Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 January 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
S tefano S artori (Italy ), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
S hahab Zahedi Tabar, IR Iran
represented by Mr Arash Najafi
as Claimant
against the club,
S uw on S am s ung Bluew ings FC, Korea Republic
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 30 December 2018, the football agency SJP Entertainment addressed to the
Claimant an “invitation letter” to “Discussing the business and test in Korea
Football League Club”.
2.
On 8 January 2019, the Claimant arrived in Seoul.
3.
On 15 January 2019, the Claimant underwent medical tests at the facility
‘Dongsuwon Hospital’, the results of which are not pacific among the parties.
4.
On 16 January 2019, the Claimant underwent further medical tests at the
Respondent’s sports medical facilities.
5.
On 22 January 2019, the Claimant returned to Iran.
6.
On 9 April 2019, the Claimant lodged a claim against the Respondent in front of
FIFA, maintaining that the Respondent terminated the employment contract
without just cause and asking:
a. USD 200,000 as compensation “agreed in the contract”;
b. USD 1,000,000 for “breach of the agreement”;
c. Alternatively, “in case the DRC does not admit the conclusion of the
contract”, “damage compensation […] at least for half a season according
to objective criteria of FIFA jurisprudence”.
7.
The Claimant maintained that, after having undergone 2 medical tests the first of
which allegedly indicated a medical condition to his knee not affecting his
performance, he claims to have signed the employment contract. In this respect, he
presented a copy of such document, containing however only his signature.
8.
The Claimant further recalled that, after that, the Respondent published news on
its media channels concerning his recruitment.
9.
However, the Claimant explained that on 17 January 2019 he received a phone call
from his agent, asking him to “terminate the contract mutually”, which he
rejected. The Claimant further recalled that a few days later he left Korea and
returned to Iran.
10.
The Claimant pointed out that, after the medical tests, the Respondent held a
meeting with him to sign the employment contract and, thus, “all the elements of
the conclusion of a contract are accumulated”.
11.
In light of the foregoing, the Claimant concluded that the Respondent had
terminated the contract without just cause and requested compensation.
Player Shahab Zahedi Tabar, IR Iran / Club Suwon Samsung Bluewings FC, Korea Republic
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12.
The Respondent maintained that the parties had never entered into an
employment contract.
13.
Moreover, the Respondent explained that it was not the author of the document
as the “invitation letter” had been drafted by a sports agency.
14.
The Respondent recalled that, on 9 January 2019, the Claimant participated in its
training camps and that, on 15 and 16 January 2016, he underwent the
aforementioned medical tests. However, the Respondent underlined that these
medical tests did not show results suitable with playing football professionally.
15.
More specifically, the Respondent explained that the first test showed that the
Claimant had a ruptured anterior cruciate ligament and degenerated meniscus and
the second test concluded that there would be high possibilities of injuries for the
Claimant.
16.
That having been said, the Respondent recalled that, while waiting for the results
of the second exams, the parties had a meeting where the Claimant signed a draft
of the employment contract and the Respondent made it clear that it would sign
after the results of the tests.
17.
In this context, the Respondent argued that – by mistake – some of its staff
announced via social media the recruitment of the Claimant but that, as soon as
the error was clear, the announcement was removed.
18.
Moreover, the Respondent explained that after the results of the second tests
indicating high likelihood of injuries were provided, it was decided not to sign the
employment contract with the Claimant.
19.
The Respondent concluded that there could not be a breach of employment
contract since there was never an employment contract in the first place.
Moreover, the Respondent deemed to clarify that it never issued a note of
cancellation of the employment contract but only that the recruitment of the
Claimant had been cancelled.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA on
9 April 2019. 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
Player Shahab Zahedi Tabar, IR Iran / Club Suwon Samsung Bluewings FC, Korea Republic
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Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand (cf. article 21
par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between an Iranian player and a Korean club.
3.
Furthermore, 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, and
considering that the present claim was lodged on 9 April 2019, the June 2018
edition of said regulations (hereinafter: 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. The members
of the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the 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.
5.
Having said that, the Chamber noted the diverging positions of the parties and
established that the main issue in the present case is whether the parties indeed
had a contractual relationship with each other. In particular, the DRC noted that
while the player claims to have signed a valid and binding contract with the club,
the latter denies having done so after the unsatisfactory medical results of the
player.
6.
At this point, the DRC deemed it important to remind the parties of the principle
of burden of proof, as in art. 12 par. 3 of the Procedural Rules, according to which
a party claiming a certain right bears the burden of proof. Having said that, the
Chamber emphasised that, in the present case, the burden of proof lies with the
player.
7.
The DRC then started by acknowledging the fundamental documentation
presented in the case at hand, namely the invitation letter and the alleged
employment contract.
Player Shahab Zahedi Tabar, IR Iran / Club Suwon Samsung Bluewings FC, Korea Republic
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8.
As to the invitation letter, the DRC first noted that the latter was issued by the
football agency SJP Entertainment, with the purpose of “Discussing the business
and test in Korea Football League Club”. The letter also did not contain a
designated space for the signature of the player. As to the alleged employment
contract, the copy provided by the player contains his signature only. The club
denies having ever signed such document and no evidence of the contrary was
provided by the player.
9.
In view of the foregoing, the Chamber recalled that in order for a document to be
considered as valid and binding employment contract, 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, the remuneration and the signature of
both parties. After a careful study of the invitation letter and of the alleged
employment contract presented by the player, the Chamber concluded that none
of the aforementioned documents actually contained such essential elements.
10.
Therefore, the Chamber concluded that the player could not prove that he had a
valid and binding contract with the club.
11.
The Chamber concluded its deliberations by deciding that the player’s claim is
rejected.
*****
Player Shahab Zahedi Tabar, IR Iran / Club Suwon Samsung Bluewings FC, Korea Republic
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III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Shahab Zahedi Tabar, 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 art. 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.
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 Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Shahab Zahedi Tabar, IR Iran / Club Suwon Samsung Bluewings FC, Korea Republic
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