Labour Disputes
Texto da decisão
REF FPSD-3717
Decision of the
Dispute Resolution Chamber
passed on 10 March 2022
regarding an employment-related dispute concerning the player Bahlul Mustafazade
BY:
Frans de Weger (Netherlands), Chairperson
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Bahlul Mustafazade, Azerbaijan
Represented by SILA International Lawyers
RESPONDENT:
Al Ain FC, United Arab Emirates
Represented by Nezar Ahmed
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I.
Facts of the case
1.
In the season 2020/2021, the Azerbaijani player Bahlul Mustafazade (hereinafter the Claimant or
the Player) was employed at the Azerbaijani club, Sabah FC.
2.
Since April 2021, there was an on-going exchange regarding a potential transfer of the Claimant
from Sabah FC to the Emirati club Al Ain FC (hereinafter the Respondent), with the Respondent on
1 June 2021 agreeing to the conditions put forward by Sabah FC while outlining that a tripartite
agreement would be signed when the Claimant and the Respondent would find an agreement for
employment.
3.
On 2 June 2021, the Respondent sent an offer (hereinafter the First Offer) regarding an
employment agreement to the Claimant. The First Offer amounted to a yearly remuneration of
EUR 156,000.
4.
On 3 June 2021, the Respondent sent a new offer (hereinafter the Second Offer) regarding an
employment agreement to the Claimant.
5.
According to Clause 1 of the Second Offer, the Respondent proposed to the Claimant (hereinafter
jointly referred to as the parties) an employment agreement of three years as of 1 July 2021 and,
inter alia, a fixed yearly remuneration of EUR 360,000.
6.
Furthermore, the Second Offer included the following Clauses:
“This Offer only serves as an intent to enter later into a binding contract and does not create a
valid contract nor does obligate Al Ain to a commitment to complete the transfer transaction.
Hence, it is not the final contract and does not represent the definitive agreement between the
parties.”
“All terms and conditions of the transfer transaction must be approved and agreed upon in
writing under agreement to be later duly signed by the parties. Al Ain FC reserves his right to
withdraw and cancel at any stage any offers or proposals including this offer at its sole
convenience and discretion.”
“If you choose to accept this offer, please sign it in the box that designated for your signature
below and e-mail it back to us within no later than {48) hours from the date stated above. For
avoidance of doubt, your acceptance of this offer will not be deemed a final agreement of both
Parties and does not obligate Al Ain FC to a commitment to complete the transaction.”
“This offer is valid for (48) hours from the date stated above and shall be null and void
thereafter.”
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7.
In its correspondence accompanying the Second Offer, the Respondent requested the following
documents from the Player: the agent’s passport and his address as well as the player’s passport
and his address.
8.
On 4 June 2021, the Player allegedly signed the Second Offer.
9.
Between 5 and 6 June 2021, Sabah FC and the Respondent concluded a transfer agreement
(hereinafter the Transfer Agreement), which was equally signed by the Player.
10. Clause 5 of the Transfer Agreement ruled on the “Validity of the Agreement”. Therein, the parties
and Sabah FC stipulated that “[t]he validity of this Agreement shall be subject to the following
conditional precedents:
A. The Player passes the medical examination of Al Ain FC and
B. Conclusion and signing of an employment contract between the Player and Al Ain FC to the
extent that should such employment contract not be concluded and signed for any reason, this
Agreement shall be null and void in its entirety.”
11. Clause 7 of the Transfer Agreement established the following:
“This Agreement shall represent the entire understanding between the Parties in relation to the
transfer of the Player to Al Ain FC on a permanent basis, and it shall supersede all previous
arrangement, written or verbal, between the Parties relating to the subject matter hereof. A
variation or alternation of this Agreement is valid only if it is in writing and signed by or on
behalf of each Party.”
12. On 22 June 2021, the Claimant sent a letter to the Respondent, requesting information regarding
his medical examination, however, to no avail.
13. On 30 June 2021, the Claimant and Sabah FC mutually terminated their employment agreement.
14. On 3 July 2021, the CEO of FC Al Ain allegedly confirmed to the agent of the Claimant via phone
call that the arrival of the latter will be arranged shortly.
15. On the same day, following the alleged phone call, the Claimant sent a letter to the Respondent,
requesting information about his arrival.
16. Furthermore, also on 3 July 2021, Sabah FC sent a letter to the Respondent, requesting “to enter
the transfer instruction into FIFA TMS to complete the transfer via ITC request”. Furthermore,
Sabah FC requested to officially announce the transfer of the Claimant. The request remained
unanswered.
17. On 8 and 12 July 2021, the Claimant sent two more letters to the Respondent, expressing his
concern that the latter has not proceeded with the necessary administrative steps.
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18. On 13 July 2021, the Respondent sent a draft employment agreement (hereinafter Draft
Employment Agreement) to the Claimant, requesting his comments within 48 hours (the
document contained a watermark marking it expressly as “DRAFT”):
“Dear Sir,
Please see attached draft of Mr. Bahlul's employment contract.
Please provide your views on it if any within no longer than 48 hours from the time of
this email.
Regards,
….”
19. The main terms of the Draft Employment Agreement read as follows:
“5. This Contract is valid for three years starting as of 01/07/2021 and expiring on 30/06/2024.”
“9. The Club has the right to terminate this Contract without the need for a just cause or any
reason, provided that the player is notified at least 15 days before the date of such termination,
and the Club pays to the Player an agreed compensation in an amount equals to one month’s
salary only. This compensation shall be final and the only compensation the Player will be
entitled to in the event of termination of the Contract by the Club under this clause.”
“10. Should the Player wish to terminate this Contract early, the Player should notify the Club
45 days prior to such termination and pay to the Club an agreed compensation for such
termination in the amount of 1,000,000 EURO.”
“11. Monthly Salary: The Player will be entitled to a total monthly salary of 30,000 EURO (Thirty
Thousand EURO) ONLY) to be paid at the end of each calendar month.”
20. On 15 July 2021, within the deadline of 48 hours, the Claimant returned the signed employment
agreement to the Respondent.
21. On 18 July 2021, the Respondent informed the Claimant that it will not proceed with the transfer
of the Player, “since, inter alia, (i) the Player did not undergo a medical exam and (ii) no contract
of employment has been duly signed between [the Respondent] and the Player prior to the
effective date of the [Transfer] Agreement.” As a consequence thereof, the Respondent was of
the opinion that the Transfer Agreement “shall be deemed null and void in its entirety as of its
effective date of 1 July 2021.”
22. On 20 July 2021, the Claimant sent the following letter to the Respondent: “I realized that FC Al
Ain is not interested in my services and actually terminated my employment unilaterally and
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without just cause (…) Please note, I will submit a claim to FIFA against your club.” The letter
remained unanswered.
23. On 28 July 2021, the Player entered into a new employment agreement (hereinafter the New
Employment Agreement) with the Azerbaijani club, FC Qarabag, valid as of September 2021 until
June 2024.
24. With the new club, the Claimant is entitled to the following monthly payments:
- September 2021 (one month): Azerbaijani Manat 19,000 (hereinafter AZN);
- October 2021 until June 2022 (nine months): AZN 20,000;
- July 2021 (one month): AZN 17,500;
- August 2021 until June 2024 (22 months): AZN 16,500;
25. The total value of the New Employment Agreement therefore amounts to AZN 579,500.
II. Proceedings before FIFA
26. On 2 September 2021, the Claimant filed the claim at hand before FIFA.
27. On 8 October 2021, the Respondent submitted its answer to the claim.
28. On 26 November 2021, the Claimant provided for the replica.
29. On 6 December 2021, the Respondent provided for the duplica.
30. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
31. In his Claim, the Claimant requested the payment of EUR 780,271, plus 5% interest p.a. as “from
the date of the decision until the amount is paid”, corresponding to the compensation for the
breach of contract.
32. Furthermore, the Claimant requested that sporting sanctions shall be imposed on the
Respondent.
Claimant’s Arguments as to the Alleged Validity of the Employment Agreement
33. First of all, the Claimant alleged that the Second Offer of 3 June 2021, signed by the Claimant
himself on 4 June 2021 “contains all essential terms of the [Draft Employment Agreement] and
therefore is a valid employment contract.”
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34. The Claimant continued that the Draft Employment Agreement “should have been considered by
the [Claimant] and [the Respondent] as a mere formalization of the initial agreement on all
essential terms of the Contract.”
35. Furthermore, the Claimant alleged that the Draft Employment Agreement sent on 13 July 2021
“was a final step before FC Al Ain eventually invites him to UAE, which suits the understanding of
a reasonable person, provided that at that time, the Player’s former club, FC Sabah, respected all
its obligations under the [Transfer] Agreement.”
36. With regard to the formalities, the Claimant was of the opinion that the Draft Employment
Agreement contained all essentialia negotii of an employment agreement and reiterated that the
conditions contained therein correspond to those foreseen in the Second Offer of 3 June 2021.
37. Furthermore, the Claimant alleged that the fact that the Draft Employment Agreement is not
formally signed by the Respondent does not matter as the Claimant returned the signed version
within the stipulated deadline.
38. The Claimant based its argumentation on art. 3 para. 1 Swiss Civil Code (“SCO”): “A person who
offers to enter into a contract with another person and sets a time limit for acceptance is bound
by his offer until the time limit expires.”
39. Therefore, the Claimant concluded that the Respondent must be “bound by the Contract even
without a formal signature” and that, consequently, the Draft Employment Agreement is valid and
binding upon the parties.
Claimant’s Arguments as to the Alleged Breach of the Employment Agreement
40. Based on the argumentation above, the Claimant continued that by the letter of 18 July 2021, the
Respondent “did not invoke any valid ground for termination of the Contract, alleging that the
Contract may be terminated because the Player did not undergo a medical examination.”
41. In this respect, the Claimant asserted that, in line with art. 18 para. 4 of the Regulations, “the
validity of a contract may not be subject to successful medical examinations” and, therefore, the
Respondent terminated the employment relationship unilaterally and without just cause as per
18 July 2021.
42. As a consequence, the Claimant was of the opinion that the Respondent shall be liable for
compensation, in line with art. 17 of the Regulations, in the amount of EUR 780,271 net, “i.e. (EUR
30,000 x 36 months) – (EUR 299,729)”.
b. Position of the Respondent
43. The Respondent rejected the claim in its entirety, arguing that “no valid and binding employment
contract have been concluded between the Respondent and Claimant.”
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Respondent’s Arguments as to the Alleged Invalidity of the Employment Agreement
44. With regard to the validity of the employment agreement, the Respondent referred to the
jurisprudence of FIFA and the Court of Arbitration for Sport (“CAS”), pointing out that “the
existence of a labor contract of professional must be proved beyond reasonable doubt”.
45. Bearing the above-mentioned in mind, the Respondent alleged that neither (a) the Second Offer
nor (b) the Draft Employment Agreement are valid and binding for the Player and the Respondent.
As to the Second Offer
46. In support of its submission the Respondent argued, inter alia, the following:
47. The Respondent never received the signed copy of the Second Offer nor did the Claimant provide
evidence that it did.
48. Referring to the wording of the Transfer Agreement signed by the Player after the Second Offer,
the Respondent argued that “the real intention of the parties was not to deem the Second Offer
as a binding contract on them”.
49. Referring to Clause 7 of the Transfer Agreement, the Respondent argued that all previous
arrangements have been superseded by the Transfer Agreement.
50. Finally, the Respondent claimed that the Second Offer was merely a “(…) a preliminary contract is
a contract that obligates the contracting parties to conclude another contract under the law of
obligations, which is then called the main contract”.
As to the Draft Employment Agreement
51. The Respondent equally objected to the validity of the Draft Employment Agreement as it argued
that the Draft Employment Agreement was only sent to the Agent of the Player for a review and
that it “was stamped with the word “DRAFT”.
52. The Respondent alleged that on 15 July 2021, “the Player removed the stamp from the Draft
Employment Agreement and put an unsolicited signature on it”, which cannot be binding on the
Respondent.
53. Finally, the Respondent asserted that “an unauthorized deletion of the “DRAFT” stamp from the
Draft Contract with the intention of signing it and turning it into a legal document is a forgery” and
that a “contract concluded by forgery is void”.
54. At this point, the Respondent turned its attention to the Transfer Agreement, which gives
“legitimate expectation that the Respondent would conclude a contract of profession with [the
Player].”
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55. Nonetheless, the Respondent argued that it did not have an “absolute obligation” based on the
Transfer Agreement to sign an employment agreement with the Claimant as such obligation “(i)
must be discharged within a specified time and (ii) it must be deemed extinguished if its nonperformance was due to a fault unattributable to the Respondent.”
56. The Respondent asserted that the Transfer Agreement foresaw three conditions relevant for the
validity of the Transfer Agreement:
(i)
(ii)
(iii)
the Player passes a medical examination of the Respondent;
the Player and the Respondent “conclude an Employment Contract”, and
“the Player and the Respondent both sign such Employment Contract”.
57. Furthermore, the Respondent claimed that the parties set a specific deadline for the transfer, i.e.
1 July 2021, which was also “the deadline for the fulfilment of the Conditions Precedents”.
58. With reference to Clause 7 of the Transfer Agreement (see I./par. 11), the Respondent argued that
a verbal or implied consent of the parties cannot be considered a valid deadline extension.
59. In line with the above, the Respondent alleged that, first of all, “the Transfer Agreement became
null and void (…) as of 1 July 2021.”
Was the non-fulfilment of the conditions attributable to the Respondent?
60. Finally, the Respondent described “the chronological steps” how the parties to the Transfer
Agreement had agreed to execute the transfer.
61. In view of the above, the Respondent argued that it could not enter into an employment contract
with the Player before the Claimant and FC Sabah terminated their contractual relationship.
62. In this regard, the Respondent claimed that it “did not receive any communications of any kind
from FC Sabah as from 6 June 2021 until 6 July 2021” and that it therefore assumed that “the
“Mutual Termination Agreement” and “Proof of Last Contract End Date” that FC Sabah sent to the
Respondent on 6 July 2021 were signed only by FC Sabah but not by the Claimant.”
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63. In this respect, the Respondent alleged that the evidence submitted by the Claimant was
tempered with and by using the “metadata of a PDF document”, the Respondent purported, inter
alia:
64. Therefore, the Respondent alleged that “the non-performance the Respondent’s obligation under
the Transfer Agreement was not due to a fault attributable to the Respondent. Quite the opposite,
it was due to the failure of FC Sabah and Claimant to discharge their obligations in accordance
with the provisions of the Transfer Agreement”.
c. Replica of the Claimant
65. In reply to the Respondent’s allegations, the Claimant provided separate email files addressed to
“all the email addresses of FC Al Ain”, which shall prove that the Respondent was “indeed in receipt
of the signed Offer on June 4, 2021, contrary to what [the Respondent] states”.
66. With regard to the allegations concerning the creation of the disputed documents Exhibit C4, C8
and C10, the Claimant argued that their “metadata” are “connected solely with the date when the
Player’s representatives processed and compress the files”, e.g. “to save space in the email
attachment”.
67. Regarding the documents sent to the Respondent on 6 July 2021 by FC Sabah, the Claimant
asserted that those documents were sent after he terminated the relationship with FC Sabah and
left its premises, i.e. “thus, FC Sabah could not sign the documents directly with the Player”.
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68. The Claimant added that “FC Sabah was of the firm opinion that shortly the Player arrives in FC Al
Ain and signs the documents, if necessary, directly in FC Al Ain’s premises which, unfortunately,
was not the case”.
69. In any event, the Claimant stated that “the Player later returned signed POLCED and termination
agreement to the Club via the agent’s Whatsapp”.
70. In view of the above, the Claimant argued that “FC Al Ain acts in bad faith while raising such a
defense as a ground to dismiss the Player’s claim”.
71. In this regard, the Claimant argued that “[s]hould the lack of the Player’s signature in the obtained
files [on 6 July 2021] have been critical for FC Al Ain, the latter had pretty enough time to contact
the Player and FC Sabah on this matter”.
72. The Claimant continued that “[i]nstead of that, on July 13, 2021, the Player received the draft of
an employment contract from FC Al Ain (see Exhibits C13 and C14) and, what is of utmost
importance, on July 18, 2021 (see Exhibit C16), when unlawfully terminated the Transfer
Agreement, without any reference to missing signatures of the Player”.
73. With reference to the legal principle venire contra factum proprium and CAS 2010/O/2237, the
Claimant argued that the following consequence shall apply:
“167. [...] According to the principle venire contra factum proprium, no one may set himself in
contradiction to his own previous conduct. Under Swiss law, the principle is codified Jn Article 2
of the Swiss Civil Code, and the CAS jurisprudence has recognized it on many occasions, so
defining it:
«the prohibition of venire contra factum proprium [is] the doctrine, recognized by Swiss law,
providing that where the conduct of one party has induced legitimate expectations in another
patty, the first party is estopped from changing its course of action to the detriment of the
second party» (CAS 2008/O/1455 Boxing Australia v. AlBA, para, 6.11; see also CAS
2009/A/1880-1881 FC Sion & El-Hadary v. FIFA & AI-Ahly SC, paras. 79, 165)
168. The Panel thus finds that the Respondent acted in violation of the principle venire contra
factum proprium when, after having accepted to continue the employment relationship
regardless of the FIFA sanction, it based its termination of the Contract on that same sanction.
169. Given the above findings, the Respondent may be considered, by its own behaviour, to
have waived its alleged right to terminate the Contract under Swiss law.”
74. In this respect, the Claimant pointed to his claim and reiterated that “the question of whether FC
Al Ain was justified to bring the Contract to an end at the time of termination should be established
based on the grounds invoked in the Termination Notice”.
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75. Thus, with reference to the above-mentioned (see II./par. 68), the Claimant argued that the
Respondent “should be estopped from any reference to lack of Player’s signature, as this defence
was not raised by FC Al Ain on or before unlawful termination of the Transfer Agreement, which
now presents nothing but invoking a clear ex post facto argument”.
76. Finally, the Claimant pointed to the fact that he “never returned to FC Sabah” but signed an
employment contract on 28 July 2021 with a third club, which “clearly indicates that the
employment contract was effectively terminated by FC Sabah and the Player on June 30, 2021”.
d. Duplica of the Respondent
77.
In reply to Claimant’s rebuttal, the Respondent firstly referred to the Claimant’s assertion stating
that “FC Sabah was of the firm opinion that shortly the Player arrives in FC Al Ain and signs the
documents, if necessary, directly in FC Al Ain’s premises which, unfortunately, was not the case”
and stated that this is “utterly false”.
78.
With reference to its answer to the claim, the Respondent argued that “before [it] can legally
invite the Claimant to UAE to undergo the medical examination and sign a contract of
employment with him, the contract between the Claimant and FC Sabah must be firstly
terminated by mutual agreement and a proof of such termination must be delivered to the
Respondent on or before 1 July 2021”.
79.
Thus, the Respondent argued, “the Claimant could not have travelled to the UAE to be at the
Respondent’s premises prior to signing the Termination Agreement with FC Sabah”.
80.
The Respondent continued that, moreover, the mutual termination agreement between FC
Sabah and the Claimant was not signed on 30 June 2021, “which as it now acknowledged by the
Claimant himself”.
81.
With reference to the Claimant’s assertion that “the Player later returned signed POLCED and
termination agreement to the Club via the agent’s Whatsapp”, the Respondent argued that no
evidence has been submitted by the Claimant “verifying the date on which he had signed the
“Termination Agreement” (i.e., Exhibit C8) and the “Proof of Last Contract End Date” (i.e., Exhibit
C10)”.
82.
Overall, the Respondent was of the opinion that the “Claimant misguided the DRC by producing
documents different than those it sent to the Respondent. This is because the “Mutual
Termination Agreement” and “Proof of Al Ain Last Contract End Date” that FC Sabah sent to the
Respondent on 6 June 2021 were not signed by the Claimant while the version of these documents
that the Claimant produced together with the Claim are signed by the Claimant”.
83.
In this respect, the Respondent alleged that the behaviour of the Claimant “amounts to forgery
under Swiss law, constitutes a breach of Article 21(1) of FIFA Disciplinary Code and contravenes
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article 5(3) of the of the RULES Governing the Procedures of the PSC and DRC / article 9(3) of the
Procedural Rules Governing the Football Tribunal”.
84.
Furthermore, the Respondent stated that “the question whether the Player had communicated
to the Respondent a counter-signed copy of the Offer is moot, irrelevant and indecisive to the
matter at hand.” With reference to its arguments presented in the answer to the claim, referring
to the arguments concerning the validity of the Employment Agreement (see II./par. 44 et seqq.),
the Respondent reiterated that “the Offer was null and void and have not created a valid
employment contract between the Respondent and the Claimant”.
85.
What is more, the Respondent maintained its position that it never received the counter-signed
copy of the Second Offer and contested the validity of the email files provided by the Claimant
(see II./par. 62 et seq.) as “its purported attachments, title, recipients, text (body) and timestamp
could have been easily altered”.
86.
Finally, the Respondent alleged that, in any event, “even if we assumed that Mr. Heydarli did
indeed send the email in question [as presented in Claimant’s replica, see II./par. 65] since this
email (…) was a duplicate of the [email presented as Exhibit R-6.], i.e. First Email that [Mr.
Heydarli] sent to the officials of the Respondent earlier that date, [a] “Duplicate Remover” tool
would have blocked its delivery to the mailboxes of its recipients”.
87.
The Respondent added that “[s]uch fault shall be attributed to the sender of the email (i.e., the
Claimant’s agent, Mr. Heydarli) for sending two duplicate emails on the same day and outside
business hours in the UAE”.
88.
In view of the above, the Respondent maintained its position as presented in the answer to the
claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
89. 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 2 September 2021 and submitted for decision on
10 March 2022. Taking into account the wording of art. 31 and 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.
90. 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 DRC is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between an Azerbaijani player and an Emirati club.
91. 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 2 September 2021, 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
92. 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. Likewise, the Chamber stressed the wording of art. 13 par.
4 of the Procedural Rules, pursuant to which it 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
93. 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 abovementioned 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.
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i. Main legal discussion and considerations
94. 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 if the Second Offer or the Draft Employment
Agreement can be considered a valid employment agreement.
95. In order to duly assess the case, the Chamber first recalled the general timeline of the case:
Date
2 June 2021
3 June 2021
4 June 2021
5-6 June 2021
13 July 2021
15 July 2021
18 July 2021
Due Course of the Main Events
Respondent sent the First Offer to the Claimant (undisputed)
Respondent sent the Second Offer to the Claimant (undisputed)
Claimant sent the signed Offer back to the Respondent (disputed by the
Respondent)
Sabah FC and the Respondent concluded the Transfer Agreement
(undisputed)
Respondent sent the Draft Employment Agreement to the Claimant
(undisputed)
Claimant returned the signed Draft Employment Agreement to the
Respondent (undisputed)
Respondent informed the Claimant that it will not proceed with the
transfer of the Player, “since, inter alia, (i) the Player did not undergo a
medical exam and (ii) no contract of employment has been duly signed
between [the Respondent] and the Player prior to the effective date of
the [Transfer] Agreement.” As a consequence thereof, the Respondent
was of the opinion that the Transfer Agreement “shall be deemed null
and void in its entirety as of its effective date of 1 July 2021.”
96. In this context, the Chamber started by recalling the well-established jurisprudence which dictates
that, in order for an employment contract to be considered valid and binding, 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.
97. After thoroughly analysing the documentation on file, the DRC noted that the following essential
elements of a contract described above are present in the Second Offer: Duration of the
agreement, subordination of the employee to the employer, personal performance, wages as well
as a designated box for a signature of the Player.
98. Equally, pointing out to the relevant CAS jurisprudence, the DRC wished to add that in contractual
negotiations, the parties must consider the risk to be bound at an earlier stage than they sought.
99. Nonetheless, in the matter at hand, the majority of the Chamber was not convinced that the
respective Second Offer can represent the definitive agreement between the parties as, in line
with the exact wording of the Second Offer, it was not an “offer capable of acceptance”.
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100. In this regard, the Chamber recalled, and could not ignore the fact, that the parties expressly
mentioned in the respective Second Offer that it is not the final contract, e.g. “it is not the final
contract and does not represent the definitive agreement between the parties” and “Al Ain FC
reserves his right to withdraw and cancel at any stage any offers or proposals including this offer
at its sole convenience and discretion”. In other words, the parties explicitly put in the contract
that the Second offer did not present the final agreement. Although this does not rule out per
definition that such documents can still be considered as final contracts (an assessment that must
be done on a case-by-case basis), but under the circumstances the Chamber found that the
Second Offer did not represent the final contract, also keeping in mind that the Respondent later
on sent a new document to the Claimant, i.e. the Draft Employment Agreement, which was then
signed by the Claimant.
101. For the sake of completion, the Chamber finally noted that it was also disputed between the
parties that the said Second Offer was duly signed and returned back to the Respondent, in order
to demonstrate that the document was indeed concluded with the club or at least with its consent
(see III./par. 95).
102. Taking into account all the above-mentioned circumstances, the majority of the DRC concluded
that the Second Offer per se cannot be considered as a valid and binding employment agreement.
103. At this point, the Chamber turned its attention to the Draft Employment Agreement. In particular,
the Chamber started analysing if said document can be considered a valid and binding
employment agreement.
104. First of all, the DRC noted that the Draft Employment Agreement clearly entails the following
information: the parties to the contract and their role, the duration of the employment
relationship and the remuneration payable by the employer to the employee. Therefore, the DRC
deems that the Draft Employment Agreement contained the essentialia negotii.
105. The DRC then pointed to the fact that the Draft Employment Agreement sent out by the
Respondent on 13 July 2021 reflects exactly the same conditions as the Second Offer, nonetheless,
and so contrary to the Second Offer, the Draft Employment Agreement constitutes an “offer
capable of acceptance”, considering that the disputed document was – in the opinion of the
members of the Chamber - clearly meant to be a bilateral document.
106. The Chamber deliberated that by sending the Draft Employment Agreement and, taking into
account that the Player returned the signed copy of the Draft Employment to the Respondent on
15 July 2021, i.e. within the stipulated deadline, which is not in dispute, the consent and intention
of the parties to conclude an employment contract can be established. The intention of the
Respondent and the Claimant to enter into an employment relationship was also clear from the
fact that previously the Respondent, the Claimant and Sabah FC had already agreed on a transfer
agreement for the transfer of the Player from Sabah FC to the Respondent.
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107. Further to this, the DRC noted that the Draft Employment Agreement, which also included a
designated box for a signature of the Player, as set out above, also extensively describes the
contractual obligations of the parties, including the duties for the Player. Moreover, no further
reservations were also made in the email of 13 July 2021 by means of which the Draft Employment
Agreement was sent by the Respondent to the Player, which email also contained a clear deadline
of 48 hours. These are all indications that the Club had the intention to bind the Player and that
the parties validly agreed upon the basis of their employment relationship. The fact that, when
sending the draft, the Respondent asked the Claimant for his comments and that the document
was marked as “DRAFT” does not change the conclusion of the Chamber in this case considering
the various elements set out above, which, in the Chamber’s view, sufficiently establish the
mutual intention of the parties to enter into a binding agreement.
108. As to the vehement allegations of the Respondent that the Draft Employment Agreement was
forged, the Chamber first wished to remark that FIFA’s deciding bodies are not competent to
decide upon matters of criminal law, such as the one of alleged falsified documents, and that such
affairs fall into jurisdiction of the competent national criminal authority.
109. Nonetheless, in the matter at hand, the DRC pointed out to the fact that the forgery allegation
was firstly made in the FIFA proceedings and never as an immediate reaction to the email of
15 July 2021, duly received by the Respondent (see III./par. 95), which was also considered to be
an important circumstance in this case.
110. In this regard, and for the sake of completeness, the DRC does not find that the removal of the
“DRAFT” stamp and signing the Draft Employment Agreement by the Player, who was under the
legitimate assumption that he had concluded a definitive employment contract, equates to
forgery.
111. In view of the above and in line with the legal principle of venire contra factum proprium, the
Chamber dismissed the forgery allegation brough by the Respondent.
112. Therefore, after a thorough analysis of the evidence brought forward by the parties, noting that
the Respondent did not demonstrate by any other means that the Draft Employment Agreement
was forged, the Chamber decided to set aside the argumentation of the Respondent and to
conclude that the parties indeed validly agreed upon the basis of their employment relationship
on 15 July 2021.
113. For the sake of completion, the DRC addressed the Respondent’s argument as to the lack of
Claimant’s medical examination and its effect on the employment relationship.
114. The Chamber first reminded the parties of the clear and explicit wording of art. 18 par. 4 of the
Regulations, according to which the validity of an employment contract cannot be made subject
to a successful medical examination. Referring also to the obligation of the parties to maintain
contractual stability, the Chamber underlined that a club willing to engage a specific player should
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perform any medical examination prior to concluding any employment contract with the player.
Any contractual provision contrary to art. 18 par. 4 of the Regulations shall be considered as
invalid.
115. What is more, the DRC recalled that in any event, based on the evidence on file, the Claimant
indeed requested information regarding his medical examination on several occasions, however,
his queries remained unanswered by the Respondent. Consequently, the Chamber rejected the
Respondent’s objection to the validity of the employment contract based on the lack of medical
examination.
116. The existence of a valid employment agreement having been established, the Chamber turned its
attention to the events following 15 July 2021.
117. In particular, the DRC recalled that on 18 July 2021, the Respondent informed the Claimant that it
will not proceed with his transfer.
118. In this respect, the Chamber emphasised that in accordance with its long-standing jurisprudence,
only a breach or misconduct which is of a certain severity justifies the termination of a contract.
In other words, only when there are objective criteria which do not reasonably permit to expect
the continuation of the employment relationship between the parties, a contract may be
terminated prematurely. Hence, if there are more lenient measures which can be taken in order
to ensure the fulfilment of the contractual duties by the counterparty, such measures must be
taken before terminating an employment contract. A premature termination of an employment
contract can only ever be an ultima ratio measure.
119. Based on the evidence on file and considering the actions of the Respondent, the DRC was of the
opinion that the Respondent clearly lost interest in the Player and, ex post, merely tries to invent
legal arguments to justify its non-engagement with the transfer.
120. In this regard, the DRC believed that a club that is supposedly interested in acquiring the rights of
the Player and in benefiting from his services, is also expected to act accordingly in view of, inter
alia, obtaining the Player’s ITC, organising the arrival of the Player, all of which the Respondent
failed to prove.
121. In view of the above, the Chamber concluded that by sending the notice of 18 July 2021, the
Respondent terminated the employment relationship without just cause in the meaning of
art. 14 of the Regulations.
ii. Consequences
122. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
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123. The Chamber observed that due to the fact that the Respondent terminated the employment
relationship right after the employment agreement was concluded, outstanding salaries are not
pertinent at the matter at hand.
124. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the Player by the club in the case at stake. In doing so, the Chamber firstly recapitulated
that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including in particular, the remuneration and other benefits due to the
Player under the existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the contractual breach falls
within the protected period.
125. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contained a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual parties in
the event of breach of contract.
126. In this regard, the Chamber took note of the wording of clause 9 of the Draft Employment
Agreement, which established that “[t]he Club has the right to terminate this Contract without the
need for a just cause or any reason, provided that the player is notified at least 15 days before the
date of such termination, and the Club pays to the Player an agreed compensation in an amount
equals to one month’s salary only. This compensation shall be final and the only compensation the
Player will be entitled to in the event of termination of the Contract by the Club under this clause.”
127. Equally, the Chamber acknowledged clause 10 of the Draft Employment Agreement: “Should the
Player wish to terminate this Contract early, the Player should notify the Club 45 days prior to such
termination and pay to the Club an agreed compensation for such termination in the amount of
1,000,000 EURO.”
128. After analysing the content of the aforementioned clauses, the Chamber concluded that it did not
fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s longstanding
jurisprudence, and therefore is not decisive for establishing the amount of compensation payable
to the Claimant.
129. As a consequence, the Chamber determined that the amount of compensation payable by the
Claimant to the Respondent had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
130. Bearing in mind the foregoing as well as the claim of the Player, the Chamber proceeded with the
calculation of the remuneration payable to the Player under the terms of the contract from the
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date of its unilateral termination until its end date. Consequently, the Chamber concluded that
the amount of EUR 1,080,000 serves as the basis for the determination of the amount of
compensation for breach of contract.
131. In continuation, the Chamber verified as to whether the Player had signed an employment
contract with another club during the relevant period of time, by means of which he would have
been enabled to reduce his loss of income. According to the constant practice of the DRC as well
as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for breach of
contract in connection with the Player’s general obligation to mitigate his damages.
132. Indeed, the Player found employment with FC Qarabag. In accordance with the pertinent
employment contract, the Player was entitled to AZN 579,500 for the relevant period of time.
Therefore, the Chamber concluded that the Player mitigated his damages in the said amount. The
Chamber further noted that according to the pertinent currency conversion, AZN 579,500
corresponds to EUR 288,729.
133. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club shall pay the amount of EUR 791,271 to the
Player (i.e. EUR 1,080,000 minus EUR 288,729).
134. At this point, the Chamber noted that the Claimant limited his claimed amount to EUR 780,271
and therefore, in line with the legal principle ne eat iudex ultra petita partium, merely this amount
shall be awarded.
135. The DRC concluded that the club must pay the amount of EUR 780,271, which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
136. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Player interest on said compensation at
the rate of 5% p.a. as of 10 March 2022 until the date of effective payment.
iii. Compliance with monetary decisions
137. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and
2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall
also rule on the consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
138. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay the
relevant amounts in due time shall consist of a ban from registering any new players, either
nationally or internationally, up until the due amounts are paid. The overall maximum duration of
the registration ban shall be of up to three entire and consecutive registration periods.
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REF FPSD-3717
139. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full
amount due (including all applicable interest) to the Claimant within 45 days of notification of the
decision, failing which, at the request of the Claimant, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become immediately effective on the Respondent in accordance with
art. 24 par. 2, 4, and 7 of the Regulations.
140. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the present
decision.
141. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
142. 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.
143. 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.
144. 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, Bahlul Mustafazade, is accepted.
2.
The Respondent, Al Ain FC, has to pay to the Claimant, the amount of EUR 780,271 as
compensation for breach of contract without just cause plus 5% interest p.a. as from 10 March
2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021 edition),
if full payment (including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be
of up to three entire and consecutive registration periods.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-3717
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
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