Labour Disputes
Texto da decisão
REF FPSD-8279
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning the player Jonatan
Ferreira Reis
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Jorge Gutierrez (Costa Rica), Member
Stefano Sartori (Italy), Member
CLAIMANT:
Jonatan Ferreira Reis, Brazil
Represented by Trengrouse Gonçalves Advogados
RESPONDENT:
Muangkan United (MKUTD), Thailand
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I. Facts of the case
1.
On 24 April 2021, the Brazilian player, Jonatan Ferreira Reis (hereinafter: the player or the
Claimant), and the Thai club, Muangkan United (MKUTD) (hereinafter: the club or the
Respondent), concluded an employment contract valid as from 1 June 2021 until “the end
of the 2022-2023 football season” (hereinafter: the employment contract).
2.
Pursuant to clause 2 of the employment contract, the club undertook to pay the player
inter alia the following amounts:
a. THB 300,000 as salary, payable by no later than the 5th day of the subsequent
month;
b. THB 300,000 as sign-on fee on 24 April 2021; and
c. THB 300,000 as sign-on fee for “on the day the 2nd football season start”.
3.
Clause 9 of the employment contract reads as follows: “club shall pay equal to 1 month
salary only of player as contract cancellation fee if the club want to terminate the contract of
player. After player and club sign cancellation agreement, this contract was terminated
absolutely”.
4.
On 1 April 2022, the player entered into a new employment agreement with the Thai club,
Nongbua Pitchaya Football Club, valid as from 1 August 2022 until 30 May 2023.
Accordingly, the player would be entitled to:
a. THB 200,000 as salary;
b. THB 200,000 as sign-on fee; and
c. THB 10,000 as “house rental”.
5.
On 8 July 2022, the player put the club in default and requested payment of THB
1,458,971.17 corresponding to (i) the salaries of September, October (partial) and
November 2021; (ii) the salaries of February 2022 (partial), March, April and May 2022;
and (iii) reimbursement of other expenses related to insurance, hotel and tickets. The
player granted the club a 15 days’ deadline to cure the breach under penalty of
termination.
6.
On 30 November 2022, the player and Nongbua Pitchaya Football Club entered into a
termination agreement according to which the parties acknowledge the termination of
their contractual relationship upon payment of THB 550,000 to the player.
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II. Proceedings before FIFA
7.
On 18 November 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
8.
In his claim, the player explained that the club failed to pay him a significant part of his
remuneration. In particular, he alleged that “as the player has not received any payments
from the club since March 2022, without prejudice to the overdue payables which were due in
2021, the employment contract shall be ruled terminated, as the player duly gave the club
notice of default”.
9.
In light of the above, he referred to article 14bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and requested to be awarded the following amounts:
a. THB 1,458,971.17 net as outstanding remuneration, broken down as follows:
•
•
•
•
•
•
THB 150,000 as the salary of September 2021;
THB 90,000 as the salary of October 2021;
THB 115,000 as the salary of November 2021;
THB 94,000 as the salary of February 2022;
THB 900,000 as the salaries of March, April and May 2022; and
THB 109,971.14 as “other expenses”.
b. THB 3,900,000 as compensation for breach of contract corresponding to the
residual value of the employment contract (i.e., the salaries from June 2022 until
June 2023), plus 5% interest p.a. as from the date of default of each instalment.
10. On 21 November 2022, the FIFA general secretariat invited the player inter alia to clarify
the date of termination of the employment contract and to provide any proof if this
respect (if any) (cf. art. 18, par. 2 of the Procedural Rules Governing the Football Tribunal).
11. On 25 November 2022, the player explained the following, in verbis:
“First of all, it shall be stressed that [the club] has not formally terminated the
Employment Contract entered with [the player], apart from the notices and other
documentation already on file which are able to demonstrate that in fact the contract
has terminated due to the [the club]’s failure.
The termination is not only clearly demonstrated but also materialized since [the club]
did not even bother to give the player an official position about the overdue payables,
which is common practice of [the club] its financial obligations towards its players, staff
and employees. Its lack of commitment and fulfillment with its contractual obligations
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is undisputed and well-kwon in Thailand.
Thus, it happened that the player entered into a new employment contract with
Nongbua Pitchaya Football Club (Exhibt 2) which was duly registered within the Thai
Football Federation and, for the sake of completeness, the Player was already fielded
on 6 (six) matches at the Thai League1by Nongbua Pitchaya.
Moreover, regarding the unfulfillment of its obligations, during the validity of
Employment Contract with [the club], on 31May 2022, [the player] tried to reach out
the [the club]’s board to urge them to pay the amounts due and he was directed to
send a private message to the captain of the team, Mr. Suchino Nutnum (Exhibit 3), who
was handling [the club]’s failure on delivering the payments to all other players with
the same situation of not having received wages.
[...]
Therefore, with the crystal-clear termination combined with the signing and registration
of his new employment contract with another Thai professional football club, combined
with the recognition of the debt, the Claimant ratifies all its requests on his claim”.
b. Position of the club
12. The club failed to submit its reply to the claim in spite of being invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 18 November 2022 and
submitted for decision on 23 February 2023. Taking into account the wording of art. 34 of
the October 2022 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.
14. 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 par.
1 lit. b) of the FIFA RSTP (October 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 a Thai club.
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15. 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 FIFA RSTP (October 2022 edition), and considering that the present claim
was lodged on 18 November 2022, the July 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
16. 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
17. 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
18. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim for breach of
contract lodged by the player against the club in connection to the employment
relationship previously maintained between them.
19. In particular, the player claimed to be entitled to outstanding remuneration,
“reimbursement for other expenses”, and compensation for breach of contract due to the
club’s alleged systematic failure to honour its financial duties. He furthermore argued that
the employment contract was “tacitly” terminated upon entering into a new employment
agreement with Nongbua Pitchaya Football Club on 1 April 2022.
20. As a departure point, the DRC recalled its well-established jurisprudence and determined
the following:
•
regarding the player’s claim for outstanding remuneration (i.e., the salaries until
March 2021) and provided that such claim is contractually based, it was for the
club to demonstrate that it fulfilled its financial duties in line with the
employment contract;
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•
in contrast, it was for the player to demonstrate that (i) he incurred in any “other
expenses” attributable to the club and that he should therefore be reimbursed;
(ii) the employment contract was indeed terminated by any of the parties; and
(ii) there was just cause on his side (or lack of just cause from the club’s side) in
order to do so, granting him the right to be compensated for any contractual
breach(es).
21. On this note, the Chamber initially considered the club, for its part, failed to present its
response to the claim of the player, in spite of having been invited to do so. Consequently,
the DRC referred to the principle of pacta sunt servanda and decided that the player
should be awarded the outstanding remuneration sought until the date of the alleged
termination (i.e., 1 April 2023), for a total of THB 749,000, broken down as follows:
•
•
•
•
•
THB 150,000 as the balance of the salary of September 2021;
THB 90,000 as the balance of the salary of the October 2021;
THB 115,000 as the balance of the salary of November 2021;
THB 94,000 as the balance of the salary of February 2022; and
THB 300,000 as the balance of the salary of March 2022.
22. In addition, the DRC stressed that per its constant practice in this regard, the player would
be in principle entitled to interest at the rate of 5% p.a. on the outstanding amounts as
from the respective due dates until the date of effective payment. Nevertheless, as the
player did not request specifically interest over the outstanding remuneration, the DRC
deemed that it was prevented from awarding such concept according to the principle of
ne ultra petita.
23. In continuation, the Chamber moved to the player’s claim for reimbursement of “other
expenses” and took due consideration that his claim was neither specified nor supported
by any type of documentary evidence. The DRC outlined, in this regard, that the player
did not prove which type of expenses he incurred (if any), nor that the club should be
liable to an eventual reimbursement. Therefore, the Chamber decided that the player did
not meet his burden of proof, hence this part of the claim should be set aside.
24. Finally, the DRC turned to the player’s claim for compensation for breach of contract. In
doing so, the Chamber first of all acknowledged that there was no proof of termination
on file (e.g., unilateral termination notice, termination agreement, release letter).
Contextually, the only piece of evidence provided by the player was an alleged
conversation with a teammate, without proper identification and/or link with the club’s
management – thus, with limited probatory weight in the Chamber’s view. Likewise, the
DRC was also observant that player did not advance any proof of having ever put the club
in default before signing with Nongbua Pitchaya Football Club.
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25. In view of the restricted documentation on file, the Chamber was of the opinion that the
parties appeared to have in fact initiated an employment relationship however, at some
point, they departed from the execution of their respective contractual duties: the club,
on one hand, stopped paying the player’s remuneration; whereas the player, on the other
hand, did not formally complaint to the club and simply decided to pursue his career with
Nongbua Pitchaya Football Club – and only at a later stage, after having signed his new
contract, put the club in default for overdue payables.
26. Consequently, the DRC was firm to determine that the player could not establish to a
comfortable satisfaction degree that a legal termination indeed took place, let alone that
such termination was an ultima ratio measure capable of triggering the consequences of
art. 17 of the Regulations – in particular, his entitlement to compensation for breach of
contract.
27. Therefore, the DRC decided that the player’s claim for compensation for breach of
contract should be rejected and he should be entitled to the outstanding remuneration
only.
ii. Compliance with monetary decisions
28. 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.
29. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist, in principle, of a ban from registering
any new players, either nationally or internationally, up until the due amounts are paid.
30. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
31. In this respect, the Chamber recalled that by means of decision passed on 23 June 2022
and notified to the parties on 19 July 2022, a transfer ban has been imposed on the
Respondent pursuant to art. 17 par. 4 of the Regulations (i.e., namely in the case ref. no.
FPSD-5761).
32. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall
apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
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being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
33. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration
and formal decision.
34. 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.
d. Costs
35. 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.
36. 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.
37. 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, Jonatan Ferreira Reis, is partially accepted.
2.
The Respondent, MKUTD, has to pay to the Claimant THB 749,000 as outstanding
remuneration.
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.
If full payment is not made within 30 days of notification of this decision, the present
matter shall be submitted, upon request of the Claimant, to the FIFA Disciplinary
Committee.
6.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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