professional ) for the period
10.01.2024-09.02.2024 [ . . . ] [The Player] will receive a house and food suitable for sport
performance during the contract”.
2.
The Offer Letter further stated, inter alia, the following:
“This is an Offer Letter only, your exact terms and conditions of employment will be mentioned
in the contract which will [sic] be issued when joining the club.”
3.
Thereafter, the Player reported to the Club.
4.
On 8 April 2024, the Player sent a default notice to the Club stating that pursuant to an
employment contract signed by the parties on 1 February 2024 for a period of 6 months,
the Player was entitled to a monthly salary of RON 3,000 which went unpaid for February
2024 and March 2024.
5.
In the aforementioned notice, the Player informed the Club that it had 10 days to fulfil its
financial obligation and 5 days to provide the Player with a copy of the contract.
6.
On 26 April 2024, the Player provided the Club an additional 5 days to cure the financial
default and 3 additional days to provide the contract.
7.
On 3 May 2024, the Player informed the Club that, in light of receiving neither the
compensation nor the copy of the contract, he was terminating the contract.
II. Proceedings before FIFA
8.
On 22 May 2024, the Player lodged a claim before FIFA. A summary of the parties’ position
is detailed below.
a. Position of the Claimant
9.
In his claim, the Player argued that he terminated the contract with just cause due to
outstanding remuneration and abusive conduct by the Club.
pg. 3
REF. FPSD-14705
10. According to the Claimant, following the issuance of the Offer Letter, the parties signed an
employment contract on 1 February 2024, valid as from 15 February 2024 until 30 June
2024.
11. The Player acknowledged that – despite his attempts to obtain it from the Club – he did not
possess a signed copy of this employment contract.
12. However, the Player claimed that the contractual relationship could be established because
-
The Club submitted an Offer Letter which was accepted by the Player and the Player
subsequently joined the Club;
-
The Player’s signing with the Club was reported on the Club’s Facebook page, which was
corroborated with photos taken of the Player alongside Club officials signing the
contract and holding up the Club’s jersey;
-
The Player possesses images of the contract being displayed on the Club’s computer
which identifies the Player’s name in the document title and Club logo in the background.
13. According to the Player, DRC jurisprudence provided that, even in the absence of a formal
written contract, a party may prove that a contractual relationship existed in accordance
with the principle of reality (see, e.g., DRC decision of 22 June 2022, Siahoune).
14. As evidence that there existed a contract between the parties, the Player provided
photographs of the alleged contract on what he describes to be the Club’s computer,
containing the following terms of the agreement:
“[file name] Contract Diop Mouhamed [ . . . ]
Articolul 4: Remuneratia
b) In perioada 15.02.2024-30.06.2024 clubul AFC CÂMPULUNG MUSCEL 2022 se angajeaza sa ii
plateasca jucatorului in schimbul serviciilor sale profesionale . o renumeratie lunara bruta de
baza de 3000 de lei/net
i. Remuneratia si celelalte drepturi bǎneşti cuvenite îi vor plǎtite jucǎtorului , in
perioada 15-30 ale lunii, pentru luna anterioara , dupa cum urmeaza ,
indicican dintotdeauna motivul platii respective (de exemplu “plata iunie
2024” )”
Translation provided by the player:
“Article 4: Remuneration
pg. 4
REF. FPSD-14705
b) in the period 15.02.2024-30-06.2024 the AFC CAMPULUNG MUSCEL 2022 club undertakes to
pay the player a remuneration in exchange for his professional services basic monthly gross of
3000 lei/net
1 The remuneration and other monetary rights will be paid to the player between the 15th and
30th of the month, for the previous month as follows, always indicating the reason for the
respective payments (for example, the June 2024 payment,)”
15. The Player further provided the following photograph of the computer screenshot:
“[ . . . ] Dacǎ echipa promoveazǎ contractual se prelungeste cu un an, iar renegocierea se va face
în perioada 15.06.2024 – 30.06.2024.
[ . . . ] Convenit, intocmit şi semnat în trei exemplare la 15.06.2024.”
Translation provided by the Player:
“[ . . . ] If the team promotes the contract, it will be extended by one year, and the renegotiation
will take place between 15.06.2024 and 30.06.2024
[ . . . ] Agreed, drawn up and signed in triplicate 15.06.2024“
16. Moreover, the Player submitted pictures he described as himself signing the alleged
contract on 1 February 2024 and holding up the Club’s jersey next to alleged Club officials,
as well as a screenshot of a Facebook post allegedly made on 1 February 2024 by the Club
on its Facebook page announcing the Player’s arrival to the Club.
17. According to the Player, pursuant to the contract signed by the parties on 1 February 2024,
he was entitled to RON 3,000 per month, each monthly instalment payable on or before
the 30th of the respective month.
18. Despite the default notices asking the Club to provide the Player with a copy of said
contract, the Player states the Club failed to do so and he therefore had just cause to
terminate the contract in accordance with art. 14bis and art. 14 of the RSTP and lodge the
present claim before the DRC.
19. The Player requested the following relief:
“I. As a consequence of all of the above, the Player requesting the FIFA DRC to determine that an
employment contract was in place, that he terminated the Contract with just cause on 3 May
2024, and to order the Club to pay him the following amounts:
LEI 9,000 as outstanding salaries plus 5% interest p.a. as of the relevant due dates until the
effective day of payment:
pg. 5
REF. FPSD-14705
•
•
•
LEI 3,000 + 5% as of 1 March 2024
LEI 3,000 + 5% as of 1 April 2024
LEI 3,000 + 5% as of 1 May 2024
II. LEI 6,000 as compensation for breach of contract plus 5% interest p.a. as of the day of
termination until the effective day of payment.
III. In addition, the Player is requesting the FIFA DRC to impose sporting sanctions on the Club
for the breach of contract within the protected period.”
b. Position of the Respondent
20. In its reply, the Club rejected the Player’s claim, arguing that the Player was an amateur
football player who came to the Club to perform medical tests and trials.
21. The Club insisted that it never offered a contract to the Player and recalled the language of
the Offer Letter, wherein the Club asked the Player “to come and give some sports test
(fizic+medical+sign [sic] contract professional ) for the period 10.01.2024-09.02.2024 [ . . . . ]
This is an Offer Letter only, your exact terms and conditions of employment will be mentioned
in the contract which will [sic] be issued when joining the club.”
22. Furthermore, the Club claimed that the Player reported to a private clinic to obtain medical
clearance, which, following examination, did not clear him to play.
23. The Club asserted that thereafter, the Player returned to Belgium, providing the following
undated WhatsApp communication, which is alleged to have taken place between the Club
and the Player:
[Player]
“Je vous ai dit apres le Ramadan que je vais revenir parce que vous voulez pas que je
m’entraîne en ce moment je vous ai dit que je retourne en Belgique m’entraîner avec mon
préparateur physique”
[...]
[reply/quote]
“Tu m’as donné 100 lei pour le bus 50 lei et le taxi est à 86,2 lei et je vais manger quoi dans
l’avion ?”
[Respondent]
pg. 6
REF. FPSD-14705
“tu as dit que tu vas en Belgique parce que tu n’es pas prêt, je n’ai rien à te payer, j’ai payé ton
billet d’avion quand tu est arrive, sinon c’est ton affaire que tu voulais alle ren Belgique pour
preparer, nous en parlerons l’été, prepare toi et sois sérieux, pour l’instant tu n’es pas prepare
physiquement”
[Claimant]
“Arrête de mentir moi je t’ai dit je suis pas prêt? Y’a que vous qui avez dit ça”
Free Translation to English:
[Claimant]
“I told you after Ramadan that I was coming back because you didn't want me to train right now
I told you I was going back to Belgium to train with my fitness trainer”
[...]
[reply/quote] “I haven’t replied until now because I’ve been busy.
you gave me 100 lei for the bus 50 lei and the cab is 86.2 lei and what am I going to eat on the
plane?”
[Respondent]
“you said you're going to Belgium because you're not ready, I have nothing to pay you, I paid
your plane ticket when you arrived, otherwise it's your business that you wanted to go to Belgium
to prepare, we'll talk about it when it's off, prepare yourself and be serious, for now you're not
physically prepared”
[Claimant]
“Stop lying, I told you I'm not ready? You're the only one who said that”
24. The Club argued that the Offer Letter lacked the necessary elements of a contract, namely
duration and remuneration.
25. With regard to the evidence presented by the Player, the Club argues that
-
The photos include an alleged, not confirmed, Club official and do not demonstrate the
existence of a binding contract;
-
The images of the computer include an editable document and do not identify the
document as a contract between the Club and Player;
pg. 7
REF. FPSD-14705
-
The document does not reflect the Player’s allegation that the contract was signed 1
February 2024 because it states “Agreed, drawn up and signed in triplicate on 15.06.2024”;
-
The document is not in French / bilingual, the language spoken by the Player;
-
The Club does not have an official Facebook account.
26. The Club further contested receipt of any notices by the Player, or by any party which
attached a power of attorney or other empowerment to act on behalf of the Player.
27. The Club requested that the DRC reject the Player’s claim.
c. Replica of the Claimant
28. In his replica, the Player emphasized that he was hired as a professional football player by
the Club and that he reported to the Club on 1 February 2024 in accordance with the Offer
Letter.
29. Furthermore, the Player argued that he was fit to play, disputing the authenticity of the
medical report provided by the Club.
30. Moreover, the Player argued that the medical tests could not have been concluded in
March because he arrived in January and signed the contract in February. In any case, the
Player contended that even if the Player had indeed failed the medical examination in
March as alleged by the Club, there would exist a termination without just cause because
a contract was already in place.
31. The Player further alleges that the medical report was not sent to the Player before signing
the contract but that the Club was fabricating it now.
32. Regarding the WhatsApp messages, the Player noted that they proved the Club did not pay
the Player’s dues and that the Player disputed not being fit.
33. The Player argued that the pictures he submitted of the draft document on the computer
screen indeed identified all four elements of a binding contract, i.e., the remuneration,
duration, the parties, and the job undertaken.
34. With regard to the evidence, the Player emphasizes that the photos can in fact be linked to
the Club, such as the folder name and the desktop background bearing the Club name and
parts of its logo, as well as the draft language of the contract including the Club’s name and
the file name including “Contract Diop Mouhamed.”
pg. 8
REF. FPSD-14705
35. Moreover, the Player noted that one of the photos depicting the Player signing the contract
can be linked to the Club, as the logo on one of the pages in the photograph was allegedly
that of the Club.
36. Regarding the conflicting dates raised by the Club, the Player stated that he had actually
asserted, consistently with the terms of the contract, that the term would be valid from 15
February 2024 until 30 June 2024, not that the term was valid from 1 February 2024.
37. The Player argued that the signing date itself was either a typographical error intending to
say “15.02.2024” as per the term start date, or it referred to the date on which the
renegotiation could begin per the clause above it.
38. The Player further stated that the Club official in the photos with the Player and his agent
was an individual named “Costin Ghiţă”. The Player conceded that Mr Ghiţă’s title was
unclear but that it was apparent that he represented the Club in a high-ranking capacity.
39. Furthermore, addressing the notice and delivery issue, the Player provided screenshots of
the emails sent by his representatives to the Club’s email address.
d. Duplica of the Respondent
40. In its duplica, the Club reiterated its position from its response.
41. The Club purported that the Player’s choice to return to Belgium rather than remain in the
Club’s market to train with its staff supports the lack of a Contract between the parties.
42. The Club emphasized that the medical report was not fabricated.
43. The Club noted that the evidence of notice by email to the Club failed to show that the
representatives sent communication with a power of attorney and therefore notice was
not proper.
e. Information retrieved from the TMS
Registration of the Player during the relevant (alleged) contractual period
44. An ex officio check in the Transfer Matching System (TMS) confirms that the Player joined
the Respondent Club on 1 February 2024 as an amateur and with Player’s compensation
reported as “No compensation.”
pg. 9
REF. FPSD-14705
Subsequent Contractual Status
45. The Player informed the FIFA general secretariat that he remained unemployed following
the termination.
46. An ex officio check in TMS confirms that the Player joined the Belgian club R.F.C. Perwez on
30 August 2024 and did not appear to receive any remuneration.
f. Information provided by the Romanian Football Federation
47. At the request of the FIFA general secretariat for a copy of the Contract between the parties,
the Romanian Football Federation (hereinafter: the “Federation” or “FRF”) informed the
following:
“On 08 February 2024, our club Asociatia Fotbal Club Campulung Muscel – 2022, registered the
player as Amateur, as he was requested.
On 30 August 2024, upon requested by Belgium FA, the Romanian FA issued the ITC for the
club RFC Perwez. According with the records of the Competition Department of the Romanian
FA, the player did not concluded any Professional contract with Asociata Fotbal Club Campulung
Muscel – 2022, as he kept his status as an Amateur player during the entire period of registration
with the Romanian club.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
48. 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 22 May 2024 and submitted for decision on
30 October 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.
49. 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
pg. 10
REF. FPSD-14705
employment-related dispute with an international dimension between a Senegalese and
Belgian player and a Romanian club.
50. 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 22 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
51. 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
52. 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.
i. Main legal discussion and considerations
53. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute whether a valid contract existed between the party and
whether the Respondent committed a breach thereof.
54. In this context, the Chamber acknowledged that its task was to detail whether the evidence
submitted by the Claimant indeed supported the conclusion that the parties signed a
contract wherein the Respondent undertook to pay remuneration to the Claimant.
55. To that end, the Chamber observed that the Player claimed the parties concluded a
contract, pursuant to which the Club undertook to pay him RON 3,000 per month in salaries
but failed to pay him three salaries totalling RON 9,000. The Chamber further noted that
the Player alleged not being provided with a copy of the contract by the Club, and that
pg. 11
REF. FPSD-14705
consequently, the Player alleging just cause to terminate the contract with an entitlement
to the residual value of the contract (an additional two salaries, for RON 6,000).
56. The Chamber recalled that the Club did not dispute that the Player trained with the Club
but had argued instead that the Player had reported to the Club for medical tests and trials
only, did not clear his medical exam and never signed a contract with the Club.
57. The Chamber highlighted the well-established FIFA jurisprudence which provided that, for
an employment contract to be considered valid and binding, apart from the mutual assent
of both parties (usually manifested by the signature to the relevant agreement), it should
contain the essentialia negotii of an employment contract, such as the name of the parties
to the contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee.
58. In continuation, the Chamber noted that the jurisprudence does not mandate an actual
signature of the Contract as the sole (or even a necessary) element to determine whether
a contractual relationship exists between the parties. Instead, the validity and the
enforcement of the contract should be established on the basis of a comprehensive
understanding of all the facts and actions taken by the parties within their context of their
relationship.
59. Put differently, the Chamber understood that a signature was essentially the easiest way
for a party to prove that their counterparty has entered into a contract; however, in line
with the jurisprudence of both the Football Tribunal and the Court of the Arbitration for
Sport, an employment agreement could be materialised with the wish to be executed, and
the signature be understood as evidence to prove the club’s acceptance, but such assent
may also be proven by other evidence.
60. In parallel, the Chamber referred to art. 13 par. 5 of the Procedural Rules which provided
that a party claiming a right on the basis of an alleged fact shall carry the respective burden
of proof. On this note, the Chamber noted it was up to the Player to prove that the
employment relationship on the basis of which he claimed outstanding remuneration and
compensation for breach of contract from the club indeed existed.
61. With the above in mind, the Chamber recalled that the Player presented the following
evidence for a contractual relationship:
-
An Offer Letter inviting the Player to report for testing and stating that a separate
employment contract will be concluded at a future time with precise terms;
-
A picture of a computer screen with a draft document titled “Contract Diop
Mouhamed” which provided, inter alia, that during the term of 15 February 2024 until
30 June 2024 the Club will pay the player “for his professional services basic monthly
gross of 3000 lei net”, payable between the 15th and 30th of the following month;
pg. 12
REF. FPSD-14705
-
Photos of the Player together with Club officials, signing a document and holding up
a Club jersey; and,
-
A Facebook post of an account bearing the Club’s name and logo announcing the
Player’s transfer to the Club.
62. The Chamber held that ultimately, in light of the confirmation by the Federation and within
TMS that no contract was registered for the Player and that he was instead assigned to the
Club as an amateur without compensation, the Chamber was not persuaded that the photo
of the alleged contract draft, along with the other circumstantial evidence conceivably
linking the Player to the Club, could provide sufficient basis for finding that the parties
indeed concluded an agreement for the Club to pay remuneration to the Player.
63. The Chamber found that, while the Player did demonstrate that a relationship between
himself and the Club existed, and while on the whole there could have credibly been a
contract negotiation (or conceivably a signing), the Chamber could not determine, based
on the evidence on file, that the Player met his burden of proof of establishing that a
binding contractual agreement existed between the parties wherein the Club agreed to pay
the amounts claimed.
64. The Chamber therefore concluded that the claim should be rejected.
d. Costs
65. 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.
66. 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.
67. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 13
REF. FPSD-14705
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mouhamed Diop, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-14705
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. 15