DRC Overdue Payables
Texto da decisão
REF. FPSD-8228
Decision of the
Dispute Resolution Chamber
passed on 29 March 2023
regarding an employment-related dispute concerning
the player Elosman Euller Silva Cavalcanti
BY:
Alejandro Atilio Taraborelli (Argentina)
CLAIMANT:
Elosman Euller Silva Cavalcanti, Brazil
Represented by Amoretty Souza
RESPONDENT:
AEL Limassol, Cyprus
Represented by Lysandrou, Florou LLC
pg. 2
REF. FPSD-8228
I. Facts of the case
1.
On 1 July 2020, the Brazilian player Elosman Euller Silva Cavalcanti (hereinafter: the Player
or the Claimant) and the Cypriot club AEL Limassol (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the first contract) valid as from 9 June 2020
until 31 May 2022.
2.
In accordance with the first contract, the Respondent undertook to pay to the Claimant
inter alia the following amounts:
-
From 31 August 2020 until 31 May 2021 a monthly gross salary of EUR 9,814 (EUR 9,200
net).
From 31 August 2021 until 31 May 2022 a monthly gross salary of EUR 10,632 (EUR
9,300 net).
3.
As per the information provided by the Cyprus Football Association, on 18 May 2021, the
Claimant and the Respondent concluded a second employment contract (hereinafter: the
second contract) valid as from the date of signature until 31 May 2022.
4.
In accordance with clause 1.3.1 of the second contract, the Player was entitled to a monthly
gross salary of EUR 10,000 (EUR 7,000 net).
5.
On 19 May 2021, the Claimant and the Respondent also entered into an image rights
contract (hereinafter: IR contract).
6.
In accordance with clause 3 of the IR contract, it would be automatically terminated (i) after
it expired; (ii) by mutual consent of the parties; or (iii) by termination of the secondcontract.
7.
Furthermore, under the IR contract, the parties established that the Claimant is entitled to
the following amounts, inter alia:
Point 1 of the IR agreement:
10 monthly instalments of EUR 5,000.
Point 5 of the IR agreement:
“if the Player starts in the 1st Eleven on Championship games or Cup Games and if the team
wins then the Player will receive €300 (Three Hundred Euro) per game as bonus for the
football seasons 2021-22 and 2022-2023”
Point 6 of the IR agreement:
“If the Player starts in the 1st Eleven on Championship games or Cup Games and if the result
is a draw in the games against Omonoia FC, APOEL FC, APOLLON FC, ANORTHOSIS FC, and
AEK LARCANA FC then the Player will receive €150 (Hundred and fifty Euro) per game as bonus
for the football seasons 2021-22 and 2022-2023”
pg. 3
REF. FPSD-8228
Point 8 of the IR agreement:
“if the Player play for 20% + 1 official games he will receive 10000€ for the football seasons
2021-22 and 2022-2023 and will be payable in next two months (5000€ X MONTHS)
Plus
If the player play for 40% + 1 official games he will receive 10000€ for the football seasons
2021-22 and 2022-2023 and will be payable in next two months (5000€ X MONTHS)
Plus
If the player play for 70% + 1 official games he will receive 20000€ for the football seasons
2021-22 and 2022-2023 and will be payable in next four months (5000€ X 4 MONTHS)
“Play” means: the player starts the game, or he is healthy on the bench or he is healthy but
the coach doesn’t put him to play”
8.
By correspondence dated 1 November 2022, the Claimant put the Respondent in default
of payment of EUR 43,632 corresponding to May salary and the bonuses under the IR
contract, setting 10 days’ time limit in order to remedy the default.
9.
Upon the request of FIFA administration regarding the second contract, on 17 February
2023, the Player indicated that “It fits to stress that this employment agreement was not
provided before because the Claimant was not in the possession of the said agreement until
now”.
II. Proceedings before FIFA
a) Position of the Claimant
10. On 16 November 2022, the Claimant filed the claim at hand before FIFA asking that the
Respondent be ordered to pay to him overdue payables.
11. The Claimant requested the following relief:
“ a) condemns the Respondent to pay to the Claimant the salary for the month of May 2022, in
the amount of EUR 10,632 (ten thousand, six hundred and thirty-two euros), plus 5% interest as
from each due date until the date of the effective payment;
b) condemns the Respondent to pay to the Claimant the amounts according to point 5 of the
Image Rights Contract, in the amount of EUR 2,700 (two thousand and seven hundred euros),
plus 5% interest as from each due date until the date of the effective payment;
c) condemns the Respondent to pay to the Claimant the amounts according to point 6 of the
Image Rights Contract, in the amount of EUR 300,00 (three hundred euros), plus 5% interest as
from each due date until the date of the effective payment;
d) condemns the Respondent to pay to the Claimant the amounts according to point 8 of the
Image Rights Contract, in the amount of EUR 30,000 (thirty thousand euros), plus 5% interest as
from each due date until the date of the effective payment;
pg. 4
REF. FPSD-8228
e) imposes on the Respondent the sanctions established in paragraph 4 of article 12bis of the
FIFA Regulations on the Status and Transfer of Players.
b) Position of the Respondent
12. In spite of having invited to do so, the Respondent did not submit its position.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 16 November
2022 and submitted for decision 29 March 2023. Taking into account the wording of art. 34
of the October 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
14. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), the 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 Cypriot club.
15. The Single Judge noted that the present matter involves two “employment contracts” dated
1 July 2020 and 19 May 2021, as well as so-called “image rights contract” dated 19 May 2021.
16. In this regard, the Single Judge recalled that, as a general rule, if there are separate
agreements, the Football Tribunal tends to consider the agreement on image rights as such
and does not have the competence to deal with it. However, such conclusion might be
different if specific elements of the separate agreement suggest that it was in fact meant
to be part of the actual employment relationship. In the case at hand, such elements
appear to exist. In particular, the agreement contains inter alia stipulations regarding a
monthly salary that was payable for the period of employment. Consequently, the Single
Judge decided not to consider the image rights agreement as such, but determined that
said agreement was in fact an additional agreement to the employment contract instead.
17. Finally, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
pg. 5
REF. FPSD-8228
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 16 November 2022, the October
2022 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 he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the TMS (Transfer Matching System).
c. Merits of the dispute
19. The 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 he will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note that the Respondent failed to present its reply to the claim of the
Claimant, and therefore his decision would be made on the basis of the documentation on
file, that is, the argumentation and evidence filed by the Claimant, in line with article 14
par. 1 of the Procedural Rules.
21. In this context, the Single Judge acknowledged that his 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.
22. As to the outstanding May 2022, the Single Judge 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. Nonetheless, no evidence was provided by
the Respondent.
pg. 6
REF. FPSD-8228
23. 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 second contract concluded between the parties, namely EUR 7,000 net.
24. As to the amounts of EUR 2,700 as per point 5 of the IR contract, EUR 300 as per point 6 of
the IR contract and EUR 30,000 as per point 8 of the IR contract, the Single Judge noted that
said amounts are conditional payments. As such, the Claimant bore the burden of proving
that said payments are due in that the Claimant should have demonstrated that the
triggering the event for the bonus in question had taken place. Nonetheless, no evidence
was provided by Claimant.
25. Consequently, the Single Judge decided that the Claimant failed to meet his burden of proof
and this part of the claim should be rejected.
ii. Consequences
26. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
27. To this end, the Single Judge confirmed that the Player put the Club in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
28. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
29. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the second offense by the Club within the last two years, the Single Judge
decided to impose a reprimand on the club in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
30. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
pg. 7
REF. FPSD-8228
iii. Compliance with monetary decisions
31. 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 his 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.
32. 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.
33. 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.
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 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
36. 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.
37. 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.
38. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-8228
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Elosman Euller Silva Cavalcanti, is partially accepted.
2.
The Respondent, AEL Limassol, must pay to the Claimant the following amount:
- EUR 7,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
A reprimand is imposed on the Respondent.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-8228
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 Governing the Football
Tribunal).
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
pg. 10