Dispute Resolution Chamber
Texto da decisão
REF FPSD-1933
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Edrisa Lubega
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Edrisa Lubega, Uganda
Represented by Mr Gauthier Bouchat and Mr Sven Demeulemeester
RESPONDENT:
Maccabi Netanya FC, Israel
Represented by Mr Roi Rozen
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REF FPSD-1933
I.
FACTS OF THE CASE
1.
On 9 December 2019, the Claimant signed a contract with the Estonian club Paide
Linnameeskond, valid between 9 December 2019 and 15 November 2022.
2.
On 19 January 2021, the Claimant received a document referred to as ‘contract offer’
(hereinafter: the offer), signed by Mr Niv Goldstein, CEO, from the Respondent, which inter
alia contained the following clauses:
‘1. As we informed you, the club is willing to join the player to our club from his current
club for the 2020/21 playing season and thereafter.
2. Under and subject to these circumstances, Fc Maccabi Netanya is willing to check the
possibility to join the player to our club, for the aforesaid term, under the conditions as
mentioned hereunder.
3. Our offer is subject to the transfer of the player from his current club to our club, the
reception of the player's ITC (international transfer certificate) and in case the player will
perform successfully our medical examinations and execute a definitive employment
agreement with the club’
4. Under our offer, the club would like to offer the player a contract for 2 seasons (20/21
& 21/22) with an option to extend the contract for another 3 seasons (22/23, 23/24 &
24/25) (by noting the player in a formal letter until 15.6.22) under the terms as follows:
5. During the 2020/21 season, the player will be entitled to receive 4 monthly salaries of
€5,000 (net) per month.
6. During the 2021/22 season, the player will be entitled to receive 10 monthly salaries of
€5,000 (net) per month.
7. In case that club will extend the contract, during the 2022/23 season, the player will be
entitled to receive 10 monthly salaries of €5,500 (net) per month.
(…)
10. In case that the club will extend the contract, during the 2023/24 season, the player
will be entitled to receive 10 monthly salaries of €6,000 (net) per month.
(…)
13. In case that the club will extend the contract, during the 2024/25 season, the player
will be entitled to receive 10 monthly salaries of €6,500 (net) per month.
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(…)
16. During the period of the contract, the team will take care of the Player's housing
arrangements (until total budget of 5,000 ILS per month).
(…)
18. During the period of the contract, the player will be entitled to receive a car, in a
category that the team will decide.
19. The team is obliged to buy 1 round trip flying ticket to Uganda (economy category)
every season during the period of the contract including the year of 2020/2021.
(…)
25. This offer is valid for the following 48 hours. Thus, your prompt respond and
confirmation of the aforesaid by signing hereunder is appreciated.’
Furthermore, an annex to the offer holds the following clause:
‘The parties hereby agree to maintain confidentiality regarding the content of this
agreement, this Annex and about the period that the player will be in the club. The
foregoing is a fundamental condition of this Agreement and this Annex, and its breach
constitutes a fundamental breach of the Agreement and this Appendix, which will entitle
the team to all remedies by law.
I, the undersigned, by signing hereunder agree and accept the terms as specified
hereinabove and understand that this offer is obligated and breach of this offer by me will
entitle the club to all remedies by FIFA law.’
3.
On 21 January 2021, the Claimant returned a signed copy of the offer, via his agent, to the
Respondent.
4.
On 24 January 2021, the Respondent informed the Claimant’s agent that it ‘decided to
cancel the offer for the player’, to which the Claimant replied on 25 January 2021 that he
deemed that the offer was binding between the parties, as he had duly and timely accepted
it.
5.
After – on 28 January 2021 - the Respondent denied the allegations of the Claimant, on 29
January 2021, the Claimant informed the Respondent that it had breached the contract
and that he would initiate legal proceedings.
6.
On 8 February 2021, after having returned to his initial club Paide Linnameeskond (with
which club the Claimant had a valid contract until 15 November 2022), the Claimant was
loaned to the Czech club FK Pribram. With the latter club, the Claimant – on 4 February
2021 - concluded a contract valid between 8 February 2021 and 30 June 2022, based on
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REF FPSD-1933
which he was entitled to a monthly salary of EUR 2,500 and during which period his
contract with Paide Linnameeskond was suspended.
II.
PROCEEDINGS BEFORE FIFA
7.
On 4 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
8.
The claim of the Claimant
The Claimant lodged a claim against the Respondent, asking that the Respondent be
ordered to pay him the following amounts:
- EUR 70,000 as ‘residual salaries’;
- Israeli New Shekel (ILS) 80,000 as ‘housing allowances’;
- 5% interest p.a. as from the date of the breach of contract until the date of effective
payment.
9.
Alternatively, in case the DRC would deem that the Claimant did not become a player of
the Respondent, the Claimant deems that the Respondent should be obliged to pay
compensation in the amount of EUR 23,333.33, plus ILS 26,666.67, as well as 5% interest
p.a. as from the date of the
b.
Position of the Respondent
10.
In is reply to the claim of the Claimant, the Respondent argued that it never concluded a
binding agreement with the Claimant, due to ‘mutual agreed terms (conditions) which were
never fulfilled’.
11.
Also, the Respondent refers to the fact that the Claimant was already under contract with
the Estonian club Paide Linnameeskond and that he was loaned to the Czech club FK
Pribram in February 2021, after the failed negotiations with the Respondent.
12.
As to the negotiations, the Respondent explains that on 19 January 2021, a mediator, Mr
Stav Hakmon, and the Claimant’s agent, Mr Andreas Goller, agreed that they would try to
reach an agreement about the Claimant’s salary and the agent commission, and only
thereafter, the Respondent would contract Paide Linnameeskond.
13.
What is more, during the negotiations, the Respondent was already made aware that the
Claimant was at that moment on a training stage with FK Pribram.
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14.
As a result of the foregoing, the Respondent argues that on 19 January 2021, it provided a
conditioned proposal for a possible employment relationship to the Claimant, via his agent.
The conditions were explicitly laid down in art. 2 and 3 of the transfer agreement, inter alia
mentioning that the Respondent was willing to check the possibility of letting the Claimant
join its club, as well as referring the player’s ITC and a medical examination.
15.
Further, the Respondent explained that the during the negotiations, complications arose
about the transfer fee payable to Paide Linnameeskond and the agent’s commission, as a
result of which in the period between 19 January and 21 January 2021, Mr Niv Goldstein
decided that the negotiations could not continue.
16.
Despite the foregoing, the Respondent explains that on 21 January 2021, the Claimant’s
agent, in bad faith as he knew already that the negotiations could not continue, sent to the
Respondent the offer, duly signed by the Claimant.
17.
According to the Respondent, the Claimant’s agent, on 22 January 2021, asked the
Respondent whether it would be aware of another club in Israel for the Claimant. Therefore,
the Respondent is of the opinion that Claimant cannot claim that a contract was concluded.
18.
In conclusion, the Respondent explains that – since it had no obligations, since the player
never arrived in Israel, since the draft of the employment agreement was never exchanged
and since the Respondent was never in direct contact with Paide Linnameeskond – no valid
and binding contract was concluded.
19.
Finally, the Respondent points out that the parties never had the intention to conclude and
official binding contract, as both were aware of the conditions that would have to be
complied with before a contract would enter in force. In this respect, the Respondent argues
that under conditions, parties can agree that the conclusion of a binding contract was
conditional upon the conclusion of a transfer agreement (CAS 2016/A/4489). Also, the
Respondent argues that the contract was only singed by the private signature of the CEO,
and not with the Respondent’s official company stamp.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
20.
Competence and applicable legal framework
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 4 March 2021 and submitted
for decision on . Taking into account the wording of art. 21 of the 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.
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21.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between a Ugandan player
and a Israeli club.
22.
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 Player (edition February 2021), and
considering that the present claim was lodged on 4 March 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
23.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
24.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
25.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
26.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the fact whether or not a valid
and binding employment agreement had been concluded between them. Furthermore, if a
contract had been concluded, the parties have different opinions as to whether said
employment agreement had been unilaterally terminated by one of the parties and what
the consequences thereof would be.
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27.
In this context, the Chamber acknowledged that it its task was to analyse and determine
whether a contract had concluded between the parties, whether said contract had been
unilaterally terminated by one of the parties and if so, who is to be held responsible for the
consequences of said termination.
28.
First of all, the members of the Chamber recalled the Chamber’s 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.
29.
In casu, the members of the Chamber noted that the document signed and exchanged
between the parties on 19 January 2021, in principle contains all the essentialia negotii in
order to be considered as a valid and binding employment contract, in accordance with the
jurisprudence of the Chamber. The name of the parties, their roles, the duration of the
contract as well as the salary the Claimant would be entitled to, are present. What is more,
the document is also signed by both parties.
30.
The members of the Chamber specifically wished to point out that the various reasons
brought forward by the Respondent, detailing that due to the fact that the ITC process of
the Claimant was not correctly finished and because the Claimant did not undergo and
pass a medical examination, no valid agreement was concluded, cannot be upheld.
31.
In this respect, the Chamber referred to the fact that any clause stipulating that the validity
of a contract is subject to the positive outcome of the medical examination and/or
administrative formalities, is in clear contradiction to the aforementioned art. 18 par. 4 of
the Regulations, which article is of mandatory nature and could not be contractually
amended or circumvented.
32.
Moreover, also the Respondent’s argument that in the absence of a transfer agreement
concluded between its club and Paide Linnameeskond, no valid employment contract could
be concluded between the Claimant and the Respondent, is not to be upheld. In this
respect, the contents of clause 3 of the transfer agreement do not appear to be entirely
clear as to whether the employment contract was subject to the conclusion of a transfer
agreement: the clause only holds the words ‘subject to the transfer of the player’. The
Chamber therefore decided to also reject this part of the Respondent’s argumentation.
33.
As such, the members of the Chamber were of the opinion that in principle, the parties had
concluded a valid contract on 19 January 2021, coming into force as from the beginning of
February 2021.
34.
Having determined the above, the DRC judge went to analyse whether the relevant
employment contract had been breached without just cause by the Respondent on 29
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January 2021, as alleged by the Claimant, and, in the affirmative, which would be the
potential consequences of said breach.
35.
In this context, the Chamber wished to point out that it was not blind to the other side of
the case, namely the fact that the Claimant, during the negotiations with the Respondent,
was still under contract with the Claimant, but already allegedly participated in training
sessions with the Czech club FK Pribram, where he effectively signed a contract on 4
February 2021, only 6 days after the alleged unilateral termination of the contract without
just cause by the Respondent.
36.
Based on the foregoing circumstances, the members of the Chamber were of the opinion
that the Claimant showed a lack of interest in continuing to render his services with the
Respondent, where he allegedly was already participating in training sessions. As a result of
the foregoing, the Chamber therefore determined that the Claimant could not be awarded
the amount of compensation for breach of contract as claimed in his claim.
37.
In conclusion, the Chamber decided to reject the Claimant’s claim.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Edrisa Lubega, is rejected.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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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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