Labour Disputes
Texto da decisão
REF. FPSD-10304
Decision of the
Dispute Resolution Chamber
passed on 17 August 2023
regarding an employment-related dispute concerning
the player Pedro Paulo Alves Vieira Dos Reis
BY:
Frans de Weger (the Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Pedro Paulo Alves Vieira Dos Reis, Brazil
Represented by Breno Costa Ramos Tannuri
RESPONDENT:
Nam Dinh, Vietnam
pg. 2
REF. FPSD-10304
I. Facts of the case
1.
According to the Brazilian player, Pedro Paulo Alves Vieira Dos Reis (hereinafter: Claimant
or player), on 26 January 2023, he and the Vietnamese club, Nam Dinh (hereinafter: club or
Respondent) concluded an employment contract (hereinafter: alleged contract) valid as from
26 January 2023 until “the end of the season 2023”.
2.
According to the information contained in the Transfer Matching System (TMS), the
sporting season 2023 in Vietnam will end on 30 August 2023.
3.
According to the alleged contract, the Respondent undertook to pay the Claimant a
monthly salary of USD 10,000.
4.
On 17 January 2023, the Immigration department of Vietnam granted the player a VISA
upon the club’s request “for the purpose of working”.
5.
On 22 January 2023, the player took a flight to Vietnam.
6.
On 26 January 2023, the player signed the alleged contract.
7.
On 29 January 2023, according to the player, he played in a friendly match for the club.
8.
On 1 February 2023, according to the player, the club terminated the contract with the
player “verbally” without giving any reasoning.
9.
On 1 June 2023, the player signed an employment contract with the Indonesian club, Persik
Kediri, valid as from 1 June 2023 until 30 March 2023, including a monthly salary of USD
10,000. Said contract was mutually terminated at the end of June 2023.
10. On 17 July 2023, the player signed an employment contract with the Thai club, Nakhonsi
United, valid as from 17 July 2023 until 31 May 2024, including a monthly salary of Thai Baht
(THB) 200,000 (approx. USD 5,800).
II. Proceedings before FIFA
11. On 23 May 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
12. In his claim, the player requested payment of the following monies:
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REF. FPSD-10304
-
USD 1,935.48 as outstanding remuneration corresponding to the salary of
January 2023 plus 5% interest p.a. as of 1 February 2023;
- USD 70,000 as compensation for breach of contract plus 5% interest p.a. as of 2
February 2023;
13. In his claim, the player argued that an employment contract was concluded between the
parties, which was terminated without just cause by the club.
14. In this framework, the player held that during the previous season (until December 2022),
he was under contract with a different club in Vietnam and that after expiration of this
contract, he was a “free agent”.
15. According to the player, in January 2023 he was contacted by an agent called Thinh Nguyen
acting on behalf of the club. After negotiations, the player agreed to the terms of the
alleged contract.
16. In order to support his allegations that the club indeed offered the alleged contract, he
maintained that the club issued the flight tickets to return to Vietnam and organised the
respective VISA for the player.
17. The player brought forward that after he signed the alleged contract in the offices of the
club, the Respondent assured him that he would receive a signed copy after its registration
with the Vietnamese Football Federation.
18. Subsequently, the club informed him that his squad number was 99 (note: club internal
document supporting such allegation is on file) and produced shirts with his name on the
back.
19. According to the player, on 29 January 2023, he took part in a friendly match against Hanoi
Police club.
20. Subsequently, the club used his image to promote its next match on national television.
21. Nevertheless, the player argued that on 1 February 2023, the club verbally terminated the
contract with him in order to register a different foreign player.
22. On account of all the above, the player pointed out that a valid employment contract was
concluded between the parties, as all essentialia negotii were included in the alleged
contract.
23. The player held that the missing signature on the document he received does not mean
that no consent was given by the club. In contrary, taking into account all the elements
specified above, he held that the club showed such consent with its actions.
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REF. FPSD-10304
24. He further referred to a different DRC decision which stated:
“In spite of the fact that no signed specimen of the contract was provided (at least, not one
signed by the club as the copy provided by the player carries only his own signature), in the DRC’s
view the club undertook all the necessary steps to hire the player, including: receiving him in its
premises, allowing him to train with his the rest of the team, drafting and allowing him to sign
a contract, and, most importantly, providing him with the work visa (up until October 2021).”
(DRC decision dated 29 July 2021 (FPSD-2192).
b. Position of the Respondent
25. The Respondent has failed to reply to the claim.
c. Information from the Vietnamese Football Federation
26. Upon request, the Vietnamese Football Federation stated that it “neither have nor record
any employment contracts or any agreement”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 23 May 2023 and submitted
for decision on 17 August 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.
28. 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 and a club.
29. 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
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REF. FPSD-10304
considering that the present claim was lodged on 23 May 2023, the March 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
30. 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 on the basis of
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
31. 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 above-mentioned 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
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for breach on the basis of an allegedly concluded contract.
33. In this context, the Chamber acknowledged that its task was to decide if the parties indeed
entered into a valid and binding contractual relationship, and in the affirmative to decide
on the consequences thereof.
34. The Respondent, for its part, failed to present its response to the claim of the player, in
spite of having been invited to do so. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
35. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
pg. 6
REF. FPSD-10304
36. In this framework, the DRC started to assess whether the parties indeed signed a valid and
binding employment contract since the “alleged contract” on file was not signed by the club.
37. By doing so, the members of the Chamber recalled the jurisprudence of the Football
Tribunal, which indicates that in order for the Chamber to be able to assume that the
Claimant and the Respondent had indeed been bound by an employment contract with
the terms as described by the Claimant, it had to be established, to the comfortable
satisfaction, that said parties had indeed entered into a labour agreement, and, if so, under
which terms.
38. This jurisprudence further establishes that the DRC must be very careful with accepting
documents other than the employment contract duly signed by the parties, as evidence for
the conclusion of a contract.
39. Bearing in mind the above, the Chamber analysed the concrete elements in the matter at
stake:
a) The Respondent failed to contest the allegations of the Claimant.
b) The Respondent appears to have organised the entry VISA for the player. The
document of the Vietnamese Immigration authorities confirm that the request was
placed by the club;
c) The club appears to have organised his flight tickets;
d) The player was received in the club’s premises and started to train with the club
e) The player received an official shirt number and the club started to print shirts with
his name
f) The player seems to have played in a friendly match for the club
40. The members of the Chamber further pointed out that the “agreement contract” contains
the essentialia negotii, the duration, function and remuneration.
41. Taking into account all the elements above, the DRC concluded that the club indeed gave
its consent to the terms of the “alleged contract”. Furthermore, the Chamber held that the
club started to execute such agreement when it organised the player’s VISA.
42. Consequently, the contract was valid and was terminated at the fault of the club without
just cause.
ii. Consequences
43. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
pg. 7
REF. FPSD-10304
44. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the pro-rata
salary of the player for 6 days in January 2023.
45. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. USD
1,935.
46. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 1 February 2023 until the date of effective
payment.
47. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
48. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
49. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
50. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 70,000 (i.e. February 2023 until August 2023; 7x USD
10,000) serves as the basis for the determination of the amount of compensation for
breach of contract.
pg. 8
REF. FPSD-10304
51. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
52. Indeed, the player found employment with Persik Kediri for June 2023 and with Nakhonsi
United as of 17 July 2023. In accordance with the pertinent employment contracts, the
player was entitled to USD 10,000 per month with Persik Kediri and approximately USD
5,800 per month with Nakhonsi United. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of USD 18,700 (USD 10,000 for June 2023 and
USD 8,700 as of 17 July 2023 until the end of August 2023).
53. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 51,300 to the player (i.e. USD 70,000 minus USD 18,700), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
54. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 2 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
55. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
56. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
pg. 9
REF. FPSD-10304
57. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
58. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
59. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
60. 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.
61. 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.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-10304
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pedro Paulo Alves Vieira Dos Reis , is accepted.
2.
The Respondent, Nam Dinh, must pay to the Claimant the following amount(s):
- USD 1,935 as outstanding remuneration plus 5% interest p.a. as from 1 February 2023
until the date of effective payment;
- USD 51,300 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 February 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-10304
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12