Labour Disputes
Texto da decisão
REF 20-00811
Decision of the
Dispute Resolution Chamber
passed on 12 August 2020,
regarding an employment-related dispute concerning the player Bruno Ferreira dos
Santos
BY:
S tijn Boey kens (Belgium), DRC Judge
CLAIMANT:
Bruno Ferreira dos Santos, Brazil
represented by Mr Cristiano Caùs and Mr Raphael Pacó Barbieri
RESPONDENT:
Vanadzori Footballi Academy, Armenia
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I. FACTS OF THE CASE
1.
On 14 July 2019, the Brazilian player, Bruno Ferreira dos Sanots (hereinafter: the player or the
Claimant) and the Armenian club, Vanadzori Footballi Academy (hereinafter: the club or the
Respondent), signed an employment contract valid as from 17 July 2020 until 14 July 2021.
2. In accordance with the provisions contained in the contract, the Respondent undertook to pay the
Claimant the following amounts:
USD 1,200 as monthly salary;
“Starting from 1 August 2020, Player will be changed and become between 1200 - 2000
USD”;
“Bonus per won official match where player plays in starting 11 will be a rate of 300 USD.
In any other case, bonus will decide head coach”.
3.
Furthermore, the Respondent undertook to “take care about house living for the Player while he is in
Armenia”.
4.
On 28 December 2019, while the Claimant was spending his approved vacation in Brazil until 15
January 2020, he received a message from the club’s manager whereby the club informed the player
about the following: “Bruno, [the] Club decided that [the] termination of contract is better option for
both sides, as you are not in our plans for upcoming part of the season”.
5.
In this context, the player contacted the club, requesting the latter to reconsider its decision. In this
respect, it must be noted that the player offered his services to the club and requested the latter to
arrange his flight tickets so that he could come back to Armenia
6.
According to the player, no termination agreement was concluded between the parties and, what is
more, the club rejected to pay his salaries as of December 2019 onwards.
7.
On 12 February 2020, the player put the club in default of payment and requested the latter to comply
with its financial obligations towards him. In particular, the now Claimant requested the now
Respondent to proceed with the payment of his salaries of December 2019 and January 2020 within
the following 15 days; as well as to be reinstated in the team and resume his contractual obligations.
8.
On 12 March 2020, in view of the fact that the Respondent failed to pay his salaries and the club was
allegedly holding an abusive conduct towards the player, the latter sent another notice to the club,
by means of which the player terminated the contract.
9.
On 2 June 2020, the player lodged a claim against the club before FIFA, requesting “compensation”
in the total amount of USD 35,000, plus 5% interest p.a. “pro rata tempore”, in application of art.
14bis of the RSTP or, subsidiary, of art. 14 para. 2 of the RSTP.
10.
In his claim, the player held that the club shall be held liable for the early termination of the contract,
insofar it communicated to the player that it was no longer interested in his services and failed to
arrange his flight tickets as for him to join the club after his holidays, despite him having complied
with his contractual obligations towards the club, which is why he did not return to Armenia in January
2020.
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11.
The player further held that he had just cause to terminate the contract, since it was the ultima ratio
measure upon the club’s non-reaction to his default notices and failure to pay his salaries of December
2019 and January 2020.
12.
In its reply, the club held that, in mid-December, it started a negotiation with the player in order to
amicably terminate the employment contract; however, to no avail.
13.
Moreover the club maintained that, at the end of December, it requested the player to return to
Armenia and resume training with the team, but –according to the club– the player did not return
”but only demanded payments”.
14.
The club maintained that from 14 March 2020 to 23 May 2020, due to the Covid-19 pandemic, “the
work of the Football Federation of Armenia was suspended”.
15.
Furthermore, the club stated that “In the light of the above, FIFA has stated that in the current
situation, relations with players (including the obligation to pay the players) may be regulated by
domestic law. In this case, according to the domestic legislation, the Football Federation of Armenia
was released from the obligation to pay, therefore, non-payment by him cannot be considered a
violation of the law”; and that “After the end of the above-mentioned period, the Player did not
return to Armenia, as the football player did not fulfil his obligations, did not participate in the
trainings, with which the latter was not paid.”
16.
In this context, the club clarified that it is willing to pay the December monthly salary, since the parties
were negotiating a possible termination of the contract, but not the salaries from January 2020
onwards, which the club consider as not due to the player, insofar he did not return to Armenia.
17.
The club concluded by stating that the claim of the player is to be considered “meaningless.”
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC judge) analysed
whether he was competent to deal with the case at hand. In this respect, it took note that the present
matter was submitted to FIFA on 2 June 2020 and submitted for decision on 12 August 2020. Taking
into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which
concerns an employment–related dispute with an international dimension.
3.
In continuation, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the
claim was lodged on 2 June 2020, the June 2020 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
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4.
The competence of the DRC judge and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, the DC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC 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.
5.
Having said that, the DRC judge acknowledged that, on 14 July 2019, the Claimant and the
Respondent signed an employment contract, valid as from 17 July 2019 until 14 July 2021. Based on
said contract, the Respondent undertook to pay to the Claimant, inter alia, a monthly salary of USD
1,200 –subject of increase up to USD 2,000 as from August 2020–, as well as to pay his
accommodation and a bonus of USD 300 per won official match.
6.
What is more, the DRC judge noted that the Claimant argued that, on 12 March 2020, he unilaterally
terminated the contract with just cause, since –at that moment in time– 2 monthly salaries remained
outstanding (the ones of December 2019 and January 2020), despite him having put the Respondent
in default on several occasions; and due to the fact that the club was no longer interested in his
services which –according to the player– is crystal clear, since the club failed to provide him with his
flight tickets to return to Armenia and due to the Whatsapp reply of the club of 28 December 2019
(cf. point I.4 above).
7. In this context, the Claimant wished to point out that, even though he did not come to the club in
January, his failure to return was motivated only because the club made it clear that it was no longer
interested in the player and that its intention was to early terminate his employment agreement. In
this respect, the Claimant held that the behavior of the club had no justification and it can be
considered as an abusive conduct of the latter, in a clear attempt to force the player to accept the
early termination of his agreement without any compensation.
8.
The DRC judge noted that the Respondent, on the other hand, rejected the claim put forward by the
Claimant. In this respect, the Respondent explained that, in mid-December 2019, both parties started
negotiations in order to amicably terminate the employment relationship, but that said attempt fail,
since they held different positions.
9.
Moreover, the DRC judge observed that, according to the Respondent, the latter urged the Claimant
to return to Armenia and resume trainings, but the Claimant did not do so and only requested to be
paid his salaries. In this context, the DRC judge duly noted that the Respondent acknowledged not
having paid the Claimant’s entitlements from December 2019 onwards. Moreover, the DRC judge
took note of the allegations of the Respondent, who explained that, upon the covid-19 outbreak, the
Football Federation of Armenia suspended the football related activities from 14 March 2020 to 23
May 2020 and that FIFA “stated that in the current situation, relations with players (including the
obligation to pay the players) may be regulated by domestic law”. In this context, the Respondent
held that it was released from its obligation to pay the player’s entitlements during that period and
that, once the said period was finished, the player failed to return to the club and comply with his
contractual obligations, reason why the player was not paid.
10.
Furthermore, the DRC judge observed that the Respondent stated that it “is ready to pay for
December [2019], but as for the period ahead, [the Respondent] has no obligation to pay the player,
because the latter did not attend the training, thus violating his obligations”.
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11.
The DRC judge highlighted that the underlying issue in this dispute, considering the diverging position
of the parties, was to determine whether the contract was terminated with or without just cause by
the Claimant on 12 March 2020. The DRC judge also underlined that, subsequently, depending on
whether the Claimant terminated the contract with or without just cause, it would be necessary to
also determine the consequences for the party that was responsible for the early termination of the
contract.
12.
The DRC judge, first of all, wished to highlight that the unilateral termination of the contract, made
by the Claimant on 12 March 2020, was based on both: 1.) the Respondent’s lack of payment of the
Claimant’s salaries of December 2019 and January 2020; 2.) as well as on the Respondent’s abusive
conduct, which is evidenced by it’s Whatsapp’s statement of 28 December 2019 and by the fact that
the Respondent failed to provide the Claimant with the corresponding flight tickets to go back to
Armenia in January 2020.
13.
As to the first of the arguments brought forward by the Claimant, the DRC judge duly noted that, on
12 February 2020, the Claimant put the Respondent in default regarding the outstanding salaries due
to him to date, i.e. the monthly salaries of December 2019 and January 2020, and granted the
Respondent a 15 days’ deadline to remedy the default. In this context, the DRC judge referred to the
first and second sentences of para. 1 of art. 14bis of the RSTP, which read as follows: “In case of a
club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will
be deemed to have just cause to terminate his contract, provided that he has put the debtor club in
default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply
with its financial obligation(s)”. In view of the above, the DRC judge concluded that, since two
monthly salaries were outstanding at the time the Claimant put the Respondent in default, and given
that the former granted the latter a 15 days’ deadline to remedy the default without the Respondent
doing so, the Claimant, in principle, terminated the contract with just cause on 12 March 2020.
14.
Having said that, the DRC judge referred to the argument put forward by the Respondent regarding
the suspension of the football activities and the alleged suspension of its obligations to pay the player’s
entitlements for the period between 14 March 2020 and 23 May 2020 on the basis of domestic law.
In this respect, the DRC judge firstly stressed that the Respondent failed to provide evidence as to the
suspension of the league in Armenia during the said period and further asserted that the Claimant
had put the Respondent in default regarding payments that were due before the said alleged
suspension period started, and, hence, the allegations from the Respondent in this regard are baseless.
15.
Notwithstanding the above, the DRC judge referred to the argument brought by the Respondent in
relation to the statement of FIFA upon the worldwide COVID-19 outbreak, and wished to remark that
FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance
and recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the
common interest. In this context, the DRC judge wished to emphasize that, albeit not pertinent to the
present case, insofar the 2 outstanding salaries requested by the player correspond to the months of
December 2019 and January 2020 –months during which the league was not suspended–, as per said
guidelines, FIFA encouraged clubs and players to work together to find appropriate collective
agreements regarding employment conditions for any period where the competition is suspended
due to Covid-19 outbreak, but did not thereby allow clubs to unilaterally decide to stop paying the
salaries of its players.
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16.
Turning to the second of the arguments brought forward by the Claimant in relation to the grounds
of his unilateral termination of the employment relationship, the DRC judge firstly referred to the
alleged failure of the Respondent to provide the Claimant with flight tickets to return to Armenia and
resume his professional activities. In this respect, the DRC judge noted that there was no contractual
clause in the contract whereby the Respondent had undertaken to provide the Claimant with flight
tickets to return to Armenia. Hence, the DRC judge established that the argument of the Claimant in
this regard could not be followed and that the Respondent did not show an abusive conduct by not
providing the Claimant with the said flight tickets.
17.
Moreover, the DRC judge referred to the Whatsapp message sent by the Respondent to the Claimant
on 28 December 2019 and concluded that the authenticity of the said message not having been
contested by the Respondent, it shall be presumed that the Respondent did communicate to the
Claimant, on 28 December 2019, that it was no longer interested in his services, which de facto
constitutes a breach of contract that was later on corroborated by the consecutive non-payment of
the Claimant’s entitlements. Nevertheless, in view of the fact that more correspondence was sent to
the Respondent by the Claimant thereafter and that no termination notice was sent by any of the
parties to the other until 12 March 2020, the DRC judge concluded that the contractual relationship
between the parties is to be deemed terminated on 12 March 2020 as per the termination notice sent
by the Claimant.
18.
On account of all the above-mentioned considerations, the DRC judge concluded that the Claimant
terminated the contract with just cause on 12 March 2020 ex. art. 14bis of the RSTP. Consequently,
the Respondent is to be held liable for the early termination of the employment contact.
19.
Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences
of the early termination of the employment contract.
20.
First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment
contract up until the date of termination of the contract in accordance with the general legal principle
of “pacta sunt servanda”.
21.
On account of the above considerations and the documentation on file, the DRC judge decided that
the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of
the termination i.e. the amount of USD 3,600, consisting of the salaries due to the Claimant for the
months of December 2019, January 2020 and February 2020 in the amount of USD 1,200 each
(1,200*3 = 3,600).
22.
In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of the respective
due dates.
23.
In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding remuneration on the basis of the relevant employment
contract.
24.
In this context, the DRC judge outlined that, in accordance with said provision, 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
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of sport and further objective criteria, including, in particular, the remuneration and other benefits
due to the Claimant 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.
25.
In application of the relevant provision, the DRC judge held that it, first of all, had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of breach of
contract. In this regard, the DRC judge established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
26.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC
judge took into account the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional situation of
the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that at
the time of the termination of the employment contract on 12 March 2020, the contract would have
run for 16 months more, that is, until 14 July 2021. Consequently, taking into account the financial
terms of the contract, the DRC judge concluded that the remaining value of the contract as from its
early termination by the Respondent until the regular expiry of the contract amounts to USD 28,903
(corresponding the salaries due in the period between March 2020 and July 2020 in the amount of
USD 1,200 each; and between August 2020 until 14 July 2021 in the amount of USD 2,000 each). In
this respect, the DRC judge deemed that, in view of the lack of specificity as to the monthly salary of
the player as from August 2020 onwards (cf. point I.2 above) and since the Respondent is the party
liable for the early termination of the contract, the amount of USD 2,000 shall serve as basis for the
calculation of the compensation payable to the player as from August 2020 until the date on which
the contract would have naturally expired.
27.
In continuation, the DRC judge remarked that following the early termination of the employment
contract at the basis of the present dispute, the Claimant was not able to find a new employment. As
a result, no further amounts will be deducted from the compensation the Claimant would be entitled
to.
28.
In view of all of the above, the DRC judge decided that the Respondent must pay the amount of USD
28,903 to the Claimant as compensation for breach of contract, which is considered by the DRC judge
to be a reasonable and justified amount as compensation.
29.
In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the DRC
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of 2 June 2020
until the date of effective payment.
30.
In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD 32,503
to the Claimant, consisting of the amount of USD 3,600 corresponding to the Claimant’s outstanding
remuneration at the time of the unilateral termination of the contract with just cause by the Claimant
and the amount of USD 28,903 corresponding to compensation for breach of contract.
31.
The DRC judge concluded his deliberations in the present matter stipulating that any further claim
lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.
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32.
Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred
to para. 1 and 2 of art. 24bis 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.
33.
In this regard, the DRC judge pointed out 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 and for the maximum duration of
three entire and consecutive registration periods.
34.
Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does
not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant,
following the notification of the present decision, communicates the relevant bank details to the
Respondent, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
35.
Finally, the DRC 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. 3 of the
Regulations.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Bruno Ferreira dos Santos, is partially accepted.
2.
The Respondent, Vanadzori Footballi Academy, has to pay to the Claimant, the following amount:
- USD 3,600 as outstanding remuneration, plus 5% interest p.a. as follows:
o
o
o
USD 1,200 plus 5% interest p.a. as from 1 January 2020 until the date of effective
payment;
USD 1,200 plus 5% interest p.a. as from 1 February 2020 until the date of effective
payment;
USD 1,200 plus 5% interest p.a. as from 1 March 2020 until the date of effective
payment.
- USD 28,903 as compensation for breach of contract, plus 5% interest p.a. as from 2 June
2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amounts.
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5.
The Respondent shall provide evidence of payment of the due amounts in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amounts due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amounts are paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amounts as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber judge:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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
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