Labour Disputes
Texto da decisão
REF. FPSD-14925
Decision of the
Dispute Resolution Chamber
passed on 8 August 2024
regarding an employment-related dispute concerning the player Manisha
Kalyan
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Roy VERMEER (The Netherlands), Member
Calum BEATTIE (Scotland), Member
CLAIMANT:
Manisha Kalyan, India
Represented by SILA International Lawyers
RESPONDENT:
Brooklyn FC, USA
pg. 2
REF. FPSD-14925
I. Facts of the case
1.
On 15 February 2024, the Indian player, Manisha Kalyar (hereinafter: the Player or the
Claimant), and the club from the United States of America, Brooklyn FC (hereinafter: the
Club or the Respondent) signed a document entitled “Non-Binding Player Offer Letter”
(hereinafter: the Offer).
2.
In accordance with the Offer, the Respondent and the Claimant agreed inter alia to the
following terms:
“We are pleased to present this non-binding Standard Offer Letter (“Offer”). This Offer is
made as of the 16th day of February, 2024 (“Effective Date”), by Brooklyn Football Club LLC
d/b/a Brooklyn FC (the “Club”), a professional soccer club competing in, and operating
under, the rules and regulations of the USL Super League, a women’s professional soccer
league in the United States with its inaugural season commencing in August of 2024
(“USL”), to you, Manisha, an Indian professional soccer player (the “Player”) whose date of
birth is November 27, 2001.
1. Player Agreement Terms. Upon Player’s acceptance of this Offer, within 10 days of the
Effective Date, a USL Super League Standard Player Agreement (the “SPA”) will be
submitted to the player incorporating (in part) the following terms.
a. Term: Guaranteed; July 1, 2024 through June 30, 2027
b. 2024/2025 Compensation:
i. Salary: $60,000 annually ($5,000 per month gross)
[…]
v. Compensation Period: Unless the SPA is terminated for cause or by mutual
agreement, the salary […] listed above would be provided to the Player between July
1, 2024 and June 30, 2025.
c. 2025/26 Compensation (unilateral club option – if option is exercised by club):
i. Salary: $66,000 annually ($5,500 per month gross)
[…]
v. Compensation Period: Unless the SPA is terminated for cause or by mutual
agreement, the salary (…) listed above would be provided to the Player between
July 1, 2025 and June 30, 2026.
d. 2026/27 Compensation (unilateral club option – if option is exercised by club):
i. Salary: $70,000 annually ($5,833 per month gross)
[…]
v. Compensation Period: Unless the SPA is terminated for cause or by mutual
agreement, the salary […] listed above would be provided to the Player between July
1, 2026 and June 30, 2027.
e. Travel: The Club shall provide roundtrip airfare to and from Player’s home city at the
commencement of the pre-season and following the conclusion of each season.
f. Performance Bonus:
i. Team Performance Bonuses:
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REF. FPSD-14925
A. Super League Champions (Post Season): $5,000
ii. Individual Awards:
A. Super League Most Valuable Player: $5,000
[…]
5. Term and Termination. The rights and obligations of the Parties contained in this Offer
shall expire upon the execution of the SPA. Either Party may terminate this offer after 30 days
following the Effective Date without any obligation or liability to the other Party.
Player may accept this Offer by signing below and returning to Club’s authorized
representative via email at mm********@brooklynfootballclub.com.
The Club has executed this Offer as of the Effective Date above by:
Club:
[Signature of Respondent’s CEO]
By signing below, the Player acknowledges that she has read, understands, and agrees to the
terms of this Offer, and acknowledges that she had an opportunity to consult an attorney,
legal representative, and/or registered FIFA player agent regarding the details and legal
obligations of this Standard Offer Letter.
ACCEPTED February 15, 2024 by:
3.
[Name and signature of Claimant]”
On 1 May 2024, the Claimant’s legal representative sent a default notice to the Respondent,
indicating the following:
“the Club has to send the USL Super League Standard Player Agreement to the Player
within ten days of the pre-contract's signature. However, almost two and a half
months after the signature, February 15, 2024, the Club still has not sent anything
regarding the above-referred subject to the Player or her agent.
Having said that, I kindly ask you to fulfill your obligations concerning the abovereferenced matter and send […] the USL Super League Standard Player Agreement in
the next 10 days.
Additionally, please inform us of what steps we need to undertake to start the
corresponding visa process and the approximate date of the Player's incorporation
into the team.”
4.
On 28 May 2024, the Claimant’s legal representative sent a new letter, granting the
Respondent 5 days to remedy the previously stated issues.
5.
On 6 June 2024, the Claimant’s legal representative sent a letter to the Respondent
indicating that she considered the Offer had been unilaterally terminated by the
Respondent without just cause with immediate effect, citing the Respondent’s failure to
meet its contractual obligations.
pg. 4
REF. FPSD-14925
6.
On 20 June 2024, the Claimant signed a new contract with the Greek club, PAOK, valid until
31 May 2025 and stipulating compensation in the amount of EUR 14,000, payable in 10
equal monthly instalments from 31 August 2024 through 31 May 2025.
II. Proceedings before FIFA
7.
On 12 June 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
8.
According to the Claimant, the “pre-contract”, as she termed it, was a valid and binding
employment contract containing all essential elements, inter alia, it was signed by the
Respondent’s CEO and sent back via WhatsApp on 23 February 2024, in addition to being
signed by herself.
9.
The Claimant further argued that the Respondent’s failure to comply with its obligations
under the Offer constituted a breach of contract, citing a number of decisions from FIFA
and CAS in support of her arguments.
10. In light of the foregoing, the Claimant requested the amount of USD 60,000 as
compensation, plus 5% interest p.a. as from 6 June 2024.
b. Position of the Respondent
11. Despite being invited to do so, the Respondent failed to reply to the claim.
pg. 5
REF. FPSD-14925
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 12 June 2024 and submitted for decision on
08 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.
13. 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 an Indian player
and a club from the United States of America.
14. 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 12 June 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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
16. 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. 6
REF. FPSD-14925
i. Main legal discussion and considerations
17. The Chamber then moved to the substance of the matter, and took note of the fact that it
concerns the validity and binding nature of a document allegedly concluded between the
parties on 15 February 2024.
18. In this context, the Chamber acknowledged that it its task was to establish whether the
Offer constituted a valid and binding employment contract and the consequences of such
a determination in view of the specific facts of this case.
19. 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 as 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.
20. In casu, after a thorough analysis of the documentation on file, the Chamber concluded
that all such elements were included in the document filed by the Claimant. In other words,
the Chamber understood that, despite its name (i.e., the “Non-Binding Player Offer Letter”),
the legal document concluded by the parties indeed included all the relevant information
at the basis of an employment relationship between contractual parties. Specifically, the
document contains the names and signatures of both parties, provides for the duration of
the employment relationship and the specific remuneration payable to the Claimant,
including salary, performance bonuses, and benefits. Moreover, it clearly indicates that the
Offer is made in consideration of the Claimant’s status as a professional football player and
the Respondent’s status as a professional football club actively competing and participating
in the USL Super League, thereby establishing, in the Chamber’s view, that the subject of
the Offer is the Claimant’s employment by the Respondent.
21. The Chamber indeed took note of the fact that the document itself was explicitly labelled
as a “Non-Binding Player Offer Letter” at the outset and included language intended to
define the nature of the document, evidently designed to avoid creating any legal
obligations between the parties. However, the Chamber was satisfied that the Offer’s
inclusion of such detailed terms covering all essential elements of a valid and binding
contract was enough to overcome any naming custom or other attempt at subverting the
true nature of the document in question.
22. In addition to the foregoing, the Chamber also noted the precise wording of the following
clauses of the Offer, which are worth mentioning:
“Upon Player’s acceptance of this Offer, within 10 days of the Effective Date, a USL Super League
Standard Player Agreement (the “SPA”) will be submitted to the player incorporating (in part) the
following terms.
pg. 7
REF. FPSD-14925
[…]
By signing below, the Player acknowledges that she has read, understands, and agrees to the
terms of this Offer, and acknowledges that she had an opportunity to consult an attorney,
legal representative, and/or registered FIFA player agent regarding the details and legal
obligations of this Standard Offer Letter.
ACCEPTED February 15, 2024 by: […]”
23. 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. In particular, the Chamber
observed that, in accordance with the documentation provided, the Claimant complied
with the formal pre-requisite of accepting explicitly and in writing the Respondent’s
proposal of the club, in accordance with the language quoted above, and thereby
unmistakably conveyed her agreement to the establishment of a valid and binding
employment relationship with the club.
24. The Chamber underscored that by explicitly manifesting her acceptance of the Offer (i.e.,
returning the signed Offer), and, subsequently following up with the Respondent within a
reasonable time in light of its inaction, the Claimant confirmed her continued interest in
rendering her services to the Club. Conversely, the Respondent failed to act in accordance
with its stated intent to engage the Claimant’s services and execute all necessary
formalities.
25. Thus, in view of the foregoing, the Chamber concluded that the Offer (i.e., the “Non-Binding
Player Offer Letter”) is in fact a valid and binding employment contract and shall be
considered in the case at stake, as the contractual basis of the present dispute, and that
the Respondent failed to respect its obligations under said contract.
26. Hence, the Chamber found that the Respondent breached the contract in question and is
liable to the Claimant for the consequences deriving from such breach.
ii. Consequences
27. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
28. The Chamber observed that there was no outstanding remuneration at the time of the
termination.
29. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing so,
the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
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REF. FPSD-14925
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.
30. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment 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 employment contract at
the basis of the matter at stake.
31. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
32. 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 contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 60,000 (i.e., the guaranteed salary for the 2024/2025
season) serves as the basis for the determination of the amount of compensation for
breach of contract.
33. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means of
which she would have been enabled to reduce her 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 her damages.
34. Indeed, the Claimant found employment with PAOK. In accordance with the pertinent
employment contract, the Claimant was entitled to approximately USD 15,038 (EUR 14,000)
for the 2024/2025 season. Therefore, the Chamber concluded that the Claimant mitigated
her damages in the total amount of USD 15,038.
35. Consequently, on account of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the Respondent must pay the amount of USD
44,962 to the Claimant (i.e., USD 60,000 minus USD 15,038), which was to be considered a
pg. 9
REF. FPSD-14925
reasonable and justified amount of compensation for breach of contract in the present
matter.
36. Lastly, taking into consideration the Claimant’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 6 June 2024 until the date of effective payment.
iii. Compliance with monetary decisions
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
d. Costs
42. 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.
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REF. FPSD-14925
43. 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.
44. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-14925
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Manisha Kalyan, is partially accepted.
2.
The Respondent, Brooklyn FC, must pay to the Claimant the following amount(s):
- USD 44,962 as compensation for breach of contract plus 5% interest p.a. as from 6 June
2024 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 art. 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
pg. 12
REF. FPSD-14925
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