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,
Cléber Francis co Alv es Pacheco De Alm eida Prado, Brazil
represented by Mr Mauricio Ferrão Pereira Borges
as Claimant
against the club,
Al Nahda, Oman
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On an unspecified date, the player and the club signed an employment contract
(hereinafter: the contract) valid as from 25 July 2018 until 24 May 2019.
2.
In accordance with clause 1 of the contract, the club undertook to pay to the player, inter
alia, a monthly salary of “USD 2,300 (equivalent to [Omani Rial] RO 887.800)”.
3.
On 10 December 2018, the parties signed a document with the title “Adoption”
(hereinafter: the document dated 10 December 2018), by means of which it was
acknowledged by both parties that the club will pay the player’s monthly salaries for the
months of November and December 2018, in the amount of RO 887.800 each, “in February
2019”.
4.
On 20 December 2018, the parties signed an agreement titled “Clearance financial player
Cleber Francisco Alves Pacheco de Almeida Prado” (hereinafter: the termination
agreement), by means of which the employment contract was terminated by mutual
consent of the parties. Said agreement reads as follows:
“In reference to the meeting which was between you and [the club] to terminate the
contract between the two parties to share with the first team this season, we have agreed
to terminate the contract by mutual consent between the two parties, and therefore does
not have any financial obligations of the parties (the club and the player) and not the right
of any party in any other claims after such removal and the contract is canceled from
20/12/2018 and the player is free to contract with any other club”.
5.
On 7 March 2019, the player put the club in default of payment of USD 4,600 via email,
corresponding to his outstanding salaries for the months of November and December
2018, setting a 10 days’ time limit in order to remedy the default. In his default notice, the
player referred to the document dated 10 December 2018 and explained that “although
[the club] and the player terminated the employment agreement on 20 December 2018,
the club was obligated to pay the player’s salaries of November (OMR 887.800/USD 2,300)
and December (OMR 887.800/USD 2,300), totaling 1775.600 in February 2019, as to the
agreement dated 10 December 2018”.
6.
On 13 March 2019, the player put the club in default for a second time and reiterated the
content of his correspondence dated 7 March 2019.
7.
On 27 May 2019, the player lodged a claim for outstanding remuneration and breach of
contract against the club in front of FIFA requesting the total amount of USD 18,975 (or
OR 7,324.350), representing “8,25 salaries”. The player further asked to be awarded 5%
interest p.a. “as from the date in which the payments should be made”.
Player Cleber Francisco Alves Pacheco de Almeida Prado, Brazil / Club Al Nahda, Oman
2
8.
In particular, the player deemed that the termination agreement dated 20 December
2018 should be declared null and void “since the reason the player accepted to early
terminate the employment relationship was the promise of payment agreed on 10
December 2018 and the club never intended to comply with its financial obligations ”.
What is more, the player held that “the only reason it promised to pay two monthly
salaries was to avoid the unilateral termination of the employment contract due to
overdue payments”.
9.
Furthermore, the player affirmed “it is clear that the club did not want to comply with
its financial obligations and, therefore committed a unilateral breach of the
employment contract without just cause”.
10. In this context, the player referred to the contract and affirmed that the club only paid
“one monthly salary (USD 2,300) and 75% of another month (USD 1,725)” and
consequently claimed being entitled to “the whole amount due as to the original
contract”, i.e. the total amount of USD 18,975 (or OR 7,324,350), corresponding to
“8.25 salaries”.
11. In its reply to the claim, the club stated that the player “has received all his funds” and
submitted a copy of the termination agreement dated 20 December 2018.
12. In response to FIFA’s request, the player stated that he had signed an employment contract
with the Portuguese club, Uniao da Madeira, valid as from 20 February 2019 until 30 June
2019, for a monthly salary of EUR 900.
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 27 May 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 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 a Brazilian player
and an Omani club.
Player Cleber Francisco Alves Pacheco de Almeida Prado, Brazil / Club Al Nahda, Oman
3
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 27 May 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.
13. The DRC then started by acknowledging that on an unspecified date, the player and the
club signed an employment contract valid as from 25 July 2018 until 24 May 2019.
Furthermore, the Chamber acknowledged that on 10 December 2018, the parties signed a
document named “Adoption”, by means of the club undertook to pay the player’s monthly
salaries for November and December 2018. Finally, the Chamber noted that on 20
December 2018, the parties signed the “Clearance financial player Cleber Francisco Alves
Pacheco de Almeida Prado”, through which they “[…] agreed to terminate the contract
by mutual consent between the two parties, and therefore does not have any financial
obligations of the parties (the club and the player) and not the right of any party in any
other claims after such removal and the contract is canceled from 20/12/2018 and the
player is free to contract with any other club”.
14. In particular, the Chamber noted that the player does not deny having signed the
clearance, but claims to have done so precisely in order to receive his salaries of November
and December 2018.
15. In this regard, the Dispute Resolution Chamber deemed it appropriate to remind the
parties of its longstanding jurisprudence according to which a party signing a document
of legal importance without knowledge of its precise contents, as a general rule, does so
on its own responsibility. In this respect, and in relation to the player’s arguments, the
Chamber recalled that according to the legal principle of the burden of proof, any party
claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12
par. 3 of the Procedural Rules). In this context, the DRC concluded that the Claimant was
unable to provide any substantial evidence of the nullity of the clearance. In view of all the
foregoing, the DRC concluded that the parties had indeed agreed upon the mutual
termination of the contract by means of the clearance and that through this document
they stated that the parties did not have any pending financial obligations towards each
other.
Player Cleber Francisco Alves Pacheco de Almeida Prado, Brazil / Club Al Nahda, Oman
4
16. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that the claim lodged by the Claimant is rejected.
III. Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Cléber Francisco Alves Pacheco De Almeida Prado, 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 Cleber Francisco Alves Pacheco de Almeida Prado, Brazil / Club Al Nahda, Oman
5