Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 January 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Daan de Jong (The Netherlands ), member
Alex andra Góm ez Bruinew oud (Uruguay ), member
on the claim presented by the player,
Marcos Daniel Riquelm e, Argentina
represented by Ms Melanie Schärer
as Claimant
against the club,
Al-Ahli, Saudi Arabia
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
The Argentinian player, Marcos Daniel Riquelme, (hereinafter: the Claimant), and the
Saudi club, Al Ahli Saudi Football Club, (hereinafter: the Respondent) signed a
document named “Offer of Professional Contract” (hereinafter: the offer).
2.
In accordance with the offer, the Claimant was offered a contract valid as from 1 July
2018 until 30 June 2020, providing, inter alia, an advance payment of USD 500,000
for each of the two seasons and a monthly salary of USD 66,666.
3.
Furthermore, the offer stipulated the following:
“The offer is subject to:
1.
Al Ahli agreeing all contractual terms with the player.
2.
The player successfully completing a medical examination to satisfaction of
the Al Ahli medical team.
3.
Club Bolivar relinquishing the ITC in favor of Al Ahli club.
This offer shall expire at 10:00 PM, GMT 04.06.2018”
4.
On 16 July 2019, the Claimant sent a letter to the Respondent, by means of which he
affirmed having signed the contract on 1 June 2018 and alleged that the club, a few
days later, informed him that “it will not respect the signed contract and that he
therefore must not join the club”.
5.
In view of the above, within the same letter, the Claimant requested the Respondent
to pay him compensation in the amount of USD 1,300,000 by 31 July 2019.
6.
According to the information available on the Transfer Matching System (TMS):
a) on 13 July 2017, the Claimant and the Bolivian club, Club Bolivar, entered into
an employment contract valid as from the same date until 30 June 2020;
b) no transfer instruction was entered by the Respondent in respect of the
Claimant;
c) on 8 July 2019, the player, Club Bolivar and the Chilean club, Universidad de
Chile, signed an agreement for the loan of the Claimant from Club Bolivar to
Universidad de Chile until 31 December 2019;
d) on 9 July 2019, the Claimant and Universidad de Chile signed an employment
contract valid until 31 December 2019, providing a monthly salary of USD
20,000.
7.
Moreover, as confirmed by the Claimant upon request of the FIFA Administration:
Player Marcos Daniel Riquelme, Argentina / Club Al-Ahli, Saudi Arabia
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a) his contract with Bolivar provided a salary of USD 220,000 for each season plus,
inter alia, the following payments:
- USD 30,000 on 31 July 2018;
- USD 30,000 on 15 January 2019;
- USD 30,000 on 31 July 2019;
- USD 20,000 on 15 January 2020;
- USD 150,000 at the end of the contract.
b) His contract with Universidad de Chile provided a monthly salary of USD 19,000
plus a fixed payment of USD 30,000 payable on 1 August 2019. The contract
with Universidad de Chile submitted by the Claimant was different from that
on TMS.
8.
The Claimant considered that he concluded a valid and binding employment contract
by signing the offer on 1 July 2019, which the Respondent eventually terminated
without just cause “by not honouring the terms of the signed employment contract”.
9.
On 14 August 2019, the Claimant lodged a claim against the Respondent in front of
FIFA, claiming compensation for breach of contract in the amount of USD 1,300,000
plus 5% interest p.a. as of 2 June 2018.
10.
In his claim, the Claimant reported that the Respondent informed him that it did not
intend to respect the terms of the employment contract allegedly concluded between
them but, however, it promised to remit him compensation.
11.
According to the Claimant, no compensation was eventually paid by the Respondent,
reason why he had to address to the Respondent the aforementioned letter (cf. point
4). However, said letter allegedly remained unanswered.
12.
In its reply to the claim of the Claimant, the Respondent rejected the Claimant’s claim
and affirmed that, on 1 June 2018, it sent to both the Claimant and his current club
at that time, Club Bolivar, an offer which would expire on 4 June 2018.
13.
Moreover, the Respondent stressed that the Claimant, on 16 July 2019, informed it
that he accepted the offer, which was more than 13 months later than the date of
the offer.
14.
Furthermore, the Respondent informed that the negotiations with Club Bolivar failed
and, thus, it was prevented from concluding any contract with the Claimant. In this
respect, the Respondent argued that the offer could not be considered as a valid and
binding employment contract.
15.
Finally, the Respondent referred to art. 18, par 3. of the FIFA Regulations on the Status
and Transfer of Players and averred that, at the time of the offer, the player was
Player Marcos Daniel Riquelme, Argentina / Club Al-Ahli, Saudi Arabia
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under contract with Club Bolivar, a contract which was not due to expire within the
following six months. As a consequence thereof, the Respondent argued that the
Claimant was prevented from concluding any contract with it.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute resolution Chamber (hereinafter: Chamber or DRC) analysed
whether it was competent to deal with the matter at stake. In this respect, the DRC
took note that the present matter was submitted to FIFA on 14 August 2019 and
decided on 29 January 2020. Taking into account the wording of art. 21 of the 2019
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.
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players, the DRC is competent
to deal with the matter at stake, which concerns a dispute with an international
dimension between an Argentinian player and a Saudi club in relation to an alleged
employment relationship between the two aforementioned parties invoked by the
player.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In this
respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and par. 2 of
the said Regulations and considering that the present claim was lodged in front of
FIFA on 14 August 2019, the June 2019 edition of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the DRC started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
Player Marcos Daniel Riquelme, Argentina / Club Al-Ahli, Saudi Arabia
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5.
In this respect, the Chamber acknowledged that, the Claimant and the Respondent
signed a document named “Offer of Professional Contract”, dated 1 June 2018 and
that in accordance with it, the Claimant was offered a contract valid as from 1 July
2018 until 30 June 2020, providing, inter alia, an advance payment of USD 500,000
for each of the two seasons and a monthly salary of USD 66,666.
6.
Moreover, the DRC acknowledged that, the offer stipulated the following:
“The offer is subject to:
1.
Al Ahli agreeing all contractual terms with the player.
2.
The player successfully completing a medical examination to satisfaction of
the Al Ahli medical team.
3.
Club Bolivar relinquishing the ITC in favor of Al Ahli club.
This offer shall expire at 10:00 PM, GMT 04.06.2018”
7.
Furthermore, the Chamber took note that, on 16 July 2019, the Claimant sent a letter
to the Respondent, by means of which he affirmed having signed the contract on 1
June 2018 and alleged that the club, a few days later, informed him that “it will not
respect the signed contract and that he therefore must not join the club”.
8.
Having recalled the above, the DRC observed that, the Claimant, in his claim,
requested compensation for breach of contract in the amount of USD 1,300,000 plus
5% interest p.a. as of 2 June 2018.
9.
The Chamber further took note that the Respondent, for its part, rejected the
Claimant’s claim and affirmed that the offer validity expired on 4 June 2018 at
10:00PM and added that the Claimant informed the Respondent about his acceptance
on 16 July 2019, which was more than 13 months later than the date of the offer.
10.
The DRC judge further noted that according to the Respondent the negotiations with
Club Bolivar failed and, thus, it was prevented from concluding any contract with the
Claimant. In this respect, the Respondent argued that the offer could not be
considered as a valid and binding employment contract.
11.
The Chamber noted that according to the Respondent, as opposed to the Claimant,
no legally binding employment contract had come into effect between the Claimant
and the Respondent, as the parties merely signed an “Offer of Professional Contract”
(emphasis added) the object of which seemed to set forth the provisions of a
prospective employment contract.
12.
Consequently, the Chamber, first and foremost, focused its attention on the question
as to whether a legally binding employment contract had been concluded by and
between the Claimant and the Respondent.
13.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them had been concluded, the
members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules,
Player Marcos Daniel Riquelme, Argentina / Club Al-Ahli, Saudi Arabia
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according to which any party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. The application of the said principle in the
present matter led the members of the Dispute Resolution Chamber to conclude that
it was up to the Claimant to prove that the employment contract, on the basis of
which he claims compensation for breach of contract from the Respondent, indeed
existed.
14.
Having duly taken note of the aforementioned documentation presented by the
Respondent, the members of the Chamber held that in order for the Chamber to be
able to assume that the Claimant and the Respondent had indeed been bound
through a contractual relationship with the terms as described by the Claimant, it had
to be established, beyond doubt, by documentary evidence, that the said parties had
indeed entered into a respective labour agreement, and, if so, under which terms.
15.
In this context, the Chamber first noted that the “Offer of Professional Contract”,
dated 1 June 2018 contained a clear specification regarding its validity, namely it
should expire “at 10:00 PM, GMT 04.06.2018” in case no explicit acceptance would be
received from the player until that date and time. Bearing in mind the principle or
burden of proof, the DRC pointed out that the player bore the burden of
demonstrating beyond any doubt that he had indeed accepted the offer within the
stipulated deadline. In this respect, the Chamber noted that the only document
provide by the player was a reminder dated 16 July 2019, i.e. more than one year
after the expiry of the aforementioned deadline, claiming he had concluded a valid
employment with the Respondent on 1 June 2018.
16.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove beyond doubt that the
Respondent and the Claimant had validly entered into an employment contract.
17.
In this regard, the DRC further noted that the Claimant, at the time of the offer, was
under contract with the Club Bolivar until 30 June 2020 and, thus, was not in a
position to conclude a contract with the Respondent without Club Bolivar’s consent.
In addition, it appears that no agreement for the transfer of the Claimant was ever
concluded between Club Bolivar and the Respondent and no transfer instruction was
introduced by the latter in TMS.
As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove beyond doubt that an employment contract had validly
been concluded between himself and the Respondent, there was no possibility for
the Chamber to enter into the question whether or not such alleged employment
contract had been breached.
18.
19.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
Player Marcos Daniel Riquelme, Argentina / Club Al-Ahli, Saudi Arabia
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III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Marcos Daniel Riquelme, is rejected.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Marcos Daniel Riquelme, Argentina / Club Al-Ahli, Saudi Arabia
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