Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 23 March 2006, in the following composition: Slim Aloulou (Tunisia), Chairman Mario Gallavotti (Italy), Member Peter Friend (Australia), Member Mick McGuire (England), Member Gerardo Movilla (Spain), Member on the claim presented by Club A, as Claimant against Player B, as Respondent regarding a dispute about the employment contract concluded between the parties.
I. Facts of the case 1. The player B (hereinafter; the player), born on 8 April 1987, concluded an employment contract with the club A (hereinafter; the club) on 6 December 2004, valid as of 1 December 2004 until 31 December 2006. 2. Annex 2 to the contract stipulates a monthly salary of USD 3,000. 3. Due to the player s minor age at that time, the contract and all annexes were faxed to his guardian, who co-signed them. 4. In May 2005, the player joined his U-20 association team for a preparation camp for the U-20 World Cup in the Netherlands. 5. On 27 May 2005, the player s Association had to hand to the organisation committee of the U-20 World Cup the official final list of players of its squad. The player in question was not included in the list. 6. On 7 June 2005, the club requested FIFA s intervention, since the player in question did not resume duty after it was announced that he was not in the official final list of players of the squad of his Association s representative U-20 team. 7. The player did not respect the request to return to the club, but on 2 July 2005, contacted FIFA, maintaining that he had been deceived by the CEO of the club to sign the above-mentioned employment contract. 8. On 1 August 2005, the player completed his former submission, requesting the annulment of the employment contract and disciplinary sanctions against the club. 9. First of all, the player complained that the contract does not stipulate any obligation of the club to provide him with the basic requirements, such as accommodation, feeding and educational support. 10. Moreover, he stated that a third club X was responsible for his training and education, and that therefore the club could not have signed an employment contract with him. The player did not submit any agreement signed by him and the club X. 11. Finally, the player accused the club A of non respect of the FIFA regulations regarding the protection of minors, because the relevant contract was signed when he still was a minor. In this regard, the player also complained that the 2/10
contract was signed without contacting his agent beforehand, but sent to his guardian for signature. 12. The player furthermore submitted a statement of his guardian, by means of which the latter confirmed having co-signed the contract in question. The guardian, however, alleges that as far as annex 2 of the contract is concerned, only the signature sheet was sent to him, therefore he was not aware of the contractual salary. 13. On 15 August 2005, the club answered to the player s accusations by stating that the player was not deceived into signing the relevant employment contract, but that he signed the contract in free will. 14. Besides the above, the club refrained from making any further statements, as it appeared that the situation could be resolved amicably between the parties, since according to media reports, the player was about to return to the club. 15. On 22 August 2005, the player contested that he would be about to return to the club. 16. On 26 August 2005, the club stated that the player was bound by an employment contract to the club and that he therefore had to resume duty immediately. The club, however, was still of the opinion that the matter could be solved amicably. 17. In contradiction to the afore described circumstances, the club now stated that the player and the club had signed a contract on 8 April 2005 (instead of 6 December 2004). 18. On 6 September 2005, the player stated that an amicable settlement of the matter was not likely. 19. The player was still of the opinion that he was deceived by the club when he signed the employment contract. 20. Moreover, the player denied having signed an employment contract with the club on 8 April 2005, the date when he turned 18 years of age. 21. On 30 September 2005, the club informed FIFA that the player had resumed duty on 5 September 2005. 3/10
22. Moreover, the club stated that the player had a work permit valid until 31 December 2006, and that all his salaries were paid so far, despite his absence. 23. In continuation, the club reserved its right to make a claim against the player for his unexcused absence from 27 May to 5 September 2005, but for the time being, refrained from submitting an official claim, since the player apparently acted under high pressure of his counsels. 24. Finally, the submission contained a copy of the employment contract between the parties concerned, dated 8 April 2005, and valid as of 8 April 2005 until 31 December 2006. 25. On 25 October 2005, the player informed FIFA that he insisted on a formal decision to be taken by the Dispute Resolution Chamber. 26. First of all, the player confirmed having resumed duty with the club on 5 September 2005, and in this regard, also confirmed that the club respected its financial obligations towards him. 27. In continuation, he insisted that he and his guardian did not sign any contract with the club on 8 April 2005. He instead alleged that the CEO of the club altered the date on the initial contract dated 6 December 2004. In this regard, he furthermore stated that on 8 April 2005, the signature of his guardian would anyway not have been necessary, since on that date, he turned 18 years of age. 28. Finally, he stated that he was illegally registered for the club, since his former Association allegedly never sent his International Transfer Certificate to the new Association. 29. On 7 December 2005, the club informed FIFA that the player in question again left the club without permission on 28 November 2005, and therefore requested FIFA to intervene so that the player would immediately return to the club. 30. On 11 December 2005, the club provided FIFA with its final position on the matter, and thereby made, inter alia, the following statement: The contract [dated 8 April 2005] seems to be co-signed by the player s guardian, but that was because of an administrative error made by an official of the club some of the pages from an earlier option contract was delivered to the Association, which recognised it and issued a professional player s licence. 4/10
31. Moreover, the club stated that the employment contract with the player was valid, since the player accepted the contract by acting accordingly. 32. On 15 February 2006, the player submitted his answer to the club s request for immediate return, and thereby maintained that he was absent from the club due to his participation with his Association team in an international tournament. In continuation, he stated that on 16 February 2006, he allegedly had to attend to an award ceremony. Finally, he stated that he planed to rejoin the club upon conclusion of the activities connected with such ceremony. 33. Besides the above, he still maintained that the employment contract binding him to the club was not valid, since he was deceived into signing the said contract. 34. NB: Through investigations carried out by FIFA, it was established that the player s new Association requested the issuance of the player s International Transfer Certificate from the player s former Association on 20 August 2004. In reply to such request, the latter issued the player s International Transfer Certificate on 23 August 2004. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (DRC) analysed whether it was competent to deal with the matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber. The present matter was submitted to FIFA on 7 June 2005, as a consequence the Chamber concluded that the previous Procedural Rules (edition 2001) on matters pending before the decision making bodies of FIFA are applicable on the matter at hand. 2. With regard to the competence of the DRC, art. 42 par. 1 lit. (b) (i) of the FIFA Regulations for the Status and Transfer of Players (edition 2001) establishes that, the triggering elements of an employment-related dispute (i.e. whether a contract was breached, with or without just cause, or sporting just cause) will be decided by the Dispute Resolution Chamber. 3. As a consequence, the Dispute Resolution Chamber is the competent body to decide on the present litigation involving a club and a player with different nationalities regarding a dispute in connection with an employment contract. 5/10
4. Subsequently, the members of the Chamber analyzed which edition of the Regulations for the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players (edition 2005) and, on the other hand, to the fact that the relevant contract at the basis of the present dispute was signed on 6 December 2004 and the claim was lodged at FIFA on 7 June 2005. In view of the aforementioned, the Chamber concluded that the former FIFA Regulations for the Status and Transfer of Players (edition 2001, hereafter: the Regulations) are applicable on the case at hand as to the substance. 5. Entering into the substance of the matter, the DRC acknowledged the documentation contained in the file, and in view of the circumstances of the case, focused on the question whether the employment contract between the club and the player was to be considered as null and void or if the player had to resume duty with the club. 6. In this respect, the DRC had, in particular, to analyse the following argumentations (in italics) forwarded by the player, according to which the said employment contract, from the player s point of view, should be declared null and void. 7. 1) The player had been deceived by the CEO of the club to sign the abovementioned employment contract. 8. The DRC acknowledged that the player alleged that he had been deceived to sign the employment contract in question, but that he had neither outlined how this should have happened, nor submitted any clear evidence corroborating such allegation. 9. Therefore, in application of the principle of the burden of proof, and due to lack of evidence, the DRC had to reject the first argument of the player. 10. 2) The employment contract does not stipulate any obligation of the club to provide the player with the basic requirements, such as accommodation, feeding and educational support. 11. The DRC deliberated if clubs are obliged, according to the Regulations, to provide their players with basic requirements, such as accommodation, feeding and educational support. 12. In this respect, the DRC could only refer to art. 12 par. 1 b) of the Regulations, based on which an international transfer of a minor within the EU/EEA shall only be permitted in case the player concerned has reached the minimum working age in the new training club s country, and if suitable arrangements are 6/10
guaranteed for the player s sports training and academic education by the new training club. 13. The DRC had to clarify, however, that the above-mentioned provision 1) does not concern the validity of an employment contract, but only the possibility of an international transfer of a minor, and 2) does apply only to transfers of players between two clubs affiliated to Associations in the EU/EEA. 14. In the present case, the player challenged the validity of the employment contract, but not the validity of his international transfer. 15. Moreover, the international transfer of the player did obviously not occur between two clubs affiliated to Associations in the EU/EEA. Therefore, the above-mentioned provision does not apply to the matter at stake 16. In conclusion, the DRC had to reject such argumentation of the player. 17. 3) The club X was responsible for the player s training and education, therefore the club could not have signed an employment contract with the player. 18. The DRC acknowledged that the player had not submitted any agreement signed between him and club X, according to which club X would be responsible for his training and education. 19. Therefore, in application of the principle of the burden of proof, and due to lack of evidence, the DRC had as well to reject the third argument of the player. 20. 4) The club had not respected the FIFA regulations regarding the protection of minors, because the relevant contract was signed when he still was a minor. 21. With regard to this argument, the DRC emphasized that the FIFA regulations regarding the protection of minors (i.e. art. 12 of the Regulations) do not bar the conclusion of an employment contract between a minor player and a club, but only the international transfer of such player, i.e. the issuance of the player s International Transfer Certificate. 22. In view of the player s request that the employment contract in question shall be declared invalid, the DRC had to state that the provision invoked by the player does not have any effect on the validity of the relevant employment contract, and therefore had to reject argument 4 of the player. 23. The DRC, however, took note of the fact that the player s International Transfer Certificate was requested by the player s new Association and issued by the player s former Association before the player had reached the age of 18. Therefore, the DRC decided, ex officio, that the questions related to the issuance 7/10
of the player s International Transfer Certificate shall be referred to the FIFA Player s Status Committee, for consideration and possible measures. 24. 5) The contract was signed without contacting the player s agent beforehand, but sent to his guardian for signature. 25. The DRC underlined that if a minor player signs an employment contract, the same must be co-signed by the player s legal representative/guardian in order to be valid. There is, however, no obligation contained in the applicable Regulations of FIFA preventing a minor player from signing an employment contract with a club without contacting his agent beforehand. The same applies for a club entering into a contract with a minor player. Such club has no obligation to contact the player s agent before the conclusion of an employment contract. 26. Therefore, and in view of the fact that the minor player s legal representative/guardian undisputedly had co-signed the employment contract, also from this point of view the DRC considered the said contract as having been concluded validly, and hence had to reject argument 5 of the player. 27. 6) As far as annex 2 of the contract is concerned, only the signature sheet was sent to the guardian, therefore he was not aware of the contractual salary. 28. The DRC duly acknowledged this argument of the player, but once again had to take note of the fact that no evidence at all was presented in order to corroborate such position. Equally, the DRC emphasised that if indeed only the signature sheet had been forwarded to the player s guardian, which was not proven, it would have been the guardians responsibility to insist on receiving the entire annex prior to signing it. 29. Therefore, in application of the principle of the burden of proof, and due to lack of evidence, the DRC had as well to reject this argument of the player. 30. Moreover, the DRC declared that signing a contract without knowing the contract s content, and without insisting to be provided with or informed about the relevant content is a negligence by the signatory which cannot have consequences on the contractual partner. 31. Assuming the guardian of the player was indeed not aware of the entire contents of annex 2 when he signed it, it was negligent of him to sign it nevertheless, instead of insisting to be provided with the entire document. The consequences of such negligence by the player s guardian could not be imposed on the club. 8/10
32. 7) The player denied having signed an employment contract with the club on 8 April 2005; the CEO of the club altered the date on the initial contract dated 6 December 2004. 33. The DRC emphasised that since the contract dated 8 April 2005 did neither modify the rights and obligations of the parties resulting from the contract dated 6 December 2004 nor the expiry date of the contractual relationship between the parties concerned, an annulment of the contract dated 8 April 2005 would not have any effect on the validity of the contract dated 6 December 2004. 34. Moreover, the DRC stated that in the past, it had, on several occasions, to deal with cases concerning the alleged forgery of signatures and documents. In such cases, the DRC continuously established that FIFA is not competent to decide upon matters of criminal law, such as signature or document forgery, but that such affairs fall into the jurisdiction of the competent national criminal authority. 35. As long as the possible forgery of the contract dated 8 April 2005 is not established, the DRC has to base its conclusion and decision on the presumption that the contract in question is authentic. All the more, as the player did not present any indication at all which would at least suggest that his allegation could be correct. 36. 8) The player was illegally registered for the club, since his former Association allegedly never sent his International Transfer Certificate to his new Association. 37. In view of the investigations carried out by FIFA, by means of which it was established that the player s International Transfer Certificate was requested and issued by the competent Associations, the last argument of the player was declared by the DRC as being wrong. 38. In view of all the above, the DRC concluded that the invalidity of the employment contract in question, i.e. the contract dated 6 December 2004, was not established by the claimant. Therefore, in application of the principle of pacta sunt servanda, which is a basic principle to every legal system in the world, the DRC decided that the player had to resume duty with the club immediately. 39. Finally, the DRC also pointed out that the player had explicitly recognised that the club had fully complied with the payment of his salary and thus had always adhered to its contractual obligations. 9/10
III. Decision of the Dispute Resolution Chamber 1. The claim of the club is accepted. 2. The counterclaim of the player is rejected. 3. The player has to resume duty with the club immediately. 4. In the event that the player does not comply with the present decision, the matter shall be submitted to FIFA s Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 5. The present file shall be forwarded to the Players Status Committee for consideration regarding the circumstances of the issuance of the International Transfer Certificate for the player. 6. According to art. 60 par. 1 of the FIFA Statutes this decision may be appealed before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receiving notification of this decision and has to contain all elements in accordance with point 2 of the directives issued by the CAS, copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for the filing of the statement of appeal, the appellant shall file with the CAS a brief stating the facts and legal arguments giving rise to the appeal (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: For the Dispute Resolution Chamber: Château de Béthusy Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 info@tas-cas.org www.tas-cas.org Urs Linsi General Secretary Encl. CAS directives 10/10