Labour Disputes
Texto da decisão
REF. FPSD-15687
Decision of the
Dispute Resolution Chamber
passed on 16 October 2024
regarding an employment-related dispute concerning the player Miguel
Antonio Bianconi Kohl
BY:
Gonzalo DE MEDINILLA (Spain)
CLAIMANT:
Miguel Antonio Bianconi Kohl, Brazil
Represented by Filipe Orsolini Pinto de Souza
RESPONDENT:
CRUTD, Thailand
pg. 2
REF. FPSD-15687
I. Facts of the case
1.
On 13 January 2024, the Brazilian player, Miguel Antonio Bianconi (hereinafter: the Player
or the Claimant), and the Thai club, CRUTD (hereinafter: the Club or the Respondent) entered
into an employment contract (hereinafter: the Contract) valid as from 13 January 2024 until
13 June 2024.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant the
following amounts:
3.
•
A monthly salary of USD 7,300 net;
•
“Provision of accommodation at the Club’s sole discretion during your participation in
the maximum of TB 10,000 per month.”
In addition, according to clause 5 of the Contract the Parties agreed that “The club
determined criteria of penalty charging for a football player that commits an offence by
evaluating the offence, behaver and actions of the football player during practice and
competition. The Club has rights to fine by deducting from amount payable to the football player
as per clause 3. Nevertheless, to make the criteria of penalty charging complete, the club
prescribe characters of offence and penalty rate as follows:
[…] 31. Destroy a property of the club, other entities, or the competition venue: 10,000 to 20,000
per time and compensate according to the actual damage.”
II. Proceedings before FIFA
4.
On 21 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
5.
6.
The Claimant requested the following amounts:
•
Outstanding salaries in the net amount of USD 14,548, plus 5% interest p.a. as from
due date of each payment;
•
Outstanding accommodation payments in the net amount of TBH 29,136, plus 5%
interest p.a. as from the due date of each payment.
In addition, the Claimant provided the following breakdown of the amounts requested:
•
USD 1,799 corresponding to the balance of the salary due on 31 January 2024;
pg. 3
REF. FPSD-15687
•
USD 1,799 corresponding to the balance of the salary due on 28 February 2024;
•
USD 7,300 corresponding to the salary due on 31 April 2024;
•
USD 3,650 corresponding to the balance of the salary due on 30 May 2024;
•
THB 9,712 corresponding to the accommodation allowance due on 30 March 2024;
•
TBH 9,712 corresponding to the accommodation allowance due on 31 April 2024;
•
THB 9,712 corresponding to the accommodation allowance due on 30 May 2024.
b. Position of the Respondent
7.
In their reply, the Respondent acknowledged that the amount requested remains
outstanding.
8.
However, the Club alleged that, on 24 February 2024, the Player damaged the Club’s
property by kicking the tri-vision board during a match.
9.
In this regard, the Club provided some photos from the day of the incident.
10. Finally, the Club made reference to clause 5 par. 31 of the Contract and alleged that “we are
deducting a contractual penalty of 20,000 That Baht, along with the actual cost of repairing the
tri-vision board, amounting to 50,000 Thai Baht. The total deduction from the footballer’s wages
is thus 70,000 Thai Baht.”
pg. 4
REF. FPSD-15687
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the 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 21 August 2024 and submitted for
decision on 16 October 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.
12. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Single Judge 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 Thai club.
13. 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 21 August 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
14. 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 he 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
15. Having established the competence and the applicable regulations, 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
pg. 5
REF. FPSD-15687
i. Main legal discussion and considerations
16. The Single Judge then moved to the substance of the matter, noting that it concerned a
claim brought by the Player against the Club for outstanding remuneration and
acknowledged that his task was to determine the outstanding amount due to the Player,
as the parties strongly disagreed on this issue.
17. Firstly, the Single Judge recalled that the Respondent acknowledged that the amount
requested by the Player remains outstanding.
18. However, the Club alleged that as per the clause 5 par. 31 of the Contract, the alleged
damage of the board caused by the Player that cost THB 70,000, had to be deducted from
the Player’s salary.
19. In this regard, the Single Judge recalled that according to the established Football Tribunal
and CAS jurisprudence, as a general rule, clubs can set off fines against the Player’s salary
where an agreement expressly allows set-off. However, CAS has adopted a restrictive
approach in respect of offsetting fines against a player’s salary as any such set-off should
not nullify entirely an employee’s right to a basic salary, or to be applied in an abusive way
(CAS 2018/A/5807).
20. Furthermore, the Single Judge observed that the Respondent did not provide any
supporting documentation regarding the alleged damage, such as statements, invoices, or
information regarding disciplinary proceeding. The Club did provide some photos from the
day of the incident, however, the Single Judge considered that such evidence failed to
satisfy the burden of proof.
21. In continuation, the Single Judge observed that the fines were stipulated in Clause 5 of the
Contract. However, the Club has failed to clarify the criteria used to calculate the fine, nor
have they adequately substantiated their decision.
22. Furthermore, as pointed out by the Single Judge, there is no evidence on record indicating
that the Player was notified or that the Player’s right to be heard was respected.
23. Consequently, the Single Judge considered that the fine imposed to the Player has not been
justified as no evidence was provided in relation to the calculation of the fine and to the
procedure followed by the Club to impose it.
24. In this regard, the Single Judge considered that the Player is entitled to receive the
outstanding remuneration in full and the deduction of THB 70,000 is not applicable.
25. In view of the above, the Single Judge decided to award the Player the amounts of USD
14,548 and THB 29,136 corresponding to the following amounts:
pg. 6
REF. FPSD-15687
•
Salary of January: The balance of USD 1,799 due on 31 January 2024;
•
Salary of February: The balance of USD 1,799 due on 28 February 2024;
•
Salary of April: USD 7,300 due on 31 April 2024;
•
Salary of May: USD 7,300 due on 30 May 2024;
•
Accommodation allowance of March: THB 9,712 due on 30 March 2024;
•
Accommodation allowance of April: THB 9,712 due on 31 April 2024;
•
Accommodation allowance of May: THB 9,712 due on 30 May 2024.
26. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as follows:
•
5% interest p.a. over the amount of USD 1,799 as from 1 February 2024 until the date of
effective payment;
•
5% interest p.a. over the amount of USD 1,799 as from 1 March 2024 until the date of
effective payment;
•
5% interest p.a. over the amount of USD 7,300 as from 1 May 2024 until the date of
effective payment;
•
5% interest p.a. over the amount of USD 7,300 as from 1 June 2024 until the date of
effective payment;
•
5% interest p.a. over the amount of THB 9,712 as from 1 April 2024 until the date of
effective payment;
•
5% interest p.a. over the amount of THB 9,712 as from 1 May 2024 until the date of
effective payment;
•
5% interest p.a. over the amount of THB 9,712 as from 1 June 2024 until the date of
effective payment.
ii. Compliance with monetary decisions
27. 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
pg. 7
REF. FPSD-15687
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
28. 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.
29. 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.
30. 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.
31. 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
32. 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.
33. 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.
34. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 8
REF. FPSD-15687
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Miguel Antonio Bianconi Kohl, is partially accepted.
2.
The Respondent, CRUTD, must pay to the Claimant the following amount(s):
- USD 14,548 as outstanding remuneration plus 5% interest p.a. as follows:
• 5% interest p.a. over the amount of USD 1,799 as from 1 February 024 until the
date of effective payment;
• 5% interest p.a. over the amount of USD 1,799 as from 1 March 2024 until the
date of effective payment;
• 5% interest p.a. over the amount of USD 7,300 as from 1 May2024 until the date of
effective payment;
• 5% interest p.a. over the amount of USD 7,300 as from 1 June 2024 until the date of
effective payment.
- THB 29,136 as outstanding remuneration plus 5% interest p.a. as follows:
• 5% interest p.a. over the amount of THB 9,712 as from 1 April 2024 until the date
of effective payment;
• 5% interest p.a. over the amount of THB 9,712 as from 1 May 2024 until the date
of effective payment;
• 5% interest p.a. over the amount of THB 9,712 as from 1 June 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.
pg. 9
REF. FPSD-15687
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-15687
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 11