Labour Disputes
Texto da decisão
REF FPSD-5274
Decision of the
Dispute Resolution Chamber
passed on 20 July 2022
regarding an employment-related dispute concerning the player Elio Wilson Costa
Martins
BY:
Sihon Gauci (Malta)
CLAIMANT:
Elio Wilson Costa Martins, Portugal
Represented by Loizos Hadjidemetriou & Associates LLC
RESPONDENT:
Xylotympou FC 2006, Cyprus
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I.
Facts of the case
1.
On 16 August 2021, the Portuguese player, Elio Wilson Costa Martins (hereinafter: the player or Claimant), and
the Cypriot club, Xylotympou FC 2006 (hereinafter: the club or Respondent) signed an employment contract
valid as from 16 August 2021 until 30 April 2022 or until the last game of the 2021/2022 football season.
2.
Pursuant to article 1.3 of the contract, the club undertook to pay to the player a monthly salary of EUR 112
(EUR 100 net).
3.
Additionally on the same date, the player and the club concluded a supplementary agreement (hereinafter:
“the supplementary agreement”), according to which the following was agreed:
“1. The Player as long as he maintains in force a valid employment agreement with the Club is entitled to the bonuses
according to the Internal Regulations of the Club as those are approved by the board of directors of the Club.
2. For the duration of this agreement and as long as he maintains a valid employment agreement with the Club,
the Club will pay the following amounts as monthly allowance for accommodation, which shall be payable at
the end of each month, from August 31st, 2021, until April 30th, 2022, a monthly payment of €1650.
3. The Club will provide air ticket from Portugal to Cyprus and Cyprus to Portugal.
4. In case any dispute arises between the parties, jurisdiction shall have the judicial bodies of the Cyprus Football
Association. Breach of any of the clauses of this agreement shall give the right to the innocent party to claim
damages from the other.”
4.
In this context, the player mentioned the following:
“As can be seen from the CoE and the Supplementary Agreement, these were signed between the Claimant and a
Cyprus company named P.O. Xilotimpou Football Ltd. This company has been duly authorised by the CFA to manage
and administrate the football teams of the Respondent
Sending attached a relevant confirmation by the CFA. The act that the Claimant was registered with the Respondent
is proven by his player passport, issued by the CFA.”
5.
On 18 December 2021 with the authorisation of the club, the player travelled to his home country for the
Christmas holidays.
6.
The player indicated that the club “verbally communicated to him that his services as a professional football player
were no longer required” and then on 24 December 2021 via WhatsApp, Mr Alessandro da Silva – “the
Respondent’s decision-making person” sent him the following message:
“Good afternoon bro. Merry Christmas to you and your family. Élio, you don´t need to return, even because you will
be unable to play until middle of March, we will solve your situation, as I told you I´m a man of my word.”
7.
On 22 January 2022 and after apparent numerous correspondence with the club, the player was informed by
“Mr da Silva that his termination of his employment had been sent to the Cyprus Football Association (CFA) and he
was therefore free to sign with another club”.
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8.
The player immediately responded and mentioned that he “had never discussed about his employment
termination and that he had never signed any termination agreement.”
9.
On 25 January 2022, the club’s General Director and FIFA TMS User, Mr Yiannis Yiorkatzis, confirmed with the
player that “the reason his contract was terminated was because of “indiscipline towards the Football regulations
and the lack of availability of the player to be eligible to participate in less than the 50% of the championship
games.”
10.
On 28 January 2022, after contacting the CFA, the CFA confirmed that a mutual termination agreement was
submitted by the club on 24 January 2022, therefore “as a result, according to the CFA, the Claimant was
deregistered from the list of the Respondent’s eligible to compete players. “
11.
The player mentioned that the CFA provided him with a copy of the mutual termination agreement which
authenticity he rejects as he never signed the document or agreed to a mutual termination. According to the
player, the termination agreement is allegedly forged.
12.
On 4 April the player informed FIFA that he has not concluded an employment contract with a new club.
II. Proceedings before FIFA
13.
On 25 February 2022, the player filed the claim at hand before FIFA. A brief summary of the position of the
parties is detailed in continuation.
a.
14.
Position of the player
According to the player, the club unilaterally terminated his contract without just cause, moreover when the
unilateral termination occurred the player’s salaries of November and December 2021 as well as part of the
October 2021 salary were, and still is outstanding.
15.
The requests for relief of the player, were that the Respondent pay the following:
(a)
EUR 5,400 net as outstanding remuneration for October 2021 at EUR 150 and EUR 1,750 each as salary for
November 2021, December 2021 and January 2022
(b)
EUR 5,250 net as compensation for breach of contract corresponding to residual value of the contract (February
until April 2022)
(c)
Plus 5% interest p.a. on above amounts from 22 January 2022
(d)
Aggravated damages up to 6 monthly salaries
16.
Additionally, the player requested that sporting sanctions be imposed on the club.
b.
17.
Position of the Respondent
Notwithstanding the fact that the club was invited to provide its position to the player’s claim it failed to send
its reply to the claim.
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III. Considerations of the Dispute Resolution Chamber
a.
18.
Competence and applicable legal framework
First of all, Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single Judge)
analysed whether she was competent to deal with the case at hand. In this respect, she took note that the
present matter was presented to FIFA on 25 February 2022 and submitted for decision on 20 July 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.
19.
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 (July 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 Portuguese player and a Cypriot
club.
20.
Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the
matter. In this respect, she confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (July 2022 edition) and considering that the present claim was lodged on 25
February 2022, the August 2021 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b.
21.
Burden of proof
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 she may consider evidence not filed by the parties, including without limitation the
evidence generated by or within the Transfer Matching System (TMS).
c.
22.
Merits of the dispute
Her 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 she will refer only to the facts, arguments and documentary evidence, which she
considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
23.
The foregoing having been established, the Single Judge moved to the substance of the matter, and took note
of the fact that the player argued that the club did not have just cause to terminate the contract on
24 January 2022, furthermore that the player rejected the authenticity of the mutual termination agreement
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provided by the club to the CFA due to the fact that he never signed the said document or indeed agreed to
a mutual termination of the contract.
24.
Subsequently, the Single Judge noted that – after having been provided with the claim of the player- the club,
failed to present its response. By not presenting its position to the claim, the Single Judge was of the opinion
that the club renounced its right of defence and, thus, accepted the allegations of the player.
25.
Furthermore, as a consequence of the aforementioned consideration, the Single Judge expressed that she
shall take a decision upon the basis of the documentation already on file; in other words, upon the statements
and documents presented by the player.
26.
The Single Judge firstly referred to the alleged mutual termination agreement concluded between the player
and club, however observed that a record of the aforesaid document was not uploaded in the FIFA Transfer
Matching System, as a document to be considered as “proof of contract end date.”
27.
Moreover, the Single Judge remarked that on the basis that the club is not disputing the player’s allegations
as to the forgery / authenticity of the alleged mutual termination agreement, it is therefore determined that
the club is considered to have accepted it as true.
28.
Taken into account all the circumstances described above as well as the documentation on file, the Single
Judge deemed that it cannot be conclusively established that the parties indeed enter into a mutual
termination agreement and as such decided that the aforesaid document cannot be validly upheld.
29.
Thus, the Single Judge concluded that, having established that the parties did not enter into a mutual
termination agreement, it nonetheless seemed that it was the intention of the club to end the contractual
relationship with the player, based on its actions i.e., submitting the alleged mutual termination agreement
to the CFA, in this regard the club therefore confirmed that it lacked interest to retain the player’s services.
Accordingly, the Single Judge concluded that, in view of the aforesaid, the club de facto terminated the
employment contract with the player on 24 January 2022 without just cause.
30.
Finally, the Single Judge observed that at the date of termination of the employment contract, outstanding
remuneration were due to the player 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 club is to be held liable
to pay the player the outstanding amounts deriving from the contract concluded between the parties.
ii. Consequences
31.
Having stated the above, Single Judge turned her attention to the question of the consequences of such
unjustified breach of contract committed by the Respondent.
32.
As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge
decided that the Respondent is liable to pay to the Claimant the total amount of EUR 5,400 net which were
outstanding under the contract at the moment of the termination, corresponding to the following:
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-
EUR 150 payable on 31 October 2021
-
EUR 1,750 payable on 30 November 2021
-
EUR 1,750 payable on 31 December 2021
-
EUR 1,750 as from 31 January 2022
33.
In addition, taking into consideration the Claimant’s request, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
34.
Having stated the above, the Single Judge turned to the calculation of the amount of compensation payable
to the Claimant by the Respondent in the case at stake. In doing so, the Single Judge 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.
35.
In application of the relevant provision, the Single held that she 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 Single Judge established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
36.
As a consequence, the Single Judge determined that the amount of compensation payable by the Respondent
to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the
Regulations. The Single Judge recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation payable.
37.
Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge proceeded with the
calculation of the monies payable to the Claimant under the terms of the contract from the date of its
unilateral termination until its end date. Consequently, the Single Judge concluded that the amount of EUR
5,250 net (i.e., residual value of the contract – February until April 2022) serves as the basis for the
determination of the amount of compensation for breach of contract.
38.
In continuation, the Single Judge verified as to whether the Claimant had signed an employment contract with
another club during the relevant period of time, by means of which he would have been enabled to reduce
his loss of income. According to the constant practice of the Dispute Resolution Chamber 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
Claimant’s general obligation to mitigate his damages.
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39. In this respect, the Single Judge noted that the player remained unemployed since the unilateral termination
of the contract.
40. The Single Judge 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.
41. In this respect, the Single Judge decided to award the player compensation for breach of contract in the
amount of EUR 5,250 net, i.e., EUR 1,750 monthly remuneration times 4, as the residual value of the contract.
42. Lastly, taking into consideration the player’s request as well as the constant practice of the Single Judge in this
regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of date
of claim i.e., 25 February 2022 until the date of effective payment.
iii. Compliance with monetary decisions
43.
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 her 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.
44.
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.
45.
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.
46.
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.
47.
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.
48.
Costs
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.
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49.
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.
50.
Lastly, the Single Judge concluded her 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, Elio Wilson Costa Martins, is partially accepted.
2.
The Respondent, Xylotympou FC 2006, has to pay to the Claimant, the following amount(s):
(a)
EUR 5,400 net as outstanding remuneration plus 5% interest p.a. until the date of effective payment, as
follows:
(b)
-
on the amount of EUR 150 as from 1 November 2021
-
on the amount of EUR 1,750 as from 1 December 2021
-
on the amount of EUR 1,750 as from 1 January 2022
-
on the amount of EUR 1,750 as from 1 February 2022
EUR 5,250 net as compensation for breach of contract without just cause plus 5% interest p.a. as from
25 February 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.
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 the ban shall be of 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 article 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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