Labour Disputes
Texto da decisão
REF FPSD-3864
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Vladimir
Golemic
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Angela Collins (Australia), Member
Dana Mohamed Al-Noaimi (Qatar), Member
CLAIMANT:
Club Al Hazem, Saudi Arabia
Represented by Mr Ali Abes and Mr Mohamed Rokbani
RESPONDENT:
Vladimir Golemic, Serbia
Represented by Mr Hrvoje Raić, Mr Ivan Ostojić and Mr. Bruno Skelin
INTERVENING PARTY:
PAS Lamia 1964 FC, Greece
Represented by Mr Konstantinos Zemberis
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REF FPSD-3864
I.
Facts of the case
1.
On 4 May 2021, the Saudi Arabian club, Al Hazem (hereinafter: the Claimant) made an offer
(hereinafter: “the offer”) to Serbian player, Vladimir Golemic (hereinafter: the Respondent),
which inter alia, stipulated the following:
“With reference to the above subject matter the club we present you a Formal offer to
eventual employment contract with our club after a successful medical test as following:
We propose a contract period of two seasons as following:
1)The contract value for the first season 2021-2022 is amount of (900,000.00 euro) Divide as
follows:
- (300.000 euro) as advance payment payable as following:
- 150.000 euro paid at the sighing of the contract.
- 150.000 euro paid no later than 01 Nov 2021.
- the rest (600.000 euro) will be monthly salaries.
(According to the information available on TMS, the season starts on 12 August 2021 and
ends on 31 May 2022)
2)The contract value for the second season 2022-2023 is amount of (1.000,000.00 euro)
Divide as follows:
(300.000 euro) as advance payment, the rest (700.000 euro) will be monthly salaries. Other
benefits provided by the Club
a) Housing.
b) Transportation.
c) (2) Fly tickets (per season) For the player and his wife & kids.
d) Bonuses as follows:
(100,000 euro) bonus for winning the Saudi Premier League.
(100.000) bonus for getting one of the top six positions in the Saudi Premier league. (50.000
euro) bonus for win the King's Cup.
(50.000) bonus If the team is able to participate in the AFC Champions League. Wining bonus
for the matches according to the club's Bonus regulations.
(According to the information available on TMS, the season starts on 11 August 2022 and
ends on 30 May 2023)
Termination of the Contract:
In case of the club relegated to the lower league the club has the right to terminate the second
season (2022-2023) of this contract without any penalty clause.
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Following the Player's signature here below to express his approval in this offer, the parties
shall start for the execution of a formal employment contract after a successful medical test
will be made by the player. Should you agree with the above please return a signed copy of
this offer.
Our offer shall be valid for 48 hours from its receipt.
2.
According to the Claimant, the Respondent signed the offer on 18 May 2022 and
consequently “both parties entered into an employment relationship for two seasons
2021/2022 and 2022/2023.”
3.
According to the Claimant, the Respondent has been in correspondence with the coach of
the Claimant via WhatsApp, where he informed the coach on 19 May 2021 that he signed
the offer with the club.
4.
The Respondent in and around 29 June 2021, exchanged further correspondence via
WhatsApp with one of the Claimant’s officials in order to make the necessary arrangements
regarding his COVID-19 vaccine certificate.
5.
On 8 July 2021, the Respondent sent an email to the Claimant, which inter alia, stipulated
the following:
"Unfortunately for family, personal and professional reasons I have to renounce your generous
offer "
6.
On 9 July 2021, the Claimant informed the Respondent that it rejected its request to renounce
the offer and requested the Respondent to urgently send his departure destination in order
for it to make the necessary flight arrangements for the Respondent to join the pre-season
training camp starting 11 July 2021 – the Respondent failed to reply.
7.
On 14 July 2021, the Claimant sent a further reminder to the Respondent, however he failed
to reply.
8.
On 15 July 2021, a third notice was sent by the Claimant, which stipulated the following:
“we refer to our previous emails asking you to respect your contractual engagement with the
club and especially our correspondence of today in which you were requested to provide us
with your city of departure to arrange the plane ticket for you to join the team training in
Hungary. In this context, we remind you that this formal notice is the last one given the
exceptional circumstances and your unjustified and unacceptable renouncing to your
contractual engagement. therefore you are invited to reply to our emails on July 16, 2021 at
15 p.m. after this deadline we will consider that you have definitively terminated your
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contractual engagement and we will be obliged to submit a claim before FIFA DRC in order
to claim financial compensation and sports sanctions against you.”
9.
On 15 July 2021, the Respondent replied and alleged that the offer was not signed by him,
but by a third person and confirmed that he does not ratify any of the offers not signed by
him and that these offers are considered null and void.
10. On the same day, the Claimant replied and indicated that the Respondent has until 3.00 pm
on 16 July 2021 to make the necessary flight arrangements with the club, failure to do shall
indicate that the Respondent has unilaterally terminated the contract, and the Claimant will
therefore submit a claim to the FIFA DRC, however to no avail.
11. According to the information available in TMS, the Respondent concluded an employment
contract with the Greek club PAS Lamia 1964 FC, valid from 17 September 2021 until 30
June 2022, for a total fixed remuneration in the amount of EUR 137,328.80 (approximately
USD 156,994.28).
12. According to the information available in TMS, on 31 January 2022, the Respondent
concluded an employment contract with the Italian club CROTONE S.R.L., valid from 31
January 2022 until 30 June 2022, for a total fixed remuneration in the amount of EUR
269,000 (approximately USD 307,520.80).
II. Proceedings before FIFA
13. On 10 October 2021, 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
14. The requests for relief of the Claimant, were the following:
(a) to order the Respondent to pay a compensation equal to the amount of USD 1,900,000
or any amount FIFA DRC will consider proportionate and appropriate, in accordance with
the provision of article 17 of the FIFA RSTP, plus interest of 5% p.a. on the amount due
to the Claimant, calculated from i.e. from 8 July 2021 until the date of effective payment;
(b) To sanction the Respondent with a ban on playing in official matches for six (6) months
or at least four (4) months, pursuant to article 17, paragraph 3 of FIFA RSTP.
b. Position of the Respondent
15. In its reply to the claim, the Respondent indicated that he never signed the offer.
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16. The Respondent mentioned that therefore no unilateral termination of the employment
contract had been made by the Respondent.
17. Furthermore, the Respondent emphasised that the offer in question cannot constitute an
employment contract, or a pre-contract given that it does not contain all the essentialia
negotii.
18. The Respondent rejected all the arguments of the Claimant.
19. Moreover, the Respondent indicated that the Claimant failed to provide an original of the
said documents but only the digital version.
20. Additionally, the Respondent stipulated the following:
“it is easy to note that Player’s latin signature in his Polish passport which the Player poses
since he has dual citizenship (Serbian passport is signed in cyrilic) is not the same as the
signatures on the Term Sheet and Offer 3, neither do signatures on the Term Sheet and Offer
3 resemble each other
- his Polish passport, his contract with FC Crotone and power of attorney issued to Mr Lorin
Burba, on one side, which documents were all undoubtedly signed by the Player, and
signatures from the Term Sheet and Offer 3, on the other side; one can easily come to the
conclusion that they do not remotely resemble each other.”
21. In reference to the WhatsApp correspondence, the Respondent indicated that the alleged
WhatsApp conversation is, completely vague and irrelevant as the acceptance of an offer via
WhatsApp “cannot legally be sustained”, furthermore the following cannot be determined:
- “the year in which the alleged conversation took place, nor
- the identity of a parties to the alleged conversation, nor
- the content of the alleged offer that was allegedly accepted”
22. In addition to the aforementioned and due to the fact that the Respondent’s signature is
forged, the Respondent kindly asks FIFA DRC to request from the Claimant the original
versions of allegedly signed Term Sheet and Offer 3, and if not provided that it is disregarded.
23. The Respondent further mentioned the following:
“in the case that the honorable chamber determines that the services of expert witnesshandwriting expert in this matter are needed, the Respondent hereby states that he does not
oppose hiring the handwriting expert to provide his professional opinion on forged signatures
put in the Term Sheet and Offer 3.”
24. In the view of foregoing, the Respondent respectfully requests the FIFA DRC:
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(a) to reject all reliefs sought by the Claimant stipulated in its Claim, and
(b) to condemn the Claimant to pay in favour of the Respondent any and all legal expenses
incurred and procedural costs.
c. Position of the Intervening party
25. In its reply to the claim, the Intervening Party, inter alia, mentioned the following:
“Thus, in the present matter it is clear that not only PAS Lamia had never had any involvement
in the present dispute between the Claimant and the Respondent and actually has followed
all the necessary procedures and showed all possible diligence with respect to the execution
of an employment contract with the Respondent and his registration with PAS Lamia, but
what is even more important is that there are in the present matter such exceptional and
unforeseen circumstances that justify a different outcome than the automatic application of
the concept of the joint liability.
Indeed, PAS Lamia avers that accepting the concept of automatic joint liability in the present
case with the specific exceptional circumstances would not only be unfair and unjust for PAS
Lamia but it would also put at risk the whole transfer system of FIFA since it would mean that
no club could ever be sure and protected when signing any professional as a free player.”
26. The Intervening Party therefore requested that the DRC rule that:
i. PAS Lamia 1964 FC is not a party and cannot be a party to this procedure;
ii. in any case, PAS Lamia 1964 FC could not be held jointly and severally liable
to pay any compensation that might be payable by the player Vladimir Golemic to Al
Hazem FC and that no sporting sanctions could be imposed on PAS Lamia 1964 FC.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 October 2021 and submitted for decision
on 21 April 2022. 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.
28. 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) of the
Regulations on the Status and Transfer of Players (March 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
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employment-related dispute with an international dimension between a Saudi Arabian club
and a Serbian player.
29. 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 (March 2022 edition), and
considering that the present claim was lodged on 1 October 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
30. 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
31. 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
32. The foregoing having been established, the Chamber noted that the parties’ first fundamental
disagreement is whether the document allegedly concluded between the parties on 18 May
2022 can be considered a valid and binding employment contract.
33. 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.
34. The Chamber also recalled the content of 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. With this in mind, the Chamber deemed that it was up to the Claimant to prove
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that the employment relationship, on the basis of which it claimed compensation for breach
of contract, from the Respondent, indeed existed.
35. In this context, the Chamber turned its attention to the documentation brought forward by
the parties and acknowledged that the Claimant argued that upon the signature of the offer
by the Respondent a contract had indeed been concluded, in this regard the Claimant
indicated that that the Respondent confirmed via WhatsApp correspondence through an
official of the Claimant that he signed the offer on 19 May 2021.
36. The Chamber took note that the Respondent on his account denied that any such contract
was concluded and moreover, the Respondent also argued that the offer lacks all the
essentialia negotii, for it to constitute an employment contract. In addition, the Respondent
mentioned that these preconditions had to be fulfilled before a final agreement could
eventually come into place.
37. After thoroughly analysing the documentation on file, the Chamber first noted that the
essential elements of a contract described above are indeed present in the legal document
allegedly concluded by the parties (i.e. the offer). In particular, the Chamber highlighted that
the document, provides for the duration of the employment relationship and the
remuneration payable to the player, as well as clearly stipulating that the Respondent is
employed as a footballer with the Claimant.
38. Notwithstanding the foregoing, the Chamber also noted the precise wording of the following
clauses of the offer:
“Following the Player's signature here below to express his approval in this offer, the parties
shall start for the execution of a formal employment contract after a successful medical test
will be made by the player.
Should you agree with the above please return a signed copy of this offer with specifying
your proposed date to come to Saudi Arabia for a medical examination then signing the
contract
Our offer shall be valid for 72 hours from its receipt.”
39. Subsequently, the Chamber turned its attention to the factual framework involving the
negotiations between the parties and, specifically, to the correspondence exchanged in the
context of the acceptance of the employment proposal.
40. In this context, the Chamber recalled that the Claimant submitted certain documentary
evidence, on the basis of which it could in principle be concluded that the offer was sent by
it to the Respondent on 18 May 2021. However, the Claimant failed to provide corroborating
documentary evidence indicating that the said offer was consequently duly signed and
returned by the Respondent. In this respect, for instance no email transmission of the alleged
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acceptance emails is on file. Moreover, the DRC remarked that the document dated 18 May
2021 indicates that it is to be considered an offer to an eventual employment, after the
Respondent would pass a successful medical test, which according to the Chamber seemed
to indicate that the offer indeed was not at the point of being a final and binding employment
agreement.
41. In light of the above and taking into consideration the Claimant’s argumentation regarding
the alleged employment contract, the Chamber understood that the Claimant did not meet
its burden of proof in order to demonstrate that the document was indeed validly concluded
with the Respondent (nor at least with his consent). In particular, the Chamber deemed that
the Claimant could not establish based on substantial evidence that it adopted the reasonable
precautions that could be expected from a club when entering a labour relationship.
42. Therefore, based on all the foregoing considerations and circumstances, the Chamber
decided that no valid and biding employment contract had been concluded between the
Claimant and the Respondent, hence the Claimant’s claim had no legal basis.
ii. Consequences
43. Having stated the above, the members of the Chamber decided to reject the claim of the
Claimant.
d. Costs
44. 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.
45. 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.
46. 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, Club Al Hazem, is rejected.
2. 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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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