Labour Disputes
Texto da decisão
REF FPSD-3185
Decision of the
Dispute Resolution Chamber
passed on 23 February 2022
regarding an employment-related dispute concerning the player
Andre Luiz Duarte Parente
BY:
Johan van Gaalen (South Africa)
CLAIMANT:
Andre Luiz Duarte Parente, Brazil
Represented by Dyego Tavares
RESPONDENT:
Sur Sports Club, Oman
Represented by Habib Grami
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I.
Facts of the case
1.
On 26 September 2019, the Brazilian player Andre Luiz Duarte Parente (hereinafter the Claimant
or the player) and the Omani club Sur Sports Club (hereinafter the Respondent or the club)
concluded an employment agreement (hereinafter the Employment Agreement) valid as of
1 September 2019 until 30 June 2020.
2.
In accordance with “Schedule 1: Players Remuneration”, the Claimant and the Respondent
(hereinafter jointly referred to as the Parties) agreed upon the following financial conditions: “The
total contract values (40000) US dollars distributed to the salaries during the sports season
2019/2020”, i.e. USD 4,000 per month.
3.
On 8 January 2020, the Claimant sent a default notice to the Respondent, requesting the
outstanding payments of two monthly salaries of November and December 2019 (i.e. USD 8,000)
within the next 15 days.
4.
Allegedly, in January 2020, the Employment Agreement was terminated.
5.
Whereas the Claimant alleged that the termination occurred on 12 January 2021 “on the initiative
of the club”, the Respondent was of the opinion that the Employment Agreement was terminated
mutually on 9 January 2020 and provided a signed document to support its allegations. The
translation of the document reads as follows:
“Statement of financial settlement
On Wednesday 09/01/2020, I, the undersigned /ANURE LUIZ DUARTE PARENTE. Brazilian
Nationality. Civil Number 119301371. a player in Sur Sports Club. that I have settled all my
financial dues with Sur Sports Club for the season of 2019/2020. and I am not entitled to
claim Sur sports Club for any other financial dues. Concerning the contract or any other
financial obligations.”
6.
The Respondent further alleged that the Claimant signed the following undated document:
“Eu, jogador do Tire Sports Club, primeiro time I Andre Luis Duarte Parenti, certifico que
recebi o bilhete de volta ao meu pais depois de quebrar o contrato corn um valor total de
(650) RO.”
Freely translated as:
“I, a player of Tire Sports Club, first team I Andre Luis Duarte Parenti, certify that I have
received a ticket back to my country after breaking the contract for a total amount of (650)
RO.”
7.
On 30 July 2020, the Claimant sent a default notice to the Respondent, requesting the outstanding
payments of two monthly salaries of November and December 2019 (i.e. USD 8,000) within the
next 15 days.
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8.
In the said default notice, the Claimant added that “if there is no response, reintegration and
payment / protest of the claimed club, it is also required to pay the corresponding indemnity for
termination of the employment contract for just cause of the employer club in the amount of
US 24,000.00 (…) relating to the remaining balance of the labor contract.”
9.
On 10 August 2020, the Respondent sent the following letter to the Claimant:
“with reference to the letter received from the Omani Football Association on 08/03/2020
pertaining to the player /Andre Lui Durate Parente, and your request to pay an amount of
(8000 US dollars) worth two months of the player's contract with the club, we inform you
that the player has terminated his contract with The club by mutual consent and signed a
financial settlement accordingly, in addition to his signature of exchange receipts indicating
that he received his salaries during his time in the club, an therefore the player does not
have any other dues with the club.”
10. The Claimant informed FIFA Administration that he remained unemployed until 30 June 2020.
II. Proceedings before FIFA
11. On 29 July 2021, 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
12. The Claimant requested the total amount of USD 25,507, corresponding to the outstanding
payment of December 2019 (i.e. USD 1,507) and the remaining full salary payments as from
January 2020 until June 2020.
13. The Claimant based its claim on art. 13 and 14 RSTP and asserted that it should be entitled to a
“compensation corresponding to the early termination of the contract.”
b. Position of the Respondent
14. The Respondent rejected the claim of the Claimant and argued that the Employment Agreement
was terminated mutually between the two Parties, hence it was not a unilateral termination as
claimed by the Claimant (see I./3.).
15. Furthermore, the Respondent alleged that the Claimant had received all his financial dues,
namely, that it made the following payments to the Claimant:
-
“After signing the contract, and dated 26/08/2019, the player received a sum of 100
Omani Rial (equal to 260 USD)
On 16/09/2019, the player received a second sum of 155 Omani Rial (equal to 402
USD)
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-
After a few days, and as of 19/09/2019, the player received a third sum of 1285 Omani
Rial (equal to 3338 USD)
That said, the player received a sum of 4000USD at the end of September. [Note:
totality of the payments above]
As of 30/10/2019, the player received a sum of 1540 Omani Rial (equal to 4000USD)
On 5/11/2019 the player received a sum of forty riyals
On 21/12/2019, the player received a sum of 50 Omani Rial (equal to 130 USD)
The club and the player have signed a mutual agreement to terminate the contract
dated 09/01/2019.
After signing the said agreement, the player received an amount of 2500 Omani Rial
(equal to 6493 USD)”
16. The Respondent further alleged that “the player also signed an approval, admitting that he had
received a return ticket to his country, after termination of the contract, with a total value of 650
Omani Rial (equal to 1688.35 USD)”.
17. Finally, the Respondent argued that “the signature of the player dated 09/01/2020 written in
Arabic and Spanish language proves that he had consented to terminate his contract and that he
admits that there will be no new demand from him towards the club and that he undertakes never
to file complaints in the future against the club.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 29 July 2021 and submitted for
decision on 23 February 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.
19. Subsequently, the Single Judge 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 (August 2021 edition), he 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 Omani club.
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 Player (August 2021 edition) and considering
that the present claim was lodged on 29 July 2021, the February 2021 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
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 the fact that this is a case between a player and a club, concerning a termination
of the employment agreement and recalled that, in line with the well-stablished jurisprudence of
the DRC, a termination of a contract is only an ultima ratio measure.
24. First of all, the Single Judge noted that whereas the Parties agree that the employment
relationship has been terminated in January 2020, the Claimant alleged that the termination was
a unilateral decision from the Respondent.
25. The Single Judge further acknowledged that, on the contrary, the Respondent claimed that the
employment relationship was terminated mutually and provided a document named “Statement
of financial settlement”.
26. The Single Judge continued by analysing the said document and acknowledged that the original
version of the said document in Arabic appears to be signed by the Claimant and that the
Respondent provided FIFA Administration also with the translated version of the document, which
reads in English as follows: “I have settled all my financial dues with Sur Sports Club for the season
of 2019/2020. and I am not entitled to claim Sur sports Club for any other financial dues.
Concerning the contract or any other financial obligations.”
27. The Single Judge equally acknowledged that, upon request to comment on the specific document,
the Claimant alleged that “the “Statement of Financial Settlement” is not even signed by the
claimant”.
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28. Taking into account the discrepancy between the Parties, the Single Judge requested the
Respondent to provide a physical original of the disputed document on which the Respondent
bases its argumentation, however, to no avail.
29. Consequently, the Single Judge referred to art. 13 par. 5 of the Procedural Rules, according to
which a party that asserts a fact has the burden of proving it and concluded that the alleged
settlement agreement titled “Statement of financial settlement” cannot be upheld.
30. In view of the above, the Single Judge deemed that the Respondent had terminated the contract
with the Claimant without just cause, as asserted by the Claimant, and is to be held liable for the
consequences thereof.
31. Finally, the Single Judge wished to point to the overall circumstances of the case. In particular, the
Single Judge highlighted that approximately two monthly salaries remained outstanding in the
respective period, i.e. on 9 January 2020. In this respect, the Single Judge remarked that, in any
event, this circumstance would allow the Claimant to validly terminate the employment
relationship.
ii. Consequences
32. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
33. First of all, the Single Judge then observed that on the date of the alleged termination
on 9 January 2020, the Player was entitled to USD 17,161.29, corresponding to four months of
September 2019 until December 2019 and 9 pro rata days of January 2020.
34. However, the Single Judge acknowledged that the Claimant confirmed to have received the total
amount of Omani Rial (hereinafter the OMR) 5,670, i.e. USD 14,685.8 (converted as per
26 September 2019).
35. Therefore, the Single Judge concluded that the payment of USD 2,475.49 remained outstanding
on the date of termination (USD 17,161.29 - USD 14,685.8)
36. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the contract at the moment of the termination, i.e. USD 2,475.49.
37. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, he 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
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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.
38. In application of the relevant provision, the Single Judge held that he 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 Single Judge established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
39. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
40. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge concluded that the
amount of USD 18,838.71 (i.e. the residual value of the contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
41. In continuation, the Single Judge 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.
42. Nonetheless, the Single Judge recalled that the Claimant was not able to find any other
employment for the respective period.
43. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Single Judge decided that the club must pay the amount of USD 18,838.71
to the player, which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
iii. Compliance with monetary decisions
44. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis 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.
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45. In this regard, the Single Judge 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.
46. Therefore, bearing in mind the above, the Single 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.
47. 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.
48. The Single 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
49. 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.
50. 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.
51. Lastly, the Single Judge concluded his 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, Andre Luiz Duarte Parente, is partially accepted.
2.
The Respondent, Sur Sports Club, has to pay to the Claimant, the following amount:
- USD 2,475.49 as outstanding remuneration.
- USD 18,838.71 as compensation for breach of contract without just cause.
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. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance with
art. 24bis par. 7 and 8 and art. 24ter 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).
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