Labour Disputes
Texto da decisão
REF. FPSD-11290
Decision of the
Dispute Resolution Chamber
passed on 28 September 2023
regarding an employment-related dispute concerning
the player Carlos Damian Dos Santos Puentes
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Laurel VAURASI (Fiji), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Carlos Damian Dos Santos Puentes, Brazil
Represented by Pedro Macieirinha
RESPONDENT:
Khitan SC, Kuwait
pg. 2
REF. FPSD-11290
I. Facts of the case
1.
The parties to the dispute are the player Carlos Damian Dos Santos Puentes from Brazil
(hereinafter: the player or the Claimant) and the club Khitan SC from Kuwait (hereinafter:
the club or the Respondent).
2.
On 12 June 2023, the Respondent allegedly sent an offer to the Claimant (hereinafter: the
Offer), with the following contents (quoted verbatim):
“Dear Mr. Carlos Demian
After Greetings.,.
Khaitan Club offer according to the following conditions:
1) The contract period is 10 months, starting from August 1, 2023, until May 31, 2024.
2) The total salary is $60,000.
3) Pay 7,200 dollars in advance of the contract.
4) $52,800 divided into 10 salaries paid at the end of each month.
5) Provide accommodation
6) And a transportation a1lowance of 150 dinars
7) A round-trip airfare.
Note that this offer is valid for 48 hours only
General Secretary
Khaitan Sports Club”
3.
The Offer was drafted in the club’s letterhead and is signed and stamped by the club. While
it does not contain any designated space for the player to counter-sign it, the player’s
signature is found therein.
4.
The player argued that on the same day he signed the Offer and returned it to his agent to,
who forwarded it to a representative of the Respondent. It is to be noted that the evidence
provided by the Claimant in this respect is unclear.
5.
On 27 June 2023, the player put the club in default, deeming the Offer as a valid and binding
contract, and requesting (i) the payment of USD 7,200 as the advance salary; (ii) to provide
accommodation and airfare; and (iii) to sign a definitive employment contract within 15
days.
6.
On 27 July 2023, the player reached out to the club via letter and with reference to art. 14
par. 2 of the Regulations on the Status and Transfer of Players (RSTP), terminated the
alleged employment relationship between the parties.
7.
On 1 August 2023, the player signed a contract with the Thai club, Sisaket FC, until the end
of the regular season 2023/2024 in Thailand, for a salary of THB 70,000 net per month.
pg. 3
REF. FPSD-11290
8.
On 9 August 2023, the player lodged the claim at hand against the club requesting, inter
alia, payment of compensation for breach of contract in the amount of USD 60,000, plus
interest of 5% p.a. as from the 27 July 2023.
9.
In his claim, the player explained that the club failed to comply with its obligations arising
from the Offer, such as paying him in advance, providing accommodation and airfare, and
formalizing an employment contract. The player further remarked that he sent a default
letter and a termination letter to the club, but received no response.
10. The player also asked for disciplinary measures to be imposed on the club.
11. In its reply, the club denies any contractual obligations to the player and argues that the
Offer was not valid, binding or signed by authorized parties. The club also accuses the
player’s agent of lacking legal capacity and good faith in the negotiations.
12. In particular, the club outlined the following:
-
The Offer was not signed by a club’s official with powers to act on behalf of the club per
its articles of association.
-
The player’s agent lacks legal capacity and good faith in the negotiations. It highlighted
as follows:
“The supposed agent or representative of the player did not provide any document
proving his capacity and representation of the latter and that he is authorized to
negotiate and market it or mediate to conclude any contract and enter doubts with
the defendant regarding this, which prompted the club not to continue negotiating
with him and concluding any employment contract with the aforementioned player who did not correspond with the club until after notifying him through the supposed
agent that the club does not want to contract with him or conclude a professional
contract with him, which is the reason for not responding to the letter sent From it to
the club because the matter actually ended due to the bad faith of the agent and his
failure to comply with the regulations for the agents of the players”-
-
The club invokes the local law of Kuwait and argues that there was a lack of mutual
consent and ratification, which are necessary for a contract to be valid.
13. The club requested the claim to be rejected.
pg. 4
REF. FPSD-11290
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) 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 August 2023 and submitted
for decision on 28 September 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.
15. Furthermore, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par.
1 lit. b) of the RSTP (May 2023 edition) it 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 Kuwaiti club.
16. 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 RSTP (May 2023 edition), and considering that the present claim was lodged
on 9 August 2023, the same edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
17. 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
18. 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
pg. 5
REF. FPSD-11290
19. 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 whether there was an
employment relationship between them and, if so, the consequences thereof.
20. On his part, the player argued that he received the Offer from the club via the electronic
application WhatsApp. On the other hand, the club categorically denied the existence of an
employment relationship with the player.
21. On this note, the DRC underlined that it does not seem that the club denies that the Offer
existed – it in fact disputes whether it can produce legal effects because of the
representative signing the same, and the issue with the lack of authority of the player’s
agent.
22. In view of the foregoing, the DRC wished to recall its well-established jurisprudence which
dictates that, in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it should contain the
essentialia negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship and the remuneration payable by the
employer to the employee.
23. With the above in mind, the DRC noted that the Offer does not contain any indication as to
the role of the parties, and therefore it does not seem that the essentialia negotii criteria is
met. In particular, the DRC found that it cannot be established per the Offer what are the
duties of each party, and in what capacity the Claimant would be hired by the Respondent.
24. At the same time, even if it the essentialia negotii were met, the DRC was not satisfied based
on the evidence on file that the player accepted the Offer within the deadline of 48h, for
the documentation he submitted in this respect, consisting of WhastApp messages, is
rather confusing and poorly translated. In addition, from said pieces of evidence, the DRC
could not comfortably establish who the people involved are, and the player advanced no
explanation whatsoever in this respect.
25. As a final remark and for the sake of completeness, the DRC underlined that in the
hypothesis of the Offer being deemed valid and binding, the advance payment would be
due “in advance of the contract”, which was set to start on 1 August 2023. It seems therefore,
in the DRC’s view, that the player was premature in his collection of the advance payment,
since – so it stems from the interpretation of the Offer – this amount would be payable at
least until 31 July 2023. As a consequence, the player would have terminated such “valid
and binding contract” without just cause, entailing, naturally, that no compensation shall
be paid by the club.
pg. 6
REF. FPSD-11290
26. Having established the above, the DRC concluded that the overall developments of the case
could not demonstrate to the required standard of proof that an employment contract was
validly concluded by the parties.
27. Therefore, the Chamber decided that no compensation is to be awarded and,
consequently, that the player’s claim shall be rejected.
d. Costs
28. 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.
29. 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.
30. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 7
REF. FPSD-11290
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Carlos Damian dos Santos Puentes, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 8
REF. FPSD-11290
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
Fédération Internationale de Football Association
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