Labour Disputes
Texto da decisão
REF. FPSD-18007
Decision of the
Dispute Resolution Chamber
passed on 14 April 2025
regarding an employment-related dispute concerning the player Simao
Carvalho Martins
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Oleg ZADUBROVSKIY (Russia), Member
Michele COLUCCI (Italy), Member
CLAIMANT:
Simao Carvalho Martins, Portugal
Represented by José Duarte Reis
RESPONDENT:
Football Club Swift Hesperange, Luxembourg
pg. 2
REF. FPSD-18007
I. Facts of the case
1.
On 1 July 2023, the Portuguese player, Simao Carvalho Martins (hereinafter: the Player or
the Claimant), and the Luxembourgish club, FC Swift Hesperange (hereinafter: the Club or
the Respondent) entered into an employment contract (hereinafter: the Contract) valid as
from 1 July 2023 until 30 June 2025.
2.
In accordance with the Clause 5 of the Contract, the Respondent undertook to pay to the
Claimant the monthly gross salary of EUR 7,985.97.
3.
In addition, the Parties agreed on the following:
“Une prime/ aide au logement, par avantage en nature, à la hauteur de EUR 500 net sera
attribué au joueur.
À condition que le joueur serait inscrit sur la feuille de match, une prime de EUR 200, par point
obtenu dans le cadre du championnat national (BGL League) ou match gagné en coupe du
Luxembourg, lui sera attribué.”
“A housing allowance/benefit, as a benefit in kind, to the amount of EUR 500 net will be awarded
to the player.
Provided that the player is registered on the match sheet, a bonus of EUR 200 per point obtained
in the national championship (BGL League) or match won in the Luxembourg Cup will be
awarded to him.” (Freely translated into English)
4.
Finally, Clause 13 of the Contract stated as follows:
“Les rapports entre le club et le joueur, pour autant qu’ils ne fassent pas l’objet de clauses
spéciales du présent contrat sont régis par les dispositions légales, réglementaires et
conventions collectives régissant les matières et plus particulièrement par la loi du 24 mai 2989
sur le contrat du travail. Tout différent découlant du présent contrat sera tranché par la
Commission Luxembourgeoise d’Arbitrage pour le Sport (CLAS). Un appel devant le TAS/CAS à
Lausanne est possible. ”
“The relationship between the club and the player, insofar as it is not subject to special clauses
in this contract, is governed by the legal and regulatory provisions and collective agreements
governing the matters in question and, more specifically, by the Act of 24 May 1989 on
employment contracts. Any dispute arising from this contract will be settled by the Luxembourg
Commission for Arbitration in Sport (CLAS). An appeal to the CAS/TAS in Lausanne is possible.”
(Freely translated into English)
pg. 3
REF. FPSD-18007
5.
On 10 December 2024, the Claimant sent a default notice to the Respondent requesting
the salaries for June, October and November 2024, giving the Club 15 days to comply with
its default. In addition, the Claimant requested EUR 6,800 as bonuses.
6.
On 27 December 2024, the Claimant sent a termination letter to the Respondent referring
to the default notice sent on 10 December 2024, stating that the Club has not paid any
outstanding amounts.
7.
On 2 January 2025, the Respondent paid an amount equal to a monthly salary.
8.
On an unspecified date, the Claimant signed a new employment contract with the
Portuguese club UD Oliveirense valid as from 22 January 2025 until 30 June 2025. The total
value of the new contract was EUR 31,909.13.
II. Proceedings before FIFA
9.
On 29 January 2025, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ respective positions is detailed below.
a. Claim of the Claimant
10. The Claimant requested the following relief:
•
•
The total amount of EUR 70,687.60 corresponding to the following amounts:
-
EUR 15,971.90 for overdue salaries;
-
EUR 6,800 for unpaid bonuses;
-
EUR 47,915.70 as compensation corresponding to the residual value of the
Contract.
5% interest p.a. on the outstanding amounts, “calculated from the due dates of each
payment”.
11. In addition, the Claimant provided the following breakdown regarding the outstanding
amounts:
•
EUR 7,985.95 for June 2024;
•
EUR 7,985.95 for October 2024;
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REF. FPSD-18007
•
EUR 7,985.95 for November 2024;
•
EUR 6,800 as bonuses per Clause 5 of the Contract.
12. Regarding the compensation, the Claimant requested the residual value as from December
2024 until June 2025.
13. Finally, regarding the termination of the Contract, the Claimant alleged that he had just
cause to terminate as both prerequisites of art. 14bis have been met.
b. Reply of the Respondent
14. In its reply, the Respondent disputed FIFA’s jurisdiction. In particular, the Respondent
invoked clause 13 of the Contract which read as follows:
“Les rapports entre le club et le joueur, pour autant qu’ils ne fassent pas l’objet de clauses
spéciales du présent contrat sont régis par les dispositions légales, réglementaires et
conventions collectives régissant les matières et plus particulièrement par la loi du 24 mai 2989
sur le contrat du travail. Tout différent découlant du présent contrat sera tranché par la
Commission Luxembourgeoise d’Arbitrage pour le Sport (CLAS). Un appel devant le TAS/CAS à
Lausanne est possible.”
“The relationship between the club and the player, insofar as it is not subject to special clauses
in this contract, is governed by the legal and regulatory provisions and collective agreements
governing the matters in question and, more specifically, by the Act of 24 May 1989 on
employment contracts. Any dispute arising from this contract will be settled by the Luxembourg
Commission for Arbitration in Sport (CLAS). An appeal to the CAS/TAS in Lausanne is possible.”
(Freely translated in English)
15. The Respondent argued that the Contract was subject to the Luxembourgish law of 24 May
1989. According to art. 47.1 of the Procedural Civil Code, “en matière de contestations
relatives aux contrats de travail, aux contrats d’apprentissage, aux régimes complémentaires de
pension et à l’assurance insolvabilité, la juridiction compétente est celle du lieu de travail.”
“In the case of disputes relating to employment contracts, apprenticeship contracts,
supplementary pension schemes and insolvency insurance, the competent court is that of the
place of work.” (Freely translated in English)
16. In view of the above, the Respondent claimed that the labour courts of Luxembourg are
competent “rationae materiae” et “rationae loci” to entertain the present claim.
17. However, the Respondent also argued that, according to Clause 13 of the Contract, the
competent tribunal was the Commission Luxembourgeoise d’Arbitrage pour le Sport
pg. 5
REF. FPSD-18007
(hereinafter: the CLAS). In this regard, the Respondent invoked art. 22 of the statutes of the
Luxembourgish Federation according to which:
“Dans le but de faciliter la solution de litiges entre fédération, association sportive, club et
licencié (sportif, entraineur, arbiter et dirigeant), il est créé une institution d’arbitrage dénommée
CLAS. Toutes les personnes physiques et morales visées à l’alinéa ci-dessus peuvent saisir la
CLAS.
La CLAS est compétente pour connaitre des litiges :
a. Entre personnes et associations visées à l’alinéa 1er qui se trouvent directement
concernées par le litige ;
b. Qui portent sur les droits dont les parties ont la libre dispositions ;
c. condition qu’il s’agisse de faits ou actions relatifs au domaine du sport.
Sont toutefois exclus les litiges et recours portant uniquement sur le taux d’une sanction
disciplinaire, exception faite des sanctions illégales ou contraires aux statuts ou règlements.
La CLAS se prononce sur les cas qui lui sont soumis par une sentence arbitrale qui s’impose
aux parties et clos définitivement le litige sous réserve d’une éventuelle saisine par les parties
du Tribunal Arbitrage du Sport (TAS) à Lausanne selon les formes prévues par les dispositions
correspondantes des statuts de la FIFA et de l’UEFA.
La CLAS ne peut être saisie qu’après épuisement des voies de recours internes de la FLF. […]”
“In order to facilitate the settlement of disputes between federations, sports associations,
clubs and licence holders (athletes, coaches, referees and managers), an arbitration
institution called CLAS has been created. All natural and legal persons referred to in the
above paragraph may refer their case to CLAS.
The CLAS is competent to hear disputes:
a. Between persons and associations referred to in paragraph 1, who are directly
concerned by the dispute;
b. Which relate to the rights of which the parties have free disposal;
c. Provided that they relate to facts or actions in the field of sport.
However, disputes and appeals relating solely to the level of a disciplinary sanction are
excluded, with the exception of sanctions that are illegal or contrary to the statutes or
regulations.
The CLAS shall rule on the cases submitted to it by means of an arbitral award that is binding
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REF. FPSD-18007
on the parties and definitively closes the dispute, subject to a possible referral by the parties
to the Court of Arbitration for Sport (CAS) in Lausanne in accordance with the forms provided
for in the corresponding provisions of the FIFA and UEFA statutes.
The CLAS can only be referred to after all internal appeals of the FLF have been exhausted.
[…]” (Freely translated into English)
18. In view of the above, the Respondent argued that the Claimant was registered with the
Luxembourgish Federation and therefore, the Claimant should have submitted his claim in
front of CLAS and not the Dispute Resolution Chamber of the FIFA Football Tribunal
(hereinafter: the Chamber or DRC).
19. In continuation, the Club invoked the Luxembourgish national law and jurisprudence and
claimed the following:
“[…] La compétence du Tribunal du travail relève de l’ordre public national luxembourgeois
dont les dispositions doivent prévaloir en l’espèce de sorte que [le joueur] avait, nonobstant
le domaine de compétence des instances sportives nationales, l’obligation de saisir le
Tribunal du travail de Luxembourg pour trancher ce litige sinon la Commission
Luxembourgeoise d’Arbitrage pour le Sport (CLAS). ”
“[…] The jurisdiction of the Labour Court falls under Luxembourg national public policy, the
provisions of which must prevail in this case, so that [the player] had, notwithstanding the
jurisdiction of the national sports bodies, the obligation to refer the dispute to the
Luxembourg Labour Court or the Luxembourg Commission for Arbitration in Sport (CLAS)”.
(Freely translated into English)
20. In this regard, the Respondent argued that the Claimant has violated the Luxembourgish
national law which should have prevailed for the determination of the competent deciding
body.
21. Notwithstanding the above, and in the case in which the DRC declared itself competent to
deal with the case, the Respondent provided its position regarding the amounts claimed
by the Claimant.
22. In particular, regarding the outstanding amount, the Respondent acknowledged that it had
not fully complied with its financial obligations towards the Claimant.
23. However, the Respondent confirmed that the salaries of June, October and November 2024
were outstanding until 2 January 2025, when the Respondent paid one monthly salary to
the Claimant. Thus, the outstanding amount was reduced to EUR 15,971.90.
24. In addition, according to the Respondent, based on an agreement (hereinafter: the
Agreement) the Respondent proceeded to an advance of payment which corresponded to
pg. 7
REF. FPSD-18007
the salaries of May and June 2025. However, the Respondent pointed out that despite the
fact that the Agreement was not signed by the parties, it was tacitly accepted by them as
the Respondent paid EUR 10,088 to the Claimant.
25. Therefore, the Respondent claimed that the two monthly salaries pending were paid in
accordance with the Agreement.
26. Regarding the bonuses, the Respondent argued that the Claimant did not provide any
evidence in this regard.
27. Furthermore, concerning the compensation requested by the Claimant, the Respondent
alleged that based on art. 17 of the Regulations, the national law shall be applicable and
not the FIFA Regulations. Similarly, the interest shall be calculated based on the national
law, and therefore the maximum rate permissible for the year 2025 is 4,25%.
28. Finally, the Respondent alleged that based on the national law of Luxembourg, the
Claimant would be entitled to two monthly salaries and not to the residual value of his
Contract.
a. Replica of the Claimant
29. Firstly, the Claimant recalled that according to a DRC decision of 28 April 2021, the latter
had accepted jurisdiction in a case against a Luxembourgish club with similar facts.
30. In addition, the Claimant argued that the CLAS was not a recognized NDRC and therefore,
based on the new provisions regarding the NDRCs, the FIFA DRC has jurisdiction to
entertain the claim.
31. Regarding the outstanding salaries, the Player confirmed that, after the termination of the
Contract he received a payment equal to one monthly salary, but he highlighted that the
amount requested as outstanding salaries did not include this salary that was paid after
the termination. Thus, the amount due as from 2 January 2025 as confirmed by the Club is
EUR 15,971.90.
32. Concerning the Agreement, the Player alleged that this document is unknown to him and
had not signed it either. In relation to the alleged proof of payment of the advance of
salaries, the Player argued that the document was dated 17 February 2024 and expressly
stated as concept of payment “July and August 2024” but in any case, the requested salaries
corresponded to the months of June, October and November 2024.
33. Therefore, the Player considered that the above document was not relevant to the case
and the request for relief remained the same.
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REF. FPSD-18007
34. Furthermore, the Player provided evidence to demonstrate that the bonuses were
triggered but argued that the match sheets are in the possession of the Club and therefore,
he did not have access to them.
35. Finally, the Player reiterated that the determination of the compensation shall be in
accordance with art. 17 of the Regulations.
b. Duplica of the Respondent
36. The Respondent alleged that in the DRC decision invoked by the Claimant, the only reason
why the DRC did not accept jurisdiction was because the club had not proved the
impartiality of the CLAS. For that reason, the Respondent provided evidence regarding the
impartiality of the CLAS in accordance with the FIFA Circular 1010.
37. In addition, in view of the evidence provided by the Claimant regarding the match bonuses,
the Club mentioned that the Player has not demonstrated that he did fulfil the conditions
of art. 5 of the Contract.
38. Concerning the compensation requested, the Respondent reiterated that a compensation
equal to the residual value of the Contract would be against the Luxembourgish public
order provisions.
pg. 9
REF. FPSD-18007
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
39. First of all, the Dispute Resolution Chamber 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 29 January 2025 and submitted for decision on 14 April 2025. Taking into account
the wording of art. 31 and 34 of the January 2025 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.
40. The Chamber took note of the fact that the Respondent contested the DRC’s jurisdiction in
this matter, invoking the jurisdiction clause in favour of the Luxembourgish NDRC.
41. In view of the foregoing, the Chamber first recalled that in January 2024, FIFA introduced a
new regulatory framework for national disputes resolution chambers in order to provide
clarity and the necessary legal certainty with regard to jurisdiction, structure, applicable
requirements and possible formal and permanent recognition by FIFA of existing NDRCs.
42. Most importantly, the Chamber noted that the aforementioned rules have been
incorporated into art. 22, par. 1, lit. b and c) of the Regulations and are applicable to cases
brought before FIFA as from 1 January 2025 (cf., art. 26, par. 1, lit. b) of the Regulations).
43. Considering that this claim was filed by the Player on 29 January 2025, the Chamber
observed that the jurisdiction of the Football Tribunal must be assessed based on the
following provision:
“Without prejudice to the right of any player, coach, association or club to seek redress before a
civil court for employment related disputed, FIFA is competent to hear:
[…]
b) employment-related disputes between a club and a player of an international dimension; the
aforementioned parties may, however, explicitly opt in writing for such disputes to be decided
by a national dispute resolution chamber (NDRC), or a national dispute resolution body
operating under an equivalent name, that has been officially recognised by FIFA in accordance
with the National Dispute Resolution Chamber Recognition Principles. Any such jurisdiction
clause must be exclusive and included either directly in the contract or in a collective bargaining
agreement applicable to the parties.”
44. As this dispute has an international dimension (i.e. Portuguese player vs. Luxembourgish
club) and is employment related (i.e., claim for breach of an employment contract), the
Chamber observed that it falls within FIFA’s jurisdiction which in principle, would only be
pg. 10
REF. FPSD-18007
prevented in the hypothesis of (1) a clear and exclusive jurisdiction clause in the Contract
in favour of the civil courts; OR (2) a clear and exclusive jurisdiction clause included in the
Contract in favour of a NDRC “that has been officially recognised by FIFA in accordance with
the National Dispute Resolution Chamber Recognition Principles”.
45. It follows that in order for the Football Tribunal to decline jurisdiction in favour of an NDRC,
the Chamber noted that the interested party challenging the Football Tribunal’s jurisdiction
must demonstrate that the parties have validly agreed to refer any such dispute to the
relevant decision-making body and that such body is recognised by FIFA. As pointed out by
the Chamber, these conditions are cumulative and must all be met at the time a party
submits a claim to FIFA.
46. In the light of the foregoing, the Chamber first turned to the analysis of the Contract and
recalled that its clause 13 provided as follows:
“Les rapports entre le club et le joueur, pour autant qu’ils ne fassent pas l’objet de clauses
spéciales du présent contrat sont régis par les dispositions légales, réglementaires et
conventions collectives régissant les matières et plus particulièrement par la loi du 24 mai 2989
sur le contrat du travail. Tout différent découlant du présent contrat sera tranché par la
Commission Luxembourgeoise d’Arbitrage pour le Sport (CLAS). Un appel devant le TAS/CAS à
Lausanne est possible. ”
“The relationship between the club and the player, insofar as it is not subject to special clauses
in this contract, is governed by the legal and regulatory provisions and collective agreements
governing the matters in question and, more specifically, by the Act of 24 May 1989 on
employment contracts. Any dispute arising from this contract will be settled by the Luxembourg
Commission for Arbitration in Sport (CLAS). An appeal to the CAS/TAS in Lausanne is possible.”
(Freely translated in English)
47. In view of the above, the Chamber considered that the above provision is indeed a clear
and exclusive clause in favour of the Luxembourgish NDRC. Therefore, the Chamber
concluded that the first prerequisite of the above analysis is satisfied.
48. The Chamber then turned to the assessment of the Luxembourgish NDRC’s recognition visà-vis the FIFA regulations. In doing so, the Chamber noted that the Luxembourgish NDRC
was not included in the official list of recognised NDRCs at the time of submission of the
claim (and since then).
49. In addition, and for the sake of completeness, the Chamber mentioned that the
Respondent also claimed that the national labour courts of Luxembourg are competent to
hear the present claim. In this regard, the Club invoked art. 47 al. 1 of the Procedural Code
of Luxembourg according to which for labour disputes arising from employment contracts,
the competent jurisdiction is that of the place of employment.
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REF. FPSD-18007
50. However, the Chamber deemed that invoking a provision of national law to challenge the
Football Tribunal's jurisdiction did not meet the requirements of this Chamber’s longstanding jurisprudence on the recognition of alternative fora pursuant to art. 22 of the
Regulations. According to the foregoing, there must have been a clear and exclusive
jurisdiction clause in the Contract in favour of the civil courts for the FIFA Dispute
Resolution Chamber to reject jurisdiction. In the present case, Clause 13 of the Contract
did not state that the national courts were competent.
51. In view of the above, 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 par. 1 lit. b) of
the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) (January
2025 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 Portuguese player and a Luxembourgish club.
52. Furthermore, the Chamber noted that the Club disputed the application of the FIFA
Regulations in the present case, invoking Clause 13 according to which the applicable law
of the Contract was the law 24 May 1989 of the Labour Code of Luxembourg.
53. In this regard, the Chamber recalled that art. 3 of the Procedural Rules states that “In their
application and adjudication of law, the chambers shall apply the FIFA Statutes and FIFA
regulations, whilst taking into account all relevant arrangements, laws, and/or collective
bargaining agreements that exist at national level, as well as the specificity of sport”.
54. Consequently, the Chamber decided that the FIFA Regulations shall be applied to the
present matter.
55. 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. 29 of the
Regulations, the January 2025 edition of the Regulations is applicable to the matter at hand
as to the substance.
b. Burden of proof
56. 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 Transfer Matching System (TMS).
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REF. FPSD-18007
c. Merits of the dispute
57. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned 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
assessing the matter at hand.
i. Main legal discussion and considerations
58. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute whether the Claimant had just cause to terminate his Contract
and the amounts that remained outstanding. In addition, the Respondent disputed the
amount of the compensation as well as the interest that should be awarded to the Claimant
in case that the Chamber deemed that the Claimant had just cause for the termination.
The Chamber also noted that the Respondent alleged that the national law of Luxembourg
should be applied in order to determine the amount of the compensation and interest.
59. In this context, the Chamber acknowledged that its task was to first analyse whether the
Claimant had just cause to terminate the Contract and, if in the affirmative, to determine
the amounts to be awarded to the Claimant.
60. Firstly, the Chamber recalled that according to art. 14bis of the Regulations, if a club
unlawfully fails to pay a player at least two monthly salaries on their due dates, the player
will be deemed to have a just cause to terminate his contract, provided that he has put the
debtor club in default in writing and has granted a deadline of at least 15 days for the
debtor club to fully comply with its financial obligation(s).
61. In the present case, the Chamber took note of the fact that at the moment of termination
the Player alleged not having received three monthly salaries corresponding to the months
of June, October and November 2024 of the total amount of EUR 23,957.85 as well as
outstanding match bonuses of the amount of EUR 6,800. In addition, the Chamber noted
that the Player provided written evidence of having put the Club in default on 10 December
2024, at least 15 days before the unilateral termination of the Contract on 27 December
2024.
62. However, the Chamber observed that, on the one hand, the Club claimed that based on
the unsigned Agreement, on an unspecified date, it proceeded with the payment of an
advance of salaries and therefore, only one salary was outstanding at the moment of the
termination. On the other hand, the Chamber noted that the Player claimed that he was
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REF. FPSD-18007
not aware of this Agreement, he had not signed it and the proof of payment provided did
not prove that the Club indeed paid an advance of salaries.
63. In this regard, the Chamber considered that the proof of payment provided by the
Respondent to support the above allegations dated 27 February 2024 did not demonstrate
that it had paid an advance of salaries, in addition to the fact that the Agreement submitted
by the Respondent did not bear the Player’s signature.
64. In view of the above, the Chamber considered that the Respondent did not discharge its
burden of proof in demonstrating that the above salaries had been paid to the Player.
Therefore, the Chamber concluded that, at the moment of the termination, three
outstanding salaries were outstanding.
65. Consequently, the Chamber concluded that the Claimant indeed had just cause to
terminate the Contract due to having at least two outstanding salaries and having provided
the Respondent with at least 15 days’ notice to remedy its default.
ii. Consequences
66. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
67. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, was equivalent to three salaries
under the Contract, amounting to EUR 23,957.85.
68. The Chamber observes that after the termination the Respondent paid one monthly salary
of EUR 7,985.95 to the Claimant, which was also acknowledged by the latter.
69. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent was liable to pay to the Claimant the amounts
which were still outstanding under the contract at the moment of the termination, i.e. EUR
15,971.90 (i.e. EUR 7,985.95 times 2).
70. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Chamber 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 EUR 7,985.95 as from 1 November 2024 until the
date of effective payment;
•
5% interest p.a. over the amount of EUR 7,985.95 as from 1 December 2024 until the
date of effective payment.
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71. Regarding the bonuses requested by the Claimant, the Chamber considered that he did
not meet his burden of proof demonstrating that he was entitled to these amounts as the
screenshots provided did not show that he participated in the matches. In addition, the
Chamber noted that no further explanation or evidence was provided by the Player in this
regard.
72. Consequently, the Chamber decided not to award the amount of EUR 6,800 requested as
bonus.
73. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable by the Respondent in the case at stake. In doing so, the Chamber
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, compensation for the breach shall be calculated taking into account the damage
suffered, according to the “positive interest” principle, having regard to the individual facts
and circumstances of each case, and with due consideration for the law of the country
concerned.
74. In application of the relevant provision, the Chamber held that it 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
75. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Club to the Player had to be assessed in application of the
other parameters set out in art. 17, par. 1 of the Regulations.
76. Bearing in mind the foregoing, the Chamber noted that the Respondent reiterated that the
national law of Luxembourg was applicable to the present Contract. Therefore, according
to the Respondent, art. 17 of the Regulations shall be read in the light of the provisions of
art. L-122-13 and L-124-3 of the Labour Code.
77. In this regard, the Chamber took note of the fact that the Respondent referred to the
wording of art. 17 of the Regulations (edition June 2024) according to which “compensation
for the breach shall be calculated with due consideration for the law of the country concerned”.
However, the Chamber reiterated that in the present case, the January 2025 edition of the
Regulations applies to the matter at hand as to the substance.
78. Therefore, the Chamber recalled that art. 17 of the Regulations read as follows:
“In all cases, the party that has suffered as a result of a breach of contract by the counterparty
shall be entitled to receive compensation. Subject to the provisions of article 20 and Annexe 4 in
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REF. FPSD-18007
relation to training compensation, and unless otherwise provided for in the contract,
compensation for the breach shall be calculated taking into account the damage suffered,
according to the ‘positive interest’ principle, having regard to the individual facts and
circumstances of each case, and with due consideration for the law of the country concerned.”
79. In this regard, based on the explanatory notes regarding the Interim Regulatory
Framework, the Chamber pointed out that if a party wishes FIFA to treat the law of the
country concerned as one of the factors to be considered within the overall calculation as
per the “positive interest” principle, that party shall have the burden of demonstrating the
relevance of a particular national law, its exact content and to what precise effect it should
be considered by the Football Tribunal.
80. As explained by the Chamber, the reasoning of this requirement is as follows: In its
jurisprudence, the DRC needs to strike the right balance between, on the one hand, a
uniform case law and application of FIFA regulations in order to set uniform standards for
the industry, which provides transparent and predictable criteria, inter alia, for the
calculation of compensation for breach of contract, and, on the other hand, giving due
consideration for the law of the country concerned when calculating compensation under
art. 17 of the Regulations. Indeed, the balance between uniformity by means of a globally
uniformed application of law and consideration for the law of the country concerned is a
challenging task. However, as the DRC itself is not in a position to have exact and reliable
knowledge of the legislation of up to 211 FIFA member associations, the burden to
demonstrate (1) the relevance (applicability) of a particular national law, (2) its exact
content, and (3) to what precise effect it should be considered by the Football Tribunal,
must be on the party invoking a national law.
81. In the present case, the Chamber noted that the Respondent requested the DRC to take
into consideration the national law of Luxembourg when determining the compensation
that shall be paid to the Club. Namely, the Respondent made reference to the following
provisions of the Luxembourgish Labour Code:
•
Art. L-122-13:
“ Hormis le cas visé à l'article L 124-10, le contrat de travail à durée déterminée ne peut
être résilié avant l'échéance du terme. L'inobservation par l'employeur des dispositions
de l'alinéa qui précède ouvre droit pour le salarié à des dommages et intérêts d'un
montant égal aux salaires qu’il aurait perçues jusqu'au terme du contrat sans que ce
montant puisse excéder le salaire correspondant à la durée du délai de préavis qui aurait
dû être observé si le contrat avait été conclu sans terme.”
“Except in the case referred to in Article L 124-10, a fixed-term employment contract may
not be terminated before the end of the term. Failure by the employer to comply with the
provisions of the preceding paragraph entitles the employee to damages equal to the
wages he or she would have received until the end of the contract, without this amount
pg. 16
REF. FPSD-18007
exceeding the wage corresponding to the duration of the notice period that should have
been observed if the contract had been concluded for an indefinite period”. (Freely
translated to English)
•
Art. L-124-3 (2) :
“En cas de licenciement d'un salarié à l'initiative de l'employeur, le contrat de travail
prend fin:
-
à l'expiration d'un délai de préavis de deux mois pour le salarié qui justifie
auprès du même employeur d'une ancienneté de services continus
inférieure a cinq ans. [...]
En cas de licenciement d'un salarié à l'initiative de l'employeur, le contrat de travail
prend fin à l'expiration d'un délai de préavis de deux mois pour le salarié qui justifie
auprès du même employeur d'une ancienneté de services continue inferieur de cinq
ans”.
“In the event of the dismissal of an employee at the initiative of the employer, the
employment contract shall terminate:
-
at the end of a two-month notice period for employees who can
demonstrate less than five years of continuous service with the same
employer. [...]
In the event of the dismissal of an employee at the initiative of the employer, the
employment contract shall terminate upon the expiry of a two-month notice period for
employees who can demonstrate to the same employer that they have less than five
years of continuous service”. (Freely translated in English)
82. In view of the above, the DRC concluded that none of the provisions invoked by the Club
would be applicable in the present case as both articles refer to the consequences of the
termination of a fixed- term employment contract by the employer. Specifically, art. L-12213 refers to a termination by the employer before the expiration of the Contract while art.
L-124-3 (2) to the dismissal of the employee at the initiative of the employer.
83. Consequently, the Chamber held that the Club failed to discharge its burden to
demonstrate, in particular, why these two provisions would be applicable to the present
case and, more specifically, to the calculation of compensation due to the Player in a case
in which it was the Player who terminated, with just cause, an employment contract.
84. As a consequence, the Chamber decided that the national law of Luxembourg invoked by
the Respondent could not prevail in the present case for the determination of the
compensation.
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REF. FPSD-18007
85. In view of the above, the Chamber 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 Chamber concluded that the amount of EUR 55,901.65
(i.e. the residual value of the Contract for the months from December 2024 to June 2025)
serves as the basis for the determination of the amount of compensation for breach of
contract.
86. In this regard, the Chamber noted that the Claimant requested the amount of EUR
47,915.70 as compensation. Therefore, and in line with the general legal principle of ne
ultra petita, the Chamber decided to limit the compensation corresponding to the residual
value of the Contract to the amount requested by the Claimant, i.e. EUR 47,915.70
87. In continuation, the Chamber 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 DRC 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 player’s general
obligation to mitigate his damages.
88. Indeed, the Player found employment with the Portuguese club UD Oliveirense. In
accordance with the pertinent employment contract, the Player was entitled to
approximately EUR 31,909.13 for the total duration of the Contract, i.e. 22 January 2025
until 30 June 2025. Therefore, the Chamber concluded that the Claimant mitigated his
damages thereby reducing them to the total amount of EUR 16,006.57.
89. Subsequently, the Chamber 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 Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the Respondent, and
therefore decided that the Claimant shall receive additional compensation.
90. In this respect, the DRC decided to award the amount of additional compensation of EUR
23,957.91, i.e. three times the monthly remuneration of the Player.
91. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent must pay the amount of
EUR 39,964.48 to the Claimant (i.e. 47,915.70 minus EUR 31,909.13 plus EUR 23,957.91),
which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
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REF. FPSD-18007
92. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Football Tribunal in this regard, the Chamber decided to award the Claimant interest
on said compensation at the rate of 5% p.a. as of 27 December 2024 until the date of
effective payment.
iii. Compliance with monetary decisions
93. Finally, taking into account the applicable Regulations, the Chamber 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.
94. In this regard, the DRC 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.
95. 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.
96. 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.
97. The DRC 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
98. 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.
pg. 19
REF. FPSD-18007
99. 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.
100. 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-18007
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Simao Carvalho
Martins.
2.
The claim of the Claimant, Simao Carvalho Martins, is partially accepted.
3.
The Respondent, Football Club Swift Hesperange, must pay the Claimant the following
amount(s):
- EUR 15,971.9 as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 7,985.95 as from 1 November 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 7,985.95 as from 1 December 2024 until the
date of effective payment.
- EUR 39,964.48 as compensation for breach of contract plus 5% interest p.a. as from 27
December 2024 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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. 21
REF. FPSD-18007
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-18007
NOTE RELATED TO THE APPEAL PROCEDURE:
According to art. 50 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., art. 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. 23