Labour Disputes
Texto da decisão
REF FPSD-10533
Decision of the
Dispute Resolution Chamber
passed on 14 September 2023
regarding an employment-related dispute concerning the player Gustavo Alexandre Barbosa do Nascimento
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Mario FLORES CHEMOR (Mexico), member
Stella MARIS JUNCOS (Argentina), member
CLAIMANT:
Mr Gustavo Alexandre Barbosa do Nascimento, Brazil
RESPONDENT:
Wilstermann, Bolivia
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I. Facts of the case
1. According to the information contained in the Transfer Matching System (TMS), on 1 August
2022, the Brazilian player Gustavo Alexandre Barbosa do Nascimento (hereinafter: the player
or the Claimant) signed a contract with the Thai club Ayutthaya United, valid from 16 July
2022 until 31 May 2023.
2. On 4 January 2023, the Bolivian club, Wilsterman (hereinafter: the club or the Respondent)
announced on Facebook the appointment of Mr Adeval Borba as its new sports manager
(Gerente Deportivo), who will work under the direction of Mr Gary Soria.
3. On 6 January 2023, the player and Mr Borba had a conversation via WhatsApp messenger,
whereby the latter requested the player's identity documents to draw up the contract and
his wife's documents to buy plane tickets for the player's family. Mr Borba also mentioned
that the transfer had been announced within the Club and in the press. The player also
asked about the monthly salary, and Mr Borba confirmed that it was 4,500 USD.
4. On the same date of 6 January 2023, Mr Borba also sent a copy of a draft "pre-contract", in a
document called "Precontrato Gustavo Barbosa.docx" In said conversation, the player
explained that he sent a countersigned document.
5. The draft of the pre-contract was to run from January 2023 to December 2023, and was to be
signed between the player and the club "represented by Gary Edson Soria Lazarte (...) and
Omar Jhonny Sarmiento Via" as president and first vice-president of the club, respectively.
6. According to the document, the player would receive a monthly "sports bonus" of USD 4,500.
7. The draft pre-contract stated the following:
“CLAUSULA DECIMA TERCERA: CONTROVERSIAS. - Las partes establecen que la instancia para
la solución de controversias emergentes de este contrato, es el TRIBUNAL DE RESOLUCION
DE DISPUTAS DE LA F.B.F., conforme a sus reglamentos. Las partes hacen constar expresamente
que se someterán al laudo arbitral y/o resolución que el Tribunal pronuncie y por ende renuncian
a impugnarlo en la vía judicial y en la vía constitucional.
Free translation into English:
"CLAUSE THIRTEEN: DISPUTES. - The parties hereby agree that the F.B.F. DISPUTE RESOLUTION
TRIBUNAL, in accordance with its regulations, shall be the instance for the resolution of disputes
arising from this contract. The parties expressly state that they will submit to the arbitration
award and/or resolution pronounced by the Tribunal and therefore waive the right to challenge it
in the courts and in constitutional proceedings".
8. Following a screenshot of a WhatsApp conversation between the player ("Gustavinho") and
"Gary Soria Presidente", the latter sent him a document called "Precontrato Gustavo
Barbosa.docx". Said documents corresponds to the document sent on 6 January 2023 (cf.
point I. 4 above).
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9. On 10 January 2023, the player and the Thai club Ayutthaya Ayutthaya concluded a
termination agreement.
10. On 19 January 2023, the player (through his legal representative) sent a first notice of default
to the club ([email protected]) stating, inter alia, the following: “Mr. Borba sent the
Player the Pre-contract on 6 january 2023. The Player signed the pre-contract and sent back to the
Club. Since then, the Player was permanently in contact with Mr. Gary Soria and Mr.
Adeval Borba, talking about his travel to Bolivia. The Club promised to send the flight tickets to
the Player in the following days. However, this never happened. Almost 2 weeks after the
signature of the pre-contract, the Club still failing to send to the Player the flight tickets that will
enable him and his family to travel -to Bolivia. Moreover, the Club did not provide the player with
a copy of the pre-contract signed by Mr. Gary Soria.(...)The Player is unemployed and on an
urgent situation in Thailand. Considering the explained above, the Player notifies the club to,
within a 2-days deadline counting from the receipt of this document, comply with the following
obligations:
a) Provide the Player with the flight tickets for him and his family, to travel from Thailand to
Bolivia;
b) Provide the Player with a copy of the pre-contract signed by the Club's President.”
11. On 24 January 2023, the player sent a second notice insisting in his previous request.
12. On 26 January 2023, the player sent a third default notice referring to his previous letters
and indicated the following:
“Considering all the facts, the Player hereby understands that the Club gave up on signing
the Player and considered that their agreement was breached by the Club without just cause. The
Player highlights that will take the due legal measures and will claim for his rights before FIFA
judicial bodies.
13. On 24 February 2023, the player sent a fourth notice requesting the following:
“(...) It is important to highlight that, on the present case, we are facing a concluded deal that was
breached by the Club.
Considering all the facts of the present case, especially the
communications between the parties, the ·agreement complies with the essentialia negotti
and fulfill all the requirements of an employment contract. It means to say that an
employment relationship was concluded between the parties and terminated by the Club without
just cause. Thus, the player is entitled to receive the due compensation.
(...)
Therefore, the Player notifies the club, again, to comply with the payment of compensation of USD
57,142.95, within a. 10-day deadline counting from the receipt of this document. And providing
the relevant receipts attached to the response to this notification.
14. On 1 February 2023, the player entered into an employment contract with the Brazilian club
Club Nautico Marcilio Dias, valid from 30 January 2023 until 30 April 2023.
15. Accordingly, the player was entitled to a monthly salary of BRL 1,900.
16. Furthermore, according to TMS, the player entered into an employment contract with the
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Thai club Suphanburi FC, valid from 14 June 2023 until the last match in which the club
participated during the 2022/2023 season. Accordingly, the player was entitled to THB 70,000
(Thai Baht) per month.
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II. Proceedings before FIFA
17. On 12 June 2023, the player lodged a claim before the FIFA Football Tribunal for breach of
contract and requested the payment of USD 52,878 as compensation.
18. The player considered that, in the present case, the essentialia negotii are fulfilled even
though the failure of the Club in providing a signed copy of the pre contract.
19. In the opinion of the player, there are cases that the circumstances of the negotiation and
the background of the facts are different, and consequently different criteria shall be
analyzed to conclude if a specific negotiation was closed.
20. The player referred to the CAS Awards 2019/A/6463 and 2019/A/6464, where “it was
decided that not even a formal signature of the parties shall be necessarily a requirement for
the parties to became bound to the agreement.”
21. The Claimant further argued that a pre-contract also represents a binding agreement, and
also referred to the principle of culpa in contrahendo.
22. The player attached to his claim a series of screenshots from an alleged contract between
Mr Adeval Borba and the club, dated 16 January 2023. The contract is unsigned by the
club.
23. In its reply, to the claim, the club rejected the arguments of the player.
24. In the alternative, the club considered that the Tribunal de Resolución de Disputas of the
Bolivian FA should be competent.
25. The club disputed the validity of the pre-contract, citing the lack of signatures from both
parties and essentialia negotii.
26. The club further argued that the player's negotiations were conducted with an
unauthorized representative.
27. The club stated that any awarded monetary compensation should be subject to Bolivian
tax regulations.
28. In his replica, the Claimant insisted in his previous arguments.
29. The player asserted the authenticity and credibility of the evidence, especially WhatsApp
chats, without being challenged by the Club.
30. The player stated that the agreement between him and the Club comprised various
evidence supporting the conclusion of an employment contract.
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31. The player dismissed the Club's argument about the absence of its template in the precontract, stating that the Club was responsible for its drafting.
32. The player argued that a formal signature from the Club was not mandatory for the
validity of the pre-contract, citing relevant CAS jurisprudence.
33. The player highlighted that the Tribunal de Resolución de Disputas (TRD) of Federacion
Boliviana de Fútbol does not meet FIFA's procedural requirements, as he emphasized the
TRD's failure to guarantee fair proceedings and equal representation.
34. The player stated that the agreement between him and the Club comprised various
evidence supporting the conclusion of an employment contract.
35. The player dismissed the Club's argument about the absence of its template in the precontract, stating that the Club was responsible for its drafting.
36. The Respondent failed to provide his duplica.
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III Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
37.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
considered whether it had jurisdiction to deal with the case at hand. In this respect, it
noted that the present claim was introduced on 12 June 2023 and submitted for
decision on 14 September 2023. Taking into account the wording of art. 34 of the
October 2022 edition of the Rules of Procedure of the Football Tribunal (hereinafter: the
Rules of Procedure), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
38.
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 (May 2023 edition), the
Dispute Resolution Chamber would, in principle, be competent to deal with the matter
at stake, which concerns an employment-related dispute with an international
dimension between an Brazilian player and a Bolivian club.
39.
Thereafter, 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 (May 2023 edition), and
considering that the present claim was lodged on 12 June 2023, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Admissibility
40.
The Chamber further noted that the Respondent contested the competence of FIFA's
decision-making bodies in favour of the Dispute Resolution Tribunal of the Bolivian
Football Federation (hereinafter: the Bolivian NDRC), arguing that the latter has
jurisdiction to hear any dispute arising from the so-called "pre-contract", according to its
thirteenth clause.
41.
The Chamber also noted that the Claimant insisted on FIFA's competence to decide the
present claim, arguing that the Bolivian NDRC is not an independent arbitration tribunal
that guarantees a fair procedure and respects the principle of equal representation
between of players and clubs.
42.
In the light of the above, the Chamber emphasised that according to art. 22 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players, FIFA is, in principle, competent
to deal with a labour dispute between a club and a player with an international
dimension. However, the parties may explicitly opt in writing to have such a dispute
settled by an independent arbitration tribunal that has been established at national
level within the framework of the association and/or a collective bargaining agreement.
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This arbitration clause should be included directly in the contract or in a collective
agreement applicable to the parties. The independent national arbitration chamber
must guarantee a fair procedure and respect the principle of equal representation of
players and clubs. The Chamber also referred to the principles contained in the
Standard Regulations of the FIFA National Dispute Resolution Chamber, which entered
into force on 1 January 2008.
43.
Within this context, the Chamber noted that it should first analyse whether the precontract between the parties, which is at the basis of the present dispute, contained a
clear and exclusive jurisdiction clause in favour of the Bolivian NDRC.
44.
In this respect, the Chamber referred to the thirteenth clause of the pre-contract, which
would stipulated the following:
“CLAUSULA DECIMA TERCERA: CONTROVERSIAS. - Las partes establecen que la
instancia para la solución de controversias emergentes de este contrato, es el
TRIBUNAL DE RESOLUCION DE DISPUTAS DE LA F.B.F., conforme a sus reglamentos. Las
partes hacen constar expresamente que se someterán al laudo arbitral y/o resolución que
el Tribunal pronuncie y por ende renuncian a impugnarlo en la vía judicial y en la vía
constitucional.
Free translation into English:
"CLAUSE THIRTEEN: DISPUTES. - The parties hereby agree that the F.B.F. DISPUTE
RESOLUTION TRIBUNAL, in accordance with its regulations, shall be the instance for the
resolution of disputes arising from this contract. The parties expressly state that they will
submit to the arbitration award and/or resolution pronounced by the Tribunal and
therefore waive the right to challenge it in the courts and in constitutional proceedings".
45.
The Chamber, after analysing the wording of the above-mentioned clause, concluded
that the clause was indeed clear and exclusively in favour of the Bolivian NDRC 's
competence.
46.
Having established the above, the Chamber turned its attention to the other
prerequisites for establishing the competence of an NDRC. The Chamber referred to the
principle of equal representation of players and clubs and underlined that this principle
is one of the fundamental elements that must be fulfilled for a national dispute
resolution chamber to be recognised as such.
47.
Taking into account the aforementioned principles, the Chamber examined the
documentation submitted by the Respondent and noted that the club provided a copy
of the Statutes of the Bolivian Football Federation, which, in its Article 68, determined
the basis for the existence of a dispute resolution tribunal as "jurisdictional instance to
hear and resolve conflicts arising from the interpretation, application and development of
sports contracts signed between members and/or clubs affiliated to the FBF, with players,
technical and auxiliary staff" (free translation from Spanish). The Chamber also noted that
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art. 68 para. 3 of the Statute provides that the composition of the Tribunal shall be
established "in special regulations".
48.
In relation to the above, the Chamber noted that the club submitted a copy of the
National Regulations for the Transfer and Clearance of Players (Reglamento Nacional de
Transferencia y Habilitación de Jugadores), which provides, in relation to the
composition of the Bolivian NDRC, as follows
Art. 60.
-El Tribunal de Resolución de Disputas, está constituido por cinco (5) miembros:
a) Dos miembros designados por el Comité Ejecutivo de la FBF.
b) Dos miembros propuestos por la dirigencia de los jugadores de fútbol a nivel nacional, y
designados por el Comité Ejecutivo de la FBF.
c) Un Presidente designado por el Comité Ejecutivo de la FBF, en consenso con la
dirigencia de los jugadores a nivel nacional, quien dirimirá las decisiones únicamente en
casos de empate.
Free translation into English:
"Art. 60.-The Dispute Resolution Tribunal is made up of five (5) members:
a) Two members appointed by the FBF Executive Committee.
b) Two members proposed by the national football players' leadership, and appointed by the
FBF Executive Committee.
c) A President appointed by the FBF Executive Committee, in consensus with the national
players' leadership, who shall decide only in cases of a tie".
49. In this regard, the Chamber noted that the local rules provided by the club do not
foresee a system to challenge or recuse the members of the Bolivian NDRC in the event
that any of the parties to the litigation should consider that any of them lacks the
necessary impartiality. According to the Chamber, this lack of due process would
amount to a violation of the right to due process and the right to an impartial judge.
50. On the other hand, the Chamber also noted that the club also failed to explain what
would be the costs involved in participating in litigation before the Bolivian NDRC. In this
regard, the Chamber understood that free of charge proceedings are a fundamental
principle in cases of labour disputes between players and clubs, as enshrined in Art. 25
par. 1 of the Rules of Procedure.
51. In conclusion, the Chamber found that the evidence and arguments presented by the
Club are insufficient to demonstrate that the Bolivian NDRC effectively complies with the
requirements regarding equal representation between players and clubs.
52. In view of the above, the Chamber ruled that the Respondent's objection to FIFA's
competence to deal with the present case must be rejected and that the Dispute
Resolution Chamber is competent, on the basis of Art. 22 par. 1 lit. b) of the Regulations,
to examine the merits of the case.
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c. Burden of proof
53. 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).
d.
Merits of the dispute
54. Having determined its competence and the applicable Rules of Procedure, the Chamber
entered into the analysis of the merits of the present case and began by taking note of
the facts of the case, the arguments presented, as well as the documentation contained
in the file. Notwithstanding the above, the Chamber emphasised that, in the following
considerations, it will refer only to the facts, arguments and documentation that it
considered relevant for the analysis of the present case.
i. Main legal discussion and considerations
55. Firstly, the Chamber noted that the player filed a complaint with FIFA, claiming that he
had concluded an employment agreement between himself and the club.
56. In relation to the above, the Chamber noted that the player provided, in support of his
claim, a number of documents such as WhatsApp conversations and a draft "precontract" as evidence of the existence of such an employment agreement. The player
also provided evidence of having negotiated an employment contract with Mr Adeval
Borba in his capacity as the Club's Sporting Manager. The Chamber also noted that the
Club did not deny that Mr. Borba was not the Club's Sporting Manager and that, in that
capacity, he did not have the capacity to conclude employment contracts on its behalf.
In fact, the Club recognized its relationship with Mr. Borba by enclosing the employment
contract (“CONTRATO PRIVADO DE PRESTACION DE SERVICIOS DEPORTIVOS”) signed
with him. The Chamber noted that said document was the same as the one provided by
the president.
57. Therefore, the Chamber found that the documents provided sufficiently indicate the
existence of negotiations between the player and the club with a view to signing an
employment contract.
58. In this order, the Chamber considered it important to point out that the conclusion of a
contract can sometimes, in very specific and limited circumstances, be proved without a
formal signature, provided that such proof meets certain standards of confidence. In
particular, such evidence would have to show that the parties reached a mutual
agreement on all essential elements of the contract, such as the subject matter of the
contract, its period of validity, a remuneration and the terms of payment (essentialia
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negotii). Moreover, the Chamber also deemed relevant to underline that, as a general
principle, parties involved in negotiations leading up to a contract must act honestly,
fairly, and in good faith, and that they owe certain duties to each other even before a
formal contract is formed.
59. In the present case, the Chamber considered it possible that the WhatsApp
conversations and the pre-contract draft are sufficient to establish the existence of a
contract.
60. In particular, the Chamber highlighted, after examining the evidence in the file, the
following elements:
- The WhatsApp messages in the file show that Mr Borba did not act professionally and
in good faith, so that the club breached its duty of good faith in the contractual
negotiations;
- The president of the club even sent the pre-contract to the player. In the view of the
Chamber, this can be understood as an evidence that the club was involved in the
contract negotiations and knew the terms of the agreement. According to the Chamber,
this circumstance would confirm the clear will of the club to be contractually bound;
- On the basis of the foregoing, it follows that the club had the will to sign the player and
that the club was keen to sign the player and was willing to accept the terms of the
contract.
61. In light of the above, the Chamber held that the offer in question became binding from
the moment the player sent it countersigned. Indeed, the Chamber understood that the
legal principle that an offer becomes binding when it is accepted by the addressee
applies. In this case, the player countersigned and returned the offer, which constitutes
an acceptance. Therefore, the offer is binding on both the player and the club, thereby
implying that the parties have validly and bindingly concluded an employment contract.
The Chamber further wished to underline that, despite its naming as “pre-contract”, said
document was a proper and binding employment contract.
62. Therefore, to the extent that the club refused to comply with a fully valid employment
agreement, the Chamber held that the player is entitled to compensation for breach of
contract without just cause.
ii. Consequences
63. Having said that, the Chamber turned its attention to the question of the consequences
of the club's unjustified breach of contract.
64. Having stated the above, the Chamber then turned to the calculation of the amount of
compensation to be paid by the club to the player. In doing so, the Chamber first
recapitulated that, in accordance with art. 17 para. 1 of the Regulations, the amount of
the compensation shall be calculated, in particular and unless otherwise provided for in
the contract on the basis of the dispute, taking due account of the law of the country
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concerned, the specificity of the sport and other objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the remaining time of the existing contract up to a
maximum of five years, and depending on whether the termination of the contract
occurs within a protected period.
65. Applying the relevant provision, the Chamber held that it first had to clarify whether the
relevant employment contract contained a provision whereby the parties had previously
agreed on an amount of compensation payable by the contracting parties in the event
of breach of contract. In that regard, the Chamber established that no such
compensation clause was included in the employment contract (i.e. the so-called precontract) on the basis of the matter in question.
66. Consequently, the Chamber determined that the amount of compensation payable by
the club to the player should be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The DRC recalled that this provision provides for a
non-exhaustive list of criteria to be taken into account when calculating the amount of
compensation to be paid.
67. Taking into account the above, as well as the player's claim, the Chamber proceeded
with the calculation of the values payable to the player under the terms of the
employment contract from the date of termination until its expiry. Insofar as the said
contract was never executed, the Chamber understood that the entire value of the
contract has to be calculated, i.e. from its period of validity from January 2023 until
December 2023. The DRC concluded that the amount of USD 54,000 (i.e. the contract
value salary for that period, USD 4,500*12 = USD 54,000) serves as the basis for
determining the amount of compensation for breach of contract.
68. Subsequently, the Chamber verified whether the player had signed an employment
contract with another club during the relevant period of time, whereby he would have
been allowed to mitigate his damage. According to the consistent 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 the
breach of contract compensation in relation to the player's general obligation to
mitigate his damages.
69. In this regard, the Chamber noted that the player signed the following contracts:
-
-
On 1 February 2023, the player entered into an employment contract with the Brazilian
club Club Náutico Marcilio Dias, valid from 30 January 2023 until 30 April 2023 and for a
monthly salary of BRL 1 900. The Chamber understood that, during this period, the
player would receive BRL 5,700 (BRL 1,900*3), which is equivalent to approx. USD
1,180.
The player then entered into an employment contract with the Thai club Suphanburi
FC, valid from 14 June 2023 until the last match in which the club participated during
the 2022/2023 season. Accordingly, the player was entitled to 70 000 THB (Thai Baht)
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per month. The Chamber understood that, from 14 June 2023 until 31 December 2023,
the player would receive 6.5 monthly payments of 70 000 THB, for a total value of 455
000 THB, equivalent to approx. 12 630 USD.
70. Therefore, the DRC concluded that the player mitigated his damages for a total amount
of USD 13,810, i.e. USD 1,180 + USD 12,630.
71. Consequently, taking into account all the above considerations and the specificities of
the case at hand, the Chamber decided that the club should pay the amount of USD 40
190 to the player (i.e. USD 54 000 minus USD 13 810), which is considered a reasonable
and justified amount of compensation for breach of contract in the present case.
72. 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
available in the FIFA Legal Portal.
d.
Sporting Sanctions
73. In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, it addressed the question of sporting sanctions
against the club in accordance with art. 17 par. 4 of the Regulations. The cited provision
stipulates that, in addition to the obligation to pay compensation, sporting sanctions
shall be imposed on any club found to be in breach of contract during the protected
period.
74. In this respect, the Chamber referred to item 7 of the “Definitions” section of the
Regulations, which stipulates inter alia that the protected period shall last “for three
entire seasons or three years, whichever comes first, following the entry into force of a
contract, where such contract is concluded prior to the 28th birthday of the professional, or
two entire seasons or two years, whichever comes first, following the entry into force of a
contract, where such contract is concluded after the 28th birthday of the professional”.
75. In this respect, the Chamber took note that the player was born on 31 August 1993 and
the relevant contract with the club was concluded in January 2023, i.e. when the player
was 29 years old. Furthermore, the Chamber Judge noted that the club never executed
its contractual commitment arising from said contract, (since January 2023). The breach
of contract by the club had therefore occurred within the protected period.
76. Furthermore, the Chamber considered that the behaviour of the club and its
representatives was particularly characterized by a significant amount of bad faith. In
particular, the club considered that this matter is considerably affected by the principle
of bad faith in contrahendo, i.e when a party to a contract engages in negotiations in a
dishonest or deceitful manner. The Chamber in particular underlined that the club's
conduct has caused harm to the player, which deprived him from the opportunity to
play for the Respondent but also to negotiate with other clubs.
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77. In particularly, the Chamber also observed that the player, prior to concluding a contract
with the Respondent, had a valid employment contract with the Thai club, Ayutthaya
United, which was valid until 31 May 2023. The Chamber noted, however, that the player
concluded a termination agreement with said club on 10 January 2023, with the
legitimate expectation of joining the Respondent. In other words, the Respondent's
failure to comply with the terms of the contract caused the player to lose out on the
opportunity to continue with his pre-existing employment relationship. As a result, the
club's deceit caused the player to rely on deceptive promises and to make decisions that
were not in his best interests. In the view of the Chamber, this deceit has prevented the
player from making an informed decision about his career.
78. Consequently, the Chamber considered that the club's deceitful abandonment of the
player shall be sanctioned with appropriate sanctions. The Chamber considered that it is
necessary to deter the Respondent and other clubs from engaging in similar conduct in
the future.
79. For the sake of completeness, the DRC remarked that the wording of the Regulations
allows it a significant degree of discretion to apply sporting sanctions on every case
where the conditions of art. 17 par. 4 of the Regulations are met, that is, even if the
Respondent is not deemed as a repeat offender, which is only a factor taken into
account by the DRC when deciding whether to impose sporting sanctions on a club – a
faculty the Chamber is prepared to use given the serious circumstances of the matter at
hand.
80. Indeed, the DRC wished to underline that, as confirmed by the Court of Arbitration for
Sport on various occasions (e.g. CAS 2014/A/3754, CAS 2017/A/5056, 5069 and CAS
2022/A/9221), the DRC’s policy to no impose sporting sanctions in every single case
where it has the power to do so, does not mean that it cannot impose them in other
situations where the prerequisites of art. 17 par. 4 are fulfilled and the circumstances so
warrant, such as in casu. Art. 17 par. 4 is sufficiently clear so as to fully respect the
principles of legality and predictability, which require that the connection between the
incriminated behaviour and the sanction must be clearly and previously defined by law.
Put differently, players and clubs must be aware – and are indeed put in a position to be
aware – that to breach a contract within the protected period may lead to sporting
sanctions being imposed by the DRC, especially when the relevant breach is so blatant
and unjustified as in the matter at hand.
81. As a result, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations, the
club shall be sanctioned with a ban from registering any new players, either nationally
or internationally, for two entire and consecutive registration periods.
f. Costs
82. 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
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agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
83. 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.
84. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV Decision of the Dispute Resolution Chamber
1.
FIFA has jurisdiction to hear the claim of the Claimant, Gustavo Alexandre do Nascimento.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club Wilstermann, shall pay to the Claimant, the amount of USD 40 190
as compensation for breach of contract without just cause.
4.
Any further claims of the Claimant are rejected.
5.
The Respondent shall pay the full payment into the bank account indicated in the bank
account registration form available on the FIFA legal portal.
6.
The Respondent is banned from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods
7.
If full payment (including all applicable interest) is not made within 45 days following the
notification of this decision, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee.
8. The enforcement of the consequences is only done 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.
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal and Compliance Officer
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REF FPSD-10533
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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