Labour Disputes
Texto da decisão
REF. FPSD-7688
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning
the player Claudio Rafael do Nascimento Santos
BY:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovakia), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Claudio Rafael do Nascimento Santos, Brazil
Represented by Mr Breno Costa Ramos Tannuri
RESPONDENT:
Olympic Club Safi, Morocco
Represented by Cabinet Sport & Law Culture
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REF. FPSD-7688
I. Facts of the case
1. On 4 July 2017, the Brazilian player Claudio Rafael do Nascimento (hereinafter the Claimant)
and the Moroccan club Olympic Club Safi (hereinafter the Respondent) concluded an
employment contract (hereinafter the First Contract) valid as from 2 August 2017 until
30 June 2020.
2. On 15 November 2020, the Claimant and the Respondent signed a new contract (hereinafter
the Second Contract) valid as from the date of signature until 30 June 2022.
3. In accordance with art. 5 lit. a) of the Second Contract, the Respondent undertook to pay the
Claimant net monthly salary of MAD 25,000 for the season 2020-2021, and MAD 15,000 net
for the season 2021-2022, each no later than the end of each respective month.
4. Furthermore, in accordance with art. 5 lit. b) of the Second Contract, the Respondent
undertook to pay the Claimant a signing bonus of MAD 900,000 gross, upon registration of
the said Second Contract with the Moroccan FA.
5. Furthermore, in accordance with art. 5 lit. c) of the Second Contract, the Respondent
undertook to pay the Claimant various bonuses which were “established in line with the
internal table of the Respondent”, as well as a bonus of MAD 1,000,000 gross, if the Claimant
played 20 total matches.
6. On 30 June 2022, the Second Contract expired naturally.
II. Proceedings before FIFA
7. On 29 September 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
8. The Claimant argued that the total value of the Second Contract corresponded to
MAD 2,280,000 and that, out of said amount, he only received MAD 372,802.42, Thus, the
remaining net amount which he is owed under the Second Contract is MAD 1,907,197.58.
9. The Claimant calculated said amount as follows:
-
MAD 1,000,000 net as performance bonus for playing at least 20 matches;
MAD 7,197.58 as pro-rata remaining remuneration for June 2022;
MAD 900,000 as signing bonus which fell due on 15 November 2020.
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REF. FPSD-7688
10. The Claimant requested interest on the above amounts of 5% p.a. as from the respective due
dates until the date of effective payment.
b. Position of the Respondent
11. In its reply, the Respondent argued that the claim of the Claimant is partially time-barred, as
some of the amounts claimed thereunder pertained to the First Contract; thus, all amounts
which fell due before the Second Contract (i.e., more than two years before the date the
present claim was lodged) may no longer be sought before the Football Tribunal.
12. According to the Respondent, the total amount due under the Second Contract amounts to
MAD 2,269,167; in this respect, the sum is allegedly lower than that put forward by the
Claimant, as sums between MAD 1,000 and MAD 7,000 are not accounted for due to the fact
that these amounts were considered “match bonuses”.
13. Moreover, the Respondent alleged that it paid the Claimant MAD 1,104,500, as well as two
standalone payments of MAD 200,000 which pertained to the amounts falling due before the
signature of the Second Contract in December 2021, thereby leaving a total outstanding
amount under the Contract of MAD 1,164,667.
c. Replica of the Claimant
14. The Claimant was invited to comment on the alleged payments made by the Respondent.
15. In its submission, the Claimant firstly outlined that the Respondent failed to corroborate its
claim that any of the amounts allegedly paid had fallen due after the contractual renewal, as
they were unlabelled on the relevant bank statement, and therefore do not affect the
amounts described as outstanding in the original petition.
16. Moreover, the Claimant outlined that, since the amounts paid by the Respondent were not
labelled / specified to adhere to the instalments due following the contractual renewal, and
can therefore not be allocated to a specific date, they are automatically assumed to resolve
the “oldest debt”, thereby suggesting that the Respondent’s assertion that the claim is
partially time-barred should be rejected.
17. Furthermore, the Claimant wished to amend his claim to include salary instalments of
MAD 15,000 each, corresponding to the season 2021-2022 which allegedly remained unpaid
and which had not been included in the original petition.
18. Thus, the following was the updated request for relief made by the Claimant:
-
MAD 1,000,000 net as performance bonus, for playing at least 20 matches;
MAD 900,000 net as signature bonus, which fell due on 15 November 2020;
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REF. FPSD-7688
-
MAD 173,572.52 net as outstanding salaries for the season of 2021-2022.
19. Lastly, interest was requested as from the respective due dates.
d. Duplica of the Respondent
20. The Respondent briefly asserted that the Claimant failed to meet the burden of proving that
the amounts paid under the Second Contract, in particular those referred to in the reply to
the claim, did not belong to instalments falling due under the First Contract, thereby insisting
that they be taken into consideration.
21. The Respondent also once again emphasised that the Claimant provided no evidence of
being entitled to the performance bonuses.
22. The Respondent therefore reiterated its request for relief.
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REF. FPSD-7688
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 29 September 2022 and
submitted for decision on 2 March 2023. 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.
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 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 Moroccan 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 (October 2022 edition), and
considering that the present claim was lodged on 29 September 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
4.
Lastly, the Chamber took note the argumentation of the Respondent that the claim should
be deemed partially inadmissible on account of its purported prescription, in accordance
with art. 23 par. 3 of the Regulations.
5.
In this respect, the Chamber observed that the Claimant allegedly based his petition
entirely on amounts which had allegedly fallen due and remained unpaid under the Second
Contract, which had occurred on 15 November 2020, and therefore less than two years
prior to the date the present claim was lodged, namely 29 September 2022.
6.
Additionally, the Chamber remarked, the Respondent argued that the amounts which were
subject to the present claim had fallen due prior to the contractual renewal, and indeed
prior to the date of prescription, therefore rendering them inadmissible.
7.
In this respect, the Chamber recalled the wording of art. 13 par. 5 of the Procedural Rules,
according to which a party that asserts a fact also bears the burden of proving its veracity.
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REF. FPSD-7688
8.
In light of said provision, the Chamber noted that the copy of the Second Contract that was
on file was time-stamped on 30 November 2020, therefore within the regulatory time-limit.
Moreover, the Chamber remarked, the Respondent failed to submit any substantial
evidence to overturn the presumption that the amounts presently in dispute did not fall
within the term of the Second Contract.
9.
Consequently, the Chamber established that the Respondent failed to meet the burden of
proving that the amounts claimed by the Claimant were prescribed, per art. 23 par. 3 of
the Regulations.
10. Therefore, the Chamber concluded that the claim is admissible in its entirety, and
continued its deliberations.
b. Burden of proof
11. 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
12. 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
13. 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 non-compliance with
certain financial obligations under the Second Contract.
14. In this context, the Chamber acknowledged that it its task was to determine whether the
amounts presently in dispute had, indeed, not been remitted by the Respondent, and if so,
whether the Respondent had a valid justification for defaulting as alleged.
15. The Chamber firstly recalled the submission of the Claimant, namely that the Respondent
failed to pay several amounts under the Second Contract. Out of the entire value thereof,
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REF. FPSD-7688
the Claimant alleged that he only received MAD 372,802.42 from the Respondent. Following
the amendment to the claim, therefore, the Claimant argued that the following amounts
were still due and unpaid:
-
MAD 1,000,000 as performance bonus, for playing at least 20 matches;
MAD 900,000 as signature bonus, which fell due on 15 November 2020;
MAD 173,572.52 as outstanding salaries for the season 2021/2022.
16. On the other hand, the Chamber noted the Respondent’s position, arguing that only an
amount of MAD 1,164,667 was due when the Second Contract expired. Furthermore, the
Chamber observed that the Respondent had provided several proofs of payment which
were allegedly linked to the amounts in dispute, as well as the line of argument that the
Claimant failed to meet the burden of proving that he was indeed entitled to receive
remuneration on the basis of conditional bonuses under the Second Contract.
17. In respect of the parties’ submissions above, the Chamber reiterated the principle of
burden of proof outlined under art. 13 par. 5 of the Procedural Rules, which states that a
party asserting a fact bears the burden of proving said fact.
18. In respect of whether the Claimant was even entitled to receive the amounts in dispute,
the Chamber noted that the former had provided evidence in the shape of a link to the
online platform “Transfermarkt”, which contained clear statistics as to the Claimant’s
involvement in official matches which entirely supported his submission that he was
indeed entitled to receive such amounts.
19. Beyond this, the Chamber confirmed that the other amounts claimed, namely the
remuneration in the total amount of MAD 173,572.52, as well as the signature bonus of
MAD 900,000, were not conditional, but guaranteed under the Second Contract.
20. Therefore, the Chamber firstly established that the Claimant was contractually entitled to
receive all the amounts presently in dispute.
21. As to the alleged non-payment of the aforementioned amounts, the Chamber emphasised
that it was the Respondent who bore the burden of proving that it indeed complied with
the financial terms of the Second Contract concluded between the parties.
22. Nonetheless, the Chamber remarked that the evidence provided by the Respondent,
namely the proofs of payment which were entirely generic and contained no specific
reference to the contractual concepts claimed as outstanding by the Claimant, was
insufficient to corroborate that the Respondent had, indeed, remitted those amounts.
23. In particular, the Chamber raised that the previous contractual relationship between the
parties, as well as the uncontested fact that the Respondent was still paying amounts under
the First Contract in a belated manner, during the term of the Second Contract, further
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REF. FPSD-7688
consolidated the line of argument that the Respondent could not meet the requisite
burden of proving that the specific amounts in question had been paid.
24. Therefore, the Chamber concluded that the Respondent had not met the burden of proving
that it had complied with the financial obligations under the Second Contract, and that the
amounts in dispute had indeed remained unpaid as claimed.
25. In conclusion, therefore, the Chamber decided that the Respondent is liable to pay to the
Claimant a total amount of outstanding remuneration of MAD 2,073,572.52, in accordance
with the principle of pacta sunt servanda.
26. Lastly, in accordance with its standard practice, as well as in light of the Claimant’s request,
the Chamber decided to award the latter interest on the abovementioned amounts as
follows:
-
On the amount of MAD 900,000, 5% p.a. as from 1 December 2020 until the date of
effective payment;
-
on the amount of MAD 8,572.52, 5% p.a. as from 1 August 2021 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 September 2021 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 October 2021 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 November 2021 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 December 2021 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 January 2022 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 February 2022 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 March 2022 until the date of
effective payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 April 2022 until the date of effective
payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 May 2022 until the date of effective
payment;
-
on the amount of MAD 15,000, 5% p.a. as from 1 June 2022 until the date of effective
payment;
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REF. FPSD-7688
-
on the amount of MAD 15,000, 5% p.a. as from 1 July 2022 until the date of effective
payment.
-
on the amount of MAD 1,000,000 5% p.a. as from 1 July 2022 until the date of effective
payment.
ii. Compliance with monetary decisions
27. 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.
28. 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.
29. 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.
30. 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.
31. 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
32. 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.
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REF. FPSD-7688
33. 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.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-7688
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Claudio Rafael do Nascimento Santos, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Olympic Club Safi, has to pay to the Claimant the following amount(s):
- MAD 2,073,572.52 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of MAD 900,000 as from 1 December 2020 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 8,572.52 as from 1 August 2021 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 September 2021 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 October 2021 until the date of effecti v e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 November 2021 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 December 2021 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 January 2022 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 February 2022 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 March 2022 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 April 2022 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 May 2022 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 15,000 as from 1 June 2022 until the date of effectiv e
payment;
- 5% interest p.a. over the amount of MAD 1,015,000 as from 1 July 2022 until the date of effectiv e
payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
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REF. FPSD-7688
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-7688
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 Governing the Football
Tribunal).
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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