Labour Disputes
Texto da decisão
REF. FPSD-14581
Decision of the
Dispute Resolution Chamber
passed on 22 August 2024
regarding an employment-related dispute concerning the player Luiz
Fernando Barnaske Welter
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Oleg ZADUBROVSKIY (Russia), Member
Khadija TIMERA (Senegal), Member
CLAIMANT:
Luiz Fernando Barnaske Welter, Brazil
Represented by Leonardo Welter Winck
RESPONDENT:
Sc Lusitânia/Twins Club Açores
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REF. FPSD-14581
I. Facts of the case
1. On 13 August 2022, the Brazilian player Luiz Fernando Barnaske Welter (hereinafter:
Claimant or Player) and the Portuguese club Sc Lusitânia/Twins Club Açores (hereinafter:
Club or Respondent) concluded an employment contract (hereinafter: Contract) valid as from
28 January 2023 until 30 June 2025.
2. According to the Contract, the Respondent undertook to pay the Claimant a monthly salary
in the amount of EUR 798 net, payable “by the 5th of each month”.
3. Per the Contract, “any delay in complying with the provisions referred to in paragraph 1 of this
clause will be made known to the [Claimant] by the 10th of each month and may never exceed a
period of 60 (sixty) days.”
4. The Contract further provided that in the event of a delay of payment lasting more than 60
days, the Claimant would have the right to interrupt his work obligations and to return only
once the outstanding remuneration had been paid.
5. On 1 June 2023, the relationship between the parties terminated. On this date, the parties
signed an agreement (hereinafter: the “Termination Agreement”) which stated as follows:
“PROOF OF LAST CONTRACT END DATE
“The player and the club mutually agreed an early termination of the employment contract
between them”
Full player name:
Date of birth:
Nationality(ies):
Luiz Fernando Barnaske Welter
03 Agosto de 2002
Brasileira
This is to confirm that the employment contract between Sport Club Lusitânia and the player
Luiz Fernando Barnaske Welter was terminated by mutual agreement on 01 de Junho de 2023.
The athlete confirms that he has nothing to receive from Sport Club Lusitânia.” (emphasis
supplied)
6. Following the termination, on 16 August 2023 the Claimant signed an employment contract
with the club Al Rams of the United Arab Emirates, valid as from 1 August 2023 until 31 May
2024.
7. Pursuant to the Al Rams contract, the Claimant received a monthly salary of AED 5,000.
8. On 31 January 2024, the Player and Al Rams parted ways by way of a termination agreement,
releasing Al Rams from the financial obligations arising from the contract.
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REF. FPSD-14581
9. On 8 February 2024, the Claimant transferred to an amateur club, Dandenong Thunder SC,
affiliated with the Australian Football Federation. No contract was registered in TMS.
10. On 3 May 2024, the Player then moved on a free transfer to the Malaysian club Kuching City
FC. The employment contract executed between the Player and Kuching City FC was valid
as from 1 May 2024 until 30 April 2025.
11. Pursuant to the Kuching City FC employment contract, the Claimant received a monthly
salary of “RM 4,200”.
12. Upon request by the FIFA general secretariat regarding the Player’s subsequent contractual
status, the Claimant provided only the contract with Kuching City FC and did not provide
any additional contracts or information regarding Dandenong Thunder SC or Al Rams. The
information relating to these latter two contracts was obtained ex officio via the Transfer
Matching System (”TMS”).
II. Proceedings before FIFA
13. On 8 May 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
14. According to the Claimant, during his employment with the Respondent he received a total
of EUR 900, paid by the Respondent as follows:
- EUR 100 on 3 March 2023;
- EUR 400 on 9 March 2023;
- EUR 400 on 28 April 2023.
15. The Claimant stated that he sent a default notice to the Respondent’s President, requesting
that the Respondent pay the outstanding remuneration for his salaries of February 2023,
March 2023, April 2023, and May 2023, arguing that the amounts added up to EUR 3,090.
16. The Claimant went on to argue that the Respondent unilaterally terminated the Contract
without just cause, and therefore owed compensation in the amount of EUR 19,195,
representing the residual value of the Contract for 24 months remaining.
17. The Claimant argued that the Termination Agreement did not absolve the Respondent’s
financial obligation:
“For clarification purposes, it should be said that the document signed by the parties at the time
of termination does not exempt the defendant club from the responsibility to make payment,
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REF. FPSD-14581
as it is a document with mere allegations without any proof of the actual payment of amounts
due, the which the defendant club does not have proof of having made, since there was
no payment.”
18. The Claimant further provided WhatsApp messages with the Club’s alleged representative,
including an attachment of what appeared to be the default notice. Neither the notice
attachment nor the message was dated.
19. The requests for relief of the Claimant were the following:
The receipt of this demand by this Egregious Conflict Resolution Chamber for judgment, as it
is a dispute within the jurisdiction of FIFA;
ordering the defendant club to pay the compensation provided for in article 17 of the RSTP
(Regulations on the Status and Transfer of Players) to the plaintiff athlete, in the amount of
€19,195.00 (nineteen thousand, one hundred and ninety-five euros), given that had his
contract terminated without just cause, on the initiative of the defendant club, in advance on
06/01/2023, in addition to the amount of €3,888.00 (three thousand, eight hundred and
eighty- eight euros), corresponding to the balance for the month of February and the entire
months of March, April, May and June 2023. Everything amounts to €23,083, under penalty
of application of applicable sanctions, especially those provided for in article 17.4 of the RSTP
(Regulations on the Status and Transfer of Players).
b. Position of the Respondent
20. Despite being invited to do so, the Respondent failed to reply to the claim.
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REF. FPSD-14581
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Dispute Resolution Chamber (hereinafter: the 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 8 May 2024 and submitted for decision on 22
August 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.
22. Furthermore, 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
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Brazilian player
and a Portuguese club.
23. Furthermore, the Chamber took note that the Contract included a jurisdiction clause which
provided as follows:
“1. This contract will be governed by and interpreted in accordance with the Tribunal Arbitral
du Sport (TAS), based in Lausanne, Switzerland. All parties agree that any action, claim or
dispute arising from this employment contract will be taken for resolution in the Civil Court.
2. The language of arbitration will be in English.
3. The arbitrator must decide the dispute ex aequo et bono
4. This agreement is made based on the will of the grantors and cannot be altered or
modified except through a document signed by both parties.”
24. The Chamber further observed that the language appeared to be ambiguous as to
whether “Civil Court” referred to the Court of the Arbitration for Sport (“CAS”) or the
parties intended to confer jurisdiction to a regional civil court. The Chamber further
highlighted that the remaining clauses in the jurisdiction clause referred only to
“arbitration” and “arbitrator.”
25. In light of the foregoing, and additionally because (i) the clause did not appear to grant
exclusive jurisdiction to CAS and (ii) the competence of FIFA went undisputed in the
matter at hand, the Chamber concluded that it was indeed competent to deal with the
matter (cf. art. 22 par. 1 lit. (b))
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REF. FPSD-14581
26. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 8 May 2024, the June 2024 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
27. 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
TMS.
c. Merits of the dispute
28. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
i. Main legal discussion and considerations
29. The Chamber then moved to the substance of the matter and took note of the fact that the
matter concerned the validity of a waiver.
30. In this context, the Chamber acknowledged that it its task was to determine whether a valid
and binding employment agreement existed between the parties and whether the
Respondent breached said agreement via the Termination Agreement.
31. The evidence provided by the Claimant supports that initially, there existed a valid and
binding employment agreement between the parties, the Contract.
32. The Claimant presented a document titled “Proof of Last Contract End Date” which notes (1)
“The player and the club mutually agreed on early termination of the employment contract
between them”; (2) the Contract was “terminated by mutual agreement” and (3) the Claimant
“confirms that he has nothing to receive from Sport Club Lusitânia.”
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REF. FPSD-14581
33. The Chamber next took note that pursuant to well established jurisprudence, a player in
principle cannot waive his right to remuneration for work already performed as such a
waiver would oblige the player to perform work without salary, and consequently such
waiver would be null and void.
34. Further, the Chamber recalled that where a player waives only outstanding entitlements
and not future earnings, such a waiver shall be unenforceable.
35. Here, the waiver appears to state that the Claimant waives both outstanding remunerations,
as well as future earnings.
36. The Chamber further recalled that the Claimant, while referring to art. 14bis and noting that
it provided a default notice to the Respondent at an unspecified date, the Claimant
ultimately alleged that in fact the Club terminated the Contract without just cause, rather
than that the Claimant terminated the Contract with just cause. The Chamber therefore
noted that art. 14bis did not apply to the matter at hand.
37. Furthermore, the Chamber recalled that the Claimant accused the Respondent of
terminating the Contract without just cause despite having both outstanding remuneration
and 24 months left remaining on the Contract. However, the Chamber further observed
that the Claimant did not directly dispute the validity of the waiver, and instead emphasized
that any such document did not exempt the Club from its payment obligations to the
Player.
38. The Chamber thus concluded that while the Claimant validly waived his right to future
compensation, the Claimant did not validly waive his entitlement to outstanding
remuneration for work already performed.
ii. Consequences
39. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of the Respondent’s failure to pay outstanding
remuneration.
40. The Chamber observed that the Claimant stated that, as of the termination date, which is
alleged to have occurred on 1 June 2023, EUR 3,888 were owed for salaries from February
through June.
41. The Chamber further recalled that the Contract provided that the monthly salary was to be
“paid by the 5th of each month.” The Chamber observed that the Contract did not specify
whether such payment was due for the salaries of the previous or the current month.
42. In the absence of evidence put forth by the Respondent and based on the amounts claimed
by the Claimant, the Chamber determined that the monthly amounts fell due for the
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REF. FPSD-14581
current month. The foregoing notwithstanding, the June 2023 salary claimed by the
Claimant had not yet fallen due on 1 June 2023.
43. Next, the Chamber assessed that as from 1 June 2023, the missed salary that was cited as
being past due amounted to the four salaries of February 2023, March 2023, April 2023,
and May 2023, with each monthly salary equalling EUR 798. Therefore, the Chamber
concluded that the four salaries totalled EUR 3,192.
44. The Chamber then recalled that the Claimant acknowledged having already received EUR
900; therefore, it determined that the past due amount as from the termination date
amounted to EUR 2,292.
45. Consequently, and by virtue of the principle of pacta sunt servanda, the Chamber decided
that the Respondent is liable to pay the Claimant his outstanding remuneration at the time
of termination, less the amounts acknowledged as already received, in the amount of EUR
2,292.
iii. Compliance with monetary decisions
46. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
47. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
48. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
49. 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.
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REF. FPSD-14581
50. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
51. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
52. 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.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14581
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Luiz Fernando Barnaske Welter, is partially accepted.
2.
The Respondent, Sc Lusitânia/Twins Club Açores, must pay to the Claimant the following
amount(s):
- EUR 2,292 as outstanding remuneration.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14581
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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