Labour Disputes
Texto da decisão
REF FPSD-3338
Decision of the
Dispute Resolution Chamber
passed on 10 December 2021
regarding an employment-related dispute concerning the player Cristian Lucca
BY:
Roy Vermeer (Netherlands)
CLAIMANT:
Player Cristian Lucca, Brazil
Represented by Rafael Queiroz Botelho
RESPONDENT:
Club Al Akhdoud Club, Saudi Arabia
Represented by Luca Tettamanti
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REF FPSD-3338
I.
Facts of the case
1.
On 1 July 2021, the Saudi Arabian club Al Akhdoud Club (hereinafter the Respondent or the club)
sent an offer (hereinafter the Offer) regarding the potential employment agreement to the
Brazilian player Cristian Lucca (hereinafter the Claimant or the player).
2.
The Offer – which was addressed to a certain “Mauriceo”- contained the following:
i. “Free transfer from [Claimant’s] club.
ii. Monthly salary 5000 Dollars … and 10000 Dollar bonus if the [Respondent] Qualified to Pro
League division.
iii. Car for transportation and [accommodation].
iv. Return tickets from [Claimant’s] country to Saudi Arabia for [Claimant] and his wife.
If this offer is accepted, kindly send us the official approval of the club and the [Claimant] soon.
This offer is valid until July 03, 2021 and conditional to the [Claimant’s] arrival to Saudi Arabia
before July 8 and passing the medical test.”
3.
On 9 and 12 July 2021, the Respondent allegedly announced that the arrival of the Claimant on its
social media, yet it shortly after contacted the Claimant to inform him that it no longer required
his services.
4.
On 2 August 2021, the Claimant put the Respondent in default, requesting the compensation for
the premature and unjustified termination of the contract.
5.
The Claimant informed FIFA Administration that he remains unemployed.
II. Proceedings before FIFA
6.
On 16 August 2021, 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
7.
According to the Claimant, the Offer shall be considered a valid employment agreement since it
contains all essentialia negotii, i.e. it is “written in the Club’s official letterhead, signed by its
president and by the Player, containing the object (transfer of player to play for the Club), the
duration of one season (2021-2022), and the salary (US$5,000 per month, plus fringe benefits).”
8.
Furthermore, the Claimant pointed out that “Club broadly advertised the Player’s signing in all its
official social media, it is undeniable the confirmation by the Club that the Contract was valid and
binding.”
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9.
The Claimant concluded that the Respondent did not have “any valid reason or just cause” to
terminate the employment relationship and, consequently, that he “is entitled to receive
compensation for the early termination of the Contract in the amount corresponding, at least, to
the balance of his receivables therein.”
10. The requests for relief of the Claimant were the following: USD 70,000 as a compensation for the
breach of contract and 5% interest p.a. as of 2 August 2021 until the date of the effective payment.
b. Position of the Respondent
11. Respondent rejected the claim by the Claimant, arguing that the Offer was a so called
“Authorization” to the agent of the Claimant and it “does not bear any signature of the Player”.
12. The Respondent alleged that an “absence of a countersigned "offer", apart from the true nature
of such "offer", would be sufficient alone to close the matter.”
13. Nonetheless, the Respondent pointed out the additional elements set out in the Offer, i.e. its
“clear duration until 3 July 2021”, meaning that “both a separate employment contract and a “free
transfer from his club” had to be concluded before such deadline (…) being considered
accomplished”.
14. In light of the above, claiming that the events did not occur within the stipulated deadline, the
Respondent alleged that it was not bound by the Offer after the expiry of the deadline.
15. With regard to the social media announcements, the Respondent contested that those social
media represent its official accounts and alleged that those are fans’ accounts.
16. In any event, the Respondent contested the evidentiary value of a social media post.
17. The Respondent further alleged that the Claimant never showed “a genuine interest to perform
such contract and/or to join the Club” as he only reacted with a default notice on 2 August 2021,
i.e. after one month the Offer was sent.
18. In this respect, the Respondent alleged that “[t]he Player apparently never felt the necessity during
an entire month to formally inquiry, or at least to enter in contact with, any Club's representative
to have information on how to travel to Saudi Arabia, get visas, how to reach the Club, when and
where his trainings had to start or where he was going to live, etc.”
19. Finally, the Respondent added that “[u]nder all these circumstances, no employment contract was
ever signed, concluded or performed between the parties of this dispute. Therefore, the Club could
not terminate an inexistent contract and no compensation is payable to the Player.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 16 August 2021 and submitted for
decision on 10 December 2021. 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.
21. Subsequently, 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 lit. b) of the Regulations on the Status
and Transfer of Players (August 2021 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Brazilian player and a Saudi Arabian club.
22. Finally, the Single Judge analysed which regulations should be applicable as to the substance of
the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Player (August 2021 edition) and considering that the
present claim was lodged on 16 August 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 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 he 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
24. His competence and the applicable regulations having been established, 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, he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
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i. Main legal discussion and considerations
25. The foregoing having been established, the Single Judge noted that the parties’ first fundamental
disagreement is whether the document allegedly concluded between the parties can be
considered a valid and binding employment contract.
26. In view of the foregoing, the Single Judge started by recalling the 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.
27. After thoroughly analysing the documentation on file, the Single Judge first noted that not all the
essential elements of a contract described above are present in the Offer. In particular, the Single
Judge highlighted that the document does not contain the signature of the player, nor provides
for the duration of the employment relationship.
28. Furthermore, the Single Judge acknowledged the precise wording of the following clauses of the
alleged contract, which are worth mentioning “If this offer is accepted, kindly send us the official
approval of the club and the [Claimant] soon. This offer is valid until July 03, 2021 (…)“.
29. Subsequently, the Single Judge turned his 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 Single Judge observed
that, in accordance with the documentation provided, the player failed comply with the formal
pre-requisite of accepting explicitly and in writing the proposal of the club within the give
deadline, in accordance with its clause quoted above, and to unmistakably thereby convey his
agreement to the establishment of a valid and binding employment relationship with the club.
30. While referring to art. 13 par. 5 of the Procedural Rules and the principle of the burden of proof,
the Single Judge understood that the player did not meet his burden of proof in order to
demonstrate that he duly accepted the club’s offer in due time. In fact, no documentation
whatsoever was made available by the player to support his argument that he had accepted the
offer.
31. As a consequence, the Single Judge decided that the parties had not entered into an employment
relationship
32. In conclusion, the Single Judge established that the player’s claim thus has to be rejected, due to
its lack of a contractual basis.
33. The Single Judge made a final note that whereas the Respondent contested that the social media
posts were published on the official account of the club, the Single Judge deemed that, in any case
and looking at the specific circumstances of the present matter, the social media posts provided
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by the Claimant had little evidentiary value in absence of any other document confirming a
contractual relationship between the Parties.
d. Costs
34. 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, he decided that no procedural costs were to be imposed on the parties.
35. 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.
36. Lastly, the Single Judge concluded his 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, Cristian Lucca, is rejected.
2. 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
Fédération Internationale de Football Association
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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