Labour Disputes
Texto da decisão
REF. FPSD-13022
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Felipe Da Silva Amorim
BY:
Frans DE WEGER (The Netherlands), Chairperson
Tarek BRAUER (Germany), member
Johan VAN GAALEN (South Africa), member
CLAIMANT:
Felipe Da Silva Amorim, Brazil
Represented by Felipe Orsolini Pinto de Souza
RESPONDENT:
Hyderabad FC, India
Represented by Hemant Raj Phalpher
pg. 2
REF. FPSD-13022
I. Facts of the case
1.
On 28 July 2023, the Brazilian player Felipe da Silva Amorim (hereinafter: the Claimant) and
the Indian club Hyderabad FC (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the Contract), effective from 1 August 2023 until 31 May 2024.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia a monthly net salary of USD 2,500.
3.
On the same date, the Claimant and the Respondent (hereinafter jointly referred to as: the
parties) signed a further document entitled “the Amendment”, pursuant to which the
Respondent undertook to pay the Claimant an additional monthly remuneration of USD
19,500.
4.
By correspondence dated 15 November 2023, the Claimant put the Respondent in default
of payment of USD 44,000 setting a time limit expiring on 30 November 2023 in order to
remedy the default.
5.
On 4 December 2023, the Claimant notified the Respondent of the unilateral termination
of the Contract, effective from 1 December 2023.
6.
On the same date, the Claimant signed a new employment contract with the Thai club
Karntharuea FC, valid from 1 January 2024 until 30 June 2024.
7.
Pursuant to the player’s new employment contract, he is entitled to a monthly salary of
THB 250,000, corresponding to approx. USD 7,072.
II. Proceedings before FIFA
8.
On 12 December 2023 the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
According to the Claimant, the Respondent failed to comply with its financial obligations
under the Contract and the Amendment, namely by not paying the equivalent of two
monthly salaries.
10. In this respect, the Claimant held having had just cause to prematurely end their
employment relationship due to the overdue payables by the Respondent, hence the latter
shall pay a compensation.
pg. 3
REF. FPSD-13022
11. The requests for relief of the Claimant, accordingly, were the following:
-
USD 44,000 as outstanding salaries plus interests of 5% p.a. as from the due date of each
payment on 10 October 2023 and 10 November 2023;
-
USD 154,000 as compensation equal to the residual value of the contract that was
prematurely terminated plus interests of 5% p.a. as from 01 December 2023;
-
USD 66,000 as additional compensation plus interests of 5% p.a. as from as from 01
December 2023.
b. Position of the Respondent
12. In its reply, the Respondent acknowledged the existence of outstanding salaries at the date
of termination amounting to USD 44,000.
13. Furthermore, the Respondent undertook to pay the Claimant the relevant compensation
for the premature termination of the Contract but pleaded that this shall be reduced in
light of the corresponding value of the new employment contract signed by the Claimant.
14. Finally, the Respondent requested to reject any further request by the Claimant for
additional compensation due to the circumstances and financial issues currently suffered
by the Respondent.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 12 December 2023 and
submitted for decision on 22 February 2024. Taking into account the wording of art. 34 of
the March 2023 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.
16. 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 (February 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
pg. 4
REF. FPSD-13022
employment-related dispute with an international dimension between a Brazilian player
and an Indian club.
17. 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 (February 2024 edition), and
considering that the present claim was lodged on 12 December 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
18. 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
19. 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.
i. Main legal discussion and considerations
20. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that on 28 July 2023, the Claimant and the Respondent
stipulated an employment agreement valid until 31 May 2024. The Chamber equally noted
that on the same date the Parties agreed on an “Amendment” of the Contract pursuant to
which additional amounts would be granted to the Claimant.
21. In continuation, the Chamber observed that on 1 December 2023 the Claimant unilaterally
terminated the Contract, allegedly because of the Respondent’s failure to comply with the
financial obligations set under the abovementioned agreements.
22. In this this respect, the Chamber noted that the Respondent acknowledged the existence
of outstanding amounts in favour of the Claimant at the time of the termination and, thus,
accepted the latter’s allegations.
pg. 5
REF. FPSD-13022
23. Accordingly, the Chamber acknowledged that its task was to determine, based on the
evidence at its disposal, the amount of the said outstanding sums and whether the formal
pre-requisites of art. 14bis of the Regulations had in fact been fulfilled.
24. In continuation the Chamber referred to the wording of art. 14bis par. 1 of the Regulations,
in accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate his
contract, provided that he has put the debtor club in default in writing and has granted a
deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).
25. In this context, the Chamber noted that the Claimant claims having not received his
remuneration corresponding to the salaries due for September 2023 and October 2023.
Furthermore, the Chamber noted that the Claimant provided written evidence of having
put the Respondent in default on 15 November 2023, i.e., at least 15 days before
unilaterally terminating the Contract on 1 December 2023.
26. Furthermore, the Chamber 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, the Respondent failed to provide any evidence in this
regard and rather acknowledged the existence and consistency of the outstanding
amounts claimed by the Claimant.
27. With all the foregoing in mind, the Chamber concluded that the Claimant had a just cause
to unilaterally terminate the contract on 1 December 2023, based on art. 14bis of the
Regulations.
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. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 2 salaries under
the contract, amounting to USD 44,000 net.
30. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. USD
44,000 (i.e. 2 times USD 22,000).
pg. 6
REF. FPSD-13022
31. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter 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.
32. Having stated the above, 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.
33. 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.
34. 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 non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
35. 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. Consequently, the Chamber
concluded that the amount of USD 154,000 net (i.e. the residual value) serves as the basis
for the determination of the amount of compensation for breach of contract.
36. 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.
pg. 7
REF. FPSD-13022
37. Indeed, the player found employment with the Thai club Karntharuea FC. In accordance
with the pertinent employment contract, the player was entitled to approximately USD
7,072 per month. Therefore, the Chamber concluded that the player mitigated his damages
in the total amount of USD 49,504, that is, 7 times USD 7,072.
38. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
39. In this respect, the DRC decided to award the amount of additional compensation of USD
USD 66,000, i.e. three times the monthly remuneration of the player. Nevertheless, the
Chamber wished to remark that, as per the last sentence of art. 17 par. 1 lit. ii) of the
Regulations, the overall compensation may never exceed the rest value of the prematurely
terminated contract.
40. 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 USD 154,000 to the player (i.e. USD 154,000 minus USD 49,504 plus USD 49,504), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
41. 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 1 December 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
42. 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.
43. 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.
pg. 8
REF. FPSD-13022
44. 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.
45. 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.
46. 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
47. 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.
48. 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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-13022
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Felipe Da Silva Amorim, is accepted.
2.
The Respondent, Hyderabad FC, must pay to the Claimant the following amount(s):
USD 44,000 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of USD 22,000 as from 11 October 2023 until
the date of effective payment;
- 5% interest p.a. over the amount of USD 22,000 as from 11 November 2023 until
the date of effective payment.
USD 154,000 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 1 December 2023 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-13022
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 11