Labour Disputes
Texto da decisão
REF FPSD-5042
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding an employment-related dispute concerning the player Aleksandr
Karapetyan
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
AWAD ALTHEBITY Khalid (Saudi Arabia), member
TIMERA Khadija (Senegal), member
CLAIMANT:
Aleksandr Karapetyan, Armenia
Represented by Ashot Kyureghyan & Alfonso León Lleó
RESPONDENT:
Nea Salamina Famagusta, Cyprus
Represented by George T. Christofides
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REF FPSD-5042
I.
Facts of the case
1.
On 27 December 2021, the Cypriot club (hereinafter: the Respondent) sent to the Armenian
player (hereinafter: the Claimant) an offer for signing an employment contract between the
parties (hereinafter: the Offer).
2.
The Offer reads as follows:
“We would like to confirm that we are interesting you to sign contract in our Club Nea
Salamina Famagusta FC, until the end of the football season 2021-2022, with option to the
Club to renew the contract for the football season 2022-2023
Our offer is:
5 month x 4.000 net EURO (20 .000 EURO Salary) for the football season 2021-2022
10 months 6.000 net EURO (60.000 EURO Salary) for the football season 2022-2023
Car provided by the Club for his own use for each year of employment
An accommodation provided by the Club fore· eh year of employment
Please note, that the offer is valid only if the Player is out of contract with any other team.
Also, the contract will be valid and signed once the Player comes to Cyprus and passes alI the
medical examination by the Club' doctor.
The deadline for reply to us is on 29th of December 21:00 Cyprus Time, If not, this proposal
is cancelled.”
3.
On 28 December 2021, the Claimant and the Armenian club Noah FC NGO terminated their
employment relationship by mutual agreement.
4.
On 17 January 2022, the Claimant sent a default notice to the Respondent on the following
terms:
“The Offer clearly shows your genuine interest in retaining the services of the Player and
contains all the essential terms for the employment relations, therefore it is to be considered
per sea valid player contract between your club and the Player, the starting date of which is
27th of December 2021.
However, to our surprise, you have NOT sent air tickets to the Player up till this moment so
he would be able to join the team and nor continued communication with the Player's
representative clearly conducting in evasive manner. As a result, thereof, we kindly ask you
to send the air tickets to the Player until 20th of January 2022, so he could join your club.
We kindly remind you, that failing to do so will result in breach of contract and, consequently,
termination of it without just cause by your club with all the consequences resulting thereof”
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5.
On 21 January 2021, the Claimant sent a default notice to the Respondent underlining that
the Respondent had terminated the employment contract without just cause and requested
the amount of EUR 80,000 as compensation.
6.
On 4 February 2022, the Claimant signed an employment contract with the Armenian club
Alashkert valid until 1 June 2022. The Claimant’s salary is Armenian Dram (“AMD”) 150,000
per month
II. Proceedings before FIFA
7.
On 3 February 2022, 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
8.
The Claimant submits that “the acceptance of the Contract by the Player shall be reviewed in
the scope of his actions implied-in-fact, particularly, the Player has sent the offer back to the
Club on the grounds of the offer sent to him”.
9.
The Claimant further submits “the pre-Contract signed by and between the parties clearly
contained the basic elements of a contract and the so called essentialia negotii is considered
a valid employment contract”.
10. In the Claimant’s view, it is undisputed that, following a previous period of negotiations, the
Respondent offered an employment contract that was accepted by the Player. The
Respondent refers to art. 10.1 of the Swiss Code of Obligations (“SCO”) which states "A
contract concluded in the parties ' absence takes effect from the time acceptance is sent."
11. The Claimant considers that “it is crystal clear that the Parties entered into a valid and binding
Contract on 27th December 2021, in accordance with FIFA DRC jurisprudence and Swiss law,
which was breached on 20th of January 2022 after the deadline for sending the air tickets
has passed”.
12. In relation to the conditions imposed on the Offer, the Claimant argues that the Respondent
may not condition a contract upon the positive medical test.
13. As for the acceptance, the Claimant states that “This condition is clearly met, as according to
the correspondence between the Player's agents Annex 3), the Player signed and sent back
the Contract on the same day, namely on 27th of December 2021”
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14. The Claimant states that he immediately contacted his previous club for mutual termination
of its employment contract, which was done on the following business day. Thus, he states
that he was out of binding contractual relations with his former club.
15. The Claimant concludes that the Respondent “unilaterally terminated the Contract on 20th
January 2022 and the Player has never received any salary from the Club. Therefore, the
residual value of the Contract is equal to 80,000 Eur NET” and in consideration of the
Respondent’s behaviour he is entitled to additional compensation.
16. The Claimant filed the following requests for relief:
a. To accept this claim;
b. Find, that the Respondent terminated the Contract without just cause;
c. To issue a decision requiring the Respondent to:
i. Pay the Claimant the amount of 80 000 Eur NET, as per article 17.1 of the FIFA RSTP, plus
five per cent (5%) per annum interest rate, starting from 20 of January 2022 until its effective
and entire payment;
ii. Pay the Player the amount of 32 000 Eur NET, based on the specificity of sport and (SCO)
Article 337.c par. 3, plus five percent (5%) per annum interest rate, starting from date in
which the FIFA decision is communicated;
d. To impose the Respondent a ban on registering players for two entire and consecutive
registration periods as per article 17.4 of the FIFA RSTP;
e. To fix a sum to be paid by the Respondent, in order to contribute to the payment of the
Claimant’s legal fees and costs in the amount of Swiss Francs;
f. To order the Respondent to assume the entirety of the FIFA DRC administration and
procedural fees, if any.
b. Position of the Respondent
17. According to the Respondent, the Offer would only be valid as soon as the Claimant and the
Respondent signed a contract.
18. The Respondent also argues that the Claimant “never arrived in Cyprus to undergo the
necessary medical examinations before signing any contract with the Respondent neither he
signed a contract with the Club. Consequently, the Claimant and the Respondent had never
signed a valid contract and the DRC must reject the Claimant's claim.”
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19. The Respondent submits that the DRC “has no competence to deal with the dispute as there
is no valid contract and/ or any contract signed between the Claimant and the Respondent
and therefore article 22 (1)(a) is not applicable”.
20. The Respondent states that the Claimant has not provided any evidence showing that the
Claimant has answered to the Respondent by 29 December 2021.
21. The Respondent further states that it “has never undertook the obligation to buy tickets to
the player to arrive in Cyprus and sign his contract. On the contrary, it was the player's
obligation to inform the Club that he is a free agent and then, it was his obligation to travel
to Cyprus in order to undertake medical examinations by the club's doctor and if fit, then
both parties would have signed a valid contract”.
22. Alternatively, the Respondent submits that “even if there was a valid pre-contractual
agreement, the Club has never explicitly terminated the pre-contract but it was the Claimant
who unilaterally terminated the agreement by choosing not to travel to Cyprus and undertake
medical examinations on the premise that the club had an obligation to buy him tickets”.
23. Lastly, the Respondent submits that “if the DRC were to find that the there was a valid
contract between the parties to the dispute, the Club submits that the player should be
compensated only for the period regarding season 2021 / 2022. In other words, he should
receive the amount of 20.000 euros only. The rationale behind the Club's position is that it
was not guaranteed that the Club would have exercised its option to renew the contract with
the player”.
24. The Respondent filed the following requests for relief.
1. Reject the Claim of the Claimant.
2. Declare that no pre-contract agreement was concluded between the parties.
3. Declare that no definite contract was signed between the parties
Alternatively,
4. Declare that the pre-contract agreement was breached by the Claimant for reasons that
cannot be attributed to the Respondent, due to his failure to travel in Cyprus and undertake
medical examinations.
c. Unsolicited correspondence by the Claimant
25. When submitting his employment status after the closure of investigation by FIFA general
secretariat, the Claimant filed additional unsolicited submissions.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 3 February 2022 and submitted for decision
on 05 May 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.
27. 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
employment-related dispute with an international dimension between an Armenian player
and a Cypriot club.
28. 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 3 February 2022, 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
29. 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.
c. Merits of the dispute
30. 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
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REF FPSD-5042
31. The foregoing having been established, the Chamber noted that the parties’ fundamental
disagreement is whether the Offer can be considered a valid and binding employment
contract.
32. 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.
33. 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 player to prove that
the employment relationship, on the basis of which he claimed compensation for breach of
contract from the club, indeed existed.
34. In this context, the Chamber turned its attention to the documentation brought forward by
the parties and acknowledged that there was no clear and indubious evidence that the
Claimant indeed accepted the Offer, as there is no confirmation that he sent the document
back to the Respondent in proof of his acceptance. Furthermore, the Chamber acknowledged
that it is undisputed that the Claimant failed to travel to Cyprus as per the terms of the Offer.
35. In light of the above and taking into consideration the club’s argumentation, the Chamber
understood that the player did not meet his burden of proof in order to demonstrate that an
employment contract was indeed concluded with the club. In particular, the Chamber
deemed that the player could not establish based on substantial evidence that he adopted
the reasonable precautions that could be expected from him when entering a labour
relationship. Therefore, the Chamber decided that no valid and binding employment contract
had been concluded between the club and the player and the latter’s claim had no legal basis.
36. For the above, the Chamber decided that the claim shall be rejected.
d. Costs
37. 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.
38. 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.
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39. 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, Aleksandr Karapetyan, is admissible.
2.
The claim of the Claimant is rejected.
3.
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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