Labour Disputes
Texto da decisão
REF. FPSD-13053
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning the player Gabriel
Barbosa Avelino
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Stijn BOEYKENS (Belgium), Member
Andre DOS SANTOS MEGALE (Brazil), Member
CLAIMANT:
Gabriel Barbosa Avelino, Brazil
Represented by CCLA Advogados
RESPONDENT:
Klubi Sportiv Kukesi, Albania
pg. 2
REF. FPSD-13053
I. Facts of the case
1.
On 31 August 2022, the Brazilian player Gabriel Barbosa Avelino (hereinafter: the Player or
the Claimant) and the Albanian club Klubi Sportiv Kukesi (hereinafter: the Club or the
Respondent), concluded an employment contract valid for one season, until 30 May 2023
(hereinafter: the Contract).
2.
Pursuant to clause 2 of the Contract, the Club undertook to pay to the Player the following
amounts:
3.
•
EUR 5,000 as monthly salary, payable every 10th day of each subsequent month;
•
EUR 5,000 “the value of which will be deducted from the next salary from 1,000 Euro
every month until the value is completed”;
•
EUR 300 per month as accommodation allowance;
•
“Bonus in case the Club wins the Championship”; and
•
“Bonus 100 in case the Player scores a goal / assist in official matches”.
Clause 18 of the Contract reads inter alia as follows:
“In case of possible disagreements, the parties undertake to resolve them amicably,
otherwise the Civil Court of Tirana, Albania will be competent”.
4.
On 3 April 2023, the Club addressed a letter to the Player stating as follows (quoted
verbatim):
“We inform you that [the Club] has fined you 70% of the payment because you refused
to participate in the training session on 04.03.2023, at 10:30, without notifying the club
or the trainer in advance. This violation is a repeated case. Also, you were punished with
30% of the payment due to the loss of the match Kukesi-Egnatia 0-3, a home loss and
very heavy considering that we have moved away from our objective for participation in
the European Competitions.
If you are interested, the Club is waiting for you on 04.04.2023, at 08:30, near our
headquarters, where a hearing session will be held, where you have the right to appear
and clarify the reasons for your action and inaction as well as make your objections
regarding the decision cited above”.
5.
On 4 April 2023, the Club addressed another letter to the Player stating as follows (quoted
verbatim):
pg. 3
REF. FPSD-13053
“We inform you that [the Club] has fined you 30% of the next salary because you refused
to participate in the training session on 04.04.2023, at 13:00, without notifying the club
or the trainer in advance. This violation is a repeated case since even on 03.04.2023, at
10:30, you refused to participate in the exercise session without a legal reason.
If you do not participate in the next training session, the club will consider it a unilateral
termination of the contract on your part without a legal reason.
If you are interested, the Club is waiting for you on 05.04.2023, at 08:30, near our
headquarters, where a hearing session will be held, where you have the right to appear
and clarify the reasons for your action and inaction as well as make your objections
regarding the decision cited above”.
6.
On 29 June 2023, the Player put the Club in default for the balance of his outstanding
remuneration amounting to EUR 25,800 (i.e., the total of EUR 47,700 as salary and
accommodation allowance, plus EUR 800 as bonuses that should have been received minus
the EUR 26,300 effectively paid by the Club). The Player granted the Club with a 10 days’
deadline to cure the breach.
II. Proceedings before FIFA
7.
On 14 December 2023, the Player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Player
8.
In his claim, the Player argued that the Club had failed to pay him a significant part of his
remuneration, totalling EUR 26,600.
9.
In addition to the overdue payables, the Player explained that the Club had illegally fined
him, corroborating its bad faith towards the employees. He also claimed having tried to
collect his dues in multiple opportunities however without success.
10. Given the above, the Player requested to be awarded the EUR 26,600 owed by the Club,
plus 5% interest as from the due dates until the date of effective payment.
11. Furthermore, the Player requested that the applicable sanctions be imposed on the Club
in line with art. 24 and 12bis of the FIFA Regulations on the Status and Transfer of Players
(RSTP).
b. Position of the Club
12. On 4 January 2024, the Club filed its reply to the claim of the Player.
pg. 4
REF. FPSD-13053
13. Preliminarily, the Club challenged FIFA’s jurisdiction to adjudicate on this matter based on
the choice of forum made by the parties in clause 18 of the Contract. Accordingly, the Club
argued that the dispute at hand is under the exclusive jurisdiction of the ordinary courts of
Tirana, Albania.
14. In the alternative, the Club shortly addressed the substance of the case. In particular, the
Club acknowledged owing to the Player: (i) ALL 168,558 as accommodation allowance; (ii)
EUR 3,811 as salaries; and (iii) EUR 100 as bonus.
15. The Club pointed out to the fact that the abovementioned amount is far lower than the one
requested in the Player’s claim and explained that disciplinary sanctions had been properly
imposed during the contractual relationship due to his repeated absences.
16. The Club filed the following relief (quoted verbatim):
“On account of the foregoing, [the Club] respectfully requests the Dispute Resolution
Chamber of the FIFA Football Tribunal to issue a decision ruling that:
I. The Dispute Resolution Chamber lacks jurisdiction to entertain the claim filed by
Claimant against [the Club].
In all cases:
II. The costs of the proceedings, if any, shall be entirely born by the Claimant.
III. The Claimant shall be ordered to pay to [the Club] a total amount of CHF 2,000 as a
contribution towards its legal expenses incurred in connection with these proceedings”.
III. Considerations of the Dispute Resolution Chamber
17. 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 14 December 2023 and
submitted for decision on 8 February 2024. 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.
18. Subsequently, 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 par. 1 lit. b) of the FIFA
RSTP (May 2023 edition), the Dispute Resolution Chamber would be in principle
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Brazilian player and an Albanian club.
pg. 5
REF. FPSD-13053
19. Notwithstanding, the Chamber acknowledged that the Club challenged the jurisdiction of
the Football Tribunal to hear the dispute at hand based on the contents of clause 18 of the
Contract. For ease of reference, the DRC also recalled that such clause reads inter alia as
follows (quoted verbatim): “In case of possible disagreements, the parties undertake to resolve
them amicably, otherwise the Civil Court of Tirana, Albania will be competent”.
20. While considering the above, the Chamber firstly established that the parties had
unambiguously agreed that any dispute in connection with the Contract would be
submitted to the courts of Tirana, Albania.
21. In continuation, the Chamber recalled that parties may freely agree to give jurisdiction to a
civil court, and that such choice shall prevail. In fact, the DRC, recalling the jurisprudence
of the Football Tribunal and the Court of Arbitration for Sport (CAS) in this regard,
highlighted that even if the choice of law does not specify which courts are competent (e.g.,
a generic reference is made to a region/city), FIFA is not competent when the parties have
exclusively agreed upon the jurisdiction of a civil court.
22. In addition, the Chamber emphasized that art. 22, par. 1 of the FIFA RSTP (May 2023 edition)
provides a clear hierarchy in favour of contractual autonomy.
23. The DRC felt furthermore comforted by the foregoing line on reasoning in light of the
following passage of the Commentary to the FIFA RSTP (2023 edition - p. 446 et seq.), to
which it adheres:
“The [FIFA RSTP] expressly establish that FIFA’s competence to hear certain types of
dispute is without prejudice to the right of any player or club to seek redress before a
civil court for employment-related matters. The DRC unambiguously recognises the right
to bring certain cases before ordinary courts, and refrains from accepting jurisdiction
where the parties to a dispute have explicitly chosen to have employment-related cases
heard by a civil court. (…) CAS has confirmed this approach and has acknowledged that
a club and a player may agree in their contract to refer any employment-related disputes
to state employment tribunals. If the parties in a case opt for it to be heard before a state
court, this decision must be respected.
It is important to note that the FT reviews jurisdiction clauses on a case-by-case basis
and only when one of the parties challenges the competence of the FT, invoking the
relevant clause. However, jurisprudence dictates that jurisdiction clauses must be
sufficiently clear, including at the very least the designation of a specific place or (civil)
court. This requirement ensures that the parties involved have a clear understanding of
the agreed forum for resolving potential disputes, thereby promoting predictability and
certainty in the resolution of disputes. The relevant clause must also be exclusive, in
favour of the relevant court to exclude the jurisdiction of the FT.”
pg. 6
REF. FPSD-13053
24. Consequently, the Chamber concluded that the parties have unequivocally chosen to have
their dispute heard by the local courts of the city of Tirana, and therefore decided the
Football Tribunal does not have jurisdiction to entertain the claim of the Player.
25. Having established the above, the DRC 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.
26. 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 should be
awarded in these proceedings.
27. Lastly, the DRC rejected any other request for relief made by the parties.
pg. 7
REF. FPSD-13053
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the claimant, Gabriel
Barbosa Avelino.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 8
REF. FPSD-13053
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
pg. 9