Labour Disputes
Texto da decisão
REF FPSD-7457
Decision of the
Dispute Resolution Chamber
passed on 1 February 2023
regarding an employment-related dispute concerning
the player Ricardo Cavalcante Mendes
BY:
Frans de Weger (the Netherlands), the Chairperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Ricardo Cavalcante Mendes, Brazil
Represented by Nuno Rêgo
RESPONDENT:
L.K.S. Lodz, Poland
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I. Facts of the case
1.
On 1 February 2021, the Brazilian player Ricardo Cavalcante Mende (hereinafter the player
or the Claimant) and the Polish club L.K.S. Lodz (hereinafter the club or the Respondent)
concluded an employment agreement (hereinafter the Employment Agreement), valid as
from the date of its signature until 30 June 2024.
2.
In Clause 5.1 of the Employment Agreement, the Claimant and the Respondent
(hereinafter jointly referred to as the parties) agreed on the applicable remuneration and
established, inter alia:
“a) In season 2020/2021 – 7.045 EUR (seven thousand forty-five) euro net per month in
Polish First League;
b) In season 2021/2022 – 13.130 EUR (thirteen thousand one hundred thirty) euro net per
month in Ekstraklasa;
c) In season 2021/2022 – 7.045 EUR (seven thousand forty-five) euro net per month in Polish
First League;
d) In season 2022/2023 - 13.130 EUR (thirteen thousand one hundred thirty) euro net per
month in Ekstraklasa;
e) In season 2022/2023 - 7.045 EUR (seven thousand forty-five) euro net per month in Polish
First League;
f) In season 2023/2024 - 13.130 EUR (thirteen thousand one hundred thirty) euro net per
month in Ekstraklasa;
g) In season 2023/2024 - 7.045 EUR (seven thousand forty-five) euro net per month in Polish
First League.”
3.
The agreement stipulated that the salaries are payable on 10th day of the next month.
4.
Furthermore, equally in Clause 5 of the Employment Agreement, the parties further
stipulated additional remuneration:
11. An individual additional prize in amount of 50.000 EUR net provided that Parties
sign hereby contract before 01.02.2021. The said prize should be paid by 28.02.2021;
12. An individual additional prize in the amount of 50.000 EUR net provided that on the
day after the last day of summer registration period of 2021/2022 season the player
will be bound with the Club by a valid Contract.
13. An individual additional prize in the amount of 50.000 EUR net provided that on the
day after the last day of summer registration period of 2022/2023 season the player
will be bound with the Club by a valid Contract
14. An additional prize in the amount of 50.000 EUR net provided that on the day after
the last day of summer registration period of 2023/2024 season the player will be
bound with the Club by a valid Contract. (emphasis added)
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5.
On 12 November 2021, the Parties entered into the following contract (hereinafter the
Contract):
“1. The Parties herby agree that the individual additional prize specified in §5 section 11 of
the Contract in the net amount of EUR 50,000 shall be paid by November 15, 2021.
2. The Parties herby agree that the individual additional prize specified in §5 section 12 of
the Contract, in the net amount of EUR 50,000 shall be paid in 5 equal installments, in
the amount of 10.000 EUR by the following dates:
a) First installment 10,000 EUR by the day of 31st January 2022.
b) Second installment 10,000 EUR by the day of 28th February 2022.
c) Third installment 10,000 EUR by the day of 31th March 2022.
d) Fourth installment 10,000 EUR by the day of 30th of April 2022.
e) Fifth installment 10,000 EUR by the day of 31th May 2022.” (emphasis added)
6.
On 26 April 2022, the Claimant sent a letter to the Respondent, requesting the following
amounts:
“1) EUR 3,522 net referring to the May 2021 salary;
2) EUR 3,522 net referring to the June 2021 salary;
3) EUR 3,522 net referring to the July 2021 salary;
4) EUR 3,522 net referring to the August 2021 salary;
5) EUR 3,522 net referring to the September 2021 salary;
6) EUR 7,045 net referring to the January 2022 salary;
7) EUR 10,000 net referring to the second installment of the prize stipulated in § 5 section
12 of the employment contract and on the agreement celebrated on 12nd November 2021;
8) EUR 7,045 net referring to the March 2022 salary;
9) EUR 10,000 net referring to the third installment of the prize stipulated in § 5 section 12
of the employment contract and on the agreement celebrated on 12nd November 2021;”
7.
The Claimant granted the Respondent 15-days to comply with the financial obligations.
8.
On 13 May 2022, the Claimant terminated the Employment Agreement.
9.
The Claimant informed the FIFA general secretariat that he did not find a new
employment contract.
II. Proceedings before FIFA
10. On 13 September 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
11. The requests for relief of the Claimant were the following:
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“a) the Respondent must pay the Claimant the outstanding net amounts under the employment
contract totalling EUR 71.797,84;
b) the Claimant had just cause to terminate the employment contract with the Respondent;
c) the Respondent must pay the Claimant compensation for breach of contract leading to the
Player’s termination with just cause in the amount of EUR 290.117,16.
d) the Respondent shall pay an additional 5% annual interest on the amounts due to the
Claimant from the date in which the amounts became due until they are effectively and fully
paid;
e) the Respondent shall cover all costs of the proceedings and contribute towards the
Claimant’s legal costs.”
12. The Claimant based his claim on the legal principle pacta sunt servanda and provided for
the following break-down:
Overdue amounts based on the Employment Agreement
a. EUR 3.522,00 net plus 5% interest from 11 June 2021;
b. EUR 3.522,00 net plus 5% interest from 11 July 2021;
c. EUR 3.522,00 net plus 5% interest from 11 August 2021;
d. EUR 3.522,00 net plus 5% interest from 11 September 2021;
e. EUR 3.522,00 net plus 5% interest from 11 October 2021;
f. EUR 7,045.00 net plus 5% interest from 11 February 2022;
g. EUR 7,045.00 net plus 5% interest from 11 April 2022;
h. EUR 7,045.00 net plus 5% interest from 11 May 2022;
i. EUR 3.052,84 net plus 5% interest from 11 April 2022.
Overdue amounts based on the Contract
a. EUR 10.000,00 net plus 5% interest from 1 March 2022;
b. EUR 10.000,00 net plus 5% interest from 1 April 2022;
c. EUR 10.000,00 net plus 5% interest from 1 May 2022.
Compensation
Residual value Employment Agreement: EUR 3.992,16 (May 2022) plus EUR 176,125
(EUR 7,045 times 24 months)
Bonuses Employment Agreement amounting to EUR 100,000 and EUR 10.000,00 based
on the Contract “which on the date of termination had not yet expired.”
b. Position of the Respondent
13. The Respondent partially rejected the claim of the Claimant. Whereas it confirmed that it
did not pay out the Players remuneration for June, July, August and September 2021 in
full amount, the Respondent argued that “according to Head of the Tax Office in Ptock
decision from 9th of June 2021 regarding the seizure of the Players remuneration, the Club was
obliged to pay out half of the Players remuneration to Tax Office in Ptock in order to cover the
Players tax debt for the year of 2019 until the full debt is covered.”
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14. In summary, the Respondent rejected the following part of the claim:
“1. concerning the Players remuneration for: May 2021 in the amount of 3.522,00 EUR net,
June 2021 in the amount of 3.522,00 EUR net, July 2021 in the amount of 3.522,00 EUR net,
August 2021 in the amount of 3.522,00 EUR net, September 2021 in the amount of 3.522,00
EUR net as according to Head of the Tax Office in Ptock decision from 9th of June 2021
regarding the seizure of the Players remuneration the Club was obliged to pay out half of
the Players remuneration to Tax Office in Ptock in order to cover the Players tax debt for the
year of 2019.
2. concerning the Players individual premium stipulated in §5(13) of the Contract in the
amount of 50.000,00 EUR and the Players individual premium stipulated in §5(14) of the
Contract in the amount of 50.000,00 EUR as both premiums were conditional and payable
only if the Players contract with the Club remains in force.
3. concerning 3.052,84 EUR of the Players remuneration for April 2022, as the Player seeks
10.097,48 EUR in total for April 2022 (in the part of the Claim titled ,,Submissions" in point
239(g) the Claimant asks for 7.045 euro for the April 2022 and in point 23(i) additional
3.052,84 EUR for April 2022).”
15. Finally, the Respondent argued that the Claimant has the obligation to mitigate his
damages.
c. Comments of the Claimant
16. The Claimant was requested to briefly comment on the reply of the Respondent.
17. In this respect, the Claimant believed “the Respondent although deducted half of the salary
to the Claimant for the months of June, July, August and September 2021 with the justification
to cover the Player tax debt for the year of 2019 until the full debt is covered, the truth is that
it paid nothing to Head of the Tax Office” since no proof of payment was provided by the
Respondent.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 13 September 2022 and
submitted for decision on 1 February 2023. Taking into account the wording of art. 34 of
the October 2022 edition of the Procedural Rules Governing the Football Tribunal
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(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players 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 an
Brazilian player and a Polish club.
3.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition) and
considering that the present claim was lodged on 13 September 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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).
c. Merits of the dispute
5.
Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the 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 the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute (i) the justice of the
termination of the employment contract, based on the alleged non-payment of certain
financial obligations by the Respondent as per the contract, in accordance with art. 14bis
of the Regulations as well as (ii) the payment of certain financial obligations by the
Respondent as per the Contract, namely EUR 40,000.00.
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7.
In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
8.
The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, 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).
9.
The Chamber noted that the Claimant claims not having received his remuneration
corresponding to partial payments of salaries between May to September 2021, two full
monthly salaries of January 2022, March 2022 and April 2022. Furthermore, the Chamber
noted that the Claimant has provided written evidence of having put the Respondent in
default on 26 April 2022, i.e. at least 15 days before unilaterally terminating the contract
on 13 May 2022.
10. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. In this respect, the Chamber recalled the argumentation of the
Respondent asserting that June, July, August and September 2021 salaries are not
outstanding as it had to make a tax payment on behalf of the Claimant.
11. In this respect, the Chamber turned their attention to the Employment Agreement and
observed that the amounts payable to the player are “net”. What is more, the DRC was of
the opinion that the Respondent failed to prove that it transferred the relevant amounts
to the tax authority, i.e. the evidence provided by the Respondent does not prove beyond
doubt the payment of the amounts claimed as outstanding by the Claimant.
12. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
13. Furthermore, the DRC observed that there is a further contract at the dispute and that
the Claimant disputed the payment of certain financial obligations by the Respondent as
per the Contract, namely EUR 40,000.00.
14. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
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15. The Chamber first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties.
16. Nonetheless, the Chamber noted that no justification was presented by the Respondent
for not having complied with the terms of the contract.
17. In view of the foregoing 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 held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely EUR 40,000.00.
ii. Consequences
18. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
19. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are the following:
−
Based on the Employment Agreement: EUR 38,745 (EUR 3,522 times 4 plus
EUR 7,045 times 3).
−
Based on the Contract: EUR 40,000 (EUR 10,000 times 4).
20. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
i.e. EUR 78,745.
21. In addition, 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
over the following amounts as follows:
−
EUR 3,522.00 net plus 5% interest from 11 July 2021 until the date of the effective
payment.
−
EUR 3,522.00 net plus 5% interest from 11 August 2021 until the date of the effective
payment.
−
EUR 3,522.00 net plus 5% interest from 11 September 2021 until the date of the
effective payment.
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−
EUR 3,522.00 net plus 5% interest from 11 October 2021 until the date of the
effective payment.
−
EUR 7,045.00 net plus 5% interest from 11 February 2022 until the date of the
effective payment.
−
EUR 7,045.00 net plus 5% interest from 11 April 2022 until the date of the effective
payment.
−
EUR 7,045.00 net plus 5% interest from 11 May 2022 until the date of the effective
payment.
−
EUR 10,000.00 net plus 5% interest from 1 March 2022 until the date of the effective
payment.
−
EUR 10,000.00 net plus 5% interest from 1 April 2022 until the date of the effective
payment.
−
EUR 10,000.00 net plus 5% interest from 1 May 2022 until the date of the effective
payment.
−
EUR 10,000.00 net plus 5% interest from 1 June 2022 until the date of the effective
payment.
22. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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 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.
23. 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.
24. 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. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
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25. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player 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 333,170.00 (i.e. salaries of EUR 7,045 times 26 plus
bonuses of EUR 50,000 times 3) serves – in principle - as the basis for the determination
of the amount of compensation for breach of contract. However, concerning the bonuses,
the Chamber noted the Claimant only requested EUR 50,000 times 2 and, in line with the
legal principle ne ultra petita, only this amount can be granted. In totality, the Chamber
concluded that the amount of EUR 283,170.00 serves as the basis for the determination
of the amount of compensation for breach of contract.
26. In continuation, the Chamber verified as to whether the player 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.
27. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
28. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
29. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of EUR 283,170.00, as the residual value of the contract.
30. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 13 September 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
31. 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.
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32. 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.
33. 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.
34. 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.
35. 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
36. 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.
37. 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.
38. Lastly, the DRC 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, Ricardo Cavalcante Mendes, is partially accepted.
2.
The Respondent, L.K.S. Lodz, has to pay to the Claimant, the following amount(s):
-
EUR 3,522.00 as outstanding remuneration plus 5% interest from 11 July 2021
until the date of the effective payment.
EUR 3,522.00 as outstanding remuneration plus 5% interest from 11 August 2021
until the date of the effective payment.
EUR 3,522.00 as outstanding remuneration plus 5% interest from
11 September 2021 until the date of the effective payment.
EUR 3,522.00 as outstanding remuneration plus 5% interest from
11 October 2021 until the date of the effective payment.
EUR 7,045.00 as outstanding remuneration plus 5% interest from
11 February 2022 until the date of the effective payment.
EUR 7,045.00 as outstanding remuneration plus 5% interest from 11 April 2022
until the date of the effective payment.
EUR 7,045.00 as outstanding remuneration net plus 5% interest from
11 May 2022 until the date of the effective payment.
-
EUR 283,170.00 as compensation for breach of contract without just cause plus
5% interest p.a. as from 13 September 2022 until the date of effective payment.
-
EUR 10,000.00 as outstanding remuneration plus 5% interest from 1 March 2022
until the date of the effective payment;
EUR 10,000.00 as outstanding remuneration plus 5% interest from 1 April 2022
until the date of the effective payment;
EUR 10,000.00 as outstanding remuneration plus 5% interest from 1 May 2022
until the date of the effective payment;
EUR 10,000.00 as outstanding remuneration plus 5% interest from 1 June 2022
until the date of the 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:
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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.
6.
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.
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).
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