Labour Disputes
Texto da decisão
REF FPSD-6466
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player Jean Pyerre Casagrande Silveira Correo
BY:
Frans DE WEGER (Netherlands), Chairperson
Stefano SARTORI (Italy), member
Laurel VAURASI (Fiji), member
CLAIMANT:
Jean Pyerre Casagrande Silveira Correa, Brazil
RESPONDENT:
Club Giresunspor, Türkiye
Page 2
REF FPSD-6466
I.
Facts of the case
1.
On 21 January 2022, the Brazilian club, Grêmio – RS and the Turkish club, Giresunspor, concluded
an agreement for the loan of the player Jean Pyerre Casagrande Silveira Correa from the former to
the later, for the period between 20 January 2022 until 31 May 2023.
2.
According to the player Jean Pyerre Casagrande Silveira Correa, on 30 January 2022, he concluded
an employment contract with Giresunspor valid as from “……….….” (sic) until 31 May 2023.
3.
The player provided an unsigned copy of the alleged contract.
4.
According to art. 6 par. 1 of the contract as provided by the player, he would be entitled to the
following remuneration:
Season 2021/2022: EUR 385,000, to be paid in 5 instalments of EUR 57,000 between
February and June 2022 and EUR 100,000 as “advance payment” on “…….…”
Season 2022/2023: EUR 770,000, to be paid in 10 instalments of EUR 77,000 from August
2022 until May 2023, on the last day of each month.
5.
In this respect, and following the information contained in the Transfer Matching System (TMS), a
transfer instruction from Grêmio–RS towards Giresunspor was entered (Ref. 484912) on 7 February
2022, but it was not completed and no documents were uploaded.
6.
On 28 January 2022, the player travelled to Turkey in order to have a medical examination.
7.
On 30 January 2022, Giresunspor published a series of posts in its social media sites welcoming
the player with the sentence “Sempre adiante. Jean Pyerre”.
8.
On 2 February 2022, the club informed the player that, following his medical exams, he was
diagnosed with testicular cancer.
9.
On 5 February 2022, the player sent a letter to the club, requesting to be provided with consent
within one day in order to have treatment and surgery in Brazil.
10. On 8 February 2022, Giresunspor sent a letter to the player and to Grêmio, by means of which it
stated the following:
“our Club and the Player could not conclude an Employment Agreement in connection with the Loan
Agreement
(…)
By considering the above we hereby wish to express our sincere sadness about the current situation.
Unfortunately, about the notification sent by the Player on 05.02.2022, we must underline our abovementioned explanations in regards to the latest events. Our Club has no employment contract with the
Player as a result of the above-mentioned sorrowful events and we have no decision right about your
treatment process or any other. Our Club is already arranged the relevant examinations and made an
offer to the Player that he may has his surgery in Turkey based upon the said sickness requires urgent
intervention.”
Page 3
REF FPSD-6466
11. On the same date of 8 February 2022, Grêmio sent a letter to Giresunspor, insisting to comply with
the terms of the loan agreement.
12. On 17 February 2022, the player sent a new correspondence to Giresunspor, noting that a valid
employment contract was concluded between the parties.
13. On 23 February 2022, the club replied as follows:
“Besides our good wishes we hereby wish to clarify that there are no employment agreement signed with
the Player due to the insufficient medical conditions of the Player.
None of the events that's been written at your correspondence dated 17.02.2022 changes the fact that
there were no employment agreement between the Parties. In this context, the provision of the Article
18/4 of FIFA Regulations on the Status and Transfer of Players ("RSTP") shall not apply to the situation in
hand.”
14. On 4 March 2022, the player replied indicating that by mentioning that “there are no employment
agreement signed with the Player due to the insufficient medical conditions”, the club is “expressly
recognizing that is violating the provisions of the Article 18 (4) of the FIFA RSTP”. The player further
indicated that, “considering that his treatment is expected to be concluded in approximately one month,
he (..) request the club to establish the date (…) to restart his activities”.
15. The player resumed his contract with Grêmio, valid as from 1 October 2019 until 31 December
2023.
16. Accordingly, the player was entitled to a salary of BRL 135,000.
17. Thereafter, the player transferred on loan from Grêmio to Avaí Futebol Clube, from 7 April 2022
until 30 November 2022, for a salary of BRL 135,000.
II.
Proceedings before FIFA
18. On 24 June 2022, the player Jean Pyerre Casagrande Silveira Correa lodged a claim before FIFA for
outstanding remuneration and breach of contract without just cause, and requested the payment
of the following amounts:
i. EUR 100,000 net as signing bonus (advance payment), plus 5% interest p.a. as from 31 January
2022 until the date of effective payment,
ii. EUR 57,000 net as outstanding salary of February 2022, plus 5% interest p.a. as from 28
February 2022 (date the salary was due) until the date of effective payment,
iii. EUR 51,483 net as outstanding salary of March 2022, plus 5% interest p.a. as from 31 March
2022 (date the salary was due) until the date of effective payment
iv. EUR 946,517 net as compensation for the breach of the employment contract, plus 5%
interest p.a. as from 28 March 2022 until the date of effective payment,
v. EUR 80,850 as compensation for moral damages, corresponding to 7% of the compensation,
vi. EUR 171,000 as compensation under specificity of sports.
19. The player explained that the club did not provide him with a copy of the contract.
20. The player considered that there is a valid contract between him and the club.
Page 4
REF FPSD-6466
21. In its reply, the club argued that no valid employment contract was concluded between the parties.
22. The club stated that the player only provided an unsigned draft.
23. The club argued that “and even though FIFA made it clear that the validity of the contract can’t subject
to a successful medical exam (…) it also allows the Club to have the player’s body checked before signing
the contract.”
24. According to the club, “without a healthy body, it would be impossible for the club to achieve the
purpose of the employment contract.”
25. The club acknowledged that “after the finding of his cancer, the Club felt sorry, but it knew also that
due to his illness the player was not fit to play, so it did not proceed to sign the employment contract.”
26. As to the publications in social media sites, the club argued that in reality it only expressed that it
was “really excited about the Player’s possible incorporation”.
27. In the opinion of the club, publications in social media sites do not mean that an employment
contract was concluded.
28. The club requested the rejection of the claim, but requested the payment of the “attorney’s fees”
29. In the alternative, the club considered that if the player terminated the contract with just cause,
the club shall only pay outstanding salaries and compensation in the amount of EUR 152,227
30. In his replica, the Claimant insisted in its initial position.
31. The player considered that the club caused him moral damages during “the biggest battle of his life”.
32. The player referred to the concurrence of egregious circumstances.
33. In its duplica, the Respondent confirmed its previous position.
34. The Respondent acknowledged that moral damages can be awarded as “in a modest and restrictive
way”, but considered that the player failed to meet his burden of proof.
35. As to the application art. 17 par 1, the Respondent stated that additional compensation can only
be conditioned due to the early termination of the contract for overdue payables.
Page 5
REF FPSD-6466
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 24 June 2022 and submitted for decision on 13
October 2022. Taking into account the wording of art. 34 of the June 2022 edition of the Procedural
Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
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 (July 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 a Brazilian player and a Turkish 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 (June 2022 edition), and considering that the
present claim was lodged on 24 June 2022, the June 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.
5.
Merits of the dispute
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 abovementioned 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 that there was a valid and binding contract
between them.
Page 6
REF FPSD-6466
7.
In this context, the Chamber acknowledged that the first element to be assessed is whether the
parties indeed signed a valid and binding employment contract.
8.
In this regard, the Chamber noted that the player argued that the club did not provide him with
the signed contract, although he submitted an unsigned draft with his claim.
9.
Within this background, following its jurisprudence, the Chamber pointed out that, in order to be
able to assume that the Claimant and the Respondent had indeed been bound to an employment
contract with the terms as described by the Claimant, it had to be established, to the comfortable
satisfaction, that said parties had indeed entered into a labour agreement, and, if so, under which
terms.
10. In this respect, the Chamber underlined that, following its jurisprudence, for an employment
contract to be considered as valid and binding, not only the signature of the contract shall be taken
as sole element to determine whether there was an existing contractual relationship between the
parties.
11. In the matter at stake, the Chamber first noted that the player would have signed an employment
contract within the context of a loan between Grêmio (the former club) and the Respondent. There
is clear evidence that the Respondent accepted said loan and signed the related loan agreement
and that it was also entered into TMS, although the transfer was ultimately not completed.
12. In addition, the Chamber also observed that the player submitted evidence of having attended an
official presentation as well as trainings with the club.
13. Additionally, the Chamber observed that the draft of the contract as provided by the player
includes the essentialia negotii and a period of validity and a remuneration. In this respect, and
although the contract does not specify the start date, (cf. point I 2 above), it can be inferred by the
payment dates that it would start in February.
14. Furthermore, and although the draft contract was not signed, the Chamber also considered that
the signature can be also inferred from the loan agreement between Grêmio and the Respondent,
which is signed by the player and the Respondent.
15. In view of the above, and after a careful study of the documentation on file, in spite of the fact that
no signed specimen of the contract was provided, the DRC noted that the club undertook all the
necessary steps to hire the player, including: presenting him with an offer, receiving him in its
premises, allowing him to train with his the rest of the team, signing the loan agreement and
drafting and procuring an employment contract (draft) and, finally, publicly announcing the player
as the new signing of the club.
16. Taking into considerations the actions taken by the club towards the player, the Chamber
concluded that the club effectively engaged the services of the player; and, as such, it cannot rely
on the argument that a contract was formally never signed. Therefore, a valid and binding contract
existed between the parties.
17. The foregoing been established, the Chamber turned its attention to the following legal issue at
stake, which concerns the alleged breach of said contract.
Page 7
REF FPSD-6466
18. In this respect the Chamber also noted club itself admitted in a letter dated 23 February 2022,
albeit in a contradictory manner that, “that there are no employment agreement signed with the Player
due to the insufficient medical conditions of the Player”. The Chamber further observed that this was
also admitted in the club’s reply to the claim.
19. In other words, the Chamber observed that club admitted that it did not execute the contract due
to the player’s medical condition.
20. Within this context, the Chamber deemed to be appropriate to refer to art. 18 par. 4 of the
Regulations clearly stipulate that “the validity of a contract may not be made subject to a successful
medical examination”.
21. In reference to art. 18 par. 4 of the Regulations, the Chamber considered that it is fundamental, in
relation to the medical examination, to determine whether the relevant medical examination was
conducted before or after the conclusion of the contract. Hence, the Chamber wished to refer to
the timeline events that led to the alleged conclusion of the contract between the parties.
22. In this regard, the Chamber observed that the timeline presented by the player shows he
undertook a series of medical checks in Türkiye on 28 or 29 January 2022, demonstrating the
likelihood of these having occurred prior to the signature of the contract but before having been
diagnosed with cancer.
23. Simultaneously, the Chamber noted that this fact can be combined with the publication in the
social media of posts showcasing him to have attended certain training sessions as well as an
official player announcement. In the view of the Chamber, this would demonstrate that a medical
examination indeed took place before the signature of the contract, which then started to be
performed.
24. To this last fact, the Chamber added that the medical reports dated 2 February 2022 describe a
“complaint” referring to the player’s medical condition and later referring to the fact that the “story”
is “An athlete who had a mass in the left testis in the US performed during the health check-ups”
25. The Chamber considered on this note that it could very well be that the medical check-ups
indicated an anomaly, but nevertheless it considered that this fact should not have prevented any
diligent club from signing or performing a contract with a professional player.
26. Under the foregoing timeline of events, the Chamber observed that, on 8 February 2022, once the
parties were already bound by an employment contract, the Respondent sent a letter to the player
informing him that there was no valid contract.
27. Given the above, the Chamber concluded that, from the evidence on file, it can be established that
the parties were bound by an employment contract, and that the Respondent subsequently
breached it without just cause due to the player’s medical condition, which was diagnosed at the
beginning of said contractual relationship. In doing so, the Chamber considered that the club
violated the provisions of art. 18 par. 4 of the Regulations, insofar it decided to terminate a contract
that was valid, and binding based on the player’s medical condition. Consequently, the Chamber
unanimously decided that the player is entitled to compensation.
Page 8
REF FPSD-6466
ii. Consequences
28. 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.
29. Subsequently, 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.
30. 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.
31. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
32. 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. In particular, the Chamber observed that the player
would have earned the following:
-
-
Season 2021/2022: EUR 385,000, to be paid in 5 instalments of EUR 57,000 between
February and June 2022 and EUR 100,000 on “……”
Season 2022/2023: EUR 770,000, to be paid in 10 instalments of EUR 77,000 from
August 2022 until May 2023, on the last day of each month.
Total: EUR 1,155,000
33. As a result, the Chamber concluded that the amount of EUR 1,155,000 serves as the basis for the
determination of the amount of compensation for breach of contract.
34. 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.
Page 9
REF FPSD-6466
35. Indeed, the player returned to Grêmio and resumed his duties for a monthly salary of BRL 135,000
and then transferred to Avaí Futebol Clube, until 31 December 2023, also for a monthly salary of
BRL 135,000. Accordingly, from March 2022 until 31 May 2023 (i.e. the date of expiration of the
contract with Giresunpsor), the player would have earned 15*135,000 = BRL 2,025,000, equivalent
to approx. EUR 390,000.
36. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the club must pay the amount of EUR 765,000 to the
player (i.e. EUR 1,155,000 minus EUR 390,000), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
37. 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 the date of the claim until the date of effective payment.
38. The Chamber further rejected the player’s claim for moral damages due to a lack of contractual
and legal basis.
iii. Sporting sanctions
39. In continuation, the Chamber focused on the further consequences of the breach of contract in
question and, in this respect, it addressed the question of sporting sanctions against the club in
accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates that, in addition to
the obligation to pay compensation, sporting sanctions shall be imposed on any club found to be
in breach of contract during the protected period.
40. In this respect, the Chamber referred to item 7 of the “Definitions” section of the Regulations, which
stipulates inter alia that the protected period shall last “for three entire seasons or three years,
whichever comes first, following the entry into force of a contract, where such contract is concluded prior
to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first,
following the entry into force of a contract, where such contract is concluded after the 28th birthday of
the professional”.
41. Moreover, the Chamber took note that the player was born on 7 May 1998 and the relevant
contract with the club was concluded in February 2022. Furthermore, the Chamber noted that the
club terminated the contract without just cause on 8 February 2022. The breach of contract by the
club had therefore occurred within the protected period.
42. Furthermore, the Chamber noted that the club had already been held liable of breaching other
players’ contracts without just cause in several recent occasions, in particular in cases FPSD-5862
(Decided on 21 July 2022), FPSD-6055 (Decided on 20 July 2022), FPSD-5555 (Decided on 23 June
2022) and FPSD-5767 (Decided on 15 June 2022).
43. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations, the club
shall be sanctioned with a ban from registering any new players, either nationally or internationally,
for two entire and consecutive registration periods.
Page 10
REF FPSD-6466
d. Costs
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
Page 11
REF FPSD-6466
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jean Pyerre Casagrande Silveira Correo, is partially accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the amount of EUR 765,000 as
compensation for breach of contract without just cause plus 5% interest p.a. as from 24 June
2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Giresunspor is banned from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods (Art. 17 par. 4 of the
Regulations).
6.
In the event that full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the present matter shall be submitted upon request, to the FIFA
Disciplinary Committee.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 12
REF FPSD-6466
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 13