Labour Disputes
Texto da decisão
REF FPSD-2436
Decision of the
DRC Judge
passed on 18 August 2021
regarding an employment-related dispute concerning the player Gilmerson dos Santos
Mota
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Gilmerson dos Santos Mota, Brazil
Represented by Bichara e Motta Advogados
RESPONDENT:
Club Africain, Tunisia
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REF FPSD-2436
I.
FACTS OF THE CASE
1.
On an unspecified date, the Brazilian player, Gilmerson dos Santos Mota (hereinafter:
Claimant), and the Tunisian club, Club Africain (hereinafter: Respondent) concluded an
employment agreement (hereinafter: contract), valid from 1 July 2020 until 30 June 2023.
2.
Pursuant to art. 4 of the contract, the Claimant was entitled to receive the following
monthly remuneration:
•
•
•
Season 2020/21: USD 5,000 (according to FIFA TMS – season ends on 30 June
2021)
Season 2021/22: USD 6,000 (according to FIFA TMS – season ends on 30 June
2022)
Season 2022/23: USD 7,000 (according to FIFA TMS – season ends on 30 June
2023)
3.
On 9 March 2021, the Claimant sent a default notice to the Respondent, requesting
payment of his outstanding remuneration in the amount of USD 10,000, corresponding to
his January and February 2021 salary, as well as a final reminder to the Respondent to
proceed with his registration at the Tunisian Football Association, granting it a deadline of
15 days to comply.
4.
According to the Claimant, on 26 March 2021, the Respondent replied to the, inter alia,
contesting the amounts claimed by the Claimant.
5.
On the same day, the Claimant sent a second notification to the Respondent requesting,
“written evidence that the relevant transfer ban had been lifted by FIFA”, and further
informing the Respondent that his outstanding salaries of December 2020, January and
February 2021 had not been paid, granting it an additional 5 days to remedy the default.
6.
Moreover, the Claimant explained that on 1 April 2021,” a video-conference meeting was
held between several Club’s representatives and one of the Player’s undersigned counsel,
Mr. Victor Eleuterio. At the occasion, the Club undertook to submit a settlement proposal
for the Player until 05 April 2021. The Player’s counsel, in turn, clarified that the deadline
for the Club to submit the settlement proposal was without prejudice to the deadlines
previously granted in the Player’s notifications.”
7.
Accordingly, on 5 April 2021, the Respondent submitted to the Claimant the following
proposal:
–“We propose to terminate the contract with effective date March 31st, 2021.
– We propose to pay all outstanding salaries until March 31st, 2021.
– We propose to pay all travel expenses to the player to travel back to Brasil.”
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8.
On the same day, the Claimant rejected the proposal and “granted to the Club a final
deadline until the following day to provide evidence that it had complied with the requests
put forward in his previous notifications, otherwise he would terminate the Employment
Contract without any prior notice”
9.
On 7 April 2021, the Claimant unilaterally terminated the contract, based on the
outstanding amount.
10.
On 9 June 2021, the Claimant concluded and employment contract with Sport Club
Camaçariense, Brazil valid from 9 June to 7 September 2021, based on which the Claimant
was entitled to a monthly compensation of Brazilian Real (BRL) 1,800 (approximately USD
351) with the total compensation for the period being BRL 5, 340 (approximately USD
1,041.30)
II.
PROCEEDINGS BEFORE FIFA
11.
On 3 May 2021, the Claimant filed the claim at hand before FIFA.
a.
12.
The claim of the Claimant
The requests for relief of the Claimant, were the following:
(a)
(b)
(c)
(d)
(e)
that the Respondent pay to the Claimant his outstanding remuneration in the total
amount of USD 20,000;
that the Respondent pay to the Claimant the amount of USD 171,000 as
compensation for breach of contract and USD37,999.98 as additional
compensation corresponding to 6 (six) months of his average monthly salary for the
remaining period of the contract;
payment of legal interest at a rate of 5% per annum over the amounts due by the
Respondent to the Claimant, from the respective due dates until the date of
effective payment;
that sanctions under articles 12bis and 17, par. 4, of the FIFA RSTP be imposed on
the Respondent; and
that the Respondent bear all administrative and procedural costs related to this
procedure.
13.
According to the Claimant - in light of the suspension of football competitions in Tunisia the parties agreed that the Claimant “would remain at his previous club, Union Sportive de
Ben Guerdane, until the end of the 2019/20 season and only join the Respondent as of
October 2020.”
14.
The Claimant has indicated that since joining the club (October 2020), the Respondent has
failed to register him with the Tunisian Football Association (“TFA”) and since December
2020, no longer received any salary payments from the Respondent.
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b.
Position of the Respondent
15.
Despite being invited to do so, the club failed to reply to the claim.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
16.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge)
analysed whether it was competent to deal with the case at hand. In this respect, it took
note that the present matter was submitted to FIFA on 3 May 2021 and presented for
decision on 18 August 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.
17.
Subsequently, the members of the DRC Judge referred to art. 3 par. 1 of the Procedural
Rules and observed that in accordance with art. 24 par. 1 and par. 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition February 2021),
the DRC Judge 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 Tunisian club.
18.
Subsequently, the DRC Judge 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 3 May 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
19.
The DRC Judge 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 Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
20.
In this respect, the DRC Judge 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.
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c.
21.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations, he 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
22.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties on an unspecified date, concluded an
employment contract valid as from 1 June 2020 until 30 June 2023.
23.
The DRC Judge observed that the Claimant lodged a claim in front of FIFA against the
Respondent, asserting that the Respondent had not fulfilled its contractual obligations
towards him. More specifically, the Claimant indicated that the Respondent had failed to
pay his salaries for the months of December 2020, January to February 2021 and that the
Respondent failed to register him at the Tunisian Football Association.
24.
Subsequently, the DRC Judge noted that – after having been provided with the claim of the
Claimant - the Respondent failed to present its response to the claim, in spite of having been
invited to do so. By not presenting its position to the claim, the DRC Judge was of the
opinion that the Respondent renounced its right of defence and, thus, accepted the
allegations of the Claimant.
25.
Taking into account the documentation presented by the Claimant, the DRC Judge
concluded that the Claimant had substantiated its claim pertaining to his outstanding
remuneration with sufficient documentary evidence.
26.
In this context, the DRC Judge established that the Respondent without any valid reason,
failed to remit to the Claimant his remuneration for the months of December 2020 and
January to March 2021 in the total amount of USD 20,000.
27.
Consequently, considering that the Respondent had thus repeatedly been in breach of its
contractual obligations towards the Claimant, the DRC Judge decided that the Claimant had
just cause to unilaterally terminate the employment contract on 7 April 2021 in accordance
with art. 14bis of the Regulations and that, as a result, the Respondent is to be held liable
for the early termination of the employment contact with just cause by the Claimant.
ii. Consequences
28.
Having stated the above, the DRC Judge decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant his
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REF FPSD-2436
outstanding remuneration at the date of termination of the contract i.e. 7 April 2021, in the
amount of USD 20,000, corresponding to:
(a)
(b)
(c)
(d)
USD 5,000 as salary for December 2020;
USD 5,000 as salary for January 2021;
USD 5,000 as salary for February 2021; and
USD 5,000 as salary for March 2021.
29.
Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the DRC Judge decided to award 5% interest p.a. on the above
amounts from the respective due dates until the date of effective payment.
30.
In continuation, the DRC Judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
31.
In this context, the DRC Judge outlined that, in accordance with the said provision, 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 Claimant 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.
32.
In application of the relevant provision, the DRC Judge held that it first had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract. In this regard, the DRC Judge established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
33.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the DRC Judge took into account the remuneration due to the Claimant in accordance with
the employment contract as well as the time remaining on the same contract, along with
the professional situation of the Claimant after the early termination occurred. In this
respect, the DRC Judge pointed out that at the time of the termination of the employment
contract on 7 April 2021, the contract would run for another 27 months (i.e. the period
between April 2021 and June 2023).
34.
Consequently, taking into account the financial terms of the contract, the DRC Judge
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to USD 171,000 and that such
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amount shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
35.
In continuation, the DRC Judge remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant informed FIFA
that he had signed a new contract with the club, Sport Club Camaçariense, Brazil valid from
9 June to 7 September 2021 for total compensation in the amount of BRL 5,340. For the
overlapping period between the old and the new contract, this corresponds to the total
amount of (approximately) USD 1,041.30, which shall be deducted from the remaining
value of the contract.
36.
Subsequently, the DRC Judge turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player – subject to him finding new employment by means of which
he could mitigate his damages - is entitled to an additional compensation of three
monthly salaries, subject to the early termination of the contract being due to overdue
payables. In case of egregious circumstances, the additional compensation may be
increased up to a maximum of six monthly salaries, whereby the overall compensation may
never exceed the residual value of the prematurely terminated contract.
37.
With the above in mind, the DRC Judge confirmed, that the termination of the contract
took place on account of overdue payables and thus that the Claimant is entitled to
additional compensation of three salaries in the total amount of USD 15,000. However, the
DRC Judge confirmed that the entire amount of compensation (including any additional
compensation) cannot exceed the residual value of the original (terminated) contract as per
the unequivocal wording of art. 17 par. 1 lit. ii) of the Regulations. Accordingly, the DRC
Judge concluded that additional compensation to be awarded to the Claimant is capped at
USD 1,041.30.
38.
In conclusion, the DRC Judge decided that the Respondent is liable to pay the total amount
of USD 171,000 to the Claimant as compensation for breach of contract, which is
considered by the DRC Judge, to be a reasonable and justified amount as compensation.
39.
Moreover and in line with well-established jurisprudence, the DRC Judge decided to award
5% interest p.a. on the above amount as from 3 May 2021, i.e. date of claim.
40.
Furthermore, the DRC Judge rejected any claim for legal expenses and procedural
compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence in this regard.
41.
The DRC Judge concluded his deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
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iii. Compliance with monetary decisions
42.
Finally, the DRC judge referred to par. 1 lit. and 2 of art. 24bis 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.
43.
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.
44.
Therefore, bearing in mind the above, the DRC Judge 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. 24bis par. 2, 4, and 7 of the Regulations.
45.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
46.
The DRC Judge 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. 24bis
par. 8 of the Regulations.
d.
Costs
47.
The DRC Judge 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 DRC Judge decided that
no procedural costs were to be imposed on the parties.
48.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
49.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Gilmerson dos Santos Mota, is partially accepted.
2.
The Respondent, Club Africain, has to pay to the Claimant, the following amounts:
(a)
USD 20,000 as outstanding remuneration plus 5% interest p.a. as from the
respective due dates until the date of effective payment, as follows:
-
on the amount of USD 5,000, as from 1 January 2021;
on the amount of USD 5,000, as from 1 February 2021;
on the amount of USD 5,000, as from 1 March 2021; and
on the amount of USD 5,000, as from 1 April 2021.
(b)
USD 171,000 as compensation for breach of contract, plus 5% interest p.a. as 3
May 2021
-
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the DRC Judge:
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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