Labour Disputes
Texto da decisão
REF FPSD-7851
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player Daniel
Mariano Bueno
BY:
Jon Newman (USA), Single Judge of the DRC
CLAIMANT:
Daniel Mariano Bueno, Brazil
Represented by Brocchi e Souza Sociedade de Advogados
RESPONDENT:
Qrendi FC, Malta
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I. Facts of the case
1.
On 9 March 2021, the Brazilian player, Mr Daniel Mariano Bueno (hereinafter: the player
or the Claimant) and the Maltese club, Qrendi FC (hereinafter: the club or the Respondent)
concluded a termination agreement in connection with an employment contract entered
into between the parties on 9 March 2020.
2.
On an unspecified date, the parties concluded a settlement agreement named
“Declaration”, whereby the club undertook to pay to the player the amount of EUR 3,300,
which corresponded to the “remaining balance” or outstanding moneys due to the player
by the club by the date of termination (no due date for payment of the said amount
indicated in the “Declaration”).
3.
By means of his email of 20 December 2021, the player put the club in default of payment in
the amount of EUR 3,300, thereby granting the club a 10 days’ deadline to remedy the default;
however, to no avail.
II. Proceedings before FIFA
a. Position of the Claimant
4.
On 5 January 2022, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration in the amount of EUR 3,300 corresponding to the
remaining balance due as per the Declaration document, plus 5% interest p.a. as from 9
March 2021, i.e. the date on which the contractual relationship was terminated.
5.
In his claim, the Claimant argued that despite having put the club in default of payment
for the latter to proceed with the payment of the remaining balance due as per the
“Declaration” document, the club failed to comply with its financial obligations towards
the player.
b. Position of the Respondent
6.
On its part, the Respondent alleged that “all contractual obligations towards the player
have been met”.
7.
In this respect, the club held that, on 25 March 2021, the parties concluded a document
whereby the player acknowledged that the club had no further dues towards him. In
particular, the said document reads as follows: “This is to confirm that Qrendi Football
Club have met all contractual obligations with Mr Daniel Mariano Bueno (F0089097) and
the player received all Government supplement grants related to Covid-19 measures for
season 2020/2021”.
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8.
In this context, the club maintained that the player is acting in bad faith, “since the player
is fully aware that the obligations have been met, the player’s actions are diametrically in
contrast with the signed declaration he had confirmed in writing”.
c. Comments from the player as to the alleged settlement agreement
9.
In his final comments, the player stressed the following in connection with the alleged
settlement concluded between the parties: “The Respondent put all his efforts to say and
to reinforce that it has paid all the due amounts to the Claimant, but does not present the
proof of payment, which could solve the case in his favor, and there is only one reason
for that: the Respondent does not present the proof of payment, because it has not paid
the Claimant so far”.
10. In addition, the Claimant referred to a message from the president of the club, allegedly
sent to him on 3 May 2021 whereby the president of the club recognizes the debt of EUR
3,300 that the club holds towards the player. In this respect, the player maintained that,
should the debt be settled since 25 March 2021 -as argued by the club- the club (via its
president) would not confirm the existence of the debt in May 2021.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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 5 January
2022 and submitted for decision on 22 November 2022. 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.
2.
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 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 a Maltese club.
3.
Subsequently, the Single 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 (October 2022 edition)
and considering that the present claim was lodged on 5 January 2022, the August 2021
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edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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
5.
His 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 it will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and recalled that the Claimant claims being entitled to receive EUR 3,300, plus 5%
interest p.a. as from 9 March 2021 from the Respondent as per the termination
agreement concluded between the parties on 9 March 2021.
7.
In this respect, the Single Judge observed that the Claimant argues that, despite having
put the club in default of payment concerning the outstanding amount, the Respondent
failed to pay it.
8.
On its part, continued the Single Judge, the club provided a document, allegedly
concluded between the parties on 25 March 2021, whereby the player acknowledged that
all financial dues had been paid by the club.
9.
However, the Single Judge acknowledged that the player challenged the veracity of the
said document and insisted on the amount of EUR 3,300 still being outstanding, evidence
of which is the statement produced by the president of the club on 3 May 2021.
10. In view of the above and in line with the usual practice of the Football Tribunal -explained
the Single Judge-, documents pertaining to acknowledgement of payments, if challenged
by the creditor, cannot be considered as a valid proof of payment if they are not
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presented along with factual evidence that the payment has been actually performed
(proof of the monetary transaction such as a bank check).
11. In the case at hand, stressed the Single Judge, the club has failed to provide any further
evidence apart from the document dated 25 March 2021 and, thus, in line with the
aforementioned practice, the Single Judge concluded that the club has not sufficiently met
its burden of proof.
ii. Consequences
12. Having stated the above, the members of the Single Judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
13. In this context, the Single Judge determined that, in accordance with the legal principle
pacta sunt servanda, the Claimant is entitled to receive the amount of EUR 3,300
corresponding to the remaining balance of the settlement agreement.
14. In this respect, despite the termination agreement not specifying a due date for the
payment of the amount of EUR 3,300, the Single Judge concluded that the argumentation
of the Claimant shall be upheld: the indebted amount corresponds to outstanding
moneys that the club should have paid to the player during the term of the contract, which
came to an end on 9 March 2021 and, thus, all outstanding balance should have been
paid by the said date.
15. In this context, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the amount of EUR 3,300 as from 10 March 2021 until
the date of effective payment.
iii. Compliance with monetary decisions
16. 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
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
17. 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.
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18. The overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
19. Therefore, bearing in mind the above, the DRC 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.
20. 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.
21. 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
22. 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.
23. 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.
24. Lastly, the Single Judge concluded its 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, Daniel Mariano Bueno, is partially accepted.
2.
The Respondent, Qrendi FC, has to pay to the Claimant, the following amount:
- EUR 3,300 as outstanding remuneration, plus 5% interest p.a. as from 10 March
2021 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.
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6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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