Labour Disputes
Texto da decisão
REF FPSD-7264
Decision of the
Dispute Resolution Chamber
passed on 10 November 2022
regarding an employment-related dispute concerning the player WESLEY
DIAS CLAUDINO
COMPOSITION:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stijn Boeykens (Belgium), member
CLAIMANT:
WESLEY DIAS CLAUDINO, Brazil
Represented by André Scalli & Breno Pinto Gondim De Almeida
RESPONDENT:
ERMIS ARADIPPOU, Cyprus
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I. Facts of the case
1.
On 24 June 2020, the Brazilian player, WESLEY DIAS CLAUDINO (hereinafter: Claimant or
player) and the Cypriot club, ERMIS ARADIPPOU (hereinafter: club or Respondent) signed a
document named “Pre contract” (hereinafter: pre contract) valid for the season 2020/2021.
2.
According to the information in the Transfer Matching System (TMS), the 2020/2021
football season in Cyprus started on 1 June 2020 and ended on 31 May 2021.
3.
According to the pre contract, the Respondent undertook to pay the Claimant a monthly
salary of EUR 4,500, payable during 10 months.
4.
On 1 August 2020, the parties concluded an employment contract (hereinafter: contract),
valid as from 1 August 2020 until 31 April 2021, including a monthly salary of EUR 700.
5.
Art. 14.3. of the standard employment contract enclosed to the contract reads as follows:
“This contract and the Player’s Employment Agreement constitute the entire agreement
between the club and the player and supersede any and all preceding agreements between the
club and the player regarding the employment period mentioned in clause 1 of the Player’s
Employment agreement”.
6.
On 30 August 2020, the club dismissed the coaching staff.
7.
On 31 August 2020, the club terminated the contract with the player during a meeting,
without any reason.
8.
On 9 September 2020, the parties signed a document named “Mutual Release of contract
of employment”, which reads as follows:
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9.
On 5 January 2021, the player signed an employment contract with the Brazilian club,
Ferroviário, valid as from 5 January 2021 until 15 December 2021, including a monthly
salary of Brazilian Real (BRL) 1,100 (approx. EUR 210).
II. Proceedings before FIFA
10. On 30 August 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
11. In his claim, the Claimant requested the following monies:
- EUR 45,000 as compensation for breach of contract, corresponding to the total
value of the contract, plus 5% interest p.a.;
- EUR 20,000 as “damages”.
12. In his claim, the player argued that the club terminated the contractual relationship
without just cause on 31 August 2021.
13. According to the player, after agreeing on the total salary of EUR 45,000 for the season
2020/2021, the parties concluded 2 separate employment contracts “one of the contracts
with the same parameters as the Pre-Contract and another agreement to be registered within
the Cyprus Football Federation”. The second one (the contract) including a salary of EUR
700 is on file, whereby the first one was never handed to the player.
14. On account of the above, the player argued that he was entitled to a monthly salary of
EUR 4,500 (10x times), as agreed upon in the pre-contract.
15. Regarding the “Mutual Release of contract of employment”, the player held that he was
forced to signed such document as the club threatened the player. He further pointed
out that the document was signed on 9 September 2020, but was dated 31 August 2020.
16. He also held that he did not realize that he would discharge the club by signing such
document.
17. The player further held that even though he signed said document, after returning to his
home country, he remained “imprisoned” by the club as it did not send the required
documents for him to be registered with a different club. The player pointed out that
those documents were only sent in December 2020.
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18. The Claimant maintained that the document did not correspond with reality, as it was not
him asking to be released, but the club had terminated the contract before and thus, the
club tried to “justify” its termination with such document.
19. In this context, the player pointed out that he did not receive any payment from the club
throughout the contractual relationship.
20. On account of the above, the player argued that the “Mutual Release of contract of
employment” “has no legal basis or value, being only an unlawful act of the Club in order to be
able to breach the contract without just cause”.
b. Position of the Respondent
19.
The Respondent failed to reply to the claim.
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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 30 August 2022 and submitted
for decision on 10 November 2022. Taking into account the wording of art. 34 of the June
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 July 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 Cypriot 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 (July 2022 edition), and
considering that the present claim was lodged on 30 August 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).
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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
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 the core of the dispute is the early termination of the contract
by the Respondent.
7.
In this context, the Chamber acknowledged that its task was to detail the circumstances
of this termination and decide on the consequences arising thereof.
8.
The Respondent, for its part, failed to present its response to the claim of the player, in
spite of having been invited to do so. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
10. First of all, the Chamber proceeded with establishing what the contractual basis for the
claim is. According to the player, the salary established in the pre-contract was divided
into two agreements, from which only one was registered with the Cypriot FA (and is
available in the Transfer Matching System).
11. The DRC duly noted that the player argued that the pre-contract showed the intention of
the parties to establish a monthly salary of EUR 4,500 and not EUR 700 as stated in the
contract.
12. Nevertheless, the members of the Chamber analysed the documentation on file and
pointed out that the contract superseded the pre contract and that the contract in its art.
14.3 established that no further agreements are in place between the parties.
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13. Even though the club failed to reply to the claim, the player was not able to meet the
burden of proof in order to establish that there was an additional agreement in place
between the parties.
14. On account of the above, the Chamber established that the contract on file (and uploaded
in the Transfer Matching System) is the basis of the claim and that the player’s monthly
salary therefore amounts to EUR 700.
15. As to the question if the club terminated the contract with or without just cause on 30
August 2020, the Chamber pointed out that no reason for such dismissal is on file.
Moreover, the player’s allegations remained uncontested.
16. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria
which do not reasonably permit to expect the continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if
there are more lenient measures which can be taken in order for an employer to assure
the employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can only be an ultima ratio.
17. Taking into account the above, the Chamber concluded that the termination was not the
ultima ratio and therefore without just cause.
ii. Consequences
18. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
19. In principle, the player is entitled to outstanding remuneration and compensation for
breach of contract. However, the Chamber had to analyse the document dated 9
September 2020, titled “Mutual Release of contract of employment”.
20. Since this document appears to be imbalanced and only favours the club, and since the
club failed to contest the player’s allegations, the DRC concluded that it does not take into
account such document and the player remains entitled to outstanding remuneration
and compensation for breach of contract.
21. The Chamber observed that the outstanding remuneration at the time of termination,
taking into account the contract, amount to EUR 700 (the salary for August 2020).
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22. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
i.e. EUR 700.
23. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from 1 September 2020 until the
date of effective payment.
24. Having stated the above, the Chamber 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
Chamber 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.
25. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to 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. In this regard, the Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
26. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
27. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 5,600 (i.e. the EUR 700x 8 months; September 2020
until April 2021) serves as the basis for the determination of the amount of compensation
for breach of contract.
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28. In continuation, the Chamber verified as to 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 to reduce his loss of income. According to the
constant practice of the DRC 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.
29. Indeed, the player found employment with the Brazilian club, Ferroviário. In accordance
with the pertinent employment contract, the player was entitled to approximately EUR
210 per month. Therefore, the Chamber concluded that the player mitigated his damages
in the total amount of EUR 840, that is, 4 times EUR 210 (January 2021 until April 2021).
30. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 4,760 to the player (i.e. EUR 5,600 minus EUR 840), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
31. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 30 August 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
32. Finally, taking into account the applicable Regulations, the Chamber 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 DRC 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.
34. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum
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duration of three entire and consecutive registration periods shall become immediately
effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
35. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
36. The DRC 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. 8 of
the Regulations.
d. Costs
37. 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.
38. 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.
39. 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, WESLEY DIAS CLAUDINO, is partially accepted.
2.
The Respondent, ERMIS ARADIPPOU, has to pay to the Claimant, the following amount(s):
- EUR 700 as outstanding remuneration plus 5% interest p.a. as from 1 September 2020
until the date of effective payment;
- EUR 4,760 as compensation for breach of contract plus 5% interest p.a. as from 30 August
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. 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.
2. 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
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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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