Labour Disputes
Texto da decisão
REF. FPSD-14284
Decision of the
Dispute Resolution Chamber
passed on 6 June 2024
regarding an employment-related dispute concerning
the player Luiz Fernando Barnaske Welter
BY:
Michele COLUCCI (Italy), Single Judge of the DRC
CLAIMANT:
Player Luiz Fernando Barnaske Welter, Brazil
Represented by Evandro Luis Rezende Forte
RESPONDENT:
Dandenong Thunder SC, Australia
pg. 2
REF. FPSD-14284
I. Facts of the case
1.
On 1 February 2024, the Brazilian player, Luiz Fernando Barnaske Welter (hereinafter:
Claimant or player) and the Australian club, Dandenong Thunder SC (hereinafter: club or
Respondent) concluded the following agreement (hereinafter: agreement):
2.
On 15 March 2024, the Claimant put the Respondent in default and requested payment of
AUD 1,000 as well as the flight tickets to Australia and the VISA/work permit, as agreed in
the agreement.
3.
On 1 May 2024, the player signed an employment contract with the Malaysian club, Kuching
City FC, valid as from 1 May 2024 until 30 April 2024, including a monthly salary of Malaysian
Ringitt (MYR) 4,200 (approx. AUD 1,350).
pg. 3
REF. FPSD-14284
II. Proceedings before FIFA
4.
On 2 April 2024, 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
5.
In his claim, the Claimant requested payment of the following monies:
- AUD 32,200 as compensation for breach of contract (total contractual value), plus
5% interest p.a. as of 2 April 2024;
- USD 2,737.42 “due as flight ticket” .
6.
In his claim, the player argued that the parties concluded a valid and binding employment
contract when the agreement was signed.
7.
The player pointed out that it contains all the essentialia negotii of an employment contract.
8.
Further, the player held that the club failed to send him the flight ticket as well as the VISA
for Australia and also that the club failed to remit any payments.
9.
According to the player, the club therefore breached the contract and he is entitled to
compensation for breach of contract.
b. Position of the Respondent
10. In its reply, the Respondent rejected the claim.
11. The club argued that it was not their responsibility to organise the VISA for the player and
that it was the player’s agent fault that he applied for a tourist VISA instead of a working
VISA.
12. The club held that it organised the “travel to Australia, organised accommodation, transfer
from the airport” before the player was “detained for hours by immigration and then sent back
to Thailand.”
13. In this regard, the club referred to art. 5 of the agreement and held that it was not
responsible.
pg. 4
REF. FPSD-14284
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge (hereinafter also referred to as Single Judge) analysed whether
he was competent to deal with the case at hand. In this respect, he took note that the
present matter was presented to FIFA on 18 April 2024 and submitted for decision on 6
June 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.
15. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 Regulations on the Status and Transfer of Players (June 2024), he
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.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 18 April 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
17. The Single Judge 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 Single Judge
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
18. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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.
pg. 5
REF. FPSD-14284
i. Main legal discussion and considerations
19. 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 of contract.
20. In this context, the Chamber acknowledged that it its task was to decide if a valid
employment contract was concluded by the parties and if so, to detail if such contract was
breached by the club without just cause, as alleged by the player.
21. In this framework, the Single Judge noted that according to the Claimant, a valid
employment contract was concluded between the parties. Nevertheless, the club did not
pay any salaries and failed to assist with the VISA. Therefore, the player held that the club
terminated the contract without just cause and he is entitled to compensation for breach
of contract.
22. On the other hand, the Single Judge duly noted that the Respondent confirmed that the
agreement was concluded but held that it was not responsible to assist with the VISA. It
pointed out that it paid for the expenses of the player, but that due to art. 5 of the
agreement the contract was not valid until a VISA was granted.
23. The Single Judge further noted that the Respondent disputes the validity of the
employment contract, as the player was not able to obtain the necessary VISA.
24. In this context, the Single Judge first reminded the parties that, in line with the contents of
art. 18 par. 4 of the Regulations, as well as the jurisprudence of FIFA, the validity of an
employment contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the player obtaining a VISA. As the club is supposedly
interested in acquiring the rights of the player and in benefiting from his services, it is also
expected to act accordingly and execute the administrative formalities in view of obtaining
a VISA. Consequently, the VISA t is irrelevant in determining if the contract was a valid and
binding document.
25. Based on the foregoing, the Single Judge rejected the Respondent’s objection to the validity
of the employment contract and determined that the latter is valid and biding for the
parties.
26. Therefore, the Single Judge decided that the club breached the contract without just cause.
pg. 6
REF. FPSD-14284
ii. Consequences
27. Having stated the above, the Single Judge 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.
28. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
29. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
30. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge
concluded that the amount of AUD 32,200 (26 weeks x AUD 1,200 plus AUD 1,000 as signing
fee) serves as the basis for the determination of the amount of compensation for breach
of contract.
31. In continuation, the Single Judge 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.
pg. 7
REF. FPSD-14284
32. Indeed, the player found employment with Malaysian club, Kuching City FC. In accordance
with the pertinent employment contract, the player was entitled to Malaysian Ringitt (MYR)
4,200 (approx. AUD 1,350) per month. Therefore, the Single Judge concluded that the player
mitigated his damages in the total amount of AUD 4,050 (May 2024 until July 2024; 3x AUD
1,350).
33. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the amount
of AUD 28,150 to the player (i.e. AUD 32,200 minus AUD 4,050) as wells a USD 2,737 as
reimbursement of the flight ticket, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
34. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 2 April 2024 and 4 April 2024 respectively, until
the date of effective payment.
iii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Single Judge 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.
36. In this regard, the Single Judge 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.
37. Therefore, bearing in mind the above, the Single Judge 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.
38. 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.
pg. 8
REF. FPSD-14284
39. The Single Judge 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
40. The Single Judge 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.
41. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
42. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-14284
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Luiz Fernando Barnaske Welter, is partially accepted.
2.
The Respondent, Dandenong Thunder SC, must pay to the Claimant the following
amount(s):
- AUD 28,150 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 April 2024 until the date of effective payment.
- USD 2,737 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 4 April 2024 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
pg. 10
REF. FPSD-14284
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
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