Labour Disputes
Texto da decisão
REF FPSD-3117
Decision of the
Dispute Resolution Chamber
passed on 6 October 2021
regarding an employment-related dispute concerning the player Flavio Beck
Junior
BY:
Alexandra Gómez Bruinewoud (Netherlands / Uruguay), DRC Judge
CLAIMANT:
Flavio Beck Junior, Brazil
Represented by Mr Helio Henrique de Camargo
RESPONDENT:
PSIS Semarang, Indonesia
Represented by Ms Susanah Ng
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I.
Facts of the case
1.
On 1 February 2020, the Brazilian player Flavio Beck Junior (hereinafter: the Claimant or the
player) and the Indonesian club PSIS Semarang (hereinafter: the Respondent or the club)
signed an employment contract (hereinafter: the contract), valid between 1 February 2020
and 1 November 2020.
2.
Based on the contract, the Claimant was entitled to an annual salary in the amount of USD
85,000, payable as follows:
•
•
•
3.
a down payment of USD 8,500 for the month of February 2020;
a down payment of USD 8,500 for the month of March 2020;
10 monthly payments of USD 6,800 for the remainder of the contract.
What is more, based on the contract, the Claimant was further entitled to the following:
•
•
•
•
a ‘per goal amount’ of IDR 5,000,000;
a ‘per assist amount’ of IDR 3,000,000;
‘accommodation’ in form of an apartment for IDR 5,000,000;
‘cars and drivers for transportation depending on availability’ and ‘ticket for you and
family’.
4.
Art. 13 of the contract stipulates the following: ‘The Parties agree to settle all disputes arisen
from or in its relation with this Agreement or its application will be brought to NDRC or shall
be submitted to a sole arbitrator and in English before the court of CAS in Lausanne,
Switzerland relating with regulations made by PSSI and FIFA.’
5.
On 30 January 2021, the Respondent and the Croatian club NK Solin agreed upon the loan
of the Claimant to NK Solin for the period between 3 February and 30 June 2021.
6.
On 3 June 2021 , the Claimant put the Respondent in default for the outstanding amount of
USD 6,800 for the month of November 2020 and requesting to be reintegrated in the
Respondent’s team, providing in the last letter a 15 days’ deadline to the Respondent to
remedy its default, however to no avail.
7.
On 13 July 2021, the Claimant unilaterally terminated the contract with the Respondent with
immediate effect.
8.
After having been requested to provide an update on his contractual situation, the Claimant
informed FIFA that after the termination of his contract with the Respondent, he has remained
unemployed.
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II. Proceedings before FIFA
9.
On 23 July 2021, 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
10. On 23 July 2021, the Claimant lodged a claim against the Respondent, claiming the payment
of the following amounts:
Outstanding remuneration in the total amount of USD 6,800, as follows:
USD 6,800 as outstanding salary for the month of November 2020.
Compensation for breach of contract in the total amount of USD 40,800, as follows:
USD 40,800 as residual value of the contract in the period between July and December 2021.
11. In his claim, the Claimant explains that the contract was valid in the period between 1
February 2020 and 31 December 2021.
12. What is more, the Claimant argued that that ‘because of stopped championship in 2020’, he
was loaned to the Croatian club NK Solin, for the period between February 2021 and 30 June
2021.
13. After the end of the loan period, the Claimant holds to have communicated to the
Respondent that he would return as per 1 July 2021, but eventually, he did not receive an
answer from the Respondent, nor were flight tickets provided to him.
14. According to the Claimant, the Respondent attempted to reduce his salaries for the sequence
of the contract, and also failed to pay his salary for the month of November 2020 in the
amount of USD 6,800. What is more, the Claimant explains that the Respondent failed to
reintegrate him in the team, as a result of which he could not effectively continue his sporting
career.
15. What is more, on 13 July 2021, the Claimant was contacted by the Croatian club NK Rudar,
which wished to sign him.
16. Based on the foregoing, the Claimant deems that by lodging a claim to FIFA on 22 July 2021,
he had terminated the contract with the Respondent with just cause.
b. Position of the Respondent
17. In reply to the Claimant’s claim, the Respondent argued that it is indeed in debt for an amount
related to the month of November 2020, but that it was mutually agreed between the parties
that said amount is only USD 680.
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18. The Respondent further explains that the Indonesian league commenced on 29 February
2020, but eventually on 16 March 2020, the league was suspended by the PSSI and remained
suspended until at least May 2020, while it was only officially cancelled on 26 January 2021.
The Claimant had allegedly, in view of the outbreak of the COVID-19 pandemic, already left
Indonesia on 13 March 2020 and had returned to Croatia.
19. What is more, the Respondent indicated that the Claimant:
•
•
accepted a 25% salary reduction for the months of March, April and May 2020;
verbally accepted, around July 2020, to receive 10% of his monthly salary for the
remaining period of his contract, i.e. the period between June and November 2020
(USD 680 per month).
20. Further, the Respondent confirms that - although it no longer had valid contract with the
Claimant – it facilitated the loan of the Claimant to NK Solin in January 2021, helping the
Claimant where it could.
21. What is more, the Respondent explained that in the period between March and June 2021,
the parties negotiated on a potential new contract for the 2021 football season, but that they
eventually did not manage to conclude an agreement.
22. The Respondent also explains that it did not take of the contents of the default letter dated
3 June 2021, due to a complete lockdown in Semarang, Indonesia.
23. What is more, the Respondent points out the following circumstances:
•
•
•
it agreed via WhatsApp with the Claimant about the fact that he would only receive
10% of the monthly remuneration for the period between June and November
2020;
the parties did not agree on an extension of the contract in the period after 1
November 2020, so there was no contractual relationship between them in 2021
(Note: said fact, the non-extension of the contract, was also announced by the
Claimant via his Instagram profile on 22 July 2021);
in view of the foregoing, there is no contractual basis to award compensation for
breach of contract to the Claimant.
24. In regards to the loan of the Claimant to NK Solin, the Respondent explains that the Claimant
himself wanted to join this club, and that it mainly supported the Claimant out of good will
to make said transfer.
25. Finally, the Respondent argues that the letter of NK Rudar is not signed.
III. Considerations of the Dispute Resolution Chamber
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a. Competence and applicable legal framework
26. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, it took note that the present matter was presented to FIFA on 23 July 2021 and
submitted for decision on 6 October 2021. Taking into account the wording of art. 34 of the
October 2021 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.
27. Subsequently, the Single Judge 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 (August 2021 edition), the Single Judge is in principle
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Brazilian player and an Indonesian club.
28. However, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of article 13 of the employment contract and alleging that
the NDRC of the Indonesian Football Association (PSSI) should be competent to deal with the
matter at hand.
29. In this respect, the Single Judge emphasised that in accordance with art. 22 lit. b) of the
Regulations, it is competent to deal with a matter such as the one at hand, unless an
independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle
of equal representation of players and clubs, has been established at national level within the
framework of the Association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing fair
proceedings, the Single Judge referred to FIFA Circular no. 1010 dated 20 December 2005.
In this regard, the Single Judge further referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
30. Entering into the analysis of the alleged competence of the Indonesian NDRC, the Single
Judge noted that the Respondent failed to provide documentary evidence and/or
documentation on the basis of which it could be concluded that the Indonesian NDRC
complies with the standards of an independent arbitration tribunal guaranteeing equal
representation and fair proceedings. The members of the Chamber emphasised that they
cannot base their decision on the basis of documentation that is incomplete and/or not
provided at all.
31. As a result, and taking into consideration all of the above circumstances, the Single Judge
concluded that the club’s objection to the competence of FIFA to hear the present dispute
has to be rejected, and that the Dispute Resolution Chamber is therefore competent, on the
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basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
32. In continuation, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition) and
considering that the present claim was lodged on 23 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
33. 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 she 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
34. Its 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, she 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
35. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the parties strongly dispute what the consequences are
of the loan of the player to the Croatian club NK Solin, seen in the context of the Claimant’s
unilateral termination of the contract with the Respondent on 13 July 2021.
36. In this context, the Single Judge acknowledged that it its task was to detail to determine what
the consequences of such termination on 13 July 2021 would be.
37. First of all, the Single Judge wished to address the issue in relation to the duration of the
contract. In this respect, the Single Judge noted that the Claimant indicated that said contract
was valid between 1 February 2020 and 31 December 2021, whereas the Respondent
explicitly pointed out that the contract was only valid until 1 November 2020.
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38. The Single Judge further wished to refer to the fact that in the Transfer Matching System
(TMS), a copy of the loan agreement concluded between the Respondent and NK Solin is
available, in which it is confirmed that the contract of the Claimant was valid until 31
December 2021, which information can be – based on art. 13 par. 4 of the Rules – considered
the Single Judge. Moreover, the Single Judge deemed it relevant to point out a player can in
general only be loaned to another club if said player has actually still a valid contract with the
club of origin.
39. Based on the foregoing circumstances, the Single Judge came to the conclusion that the
contract between the Claimant and the Respondent was valid until 31 December 2021.
40. Analysing the concrete circumstances in the matter at hand, the Single Judge took note that
according to the Claimant, the salary for the month of November 2020 remained
outstanding, as well as that the Respondent failed to reintegrate him in its team after his
return from loan on 1 July 2021. Said allegations are backed with documentary evidence, and
the Respondent was not able to back its allegations that the parties agreed on a reduction of
the salary for November 2020 to USD 680 with documentary evidence.
41. Moreover, the Single Judge deemed that the non-payment of one monthly salary as well as
the non-reintegration of the Claimant in the Respondent’s team (for which the club was put
in default, however to no avail), appear to have given the Claimant a just cause to terminate
the contract with just cause on 13 July 2021.
42. As a consequence of all the aforementioned allegations combined with the documentation
provided by the Claimant, the Single Judge considered that the Respondent was to be
considered responsible for the breach of its contractual obligations, consisting of the nonpayment of the salary for the month of November 2020 and the non-integration of the
Claimant in the first team squad after his return from loan on 1 July 2021.
43. Consequently, the Chamber concluded that the Claimant had a valid reason to terminate his
contractual relation with the Respondent on 13 July 2021 and therefore, is entitled to
outstanding remuneration and compensation for breach of contract.
ii. Consequences
44. 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 Respondent.
45. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to two salaries for
the months of November 2020 and July 2021 under the contract, amounting to USD 13,600.
46. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
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which were outstanding under the contract at the moment of the termination, i.e. USD
13,600 (2 times USD 6,800).
47. 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 Single
Judge 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.
48. In application of the relevant provision, the Single Judge held that she 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.
49. 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.
50. 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 USD 34,000 (i.e. the residual value of the contract) serves as
the basis for the determination of the amount of compensation for breach of contract.
51. 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.
52. In this respect, the Single Judge noted that the player had not found new employment, and
was therefore not able to mitigate his damages. As such, no further mitigation shall apply.
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53. 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 USD 34,000
to the player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
iii. Compliance with monetary decisions
54. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
55. 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.
56. 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. 24bis par. 2, 4, and 7 of the Regulations.
57. 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.
58. 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. 24bis par.
8 of the Regulations.
d. Costs
59. 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
60. 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.
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61. Lastly, the Single Judge concluded her 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, Flavio Beck Junior, is accepted.
2.
The Respondent, PSIS Semarang, has to pay to the Claimant, the following amount:
- USD 13,600 as outstanding remuneration;
- USD 34,000 as compensation for breach of contract.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24bis 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 the ban shall
be of 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.
5. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
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