Labour Disputes
Texto da decisão
REF FPSD-2444
Decision of the
Dispute Resolution Chamber
passed on 21 January 2022
regarding an employment-related dispute concerning the player Magno Costa
Fernandes
BY:
Daan de Jong (The Netherlands)
CLAIMANT / COUNTER-RESPONDENT:
Magno Costa Fernandes, Brazil
Represented by Carlos Eduardo Licks Flores
RESPONDENT / COUNTER-CLAIMANT:
Bahrain Club, Bahrain
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REF FPSD-2444
I.
Facts of the case
1.
According to the player, on 1 November 2020, the Brazilian player, Magno Costa Fernandes
(hereinafter: “the player” or “the Claimant” or “the Claimant/Counter-Respondent”) and the
Bahraini club, Bahrain Club (hereinafter: “the club” or “the Respondent” or “the
Respondent/Counter-Claimant”) signed an employment contract (hereinafter: “the player´s
contract”) valid for the season 2020/2021; i.e. from 1 November 2020 until 31 May 2021 (i.e. end
of competitions in Bahrain).
2.
Clause 2.1 of the player´s contract provides the following remuneration in favour of the player: USD 3,500 as monthly salary and “the rest will be divided over ten month at 5000-USD a month”.
3.
Clause 5.1 of the player´s contract states, inter alia, that the player accepts deductions from his
monthly salaries in the following circumstances:
5.1.1. Deduction of USD 500 if the player failed to show up or participate in any team practices
without permission of the Physiotherapist or the coaching staff of the club.
5.1.2. Deduction of USD 1000 if the player failed to participate in any official game without
permission the Physiotherapist or the technical/coaching staff of the club.
4.
Clause 6.5.1 of the player´s contract reads, “If the Club elects to terminate this contract before its
due date, for reasons other than the ones mentioned in clause 6.1 of the contract, the Club must
pay the Player the sum of one-month salary”.
5.
Clause 6.6.1 of the player´s contract reads, “If the player elects to terminate this contract before
its due date, he must pay the club a sum of USD 300,000 provided that the termination of the
contract during the registration periods local”.
6.
According to the club, on 1 November 2020, the parties signed another employment contract
(hereinafter: “the club´s contract”) valid for the season 2020/2021; i.e. from 1 November 2020
until 31 May 2021 (i.e. end of competitions in Bahrain).
7.
Clause 2.1 of the club´s contract provides the following remuneration in favour of the player: USD 2,000 as monthly salary and “the rest will be divided over ten month at 1000-USD a month”.
8.
By correspondence dated 8 March 2021, the player put the club in default of payment of USD
12,500 as outstanding remuneration and granting 15 days to the club in order to remedy its
default.
9.
On 20 March 2021, the player sent a new communication (hereinafter: “the letter of termination”)
to the club terminating the contract due to overdue payables for a total amount of USD 18,000.
10. The player informed FIFA General Secretariat that he remained unemployed from 30 March 2021
until 31 May 2021.
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II. Proceedings before FIFA
11. On 3 May 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/Counter-Respondent
12. According to the Claimant, from March 2021 the Respondent began to coerce the player to sign
their contractual termination, forcing him to discharge the debts. “With this situation of nonpayment, on March 30th, 2021 the player sent "Communication" (“terminating a contract with
just cause for outstanding salaries ”- articles 14bis and 15 of the RSTP)”.
13. The requests for relief of the Claimant, were the following:
Outstanding remuneration: USD 16,500
- USD 1,000 (20 days of the November 2020)
- USD 1,500: part of the salary of December 2020 (club paid only USD 2,000);
- USD 14,000: Salaries for the months of January, February, March and April 2021 (4 x USD
3,500);
Compensation: USD 8,500
- USD 5,000 as signing-on fee (cf. clause 2.1 of the contract) and
- USD 3,500 as salary of May 2021.
b. Position and Counterclaim of the Respondent/Counter-Claimant
14. According to the Respondent, the contract provided by the player is not valid.
15. Moreover, the Respondent claimed that the parties concluded a contract (i.e. the club´s contract)
which was signed and registered by the Bahraini Football Association and stating a different
remuneration than the contract provided by the player (cf. point 8 above).
16. Furthermore, the Respondent argued that based on the club´s contract, the player´s
remuneration is paid at the end of each month according to the attendance and departure´s
statement and in the event of non-attendance, the player´s remuneration would be deducted.
17. In this respect, the Respondent alleged that according to the statement enclosed as evidence the
player was absent in February, March and April 2021 from training and official matches without
providing any valid reason.
18. Besides, the club argued that during the month of February 2021, the player trained 16 days with
a competing club (i.e. Sitrah Sports Club) breaching the club´s contract.
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19. The club further argued that the player received all his dues based on his attendance. In particular,
the club stated having paid his remuneration for the months of November and December 2020
and January 2021 and enclosed copy of the alleged payments.
20. The club claimed that the player unilaterally terminated the contract based on the
aforementioned breaches as a consequence the club is entitled to compensation amounting to
USD 20,000.
21. In its request of relief, the club requested to reject the player´s claim and grant to the club the
requested compensation.
c. Position of the Claimant/Counter-Respondent
22. The Claimant argued not having received the club´s contract and that in any case is incomplete
since the last two pages are missing.
23. With regard to the declarations of attendance and departures to training, the player stated that
those documents were unilaterally made by the club and not signed by him.
24. The Claimant further stated that in 7 months of contract (from November 2020 until 30 March
2021), he only received two reduced monthly salaries (November and December 2020) and in
February 2021, he was banned from training due to the fact that he did not want to sign a
contractual termination. In this respect, the player enclosed copy of WhatsApp messages with
club´s officials and two videos.
25. With regard to the evidence presented by the club, the player argued that the club enclosed
payments related to other players and only two payments signed by him, which the player
recognised having received in the claim. The two relevant payments were: 1) On 12 June 2020
referring to the salary of November 2020 (reduced payment) and 2) USD 1,500 (converted from
dinar to dollar).
26. In addition, the player stated that the club did not reply to the default notice and to his letter of
termination.
27. With regard to the counterclaim, the player argued that the club did not present any evidence
related to the alleged expenses. The player further stated that the party breaching the contract
was the club.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
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28. First of all, 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, he took note
that the present matter was presented to FIFA on 3 May 2021 and submitted for decision on 21
January 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.
29. Subsequently, the Single Judge 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 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 a Bahraini club.
30. In continuation, 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 (August 2021 edition), 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
31. 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 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
32. 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 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
33. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the termination of the
employment relationship by the player was with or without just cause.
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34. To start with, the Single Judge noted that the Respondent disputed the validity of the player´s
contract and argued that the valid contract was the club´s contract since it was signed and
registered by the BFA.
35. In this respect, the Single Judge pointed out that the player´s contract is the one registered in TMS.
With regard to the club´s contract, the Single Judge noted that it was incomplete since it seems to
end in an unfinished clause 7.4. Moreover, the Single Judge underlined that the content of both
contracts were identical except from the clause 2.1 related to the player´s remuneration.
36. In this context, the Single Judge reminded the parties that, in line with the contents of art. 18 par.
4 of the Regulations, as well as the jurisprudence of FIFA, the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities, such as, but not
limited to, the registration in the relevant federation, which is the sole responsibility of a club and
upon which a player has no influence. Consequently, the registration or not of the contract in the
relevant federation is irrelevant in determining if the contract was a valid and binding document.
37. Based on the foregoing, the Single Judge rejected the club´s objection that the club´s contract was
valid between the parties since they allegedly signed it and it was allegedly registered by the BFA
taking into account that it was incomplete and not registered in TMS.
38. What is more, the Single Judge recalled 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.
39. In casu, after a thorough analysis of the documentation on file, the Single Judge concluded that all
such elements were included in the document filed by the player. In other words, the Single Judge
understood that the player´s contract indeed included all the relevant information at the basis of
an employment relationship between contractual parties and besides it was registered in TMS.
Thus, the Single Judge decided that the player and the club had effectively concluded, on 1
November 2020, a valid and binding employment contract (i.e. the player´s contract) for the
period between 1 November 2020 until 31 May 2021 establishing, inter alia, a player´s monthly
salary amounting to USD 3,500.
40. In continuation, the Single Judge focused its attention to the Respondent’s allegation –disputed
by the player- that since the player was absent during the months of February, March and April
2021 from training and official matches without providing any valid reason, the club was allowed
to reduce or not pay the player´s salary based on contractual provisions.
41. In this context, the Single Judge acknowledged that the Respondent lodged a counterclaim against
the Claimant for compensation due to the alleged unauthorized absences.
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42. In view of the foregoing, 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 went on to analyse
the documentation provided by the parties in support of their allegations.
43. In this respect, the Single Judge noted that the Respondent presented as evidence of the alleged
player’s absences some attendance and departure´s statements issued by the club but not signed
by the player.
44. In this context, the Single Judge was keen to emphasise that the Respondent did not present any
evidence of having requested the presence of the player to fulfil its contractual obligations or
having initiated disciplinary proceedings due to the alleged absences.
45. What is more, the Single Judge observed that the Respondent did not reply to the default notice
sent by the Claimant on 8 March 2021.
46. Furthermore, the Single Judge pointed out that it remains uncontested by the parties that, on 30
March 2021, the player terminated the employment relationship. Therefore, the Single Judge held
that the alleged absences after that date could not be taken into account as player´s absences.
47. In light of the above, the Single Judge concluded that the evidence provided by the Respondent
namely the attendance and departure´s statements does not prove beyond doubt unauthorised
absences of the Claimant.
48. On the other hand, the Single Judge took note of the allegation of the player that the club, through
its abusive and deliberate conduct, forced the termination of the contract by the player. In
particular, the Single Judge noted that the player claimed having received only two reduced
monthly salaries (November and December 2020) in 7 months of employment relationship (from
November 2020 until 30 March 2021) and as from February 2021, he was prevented from training
since he refused to sign a contractual termination.
49. In this scenario, the Single Judge recalled its long-standing jurisprudence, according to which only
a breach or misconduct which is of a certain severity justifies the termination of a contract. In
other words, only when there are objective criteria which do not reasonably permit to expect the
continuation of the employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order for an
employer to assure the employee’s fulfilment of his contractual duties, such measures must be
taken before terminating an employment contract. A premature termination of an employment
contract can only be an ultima ratio.
50. In line with the above, the Single Judge also referred to the specific wording of art. 14 par. 2 of
the Regulations, according to which “any abusive conduct of a party aiming at forcing the
counterparty to terminate or change the terms of the contract shall entitle the counterparty (a
player or a club) to terminate the contract with just cause”.
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51. Bearing in mind the foregoing as well as the principle of burden of proof, the Single Judge noted
that the behaviour of the club, consisting of hindering training, creating artificial absences and
suspension of the payment of the player’s remuneration is clearly and deliberately abusive.
Furthermore, the Single Judge took note of the evidence provided by the player, showing that he
consistently and in good faith tried to contact the club and be allowed to comply with the terms
of the player´s contract. In this context, the Single Judge concluded that the circumstances of the
present case are in line with art. 14 par. 2 of the Regulations and therefore the player had a just
cause to terminate the player´s contract, due to the abusive conduct of the club.
ii. Consequences
52. 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.
53. The Single Judge observed that the outstanding remuneration at the time of termination under
the contract was the following:
1) USD 1,000 as part of the salary of November 2020;
2) USD 1,500 as part of the salary of December 2020 and
3) USD 10,500 as salaries for the months of January, February and March 2021 (USD 3,500 x 3).
54. In this regard, the Single Judge acknowledged that the Respondent maintained having paid the
Claimant´s remuneration for the months of November and December 2020 and January 2021. In
this respect, the Single Judge noted that the club enclosed evidence of alleged payments made to
different players including the Claimant and among them only two were allegedly signed by the
Claimant, i.e.: -Bahraini Dinar (BHD) 756 dated 4 January 2021 and -BHD 540 dated 6 December
2020.
55. In continuation, the Single Judge pointed out that the evidence of payments presented by the
Respondent, which were signed by the Claimant for a total amount of BHD 1,296 did not specify
the reason of payment. As a result, the Single Judge concluded that evidence of payments
presented by the Respondent should be disregarded.
56. 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 13,000.
57. 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, the Single Judge
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
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remaining on the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
58. In application of the relevant provision, the Single Judge 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.
59. In this regard, the Single Judge took note of the wording of clauses 6.5.1 and 6.6.1 of the player´s
contract, which established the following:
Clauses 6.5.1: “If the Club elects to terminate this contract before its due date, for reasons other
than the ones mentioned in clause 6.1 of the contract, the Club must pay the Player the sum of
one-month salary”.
Clause 6.6.1: “If the player elects to terminate this contract before its due date, he must pay the
club a sum of USD 300,000 provided that the termination of the contract during the registration
periods local”.
60. After analysing the content of the aforementioned clauses, the Single Judge concluded that they
did not fulfil the criteria of reciprocity and proportionality, in line with the Single Judge’s
longstanding jurisprudence, and therefore could not be taken into account for establishing the
amount of compensation payable to the Claimant. In particular, the Single Judge noted said
clauses fixed a significant different amount of compensation taking into account which party
terminated the contract, i.e. one-monthly salary if the termination was done by the club and USD
300,000 if the termination was done by the player.
61. As a consequence, the Single Judge determined that the amount of compensation payable by the
Claimant to the Respondent 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
62. 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 player´s contract from
the date of its unilateral termination until its end date. Consequently, the Single Judge concluded
that the amount of USD 12,000 (i.e. the residual value of the contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
63. 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 Dispute
Resolution Chamber 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
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compensation for breach of contract in connection with the player’s general obligation to mitigate
his damages.
64. In this respect, the Single Judge noted that the player remained unemployed since the unilateral
termination of the contract.
65. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which, in case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the contract
that was prematurely terminated.
66. In this respect, the Single Judge decided to award the player compensation for breach of contract
in the amount of USD 12,000, i.e. –USD 5,000 and –USD 7,000 (USD 3,500 x 2), as the residual
value of the contract.
iii. Compliance with monetary decisions
67. 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.
68. 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.
69. 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.
70. 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.
71. 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.
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d. Costs
72. 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, the Single Judge decided that no procedural costs were to be imposed on the
parties.
73. 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.
74. Lastly, the Single Judge concluded its deliberations by rejecting the counterclaim of the
Respondent.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Magno Costa Fernandes, is accepted.
2.
The Respondent/Counter-Claimant, Bahrain Club, has to pay to the Claimant/CounterRespondent, the following amounts:
- USD 13,000 as outstanding remuneration and
- USD 12,000 as compensation.
3.
The counterclaim of the Respondent/Counter-Claimant is 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 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 the ban shall be 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 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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