Dispute Resolution Chamber
Texto da decisão
REF FPSD-2051
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Alexandre Cardoso
Garcia
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
Alexandre Cardoso Garcia, Brazil
Represented by Mr. Dyego Karlo Tavares
RESPONDENT:
El Nahdha Sports Club, Oman
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REF FPSD-2051
I.
FACTS OF THE CASE
1.
On an unspecified date, the Brazilian player, Mr. Alexandre Cardoso Garcia (hereinafter: the
player or the Claimant), and the Omani club, El Nahdha Sports Club (hereinafter: the club
or the Respondent), signed an employment contract valid as from 25 July 2018 until 24
May 2019 (hereinafter: the employment contract).
2.
In accordance with clause 1 of the employment contract, the club undertook to pay the
player a monthly salary of USD 2,600 (equivalent to OMR 1,003.60).
3.
On 10 December 2018, the parties signed an agreement by means of which the club
acknowledged that the player’s salaries from November and December 2018 (i.e. OMR
2207.20) were outstanding and would be paid until February 2019.
4.
On 20 December 2018, the parties signed another agreement stating the following: “In
reference to the meeting which was between you [the player] and the Al Nahda club to
terminate the contract between the two parties to share with the first team this season, we
have agreed to terminate the contract by mutual consent between the two parties, and
therefore does not have any financial obligations of the parties (the club and the player)
and not the right of any party in any other claims after such removal and the contract is
cancelled from 20/12/2018 and the player is free to contract with any other club”
(hereinafter: the termination agreement).
5.
On 2 March 2019, the player put the club in default and granted it a 72 hours’ deadline in
order to proceed with the payment of OMR 2,207.20, to no avail.
II.
PROCEEDINGS BEFORE FIFA
6.
On 7 May 2019, the player lodged a claim before FIFA (ref. no. 19-01032) requesting the
payment of OMR 2,207.20 (or USD 5,200), “referring to salaries to November and
December concerning the extrajudicial agreement signed by the parties on 10 December
2018”.
7.
On 10 May 2019, the FIFA general secretariat acknowledged receipt of the player’s claim
and, inter alia, informed him of the following: “in order to consider a claim in the context
of art. 12bis of the Regulations on the Status and Transfer of Players, a proof of written
default notice, sent to the debtor club after the claimed amounts have been allegedly due
for more than 30 days, granting the debtor club a minimum of 10 days’ deadline, in order
to comply with its financial obligation(s) (cf. art. 12bis par. 3 of the Regulations on the
Status and Transfer of Players) must be provided in the original version and, if applicable,
translated into one of the official FIFA languages (English, Spanish, German or French). In
this regard, we would like to draw your attention to the fact that failure to provide any
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necessary translation into one of the aforementioned official FIFA languages may result in
the document in question being disregarded by the decision-making body”.
8.
In the same letter, the FIFA general secretariat expressly requested the following: “we kindly
invite you to provide us with the above-mentioned documentation, by no later than 30 May
2019. Should we not receive the necessary information and/or documentation within the
aforementioned deadline, we will presume that our services are no longer required in this
matter (cf. art. 9 par. 2 of the Procedural Rules [i.e. the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber])”.
9.
Thereupon, the player did not provide FIFA with any documentation and/or position
whatsoever. Therefore, as established in the abovementioned correspondence and in line
with art. 9 par. 2 of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber, the claim was deemed to have been withdrawn and
the file was formally closed.
10.
On 2 March 2021, the player sent FIFA a correspondence reiterating its position as per his
claim of May 2019 and requesting an update of the case. Such correspondence was
registered as a new claim under ref. no. FPSD-2051 and processed in accordance with the
applicable procedural guidelines.
11.
On 3 April 2021, the club filed its answer to the player’s claim and stated, inter alia, that:
“1. Among the approved papers that are reliable in all cases, especially sports, are the
papers signed between the two parties, whether that is contracts or other papers.
2. The aforementioned player was contracting with the club to extend until the end of the
sports season (2018/2019).
3. On 10/12/2018, the player was given an official paper at his request so that the player
feels stable while working at the club.
4. On 20/12/2018, the player requested the termination of the contract concluded with
him by mutual consent.
5. Based on the player’s desire, a financial clearance was concluded between the two
parties, which explicitly states that each party is innocent from claiming any financial dues
for the other party, and this financial clearance is conclusive evidence of the absence of
any financial dues for the player with the club (attached).
6. From the aforementioned, it becomes clear to you that the aforementioned player does
not have any financial dues with the club”.
12.
On 13 April 2021, the player filed his final comments. By doing so, the player acknowledged
the validity of the termination agreement but claimed that: “however, [the club] purposely
omits that when the employment contract terminated, the parties agreed that [the club]
would pay the salaries for the months of November and December (sic) 2019, in the amount
of U$ 5.200,00 (five thousand and two hundred dollars) / 2207.200 RO referring to the
salaries to November and December concerning the extrajudicial agreement signed by the
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parties on 10/12/2018, according to item (sic) “ and ‘and’ ‘III’ of the initial petition and
‘adoption’ already attached to the case file”.
13.
In addition, the player concluded that “there is absolutely no evidence of wage default in
the months of November and December 2018, which is why the request for judgment
arising from this case is reiterated”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
14.
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.
15.
In this respect, the Chamber observed that the dispute is based on a claim, which was
received by the FIFA general secretariat and assigned a reference number in March 2021.
Taking into account the wording of art. 21 of the January 2021 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.
16.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Brazilian player and a Omani club.
17.
In continuation, the DRC noted that, prior to addressing FIFA with his submission of 2 March
2021, the player had lodged a first claim on 7 May 2019. Both petitions concern the same
matter. In view of these facts, the Chamber deemed that it had to analyse whether the
second submission could be considered the continuation of the previous proceedings, or
whether it had to be seen as a new claim.
18.
In this regard, the members of the Chamber acknowledged that the FIFA general secretariat
had deemed the petition submitted in May 2019 to be incomplete. Therefore, it had invited
the Claimant to amend it by means of additional documentation, making explicit reference
to art. 9 par. 2 of the Procedural Rules. However, the player did not submit any further
paperwork, nor did he otherwise react to FIFA’s communication.
19.
The DRC observed that in accordance with art. 9 par. 2 of the Procedural Rules, petitions
submitted by parties that are not complete will be returned for redress. When receiving an
incomplete petition, the FIFA administration will request that the relevant party complete it.
If the petition is not completed within the granted time limit, the petition shall be deemed
to have been withdrawn. The 2018 edition of the Procedural Rules, which was in force at
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the time of the above-mentioned FIFA communication, contained the same provision, albeit
with slightly different language, but with the same substantial content.
20.
At this point, the Chamber carefully observed the wording of FIFA’s correspondence dated
10 May 2019, which concerned the claim of the player lodged in May 2019, and
unanimously concluded that, by not reacting to its content, the player confirmed that FIFA’s
services were no longer necessary and, therefore, withdrew his original claim.
21.
Consequently, the DRC considered the case at hand as a new claim, lodged in front of the
DRC on 2 March 2021 and submitted for decision on 6 May 2021.
22.
Subsequently, the DRC referred to art. 25 par. 5 of the Regulations on the Status and
Transfer of Players (edition February 2021), which stipulates that the decision-making
bodies of FIFA shall not hear any dispute if more than two years have elapsed since the facts
leading to the dispute arose and that the application of this time limit shall be examined ex
officio in each individual case.
23.
In view of the above, the DRC recalled that the claim at stake was lodged in front of the
DRC on 2 March 2021. Therefore, in line with art. 25 par. 5 of the Regulations on the Status
and Transfer of Players, any amounts fallen due before 2 March 2019 are affected by the
statute of limitations. In this context, the DRC noted that the player, inter alia, requested
payment of his outstanding remuneration for the months of November and December
2018, which, as per the agreement of the parties of 10 December 2018, had to be paid by
February 2019.
24.
Bearing in mind the foregoing, the DRC concluded that the player’s request is time-barred.
Therefore, the Chamber unanimously decided that the claim of the player is inadmissible.
25.
Lastly, the Chamber referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the Chamber decided that
no procedural costs were to be imposed on the parties.
26.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Alexandre Cardoso Garcia, is inadmissible.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 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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