Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 21 January 2020,
by
Om ar Ongaro (Italy), DRC Judge
on the matter between the player,
Antonio Benv enutti de S ouza , Brazil
represented by Mr Rodrigo Tittoto Acra and
Mr Alexandre Dias Bortolato
as Claimant
and the club,
AD Metapan , El Salvador
as Respondent
regarding a dispute arisen between the parties in connection with
an employment-related dispute
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I.
Facts of the cas e
1.
On 21 April 2018, the Brazilian player, Antonio Benvenutti de Souza (hereinafter: the player
or the Claimant) and the Salvadoran club, AD Metapán (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid for the
2018/2019 season.
2.
Pursuant to clause II of the contract, the parties further agreed that the contract may be
extended or terminated in advance by mutual agreement between the parties.
3.
As to the remuneration, clause III of the contract stipulated that the player was entitled to
the following:
- A monthly salary of USD 1,625 during the “First Tournament”;
- A monthly salary of USD 1,875 during the “Second Tournament”.
4.
According to clause III, the contract further indicated that the above-mentioned amounts will
be paid monthly, on the last working day of each month within the term, to which the
corresponding Income Tax withholding will be applied. Likewise, both contracting parties
agreed that during the Pre-Season of each Tournament, and having participated in it, the
club shall only be obligated to pay the Player fifty percent of the agreed-upon amount.
5.
According to the player, on the 22 October 2018, the club decided to terminate the contract
unilaterally.
6.
In this respect, the club provided during the course of the investigation a copy of a mutual
termination agreement, dated 22 October 2018, stating, inter alia, that the parties had
agreed to terminate the contract. Furthermore, according to said agreement the player
declared having nothing to claim in economic matters and in any other matter to the club.
Lastly, the club further declared not having any future commitment.
7.
The player lodged a claim before FIFA against the club for outstanding remuneration, and
requested the payment of the total amount of USD 8,784.68, plus 5% interest p.a. as from 22
November 2018 until the date of effective payment, detailed as follows:
- USD 5,259.68 “corresponding to the remainder of the salary of the contract period”;
- USD 3,525 “as indemnity for the early termination of the contract cause by the Club”.
8.
According to the player, considering the content of the contract, he was entitled to receive
the amount of USD 9,900, corresponding to six monthly salaries as from 21 April 2018 until
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22 October 2018. However, as per the player, he only received the amount of USD 4,640.32
“paid in different checks in the different values”
9.
The club underlined in its reply that the contract was not terminated unilaterally, but rather
on the basis of a mutual termination agreement dated 22 October 2018. In this respect, the
club provided a copy of said agreement and explained that, by means of said document, the
player acknowledged that no outstanding amounts remained due.
10.
Before the closure of the investigation, the player sent an unsolicited correspondence,
arguing that the club did not present “any proof of payment of the amount due, neither
presented the deposit receipt”.
11.
In addition, the player argued that he “was coerced into signing the “Declaration” presented
by the Respondent to take back his passport and personal documents and to be able to return
to his home country, even not agreeing to the early termination of the employment contract
and aware of the existence of amounts due”.
II.
Cons iderations of the Dispute Resolution Chamber (DRC) judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge
or the judge) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 5 August 2019. Taking
into account the wording of art. 21 of the 2019 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.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, 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 a Salvadoran club.
3.
Furthermore, the DRC judge 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, and considering that the
present claim was lodged on 5 August 2019, the 2019 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established,
the judge entered into the substance of the matter. Entering into the substance of the
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matter, the DRC continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter. However,
the DRC 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.
5.
In this respect, the judge recalled that the Claimant and the Respondent, on 21 April 2018,
concluded an employment contract valid for the 2018/2019 season, according to which the
player was entitled to the remuneration specified in points I.3. and I.4. above.
6.
In order to determine the duration of the contract, the DRC judge took note that, according
to the TMS, the Salvadoran 2018/2019 season ran as from 28 July 2018 until 15 June 2019.
7.
Subsequently, the DRC judge noted that the Claimant lodged a claim against the
Respondent for breach of contract without just cause, arguing that the club did “not comply
with its financial obligations towards the player”.
8.
Furthermore, the judge acknowledged that the Respondent provided a copy of a document
containing a declaration in accordance with which the player and the club agreed to
terminate the employment relationship. Additionally, the DRC judge took note that, by
means of said declaration, the player admitted having nothing to claim in economic matters
and in any other matter (cf. point I.6. above).
9.
In continuation, the DRC judge noted that the Claimant, by means of his unsolicited
correspondence dated 11 November 2019, argued that he “was coerced into signing the
“Declaration” presented by the Respondent to take back his passport and personal
documents and to be able to return to his home country, even not agreeing to the early
termination of the employment contract and aware of the existence of amounts due”.
10.
In this regard, referring to art. 12 par. 3 of the Procedural Rules, in accordance with which
any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the
DRC judge took into account that the player failed to present documentary evidence in
support of his allegation that he had been coerced, by the Respondent, into signing the
above-mentioned document. Consequently, the judge decided that the Claimant’s
allegations in this regard cannot be accepted.
11.
In the light of all of the above, and in particular bearing in mind the fact that the Claimant
signed the aforementioned waiver, the Dispute Resolution Chamber judge decided that it
must reject the claim put forward by the Claimant.
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III. Decision of the Dispute Resolution Chamber (DRC) Judge
1. The claim of the Claimant, Antonio Benvenutti de Souza, is rejected.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto.
Within another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with
the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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