Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, 17 January 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
S tefano S artori (Italy ), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Lukas z Gikiew icz, Poland
represented by Mr Georgi Gradev
as Claimant
against the club,
CS Gaz Metan Medias , Romania
represented by Ms Anca Alina Iordanescu
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1. On 27 June 2019, the Polish player, Lukasz Gikiewicz (hereinafter: the player or the
Claimant), and his agent concluded a mandate via WhatsApp valid until 1 August 2019
according to which the agent had the exclusive right to ”bring a proposal and negotiate
with any club in Romania”.
2. On 30 June 2019, the agent forwarded to the player, via WhatsApp, an unsigned
contractual offer dated 29 June 2019, made on the Romanian club, CS Gaz Metan
Medias’ letterhead (hereinafter: the club or the Respondent), titled as: “proposal is to
conclude with you an Agreement with the following main details”. The player sustained
that “The metadata of the Offer provides that it has been created by “Vali” on 30 June
2019 at 1:35 a.m.”.
3. Between 2 July and 4 July 2019, the player and his agent exchanged via WhatsApp and
discussed the amendments to be made on drafted copies of “Sports activity
agreements”, the agent allegedly negotiating directly with the club the content of the
final agreement via WhatsApp with an alleged representative of the club named “Vali
Iordane…”).
4. On 5 July 2019, the player signed a “Sports activity agreement” allegedly communicated
as an offer received from the club valid as from 5 July 2019 until 30 June 2021
(hereinafter: the contract) according to which the player was supposed to play
“exclusively for the first team of the club”.
5. Article 4.1. of the contract stipulated the following:
6. Moreover, article 4.2.1. of the contract mentioned various bonuses among which a
reward for winning the national title subject to the player’s participation “at least 45
minutes in at least 50% of the official games”.
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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7. In addition, article 5.3. of the contract stipulated that the player was entitled to :
8. For its part, article 8. d) of the contract held that it ended “by unilateral termination,
with just cause, in accordance with the dispositions of the applicable sports regulations
according to the decisions of the competent sports committees”.
9. Article 11 &12 of the contract further mentioned that :
10. Consequently, on 5 July 2019, the player sent the contract signed by him to the agent
and reiterated it by sending the same document directly to the club’s email address on
8 July 2019 available in the “UEFA Adress List 2018/2019 – First Division Clubs in
Europe”.
11. On 12 July and 17 July 2019, the player contacted the club via email and fax recalling
that, according to him, “the parties have entered into a valid and binding professional
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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player contract” asking to be informed on the next steps and warning the club of
further legal steps in case of no reply by 22 July 2019, to no avail.
12. On 18 July 2019, the player informed the club of his venue in Romania “to tender his
services in person” and provided the travel details of his itinerary of 22 July 2019 in
order to visit the club on 23 July 2019, asking the club to arrange transfer and
accommodation, still to no avail.
13. On 23 July 2019, the player visited the club in the company of his lawyer following
which, according to the player, the club denied having singed any contract with him.
14. In continuation, the player contacted the club on the same day interpreting the club’s
attitude as from 8 July 2019 onwards as an “early termination of the contract without
just cause (…) [and] understands from all the circumstances that this exclusion without
notice is definitive and that the contract has ended today. The particular behavior of
[the club] indicates that the fixing of a new time limit for subsequent performance
would be in vain”, again to no avail.
15. On 2 August 2019, the player lodged a claim against the club in front of FIFA,
requesting it to pay him compensation for breach of contract, as follows:
i.
EUR 116,000 for the 2019-2020 season, broken down as follows:
- EUR 96,000 as 12 monthly salaries of EUR 8,000 each;
- EUR 20,000 as 2 fix installments of EUR 10,000 each.
ii.
EUR 128,000 for the 2020-2021 season, broken down as follows:
- EUR 108,000 as 12 monthly salaries of EUR 9,000 each;
- EUR 20,000 as 2 fix installments of EUR 10,000 each.
iii.
EUR 7,200 for both seasons as 24 monthly rents of EUR 300 each.
iv.
Croatian Kuna (HRK) 3,537 as “the return air ticket from Croatia to Romania”.
v.
Romanian New Lei (RON) 998.57 as “accommodation, meals and transport”
expenses during his venue in Romania.
The player further requested interest at a rate of 5% p.a. over the aforementioned
amounts as from 23 July 2019 as well as sporting sanctions to be imposed on the club.
16. In his claim, the player held that in his opinion the signature of a party is not deemed
to be among the essentialia negotii of an employment contract and referred to various
FIFA and CAS jurisprudence.
17. In particular, the player sustained that due to the importance of the correspondence
exchanged with the club prior to 5 and 8 July 2019, the parties “entered into an
employment contract valid as of 5 July 2019 until 30 June 2021 in accordance with the
terms set out in [the contract]” and underlined that the contract had “the four
essentiala negotii of a contractual relationship The duration of the contract ; the
subordination of the employee to the employer; the personal performance and the
wages”.
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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18. In addition, the player held that he had “no reasons to believe in good faith, based on
the overall circumstances, that Mr Valentin Iordanescu – Vali (…) was not entitled to
represent [the club]”, he underlined that the club never reacted to his various
solicitations referring to the whole negotiation on-going process and, as a
consequence, explained that “a principal will be bound by the acts of a third person,
if the principal is aware, acknowledges, and tolerates that that person is acting as
its/his/her representative”.
19. Furthermore, the player held that the club breached several provisions of the contract
between 8 and 23 July 2019 by failing to “ensure appropriate conditions for the player
(for the training, official matches, recovery/ recuperation) and organize training camps
or other intensive sports training forms”.
20. In addition, the player reminded his various attempts to render his services to the club,
however to no avail.
21. Consequently, the player deemed that the club had obviously no longer been
interested in his services by allegedly sustaining, on 23 July 2019, that no valid
employment contract existed between the parties and by not requesting the relevant
ITC, such behavior constituted a breach of contract.
22. In its reply to the claim, the club rejected the player’s allegations entirely as it “never
offered, by its legal representatives, to contract with [the player]. An offer was never
intended or send by [the club], nor a contract”.
23. In continuation, the club explained that due to the legal proceedings the club incurred
in the past under Romanian insolvency law, “the judicial administrator is in charge of
managing and operating the properties of the entity under administration, i.e. it is
entitled to issue, sign, execute and file any documents with respect to the performance
of its obligations under the Romanian Insolvency Law”.
24. As a consequence, the club deemed that “In view of the foregoing, (…) none of the
indicated documents were signed by anybody else but [the player], except for the offer
which was not signed at all”.
25. In addition, the club held that the player did not provide any proof as to the
communication of any documents directly from the club and, as well, that the contract
provided by the player mentioned itself “in it's letterhead the details about the
reorganization phase of [the club] and in it's signature part the name and the
attributes of [the] special administrator”.
26. Furthermore, the club referred to a decision of the competent Romanian court in
insolvency matters which provided that “any contract shall be negotiated by the special
administrator, shall be previously approved by the Creditors Committee and shall be
signed by the judicial administrator” and, as a consequence, that “nobody in the club's
organizational chart, knowing this decision and it's enforceable effect, could not
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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assume the responsibility of noncompliance with the court decision and to negotiate
and to contract on behalf of [the club]”.
27. Moreover, the club referred to the player’s registration with the Romanian club FC
FCSB as from 1 August 2019, as well as its attempt to register with another Romanian
club providing various press and media information published on the internet.
28. In this respect and according to the information available in the Transfer Matching
System (TMS), the player was registered with the Romanian club FC FCSB on 1 August
2019.
29. In, the club’s opinion, “if [the player] really believed that he concluded a valid contract
with the [the club] he couldn’t have signed another contract, covering the same period,
with another club, without resorting to the appropriate committees of the Romanian
Football Federation, for a decision confirming that the contract has been terminated”.
30. Finally, the club held the only mention of the name “Vali” could not link said name to
any “in-house” counsel of the club which the club denied to have.
31. Finally, after being asked by FIFA, the player sustained that he signed an employment
contract with the Romanian club FC FCSB valid as from 1 August 2019 until 30 June
2020, entitling him to a monthly salary of EUR 8,500. In this respect, the player
informed FIFA that said contract had been allegedly terminated on 20 September 2019.
II. Cons iderations of the Dis pute Res olution Cham ber
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 2 August 2019.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020),
the Dispute Resolution Chamber shall adjudicate on employment-related disputes with
an international dimension between a Polish player and a Romanian club in relation
to an alleged employment relationship between the two aforementioned parties
invoked by the player.
3.
Furthermore, 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 (edition 2020),
and considering that the present claim was lodged on 2 August 2019, the June 2019
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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version of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, the
members of the Chamber started by acknowledging that, according to the Claimant,
he had, on 5 July 2019, duly signed an offer received from the Respondent, sent it back
to it and, consequently, concluded an employment contract with the Respondent for
two years, in accordance with which the Respondent allegedly had undertaken to pay
him the total amount of EUR 251,200 over two years. The Respondent had allegedly
not been interested in his services after the alleged signing of the employment contract
and, therefore, the Claimant asked to be awarded, inter alia, compensation for breach
of contract by the Respondent in the amount of EUR 251,200.
5.
The Dispute Resolution Chamber furthermore took due note of the fact that the
Respondent, for its part, had categorically denied the conclusion of an employment
contract with the Claimant. The Respondent declared that no offer nor any contract
had been intended or sent to the player by any of its legal representatives.
Consequently, no employment contract with the Claimant having been signed by it,
the Respondent rejected the Claimant’s allegations in full.
6.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them had been concluded, the
members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall carry
the respective burden of proof. The application of the said principle in the present
matter led the members of the Dispute Resolution Chamber to conclude that it was up
to the player to prove that the employment contract, on the basis of which he claims
compensation for breach of contract from the Respondent, indeed existed.
7.
Having stated the above, the Dispute Resolution Chamber recalled that the Claimant
maintained that, on 30 June 2019, his agent in charge of bringing a proposal and
negotiate with any club in Romania, forwarded him an unsigned contractual offer
dated 29 June 2019, made on the Respondent’s letterhead and containing the main
contractual details. In this respect, the members of the Chamber took note that the
Claimant sustained, and allegedly evidenced, that “the metadata of the Offer provides
that it has been created by “Vali” on 30 June 2019 at 1:35 a.m.”.
8.
In addition, the Chamber acknowledged as well that, in the Claimant’s opinion, several
amendments of the alleged offer were discussed and exchanged between the parties,
communicated exclusively via the agent to the Respondent’s alleged representative
named “Vali Iordane”, as evidenced by the Claimant, and leading to the final version
which he duly signed and sent to the Respondent’s official contact details, i.e. on 5 July
2019.
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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9.
Moreover, the Chamber recalled that in the Claimant’s opinion, the signature of a party
is not deemed to be among the essentialia negotii of an employment contract, which,
in the present case, was with no doubts contained in the latest version of the contract
signed by him on 5 July 2019.
10. Having duly taken note of the aforementioned explanations and documentation
presented by the Claimant, the members of the Chamber held that in order for the
Chamber to be able to assume that the Claimant and the Respondent had indeed been
bound through a contractual relationship with the terms as described by the Claimant,
it had to be established, beyond doubt, by documentary evidence, that the said parties
had indeed entered into a respective 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 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 Dispute
Resolution Chamber must be very careful with accepting documents, other than the
employment contract, as evidence for the conclusion of a contract.
11. In respect of the foregoing, the members of the Chamber observed that, right from
the beginning of the alleged negotiations between the parties, the Claimant failed to
provide a version of the contract signed by the parties. In addition, the Chamber
recalled that, after a throughout analysis of the evidence on file, there is no evidence
as to an offer coming directly and officially from the club to the player, the only
element being the properties of an electronic file deeming said document to have been
created by an individual allegedly linked to the Respondent. The Chamber further
observed that it appears everything was done through and via the agent.
12. In this respect, the Chamber underlined as well that the Claimant did not provide any
correspondence or evidence confirming his allegations as to a communication
addressed to him, issued directly by the Respondent, prior to and after the alleged
conclusion of the contract.
13. As a consequence, the Chamber had to conclude that the documents and evidence
presented by the Claimant did not prove beyond doubt that the Respondent and the
Claimant had validly entered into an employment contract.
14. What is more, even if it would have been possible to establish on the basis of the
documents on file, other than an employment contract duly signed by the parties, that
the parties had entered into a labour agreement, the Chamber wished to highlight
that it would need to be in possession of such labour agreement in order to be able to
properly assess the claim of the Claimant.
15. As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove beyond doubt that an employment contract had validly
been concluded between himself and the Respondent, there was no possibility for the
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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Chamber to enter into the question whether or not such alleged employment contract
had been breached.
16. All the above led the Dispute Resolution Chamber to conclude that the claim of the
player has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Lukasz Gikiewicz, is rejected.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Lukasz Gikiewicz, Poland / Club CS Gaz Metan Medias, Romania
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