Labour Disputes
Texto da decisão
REF. FPSD-17210
Decision of the
Dispute Resolution Chamber
passed on 6 March 2025
regarding an employment-related dispute concerning the
player Ely Ernesto Lopes Fernandes
BY:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
CLAIMANT:
Ely Ernesto Lopes Fernandes, Cape Verde Islands
Represented by Pedro Macieirinha
RESPONDENT:
AS FC Buzau, Romania
pg. 2
REF. FPSD-17210
I. Facts of the case
1.
According to the Cape Verdean player Ely Ernesto Lopes Fernandes (hereinafter, the
Claimant or the Player) on or about 10 February 2024, the Romanian club AS FC Buzau
(hereinafter, the Respondent or the Club) sent him a pre-contractual offer (hereinafter, the
Offer) via WhatsApp.
2.
The Offer, which included what appeared to be the Club letterhead and its logo, provided
the following:
“The undersigned [the Club] with headquarters (…), legally represented by MOCANU
ANTONEL, as Executive Vice President brings to your attention the following offer:
1. CONTRACT PERIOD
i. This Contract starts on 12/02/2024 (day/month/year), and is entered into for a definite
period of time until 30/06/2024 (day/month/year).
2. REMUNERATION
• The Club undertakes to pay the Player for his professional services a monthly net
amount of 25000 lei (in words: twenty-five thousand lei).
• The remuneration of the participant in the sports activity will be paid prior to the date
of 15th of the current month for the previous month by bank transfer to their account.
3. OTHER PROVISIONS
3.1. Throughout the contract period the participant in the sports activity will benefit from
a meal on the days when they participate in training sessions.”
3.
Following the Offer document sent via WhatsApp, the parties exchanged information
regarding the Player’s trip and luggage, with an alleged spokesperson of the Club
instructing the Player to “pay at check-in and we’ll give your money back”. The message
provide inter alia as follows, with the Player asking “Who was waiting for me there” and the
Club’s spokesperson stating “Gabriel Cernat”.
4.
According to the Player, on 13 March 2024 the Club’s alleged spokesperson sent him the
so-called “Sports Activity Contract”, signed by the Club, which included inter alia the following
terms:
pg. 3
REF. FPSD-17210
“Article 2: Duration of the contract
i. This Contract starts on 28/02/2024 (day/month/year), and is entered into for a definitive
period of time until 30/06/2024 (day/month/year)
(…)
Article 4: Remuneration
i. The Club undertakes to pay the Player for his professional services a monthly net amount
of 15000 lei (in words: fifteen thousand lei)
• The remuneration of the participant in the sports activity will be paid prior to the date
of 15th of the current month for the previous month by bank transfer to their account.”
5.
On 19 March the alleged spokesperson of the Club sent to the Player the following
WhatsApp message:
“Hi Ely, I slept, I'll call you tomorrow. I spoke to the coach, and he told me that they don't
want to add anything to the salary. He says it would be good to play this period and
negotiate a good salary in the summer, here or at another team. I haven't left the house,
I have a cold...they went to the camp today at Curtea de Argeş, on Saturday at 12 they
play FCSB in Bucharest.”
6.
On 11 November 2024, the Player put the Club in default, requesting the payment of LEI
115,178.57 or, subsidiarily, LEI 69,107.14, representing a partial salary for February 2024
and the full salaries for March 2024 through (including) June 2024. The Player granted the
Club a deadline of ten days to fulfil its contractual obligations.
7.
On 14 November 2024, the Club provided an answer to the default letter rejecting the
Player’s entitlement to any amounts. The Club stated that the Offer was presented to the
Player by a person “who holds no official position with the club” and was not signed by the
Club’s legal representative. The Club stressed that the Offer did not have any legal value.
The Club further wrote in its letter that the Contract, while signed by its legal
representative, was not signed by the Player, and therefore was without legal effect. The
Respondent went on to write that the Player refused to provide an answer as to the
proposed Contract and due to his lack of signature they were unable to register the
Contract with the Romanian Football Federation (FRF) and to “legitimize” it.
8.
On 18 November 2024, the Player replied to the Club rejecting the latter’s answer and
reiterated the content of its default notice, giving the Club another deadline of ten days to
comply with its contractual obligations.
pg. 4
REF. FPSD-17210
II. Proceedings before FIFA
9.
On 22 November 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
10. According to the Player, the Offer and the Contract contained all the contractual essentialia
negotii to be considered as a valid and binding employment contract, namely (i) the date (ii)
the name of the parties (iii) the duration of the contract, (iv) the remuneration and (v) the
signature of the parties.
11. The Player argued that despite having upheld his obligations and performing services for
the Club until 30 June 2024, the Club failed to pay his monthly remuneration and continued
to do so following the Player’s default notices. The Player contended that he started his
activities at the Club, and that he was included in the Club’s WhatsApp group wherein the
training schedules and other Club related information was shared.
12. The Player requested the following relief:
“The Claim shall be accepted.
The Dispute Resolution Chamber shall condemn the Respondent to be in debt in the
following amounts, as per the Pre-Contract and to pay the Claimant:
• 17 days of February 2024 remuneration in the amount of 15 178,57 LEI.
• Monthly Remuneration of March 2024 in the amount of 25.000 LEI.
• Monthly Remuneration of April 2024 in the amount of 25.000 LEI.
• Monthly Remuneration of May 2024 in the amount of 25.000 LEI.
• Monthly Remuneration of June 2024 in the amount of 25.000 LEI.
TOTAL = 115 178,57 LEI equal to 23.152,63 EUR, plus 5% interest since the due dates until
effective payment.
Or subsidiary, to be in debt towards the Claimant in the following amounts, as per the
Contract:
• 17 days of February 2024 remuneration in the amount of 9.107,14 LEI.
• Monthly Remuneration of March 2024 in the amount of 15.000 LEI.
pg. 5
REF. FPSD-17210
• Monthly Remuneration of April 2024 in the amount of 15.000 LEI.
• Monthly Remuneration of May 2024 in the amount of 15.000 LEI.
• Monthly Remuneration of June 2024 in the amount of 15.000 LEI.
TOTAL = 69 107,14 LEI equal to 13.891,58 EUR, plus 5% interest since the due dates until
effective payment.
All according to the Pre-contract, the employment contract, the FIFA Statutes and
regulations, as well as the specificity of sport, under penalty of imposition of disciplinary
measures to the Respondent if the above obligation is not observed.”
b. Position of the Respondent
13. Despite being invited to do so, the Respondent failed to reply to the claim.
c. Information provided by the FRF
14. Following and inquiry by the FIFA general secretariat as to the Player’s history of transfers
and registration with the Club, as well as a copy of the alleged contract, the FRF provided,
inter alia, the following information:
“Regarding your e-mail below, please be informed that, according to our files and to our
club answer the player (…) has never been registered with [the Club].”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter, the Single Judge)
analysed whether she was competent to deal with the case at hand. In this respect, she
took note that the present matter was presented to FIFA on 22 November 2024 and
submitted for decision on 6 March 2025. Taking into account the wording of art. 31 of the
January 2025 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.
16. Furthermore, the Single Judge 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 January
2025 edition of the Regulations on the Status and Transfer of Players (hereinafter, the
pg. 6
REF. FPSD-17210
Regulations), she is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Cape Verdean
player and a Romanian club.
17. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 29 of
the Regulations, the January 2025 edition of said Regulations is applicable to the matter at
hand as to the substance.
b. Burden of proof
18. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
19. Having established the competence and the applicable regulations, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
20. The Single Judge then moved to the substance of the matter, and took note that it
concerned a claim by a player against a club regarding the alleged existence of an
employment relationship and outstanding remuneration.
21. In this regard, the Single Judge noted that the Player claimed to have entered into a valid
and binding employment relationship with the Club, which the latter failed to honour by
failing to remit his monthly remuneration.
22. The Single Judge also noted that the Club failed to reply to the claim despite having been
invited to do so, and therefore outlined that the decision will be made on the arguments
and evidence on file (cf. art. 21 par. 1 of the Procedural Rules).
pg. 7
REF. FPSD-17210
23. In this context, and considering that despite the Players arguments, neither the Offer or
the purported employment contract were signed by both parties, the Single Judge
acknowledged that, before addressing the Player’s entitlement to any of the amounts
claimed, her main task was to determine whether the parties had concluded a valid and
binding employment contract.
24. The Single Judge started by recalling the longstanding and well-established jurisprudence
of the Football Tribunal that dictates that in order for an employment contract to be
considered as valid and binding, apart from the consent of both the employer and the
employee (which is usually manifested by the signature to the relevant agreement), 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.
25. With the above in mind, the Single Judge referred to 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. Accordingly, the Single Judge underlined that, in casu, it was up
to the Player to prove that the employment relationship, on the basis of which he claimed
outstanding remuneration from the Club, indeed existed.
26. The Single Judge then proceeded to analyse the documentation submitted by the Player,
and noted that it consisted of the Offer allegedly sent by the Club, an employment contract
that was subsequently allegedly concluded with the Club and a WhatsApp conversation
with an alleged spokesperson of the Club.
27. After having carefully analysed the aforementioned documentation, the Single Judge first
noted that three of the four required elements in order to consider an employment
contract as valid and binding were present, namely, the duration of the contract, the
financial terms thereof (albeit different from the Offer to the alleged contract), and the
Player’s role as a professional football player.
28. Having established this, the Single Judge turned to the fourth necessary element, i.e., the
parties’ intention to be legally bound. In this regard, the Single Judge wished to recall that
it is also a well-established jurisprudence of the Football Tribunal that the actual signature
of the contract is not the sole element to determine whether there was an existing
contractual relationship between the parties. Instead, the validity and enforcement of the
contract should be established on the basis of a comprehensive understanding of all the
facts and actions taken by the parties within the context of their relationship.
29. Along these lines, the Single Judge further underscored that, under the well-established
jurisprudence of the Football Tribunal “the Dispute Resolution Chamber must be very careful
with accepting documents other than the employment contract, as evidence for the conclusion
of a labour relationship” (see, inter alia, DRC Decision of 9 May 2019, ref. 05190776 E, DRC
pg. 8
REF. FPSD-17210
Decision of 7 December 2023, Binene Sabwa Bwalya or DRC Decision of 12 September
2024, Galain-ES). Accordingly, the Single Judge underlined that decisions determining that
a contractual relationship was formed, without having a copy of a signed contract on file,
must require a high standard of proof.
30. With the above in mind, and considering that the Offer was not signed by either party and
that the Contract was only signed by the Club, the Single Judge proceeded to analyse
whether from the factual circumstances of the case and the evidence submitted it could be
inferred that the parties had mutually agreed to enter into an employment relationship.
31. In this regard, nonetheless, the Single Judge could not help but to notice that the Player’s
arguments regarding the conclusion of a valid and binding employment contract with the
Club were not backed by any evidence.
32. In particular, the Single Judge found that the Player did not produce any proof as to its
acceptance with the terms of the Offer allegedly sent by the Club. In other words, there
was no proof corroborating the return of the Offer to the Club, thus unequivocally
communicating the Player’s agreement to the aforementioned terms.
33. In addition, and with regard to the alleged contract, the Single Judge underscored that the
Player himself confirmed not having agreed with the financial conditions allegedly agreed
therein, arguing that the salary was not the same as in the Offer. As such, the Single Judge
found that the Player itself acknowledged that the purported contract was not a valid and
binding agreement between the parties.
34. Finally, the Single Judge also noted that the Player claimed to have executed the contract
for four months. The only evidence of such allegation on file is one photo of what appears
to be the Player with the Club’s uniform on a pitch. The Single Judge was of the opinion that
such piece of evidence was not sufficient to establish the conclusion and execution of a
valid and binding employment contract between the parties.
35. In light of the above, and considering the lack of evidence on file, the Single Judge deemed
that the Player did not meet his burden of proof in order to demonstrate that a valid and
binding contract was ever concluded or executed with the Club.
36. Therefore, the Single Judge decided to reject the Player’s claim in full.
d. Costs
37. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
pg. 9
REF. FPSD-17210
38. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
39. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-17210
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ely Ernesto Lopes Fernandes, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-17210
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. 12