Labour Disputes
Texto da decisão
REF FPSD-6665
Decision of the
Dispute Resolution Chamber
passed on 15 December 2022
regarding an employment-related dispute concerning the player Hudson
Dias de Jesus
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Alexandra Gómez Bruinewoud (Uruguay / the Netherlands), member
Daan de Jong (the Netherlands), member
CLAIMANT:
Hudson Dias de Jesus, Brazil
Represented by Filipe Orsolini Pinto de Souza
RESPONDENT:
Kuching FA, Malaysia
Represented by Dzulfadzli Hainizah & Co.
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I. Facts of the case
1.
On 1 February 2021, the Brazilian player Hudson Dias De Jesus (hereinafter: the Claimant
or the player) and the Malaysian club Kuching FA (hereinafter: the Respondent or the club)
concluded an employment agreement (hereinafter: the Contract) to be valid as from said
date until 30 November 2021.
2.
In accordance with Schedule A - letter a) of the Contract, the Respondent undertook to
pay to the Claimant a monthly salary of MYR 11,000, respectively by the 7th day of each
following month.
3.
Furthermore, under Schedule B, as also recalled by art. 3.5 of the Contract, the
Respondent undertook to stipulate a medical insurance for the Claimant, with a minimum
cover of MYR 60,000 for “Hospitalization and Surgery” following injuries or accidents.
4.
On 21 May 2021, the Claimant and the Respondent concluded an agreement for the
reduction of the Claimant’ salary from MYR 11,000 to MYR 8,500 per month, namely
because of the player’ poor sporting performance during the “Liga Premiere I” in Malaysia.
5.
For the sake of clarity, the mentioned document reads: “At first the club intends to terminate
your contract but after you state that you need the money because your wife is pregnant and
will soon have a child, the club takes due consideration to keep you in the team until your
contract expires on 30 November 2021.”
6.
On 17 November 2021, the Respondent and the Claimant allegedly signed a document
titled “Release letter / Mutual Agreement”, by means of which the Claimant acknowledged
the payment of all salaries and expenses until November 2021 whereas “(..) neither party
to this mutual release letter will make any claim or take any proceedings against any person
who might claim over against or claim contribution or indemnity from the other party in
connection with any matter for which this mutual release is given”.
7.
By correspondence dated 15 June 2022, the Claimant put the Respondent in default of
payment of MYR 17,500 as outstanding remuneration and MYR 60,000 as reimbursement
of medical expenses incurred following the player’s injury in June 2021, contextually
setting a time limit of 10 days for the Respondent to remedy the default.
8.
On 13 July 2022, the Normah Medical Specialist Center in Malaysia sent a letter to the
Respondent certifying that the Claimant had come for a visit on 26 November 2021 and
that left osteitis pubis had been diagnosticated in that occasion.
II. Proceedings before FIFA
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9.
On 8 July 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
10. According to the Claimant, the Respondent failed to comply with its financial obligations
under the Contract.
11. In particular, the Claimant alleged that the Respondent reduced his salary without any
just cause as from May 2021 until the end of the Contract, namely just for poor sporting
performance.
12. Furthermore, the Claimant accused the Respondent of having failed to reimburse the
medical expenses incurred by him in occasion of the injury occurred in June 2021.
13. In this respect, the Claimant stated that pursuant to art. 3.5 of the Contract and the
relevant Schedule B, he shall be entitled to receive a minimum of MYR 60,000 as
insurance’s cover.
14. The requests for relief of the Claimant, accordingly, were the following:
•
•
•
MYR 17,500 as outstanding remuneration;
MYR 60,000 as medical expenses;
5% interest per annum on the awarded sums as from the respective due dates.
b. Position of the Respondent
15. In its reply, the Respondent first objected to the Claimant’s demands alleging that both
parties expressly agreed on the reduction of the player’ salary by means of an agreement
dated 21 May 2021.
16. Furthermore, the Respondent argued that the Claimant waived all his potential financial
rights at the end of the Contract by signing the “Release letter / Mutual Agreement” on 17
November 2021, hence now he is not in a position to present any financial claim against
the club.
17. Finally, with regard to the reimbursement of the medical expenses allegedly incurred by
the Claimant, the Respondent stated that as an insurance agreement had already been
subscribed and paid by the club in January 2021, it should be the relevant insurance
company to reimburse the Claimant, upon his request, and not the Respondent.
18. As a consequence, the Respondent requested to reject the claim in its entirety.
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c. Claimant’s additional comments
19. Inquired by the FIFA general secretariat over the two agreements that according to the
Respondent would have been allegedly signed by both parties, respectively on 21 May
2021 and 17 November 2021, the Claimant declared that he never agreed on the
reduction of the salary, nor he has signed the “Release letter / Mutual Agreement”.
20. In particular, the Claimant specified that the agreement regarding the reduction of the
salary was signed under a condition of duress.
21. In this respect, the Claimant argued that being aware of the player’s wife’s delicate
condition deriving from her pregnancy, the Respondent forced the player to accept a
permanent reduction of his salary until the end of the Contract.
22. Conversely, for what concerns the “Release letter / Mutual Agreement”, the Claimant
denied having ever signed it, otherwise, in the Claimant’s view, there would be no
explanation for the letter sent to the Respondent by the Normah Medical Specialist Center
on 13 July 2022, namely because the said letter referred to the date of 26 November 2021
as if the Claimant was still under the Respondent’s responsibility on that date.
23. Finally, in reference to the medical insurance allegedly undersigned by the Respondent,
the Claimant contested its authenticity, namely because it was signed even before the
Contract had entered into force (i.e., as from 1 February 2021).
24. In this context, the Claimant stated that there is no insurance policy under his name
signed by the Respondent nor by any insurance company.
25. Accordingly, the Claimant upheld his original request for relief.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 9 July 2022 and submitted for
decision on 15 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.
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27. 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 (October 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 Malaysian club.
28. 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 (October 2022 edition),
and considering that the present claim was lodged on 9 July 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
29. 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).
c. Merits of the dispute
30. 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
31. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the existence of
overdue payables in favour of the Claimant.
32. In this particular, the Chamber noted that according to the Respondent, on 21 May 2021
and 17 November 2021, the parties signed, respectively, (i) an agreement for the
reduction of the Claimant’ salary, namely because of his poor sporting performance, and
(ii) a “mutual release letter” by means of which the Claimant waived any further financial
right matured until November 2021.
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33. In this context, the Chamber observed that with regard to the first document, named
“Salary Reduction agreement”, the Claimant did not expressly deny having signed it but
rather alleged that he accepted it under a condition of duress, namely because the
Respondent threatened to terminate the Contract otherwise.
34. Conversely, in reference to the “mutual release letter”, the Chamber noted that the
Claimant argued having never signed it and that, accordingly, the Respondent has
fabricated his signature on the document.
35. In this context, the Chamber acknowledged that it its task was to establish, to a degree of
comfortable satisfaction, whether the two mentioned documents were effectively agreed
on by both parties or whether, on the contrary, they lack the will of the player undertaking
disparaging conditions.
36. With the above in mind, the Chamber considered relevant the wording of the mentioned
agreement as it recites: “At first the club intends to terminate your contract but after you state
that you need the money because your wife is pregnant and will soon have a child, the club
takes due consideration to keep you in the team until your contract expires on 30 November
2021.”
37. In this respect, the Chamber observed that, during the period in which the discussed
document was signed, the Claimant had indeed only an alternative option to the
reduction of his salary, namely the termination of the Contract by hand of the
Respondent.
38. Accordingly, the Chamber assessed the Claimant’s lack of bargaining power at the
moment of signing the salary reduction agreement, which in the Chamber’s view also
transpired from the same wording of the mentioned agreement.
39. Considering the above circumstance, and based on the documentation at hand, the
Chamber concluded that the Claimant’s alleged condition of duress appears credible,
namely as any reasonable person in the same Claimant’s position would have likely
preferred receiving a reduced salary rather than no remuneration at all. It followed that
said document was ruled null and void by the Chamber.
40. Accordingly, with regard to the second document aforementioned, entitled “mutual
release letter”, the Chamber determined that, regardless of the authenticity of the
Claimant signature on it, the said document would reflect the abovementioned condition
of duress under which the Claimant had originally accepted the reduction of his salary,
hence this shall be disregarded as well.
41. Furthermore, the Chamber wished to remark that, in any case, pursuant to the pacific
jurisprudence of the DRC, a player cannot waive his financial entitlements when these are
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deriving from work already performed under the employment contract whereby he
receives no compensation of equal value in return.
42. Accordingly, the Chamber concluded that the Respondent failed to comply with its
financial obligations for the period between May 2021 and November 2021, hence it shall
be held liable towards the Claimant for the outstanding remuneration.
43. In continuation, with regard to the Claimant’s demand for reimbursement of the medical
expenses, the Chamber took note of the wording of art. 3.5 of the Contract as well as the
Schedule B thereto enclosed. Notwithstanding the above, the Chamber found that it was
unnecessary to enter into the merit of the question concerning the validity of the medical
insurance allegedly subscribed by the Respondent, namely because it observed that the
Claimant failed to corroborate his allegations, in particular the medical expenses
effectively incurred in that he failed to present evidence of the same expenses. Hence,
the Chamber determined that the player’s burden of proof has not been met and no
reimbursement shall occur from the club’ side.
ii. Consequences
44. 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, i.e. MYR 17,500 (i.e. seven times
MYR 2,500).
45. 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 the relevant due dates until
the date of effective payment.
iii. Compliance with monetary decisions
46. 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.
47. 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.
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48. 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
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.
49. 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.
50. 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
51. 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.
52. 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.
53. 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, Hudson Dias de Jesus, is partially accepted.
2.
The Respondent, Kuching FA, has to pay to the Claimant, the following amount:
MYR 2,500 as outstanding remuneration plus 5% interest p.a. as from 8 June 2021
until the date of effective payment;
MYR 2,500 as outstanding remuneration plus 5% interest p.a. as from 8 July 2021
until the date of effective payment;
MYR 2,500 as outstanding remuneration plus 5% interest p.a. as from 8 August
2021 until the date of effective payment;
MYR 2,500 as outstanding remuneration plus 5% interest p.a. as from 8
September 2021 until the date of effective payment;
MYR 2,500 as outstanding remuneration plus 5% interest p.a. as from 8 October
2021 until the date of effective payment;
MYR 2,500 as outstanding remuneration plus 5% interest p.a. as from 8
November 2021 until the date of effective payment;
MYR 2,500 as outstanding remuneration plus 5% interest p.a. as from 8
December 2021 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.
1.
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.
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5. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
6. 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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