Labour Disputes
Texto da decisão
REF. FPSD-9981
Decision of the
Dispute Resolution Chamber
passed on 21 June 2023
regarding an employment-related dispute concerning
the player Eliandro dos Santos Gonzaga
BY:
Michele Colucci (Italy)
CLAIMANT:
Eliandro dos Santos Gonzaga, Brazil
Represented by André Scalli
RESPONDENT:
SFPC, Thailand
pg. 2
REF. FPSD-9981
I. Facts of the case
1.
Allegedly on 17 December 2019, the Brazilian player Eliandro dos Santos Gonzaga
(hereinafter the Claimant or the player) and the Thai club SPFC (hereinafter the Respondent
or the club) concluded an employment agreement (hereinafter the Employment Agreement),
valid as from January 2020 until December 2020.
2.
On 14 October 2020, the Claimant and the Respondent (jointly referred to as the Parties)
allegedly concluded another employment agreement valid as from 30 October 2020 to
30 April 2021 (hereinafter the October Employment Agreement). It shall be noted that the
said Employment Agreement is not signed by either party.
3.
On 31 December 2020, the Parties signed a document titled “Final Contract Completion
Agreement”, by which it was agreed that apart from the December 2020 salary, the player
in not entitled to request any sums pursuant to the Employment Agreement of
17 December 2019 and that the player is free to join other club as from 1 January 2021.
4.
As of January 2020, the player provided services to the club.
5.
On 20 April 2020, the player received a formal communication from the club concerning
the suspension of the league due to COVID-19, including a salary reduction of 50%.
6.
Allegedly, on 25 December 2020, the player had to leave the house.
7.
Between 11 and 18 January 2021, the player was hospitalized, which incurred the new club
costs of BAHT 44,860.50. (Note: evidence on file, the player alleges that the hospitalization
was caused by the termination due to the following comment of the treating practitioner:
“After jobless, he has had anxious and depressed mood, nausea, vomiting, heart beating,
dizziness, insomnia, no appetite for 1 week. He has admitted for work up cause but no organic
cause was found. Now he is better and his mood is normal. His provisional diagnosis is
adjustment disorder.”)
8.
On 1 January 2021, the player was transferred to the Thai club Chomburi F.C.
9.
On 19 May 2021, the player signed a contract with another Thai club, Samut Prakan City
Football Club.
pg. 3
REF. FPSD-9981
II. Proceedings before FIFA
10. On 29 December 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. The requests for relief of the Claimant were the following:
“(…) iii) To rule that Suphanburi shall pay to the Player a compensation of USD104,000.00
(one hundred and four thousand American Dollars), since the Player did not receive any
compensation nor penalty amount for such unlawful early termination;
(iv) To rule that Suphanburi shall pay to the Player BHT 200.000 (two hundred thousand
Thai Baths), as provided on clause 3.4 of the Employment Agreement, observing the actual
currency exchange rate on the date of effective payment;
(v) As per article 17 of FIFA RSTP, since the undisputed egregious circumstances, to rule that
Suphanburi shall pay an additional compensation increased to a maximum of 6 (six)
monthly salaries of USD 13,000, also taking into account less amounts received by the
Player as his 3 monthly at Chonburi from January 2021 to March 2021;
(vi) It should be noted that all amounts due shall be converted taking into account the
exchange currency rate of the date of actual payment and accrued by interest of 5% (five
percent) per annum from the date of default pursuant to FIFA’s well-established
jurisprudence and Swiss Law.
(vii) To impose a sporting sanction on the Club pursuant to the fact that the termination of
the Employment Contract without just cause occurred during the protected period; and
(viii) In any event, to order the Club to cover all costs of the proceedings and to bear all the
legal fees, if any.”
12. The Claimant argued that the Respondent terminated the contract without just cause,
exercising “an abusive and outrageous conduct” as the player was, without any warning,
fired and evicted from his house.
13. The Claimant was of the opinion that he is entitled to the following amounts based on the
relevant contracts:
“Since the unilateral termination occurred in December 2020, the Player is entitled to receive
(i) the difference between the unjustified cut on his salary from April 2020 to November 2020,
which corresponds to USD 6.500,00 of cut x 8 months, totalizing to USD 52.000,00 (fifty two
thousand American Dollars, plus (ii) the outstanding salaries fully due (USD 13.000,00 thirteen thousand American Dollars - monthly) as of the termination on December 2020 to
April 2021 when his Employment Agreement would be valid, which corresponds to USD
13.000,00 x 5 months, totalizing to USD 65.000,00 (sixty five thousand American Dollars.
pg. 4
REF. FPSD-9981
However, on December 2020 with the termination the Club only delivered the payment of USD
13,000 for his salary, as the receipt herein attached, and for this reason the total amount due
as wages is USD 104,000.00 (one hundred and four thousand American Dollars).
On top of that, Suphanburi also failed to pay a lump sum of BHT 200.000 (two hundred
thousand Thai Baths), provided on clause 3.4 of the Employment Agreement, that would be
used by the Player for the expenses with the car, as well as to air-ticket expenses. Such
financial unfulfillment can be seen from the Player’s bank statement and the Club shall be
condemned by the Chamber to deliver such payment to the Player, observing the actual
currency exchange rate on the date of effective payment plus interest rate of 5% aa. according
to the well-established jurisprudence of FIFA and CAS.”
b. Position of the Respondent
14. Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether he was competent to deal with the case at hand.
In this respect, the Single Judge took note that the present matter was presented to FIFA
on 29 December 2022 and submitted for decision on 21 June 2023. Taking into account the
wording of art. 34 of the March 2023 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.
16. 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 (May 2023 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Brazil and a club from
Thailand.
17. At this point, the Single Judge referred to art. 23 par. 3 of the Regulations (May 2023
edition), which stipulates that the decision-making bodies of FIFA shall not hear any dispute
if more than two years have elapsed since the facts leading to the dispute arose. The
application of this time limit shall be examined ex officio in each individual case.
pg. 5
REF. FPSD-9981
18. In this context, the Single Judge recalled that the present claim was lodged in front of FIFA
on 29 December 2022. Therefore, in line with art. 23 par. 3 of the Regulations, any amounts
fallen due before 29 December 2020 are affected by the statute of limitations.
19. The Single Judge noted that, in the present case, the Claimant inter alia requested the
payment of “unjustified cut on his salary from April 2020 to November 2020”, which has fallen
due on before 29 December 2020. The Single Judge thus concluded that the Claimant’s
request is partially time-barred. Consequently, the specific part of the Claimant’s claim as
to the “unjustified cut on his salary from April 2020 to November 2020” of USD 52,000 is
considered inadmissible.
20. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 30 December 2022, the October 2022
edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
21. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
22. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
23. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of that this is a claim of a player against a club arising concerning an
alleged termination of a contract allegedly concluded on 14 October 2020.
pg. 6
REF. FPSD-9981
24. In this respect, the Single Judge firstly recalled that the October Employment Agreement
was not signed by either party, nor that the Claimant provided sufficient evidence proving
that the said agreement entered into force.
25. At this point, the Single Judge noted that the initial contract was valid until December 2020
as well as the fact that the “Final Contract Completion Agreement” is specifically referring
to the initial contract.
26. Based on the above, and referring to art. 13 par. 5 of the Procedural Rules, the Single Judge
concluded that it cannot be established that an employment relationship between the
parties has been prolonged until April 2021.
27. In this context, the Single Judge established that any claim based on the October
Employment Agreement shall be rejected. It goes in hand that, in this respect, the Single
Judge does not need to enter into the question of the validity of the “Final Contract
Completion Agreement”.
28. For the sake of completeness, the Single Judge added that any possible entitlement to
outstanding salaries in the present matter would correspond to December 2020, yet the
Claimant himself confirmed that he received the December 2020 salary.
29. In view of the above, the Single Judge rejected the claim of the Claimant.
d. Costs
30. The Single Judge 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, he decided that no procedural costs were to be imposed on
the parties.
31. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
32. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 7
REF. FPSD-9981
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Eliandro dos Santos Gonzaga, is rejected insofar it is admissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 8
REF. FPSD-9981
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
pg. 9