Dispute Resolution Chamber
Texto da decisão
REF FPSD-2010
Decision of the
Dispute Resolution Chamber
passed on 15 July 2021
regarding an employment-related dispute concerning the player Camilo da Silva
Sanvezzo
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stéphane Burchkalter (France), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Persatuan Bolasepak Negeri Johor, Malaysia
Represented by Ariel Reck
RESPONDENT 1:
Camilo da Silva Sanvezzo, Brazil
Represented by Pedro Macieirinha
RESPONDENT 2:
Mazatlan FC, Mexico
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REF FPSD-2010
I.
FACTS OF THE CASE
1.
On 13 August 2020, the Malaysian club, Persatuan Bolasepak Negeri Johor (hereinafter:
Claimant), and the Brazilian player, Camilo da Silva Sanvezzo (hereinafter: Respondent 1))
signed a pre-contract agreement (hereinafter: pre-contract) valid as from December 2020
to 30 November 2022.
2.
In clause 2 of the pre-contract, the parties, inter alia, agreed on the following terms to be
included in the definitive future employment agreement:
(A) Duration: 7 December 2020 until 30 November 2022.
2.1.1. First year: USD 1,125,000 per annum (7 December 2020 -30 November 2021) paid
as follows:
“Monthly salary – USD 50, 000 (the December 2020 salary will remain at USD 50,000 even
though the Player will not arrive in Malaysia until after I December 2020)
Signing bonus – USD 525,000 to be paid as per the date schedule below:
USD 75,000 on 30 September 2020
USD 75,000 on 15 December 2020
USD 50,000 on 1 January 2021
USD 62,500 on 1 February 2021
USD 75,000 on 1 March 2021
USD 62,500 on 1 June 2021
USD 75,000 on 1 July 2021
USD 50,000 on 1 October 2021
2.1.2. Second year: USD$1,025,000 per annum (I December 2021 - 30 November 2022)
paid as follows:
Monthly salary - USD 54,167
Signing bonus - USD 375,000 to be paid as per the date schedule below:
USD 50,000 on 1 January 2022
USD 62,500 on 1 February 2022
USD 75,000 on 1 March 2022
USD 62,500 on 1 June 2022
USD 7,000 on 1 July 2022
USD 50,000 on 1 October 2022”
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II.
PROCEEDINGS BEFORE FIFA
3.
On 11 March 2021, the Claimant filed the claim at hand before FIFA. In continuation, a
brief summary of the position of the parties is detailed.
a.
The claim of the Claimant
4.
The Claimant indicated that in order to maintain the condition of Respondent 1 until his
arrival in Malaysia, the parties agreed that the he would find temporary employment with
another club until 7 December 2020.
5.
According to the Claimant, Respondent 1 found temporary employment with the Mexican
club, Mazatlán FC (hereinafter: Respondent 2) with which he concluded an employment
sports contract on 7 August 2020.
6.
The Claimant alleged that the Respondent 1’s agent confirmed via WhatsApp, that he
would only be signed with Respondent 2 until November 2020.
7.
In September 2020, according to the Claimant, it paid the amount of USD 75, 000 to
Respondent 1 as the first instalment of the signing bonus agreed to in clause 2.1.(a) of the
pre-contract.
8.
Additionally, the Claimant indicated that within the same period, the owner and coach of
Respondent 2 confirmed to the media that Respondent 1 was joining its club in December
2020.
9.
Moreover, the Claimant stated that after the media announcement, Respondent 1’s agent
sent the following message to the Claimant via WhatsApp “good move that you disclosed
already the signing of Camilo, because Mazatlan has already made 2 renewal offers and we
rejected both but didn’t want to reveal our deal before you did”.
10.
The Claimant further stipulated that in November 2020, Respondent 2 disclosed on social
media that it renewed the contract of Respondent 1 until 2022.
11.
Accordingly, on 12 November 2020, the Claimant received a letter from Respondent 1’s
representative, informing it that the Respondent 1 signed an employment contract with
Respondent 2, valid for the period between 1 January 2021 until ‘the last match in 2022’
and further rejecting the pre-contract offer of the Claimant by stipulating the following:
“the Pre-Agreement Contract Offer stated that:
This Agreement shall cover the period from the date of execution until the Player undertakes
a pre-contract medical test ("the Medical") prior to entering into the Contract;"
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And "This Agreement shall contain the agreed terms for the Contract, should the Player
successfully pass the Medical;"
This clauses make the Pre-Agreement Contract Offer null and void. All because it disrespects
article 18. Nr. 4 of RSTP of FIFA, according to which "The validity of a contract may not be
made subject to a successful medical examination and/or the grant of a work permit". In
conclusion, the Pre-Contract Agreement Offer made by PERSATUAN BOLASEPAK NEGERI
JOHOR is rejected by Mr. Camilo da Silva Sanvezzo.”
12.
On 23 December 2020, Respondent 1 sent a further correspondence to the Claimant
reiterating his position as detailed in his letter dated 12 November 2020 and in the same
letter informing the Claimant that he was willing to discuss the matter telephonically,
however this never transpired.
13.
The Claimant indicated that Respondent 2 failed to reply to any of its correspondence.
14.
On 11 March 2021, the Claimant lodged a claim against Respondent 1 and Respondent 2
at FIFA requesting that the DRC.
(a)
(b)
(c)
(d)
(e)
condemn Respondent 1 for breach of contract and awarding to the Claimant as
compensation for breach of contract the amount of USD 2,150,000 which
corresponds to the total value of the pre-contract as detailed in par.3 above, or
alternatively an amount the DRC considers appropriate, plus 5% interest p.a. from
12 November 2020;
declaring Respondent 2 jointly liable for the payment of the compensation;
sanctioning Respondent 1 with a four month suspension from football;
sanctioning Respondent 2 with a transfer ban for two consecutive windows; and
imposing the costs of these procedures to the Respondents
b.
Position of Respondent 1
15.
In its reply to the claim, Respondent 1 confirmed that on 7 August 2020, he concluded and
signed an employment sports contract with Respondent 2.
16.
Respondent 1 indicated that he informed the Claimant of the temporary employment
contract with Respondent 2, a construction with which the Claimant agreed.
17.
According to Respondent 1, he never received payment in the amount of USD 75,000 as
agreed to in clause 2.1. (a) of the pre-contract and as indicated by the Claimant.
18.
On 6 November 2020, Respondent 1 signed an amendment to the initial employment sports
contract concluded with Respondent 2.
19.
On 12 November 2020, Respondent 1 sent a letter to the Claimant declaring that the precontract signed, “was only an offer and that he rejected such offer and according to the
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principle of freedom of contract, everyone is free to enter in contract negotiations and to
terminate them again without incurring any liability.”
20.
Moreover, Respondent 1 indicated that the pre-contract stated that: "This Agreement shall
cover the period from the date of execution until the Player undertakes a pre-contract
medical test ("the Medical") prior to entering into the Contract; and this Agreement shall
contain the agreed terms for the Contract, should the Player successfully pass the Medical.”
21.
In light of the above, Respondent 1 claimed that the pre-contract is null and void “because
it disrespects article 18. 4 of RSTP of FIFA, according to which the validity of a contract may
not be made subject to a successful medical examination and/or the grant of a work
permit".
22.
Additionally, Respondent 1 highlighted the following regarding the pre-contract:
“it was of a provisory nature and does not represent a Contract itself in term of FIFA
Regulations. In reality, the essential elements of the contract, in particular the willingness
to create a legally binding agreement and establish legal relations to a counterparty, were
not present in the case at hand and, therefore, pre-contract be considered as binding nor
can the Claimant be entitled to engage the Respondent on a permanent basis, by offering
him an official contract.”
23.
On 8 December 2020, the Claimant sent to Respondent 1 a letter, stipulating the following:
“Accordingly, we formally summon you to offer us your position on the matter in the next
five natural days. In particular to confirm or deny whether an employment contract was
signed or not between Mazatlán and the Player valid until 2022 and to provide us with your
explanation for not honoring the agreement with Johor and not being at the club on the
designated date.”
24.
In reply to the foregoing letter, the Respondent 1 reiterated the content of his letter dated
12 November 2020.
25.
Furthermore, Respondent 1 indicated that he was not aware of any conversation that his
agent might have had with the Claimant because he can talk on his own behalf or his
lawyer as mandated. Accordingly, he “rejects any conversation that could have been made
between the Claimant and the player's agent.”
26.
Respondent 1 highlighted that, a further condition of the pre-contract agreement was that
he had to be transferred from his former club for free. In this context, he held that his
former club on 7 December 2020 was Respondent 2 and therefore, "Mazatlán FC" should
have the right to claim against the Claimant payment of the federative and economic rights
for the Transfer of the Player.”
27.
In conclusion, Respondent 1 requested the following relief:
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(a)
(b)
(c)
the claim shall be rejected;
that Respondent 1 shall not be condemned for breach of contract and shall not
be sanctioned; and
that the costs shall be imposed to the Claimant.
c.
Position of the Respondent 2
28.
In its reply to the claim, Respondent 2 indicated that on 7 August 2021, it concluded an
employment contract with Respondent 1, valid from 1 August 2020 until the last game of
the “Torneo Apertura 2020” tournament, which was played on 13 December 2020.
29.
Moreover, it was not aware that Respondent 1 on 13 August 2021 concluded a pre-contract
with the Claimant, prior to the claim being filed.
30.
Furthermore, Respondent 2 confirmed that on 6 November 2020, it amended the
employment agreement with Respondent 1, which amendment was valid from 1 January
2021 until the last game of the “Apertura 2022” tournament.
31.
In this context, Respondent 2 emphasised the following:
“THE PLAYER, AT THE DATE OF SIGNING THE AGREEMENT, AS WELL AS AT THE DATE OF
THE SIGNING OF THE AMENDMENT AGREEMENT DID NOT HAVE, AND HAS NOT
SUBSCRIBED, ANY LABOR OR ANY OTHER TYPE OF COMMITMENT WITH A THIRD CLUB,
NATIONAL OR FOREIGN, THAT BINDED HIM OR COULD BIND HIM FOR THE DURATION OF
THE AGREEMENT- AS AMENDED BY THE AMENDMENT AGREEMENT- RELEASING THE
CLUB FROM ANY RESPONSIBILITY IN THIS REGARD.”
32.
According to Respondent 2, the Claimant “in bad faith and in a completely illegal manner,
poorly tries to hold this party jointly liable for causes that was never known to this
Respondent.”
33.
The requests for relief of Respondent 2, were that:
(a)
(b)
the FIFA DRC completely dismiss the claim raised by the Claimant as it should
undeniably be rendered notoriously inadmissible;
in the unlikely event that the FIFA DRC considers that the claim filed by the
Claimant is not unreasonable and, therefore, it is admissible, to absolve Respondent
2 since, it shouldn’t be rendered jointly and/or severally liable since:
(i)
(ii)
it was impossible for it to be aware of the existence of the pre- contract; and
Respondent 1 expressly absolved and/or released this representation as per the
Employment Agreement and the Amendment Agreement, respectively.
(c)
the Claimant is ordered to pay the legal costs and all other expenses of these
proceedings.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
34.
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 submitted to FIFA on 11 March 2021 and presented
for decision on 15 July 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
35.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (February 2021 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 Malaysian club,
a Brazilian player and a Mexican club.
36.
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 Player (February 2021 edition in
force in the date of decision), and considering that the present claim was lodged on 11
March 2021, the February 2021 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b.
Burden of proof
37.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
38.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
39.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
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documentation on file. However, the DRC 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
40.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant and Respondent 1 on 13 August 2020
concluded a pre-contract which was conditional upon the passing of a medical examination
and the signing of a definitive contract, this would entitle Respondent 1, inter alia, to a
monthly remuneration of USD 50,000, plus a signing bonus payable in instalments with the
first instalment of USD 75,000 being payable on 30 September 2020.
41.
The Chamber observed that the Claimant lodged a claim against Respondent 1 before FIFA,
maintaining that Respondent 1 breached the terms of the pre-contact and therefore should
pay the amount of USD 2,150,000 to the Claimant, corresponding to the total value of the
pre-contract and that Respondent 2 should be held jointly liable for payment of the
compensation.
42.
The DRC noted that the Claimant’s claim is based on the pre-contract concluded between
the parties, which, in its opinion, is to be considered valid and binding and that according
to the Claimant, Respondent 1 did not fulfil his contractual obligations by not signing a
definitive contract and not rendering his services to the Claimant in the period as from 8
December 2020.
43.
The Chamber further noted that Respondent 1, as opposed to the Claimant, indicated no
legally binding employment contract had come into effect between the Claimant and
Respondent 1, as the parties merely signed a “pre-contract”, which should be declared null
and void, since it was subject to certain conditions, i.e. successful passing of a medical
examination. Moreover, that Respondent 2 indicated that it was not aware that Respondent
1 on 13 August 2020 concluded a pre-contract with the Claimant, prior to the present
claim being lodged at FIFA.
44.
In this context, the Chamber acknowledged that its task was to determine whether the precontract signed between the Claimant and Respondent 1 established a valid and binding
employment contract and if Respondent 1 was in breach of the terms of the said precontract.
45.
Having stated the aforementioned, the Chamber wished to highlight that in order for a
contract to be considered as valid and binding, apart from the signature of both the
employer and the employee, it should contain the essentialia negotii of an employment
contract, such as the parties to the contract, their role, the duration of the employment
relationship, the remuneration.
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46.
After careful study of the contract presented by the Claimant, the Chamber concluded that
all such essential elements are included in the pre-contract, which is therefore to be
considered a valid and binding contract.
47.
However, the Chamber further established that the pre-contract was only valid until the
signing of an employment contract. The DRC observed from the wording of the precontract, that the parties intended to conclude a definitive contract in the future i.e.
December 2020 and furthermore that such definitive contract would only be signed upon
the conclusion of a successful medical examination.
48.
In this regard, the members of the Chamber noted that the Claimant failed to contact
Respondent 1 to undertake the medical examination as contractually required.
49.
Moreover, the DRC took note that in terms of clause 2.1.2 of the pre-contract, the parties
agreed that an amount of USD 75,000 were payable to Respondent 1 as part of the
signing fee on 30 September 2020, which the Claimant alleged to have paid however
Respondent 1 denied receiving such a payment. In this regard, the Claimant submitted an
invoice and a remittance document as proof of payment; however, the beneficiary
indicated in these documents were not Respondent 1.
50.
Having evaluated the above information, the Chamber therefore held that the previously
mentioned documents are not conclusive documentary evidence, on the basis of which it
could established that the said amount was paid to Respondent 1. Moreover, after having
evaluated the documentation and argumentation on file, the, members of the Chamber
came to the unanimous conclusion that the Claimant by not paying the agreed signing fee
of USD 75,000 on the due date, also failed to respect its financial obligations as per the
pre-contract.
51.
Following the foregoing circumstances, the DRC concluded that Respondent 1 did not
breach the terms of the pre-contract and that – in view of the lack of an invitation for a
medical examination – for reasons that cannot be attributed to Respondent 1, no definitive
employment contract was signed between the parties.
ii. Consequences
52.
Having stated the above, the members of the Chamber proceeded to reject the Claimant’s
claim.
d.
53.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
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54.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
55.
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, Persatuan Bolasepak Negeri Johor, is rejected.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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