Labour Disputes
Texto da decisão
REF FPSD-3978
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Matteo Ricci
BY:
Frans de Weger (The Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Damak, Saudi Arabia
Represented by Mr Turki A. Al Zahrani
RESPONDENT:
Matteo Ricci, Italy
Represented by MCA Sports Law LLP
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REF FPSD-3978
I.
Facts of the case
1.
On 10 August 2021, Damak and Matteo Ricci allegedly concluded a contract offer, in the following
terms:
“We are Damak Football club, a premier football league club, located in Saudi Arabia, we are interested in
signing Mr. Matteo Ricci who carries an Italian passport with number: YA8015433 on permanent basis for
an amount of $1.750.000 (only one million and seven hundred and fifty thousand dollars) to be paid to the
player for season 2021/2022.
- The player shall receive 30% to be paid as advanced payment as follows:
15% to be paid upon signing the employment contract
15 to be paid on 15/01/2021
- Rest of the amount will be distributed on monthly salaries.
- We want to clear that DAMAK shall not bear any legal liabilities arising from this offer if the negotiations
fail and none of its terms will go into force until both parties sign an employment contract signed from all
parties.
- The player shall pass the medical examination to sign the employment contract.
- This offer is valid for 24 hours from its date”.
2.
The aforementioned document contains the signature of the club and of the player. In particular,
above the player’s signature, the following note is typed: “On condition that we sign a federal contract
agreed between the parties, and that I will receive the following benefits: a medium-sized car; a flat villa
and 3 return business class flights to Italy for the entire duration of the contract”.
3.
On 22 August 2021, the club sent the player a communication with the subject “Binding employment
offer”, in which it is stated inter alia that the player had accepted the employment offer of 10 August
2021, by signing it and informing the club of his will via video within the given deadline, but failed to
travel to Saudi Arabia on 17 August 2021, with the tickets provided by the club by email on 15 August
2021. The club understands that the offer consists of a valid and binding employment contract, of
which the player is in breach. Thus, it grants him a deadline of 24 hours to “react positively” and
comply with the terms of the contract, otherwise the club would hold him liable for the unjustified
termination of the offer.
4.
On 29 August 2021, the player replies to the club’s letters of 22 and 27 August 2021 (the letter dated
27 August 2021 was mentioned by the club, but a copy of it was only provided by the player), firmly
objecting to the conclusion of a valid and binding contract. In particular, the player claims that “during
our negotiations, no final agreement was ever reached as to the method of payment of my annual
remuneration as well as on the contractual duration. […] In light of such fundamental disagreement which
could not be bridged, the contractual negotiation finally failed and therefore no binding agreement entered
into force”. Furthermore, the player objects to having ever accepted the offer of 10 August 2021. In
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this regard, he points out that the “acceptance of such an alleged ‘offer’ was expressly conditioned by me
on the signature of a ‘federal contract’ that also needed to be ‘agreed between the parties’. This is
consistent as well with your very own statement that ‘Damak shall no bear any legal liabilities arising from
this offer if the negotiation fail and none of its terms will go into force until both partis sign an employment
contract signed from all parties’. Such a condition was never fulfilled in light of the fundamental
disagreements mentioned above”. In addition, the player states that the flight tickets were “provided by
the club without any previous agreement regarding both the journey to Saudi Arabia and its relevant date”.
Thus, the player deems that the club is acting in bad faith and informs it that it shall be held
accountable of “any frivolous claim” lodged against him.
5.
On 30 August 2021, the player concluded a new employment contract with the Italian club Frosinone
Calcio, as per which is entitled to receive the following remuneration:
- For the season 2021/2022
EUR 350,000 net;
- For the season 2022/2023
EUR 600,000 net, in case Frosinone plays in Serie A or
EUR 375,000 net, in case Frosinone plays in Serie B.
II. Proceedings before FIFA
6.
On 13 October 2021, the club filed the claim at hand before FIFA against the player for alleged breach
of contract. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
7.
According to the club, the offer of 10 August 2021 consists of a valid and binding employment
contract, as all essentialia negotii are allegedly present and the player allegedly expressed his will to
enter into an employment relationship with the club. The club claims that the player failed to join the
club and start the execution of the contract, even though he duly received the air tickets to travel to
Saudi Arabia.
8.
The club also claims that “The Respondent ignored the fact that few days were remaining for close of the
registering period in Saudi Arabia which ended on 31 August 2021, and that it was difficult for the club to
find an alternative choice, since the Respondent was the first choice who was recommended by the team
trainer. The Claimant was thus compelled to sign in hurry with another player who was not the first choice,
and also with a salary bigger than that of the Respondent. Therefore, the Claimant lost the opportunity
for contracting with a player of same standard of the Respondent and lost big amount, in addition to the
costs of this claim which it has been compelled to file before your esteemed chamber”.
9.
The club refers to two previous cases decided by the DRC, namely Ref. no. 18-00620 and 20-01568,
where an offer was considered to be a valid employment contract and the respondent clubs were
ordered to pay compensation to the players, consisting of the entire contractual value.
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10. Based on the foregoing, the club makes the following request for relief:
“[…] we respectfully request your esteemed chamber to declare non -compliance of the Respondent Player
with its obligations towards the Claimant, and order the following:
a) Obligation of the Respondent to pay an amount of USD (1.750.000) one million seven hundred and fifty
thousand US dollars to the Claimant for breach of contract without just cause.
b) Imposition of sports disciplinary sanction on the Respondent”.
b. Position of the Respondent
11. The player in his reply completely rejects the club’s claim. Preliminarily, the player claims that the
club did not manage to correctly complete its claim, in accordance with FIFA’s request, as it was not
able to provide a proper breakdown of the amount claimed. Thus, the claim is materially flawed.
12. Furthermore, the player rejects having ever concluded a valid and binding employment contract with
the club. The player first notes that “both Parties had expressly set the conclusion of an employment
contract agreed and signed by all parties as a condition precedent for the entering into force of the terms
of the Conditional Offer” and that “The Conditional Offer, which forms the basis of the Claim never entered
into force since the conditions precedent included therein were not satisfied”. The player also points out
that the offer – and consequently the condition precedent for the establishment of a binding
contractual relationship – was drafted by the club that the latter violates the legal principle of venire
contra factum propium, when it alleges that the offer was valid in spite of the non-fulfilment of the
condition precedent therein stipulated.
13. In particular, the offer drafted by the club clearly stated that “DAMAK shall not bear any legal liabilities
arising from this offer if the negotiations fail and none of its terms will go into force until both parties sign
an employment contract signed from all parties”. When signing the offer, the player also added the
following conditions precedent for the establishment of a valid employment relationship: “On
condition that we sign a federal contract agreed between the parties, and that I will receive the following
benefits: a medium-sized car; a flat villa and return business class flights to Italy for the entire duration of
the contract”.
14. The player points out that the club was not able to discharge its burden of proof, since it did not
provide any evidence that the conditions precedent mentioned above were actually fulfilled, leading
to the conclusion of a valid and binding contract between the parties.
15. The player considers the club’s claim to be vexatious and lodged in bad faith and points out that “the
Claim of Damak also leads to sporting and economic distress on the side of the Player and violates his
freedom to choose an occupation protected by law”.
16. In addition, the player points out the club made an inaccurate description of the facts, purposedly
omitting those that would dismantle its claim. As per the player, “at the beginning of August 2021,
Damak expressed its initial interest in acquiring the services of the Player. […] Upon Damak’s request –
which is a common practice from the clubs in the Middle East once interested in signing a player – the
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Player sent on 9 August 2021 (Exhibit no. 2) to his representatives a short video clip by means of which he
stated as follows: “Dear Chairman, Salam Alekum, I will join soon Damak SC. See you soon.” It is important
to note that the video was sent one day before the Conditional Offer was submitted to the Player’s
attention. The Player, without even having a concrete knowledge of the terms that Damak would offer
and upon the latter’s request, merely shared his interest in potentially joining Damak, without making any
statement or indication whatsoever to any final agreement was reached with the Club. It is going without
saying, joining the Club was subject to an agreement between the Parties and the conclusion of an
employment contract, which never occurred. On 10 August 2021, the Player received the Conditional Offer
from Damak”, in which the player and the club included their conditions for the conclusion of a valid
employment contract. In this respect, the player points out that the club did not provide any evidence
that it in fact accepted the conditions precedent proposed by the player in the offer.
17. According to the player, a first draft of an employment contract was sent by the club to the player on
10 August 2021, the terms of which were not in line with the offer (contract and email on file provided
by the player only). “More specifically, it made reference to a 2-year duration, i.e. as of 11 August 2021
until 10 July 2023 contrary to the 1 year mentioned in the Conditional Offer. Similarly, the annual
remuneration was regulated under the premise of a 2-year employment contract. In addition, no reference
was made to the Player Additional Benefits that the Player had requested with the signature of the
Conditional Offer. In addition, it included a series of other provisions that could not be acceptable by any
player worldwide, since any acceptance thereof would undermine the legal position of the Player vis-à-vis
the Club”. The player points out that the club purposedly omits this fact from its claim. On the same
day, 10 August 2021, the player replied to the club indicating that his legal representative would
review the terms of the contract and get back to it as soon as possible. The player’s representative
and the club exchanged several emails between 10 and 12 August 2021 and on 12 August 2021 the
player’s lawyer presented the club with a new version of the contract for the club’s review, stating
that “If from the legal point of view you don’t find particular problems, we will pass the contract to our
fiscal experts to study the economic aspects”. In brief, the player’s lawyer had suggested changes in
several contractual clauses, namely Article 5.2 [Fixed financial payments], Article 5.3 [Conditional
financial payments], Article 5.5 [Non-monetary benefits/Benefits in Kind], Articles 7 [Player
Obligations] par. 19 and 20, Article 11 [Amendments] par. 2, Article 12 [Termination] par. 2 and
Article 15 par. 1.
18. The parties further exchanged several emails between 12 and 16 August 2021, in which proposals and
counterproposals were made, but not accepted by the counterparties. Thus, no final agreement as
to the terms of an employment contract was reached by the parties. In view of the foregoing, the
player was surprised to receive the club’s warning of 22 August 2021, which the player considers to
contain several factual inaccuracies, false conclusions and a severely threatening tone. According to
the player, “Following the previous letter, Damak reverted to the Player with a new correspondence dated
27 August 2021 (the “27 August Letter”, Exhibit no. 23), which purposefully has been omitted by Damak
in its Claim. However, the legal value of the statements made by Damak in such correspondence is relevant
considering the basis of Damak’s Claim”. In its letter of 27 August 2021, the club inter alia stated that “In
this regard, the negotiation was abruptly stopped by you and the binding Employment Offer has been
terminated without just cause according to the principle of ‘culpa in contrahendo’”. The player replied to
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the club on 29 August 2021, but never received a reply to his last communication. Fearing to remain
unemployed for the 2021/2022 season, he concluded a new employment contract with the Italian
second division club Frosinone Calcio, for a much lower remuneration than the one he would receive
with Damak.
19. Based on the foregoing, the player insists that no valid and binding employment contract was ever
concluded between the parties, as the conditions precedent of the offer were not fulfilled and the
parties never reached an agreement as to the final terms of the contract. The offer does not contain
all the essentialia negotii and cannot be considered as a valid contract per se; in particular, it does not
“a. Include vital aspects regarding the rights and obligations of the Player concerning a potential
employment relationship with the Claimant, i.e. participation in training and matches, insurance-related
matters, the exploitation of image rights, annual leave, working hours, etc. b. Indicate the exact dates of
the ‘contract’s’ commencement and expiry, rights of the Parties in case of early termination with or without
just cause, disciplinary matters. Even in the Claimant’s letter of 29 October 2021 concerning the requested
compensation, the Claimant itself states that ‘[…] the amount of the claim is USD (1,750,000) one million
and seven hundred fifty thousand US dollars, being the players contract value for the sports season
2021/2022 starting on 11/08/2021 and ending on …./…../2022, as per the Bending [sic] Offer signed by
the club and the player’. c. Contain any indication of the applicable law governing the relationship between
the parties. However, specifically in cases with an international dimension, such an aspect is of utmost
importance in order to provide legal security and clarity. The same aforesaid considerations apply with
regards to the missing elements of jurisdiction and dispute resolution”.
20. Furthermore, the player points out that the club completely misrepresented the facts of the case,
voluntarily omitting facts and documentation that were not in line with their claim, acting thus in clear
bad faith; the club also failed to discharge its burden of proving the conclusion of a valid and binding
employment contract between the parties.
21. Based on the foregoing, the player requests FIFA:
“1. To fully reject the Claim.
2. Order Damak to pay any legal expenses and/or costs incurred by the Player in an amount equal to EUR
12,000.00/-.
3. Order Damak to bear any and all administrative and procedural costs, which have already been incurred
or may eventually be incurred in connection with these proceedings.
4. To refer the matter to the FIFA Disciplinary Committee and impose sanctions against Damak for
violating Article 12 par. 2 of the FIFA Procedural Rules”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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
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matter was presented to FIFA on 13 October 2021 and submitted for decision on 9 June 2022. 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.
23. 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 Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Saudi Arabian club and an Italian player.
24. 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 13 October 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
25. 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
26. 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.
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber noted that the parties’ first fundamental
disagreement is whether the offer concluded between the parties on 10 August 2021 can be
considered a valid and binding employment contract.
28. In view of the foregoing, the Chamber started by recalling its 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.
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29. After thoroughly analysing the documentation on file, the Chamber first noted that the essential
elements of a contract described above in principle appear to be present in the legal document
concluded by the parties (i.e. the offer). In particular, the Chamber highlighted that the document
contains the signature of both parties, provides for the duration of the employment relationship and
the remuneration payable to the player, as well as stipulates that the player is employed as a
footballer with the club.
30. Notwithstanding the foregoing, the Chamber also noted that validity conditions were included in the
offer by both the club and the player. In particular, the Chamber noted the precise wording of the
following clause of the offer, drafted by the club, which is worth mentioning: “We want to clear that
DAMAK shall not bear any legal liabilities arising from this offer if the negotiations fail and none of its terms
will go into force until both parties sign an employment contract signed from all parties”. Furthermore,
the Chamber took note of the following text typed above the player’s signature, and included in the
offer by the latter: “On condition that we sign a federal contract agreed between the parties, and that I
will receive the following benefits: a medium-sized car; a flat villa and 3 return business class flights to Italy
for the entire duration of the contract”.
31. Subsequently, the Chamber turned its attention to the factual framework involving the negotiations
between the parties and, specifically, to the correspondence exchanged in the context of the offer
and the prospective signature of an employment contract. Having thoroughly analysed the
documentation on file – especially the new documentation provided by the player in his reply – the
Chamber observed that the parties negotiated the terms of an employment contract, but did not
reach an agreement as to them. Thus, no final contract was concluded between the parties.
Furthermore, the Chamber noted that the club indeed appears to have acted in bad faith, when it
omits to mention several facts and related documentation exchanged between the parties between
10 August 2021 (date of the offer) and 22 August 2021 (date of the club’s first warning).
32. In addition, the Chamber underlined that both the club and the player included conditions precedent
in the offer for the conclusion of a valid employment contract, which were clearly not fulfilled, in
accordance with the documentation on file. The Chamber was keen to emphasise that the offer was
undisputedly drafted by the club and that the latter violates the legal principle of venire contra factum
propium when it ignores the validity condition included in the offer by itself, in order to try to obtain
certain financial advantages from the player.
33. At this point, the Chamber deemed it important to emphasise that the jurisprudence according to
which offers are usually considered as valid and binding employment contracts – provided that they
contain all the essentialia negotii – was developed in order to protect players from unemployment, in
line with the legal principles of in dubio pro operario and in dubio contra stipulatorum. Therefore, the
cases previously decided by the DRC indicated by the club in its claim do not orient the decision in
the present case.
34. As to the club’s argument that the player’s acceptance of an alleged employment contract was given
in a video recorded by him, the Chamber noted that such video was recorded even before the offer
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had been made to the player and thus it cannot be considered as an acceptance of the contractual
terms.
35. Furthermore, the Chamber noted that the unsuccessful negotiations between the parties lead the
player to sign an employment contract with the Italian club Frosinone Calcio for the 2021/2022
season for a much lower remuneration than the one he would receive with the Claimant club. Thus,
no advantage would arise to the player from the alleged breach of a contract supposedly concluded
with Damak.
36. Thus, while referring to art. 13 par. 5 of the Procedural Rules (October 2021 edition) and the principle
of the burden of proof, the Chamber understood that the club did not meet its burden of proof in
order to demonstrate that the offer consisted of a valid and binding employment contract or that the
parties had otherwise concluded any other valid and binding legal document, which could be
considered as an employment contract.
ii. Consequences
37. Based on the foregoing, the Chamber concluded that parties were never bound by a valid
employment contract and consequently the club’s claim is entirely rejected.
d. Costs
38. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Damak, 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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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