Labour Disputes
Texto da decisão
REF. FPSD-9348
Decision of the
Dispute Resolution Chamber
passed on 26 May 2023
regarding an employment-related dispute concerning
the player Gustavo Almeida dos Santos
BY:
Frans DE WEGER (The Netherlands), Chairperson
Roy VERMEER (The Netherlands), member
Mario FLORES CHEMOR (Mexico), member
CLAIMANT:
Gustavo Almeida dos Santos, Brazil
Represented by Pedro Macieirinha
RESPONDENT:
Bhayangkara FC, Indonesia
pg. 2
REF. FPSD-9348
I. Facts of the case
1.
The parties to the dispute are the Brazilian player, Gustavo Almeida dos Santos (hereinafter: the
Claimant or the player) and the Indonesian club, Bhayangkara FC (hereinafter: the Respondent or the
club).
2.
On 20 December 2022, the club provided the player with an “official offer to play for Bhayangkara FC”
(hereinafter: the offer).
3.
Point 1 of the offer reads as follows:
“1. Cooperation terms:
a. Tenure: 6 months, from contract signation
b. Contract value: USD 72,000
c. Down payment (20%): USD 14,400
d. Monthly salary (“salary”): USD 9,600, payable in 6 instalments;
e. Other benefits:
i. 1 return flight economic tickets for the player and spouse (route Brazil ->
Indonesia -> Brazil);
ii. Fully furnished rented residence with club standard;
iii. Rented car (gas not included);
iv. KITAS (immigration stay permit) administering cost for the player and spouse;
f. Health facility and other welfare facility, shall set on cooperation agreement;
g. Salary and other benefits shall be paid by cub to you in IDR (Indonesian Rupiah) basis;
h. (…) Goal Bonus will be given when the team wins the official match and you create goal,
in the amount of USD 250 per goal”.
4.
The offer additionally establishes the following:
“2. The cooperation agreement shall be signed between the club and you, after you pass the medical
test and all administration requirement has complete and fully legal including your verification status
is valid under PSSI and PT. Liga Indonesia Baru (or other league / competition operator) regulation.
3. Your other rights and obligations shall be regulated in the cooperation agreement which shall signed
between the club and you, and this offering letter shall un-separatable from the cooperation
agreement.
4. If you are interested in our offer and are willing to join our team, please send your willingness by
replying to our letter. We greatly appreciate your presence in Jakarta so that we can sit together to
discuss in more detail about your cooperation agreement”.
5.
It is to be noted that the specimen of the offer provided by the player is allegedly signed by the club
and the player but does not contain any designated space for the player’s signature or expression
of acceptance.
6.
On 7 January 2023, the player sent the club an email, stating his acceptance of the club’s contract
offer. He further stated: “I’m anxious to join the team to fulfil this contract. Waiting your call”.
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REF. FPSD-9348
7.
On 10 January 2023, the player sent the club a default letter, by means of which he states having
concluded a contract with the club on 7 January 2023. He claims to have travelled to Indonesia with
a flight ticket provided by the club, in accordance with the official offer signed between the parties.
The player however states that the club refused to register him, since he allegedly did not pass the
medical exams. The player manifested that the parties have an employment agreement and that
the club was in breach of it. The player thus requested the club to provide him with the “necessary
conditions for sports participation, as well as effective participation in training, and in official matches,
as well as other preparatory or instrumental activities of sports competition, ensuring the right to effective
occupation” within the following 15 days. Otherwise, the player would consider himself entitled to
terminate the contract with just cause.
8.
On 17 January 2023, the player signed a new employment contract with the Kuwaiti club Al Nasr
Sporting Club, valid from 1 January 2023 to 30 June 2023, for a total remuneration of USD 70,000.
9.
On 23 January 2023, the club replied to the player’s letter, stating that they clearly declared in their
first meeting that the offer of 20 December 2022 is not a pre-contract binding the parties. As per the
club, the player did not pass the medical tests and therefore, in line with point 2 of the offer, an
employment contract shall not be concluded between the parties. The club claims to have borne the
costs of the player’s and his wife’s travel to and stay in Indonesia. The club further argued that the
player is now back in Brazil and there are no obligations between the parties.
10. On 24 January 2023, the player replied to the club, rejecting the content of its previous letter. The
player insisted that the parties had a valid and binding employment contract since 7 January 2023
and that he had travelled to Indonesia in order to start executing such contract. The player claimed
the CAS’ current jurisprudence considers invitation letters as pre-contracts, in case they contain all
the essentialia negotii. In his view, this is the case with the club’s offer of 20 December 2022 and
therefore the club is breaching their valid contract, by refusing to execute it. Furthermore, he
claimed that a medical examination cannot be a condition of validity of a contract. Thus, the player
once again requested the club to allow him to perform the contract latest by 25 January 2023. In
case this was not done, the player would be entitled to terminate their contract with just cause and
claim compensation.
11. On 26 January 2023, having received no reply from the club, the player sent a letter to the club
unilaterally terminating the alleged contract with the club. He claimed the payment of compensation
for breach in the total amount of USD 86,400, plus interest of 5% as from the due dates, within the
following 10 days, failing which he would lodge a claim in front of FIFA.
II. Proceedings before FIFA
12. On 21 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
13. The player claims having concluded with the club a valid employment contract, but having later on
been informed by the club that it would not proceed with his registration, as he had allegedly not
succeeded the medical exam. Despite his warnings and reminders that the document concluded
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REF. FPSD-9348
contained all the essentialia negotii and that the validity of a contract cannot be subject to successful
medical examinations, the club still did not allow him to start executing the contract. Thus, the player
claims to have had a just cause to terminate it on 26 January 2023 and to request the payment of
compensation from the club. The player understands the club’s attitude as abusive behaviour in
order to force the termination of the contract.
14. Based on the foregoing and after amending his claim, he requests the club be ordered to pay
compensation for breach of contract in the total amount of USD 72,000, corresponding to the entire
value of the alleged contract. It is to be noted that interest is no longer requested in the amended
claim.
b. Position of the Respondent
15. In its reply, the club denies having concluded a valid and binding contract with the player. In brief, it
states that the offer clearly reads that a contract will only be signed at a later stage in case the player
passes the medical examinations. Furthermore, it does not require the acceptance of the player and
contains no designated space for him to agree to its terms.
16. The club further claims that the alleged signature of the player included in the offer attached to the
claim is a forgery, as the document in their possession only contains their own signature.
17. The club is of the opinion that as the player did not pass the medical exams of the club, no
employment contract was signed, and the player returned to Brazil. In support of this, the club filed
a medical report, dated 5 January 2023, in which it is stated that “Based on points 1 and 2 found from
the results of the examination, I as team doctor do not recommend [the player] to join [the club]”.
18. By the same token, also the club filed a “decree letter” issued by the same on 5 January 2023, in
which it is decided that the player does not meet the minimum medical requirements as stated in
the offer to join the club and that the costs for his stay in Indonesia and return to Brazil would be
borne by the club.
19. The club claims that the acceptance email of 7 January 2023 was fabricated and that all expenses
for the player’s travel to Indonesia as well as for his stay, to perform the tests, were borne by the
club. Contextually, the club filed payment receipts in support of its position.
20. Thus, the club understands that the parties did not sign a valid and binding contract. As such, it
submitted that the player’s claim has no contractual basis and should be entirely rejected.
pg. 5
REF. FPSD-9348
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 21 February 2023 and submitted for decision on 26
May 2023. Taking into account the wording of art. 34 of the March 2023 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.
22. 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 2023 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 player from Brazil and a club from Indonesia.
23. 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 2023 edition), and considering that the
present claim was lodged on 21 February 2023, the October 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
24. 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 based on 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
25. 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
26. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that this is a claim of a player against a club for alleged non-execution of
contract by the club.
27. In brief, while the player claims that he had a valid and binding contract with the club, consisting of
the offer sent by the club on 20 December 2022 and accepted by him on 7 January 2023, the club
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REF. FPSD-9348
deems that the offer clearly indicated that it was not to be considered as a contract and that an
official employment contract was never signed by the parties, as the player failed his medical exams.
28. Thus, the DRC confirmed that the main issue in the present claim is to determine whether the offer
can be considered as a valid and binding employment contract. In doing so, 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 (or the corresponding proof of consent of both parties), 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.
29. From the arguments of the parties and the documentation on file, the Chamber was able to establish
that:
-
The offer clearly states that an employment contract shall only be signed once the player passes
his medical exams;
-
The offer does not contain any designated space for the player’s signature or expression of
acceptance;
-
The player’s acceptance email is dated 7 January 2023, while the medical exams and the club’s
“decree” deciding not to conclude an employment contract are dated 5 January 2023, which does
not make chronological sense;
-
On 17 January 2023, i.e., between his 1st and his 2nd warnings to the club, the player concluded
an employment contract with a Kuwaiti club, for the total amount of USD 70,000.
30. Considering the above, the Chamber found of paramount importance that the employment
document (i.e., the offer) was only signed by the club’s representative and did not even include the
designated space for the player to insert his signature. In this respect, the Chamber concurred with
the club’s argumentation and considered that the disputed document was not meant to be a
bilateral document (i.e., an employment contract), but solely a unilateral offer to the player in order
to enable his participation in a trial period.
31. The Chamber also found it noteworthy that the player did not provide any evidence capable of
demonstrating that any other document was ever concluded between the parties with a view to
confirm that the conditions described in the employment offer were indeed validated. In light of the
abovementioned considerations, the Chamber concluded that the essential elements mentioned by
the jurisprudence were not fully included in the document at the basis of the dispute and therefore
the employment offer was not able to trigger the consequences of a labour relationship between
the parties.
32. Moreover, the DRC highlighted that the player signed a new employment contract with another club
on 17 January 2023, valid as from 1 January 2023, for a very similar value as that listed in the offer.
As such, in case the offer would be considered as valid, the player would have signed two valid
employment contracts for the same period, which goes against his line of argumentation, and in
fact further denotes that the offer did not constitute a valid and binding document.
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REF. FPSD-9348
33. In this respect, the Chamber remarked the factual framework involving the negotiations between
the parties and, specifically, to the correspondence exchanged in the context of the acceptance of
the employment proposal. In particular, the Chamber observed that, in accordance with the
documentation provided, the player failed to demonstrate (a) in an explicit manner, (b) in writing
and (c) within a reasonable time that he had had accepted the proposal of the club by means of
which he would have unmistakably thereby conveyed his agreement to the establishment of a valid
and binding employment relationship with the club.
34. On the basis of the foregoing, the Chamber concluded that the player could not meet his burden of
proof to demonstrate that an employment relationship was ever initiated with the club and
therefore his claim lacked any contractual basis whatsoever. Accordingly, the Chamber by
unanimous decision found that the claim must be entirely rejected.
d. Costs
35. 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.
36. 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.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
pg. 8
REF. FPSD-9348
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Gustavo Almeida dos Santos, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-9348
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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