Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 15 April 2020,
by S tijn Boey kens (Belgium )
on the claim presented by the player,
Jean Alex andre Deretti, Brazil,
represented by Mr Gabriel de Andrade Bezerra dos Santos Lima
as Claimant
against the club,
FC Dila Gori, Georgia
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 19 December 2016, the Brazilian player, Jean Alexandre Deretti (hereinafter:
the Claimant) and the Georgian club, FC Dila Gori (hereinafter: the Respondent)
signed an employment contract (hereinafter: the contract) “in respect for the
season 2017.”
2.
According to art. 2.2.1 and 2.2.2 of the contract, the Claimant was entitled to
receive a monthly salary of USD 5,000 “net”, to be paid “until the 20th day of the
month, following the month for which the payment is made.”
3.
According to art. 2.3.1 of the contract, the Respondent agreed to “take care of
[the Claimant’s] housing arrangements (including furniture). In addition [the
Claimant] will be entitled to receive a car, in a category that [the Respondent] will
decide.”
4.
According to 2.3.2 of the contract, the Claimant gave the possibility to the
Respondent to make salary deductions, inter alia, should the Claimant be fined
for misconduct.
5.
The Claimant is considering that the 2017 football season in Georgia ended on 31
December 2017, whilst according to the information available in the Transfer
Matching System (TMS), the 2017 football season in Georgia started on 4 March
2017 and ended on 10 December 2017.
Overview of the dispute
6.
The Claimant maintained that the Respondent failed to perform the payment of
three salaries that were, according to the Claimant, due on 20 October 2017,
20 November 2017, 20 December 2017, corresponding to a total amount of
USD 15,000.
7.
Moreover, the Respondent allegedly did not pay the Claimant winning bonuses in
the amount of USD 750 and a car costs for July 2017, October 2017 until
December 2017 in the amount of USD 750. The Claimant did not provide any
evidence supporting these requests.
8.
On 25 November 2017, the Respondent sent a notice to the Claimant, imposing a
fine of USD 12,500 for (1) refusal of continuation of a pre-match training and (2)
an alleged racist act based on refusal to share a room with a colleague. The
Claimant contested the above-mentioned allegations, and provided a copy of the
notice he sent in response to the Respondent’s allegations.
Player Jean Alexandre Deretti, Brazil / Club FC Dila Gori, Georgia
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9.
The Respondent stated that the Claimant was entitled to a total remuneration of
USD 53,150 under the contract, and that it had paid to the Claimant USD
42,188.25, meaning that a difference of USD 10,961.75 had not been paid.
10.
In this respect the Respondent indicated that it had fined the Respondent the
total amount of USD 12,500 for several misconducts.
11.
In fact, the Respondent alleged that the Claimant’s conducted started to worsen
as from June 2017, culminating to an alleged racist incident towards one of his
teammates on 13 September 2017. In this respect, the Respondent explained that
it took disciplinary action against the Claimant, but that it did not deduce the
fines so “he did not lose motivation”.
12.
On 24 November 2017, the Respondent explained that the Claimant refused to
take part in a league match during the warmup and that he invoked a pain that
after medical tests prove to be unfounded. The Respondent provided with a copy
of a medical report from the Respondent’s club doctor in support.
13.
The Respondent declared that it offered to the Claimant to reduce the “penalty
on 30%, which means that the player would be fined in amount of 8750 (eight
thousand seven hundred and fifty) instead of 12,500 (twelve thousand five
hundred) dollars. Accordingly, the club agreed to return the amount of 2000 (two
thousand) dollars from the fine to Jean Alexander Deretti. This amount would be
transferred only if he stopped discrediting the club and making ungrounded
accusations against it. But he continued dispute and claimed in FIFA”.
14.
On 29 December 2019 the Claimant lodged a claim in front of FIFA, requesting as
follows:
a) “Notify the Claimant so it can timely and willingly present its defence
regarding the enlightened facts;
b) Consider the Respondent as guilty of breaching the dispositions set forth in
the “Player Agreement”;
c) Consider the Respondent to be in debt of the amount of USD 15,000 (…)
regarding the salaries of the months of October, November and December
2017;
d) Consider the Respondent to be in debt of the amount of USD 750 (…)
regarding the unpaid sums concerning the winning bonuses;
e) Consider the Respondent to be in debt of the amount of USD 750 (…)
regarding the unpaid sums concerning the additional amount owed by
Respondent for not providing the Claimant a car;
Player Jean Alexandre Deretti, Brazil / Club FC Dila Gori, Georgia
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f) Notify UEFA and the Georgian Football Association of the present demand so
the referred entities can take the adequate matters in regard to the
malicious and unfounded accusation of racism from the Respondent;
g) Concede the Claimant the opportunity to collect the statement of the
athletes with whom he has played together during the validity of his contract
with the Respondent, namely: Ahy Audu Abubakar; Núbio Flávio Martins de
Souza; Guilherme Gianotti Morassi; and Joao Pedro Oliveira Santos;
h) That an interest of 5% (…) per annum shall be applied over the total amount
due by the Respondent to the Claimant, from the date that the Respondent
should have performed the payments of the overdue salaries until the date
pf the effective payment;
i) Immediately impose the cumulative sanctions established in Paragraph 4 of
Article 12bis, given the conditions for such imposition are met as per
Paragraphs 2 and 3, until the payment of the full amounts due by the
Respondent to the Claimant;
j) Order that the Respondent bears with any and all legal costs incurred by the
Claimant.”
15.
In its reply, the Respondent rejected on the basis that the outstanding amounts
claimed correspond to the fines that were deducted from his salaries in view of
repeated misconduct throughout the contractual relationship.
II.
Cons iderations of the Dis pute Res olution Cham ber (DRC) judge
1.
First of all, the Dispute Resolution Chamber Judge (hereinafter: the DRC judge)
analysed whether it was competent to deal with the case at hand. In this respect,
the DRC judge took note that the present matter was submitted to FIFA on 29
December 2019. Taking into account the wording of art. 21 of the 2019 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.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and par. 3of the Procedural
Rules and highlighted that in accordance with art. 24 par. 1 and par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (editions October 2019 and March 2020) the DRC judge, would, in
principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian
player and a Georgian club.
Player Jean Alexandre Deretti, Brazil / Club FC Dila Gori, Georgia
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3.
Notwithstanding the above, bearing in mind that the employment contract at the
basis of the present matter was concluded on 19 December 2016 and the
contractual relationship ended at the end of the 2017 football season in Georgia,
and that the Claimant lodged his claim against the Respondent in front of FIFA on
29 December 2019, the DRC judge considered that he should examine if the
present claim, or any part of it, is barred by the statute of limitations.
4.
Indeed, the DRC Judge referred to art. 25 par. 5 of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations; editions October 2019 and
March 2020), which, in completion to the general procedural terms outlined in
the Procedural Rules, clearly establishes that the DRC judge shall not hear any
dispute if more than two years have elapsed since the event giving rise to the
dispute arose and that the application of this time limit shall be examined ex
officio in each individual case.
5.
In view of the above, the DRC judge deemed fundamental to underline that in
order to determine whether he could hear the present matter, the DRC judge
should, first and foremost, establish which is “the event giving rise to the
dispute”, i.e. which is the starting point of the time period of two years as set out
under art. 25 par. 5 of the Regulations.
6.
The DRC judge acknowledged that, according to the documents presented by the
Claimant in support of his claim, the parties were bound by an employment
contract, which was signed on 19 December 2016 and was valid “in respect for the
season 2017.”
7.
The DRC judge duly noted that the Claimant was entitled to receive, inter alia, a
monthly remuneration of USD 5,000, along with housing arrangements and a
company car, and that the Claimant lodged his claim in front of FIFA based on the
alleged non-payment of the salaries of October, November and December 2017 as
well as the non-payment of his housing and car allowances.
8.
Having observed that the Claimant’s claim is based on the alleged non-payment
of all of the aforementioned contractual instalments, the DRC judge determined
that the alleged non-payment of the relevant instalments must be considered the
events giving rise to the present dispute.
9.
Furthermore, the DRC judge took into account that, according to the information
contained in TMS the 2017 season in Georgia ended on 10 December 2107. The
Claimant, for his part, maintained that the end date of the employment contract
was 31 December 2019.
Player Jean Alexandre Deretti, Brazil / Club FC Dila Gori, Georgia
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10.
Bearing in mind the discrepancy between the contractual duration indicated in
the contract, in TMS and indicated by the Claimant, while referring to the general
principle of the burden of proof as outlined in art. 12 par. 3 of the Procedural
Rules, the DRC judge underlined that the Claimant had not been able to
corroborate his allegation that the employment contract was to last until 30
December 2019 with relevant documentation.
11.
Having said that, the DRC judge recalled that in accordance with art. 6 par. 3 of
Annexe 3 of the aforementioned Regulations, FIFA may use, within the scope of
proceedings pertaining to the application of the said Regulations, any
documentation or evidence generated or contained in the TMS.
12.
What is more, the DRC judge wished to emphasise that Member Associations,
inter alia, are responsible for maintaining their season and registration details (cf.
art. 3.2.1 and art. 5.1.1 of Annexe 3 of the Regulations) and have a duty to enter
valid information and act in good faith (cf. art. 3 par. 3 of Annexe 3 of the
Regulations).
13.
On the basis of the information contained in the TMS in combination with the
wording of the contract and the aforementioned provisions of Annexe 3 of the
Regulations, the DRC judge established that the end date of the relevant
employment contract at the basis of the present dispute should correspond to the
end date of the 2017 football season as entered in the TMS by the Georgian
Football Federation.
14.
Therefore, the DRC judge concluded that the contract naturally ended on 10
December 2017, and that, in line with the Claimant’s claim, any amount due by
the Respondent for the month of October, November and December 2017 had
fallen due respectively on 20 October, 20 November and 20 December 2017, and
therefore had become overdue on 21 October 2017, 21 November and 21
December 2017.
15.
While recalling that the present claim was submitted to FIFA on 29 December
2019, the DRC judge took into account that the amount claimed by the Claimant
was payable in various instalments, all of which thus had fallen due more than
two years prior to the date on which the Claimant lodged his claim in front of
FIFA.
16.
What is more, the DRC judge duly noted that the claims for housing and car
allowances were made in line with the contents of art. 2.3.1 of the contact.
Having thoroughly analysed the contents of this clause, the DRC judge took note
that it did not refer to a fee to be reimbursed to the Claimant, nor to a flat fee
Player Jean Alexandre Deretti, Brazil / Club FC Dila Gori, Georgia
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and/or a monthly fee to be paid to the Claimant to cover all or part of his housing
and transportation expenses. Furthermore, In relation to the request for “winning
bonuses”, the DRC judge duly noted that those amounts were neither
contractually agreed nor the Claimant provided any evidence to support his claim,
including but not limited to a copy of the bonus schedule.
17.
The DRC judge was of the opinion that in view of the impossibility to determine if
and when the aforementioned allowances and bonuses were due, the DRC judge
concluded that the natural end date of the contract, i.e. 10 December 2019,
should be held as the due date for those amounts should it be determined that
they are indeed due.
18.
In view of all the above, referring to art. 25 par. 5 of the Regulations on the
Status and Transfer of Players, the DRC judge concluded that the time limit of two
years for the Claimant to claim outstanding remuneration had elapsed at the time
he lodged his claim in front of FIFA.
19.
Therefore, the DRC judge determined that the claim of the Claimant is barred by
the statute of limitations and, consequently, inadmissible.
*****
Player Jean Alexandre Deretti, Brazil / Club FC Dila Gori, Georgia
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III.
Decis ion of the DRC judge
The claim of the Claimant, Jean Alexandre Dreretti, is not admissible.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decis ion (legal rem edy ):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS.
Within another 10 days following the expiry of the time limit for filing the statement
of appeal, the appellant shall file a brief stating the facts and legal arguments giving
rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Jean Alexandre Deretti, Brazil / Club FC Dila Gori, Georgia
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