Labour Disputes
Texto da decisão
REF. FPSD-15534
Decision of the
Dispute Resolution Chamber
passed on 3 October 2024
regarding an employment-related dispute concerning the player Marcelo da
Conceicao do Nascimento
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Khalid AWAD ALTHEBITY (Saudi Arabia), Member
Tomislav KASALO (Croatia), Member
CLAIMANT:
Marcelo da Conceicao do Nascimento, Brazil
Represented by Mariju Maciel e Marina Maciel Advogados & Associados
RESPONDENT:
Muang Trang United, Thailand
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REF. FPSD-15534
I. Facts of the case
1.
The parties to this dispute are the Brazilian player Marcelo da Conceição do Nascimento
(hereinafter: the Player or the Claimant) and the Thai club Muang Trang United (hereinafter:
the Club or the Respondent).
2.
According to the Player, he signed an employment contract with the Club on 1 August 2022,
for a period of 2 years and a monthly salary of THB 50,000. The Player does not have a copy
of this contract.
3.
In August 2022, the Club announced the enrolment of the Player on its Facebook account
and posted several photos of him, apparently during training sessions and friendly
matches.
4.
On 16 December 2022, the Player signed a new employment agreement with the Thai club
Phuket Andaman FC, effective from 15 December 2022 until the end of the 2022/2023
season, for a monthly salary of THB 15,000. The Player alleged that he had not been
provided with a copy of this contract.
5.
On 14 June 2023, the Player sent a notice of default to the Club in which he acknowledged:
(i) their employment relationship and the financial terms allegedly agreed upon by the
parties; and (ii) his injury and subsequent release by the Club in December 2022. As a result,
he accused the Club of terminating the alleged contract without just cause, and therefore
demanded payment of the outstanding remuneration (THB 235,000) and compensation for
breach of contract (THB 965,000) within 10 days.
6.
On 27 June 2023, the Player sent a second notice of default to the Club, giving it a further
10 days to pay the outstanding amounts.
7.
On 18 August 2023, the Player sent a notice to the Football Association of Thailand (FAT),
informing it of the Club’s wrongful and requesting to be provided with “the relevant
information and documents regarding the employment relationship between the Player and
[the Club], including the information regarding the register of the transfer of the Player to [the
Club] on TMS, so as any other information, data or documents that you might understand as
pertinent on the present case”.
8.
On 28 August 2024, the Player repeated his request to FAT, which apparently remained
unanswered.
9.
On 18 April 2024, the Player contacted the FIFA Transfer Matching System (TMS) Helpdesk,
also requesting to be provided with a copy of his contract and relevant information.
10. On 8 May 2024, the FIFA TMS Helpdesk informed the Player that he had been registered
with the Club as an amateur player and therefore no employment contract had been
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REF. FPSD-15534
uploaded into TMS. At the Player’s request, the TMS Helpdesk also confirmed that his
registration was from 2022 to 2024.
II. Proceedings before FIFA
11. On 9 August 2024, the Player filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Player
12. The Player first argued that he had a valid employment relationship with the Club, although
he did not have a copy of his contract. He referred to the Club’s Facebook posts as evidence
of his employment and also referred to the unsuccessful attempts to obtain a copy of his
contract from either FAT or FIFA.
13. The Player also claimed that he had validly agreed with the Club on the payment of THB
50,000 per month, which he considered to be a “considerable amount” comparable to the
minimum wages in both Thailand and Brazil. He also provided evidence of his long football
career and emphasized that he had always been employed as a professional player.
14. Consequently, the Player argued that, notwithstanding his registration in TMS, he should
be treated as a professional player duly employed by the Club.
15. In addition to the bad faith in retaining the copies of the contract, the Player also claimed
that the Club had unlawfully dismissed him without just cause. In particular, he explained
that he had suffered a leg injury, as a result of which the Club decided to release him in
December 2022, and he was forced to find a new employment at a much lower salary.
16. In light of the foregoing, the Player requested the following amounts:
•
THB 235,000 as outstanding remuneration from August to December 2022 (i.e., 5
months à THB 50,000);
•
THB 952,500 as compensation for breach of contract being the residual value of
his contract with the Club less the mitigation with Phuket Andaman FC (i.e., THB
35,000 per month for the duration of the alleged contract).
17. The Player’s requests for relief were as follows:
“ In light of the foregoing, we hereby request the FIFA DRC to accept this claim and:
a. Recognize that the Player was signed by the Club as a professional football player
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REF. FPSD-15534
b. Order the Club to pay the Player's wages of the months August, September, October,
November and December 2022, in an amount equivalent to 235,000 Thai Baht (two
hundred thirty-five thousand Thai Baht)
c. Order the Club to pay the compensation for terminating the agreement, in an amount
equivalent to 952,500 Thai Baht (nine hundred fifty-two thousand eight hundred seventyeight Thai Baht)”.
b. Position of the Club
18. On 22 August 2024, the FIFA general secretariat invited the Club to submit its comments
on the Player’s claim by 11 September 2024 at the latest.
19. On 13 September 2024, the FIFA general secretariat acknowledged that no reply had been
received and therefore closed the submission phase of the present case (cf., art. 23, par. 1
of the Procedural Rules Governing the Football Tribunal; hereinafter: the Procedural Rules).
20. On 16 September 2024, the FIFA general secretariat informed the parties that the present
case would be submitted to the Dispute Resolution Chamber (DRC) for a decision on 3
October 2024.
21. On 17 September 2024, the Club alleged that FIFA’s previous correspondence had been
forwarded to its spam box and submitted a late response.
22. On that date, the FIFA general secretariat referred the parties to art. 21, par. 1 and art. 23,
par. 1 of the Procedural Rules and stated that the Club’s request was inadmissible.
c. Information retrieved from TMS
23. On 9 August 2022, the Club entered a transfer instruction in TMS to engage the Player as
an amateur (TMS Ref. No.: 552687). His International Transfer Certificate (ITC) was issued
on 10 August 2022.
d. Information provided by the FAT
24. At the request of the FIFA general secretariat, the FAT confirmed that the Club applied for
the Player’s ITC in August 2022, but that the registration was eventually unsuccessful.
25. In addition, the FAT provided copies of the contracts signed by the Player with the following
Thai clubs, which contain the following terms and conditions:
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REF. FPSD-15534
Between the Player and the Club (hereinafter: the FAT Contract)
•
•
Term: from 1 August 2022 until 31 May 2023;
Salary: THB 50,000
Between the Player and Phuket Andaman FC:
•
•
Term: 15 December 2022 to end of season 2022/2023
Salary: THB 15,000
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. First of all, the Dispute Resolution Chamber (hereinafter: the 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 9 August 2024 and submitted for decision on
3 October 2024. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules, the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
27. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Thai club.
28. 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 2024 edition), and
considering that the present claim was lodged on 9 August 2024, the cited edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
29. 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 TMS.
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REF. FPSD-15534
c. Merits of the dispute
30. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
31. The Chamber then proceeded to the substance of the matter, noting that it concerned a
breach of contract claim brought by the Player against the Club.
32. The Player claims that he entered into an employment contract with the Club in August
2022, but that he was never provided with a copy of this document. The Player further
alleges that the Club released him prematurely as a result of his leg injury and he therefore
seeks to be awarded the outstanding remuneration and compensation for breach of
contract.
33. The Club, on the other hand, did not respond to the claim in time. In fact, the Chamber
acknowledged that the Club submitted a late response but confirmed that it should be
disregarded based on art. 21, par. 1 and 23, par. 1 of the Procedural Rules.
34. In light of the above, the DRC stated that its task was to determine, on the basis of the
evidence available in the file: (i) whether there was a valid employment relationship
between the parties; and (ii) if so, the date, the initiative and the consequences of the
termination.
(i) THE EMPLOYMENT RELATIONSHIP BETWEEN THE PARTIES
35. The Chamber first noted that the Player claims that he was never provided with a copy of
his contract, but that it was signed for a period of two years with a remuneration of THB
50,000. In support of his argument, the Player referred to several posts and photos on the
Club’s Facebook account, which, however, the Chamber considered to be of limited
probative value in establishing the existence of a contractual relationship and, more
importantly, its terms.
36. According to the DRC, the Player’s claim would, in principle, be rejected in its entirety for
lack of a contractual basis.
37. Notwithstanding the foregoing, the Chamber further noted that, although the Player was
registered by the Club as an amateur in the TMS, the FAT confirmed that the parties had in
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REF. FPSD-15534
fact entered into a written contract (i.e., the FAT Contract), which was registered by the Club
with the FAT and subsequently cancelled.
38. Furthermore, the FAT Contract contains the signatures of both parties and all essentialia
negotii. It also corresponds to the remuneration allegedly agreed by the Player (i.e., THB
50,000). In fact, the DRC observed that the only difference between the contract cited by
the Player and the FAT Contract was the duration of the employment: whereas the Player
claimed to have signed with the Club for two years, the FAT Contract expires on 31 May
2023.
39. In light of the above, the Chamber concluded that, although the FAT Contract could support
the Player’s position that the parties had in fact entered into an employment relationship,
it was sufficient to prove that this contract would only be valid until May 2023 (instead of
2024, as claimed by the Player).
40. Consequently, and in the absence of any convincing evidence to the contrary, the DRC
decided that the parties were bound by the FAT Contract from August 2022 to May 2023.
41. For the sake of completeness, the Chamber explained that this conclusion was not affected
by the fact that: (i) the Player was registered as an amateur in that he signed a written
contract and apparently earned an amount higher than the expenses incurred as a
footballer (cf., art. 2, par. 2 of the Regulations); and (ii) the Player’s registration was allegedly
cancelled in that administrative matters such as the registration with the relevant
association do not per se affect the validity of a contract according to the well-established
jurisprudence of the DRC.
(ii) THE TERMINATION AND THE CONSEQUENCES
42. Having established that the FAT Contract was valid and binding on the parties, the DRC
considered it necessary to determine when and by whom it was terminated.
43. The DRC made the following considerations in this respect:
•
although the Player claimed that he was released in December 2022 as a result
of an injury, he did not provide any evidence of the alleged injury or of the
unilateral release by the Club (e.g., medical reports, photos or videos, exchanges
with the Club by any means of communication);
•
the Player’s account of the termination is also inconsistent with the information
provided by FAT, which merely stated that the ITC request had been cancelled
and that the Player was registered with another Thai club (i.e., Phuket Andaman
FC) as of 15 December 2022;
•
at the time of signing with Phuket Andaman FC, the Player had never sent the
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REF. FPSD-15534
Club a notice of default, let alone a notice of wrongful dismissal; and
•
the Player did not contact the Club until June 2023, when he had already been
employed by Phuket Andaman FC for approximately 6 months. In addition, he
waited almost 2 years to bring a claim against the Club.
44. In this context, although the DRC was satisfied that the contractual relationship existed and
that the Club has repeatedly failed to respond to his correspondence (including the
statement of claim), the Chamber could not overcome the fact that there was not a single
piece of evidence in the file regarding the alleged breach and/or termination by either
party. The DRC also found it impossible to establish when the Player left the Club or
whether this departure from the contractual relationship was in fact linked to any type of
abusive behaviour towards him, such as an early release following an alleged injury.
45. Due to the (lack of) documentation on file, the Player could not meet his burden of proving
that the Club had breached the contract in any way, let alone that this breach amounted
to an unlawful termination without just cause.
46. Consequently, the only alternative left to the DRC was to establish that the Contract was
unambiguously terminated at the time when the Player signed a new contract with Phuket
Andaman FC, given that a player may only be registered with one club at a time (cf., art. 5,
par. 3 of the Regulations).
47. Put differently, the Chamber decided that it was the Player himself who terminated his
employment with the Club by signing with Phuket Andaman FC, and that he was in no way
able to demonstrate that he had a valid reason for doing so.
48. In conclusion, the Chamber found that, in any event, the Player should be awarded his
outstanding remuneration until 15 December 2022, which amounted to THB 225,000. He
would also be entitled to interest on that amount, but the Chamber was prevented from
making such award on the basis of ne ultra petita.
49. Therefore, the DRC decided that the Player’s claim should be partially accepted.
ii. Compliance with monetary decisions
50. 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.
51. 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
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REF. FPSD-15534
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.
52. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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.
53. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
54. 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
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-15534
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marcelo da Conceicao do Nascimento, is partially accepted.
2.
The Respondent, Muang Trang United, must pay to the Claimant THB 225,000 as
outstanding remuneration.
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 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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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