Labour Disputes
Texto da decisão
REF FPSD-6079
Decision of the
Dispute Resolution Chamber
passed on 8 December 2022
regarding an employment-related dispute concerning the player
Guilherme Costa Marques
BY:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
José Luis Andrade (Portugal), member
Michele Colucci (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Guilherme Costa Marques, Brazil
Represented by Mr Pedro Felipe
RESPONDENT / COUNTER-CLAIMANT:
Guangzhou City FC, China PR
Represented by Mr Salvatore Civale
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REF FPSD-6079
I. Facts of the case
1.
On 6 January 2021, the Brazilian player, Guilherme Costa Marques (hereinafter: the
Claimant), and the Chinese club, Guangzhou City FC (hereinafter: the Respondent) signed
an employment contract (hereinafter the Contract) valid as from the date of signature until
31 December 2023.
2.
In accordance with Article 3 of the Contract, the Respondent undertook to pay the
Claimant a net annual salary of EUR 1,100,000, or 12 monthly instalments of
EUR 91,666.66, payable on the 30th day of the following respective month.
3.
Furthermore, in accordance with Item 4 of Article 3 of the Contract, the Respondent
undertook to pay the Claimant bonuses of EUR 100,000 each, conditional on winning the
Chinese Super League / “CSL”, and upon qualification to the AFC Champions League.
4.
During August 2021 (exact date not specified), the Claimant was authorized to leave China
for a fixed vacation period, with a stipulated return date of 1 October 2021.
5.
By correspondence dated 27 September 2021, the Respondent requested the Claimant’s
return to China for the resumption of training with the rest of the team.
6.
On 12 October 2021, the Respondent warned the Claimant in writing that if he would not
return to China to resume training with the Respondent, it would suspend the payment
of his salaries on account of his unjustified absence.
7.
By correspondence dated 13 October 2021, the Claimant replied to the Respondent,
asserting that the latter was not respecting its contractual obligations, and that he would
only return to China once the salaries which remained unpaid would be paid and the visa
for his family members (which were allegedly verbally agreed upon) would be organized
by the Respondent. In this respect, the Claimant set a 15-day deadline for the Respondent
to pay the outstanding salary/ies.
8.
On 28 October 2021, the Respondent addressed the Claimant in writing, asserting the
following points:
-
The Respondent organized a visa and a work permit for the Claimant; however, it is
not contractually obligated to do so for his family members. As such, not doing so
does not constitute a violation of the Respondent’s contractual obligations;
-
Given the fact that the salaries of the Claimant are, by virtue of the Contract, payable
only by the end of the following respective month, at the time the Claimant was
ordered to return, only one salary had remained outstanding;
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-
9.
the suspension of the Claimant’s salary was provisional, subject to the latter returning
to China as ordered by the Respondent. Continuous failure of the Claimant to comply
with said instruction would be interpreted by the Respondent as grounds to terminate
the Contract with just cause.
By correspondence dated 3 November 2021, the Respondent requested the Claimant
once again to return to China and warned the latter that persisting with such behaviour
would be construed as grounds to terminate the Contract with just cause.
10. On 17 November 2021, the Respondent reiterated its request for the Claimant to return
and threatened to terminate the Contract once again.
11. On 17 November 2021, the Claimant lodged a claim before FIFA with Ref. Nr. FPSD-4311
for outstanding remuneration under the Contract.
12. By correspondence dated 10 December 2021, the Respondent requested the Claimant
once again to return to China and warned the latter that persisting with such behaviour
would be construed as grounds to terminate the Contract with just cause.
13. On 5 January 2022, the Claimant and the Respondent (hereinafter jointly the Parties)
reached a settlement agreement (hereinafter the Settlement Agreement) by way of which
the payment of outstanding amounts under the Contract, which had accrued up to that
point, was rescheduled and additional terms applicable in consonance with the Contract
had been established. Furthermore, under said Settlement Agreement, it was agreed that
the aforementioned proceedings before FIFA with Ref. Nr. FPSD-4311 would be
suspended and that the alleged termination by the Claimant would be reversed, making
the Contract effective again.
14. By correspondence dated 26 April 2022, the Claimant put the Respondent in default of
payment of two monthly salaries due under the Contract, corresponding to the months
of January 2022 and February 2022, granting the latter a 15-day deadline to comply with
its financial obligations.
15. By correspondence dated 16 May 2022, the Claimant unilaterally terminated the Contract,
stating that, despite having been put in default of payment of the salaries as from January
2022 until March 2022, the Respondent had not complied with its financial obligations
under the Contract.
16. On 16 May 2022, the Claimant lodged the present claim before the Football Tribunal.
17. By correspondence dated 13 June 2022, the Respondent sent the Claimant “letter of
commitment” which the latter was requested to sign, in which it was stipulated that, if he
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returned to China immediately, he would receive his salaries for the period between
January 2022 and March 2022. This letter was not signed by the Claimant.
18. On 14 September 2022, upon discovery that the Claimant was actively participating in
competitions for the Respondent, the FIFA Administration requested the Claimant to
confirm his employment situation.
19. On 3 October 2022, the Claimant confirmed that he was still employed by the Respondent
and amended his claim.
II. Proceedings before FIFA
20. On 16 May 2022, the Claimant filed the claim at hand before FIFA.
21. On 28 June 2022, the Respondent filed a counterclaim against the Claimant.
22. On 3 October 2022, the Claimant amended his claim.
23. A brief summary of the position of the parties is detailed in continuation.
a. Claim of the Claimant
24. According to the Claimant, the Respondent failed to pay more than two monthly salaries,
despite having been put in default of payment of those amounts and granted a deadline
of 15 days to remedy the alleged breach, thereby giving rise to just cause to terminate the
Contract under art. 14bis of the Regulations on the Status and Transfer of Players.
25. The Claimant requested outstanding remuneration in the net amount of EUR 275,000,
corresponding to three outstanding salaries of EUR 91,667 each for the period between
January 2022 and March 2022.
26. The Claimant also requested interest on any outstanding remuneration awarded at the
rate of 5% p.a. as from the day following the respective due dates until the date of
effective payment.
27. Moreover, the Claimant requested compensation in the net amount of EUR 1,833,333.33,
corresponding to the residual value of the Contract as from the date of termination.
28. The Claimant also requested that, “should during the present case bonuses under Item 4 of
Article 3 of the Contract become applicable, those shall be also included in the sum payable as
compensation”.
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29. With regards to interest applicable on any compensation awarded to the Claimant, the
latter requested 5% p.a. as from the date of termination until the date of effective
payment.
b. Counterclaim of the Respondent
30. According to the Respondent, the Claimant terminated the Contract without just cause.
31. The Respondent outlined that, in line with the Settlement Agreement, the Parties
stipulated that the Claimant would be free to sign a loan agreement with another club,
and return to the Respondent “within 10 days at the end of the national championship
that the football club to which he is transferred plays” (…) “for a period of five months”;
although the Claimant did not sign a loan agreement with another club, the Respondent
argued that he was obligated to return to the latter within 10 days of the five-month
period between January 2022 and May 2022 elapsing, i.e. 10 June 2022.
32. The Respondent further alleged that the Claimant deliberately decided not to sign a loan
agreement during said period in order to stay in Brazil, without the authorisation of the
Respondent, thereby constituting a breach of contract without just cause.
33. Moreover, the Respondent outlined that it suffered financial difficulties since last year
and struggled to make salary payments to several players; however, in this respect, it
managed to remedy all of its defaults towards all players until March 2022, and towards
the Claimant until December 2021, as it underwent “major shareholder changes”.
34. In particular, the Respondent justified the non-payments of the salaries between January
2022 and March 2022 to the Claimant with the allegation that the Claimant refused to
sign the “letter of commitment” dated 13 June 2022 by virtue of which the Claimant had
to agree to return to the Respondent from Brazil immediately in order to receive his
remaining salaries.
35. The Respondent argued that, by sending the Claimant this letter of commitment, it
showed “enough sincerity”, and that the Claimant, by not signing said letter,
demonstrated his intent not to honour the Contract, as the latter had no reason to
suspect that the Respondent would be financially unstable.
36. In conclusion, the Respondent requested compensation of EUR 1,833,333.33,
corresponding to the residual value of the Contract from the date of termination.
c. Claimant’s response to the counterclaim
37. Despite having been invited to do so, the Claimant provided no further comments as to
the Respondent’s counterclaim.
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d. Amendment to the claim
38. On 3 October 2022, the Claimant amended his original petition as follows:
“The Player has awaited until the present date for a position from the Chinese club regarding
the contractual default regarding both cases. The Player agreed to return to the Club, received
up front partially his defaulted payments, remaining a balance in which the Player awaited a
payment plan to be presented by the Club.
As to this moment the Player has not received such payment plan. In this sense, the Player hereby
formalizes its amendment to the present claim, in order for it to be a contractual claim regarding
payment of salaries.
Please find below the payments still due to the Player with also the respective contractual
penalty to be paid by the Chinese Club:
This case comprises collection of salaries of the Player regarding the months of January,
February, March, April, May and June 2022. The Player presented its understanding over the
defaulted amount, in which totalizes of € 611.287,67 (six hundred eleven thousand, two hundred
and eighty-seven euros and sixty-seven cents) net. Guangzhou City paid the indebted amount
partially, proceeding with the payment of € 448.374,00 (four hundred forty-eight thousand three
hundred seventy-four Euros). Therefore, is still pending payment the balance of €162.913,67
(one hundred sixty-two thousand nine hundred thirteen Euros and sixty-seven cents)net, with
reference to the month of May (partially) and June 2022.”
e. Respondent’s position as to the amendment
39. On 18 October 2022, the Respondent provided brief comments, pointing out that the
amended claim is only for outstanding remuneration, and recognising that “some salaries
are still due”, on account of cash flow problems.
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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 16 May 2022 and submitted
for decision on 8 December 2022. 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.
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 a
Brazilian player and a Chinese 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 16 May 2022, the March 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.
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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 basis of the dispute, following the amendment
of the Claimant’s petition, was the non-payment of remuneration due under the Contract.
7.
In this context, the Chamber acknowledged that it its task was to determine whether the
amounts claimed as outstanding had indeed not been paid, and if so, whether the
Respondent had a valid justification for doing so.
8.
The Chamber first recalled the Claimant’s submission, which stated that the present case
concerned outstanding remuneration for the months of January 2022 – June 2022, in the
total amount of EUR 611,287.67, of which EUR 448,374 were allegedly paid, thus
purportedly leaving an outstanding amount of EUR 162,913.67.
9.
In this respect, the Chamber firstly wished to point out that the Claimant made an error
in his calculation, claiming that he should have received EUR 611,287.67 for the months
of January 2022 until June 2022, when, in accordance with the Contract, the maximum
amount of remuneration he could be entitled to thereunder in said period was
EUR 550,000 net (i.e. 6 x EUR 91,166.66).
10. The Chamber also noted that the Claimant confirmed having received a total amount of
EUR 448,374 under the Contract.
11. The Chamber, therefore, established that, based on the terms outlined in the Contract,
as well as the evidence and submissions of the parties, the amount of allegedly
outstanding remuneration was to be considered EUR 101,626 net (i.e. EUR 550,000 minus
EUR 448,374).
12. On the other hand, the Chamber observed that the Respondent, in its brief response, did
not contest the amounts which were claimed as unpaid, acknowledging that “some
salaries are still due” on account of cash flow problems.
13. In this respect, the Chamber referred to the wording of art. 13 par. 5 of the Procedural
Rules, in which it is stipulated that a party asserting a fact bears the burden of proving
the veracity of said fact with adequate evidence.
14. Having taken into account the above, and having noted that no evidence was provided of
any potential case of force majeure or otherwise, to corroborate the impossibility of paying
the amounts which had fallen due contractually, the Chamber concluded that the
Respondent is held liable to pay the outstanding amounts to the Claimant.
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15. Therefore, in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent shall pay the Claimant EUR 101,626 as outstanding
remuneration.
16. Lastly, as the Claimant had not requested any interest in his amended claim, in
accordance with the general legal principle of ne ultra petita, the Chamber decided not to
award interest in the present case.
ii. Compliance with monetary decisions
17. 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.
18. 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.
19. 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.
20. 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.
21. 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
22. 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.
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23. 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.
24. 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 / Counter-Respondent, Guilherme Costa Marques, is partially
accepted.
2.
The Respondent / Counterclaimant, Guangzhou City FC, has to pay to the Claimant /
Counter-Respondent EUR 101,626 net as outstanding remuneration.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counterclaimant is 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 article 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
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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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