Labour Disputes
Texto da decisão
REF. FPSD-6233
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning
the player PEDRO HENRIQUE BARTOLI JARDIM
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Peter Lukasek (Slovakia), member
Laurel Vaurasi (Fiji), member
CLAIMANT / COUNTER-RESPONDENT:
PEDRO HENRIQUE BARTOLI JARDIM, Brazil
Represented by André Scalli & Breno Pinto Gondim De Almeida
RESPONDENT / COUNTER-CLAIMANT:
Masfout, United Arab Emirates
Represented by Mahmoud Osman
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REF. FPSD-6233
I. Facts of the case
1.
On 3 August 2021, the Brazilian player, Pedro Henrique Bartoli Jardim (hereinafter:
Claimant or player) and the Emirati club, Masfout (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from 1 August 2021 until
30 April 2022.
2.
According to the contract, the Respondent undertook to pay the player a monthly salary of
UAE Dirham (AED) 8,000.
3.
On 12 September 2021, according to the player, the club informed him “that he would no
longer be part of the club” and he was “forced to sign” the following declaration:
4.
On 5 October 2021, the player signed an employment contract with the Emirati club Masafi,
valid as from 5 October 2021 until 19 January 2022, including a monthly salary of AED 8,000.
5.
On 29 March 2022, the player signed an employment contract with the Brazilian club,
Bebedouro, valid as from 29 March 2022 until 30 September 2022, including a monthly
salary of BRL 1,215 (approx. AED 855).
II. Proceedings before FIFA
6.
On 1 June 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
7.
In his claim, the player requested payment of compensation for breach of contract in the
amount of USD 16,553.23, plus 5% interest p.a..
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REF. FPSD-6233
8.
In this context, the player argued that the club terminated the contract without just cause
on 12 September 2021.
9.
He maintained that he was left “without any assistance to return to his home country, being
forced to pay for the tickets out of his own pocket.”
10. Also, the player pointed out that at this time, the transfer window was closed.
11. The player held that there was no reason to dismiss him.
12. Moreover, the player alleged that the club “forced” him to sign the declaration that
discharges the club (cf. I.3. above), without knowing what he was signing.
13. In this context, the player clarified that he never wanted to consent to a termination
agreement. He also argued that he does not speak English, the language the document
was drafted in.
14. The player argued that the club acted in bad faith and abusive.
15. Taking into account the above, the player pointed out that the residual value of the contract
amounts to AED 60,800 (8 months according to the player; corresponding to USD
16,553.23).
16. Also, the player claimed the “value of the agreed roundtrip flight tickets” between Dubai-Sao
Paulo. The player submitted a flight ticket on his name dated 7 February 2022 in the
amount of BRL 439.65.
b. Position of the Respondent / Counterclaim
17. In its reply, the club rejected the player’s claim and lodged a counterclaim requesting
payment of the following monies:
- AED 2,000 as reimbursement for the “flight ticket allowance” paid to the player;
- AED 24,000 as “three-month salary compensation” plus 5% interest p.a.
18. According to the club, on 29 September 2021, the parties signed a “termination agreement”
and subsequently the club paid the amount of AED 13,200 as compensation for the early
termination (AED 11,200) and a “flight ticket allowance” of AED 2,000. In this regard, the club
submitted a cheque dated 29 September 2021 with the player’s name and the alleged
amount.
19. The club also pointed out that it remitted the player’s salary for August 2021 on 4
September 2021.
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REF. FPSD-6233
20. As conclusion, the club argued that the parties mutually terminated the contract, the player
declared that the club fulfilled all of its financial duties and the player shortly after signed
for a new club.
c. Reply of the player to the Counterclaim
21. In his reply to the counterclaim, the player rejected the club’s counterclaim and reiterated
his position.
22. The player argued that his move to the club Masafi “was an emergency” since he could not
return to Brazil and the transfer window was about to close. In this context, he argued that
he accepted a lower salary in order to “survive and continue working”.
23. Furthermore, the player pointed out that his career was “damaged” by the club’s
termination.
24. On the other side, he held that the club had no harm and therefore no right to
counterclaim.
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REF. FPSD-6233
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. 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 1 June 2022 and submitted for
decision on 2 March 2023. Taking into account the wording of art. 34 of the October 2022
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.
26. 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 October 2022 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 a Brazilian player
and an Emirati club.
27. 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 (October 2022 edition), and
considering that the present claim was lodged on 2 June 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
28. 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).
c. Merits of the dispute
29. Its competence and the applicable regulations having been established, 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 the assessment of the matter at hand.
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REF. FPSD-6233
i. Main legal discussion and considerations
30. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the circumstances of the
contract termination.
31. In this context, the Chamber acknowledged that it its task was to detail if either party
terminated the contract without just cause and to decide on the consequences arising
thereof.
32. The Chamber duly noted that the player argued that the club terminated the contract
without just cause, whereby the club held that the contract was mutually terminated.
33. Taking into account the above, the DRC established that the core of the dispute is the
“declaration” dated 12 September 2021. The Chamber took notice that the player held that
he did not understand what he was signing and that he was forced to sign the document.
On the other hand, the members of the Chamber noted that the club interprets this
document as a mutual termination and argued having paid the player compensation for
said early termination.
34. Taking into account the elements on file and while analysing the specific circumstances of
the matter at hand, the Chamber concluded that the club admitted that there was an early
termination while arguing that it already remitted compensation. In doing so, the DRC
established that the club acknowledged that there was no just cause for the early
termination, since otherwise there would have been no reason to pay compensation.
35. As a conclusion, the members of the Chamber established that the club terminated the
contract without just cause on 12 September 2021.
36. Furthermore, the DRC proceeded to analyse the content of the “declaration” in order to
establish if the player waived any entitlement by signing this document.
37. The Chamber stated the the player did not meet his burden of proof in order to establish
that he was forced to sign such document. However, taking into account the special
circumstances of the case, especially the fact that the document was signed on 12
September 2021 and that certain payments of the club were remitted at a later stage (i.e.
on 29 September 2021), are contradicting.
38. On account of the above and since there is no reason for further payments if a termination
agreement was indeed agreed upon, the Chamber concluded that the player remained
entitled to his dues (and therefore to compensation).
39. In this regard, the DRC decided to reject the club’s counterclaim.
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REF. FPSD-6233
ii. Consequences
40. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the club.
41. The Chamber observed that the player claimed a total amount corresponding to 8 months
(as of September 2021). However, the club submitted evidence that it remitted the salary
for August 2021 (which was not claimed) and 12 days of September 2021. Said payments
remained undisputed by the player.
42. Therefore, the DRC concluded that there was no outstanding remuneration due at the
moment of termination.
43. Having stated the above, the Chamber 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.
44. In application of the relevant provision, the Chamber 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
45. As a consequence, the members of the Chamber 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 Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
46. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber
concluded that the amount of AED 60,800 (AED 4,800 for residual period in September
2021 and AED 56,000 for October 2021 until April 2022, 7x AED 8,000) serves as the basis
for the determination of the amount of compensation for breach of contract.
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REF. FPSD-6233
47. In continuation, the Chamber 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.
48. Indeed, the player found employment with two clubs. In accordance with the pertinent
employment contracts, the player mitigated his damages in the total amount of AED
32,855.
49. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of AED 27,945 to the player (i.e. AED 60,800 minus AED 32,855), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
50. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 12 September 2021 until the date of effective
payment.
iii. Compliance with monetary decisions
51. 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.
52. 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.
53. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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.
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REF. FPSD-6233
54. The club 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.
55. 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
56. 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.
57. 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.
58. 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-6233
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, PEDRO HENRIQUE BARTOLI JARDIM, is
partially accepted.
2.
The Respondent / Counter-Claimant, Masfout, has to pay to the Claimant, the following
amount:
- United Arab Emirates Dirham (AED) 27,945 as compensation for breach of contract
plus 5% interest p.a. as from 12 September 2021 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 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.
The claim of the Respondent / Counter-Claimant is rejected.
6.
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 / Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-6233
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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