Labour Disputes
Texto da decisão
REF. FPSD-13114
Decision of the
Dispute Resolution Chamber
passed on 22 April 2024
regarding an employment-related dispute concerning
the player Matheus Lucas Jacintho Ferreira
BY:
Livia SILVA KÄGI (Brazil/Switzerland), Deputy Chairwoman
Michele COLUCCI (Italy), member
Andre DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Matheus Lucas Jacintho Ferreira, Brazil
Represented by Carlos Eduardo Licks Flores
RESPONDENT:
Nawroz Club, Iraq
Page 2
REF. FPSD-13114
I. Facts of the case
1.
On 13 September 2023, the Kurdistan Regional Government of Iraq issued two e-visa
permits (“visit type”) for the Brazilian player Matheus Lucas Jacintho Ferreira (hereinafter,
the Claimant or the Player) and his agent, Mr. Lucio Ferreira de Souza, both valid until
30 December 2023. The Iraqi club Nawroz Club (hereinafter, the Respondent or the Club)
appears in the “Guarantor Details” section of both e-visa permits.
2.
On 21 September 2023, the Claimant and his agent travelled from Brazil to Iraq.
3.
On 1 October 2023, the Claimant and the Respondent (hereinafter, jointly referred to as
the Parties) concluded the so-called “Soccer Player Contract” (hereinafter, the Contract), valid
as from 1 October 2023 until 1 July 2024.
4.
In accordance with clause 2 of the Contract, the Respondent undertook to pay to the
Claimant a monthly salary of USD 7,000.
5.
As per clause 9 of the Contract, “The first party pays in cash the second party the salary of the
last month of the contract (June/2024), in the contract signature”.
6.
In accordance with clauses 7, 8 and 11 of the Contract, the Respondent also undertook to
provide the Claimant with (i) a two-bedroom apartment, (ii) a return flight ticket for the
Player and his family and a round-trip ticket for his agent, and (iii) hotel accommodation
for the Player and his agent.
7.
On 3 October 2023, the Player travelled back to Brazil.
8.
According to the information contained in the FIFA Transfer Matching System (TMS), the
Player was never registered with the Respondent.
9.
On 25 November 2023, the Claimant concluded employment contract with the Brazilian
club Boavista-RJ, valid until 31 March 2024 (hereinafter, the New Contract).
10. According to the New Contract, the Claimant was entitled to receive a monthly salary of
BRL 1,320.
Page 3
REF. FPSD-13114
II. Proceedings before FIFA
11. On 19 December 2023, 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 alleges that upon arrival to Iraq, “the player and his representative were well
received and taken to the hotel” and that “an official club shirt was immediately delivered”.
13. The Claimant further asserts that the manager of the Respondent texted him via WhatsApp
informing that he would be included in the WhatsApp group of players, that he would
undergo a medical examination and, according to the WhatsApp messages “after this
contract and money”.
14. The Claimant also argues that he “introduced himself to the group of players, learned about
the club’s structure and was just waiting for the procedures to register his contract” and
“surprisingly, the club manager informed the player and his companion (Mr. Lucio) that the
contract would be broken!”.
15. According to the Claimant, the Respondent unilaterally terminated the Contract without
just cause, and hence he is entitled to receive the total value of the Contract (i.e.,
USD 70,000) considering the following elements “(i) unilateral breach of contract; (ii) financial
and moral damages borne by Claimant; (iii) lack of commitment and responsibility of the club
(Respondent); (iv) salaries and bonuses that Claimant failed to receive; (v) loss of the chance to
be signed by another club at that time; (vi) possibility of obtaining greater earnings at the club
due to the possibility of contract extension”.
16. Lastly, the Claimant informed that on 25 November 2023 he concluded the New Contract,
“with salaries much lower than those agreed with the respondent”.
17. The Claimant requested the following relief:
- Condemn and compel Nerwoz Sports Club to pay the player USD 70,000 (seventy thousand
dollars) plus interest for the delay in the amount of 1% month.
Also requires:
- The value of this claim will be compensated in relation to the salaries received in the clubs
after the unilateral rupture 9 up to today’s date is the value informed in item 18 above;
- That this court arbitrates in his favour compensation for breach of contract and moral
damages caused to the player;
- The application of sanctions and penalties to the club in case of non-payment;
Page 4
REF. FPSD-13114
- Order the club to pay fees to the player’s lawyer, at least 10% of the amount due.
b. Position of the Respondent
18. According to the Respondent, the Claimant’s accusations are unfounded, as the contractual
agreement presented by the Player allegedly does not conform to the formal structure of
a club contract. In this regard, the Respondent alleges that it only represented an “informal
understanding aimed at facilitating FIFA TMS procedure and visa and residency applications”.
19. The Respondent further argues that the only legally recognized and formal contract
governing player engagements is the one sanctioned by the Iraqi Football Association.
20. According to the Respondent, the Claimant participated in a one-week training session and,
without prior notice, he abruptly departed and returned to Brazil “disregarding the mutually
agreed-upon testing period for assessing his abilities and performance”. In this regard, the
Respondent alleges that it was the Claimant who, after returning to Brazil without prior
notification, breached the Contract when he signed the New Contract.
21. The Respondent requested the following relief:
“In light of the above, we request your careful consideration of the facts presented and the
dismissal of the baseless claims made against Newroz Sports Club. We remain committed to the
principles outlined by FIFA and are open to any further inquiries or proceedings deemed
necessary to resolve this matter expeditiously”.
c. Replica of the Claimant
22. In his replica, the Claimant initially asserted that the Contract contained all the essentialia
negotii, as well as that “the working relationship began to be executed, as the Claimant
travelled, was received by the club manager, wore the club uniform, trained daily, was at the
disposal of the club, was included in the player’s WhatsApp group and the club paid for the
tickets and hotel for the player and Mr. Lucio”.
23. According to the Claimant, the Respondent contradicted itself by claiming that the Player
breached the Contract, since the Contract could only be breached if it formally existed.
24. With regard to the New Contract, the Claimant further argues that “There is no explanation
for the player to exchange a contract worth USD 70,000 (10 months) [i.e., the Contract] for a
contract worth USD 1,110 (4 and a half months) [i.e., the New Contract]”.
25. Lastly, the Claimant alleges that he did not travel to Iraq for a test only nor did he abandon
the training sessions, but rather that he was released by the Respondent, which even paid
and issued the flight tickets for the Claimant.
Page 5
REF. FPSD-13114
d. Duplica of the Respondent
26. In its duplica, the Respondent reiterated the arguments provided with its response to the
claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) 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 19 December 2023 and
submitted for decision on 22 April 2024. Taking into account the wording of art. 34 of the
March 2023 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.
28. Subsequently, the Chamber 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 (February 2024), it 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 Iraqi club.
29. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition), and
considering that the present claim was lodged on 19 December 2023, the May 2023 edition
of said regulations (hereinafter, the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
30. 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 TMS.
Page 6
REF. FPSD-13114
c. Merits of the dispute
31. 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
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning a
termination of the employment agreement.
33. In this respect, the Chamber first noted that it is disputed between the Parties whether the
Contract concluded on 1 October 2023 can be considered as a valid and binding
employment contract. The Chamber also took note of the fact that the Parties further
disputed which of them terminated the Contract and the consequences thereof.
34. On account of the above, the Chamber wished to emphasise that before establishing any
breach of contract and its potential consequences, it first had to be analysed if the Contract
was indeed a valid and binding employment contract. In this respect, the Chamber pointed
out that the following questions had to be tackled in the present proceeding:
(i)
Was the Contract a valid and binding employment agreement?
(ii) In such a case, which party terminated the Contract?
(iii) Was the Contract terminated with or without just cause?
(i) Was the Contract a valid and binding employment agreement?
35. The Chamber started by recalling 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 negotti
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.
36. In casu, after a thorough analysis of the document serving as an employment contract
presented by the Claimant, the Chamber concluded that all such elements were included
in the pertinent document. In particular, the Chamber noted the following elements:
Page 7
REF. FPSD-13114
• The document provided is dully signed by both Parties, which are dully identified;
• The duration of the employment relationship is dully indicated; and
• The document provided stipulates that the Claimant was entitled to receive
remuneration (i.e., USD 7,000 on a monthly basis) in exchange for his services as a
football player to the Respondent.
37. On top of that, the Chamber also noted that the relevant document included ancillary
elements as well, such as the obligation for the Respondent to provide the Claimant with
an apartment or hotel, and flight tickets for him and his family and agent.
38. Lastly, the Chamber also pointed out that, in spite of arguing that the Contract was not a
valid and binding employment agreement, the Respondent also asserted that it was the
Claimant who allegedly breached the Contract, i.e., the Respondent itself recognized the
validity and enforceability of the Contract.
39. On account of the foregoing, the Chamber concluded that the “Soccer Player Contract” is in
fact a valid and binding employment contract and, thus, it shall be considered in the case
at stake as the contractual basis of the dispute.
(ii) Which party terminated the Contract?
40. The above having been established, the Chamber then moved its attention to the fact that,
on the one hand, according to the Claimant, the Respondent terminated the Contract
without just cause when the manager of the Club “informed the player and his companion
(Mr. Lucio) that the contract would be broken”. In this regard, the Claimant further alleged
that the Respondent provided him with return tickets to Brazil. The Chamber wished to
emphasise that even though the Claimant did not provide any evidence in this regard, this
argument was not disputed by the Respondent.
41. On the other hand, the Chamber noted that the Respondent argued that it was the
Claimant who breached the Contract when he “abruptly departed the city and returned to his
home country” and when “he entered into a new contract with a Brazilian club on
November 25, 2023”.
42. The Chamber lastly noted that, according to the information available in TMS, the Claimant
was never registered with the Respondent, and that neither of the Parties sent any default
notices to the other.
43. Bearing in mind all the foregoing, the Chamber was of the opinion that the fact that the
Respondent did not contest the Claimant’s allegations concerning the return flight tickets
(i.e., that it was the Respondent itself who issued them), when analysed with the own
Page 8
REF. FPSD-13114
Respondent’s arguments regarding the non-existence of a valid employment agreement
but rather an “informal agreement” for a training session only, demonstrated that after the
so-called “training session”, the Respondent was no longer interested in the Player’s
services.
44. The Chamber further recalled that the Respondent itself argued that the Contract was only
a “formality” for visa purposes. However, the Chamber pointed out that if the Contract was
not a valid employment agreement as alleged, most probably there would not have been
any necessity to request a visa permit for the Player.
45. The Chamber also noted that, as argued by the Claimant, it would make no sense that the
Player would have wanted to terminate a 10-month contract with a value of USD 70,000 for
another one for 5 months and a value of BRL 1,320 (which corresponds to USD 1,179.62)
only, despite the former being in a foreign country and the latter in his home country.
46. On top of that, the Respondent did not dispute the fact that it provided the Player with
return flight tickets to Brazil, as argued by him. In other words, the Chamber considered
that far from putting the Player in default (had he left the country as alleged), it appears
that the Respondent tolerated his departure or, even more, it induced it.
47. In view of all the foregoing, the Chamber concluded that the Respondent unilaterally
terminated the Contract. In this regard, and since there is no evidence on file regarding the
alleged communication of the Respondent to the Claimant informing him about the
termination of the Contract, the Chamber concluded that the date of termination should
be established in accordance with the return flight ticket (i.e., 3 October 2023), moment as
from when the Respondent was no longer interested in the Player’s services.
(iii) Did the Respondent have just cause to terminate the Contract?
48. The above having been established, the Chamber then moved its attention to the reasons
provided by the Respondent to justify the termination of the Contract.
49. In this regard, the Chamber recalled that, according to the Respondent, the Contract was
not a valid and binding employment agreement, but rather an “informal understanding
primarily aimed at facilitating FIFA TMS procedures and visa and residency applications”.
However, after having established that the Contract was indeed a valid and binding
employment agreement between the Parties, the Chamber concluded that the Respondent
was bound to it and, consequently, it cannot suddenly withdraw its consent and argue
simply that the Contract was not a valid employment agreement, but rather an “informal
understanding”.
50. In fact, the Chamber remarked that clubs are required a higher degree of diligence upon
hiring players, and the Claimant has provided enough evidence as to the execution of the
Contract, i.e., the Respondent issued visa permits for the Player and his agent, they
Page 9
REF. FPSD-13114
travelled to Iraq and signed the Contract, he was introduced to his teammates, he
participated in the trainings and then, all of a sudden, the Respondent decided to abruptly
put an end to the employment relationship when issuing the return flight tickets.
51. As such, and in view of all the foregoing assessments, the Chamber concluded that the
Respondent unilaterally terminated the Contract without just cause and, consequently, it
shall be liable to the consequences that follow.
ii. Consequences
52. Having stated the above, the members of the Chamber turned its attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
53. In this respect, the Chamber noted that the Claimant claimed being entitled to USD 70,000
(i.e., the total value of the Contract), without properly indicating to which concept this
amount would correspond.
54. The Chamber also noted that according to clause 9 of the Contract, “the first party pays in
cash the second party the salary of the last month of the contract (June/2024), in the contract
signature”, but the Respondent has not disputed nor provided evidence regarding any
payment to the Claimant.
55. The Chamber further recalled that while the Contract was concluded on 1 October 2023,
the Player was effectively in Iraq until 3 October 2023. Consequently, the Chamber
concluded that any amounts payable to the Claimant should be paid as compensation.
56. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Player by the Club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
57. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
58. In this regard, the Chamber established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
Page 10
REF. FPSD-13114
59. As a consequence, the Chamber determined that the amount of compensation payable by
the Respondent to the Claimant had to be assessed in application of the other parameters
set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
60. Bearing in mind the foregoing as well as the claim of the Player, the Chamber proceeded
with the calculation of the monies payable to the Player under the terms of the Contract
until its term. Consequently, the Chamber concluded that the amount of USD 70,000 (i.e.,
the residual value of the Contract) serves as the basis for the determination of the amount
of compensation for breach of contract.
61. In continuation, the Chamber verified 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
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
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
62. Indeed, the Player found new employment with Boavista-RJ. In accordance with the
pertinent employment contract, the Player was entitled to BRL 1,320 per month which,
according to the Claimant, corresponds to a total of USD 1,222. Therefore, the Chamber
concluded that the Player mitigated his damages in the total amount of USD 1,222, that is,
BRL 1,320 times 4 and a half as argued by the Claimant.
63. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Club must pay the amount of USD 68,778
to the Player (i.e., USD 70,000 minus USD 1,222), which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter.
64. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Player interest on said
compensation at the rate of 5% p.a. as of 3 October 2023 (i.e., date of termination) until the
date of effective payment.
iii. Compliance with monetary decisions
65. 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.
Page 11
REF. FPSD-13114
66. In this regard, the Chamber 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.
67. Therefore, bearing in mind the above, the Chamber decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the creditor, 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 Club in
accordance with art. 24 par. 2,4 and 7 of the Regulations.
68. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
69. The Chamber recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24 par.
8 of the Regulations.
d. Costs
70. 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.
71. Furthermore, 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.
72. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the Parties.
Page 12
REF. FPSD-13114
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Matheus Lucas Jacintho Ferreira, is partially accepted.
2.
The Respondent, Nawroz Club, must pay to the Claimant the following amount(s):
- USD 68,778 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 3 October 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. 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. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 13
REF. FPSD-13114
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
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
Page 14