Labour Disputes
Texto da decisão
REF FPSD-6582
Decision of the
Dispute Resolution Chamber
passed on 14 September 2022
regarding an employment-related dispute concerning the player Douglas da Silva de Paula Aguiar
BY:
Gonzalo DE MEDINILLA (Spain), DRC Judge
CLAIMANT:
Douglas da Silva de Paula Aguiar, Brazil
RESPONDENT:
Salmiya SC, Kuwait
REF FPSD-6582
I.
Facts
1. On 27 April 2021, the player Douglas da Silva de Paula Aguiar and Salmiya SC concluded an
employment contract, valid as from 1 August 2021 until 30 June 2022.
2. According to art. 4 of the contract, the player was entitled to USD 150,000 for the entire duration of
the contract, paid in instalments of USD 13,636 each, from August 2021 to June 2021.
3. Art. 7 of the contract stipulated that the club will provide a furnished apartment to the player, or pay
to the player KWD as monthly allowance.
4. On 12 November 2021, the club issued the following letter:
“This is to certify that SALMIYA SPORTING CLUB will pay a total amount of KD 2,400 (…) Mr. Douglas Da
Silva De Paula (…).
This amounts includes-of the total costs the surgery and residence in Spain from 15/11/2021 to
23/11/2021.”
5. On 31 May 2022, the player sent a default notice to the club requesting the payment of the following
amounts within 15 days:
- KWD 2,400 for the costs of surgery and residence in Spain from 15 November 2021 until 23
November 2021, plus 5% interest p.a.
- USD 81,816,for his salaries from December 2021 until May 2022 (i.e. 13,636*6), plus 5% interest
p.a.
6. On 20 June 2022, the player sent a termination letter, while referring to the contents of his default
notice.
7. The player declared that he subsequently remained unemployed
REF FPSD-6582
II.
Proceedings before FIFA
1. On 1 July 2022, the player Douglas da Silva de Paula Aguiar lodged a claim before for outstanding
remuneration and breach of contract without just cause and requested the payment of the following
amounts:
- KWD 2,400 for the costs of surgery and residence in Spain from 15 November 2021 until 23
November 2021, plus 5% interest p.a.
- USD 81,816, for his salaries from December 2021 until May 2022 (i.e. 13,636*6), plus 5% interest
p.a.;
- USD 13,636 as compensation and corresponding to the salary of June 2022.
2. In its reply, the club explained that the player was injured in August 2021 and therefore was “no
longer able to carry out his contract”.
3. The club stated that, in accordance with art. 15 of the “Regulations on the Status and Transfer of
Players”, the club “the club must pay the player His full basic salary for the first two months
immediately after the injury, then 50% of his basic salary for the following two months, then 25% of
his basic salary for the next two months”.
4. As a result, the club explained that the player was paid as follows:
- USD 13,636 paid on 31 October for the salary of August 2021 (full salary)
- USD 13,636 paid on 30 November for the salary of September 2021 (full salary);
- 50% of the salary for October and November 2021, paid on 26 April 2022 (i.e. USD 13,636 in
total);
- 25% of the salary for December, January, February and March (i.e. USD 13,636 in total).
5. The club considered that the player is still entitled to 25% of his salaries from April, May and June
2022.
6. The club explained that it paid the amount of KWD 2,484 for housing.
7. In this respect, the club provided a copy of a “Furnished Apartment Rental Contract” to be used by
the player, with a monthly rent of KWD 700 (note: the rental agreement appears to be unsigned)
8. The club explained that the player was only entitled to KWD 500 per month for housing. Given that
the club rented and apartment for KWD, the club considered that the player incurred in a debt of
KWD 200 per month for the period between September 2021 until May 2022 (i.e. 9 months), for the
total amount of KWD 1,800.
9. The club provided two receipts in Arabic.
10. The club requested the payment of KWD 184 “for car damage value” and KWD for an amount
received on 31 May 2022.
11. In his replica, the Claimant explained that he is not aware of the regulations mentioned by the club,
as he only know the Regulations on the Status and Transfer of Players issued by FIFA.
REF FPSD-6582
12. The Claimant argues that, as per the jurisprudence of FIFA, an injury cannot be a valid reason to
reduce his salary.
13. The Claimant denied that the Club provided a furnished housing at a value of KWD 700 and rejected
any debt in this regard.
14. The Claimant insisted in the initially claimed amounts.
15. In its duplica, the Respondent explained that it notified the player about the application of the
corresponding procedures following his injury.
16. The Respondent noted that “the player also denies receiving the amount of 500 Kuwaiti dinars,
although there is a receipt notice signed by the player himself confirming the correct receipt of the
amount.”
17. The Respondent requested the Chamber “not to calculate any amounts for the player except for only
25% of the salaries for the months April, May, June 2022, which is the remaining period of the
player's contract”
REF FPSD-6582
III.
Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 1 July 2022 and submitted for decision on 14
September 2022. Taking into account the wording of art. 34 of the June 2021 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 Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 2022 edition), he 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 Kuwaiti club.
3.
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 (June 2022 edition), and considering that the
present claim was lodged on 1 July 2022, the June 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 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.
5.
Merits of the dispute
His 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 he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
REF FPSD-6582
6.
The Single Judge first noted that the parties concluded an employment contract valid as from 1
August 2021 until 30 June 2022.
7.
Subsequently, the Single Judge observed that the player lodged a claim for breach of contract
without just cause, arguing that, after having put the club in default, he terminated the contract on
20 June 2022. In particular, the player argued that he did not receive his salaries between December
2021 until May 2022.
8.
On the other hand, the Single Judge took note of the position of the Respondent, according to which
in accordance with art. 15 of the “Regulations on the Status and Transfer of Players”, it withheld the
player’s salary due to his injury.
9.
In view of the above, the Single Judge first wished to underline that art. 15 of the FIFA Regulations
on the Status and Transfer of Players refers to the termination of a contract with sporting just cause,
and is unrelated to the arguments mentioned by the club.
10. In addition, and should the reference made by the club to art. 15 is in fact related to a local
regulation, the Single Judge considered that the club should have provided a copy of said
regulations.
11. Under any circumstance, and regardless of the above, the Single Judge considered that the
reduction of a player’s salary due to an injury appears to be an abusive behaviour and cannot be
accepted. The Single Judge underlined that, in accordance with the jurisprudence of the Football
Tribunal club, the economic consequences of a player’s injury shall be managed with a proper
insurance policy.
12. As a result, the Single Judge established that the arguments of the club can only be rejected, and
underlined that the player shall receive his remuneration in full and as contractually agreed.
13. In addition, the Single Judge observed that the club did not provide any evidence of payment for the
salaries.
14. Consequently, the Chamber established that the club seriously neglected its financial obligations
towards the player as per the contract, and therefore decided that the player terminated the
contract with just cause.
ii. Consequences
15. Having stated the above, the Single Judge turned his attention to the question of the consequences
of such unjustified breach of contract committed by the Respondent.
16. First of all, and before into entering into the consideration of the payable compensation, the Single
Judge recalled that the player is entitled to the payment of his outstanding dues until the date of
termination of the contract.
REF FPSD-6582
17. In this regard, and as noted above, in accordance with the principle of pacta sunt servanda, the player
is entitled to the outstanding amount of USD 81,816, for his salaries from December 2021 until May
2022 (i.e. 13,636*6).
18. The Single Judge further confirmed that the player is also entitled to KWD 2,400 for the costs of
surgery and residence in Spain, as acknowledged by the club in its statement of 12 November 2021.
19. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the Single Judge decided to award 5% interest p.a. over said outstanding amounts as
from the due date.
20. Having stated the above, the Single Judge 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 Single Judge 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.
21. In application of the relevant provision, the Single Judge held that he first of all had to clarify 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.
22. In this regard, the Single Judge established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
23. As a consequence, the Single Judge determined that the amount of compensation payable by the
Respondent to the Claimant had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
24. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with the
calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Single Judge concluded that the amount of USD 13,636 (i.e. the remaining salary
of June 2022) serves as the basis for the determination of the amount of compensation for breach
of contract.
25. In continuation, the Single Judge verified 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
REF FPSD-6582
to reduce his loss of income. According to the constant practice of the Single Judge 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.
26. In this respect, the Single Judge noted that the player remained unemployed since the unilateral
termination of the contract.
27. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the
player did not sign any new contract following the termination of his previous contract, as a general
rule, the compensation shall be equal to the residual value of the contract that was prematurely
terminated.
28. In this respect, the Single Judge decided to award the player compensation for breach of contract in
the amount of USD 13,636, as the residual value of the contract.
29. Lastly, taking into consideration the player’s request as well as the constant practice of the Single
Judge in this regard, the latter decided to award the player interest on said compensation at the rate
of 5% p.a. as of the date of the claim until the date of effective payment.
30. Besides, the Single Judge also took note of the club’s argument in relation to housing, since the latter
explained that the player was only entitled to KWD 500 per month for housing. Given that the club
rented an apartment for a higher amount, the club considered that the player incurred in a debt of
KWD 200 per month for the period between September 2021 until May 2022 (i.e. 9 months), for the
total amount of KWD 1,800.
31. However, the Single Judge wished to emphasized that this argument does not correspond to what
was stipulated in the contract. Accordingly, the club had to provide a furnished apartment or pay
him and allowance of KWD 500. Therefore, if housing was granted in kind and not as an allowance,
the contract did not stipulate any limit. As a result, the Single Judge rejected this request of the club.
iii. Compliance with monetary decisions
32. Finally, taking into account the applicable Regulations, the Single Judge 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.
33. In this regard, the Single Judge 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.
REF FPSD-6582
34. Therefore, bearing in mind the above, the Single Judge 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 creditor, 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 club in accordance with art. 24 par. 2, 4, and 7)
of the Regulations.
35. The club shall make full payment (including all applicable interest) to the bank account provided by
the player n the Bank Account Registration Form.
36. The Single Judge 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. 8of the
Regulations.
d. Costs
37. 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.
38. Furthermore, 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.
39. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-6582
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Douglas Da Silva De Paula Aguiar, is partially accepted.
2.
The Respondent, Salmiya SC, has to pay to the Claimant, the following amounts:
- USD 81,816 as outstanding remuneration plus interest as follows
5% interest p.a. over the amount of USD 13,636 as from 1 January 2022 until the date of effective payment;
5% interest p.a. over the amount of USD 13,636 as from 1 February 2022 until the date of effective payment;
5% interest p.a. over the amount of USD 13,636 as from 1 March 2022 until the date of effective payment;
5% interest p.a. over the amount of USD 13,636 as from 1 April 2022 until the date of effective payment;
5% interest p.a. over the amount of USD 13,636 as from 1 May 2022 until the date of effective payment;
5% interest p.a. over the amount of USD 13,636 as from 1 June 2022 until the date of effective payment.
- KWD 2,400 as reimbursement for medical costs plus 5% interest p.a. as from 12 November 2021
until the date of effective payment.
- USD 13,636 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 1 July 2022 until the date of effective payment.
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.
2.
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.
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
REF FPSD-6582
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).
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