Labour Disputes
Texto da decisão
REF FPSD-6724
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning the player
Johnathan Aparecido Da Silva Vilela
BY:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovakia), member
Jerome Perlemuter (France), member
CLAIMANT:
Johnathan Aparecido Da Silva Vilela, Brazil
Represented by Pinheiro Advogados Associados
RESPONDENT:
Tianjin Jinmen Tiger FC, China
Represented by Llinks Law Offices
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REF FPSD-6724
I. Facts of the case
1.
On 1 January 2018, the Brazilian player, Johnathan Aparecido Da Silva Vilela (hereinafter:
the Claimant or the player), and the Chinese club, Tianjin Jinmen Tiger FC (hereinafter: the
Respondent or the club) signed an employment contract (hereinafter: the Old Contract) valid
as from said date until 31 December 2020.
2.
Contextually to the expiry of Old Contract, the Respondent sent a draft of a new
employment contract (hereinafter: the Draft Contract) to the Claimant for the duration of
two further seasons, namely as from 1 January 2021 until 31 December 2022.
3.
Pursuant to the Draft Contract, the Respondent undertook to pay the Claimant a total
salary of EUR 5,406,924.00 for the season 2021, broken down into 12 monthly instalments
of EUR 375,483.83 plus a one-time payment of EUR 901,154 to be paid on 28 February
2021.
4.
Furthermore, for the season 2022, the Claimant would be entitled to a total salary of EUR
5,406,924.00, broken down into 12 monthly instalments of EUR 450,577.
5.
On 1 January 2021, the Claimant signed an employment contract (hereinafter: the New
Contract) with another Chinese club, Chengdu Rongcheng FC, to be valid as from 1 January
2021 until 31 December 2022.
6.
Moreover, during the duration of the New Contract, the Claimant moved on loan to the
Korean club, Gwangju FC, for the period between 9 July 2021 until 31 December 2021.
7.
On 2 June 2022, the Claimant sent an email to the Respondent putting the latter in default
of EUR 7,813,848.00 and explaining that said amount would correspond to the sum that
the Claimant should have had received from the Respondent pursuant to the Draft
Contract minus the salary paid to the player under the New Contract.
II. Proceedings before FIFA
8.
On 14 July 2022, 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.
In his claim, the player argued that the parties negotiated the renew of the employment
agreement previously signed (the Old Contract) and that only at the last moment the
Respondent withdrew from the renewal, without however informing the Claimant nor
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carrying out the necessary procedures for the return of the latter in China, such as the
visa.
10. As a consequence, the Claimant stated having remained without any alternative but to
sign the New Contract with Chengdu Rongcheng FC on 1 January 2021.
11. Accordingly, the Claimant accused the Respondent of having failed to comply with the
basic principles of loyalty and good faith at the time of negotiation.
12. In particular, the Claimant argued that the negotiations conducted by the Respondent for
a renewal of the employment agreement generated in the Claimant concrete
expectations that were disattended after the expiration of the Old Contract, hence the
Claimant should be compensated for the loss of potential remuneration he could have
earned under the Draft Contract.
13. In this respect, the Claimant also added that he complied with his duty to mitigate the
suffered loss but, since he could not mitigate it in toto, he shall now be entitled to the
positive interest, namely the difference between the amount he would have earned if the
Respondent concluded the renewal and the amount he accepted to earn as mitigation
under the New Contract.
14. The requests for relief of the Claimant were the following:
“The Club must indemnify the Player for the payment of the salary difference equivalent to the
amount that the Player would receive if the Renewal Agreement had been effectively fulfilled,
in the amount of EUR 10,813,848.00 and what he will actually receive in his current contract
with a new club, in the amount of EUR 3,000,000.00, totalling EUR 7,813,848.00 referring to
the 2021 and 2022 seasons, plus interest of 5% per year from January 2021 until due payment”.
b. Position of the Respondent
15. The Respondent failed to timely submit its position to the claim within the deadline
granted by the FIFA administration.
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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 14 July 2022 and submitted
for decision on 24 November 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 14 July 2022, the July 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
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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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that there does not seem to be any disagreement between the
parties as to the fact that the terms of the Draft Contract were not performed, and that
the Draft Contract was ever signed by both parties.
7.
Accordingly, the Chamber acknowledged that the central issue to the present dispute is
not to determine whether the Draft Contract, unsigned by the Respondent, had
established a valid and binding employment contract between the parties but rather to
verify whether the Claimant had effectively suffered any damage from the non-renewal
of the Old Contract and, in the affirmative, is such damage should be compensated.
8.
In this context, the Chamber took note of the Claimant’s argument according to which the
Respondent’s behaviour, namely the dispatch of the Draft Contract, shall be interpreted
as a clear sign of its will to negotiate a renewal of the Old Contract, which in turn
generated concrete expectations on the Claimant that a new agreement would have been
signed.
9.
In this respect, the Chamber observed that the Claimant is requesting to be compensated
for the damage allegedly suffered due to the non-renewal of the Old Contract and that
supposedly led the player to conclude another employment agreement with a different
club (i.e., the New Contract).
10. Notwithstanding the above, the members of the Chamber were not convinced by the
player’s argument.
11. In particular, in the Chamber’s view, the Claimant is requesting to be compensated for a
loss that appears to be only virtual, namely as the parties have never concluded the
contractual renewal of their employment relationship, nor they have apparently entered
into any concrete (or at least documented) form of bilateral negotiation as there is only
the Draft Contract, and nothing else, on file.
12. As a matter of fact, the Chamber observed that no evidence of contractual offers were
provided by the Claimant, nor the latter was able to corroborate his allegations according
to which the negotiations with the Respondent had effectively reached a point at which
the expectation loss could be potentially justified. On this note, the fact that the Draft
Contract was sent is not tantamount, in the DRCs view, to determine that the negotiations
had reached a level so high as to generate the legitimate expectation on the Claimant that
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a new employment relationship would start, and therefore that the Respondent could not
then withdraw his position. As such, under the doctrine of estoppel, the parties had not
sufficiently engaged each other to a point were they were estopped from changing their
respective positions – as both effectively did.
13. Accordingly, the DRC determined that the claim of the player has no legal ground nor
contractual basis, hence it shall be rejected in its entirety.
d. Costs
14. 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.
15. 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.
16. 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, Johnathan Aparecido Da Silva Vilela, is rejected.
2. 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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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