Labour Disputes
Texto da decisão
REF FPSD-7654
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning the player Lucas De
Carvalho Serra
BY:
Jorge GUTIERREZ, Costa Rica
CLAIMANT:
Lucas De Carvalho Serra, Brazil
Represented by Markéta Vochoska Haindlová
RESPONDENT:
FK Jonava, Lithuania
Represented by Antanas Paulauskas
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REF FPSD-7654
I. Facts of the case
1.
On 18 February 2022, the Lithuanian club, FK Jonava (hereinafter: the club or the
Respondent) sent the Brazilian player, Mr Lucas de Carvalho Serra (hereinafter: the player
or the Claimant) a letter stating as follows (hereinafter: the Letter):
“Dear Sir,
The leadership of the Club of the Professional football JONAVA, in Jonava, in Lithuania,
hereby expresses its interest to conclude labour contract with the football player, citizen of
Brasil, Mr. Lucas De Carvalho Serra, born on 1994-11-09, passport number FUS58859.
Hereby we are inviting the football player to come to location of our Club - Jonava, Lithuania
- for 30 days starting anytime from 2022-02-18 to pass professional and medical testing
and for negotiations regarding conditions of possible contract between FC Jonava and the
Player.
FC Jonava will be responsible for accomodation and feeding costs, medical service of the
Player during the course of his stay with FC Jonava football team.
Official confirmation of the player's “Free agent" status or his current club's consent to
present invitation is vital condition of further communication in the matter.
Kind regards,
FC JONAVA”
2.
According to the player, in June 2022, he underwent surgery for the reconstruction of his
Anterior Cruciate Ligament (ACL) due to an injury suffered during the trial period at the
club’s premises.
3.
On 13 September 2022, the player served the club with a notice by means of which he
inter alia: (i) acknowledged having suffered a knee ligament injury on 26 February 2022
i.e. during the trial period; and (ii) referred to the Letter and argued that the club should
be liable to cover his medical expenses for the surgical treatment and 260 sessions of
orthopaedic treatment. As a consequence, the player claimed to be entitled at the time
to BRL 15,479 and EUR 18,200 and granted the club with a 10 days’ deadline to remedy
the breach.
4.
No further correspondences were exchanged between the parties.
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II. Proceedings before FIFA
5.
On 28 September 2022, the player filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Claim of the player
6.
According to the player, the club was liable to provide him with medical service in the
context of the trail period but failed to act accordingly. As such, he submitted medical
reports and invoices and requested to be awarded “compensation” (i.e. reimbursement of
the medical expenses) in the amount of BRL 15,479 and EUR 18,200 plus interest as from
24 September 2022 until the date of effective payment.
b. Reply of the club
7.
On 24 September 2022, the club filed its reply to the player’s claim and referred to it as
“the player’s opportunistic and unfair attempt to move his financial issues in relation to his
apparent injury on the club’s shoulders and thus get unjustly enriched at the expense of the
club”.
8.
In this context, the club firstly argued that the parties had never entered into an
employment contract, hence the FIFA Dispute Resolution Chamber (DRC) lacked
competence to enter into the merits of the dispute.
9.
As to the substance, the club highlighted that the Letter was only sent to the player “in
order to express the club’s potential interest in his services and to facilitate the player’s arrival
to the club’s location and his passing through the border control of the Republic of Lithuania
since the player was to Lithuania from the country outside the European Union”. Furthermore
and in any event, as per the express wording of the Letter, the club would only liable to
cover the player’s medical expenses during the course of his stay in Lithuania.
10. The club equally explained that the player’s performance in the trial period was not
convincing, hence it decided not to hire him. Therefore, the payer left the club and never
returned. Only afterwards he reached out to claim compensation for medical expenses
without any proof of connection with the trail period, let alone with supporting evidence
of the amounts sought vis-à-vis the invoices submitted.
11. Given the foregoing, the club requested the player’s claim to be entirely dismissed.
c. Unsolicited correspondence of the player
12. On 25 October 2022, the FIFA general secretariat acknowledged receipt of the club’s reply
and informed the parties that the submission phase in the current proceedings was
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closed and no further submission would be admitted to the file (cf. art. 23 of the
Procedural Rules Governing the Football Tribunal).
13. On 3 November 2022, the player filed additional comments and documents in connection
with the reply of the club.
III. Considerations of the Dispute Resolution Chamber
a. Admissibility and jurisdiction
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect he took note that the present matter was presented to FIFA on 28 September
2022 and submitted for decision on 7 December 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.
15. 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 par. 1 lit. b) of
the Regulations on the Status and Transfer of Players (FIFA RSTP) (October 2022 edition),
the Dispute Resolution Chamber is – in principle – competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension
between a Brazilian player and a Lithuanian club.
16. At this point, the Single Judge initially recalled that the player filed additional comments
on 3 November 2022, once the submission phase of the present proceedings was already
closed, and without being invited to do so by the FIFA general secretariat. As a
consequence, the Single Judge referred to art. 23, par. 1 of the Procedural Rules and
emphasized that parties to the proceedings are not authorised to supplement or amend
their submissions or requests for relief or produce new evidence once the submission
phase is closed. Therefore, the Single Judge established that said submission was
inadmissible.
17. In continuation, the Single Judge acknowledged that the club challenged FIFA’s
competence to hear the dispute on the basis that there is no employment relationship
between the parties, therefore it does not constitute an employment-related dispute
under the scope of the FIFA RSTP.
18. In this respect, the Single Judge pointed out that the jurisprudence of the FIFA Football
Tribunal and the Court of Arbitration for Sport (CAS) establishes that the notion of
employment-related dispute includes a wider range of disputes than those arising out of
employment agreements (cf. Commentary on the RSTP – Edition 2021, p. 363).
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19. Consequently, the Single Judge determined that the case at stake involves an
“employment-related” matter of international dimension in accordance with art. 22, par 1,
lit. b), of the FIFA RSTP (October 2022 edition), insofar as it pertains to liabilities connected
to an alleged relationship maintained between the parties during a certain period. What
is more, the assessment as to whether there are any outstanding monies pertains to the
substance of the matter, hence does not affect the admissibility of the claim.
20. Therefore, the Single Judge decided that the DRC and, specifically, himself as its Single
Judge, has jurisdiction to hear the dispute at stake.
21. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 28 September 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
22. 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 he 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
23. The 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 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
24. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim for
“compensation for medical expenses” lodged by the player against the club.
25. In particular, the Single Judge outlined that the player claims to be entitled to
reimbursement of all medical expenses incurred for his knee injury based on the Letter.
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The club, on the other hand, rebutted such allegations and argued that no payment was
owed to the player.
26. In this context, the Single Judge turned his attention to the documentation on file and
initially noted that it remained undisputed between the parties that no employment
relationship was ever initiated between them, entailing that their relationship was limited
to the trial period of February 2022.
27. In parallel, the Single Judge was also observant that – despite alleging that he suffered his
injury on 26 February 2022 – the player did not advance any evidence in this regard. In
particular, the player did not demonstrate that the accident in fact happened in the club’s
premises or during the trial period, let alone that he had ever reached out to the club in
order to seek medical assistance. The player could not prove either that the medical
condition was ever notified to the club.
28. In addition to the above, the Single Judge also concurred with the club’s argumentation in
the sense that the medical documentation submitted by the player was not conclusive as
regards to the date of the injury and/or the relevant factual framework. On the contrary,
the invoices corroborate that the player suffered an injury however with no reference to
how and when.
29. In view of the foregoing, the Single Judge was satisfied with the conclusion that the player
could not meet his burden of proof to establish the nexus between his injury and the trial
period with the club (cf. art. 13 par. 5 of the Procedural Rules). In parallel, the Single Judge
considered that he could also not substantiate his position that the club should be
anyhow responsible for his surgical and treatment costs vis-à-vis the express wording and
the legal nature of the Letter.
30. In light of the foregoing, the Single Judge concluded that the player’s claim should be
rejected.
d. Costs
31. 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.
32. 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.
33. Lastly, the Single Judge rejected 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, Lucas de Carvalho Serra, is admissible and 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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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