Dispute Resolution Chamber
Texto da decisão
REF 20-01065
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021
regarding an employment-related dispute concerning the player Bruno Nogueira
Barbosa
COMPOSITION:
Clifford J. Hendel (USA and France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stéphane Burchkalter (France), member
CLAIMANT / COUNTER-RESPONDENT:
Bruno Nogueira Barbosa, Brazil
Represented by Mr. Leonardo Moreira
RESPONDENT / COUNTER-CLAIMANT:
CSF Speranta NiSporeni, Moldova
INTERVENING PARTY:
Nova Mutum Esporte Clube, Brazil
Represented by Mr. William de Mattia
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I.
FACTS OF THE CASE
1.
On 17 January 2019, the Moldovan club, CSF Speranta NiSporeni (hereinafter: the club or
the Respondent 1 / Counter-Claimant) issued a round-trip plane ticket to the Brazilian
player, Mr. Bruno Nogueira Barbosa (hereinafter: the player or the Claimant / CounterRespondent 1), as follows:
a. Departure: from Porto Alegre (BRA) to Chisinau (MOL), on 17 January 2019; and
b. Return: from Chisinau (MOL) to Porto Alegre (BRA), on 3 December 2019.
2.
On the same date, i.e. 17 January 2019, the player travelled to Chisinau as per the plane
ticket issued.
3.
On 18 February 2019, the player and the club signed an employment contract valid as from
the date of signature until 30 November 2021 (hereinafter: the contract).
4.
In accordance with clause 9 of the contract, the player was entitled to a monthly gross
salary of MDL 7,000, payable within the “maximum 14 days from the last day of the month
in the period where the player is serving his services to the club”. As per clause 9 of the
contract, “the contributions and taxes provided by the legislation in force shall be deducted
from the amount set”.
5.
Additionally, pursuant to clause 2 of Annex 1 to the contract, the club also undertook to
pay the player “additional advantages”, including in verbis: “Flight ticket Brazil – Moldova
– Brazil”.
6.
Finally, clause 5 of Annex 1 to the contract, established the following: “if the player desires
to be transferred to another club during the last year of the present contract, he can leave
the club for USD 15,000 with the agreement of the club’s direction”.
7.
On 6 November 2019, the player’s intermediary, Mr. Renato Santos (hereinafter: Mr.
Santos), wrote to a club’s representative named Cristian (hereinafter: Mr. Cristian) the
following message via Whatsapp: “About Bruno, Can I looking for new club for him? I
asked this, because in July, you spoke that don’t want him for next season”.
8.
Subsequently, Mr. Cristian answered the following: “He is in the team now. No plans to
release him. If only there is a transfer amount that suits the club. If you have any club that
can pay something, we are open to speak. If no, he can stay and improve”.
9.
On 11 November 2019, the player signed a document issued by the club confirming that
the latter had fulfilled all of its financial obligations due by that date.
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10.
On 3 December 2019, the player travelled to Porto Alegre as per the plane ticket previously
issued by the club on 17 January 2019.
11.
On 3 January 2020, Mr. Santos wrote to Mr. Cristian: “I was speaking with Bruno. He ask
me about ticket. When is to into? When club will send the ticket?”. Subsequently, Mr.
Cristian answered as follows: “what ticket? […] He have only one ticket in contract. He
need to buy himself”.
12.
On 10 January 2020, Mr. Cristian wrote in the team’s Whatsapp group the following
message: “Our first training will be on 1st February. The players from outside should be at
least one day before in Moldova. In first days the player will be tested. So follow up with
the training program”.
13.
On 13 February 2020, the player and Mr. Cristian exchanged messages via Whatsapp, as
follows:
[Player]: “Good Night, Cristian. Is there a date for me to come back?”
[Mr. Cristian]: “Hi Bruno. Normally team started training on 5 February. Already must be
here”.
[Player]: “Yeah, and the tickets?”
[Mr. Cristian]: “Tickets normally you must buy. As in contract you have only one ticket. But
now I try to convince the club to buy you a ticket. I think they will buy”.
[Player]: “I’m waiting for the tickets. I can’t start the season the season after the other
players. This year my performance is gonna be a lot better”.
[Mr. Cristian]: “I hope they will buy. If not you need to do it. Of course is not normal to start
later. I also believe you will do better”.
14.
On 17 February 2020, the player and Mr. Cristian had the following conversation via
Whatsapp:
[Player]: “[…] I’m not getting paid for three months. My wife is giving me money to live.
We’re doing our house and only my wife is giving money. I have nothing! We spend $300
a week and only her from the money. I wonder how you’re gonna get my situation. They’re
gonna release me or they re gonna pay for the tickets to get back, because I need to work,
I need to have money”.
[Mr. Cristian]: “I understand your situation. But a new ticket if a club will buy will be a gift
to you not an obligation, as club offers only one ticket in contract. Team is not very good
financially this season as you remember the last season, when in games against Zimbru, Sf.
Gheorge and against other teams we lost stupid points and didn’t qualify for Europa League
as this the only possible profit for the club. So to receive salary you must be here with team,
training. This is your obligation, then you can ask from club to pay for your work. I now try
to convince the club to buy you the ticket. But it doesn’t depend on me. If they will not buy,
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I will try to make an agreement to release you. However we agreed to release on loan, so if
you have now team to sign you on loan and for you to work, it is not a problem […] But I
don’t promise that the club will agree to release on a free contract. But club agree to release
on a free loan. So this is the best to get a loan if the club doesn’t buy you ticket and you
can’t buy the ticket”.
[Player]: “Okay. I don’t want anyone bad, I just want to work and can help my wife and my
family”.
[Mr. Cristian]: “[…] I try to make the best possible out of your situation. But you know the
conditions in the contract, only one ticket. And to receive salary you must be here at work.
If you have a team on loan, no problem. Let me know”.
15.
On 21 February 2020, the player and Mr. Cristian once again exchanged messages via
Whatsapp, as follows:
[Player]: “Maybe if I give you 2500$, they’ll release me?
[Mr. Cristian]: “I will speak with them. But when you can organise this transfer?”
[Player]: “Western union. Very easy. You sends me an account in banc and I do the transfer.
We’re looking at teams here in Brazil, but the championships have already started and the
teams are closed. Understand? […] But if a got a team I’ll tell you. If you don’t get it, I’ll see
that money situation. Could it be?”
[Mr. Cristian]: “[…] Ok. Let me know so I can negotiate with club, as they wanted a bigger
amount to cover the costs the club made for you, as registration, salaries and other”.
[Player]: “[…] I speak to my wife and at the moment we’re in no condition to have that
money. I wanted you to send the ticket and that at the end of the year I’ll buy it back […]
My contract has a right to a ticket, the club is bound to buy”.
[Mr. Cristian]: “Flight ticket Brazil-Moldova-Brazil. Club have bought it. The club doesn’t
offer 3 tickets Brazil-Moldova-Brazil. Neither is wrote that for every season. Is wrote only
about ONE ticket Brazil-Moldova-Brazil. You came and went to Brazil with this ticket already.
If you are sure that you will have club. Then we can make an agreement, that club release
with condition to cover the agreed amount when you sign a new contract with club”.
[Player]: “The contract is not specific about the tickets. What makes you interpreted in
different ways. At the moment I don’t have a club in Brazil, and I need to work. The difficult
in the paperwork ended up disrupting a possible loan. In my eyes, there are two situations:
sending the passages [to the passages] to work on Moldovia or the contract rescue, my
release, for a part of the club, so future opportunities aren’t lost. I wanted you to understand
my share, too”.
[Mr. Cristian]: “Bruno, you can sign with any club, we don’t make any stops to you. When
this loan offer came, we accepted without any problems or charges […] If you want a letter
from club, that club agrees to release on loan or find a team with a low transfer fee, you
need?”
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[Player]: “[…] the club rescinding with me, he’ll have an economy of values of something
around 30,000 usd in two years”.
[Mr. Cristian]: “Can’t understand. You have contract you have to come, if you don’t want
to come Club give you free loan. If you want release, we can discuss with club for a small
amount. But in this case important you have a team. There are a lot of solutions”.
[Player]: “but I want to go, the club that doesn’t want to pay for ticket”.
[Mr. Cristian]: “I understand you. But also difficult for club, as they took a foreign player,
already managed a lot of additional costs comparing to a local player, and now again ticket.
This year Speranta sing for example foreigner only that come with own ticket and agent pay
registration cost. Is difficult”.
16.
From 22 February 2020 until 1 March 2020, the player and Mr. Cristian exchanged other
messages via Whatsapp regarding, inter alia, the issuance of the plane tickets from Brazil
to Moldova.
17.
Finally, in June 2020, the parties had a final conversation via Whatsapp, as follows:
[Player]: “[…] things aren’t going so well. Here in Brazil, football shouldn’t come back this
year. The pandemia situation is serious. I need a position from you guys at the club”.
[Mr. Cristian]: “Now is difficult. You didn’t arrive in time, and new coach took new players”.
[Player]: “so please, since you’re not gonna use me, you could let me go. If you’re thinking
of future gains, you’re damn right you won’t. Especially the critical situation that is in Brazil
or at least the situation as before. Free loan.
[Mr. Cristian]: “Ok, is no problem”.
[…]
[Mr. Cristian]: “Bruno, you can comeback to club? Or you have other club?”
[Player]: “I always wanted to go back to the club. I just didn’t come back for all the situation
that happened in there. I don’t have any club at the moment”.
[Mr. Cristian]: “Because normally you have to comeback and train with team”.
[Player]: “Understand”.
18.
On 26 June 2020, the club sent the player a default notice signed by its president stating,
inter alia, the following: “we hereby remind you that the contract agreement signed with
CSF Speranta is active, the team has started training on 1st February. At the moment the
team started competition matches, therefore we repeatedly invite you to comeback to
training with the team. We await your arrival in 10 days from the receipt of the current
letter”.
19.
By letter dated 29 June 2020, sent on 2 July 2020, the player wrote, inter alia, as follows:
“the COVID-19 Pandemic […] prevents any return to Europe given that Brazilians are unable
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to embark for European territory. It is also important to state that [the player’s] temporary
residence permit […] has expired in 2 May 2020, which makes it impossible for me to enter
Moldova”.
20.
In the same opportunity, the player also informed the club that the monthly salaries from
January until June 2020 were outstanding, “as well as air ticket were not sent so that I
could return to the club”. Furthermore, the player granted the club with a 10 days’ deadline
in order to remedy its default.
21.
On 17 July 2020, the player notified the club the termination of the contract. In the
termination letter, the player referred to his default letter sent on 2 July 2020 and argued
that “on 16 July 2020, the club it exceeded the deadline established on article 14bis […],
falling to comply with its financial obligations. So, in accordance with article 14bis […], on
the present date the player considers terminated with just cause”.
II.
PROCEEDINGS BEFORE FIFA
22.
On 24 July 2020, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the player
23.
According to the player, he is entitled to receive his outstanding salaries from December
2019 to June 2020, in the total amount of USD 2,870. In addition, the player also held that
the club shall be liable to pay him compensation for breach of contract amounting to USD
6,970 (i.e. the residual amount of the contract), plus interest of 5% p.a. as from the due
dates.
24.
In support of his allegations, the player firstly stated that his monthly salary of MDL 7,000
corresponds to “about USD 410”.
25.
In continuation, the player stressed that he requested the club the payment of the
outstanding salaries “on several occasions” via WhatsApp, as well as via default letter sent
on 2 July 2020. Moreover, the player mentioned that “the club did not send the plane
tickets for the player to return to the club, an obligation contained in the contract signed
between the parties”.
26.
Therefore, given that “on 16 July 2020, the club it exceeded the deadline established on
article 14bis”, the player is of the opinion that that he had just cause to terminate the
contract.
b.
27.
Reply and counterclaim of the club
On 24 August 2020, the club submitted its reply and counterclaim. The club claimed that
the player breached the contract and, consequently, requested payment of compensation.
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28.
Initially, the club stressed that on 6 November 2019, Mr. Santos raised via Whatsapp the
possibility of looking for a new employment to the player, which was allegedly rejected by
the club due to its interest in retaining his services.
29.
The club then informed that, at the conclusion of the Moldavan Championship 2019, the
player went to Brazil on vacations with a flight ticket provided by the club. In this context,
the club referred to the message sent by Mr. Cristian on 10 January 2020, according to
which he expressly informed that the trainings would resume on 1 February 2020 and,
hence, that all foreigners’ players should be in Moldova at least 1 day before.
30.
Subsequently, the club held that the player had manifested his will to be transferred to a
Brazilian club either on a temporary or on a definitive basis. As a proof its good faith, the
club stated that a loan agreement was concluded with FC Macae Esporte (BRA), a copy of
which was filed with FIFA.
31.
Both the club and the player informed that due to unspecified administrative circumstances,
the loan could not take place.
32.
Notwithstanding the above, the club pointed out that the player continued to seek for
employment with a Brazilian club, supposedly demonstrating that he was not willing to go
back to Moldova.
33.
As to the player’s request to be provided with a plane ticket from Brazil to Moldova, the
club referred to the “clear” wording of the Annex 1 to the contract, which stated that the
player was only entitled to one round-trip ticket, already used. In this respect, the club also
recalled the negotiations with Mr. Santos in order to conclude that it was evident that the
club would be only liable to provide the player with one flight ticket for the entire period of
the contract.
34.
As to the working permit, the club maintained that it was still valid until 5 February 2020,
by when the player was supposed to be back to Moldova. However, as the player remained
in Brazil, there was no basis for renewing his visa. On the other hand, the club informed
that any Brazilian citizen could travel to Moldova without any restrictions (i.e. visa or permit),
reason why the club stated the player’s allegations on this matter should not be upheld.
35.
Having established the above, the club turned its attention to the termination of the
contract. In this regard, the club firstly pointed out that during the several exchanges of
correspondences between the parties, the player had never claimed any outstanding
amount nor put the club in default. On the contrary, the club remarked that the player was
even ready to sign a document stating that he had no “financial pretentions till July” in
order to authorize an eventual loan to a Brazilian club.
36.
In addition, the club also added that in March 2020, the COVID-19 outbreak suspended
the competitions everywhere and hindered travel, so any communication stopped during
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the pandemic. Accordingly, the club highlighted that the player had only decided to put the
club in default as a reaction of the correspondence sent by the club on 26 June 2020.
37.
The club then referred to the termination notice dated of 17 July 2020 and observed that
the player did not mention the salary of December 2019, which was only requested before
the FIFA Dispute Resolution Chamber. Furthermore, the club referred to the
acknowledgement of receipt signed by the player on 11 November 2019 and submitted
that there were no outstanding amounts regarding the 2019’s season.
38.
In light of the foregoing, the club claimed that, by the moment that the player was to return
to Moldova (i.e. on 1 February 2020), there were no outstanding salaries due by the club in
line with art 9.5 of the contract.
39.
Consequently, the club concluded that the player terminated the contract without just
cause and, hence, that he should be responsible for the consequences thereof.
40.
To this extent, the club recalled the content of art. 17, para. 1 of the FIFA Regulations on
the Status and Transfer of Players (RSTP) and requested a compensation amounting to MDL
190,000 plus USD 15,000, broken down as follows:
a. MDL 115,000 corresponding to the residual value of the contract;
b. MDL 75,000 corresponding to the reimbursement of the player’s registration fees
before the Football Federation of Moldova; and
c. USD 15,000 in accordance with the release clause set forth in point 5.1 of Annex 1 to
contract.
41.
Lastly, the club claimed that said amounts should be accrued by interest of 5% p.a. as from
17 July 2020 until the date of effective payment.
c.
Reply to the counterclaim by the player
42.
In his answer to the club’s counterclaim, the player rejected the club’s position and
reiterated his own.
43.
The player remarked that he “at no time had intention to leave his club, what happened
was the possibility of [the player] to remain in Brazil through a loan contract”, which was
dully accepted by the club. However, “due to bureaucratic issued of international transfer,
there was no time to complete this negotiation”.
44.
With regard to the plane tickets, the player reiterated that he had the intention to return to
Moldova but, due to the outstanding salaries, he had no financial condition to purchase the
tickets. Additionally, the player added that the COVID outbreak made it impossible for him
to return and the negotiations between the parties were interrupted.
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45.
As to the acknowledgement of receipt dated of 11 November 2019, the player stated that
“such document was never signed by [the player] being a procedural fraud”. In this regard,
he added the following: “in a simple analysis with the contract signed by the parties, we
can observe several differences between the real signature of the athlete”.
46.
What is more, the player also remarked that said document was dated of November 2019
and, consequently, the payment of December 2019 would only fell due 14 days after the
end of the month – which was supposedly not made nor proven by the club. Thus, the
player concluded that the club “did not honour its contractual commitment to pay the
athlete's remuneration for a period longer than 02 months” (i.e. December 2019 and
January 2020).
47.
As a matter of conclusion and regarding the compensation requested by the club, the player
stressed that: (i) “the value appointed by the club of compensation for the residual value of
the contract (115,000 MDL) has no criteria, [because] the club did not present how it
reached the amount”; (ii) “the club did not attach any document that proves [the] costs”
of fees and expenses (75,000 MDL); and (iii) the release clause would only be due “if the
player is transferred to another club during the last year of the contract, which did not
occur”, because the player (allegedly) remained unemployed.
d. Position of Nova Mutum
48.
In accordance with the information available in the Transfer Match System (TMS), on 8
February 2021, the Brazilian Football Confederation (CBF) confirmed the provisional
registration of the player with the Brazilian club, Nova Mutum Esporte Clube (MT)
(hereinafter: Nova Mutum or the Intervening Party).
49.
As a consequence of the club’s counterclaim and due to the possibility of being deemed
jointly liable for the payment of the compensation in accordance with art. 17, para. 2 of
the RSTP, Nova Mutum was invited to present its position to the file.
50.
In its submission, Nova Mutum stressed that “at no time [it] has coerced the athlete to enter
into the present dispute to unilaterally terminate the contract with [the club], so much that
this allegation does not even appear in the defense of the aforementioned club from
Moldova”.
51.
In support of its allegations, Nova Mutum referred to the notices sent by the player to the
club and concluded that “it is very clear that there is just cause for the termination of the
contract by the player, in view of the fact that there is no bank proof of payment of wages”
by the club, “therefore, the player, as well as [Nova Mutum] should not be obliged to pay
any compensation for the residual amount of the contract, nor compensation for expenses,
and no termination clauses are due”.
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52.
Lastly and alternatively, Nova Mutum referred to the same arguments previously argued by
the player in his answer to the counterclaim in order to reject the compensation claimed by
the club.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
53.
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 24 July 2020 and submitted
for decision on 29 April 2021. Taking into account the wording of art. 21 of the January
2021 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.
54.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), 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, a
Moldovan club and a Brazilian club.
55.
Finally, 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 Player (edition February 2021), and
considering that the present claim was lodged on 24 July 2020, the June 2020 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
56.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
57.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
Merits of the dispute
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58.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
59.
The foregoing having been established, the Chamber moved to the substance of the matter,
and acknowledged that its task was to determine whether any of the parties breached the
contract, and the consequences that follow.
60.
Initially, the Chamber noted that, while the player deems that the club breached the
contract by failing to pay his salaries and to provide him with the pertinent flight tickets
from Brazil to Moldova, the club claims that the player breached the contract (or even
breached it first) by staying in Brazil and not performing his duties.
61.
To this extent, the DRC firstly wished to address the matter of the flights tickets and,
specifically, the parties’ liability in this regard.
62.
Accordingly, the Chamber turned its attention to the documentation on file and to the
wording of Annex 1 to the contract. By doing so, the members of the Chamber were firm
to determine that the club had already provided the player with all the plane tickets
established in the contract and, hence, that he should have resumed his duties with the
club as per the latter’s directives.
63.
Nevertheless, the members of the DRC also noted that the club’s representative (i.e. Mr.
Cristian) mentioned several times that he would try to convince the club to issue another
ticket to the player, subsequently changing his position and adopting a controversial
conduct. Thus, the DRC deemed that the shifting and unsure posture of the club
contributed to the uncertainty regarding the issuance of the plane ticket and the
consequent stay of the player in Brazil.
64.
Notwithstanding the above, the Chamber also acknowledged that the player was
assumedly trying to find another employment in Brazil and that the club was expressly
supporting the negotiations. In particular, the Chamber pointed out that: (i) the parties
signed a transfer agreement with FC Macae Esporte, which was not concluded only due to
“administrative obstacles” as per the parties’ own submissions; and (ii) the parties did not
exchange any communication as from March 2020 until 26 June 2020.
65.
In light of the above, the DRC was of the opinion that the parties were not genuinely
interested in carrying out their obligations under the contract. Put differently, after carefully
analysing the documentation on file – and, in particular, the correspondences exchanged
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between the parties – the members of the Chamber concurred that neither the player nor
the club were eager to continue with their employment relationship.
66.
Consequently, the DRC deemed that none of the parties could go against the principle of
venire contract factum proprium in order to claim the enforcement of the contract during
the season of 2020. From one side, the player did not perform his duties as per the contract
and remained in Brazil even though he was contractually responsible for his return to
Moldova. On the other hand, the club cannot benefit from its own tort either, since by its
actions it clearly accepted – although tacitly – the non-execution of the contract and cannot,
only in reaction to the player’s claim, argue that he was in breach of contract.
67.
Therefore, the Chamber decided that the contract was tacitly and mutually terminated by
the parties on 31 January 2020, date in which the player was supposed to resume his duties
with the club but did not.
68.
At this point and for the sake of completeness, the members of the DRC also wished to
outline that by the date of termination, i.e. 31 January 2020, only the salary of December
2019 was supposedly outstanding since the salary of January 2020 only fell due on 14
February 2020 (cf. art. 9.5 of the contract), entailing that the club had not defaulted such
payment by the termination date and thus was not in breach of its contractual obligations.
69.
In this respect, the Chamber referred to its long-standing jurisprudence in order to highlight
that the argumentation of the player regarding the applicability of art. 14bis of the
Regulations to the case at stake could not be upheld since the threshold established therein
is, indeed, strict – and not met in the case at hand.
70.
Bearing in mind the foregoing considerations, the members of the DRC concluded that the
parties mutually and tacitly departed from the contract. Consequently, the members of the
Chamber concurred that no compensation is to be be awarded to either party.
ii. Consequences
71.
Having found that no compensation is payable in light of the termination of the contract,
the DRC turned to the remaining issue in dispute, i.e. the unpaid salaries claimed by the
player. With due consideration to the above, the Chamber noted that the player is entitled
to receive his remuneration until the end of January 2020 since by such date, it remained
undisputed that (a) the parties were contractually bound to one another as per the contract,
and (b) the player carried out his duties as a footballer with the club.
72.
The DRC highlighted in this respect for the sake of completeness that while the salary of
January 2020 had not fallen due by the termination date, entailing that no breach to this
end occurred on the club’s part as detailed in the previous section, the player performed
his work under the contract for the months of December 2019 and January 2020. This work
performed entitles the player to be paid accordingly for the services rendered to the club.
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73.
In continuation, the Chamber recalled the basic principle of burden of proof as stipulated
in art. 12 par. 3 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. To this extent, the DRC
took note of the fact that the club did not file any evidence capable of demonstrating that
the salaries of December 2019 and January 2020 were duly paid.
74.
Therefore, the members of the DRC referred to the general legal principle of pacta sunt
servanda and decided that said amounts should be awarded to player, in local currency as
established in clause 9 of the contract.
75.
For the sake of completeness, the members of the Chamber stressed that the
acknowledgment of debts filed by the club and the player’s allegations of forgery are not
relevant to the dispute since said document refers to preterit amounts that do not impact
the outcome of the case.
76.
Lastly, with regard to the claimed interest, the DRC, applying its constant practice decided
to award the player 5% interest p.a. on the said amounts as of the due dates of each
instalment.
iii. Compliance with monetary decisions
77.
Finally, taking into account the Regulations, the Chamber referred to par. 1 and 2 of art.
24bis 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.
78.
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 and for the maximum
duration of three entire and consecutive registration periods.
79.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
80.
The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
81.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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d.
Costs
82.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. 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. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
84.
Finally, the DRC concluded the 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.
The claim of the Claimant / Counter-Respondent, Bruno Nogueira Barbosa, is partially
accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, CSF Speranta NiSporeni, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent the
following amounts:
- MDL 7,000 as outstanding remuneration plus 5% interest p.a. as from 15 January 2020
until the date of effective payment; and
- MDL 7,000 as outstanding remuneration plus 5% interest p.a. as from 15 February 2020
until the date of effective payment.
4.
Any further claims of the Claimant / Counter-Respondent are rejected.
5.
The Claimant / Counter-Respondent is directed to immediately and directly inform the
Respondent / Counter-Claimant of the relevant bank account to which the Respondent /
Counter-Claimant must pay the due amount.
6.
The Respondent / Counter-Claimant shall provide evidence of payment of the due amount in
accordance with this decision to [email protected], duly translated, if applicable, into one of
the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent / Counter-Claimant within 45 days, as from the notification by the Claimant /
Counter-Respondent of the relevant bank details to the Respondent, the following
consequences shall arise:
1. The Respondent / Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods. The
aforementioned ban mentioned will be lifted immediately and prior to its complete
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serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
8. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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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