Labour Disputes
Texto da decisão
REF FPSD-4487
Decision of the
Dispute Resolution Chamber
passed on 22 June 2022
regarding an employment-related dispute concerning the player Vinicius Justino
Calamari
BY:
Angela Collins (Australia)
CLAIMANT:
Vinicius Justino Calamari, Brazil
Represented by Pedro Macieirinha
RESPONDENT:
Issa Town Club, Bahrain
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REF FPSD-4487
I.
Facts of the case
1.
In the month of July 2021, the Brazilian player, Vinicius Justino Calamari (hereinafter: the Claimant),
and the Bahraini club, Issa Town Club (hereinafter: the Respondent) signed an employment contract
(hereinafter: “the contract”), valid for the 2021-2023 season.
2.
3.
According to the information available on the Transfer Matching System (TMS):
-
the sporting season 2021/2022 in Bahrain starts on 25 August 2021 and ends on 31 May 2022;
-
the sporting season 2022/2023 in Bahrain starts on 1 August 2022 and ends on 31 May 2023.
According to the contract the Respondent agreed to pay to the Claimant a monthly salary of
USD 2,000.
4.
The Claimant indicated that “the Respondent allegedly put the Claimant under duress, in order to
terminate the contract.”
5.
In this context the Claimant mentioned that the Respondent did not allegedly allow him to attend
to the Respondent's facilities, additionally it prevented him to train and play in official matches.
Moreover, the Respondent sent the Claimant back to his home country.
6.
Furthermore, the Respondent failed to pay him, his remuneration in the total amount of
USD 5,266.66, corresponding to the following:
i) USD 2,000 – July 2021 salary
ii) USD 2,000 – August 2021 salary
iii) USD 1,266.66 - 19 days of September 2021
7.
On 19 September 2021, the Respondent paid to the Claimant an amount of USD 1,333, with the
remainder amount of USD 3,933.66 still outstanding.
8.
On 17 November 2021, the Claimant sent a default notice to the Respondent, granting it a 10 days’
deadline to comply with payment of the amount of USD 20,669.99, corresponding to the
outstanding amount up until 19 September 2021 of USD 3,933.66, plus the amount of USD
16,733.33 (residual value of the contract – (11 days) September 2021 until May 2022 at USD 2,000
salary per month), however to no avail.
9.
On 1 April 2022 the Claimant concluded a new employment contract with the Brazilian club Artsul
Futebol Clube, valid from 1 April 2022 until 15 September 2022, entitling him to a monthly salary
of BRL 1,212 (approximately USD 256.13).
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II. Proceedings before FIFA
10. On 6 December 2021, the Claimant filed the claim at hand before FIFA.
a. Position of the Claimant
11. The requests for relief of the Claimant, were that the Respondent pay him the total amount of
USD 20,666.99, plus 5% interest p.a. as from the respective due dates up until date of effective
payment corresponding to:
i) USD 3,933.66 as overdue payables (outstanding up until 19 September 2021);
ii) USD 16,733.33 compensation for breach of contract (residual value of the contract – (11 days)
September 2021 until May 2022 at USD 2,000 salary per month).
b. Position of the Respondent
12. In its reply to the claim, the Respondent indicated that the parties mutually terminated the contract
and mentioned the following:
“Vinicius Justino Calamari Brazilian against our club we would like to inform the respective football
tribunal that the contract between the player and the club was cancelled by mutual consent between
the two parties and that the player had signed the receipt of the amount evaded, and the attached bond
shows that this is a final clearance between the player and the club written in English and Arabic to
clarify the matter.”
13. On 19 September 2021, the Respondent it indicated to the Claimant that the said day would be his
“last day on the team”.
c.
Additional comments of the Claimant
14. In reply to the documents submitted by the Respondent, the Claimant indicated that he rejects the
allegations of the Respondent and that he did not mutually terminate the contract with the
Respondent, mentioning the following:
- “that the Player did not receive the documents sent by the Club.
- the Claimant did not sign those documents.
- the signature affixed to the document sent by the Club is not the Player's signature”.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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,
she took note that the present matter was presented to FIFA on 6 December 2021 and submitted
for decision on 22 June 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.
16. 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 (March 2022 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 Bahraini club.
17. Subsequently, 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 Players (March 2022 edition), and considering
that the present claim was lodged on 6 December 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
18. 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 TMS.
c.
Merits of the dispute
19. Her 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 she considered pertinent for the assessment of the
matter at hand.
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i. Main legal discussion and considerations
20. 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 the validity of a termination agreement dated
19 September 2021.
21. In this context, the Single Judge acknowledged that her task was to determine whether the parties
had indeed concluded a termination agreement on 19 September 2021 and if affirmative to
determine the said consequences thereof.
22. The Single Judge noted that the Claimant deems that the termination agreement dated
19 September 2021, allegedly concluded between him and the Respondent, cannot be considered,
as he never signed such agreement and because the signature affixed to the said document is not
his signature.
23. The Single Judge further noted that the Respondent on its account argued that the contract
between the latter and the Claimant was terminated by mutual consent and that the Claimant had
indeed signed the termination agreement dated 19 September 2021 in acceptance of the amount
of USD 1,333 as final settlement between the parties.
24. In this context the Single Judge turned her attention to the document provided by the Respondent
as the alleged mutual termination agreement concluded and remarked that it cannot clearly be
established if the Claimant indeed signed the termination agreement as his signature is not fully
visible or complete in comparison to the signatures that appear on all the other contracts and/or
documents on file.
25. Moreover, the Single Judge also observed that the alleged termination agreement was not
uploaded in the TMS by the Respondent, as a document that is considered as “proof of the last
contract end date”, but the that the following declaration appears to be uploaded as “proof of the
last contract end date”:
“I VINICIUS JUSTINO CALAMARI, BRAZILIAN, DATE OF BIRTH 01/-06/1988, PROFESSIONAL FOOTBALL
PLAYER AND REGISTERED WITH THE CBF: 188295. I HEREBY INFORM THAT I DO NOT HAVE THE
TERMINATION OF THE LAST CLUB ISSA TOWN (AFFILIATED WITH THE BAHRAIN FEDERATION) IN WHICH I
WORKED AS A PROFESSIONAL FOOTBALL ATHLETE. CURRENTLY I AM IN BRAZIL. I REQUEST HELP IN
PERFORMING THE INTERNATIONAL TRANSFER.”
26. Taken into account all the circumstances described above as well as the documentation on file,
the Single Judge deemed that it cannot be conclusively established that that the parties indeed
enter into a termination agreement around September 2021 and as such decided that the
document dated 19 September 2021 cannot be validly upheld.
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27. Thus, the Single Judge concluded that, having established that the parties did not enter into a
termination agreement, it nonetheless seemed that it was the intention of the Respondent to end
the
contractual
relationship
with
the
Claimant,
based
on
its
correspondence
of
19 September 2021, in accordance with which it indicated to the Claimant that the said day would
be his “last day on the team”. Accordingly, the Single Judge concluded that, in view of the aforesaid,
the Respondent de facto terminated the employment contract with the Claimant on
19 September 2021 without just cause.
28. Finally the Single Judge observed that at the date of termination of the employment contract,
outstanding remuneration were due to the Claimant and bearing in mind the basic legal principle
of pact sunt servanda, which in essence means that agreements must be respected by the parties
in good faith, the Respondent is to held liable to pay the Claimant the outstanding amounts
deriving from the contract concluded between the parties.
ii. Consequences
29. Having stated the above, Single Judge turned her attention to the question of the consequences of
such unjustified breach of contract committed by the Respondent.
30. 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 total amount of
USD 3,933.66 which were outstanding under the contract at the moment of the termination.
31. In addition, taking into consideration the Claimant’s request, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 19 September 2021
until the date of effective payment.
32. Having stated the above, the Single Judge turned to the calculation of the amount of compensation
payable to the Claimant by the Respondent 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.
33. In application of the relevant provision, the Single 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.
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34. As a consequence, the Single Judge determined that the amount of compensation payable by the
Respondent to the Claimant 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
35. Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge proceeded with
the calculation of the monies payable to the Claimant 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 16,733.33 (i.e., residual value of the contract – (11 days) September 2021 until
May 2022) serves as the basis for the determination of the amount of compensation for breach of
contract.
36. In continuation, the Single Judge verified as to whether the Claimant 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 Dispute
Resolution Chamber 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 Claimant’s general obligation to
mitigate his damages.
37. Indeed, the Claimant found employment with the Brazilian club Artsul Futebol Clube. In
accordance with the pertinent employment contract, the Claimant was entitled to BRL 1,212 per
month (approximately USD 256.13), valid from 1 April 2022 until 15 September 2022. Therefore,
the Single Judge concluded that the Claimant mitigated his damages in the total amount of
BRL 2,424 (approximately USD 512.26).
38. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Single confirmed that the contract termination did not take place
due to said reason i.e., overdue payables by the club – the contract was indeed terminated by the
Respondent, hence it decided that the Claimant shall not be entitled to receive additional
compensation.
39. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Single Judge decided that the Respondent must pay the amount of USD 16,221.07
to the Claimant (i.e., USD 16,733.33 minus USD 512.26), which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter.
40. Lastly, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest on said compensation at
the rate of 5% p.a. as of 6 December 2021 i.e., date of claim until the date of effective payment.
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iii. Compliance with monetary decisions
41. 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 her 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.
42. 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.
43. 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.
44. 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.
45. 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
46. 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.
47. 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.
48. 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, Vinicius Justino Calamari, is partially accepted.
2.
The Respondent, Issa Town Club, has to pay to the Claimant, the following amount:
-
USD 3,933.66 as outstanding remuneration plus 5% interest p.a. as from 19 September 2021
until the date of effective payment; and
-
USD 16,221.07 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 19 September 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 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.
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
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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
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