Labour Disputes
Texto da decisão
REF FPSD-6099
Decision of the
Dispute Resolution Chamber
passed on 15 September 2022
regarding an employment-related dispute concerning the player Sirlayne Braga
Ribeiro
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Jerome Perlemuter (France), member
CLAIMANT:
Sirlayne Braga Ribeiro, Brazil
Represented by Rafael Carvalho Cunha
RESPONDENT:
Changchun Volkswagen Women's FC, China PR
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REF FPSD-6099
I.
Facts of the case
1.
On 19 January 2022, the Claimant received an invitation letter from the Chinese Football
Association (CFA) inviting the Claimant to come to China from 1 February 2022 until 31 December
2023.
2.
On the same date the Respondent provided an “invitation letter (PU)” to the Claimant to apply for a
visa at the Embassy of the People's Republic of China (China PR) in Portugal.
3.
On 1 February 2022, the Brazilian player, Sirlayne Braga Ribeiro (hereinafter: the Claimant), and
the Chinese club, Changchun Volkswagen Women's FC (hereinafter: the Respondent) concluded an
employment
contract
(hereinafter:
the
Contract)
valid
from
1
February
2022
until
31 December 2023.
4.
According to clause VI of the Contract, the Claimant is entitled to the following remuneration as
stipulated therein:
“In 2022, Party A [Respondent] shall pay the total after-tax annual wage USD 132,000 to Party B
[Claimant] , Party A [Respondent] shall pay the individual income tax, namely monthly wage is
USD 12,000 (converted into RMB at the exchange rate on the issue date); then Party B [Claimant] obtains
club transfer registration and obtains the qualification of participating in competition from Chinese
Football Association; the wage pay day shall be working date when Party B [Claimant] reports to Party
A [Respondent].”
5.
Clause X par.1 of the Contract stipulate the following:
“During the period of validity of this Contract, neither party may unilaterally dissolve this Contract
without good cause; otherwise, the breaching party shall pay the penalty of USD 200,000 to the nonbreaching party in a lump sum. “
6.
According to the information available in the Transfer Matching System (TMS), the following
processes were conducted by the Respondent:
-
on 18 February 2022, the Respondent entered a transfer instruction to permanently engage the
Claimant
-
on 21 February 2022, the CFA requested the International Transfer Certificate (ITC) from the
Federação Portuguesa de Futebol (FPF) as the player's former club was the Portuguese club FC
Famalicão
-
on 24 February 2022, the Claimant was registered at the CFA
7.
On 23 March 2022, the Claimant received her results relating to a COVID-19 test.
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8.
On 24 March 2022, the Claimant allegedly travelled from Portugal to China, via Amsterdam and
during this connection “she learned that, even with the green code, invitation letter, invitation letter
(PU)9, negative test covid10, she could not board to China, and therefore, returned to Portugal.”
9.
On 25 March 2022, the Claimant allegedly received the “HDC green code” to travel to China.
10. On 3 May 2022, the Claimant sent a notice of default to the Respondent, requesting payment of
her outstanding salaries for the months of February, March and April 2022 in the total amount of
USD 36,000.
11. On 1 July 2022, the Claimant concluded an employment contract with the Portuguese club,
FC Famalicao, valid from 1 August 2022 until 30 June 2023 for a monthly salary of EUR 1,400 net.
II. Proceedings before FIFA
12. On 19 May 2022, 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
13. According to the Claimant, the conduct of the Respondent is abusive aiming at forcing the Claimant
to terminate the Contract.
14. The Claimant indicated that even after it sent a default notice the Respondent on 3 May 2022, it
still failed to comply with its contractual financial obligations.
15. The requests for relief of the Claimant, were that the Respondent pays her the following amounts:
-
USD 276,000 corresponding to the salaries from 1 February 2022 until 31 December 2023
-
USD 200,000 as a penalty
16. Additionally, the Claimant requested that the Contract “be declared terminated and that the athlete
Sirlayne Braga Ribeiro be declared free to sign with any club.”
b.
Position of the Respondent
17. Notwithstanding the fact that the club was invited to provide its position to the Claimant’s claim it
failed to do so.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 19 May 2022 and submitted for decision on
15 September 2022. Taking into account the wording of art. 34 of the June 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.
19. 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 (July 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 a Chinese club.
20. 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 (July 2022 edition), and considering that the
present claim was lodged on 19 May 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
21. 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
22. 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 abovementioned 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.
i. Main legal discussion and considerations
23. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the Claimant claims that the Respondent failed to comply with its financial
obligations as detailed in the Contract, since commencement thereof.
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24. In this context, the Chamber acknowledged that its task was to determine, whether the claimed
amounts had remained unpaid by the Respondent and whether the said amounts was in fact due
to the Claimant.
25. Subsequently, the Chamber noted that – after having been provided with the claim of the Claimant
– the Respondent failed to present its response. By not presenting its position to the claim, the
Chamber was of the opinion that the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
26. Furthermore, as a consequence of the aforementioned consideration, the Chamber expressed
that it shall take a decision upon the basis of the documentation already on file; in other words,
upon the statements and documents presented by the Claimant.
27. Taking into account the documentation presented by the Claimant, the Chamber established the
following:
-
On 1 February 2022 the contract was signed, however it has never been executed between the
parties
The Respondent issued an invitation letter & invitation letter (PU) to the Claimant to apply for a
visa at the Embassy of China PR in Portugal with the date of first entry as 18 February 2022
a final authorised visa is not on file
The Claimant was issued with a HDC green code on 25 March 2022
The Claimant submitted a flight itinerary which destination details are not completely clear
28. Considering the foregoing, the Chamber understood that while the Claimant and Respondent
indeed had a valid and binding employment contract as from 1 February 2022 in place, neither of
the parties started to execute it. In this regard the Chamber remarked that the Claimant never
started providing her football playing services to the Respondent, as she never arrived in China PR,
and the Respondent on the other hand never paid any of the Claimant’s salaries agreed as per the
Contract, specifically for the months of February, March, April and May 2022.
29. Having said that, the Chamber went on to analyse the relevant information contained in TMS. In
this respect, the Chamber noted that based on the information in TMS, the Claimant was indeed
registered with the Respondent, moreover the Respondent seems to have executed the
administrative formalities from its end in obtaining, the Claimant’s ITC for her subsequent
registration with the CFA.
30. Moreover, the Chamber remarked that the Claimant failed to provide any evidence indicating that
she attempted to contact the Respondent between the time that she realised she could not travel
to China PR (24 March 2022) and 5 May 2022 (issuing of the default notice to the Respondent),
furthermore there are no evidence on file indicating that the Claimant tried to reach out to the
Respondent to offer her services or any exchange of correspondence between the parties
regarding the execution of the contract. Additionally, the Chamber recalled that the Claimant failed
to provide sufficient reasons/evidence on the basis of which she was not able to travel to China
P.R.
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31. The Chamber referred to art. 13 par. 5 of the Procedural Rules, according to which a party that
asserts a fact has the burden of proving it and deemed that the Claimant failed to meet her burden
of proof in support of her claim and arguments.
32. With the above in mind and after having carefully analysed the parties’ submissions, the Chamber
concluded that the parties mutually departed from the execution of the employment contract and,
consequently, there is no entitlement to any potential compensation in the present matter.
33. Consequently, the DRC decided to reject the claim of the Claimant.
d. Costs
34. 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.
35. 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.
36. 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-6099
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sirlayne Braga Ribeiro, is rejected.
2. 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).
CONTACT INFORMATION
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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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