Dispute Resolution Chamber
Texto da decisão
REF 21-00208
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Lukas Grozurek
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stefano La Porta (Italy), member
Angela Collins (Australia), member
CLAIMANT:
Lukas Grozurek, Austria
RESPONDENT:
Pafos FC, Cyprus
Page 2 of 8
REF 21-00208
I.
Facts
1.
According to the claimant, on 28 August 2020, he was contacted by an agent speaking on behalf of
the Respondent.
2.
The player granted a man date to Mykyta Shvets to negotiate a transfer to Pafos, valid until 20
September 2020.
3.
On 29 August 2020, FC Pafos issued an offer with the following contents:
“To: Lukas Grozurek
From: Pafos FC
Subject: Proposal of contract to Mr. Grozurek
Dee Sir/Madam.
Hereby we would like to propose a permanent transfer with following conditions: SALARY:
- 15.000 EUR net monthly salary starting from 1.09.2020 until 31.05.2021
- Automatic extension of the contract until 31.05.2022 with same tarns with more than 2000 minutes
played
BONUSES:
- 20.000 EUR bonus if Pafos FC win Cypriot top division
- 15,000 EUR bonus if Pafos FC win Cypriot cup
- 15,000 EUR bonus if Pafos FC Qualify for European competitions
- 25,000 EUR if Pafos FC reach UEFA Europa League group stage
- 50,000 EUR if Pafos FC reach UEFA Champions League group stain.”
(…)
4. The player subsequently sent a signed copy of the aforementioned offer, as follows:
[“I, Lukas Grozurek, confirm hereby that I am willing to accept he present proposal on the explicit
condition that the contract will be fully to my satisfaction.]
5. The club sent a draft of an employment contract in docx. Format, with a period of validity comprised
between 1 September 2020 until 31 May 2021.
6. According to clause 1.3.1., the player would be entitled to a monthly salary of EUR 16,500 net.
7. The club booked a flight for the player for the journey Vienna-Paphos, on 1 September 2020
(FR9477).
8. On 2 September 2020, the legal representative of the player sent a default notice, noting that “It is
clear that the proposal sent to the player was accepted by the Player and contained all four
Page 3 of 8
REF 21-00208
essentialia negotii” and the club’s “decision to terminate the said employment agreement
constitutes breach of contract and the player is entitled to compensation equal to the residual value
of the contract, i.e. €181,500 plus legal interest.”
9. On 13 September 2020, the legal representative of the player sent a letter to the club, stating that
“he is willing to fly to Cyprus and undergo all necessary procedures to register with the club”
and inviting him to let him know “by 13.00 of Monday, 14/09/2020, whether [the club] club is willing
to proceed with [the] employment, as per the agreed terms.”
10. On 17 September 2020, the player signed an employment contract with the Austrian club, St. Pölten,
valid as from the date of signature until 31 May 2021.
11. According to art. 4.2 of the aforementioned contract, the player was entitled to a monthly salary of
EUR 7,500. [the value of the contract corresponds to 8.5*7,500= EUR 63,750]
12. On 2 September 2020, the player lodged a claim before FIFA for breach of contract without just
cause, and requested the payment of EUR 114,000, plus 5% interest p.a. as from 2 September 2020.
13. According to the player, he received an offer from the club’s CEO, which he signed and sent back to
the club.
14. The player explained that, after receiving the offer signed by the Claimant, the Respondent
purchased and sent to the Claimant the necessary flight tickets for the Claimant and one of
his agents to fly to Cyprus, undergo medical examinations and finalise the Claimant’s employment
contract by the Respondent.
15. The player stated that, in the meantime, as he later found out, the
simultaneously been negotiating with another player for the same position.
Respondent
had
16. The player explained that, whilst he and his agent were at the airport ready to board the plane,
they were informed by phone by the Respondent’s CEO that the latter had changed its mind,
decided to sign a different player and was no longer interested in his services
17. In its reply to the claim, the Respondent rejected the claim of the player.
18. In the opinion of the Respondent, the entire claim of the Player is based on the flawed allegation
that the Parties concluded a valid and binding employment contract when he unilaterally signed
the Offer
19. In the opinion of the Respondent, the player maliciously fails to mention that he made a
handwritten note on the Offer expressly conditioning its validity to the execution of an employment
contract between the Parties.
20. The Respondent considered in this respect that the Player perfectly distinguished the Offer from
the potential employment contract to be signed between the Parties, and referred to art. 151 of the
Swiss Code of Obligations.
21. On a subsidiary basis, the Respondent considered that the offer did not contain all essentialia
negotti of an employment contract. In particular, the Respondent underlined that the Offer was not
signed by the CEO nor by any representative of Pafos FC.
22. On a subsidiary basis, the Respondent underlined that the amount of payable compensation should
be mitigated.
Page 4 of 8
REF 21-00208
II. Considerations of the Dispute Resolution Chamber
1. 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. Taking
into account the wording of art. 21 of the January 2021 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes with
an international dimension between players and clubs, such as the present one.
3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations
of the Status and Transfer of Players should be applicable to the present matter. In this
respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players, and considering the date when the
claim was lodged, the January 2021 edition of the aforementioned regulations (hereinafter:
the Regulations) is applicable to the matter at hand.
4. With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well
as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5. In this respect, the Chamber noted that, according to the Claimant, on 29 August 2020, he
received an offer from the Respondent containing all the essentialia negotii, and that, when
he was at the airport ready to board the plane in order to join the club, he was informed by
phone by the Respondent’s CEO that the latter had changed its mind, decided to sign a
different player and was no longer interested in his services. As a result, the Chamber
noted that the Respondent requested to be compensated for breach of contract without just
cause.
6. Conversely, the Chamber took note of the Respondent’s position, which fundamentally
considered that there was no binding contract between the parties.
7. In view of the dissent, the Chamber considered that the main legal issue at stake is to
determine whether the parties were legally bound by an employment contract.
8. At this stage, the Chamber considered pertinent to recall the contents of art. 12 of the
Procedural Rules, according to which “3. Any party claiming a right on the basis of an alleged
fact shall carry the burden of proof. During the proceedings, the parties shall submit all
relevant facts and evidence of which they are aware at that time, or of which they should
have been aware if they had exercised due care” and “7. Evidence shall be considered with
free discretion, taking into account the conduct of the parties during the proceedings,
Page 5 of 8
REF 21-00208
especially a failure to comply with a personal summons, a refusal to answer questions and the
withholding of requested evidence.”
9. In this respect, the Chamber noted that the Respondent indeed sent an offer to the player on
29 August 2020, which contained the essentialia negotii, such as (but not limited to) the
parties to the contract and their role, the duration of the employment relationship and the
remuneration agreed upon between the parties. The Chamber noted that, following said
offer, the player would have been entitled to a salary of EUR 15,000 net.
10. However, the Chamber also noted that said document included a handwritten note from the
player, stating the following:
[“I, Lukas Grozurek, confirm hereby that I am willing to accept he present proposal on the
explicit condition that the contract will be fully to my satisfaction.]
11. In analysing the aforementioned note, the Chamber considered that its contents were
somehow ambiguous. Yet, in the opinion of the Chamber, this note shall be construed as an
indication that the parties were still subject to ongoing discussions about a possible new
employment relationship.
12. Furthermore, the Chamber also noted that, thereafter, the club sent to the player a draft of
an employment contract in docx. format, proposing a higher salary of EUR 16,500, and
including comments that were added using the “track changes” functionality. In the opinion
of the Chamber, the nature of this document also indicates that the parties were still under
negotiations since some vital elements of the contract, as the player’s remuneration, was still
to be established.
13. In other words, the Chamber considered that it could not be established beyond reasonable
doubt that the parties agreed upon all the necessary terms to conclude a valid and binding
contract.
14. For the sake of completeness, the members of the Chamber referred to the longstanding
jurisprudence for comparable cases, and held that in order for the Chamber to be able to
assume that the Claimant and the Respondent had indeed been bound to an employment
contract with the terms as described by the Claimant, it had to be established, beyond any
reasonable doubt, by documentary evidence, that said parties had indeed entered into a
labour agreement, and, if so, under which terms. In general, the members of the Chamber
held that they could not assume that an employment contract had been concluded by and
between the parties simply based on circumstances which, in general, may be likely but are
not certain to indicate the signing of a contract. In addition, the members of the Chamber
agreed that the DRC must be very careful with accepting documents, other than the
employment contract duly signed by the parties, as evidence for the conclusion of a contract.
Page 6 of 8
REF 21-00208
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Lukas Grozurek, is rejected.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 7 of 8
REF 21-00208
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 8 of 8