Labour Disputes
Texto da decisão
REF FPSD-5132
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Jose Gabriel
Dos Santos
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Angela Collins (Australia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Jose Gabriel Dos Santos, Brazil
Represented by Breno Pinto Gondim de Almeida, Andre Scalli
RESPONDENT:
Masfout, United Arab Emirates
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I.
Facts of the case
1.
On 1 September 2021, the Brazilian player, Jose Gabriel Dos Santos (hereinafter: the Claimant
or player), and the club, Masfout, from the United Arab Emirates (hereinafter: the
Respondent) signed an employment contract (hereinafter: contract) valid as from the date of
signature until 30 April 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of UAE Dirham (AED) 8,000.
3.
On 4 November 2021, the player signed a document named “declaration”, which reads: “I
admit that I have received from Masfoot Sports Club in UAE all my financial dues with the
club for my contract for the season 2021-2022 as a resident player in the First Football Team.
And I admit that the club is totally acquitted from any financial obligations related to me
according to my contract. I issue this declaration without any pressure or coercion from any
one.”
4.
According to information contained in the Transfer Matching System (TMS), on 28 January
2022, the player signed an employment contract with the Brazilian club, Atletico de
Cajazeiras, valid as from the date of signature until 30 April 2022, including a monthly salary
of Brazilian Real (BRL) 1,212 (approx. USD 250 or AED 900).
II. Proceedings before FIFA
5.
On 11 February 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
6.
In his claim, the Claimant requested payment of the following monies:
USD 7,731.89 or AED 28,400 as compensation for breach of contract,
corresponding to the salaries of November 2021 until January 2022, plus 9 days in
February 2022.
A flight ticket from “Dubai-Guarulhos-Maceio” calculated by FIFA;
Legal fees incurred by the Claimant.
The Claimant requested interest of 5% p.a. as of the due dates.
7.
In this regard, the player held that he was “induced” by the club sign the declaration after
the club had terminated the contract with him. Furthermore, the player pointed out that he
did not want to terminate the contract as he could not sign with any club at this moment
outside the transfer window.
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8.
He acknowledged having received one monthly salary, but held that he was entitled to six
monthly salaries more.
9.
On account of the above, the player argued that he would have been entitled to AED 48,000,
corresponding to six monthly payments more, but that he signed a new contract in Brazil.
Therefore, he only claims the salaries for November 2021 until 9 February 2022 (AED 28,400).
b. Position of the Respondent
10. The Respondent failed to reply to the claim even though it was invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 11 February 2022 and submitted for
decision on 21 April 2022. Taking into account the wording of art. 34 of the October 2021
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.
12. 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 (March 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
an Emirati club.
13. 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 (March 2022 edition), and
considering that the present claim was lodged on 11 February 2022, the August 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
14. 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
15. 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
16. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that the terminated the contract on 4
November 2021 without just cause and then forced him to sign the declaration. In this
context, the Claimant held being entitled to compensation for breach of contract as well as
reimbursement of a flight ticket and legal fees.
17. The Respondent, for its part, failed to present its response to the claim of the player, in spite
of having been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
18. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred
that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the Claimant.
19. In this context, the Chamber acknowledged that the Claimant’s allegations remained
uncontested. Taking into account the premature termination without a reasoning, the
Chamber concluded that, the club had no just cause to terminate the contract.
20. Moreover, since the club did not dispute the player’s allegations regarding the circumstances
of the conclusion of the declaration, the Chamber decided not to take into account such
document, as it appears that the player was forced to sign it. Furthermore, the Chamber did
not see a fair balance of rights arising from such documents between the player and the club.
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ii. Consequences
21. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
22. The Chamber observed that no remuneration remained outstanding at the time of
termination.
23. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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 player 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.
24. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
25. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
26. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of AED 48,000 (i.e. November 2021 until April 2022; 6x AED 8,000) serves
as the basis for the determination of the amount of compensation for breach of contract.
27. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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28. Indeed, the player found employment with the Brazilian club, Atletico de Cajazeiras. In
accordance with the pertinent employment contract, the player was entitled to approximately
AED 900 per month. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of AED 2,700, that is, 3 times AED 900.
29. Subsequently, the Chamber duly noted that the Claimant limited his claim to the amount of
AED 28,400, which will be considered by the DRC.
30. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of AED 28,400
to the player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
31. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of the date of the claim, 11 February 2022, until the date of effective
payment.
32. Moreover, the DRC decided to reject the Claimant’s claim for reimbursement of flight tickets
as this part of the claim was not substantiated. The player only submitted untranslated
documents and failed to request an amount for reimbursement.
iii. Compliance with monetary decisions
33. 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.
34. 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.
35. 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.
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36. 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.
37. 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
38. 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.
39. 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.
40. 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, Jose Gabriel Dos Santos, is partially accepted.
2.
The Respondent, Masfout, has to pay to the Claimant, the following amount(s):
- UAE Dirham (AED) 28,400 as compensation for breach of contract plus 5% interest p.a. as
from 11 February 2022 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.
5.
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.
2.
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.
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.
6.
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.
7.
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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