Dispute Resolution Chamber
Texto da decisão
REF 20-00119
Decision of the
Dispute Resolution Chamber
passed on 01 July 2021
regarding an employment-related dispute concerning the player Roberto Dias Correia
Filho
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Tomislav Kasalo (Croatia), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Roberto Dias Correia Filho, Portugal
Represented by Pedro Macieirinha
RESPONDENT:
Hoang Anh Gia Lai Sport JSC, Vietnam
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I.
FACTS OF THE CASE
1.
On an unspecified date in January 2021, the Portuguese player, Mr. Roberto Dias Correia
Filho (hereinafter: the player or the Claimant) and a person named “Mr. Tran” (hereinafter:
Mr. Tran) started having conversations via WhatsApp regarding a possible employment
relationship between the player and the Vietnamese club, Hoang Anh Gia Lai Sport JSC
(hereinafter: the club or the Respondent).
2.
On 11 January 2020, Mr. Tran sent the player a copy of an employment contract with the
club. In reply, the player asked Mr. Tran if he was a club’s director. Mr. Tran then informed
that he was friend with Mr. Nguyen Tan Anh, the club’s managing director.
3.
In continuation, the parties exchanged other messages regarding the conditions described
in the employment contract vis a vis the player’s contractual relationship with his former
club, FK Senica, from Slovakia.
4.
On 11 January 2020, the player and the club, supposedly signed the employment contract
(hereinafter: the employment contract). The employment contract apparently: (i) has the
letterhead of the club; (ii) was drafted both in Vietnamese and in English; (iii) has the stamp
of the club; (iv) and was by the director of the club, Mr. Nguyen Tan Anh.
5.
Pursuant to clause 2 of the employment contract, it would be valid “after completion the
International Transfer Certificate (ITC) as the FIFA regulation and the player to be accepted
to player for [the club] to 20 Oct 2020”.
6.
In accordance with clause 3 of the employment contract, the club undertook to pay the
player a monthly remuneration of USD 8,000, payable until the 15th day of the following
month.
7.
In addition, clause 3.5 of the employment contract established the following: “the club has
the right to terminate the contract early if the player does not have good performance or
violates the rules of Vietnam Football Federation, regulations of [the club]. [The club] will
pay compensation 01 month salary for the player”.
8.
On 2 February 2020, the player sent Mr. Tran a copy of his passport. Subsequently, Mr.
Tran forwarded to the player the documentation concerning his visa to enter Vietnam.
9.
On an unspecified date and after making arrangements with the player, Mr. Tran sent him
a copy of his flights tickets. In accordance with the documentation filed by the player, he
was supposed to travel from Vienna, Austria, to Doha, Qatar, on 4 February 2020 and, on
the following day (i.e. 5 February 2020), from Doha to Ho Chi Minh City, Vietnam.
10.
On an unspecified date, the player and Mr. Tran had the following conversation:
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“[Mr. Tran] The club have camp. 6/2/2020 we go club. 5/2/2020 you will rest in ho chi minh
city in hotel.
[Player] After exams and sign contract is this?
[Mr. Tran] Yes, only test physical and sign. You rest in my city 1 night for good healthy after
long trip”.
11.
The same parties exchanged the following messages:
“[Player] bro I spoke with one player who played there in vietnam, and he told me he already
has a foreign central defender.
[Mr. Tran] they will loan him to another team if you come Vietnam, they fear you don’t
come Vietnam. Keep everything secret.
[Player] ok my friend”.
12.
On 4 and 5 February 2020, the player travelled to Vietnam as per the flight tickets issued
by Mr. Tran.
13.
There is no information on file of any specific facts between February 2020 and December
2020.
14.
On 28 December 2020, the player sent the club a notice referring to the content of the
employment contract and stating that the club had prevented him from performing his
activities. The player thus held that the club had terminated the employment contract
without just cause. Accordingly, the player referred to the FIFA Regulations on the Status
and Transfer of Players (RSTP) and to the pertinent jurisprudence on the matter, in order to
request the club to proceed with the payment of USD 80,000 as compensation for breach
of contract within the following 10 days.
15.
On 1 July 2021, the player signed a new employment agreement with the Cypriot club,
Ermis Aradippou FC, valid as from the date of signature until 31 April 2021.
16.
In accordance with said contract, the player was entitled to a monthly remuneration of EUR
700.
II.
PROCEEDINGS BEFORE FIFA
17.
On 14 January 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
18.
The claim of the player
In his claim, the player pointed out that, after concluding the employment contract with
the club, he travelled to Vietnam in order to perform his services. However, the club
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allegedly prevented him to participate in any activity and subsequently terminated the
contract without just cause.
19.
In this context, the player recalled art. 13 and 14 of the FIFA RSTP, as well as the general
principle of pacta sunt servanda in order to conclude that the club breached the contract
without a valid reasoning.
20.
Accordingly, the player mentioned that, in line with art. 17 of the RSTP, the club shall be
liable to pay him compensation for the breach, corresponding to the residual (and integral)
value of the employment contract i.e. USD 80,000
21.
Finally, the player claimed interest of 5% p.a. as from the due date.
b.
The reply of the club
22.
In its reply, the club stated that the employment contract at the basis of the dispute was
never concluded between the parties and, hence, that it was forged by the player and by
his legal representatives.
23.
In support of its allegations, the club made the following remarks regarding the document
submitted by the player:
a. the seal is not from the club;
b. the signature is not from the club’s managing director;
c. the template of the employment contract is different from the one used in other legal
documents concluded by the club;
d. the reference number contained in the employment contract is random and incorrect;
e. the address provided for in the employment contract is different from the club’s one.
24.
Consequently, the club requested FIFA “to conduct investigation into the forgery
committed by [the player] and his solicitor”.
c.
The rejoinder of the player
25.
In his rejoinder, the player reiterated his arguments and requested the club’s allegations to
be entirely dismissed.
26.
Firstly, the player clarified that he was previously registered with the Slovak club, FK Senica,
until 30 June 2020, however that he terminated the contract with just cause due to the
outstanding remuneration.
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27.
Subsequently, the player informed that he was contacted by Mr. Tran, acting on behalf of
the club’s managing director. In this respect, the player argued that the content of the
employment contract was negotiated via WhatsApp with Mr. Tran, as well as that he sent
him the relevant documentation for his travel to Vietnam (i.e. the employment contract, the
flight tickets and the visa).
28.
In support of the above, the player filed some excerpts of messages exchanged with Mr.
Tran via WhatsApp in January and February 2020.
29.
Subsequently, the player opposed the club’s allegation regarding the forgery of the
employment contract and claimed, inter alia, that the club “is trying to deceive the Dispute
Resolution Chamber of FIFA”. In particular, the player informed that the original version of
the employment contract is “in the club’s possession”, which is allegedly acting in bad faith.
30.
Finally, the player stated that a similar documentation was provided to his colleague, Mr.
Felipe Martins, and requested the DRC “to order the notification of [the club] to provide to
the proceeding the original version of the contract signed between the club and the
professional football player Felipe Martins”.
d. The final comments of the club
31.
In its final comments, the club reaffirmed that it did not sign any employment contract with
the player, as well as that it did not have any connection with Mr. Tran. In this regard, the
club held that Mr. Tran was not his legal representative and thus that the club had never
provided such documents to the player.
32.
Once again, the club claimed that the employment contract was forged and pointed out
the differences between the seal contained in the employment contract and in another
official documentation issued by the club.
33.
Additionally, the club outlined that the player’s visa was granted in name of a third party
rather than the club itself.
34.
At the end, the club replied to the player’s allegations concerning the documentation signed
with Mr. Felipe Martins. To this extent, the club filed a copy of the employment agreement
signed with such player and pointed out the differences between it and the one allegedly
signed with the player.
e. Information provided by the Vietnam Football Federation
35.
After being inquired about the player’s registration, the Vietnam Football Federation (VFF)
informed that the player was never registered with the club.
36.
In addition, the VFF also confirmed that it was never provided with a copy of a contract
signed between the parties.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
37.
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 January 2021 and submitted
for decision on 1 July 2021. Taking into account the wording of art. 21 of the January 2021
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.
38.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Portuguese player
and a Vietnamese club.
39.
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 Player (edition February 2021), and
considering that the present claim was lodged on 14 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
40.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
41.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
42.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
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acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
43.
The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute whether there was an employment relationship between them
and, if so, the consequences thereof.
44.
In this context, the DRC firstly noted that, on his part, the player argued that he received
the employment contract via WhatsApp from Mr. Tran, who was acting on behalf of the
club. In addition, the Chamber further observed that the player remarked that the same
person had also sent him the relevant flight tickets and visa – supposedly corroborating with
the fact that the club was acting in bad faith and trying to mislead the facts.
45.
On the other hand, the DRC also considered that the club categorically denied the existence
of an employment relationship with the player. By doing so, the Chamber took due note of
the club’s argumentation according to which the employment contract was forged – either
by the player or by Mr. Tran – and that Mr. Tran was not its legal representative.
46.
In view of this dissent between the parties, the DRC started its deliberations by remarking
that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of
criminal law, such as the one of alleged falsified signatures of documents, and that such
affairs fall into jurisdiction of the competent national criminal authority.
47.
In addition, the Chamber also recalled the content of art. 12 par. 3 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. With this in mind, the DRC deemed that it was up to the player
to prove that the employment relationship, on the basis of which he claimed compensation
for breach of contract from the club, indeed existed.
48.
The foregoing having been established, the members of the Chamber turned their attention
to the documentation brought forward by the parties and acknowledged that all the
negotiations with the player were conducted by Mr. Tran via WhatsApp, including the
issuance of the flight tickets and the visa documentation. In parallel, the DRC carefully
analysed the file and outlined that no official communication was ever exchanged between
the player and the club’s legal representatives – or any other person rather than Mr. Tran.
49.
In light of the above and taking into consideration the club’s argumentation regarding the
inconsistencies of the employment contract, the members of the Chamber concurred that
the player did not meet his burden of proof in order to demonstrate that the document was
indeed concluded with the club (nor at least with its consent).
50.
In this respect, the DRC found it pivotal to its conclusion the fact that neither Mr. Tran nor
the player submitted any evidence capable of demonstrating that the latter was authorized
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to act on behalf of the club, such as a mandate, an authorization or any other official
correspondence attesting his link with the club.
51.
At the same time, the DRC noted that the player has not advance any argumentation nor
evidence pertaining to his time allegedly at the club, that is, between February and
December 2020. The DRC was also observant of the fact that the employment contract had
substantial differences in regards to similar documents concluded by the club, for example
the name described in the seal, the signature and the contract’s layout.
52.
Consequently, the DRC deemed that the player could not establish to a comfortable
satisfaction degree that he adopted the reasonable precautions that could be expected
while entering into a labour relationship such as the one supposedly entailed in the
employment contract.
53.
Therefore, the members of the DRC unanimously decided that the player’s claim should be
rejected.
d.
Costs
54.
Finally, the Chamber referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the Chamber decided that
no procedural costs were to be imposed on the parties.
55.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
56.
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, Roberto Dias Correia Filho, is rejected.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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