Labour Disputes
Texto da decisão
REF FPSD-1871
Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player Thiago
Furtuoso Dos Santos
BY:
,
Mario Flores Chemor (Mexico), Single Judge of the DRC
CLAIMANT:
Thiago Furtuoso Dos Santos, Brazil
Represented by Mr Dyego Karlo Tavares
RESPONDENT:
Kalamata FC, Greece
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REF FPSD-1871
I.
Facts of the case
1.
On 14 February 2020, the Brazilian player, Mr Thiago Furtuoso Dos Santos (hereinafter: the
player or the Claimant) and the Greek club, Kalamata FC (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from the
date of its signature until 30 June 2020.
2.
In accordance with clause 4.1 of the contract, the club undertook to pay to the player a
monthly salary of EUR 630 net.
3.
By means of his notice dated 8 June 2020, the player put the club in default of payment in
the amount of EUR 4,890, corresponding to outstanding salaries and bonuses, thereby
granting the club a 15 days´ deadline to remedy the default; however, to no avail.
II. Proceedings before FIFA
4.
On 24 February 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
5.
6.
The Claimant is requesting to be awarded outstanding remuneration in the total amount of
EUR 4,890, broken down by the Claimant as follows:
-
EUR 1,500 corresponding to a bonus allegedly due on 27 March 2020;
-
EUR 1,500 corresponding to a bonus allegedly due on 24 April 2020;
-
EUR 1,890 corresponding to the salaries of March, April and May 2020 in the amount of
EUR 630 each (630*3 = 1,890).
In his claim, the player argued that, despite having complied with his contractual obligations,
the club failed to comply with its financial obligations even after the player put it in default
of payment by means of its correspondence dated 8 June 2020.
b. Position of the Respondent
7. Despite having been invited to reply to the claim, the Respondent failed to do so.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
7.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as
thor 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 24 February 2021
and submitted for decision on 13 October 2021. 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.
8.
Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (August 2021 edition), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between an Brazilian player and a Greek club.
9.
Subsequently, the Single Judge 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 Player (August 2021 edition), and
considering that the present claim was lodged on 24 February 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
10. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence
not filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
11. Its 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
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considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
12. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant is requesting to be awarded outstanding
remuneration in the total amount of EUR 4,890, allegedly corresponding to salaries and
bonuses. In this regard, the Single Judge pointed out that the Claimant did not request to be
awarded any default interest in connection with the outstanding moneys claimed.
13. The Single Judge further noted that, on its part, the Respondent failed to reply to the claim,
despite having been invited to do so by the FIFA General Secretariat.
14. In view of the above, the Single Judge wished to recall that, even though the facts described
by the Claimant have remained uncontested, due to the lack of reply of the Respondent that
not all the petita of the Claimant find a contractual basis.
15. In this respect, explained the Single Judge, whereas the amount of EUR 1,890 does have a
contractual basis (clause 4.1 of the contract stipulates that the player is entitled to a salary of
EUR 630); the request of the Claimant for bonuses in the total amount of EUR 3,000 does
not have a contractual basis, insofar the contract does not contemplate any kind of bonus to
which the Claimant would be eventually entitled.
16. Thus, considering the content of art. 13.5 of the Procedural Rules, i.e. the burden of the proof
must be carried by the party seeking to derive a right therefrom, and that the Claimant failed
to provide a contractual basis for his entitlement to the requested bonus, the Single Judge
determined that the claim of the Claimant to be awarded EUR 3,000 as bonuses needs to be
rejected.
ii. Consequences
17. Having stated the above, the members of the Single Judge turned hisattention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
18. In view of all of the above, the Single Judge determined that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the
amount of EUR 1,890 net, corresponding to the salaries of March, April and May 2020 in the
amount of EUR 630 each, ex. Clause 4.1 of the contract.
19. In addition, the Single Judge wished to highlight that no default interest is to be awarded to
the outstanding amounts granted to the Claimant, since no interest was requested by the
latter.
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iii. Compliance with monetary decisions
20. 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.
21. 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.
22. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due 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.
23. 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.
24. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis par.
8 of the Regulations.
d. Costs
25. 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.
26. 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.
27. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Thiago Furtuoso Dos Santos, is partially accepted.
2.
The Respondent, Kalamata FC, has to pay to the Claimant EUR 1,890 net as outstanding
remuneration.
3.
Any further claims of the Claimant are rejected.
4.
Full payment 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
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.
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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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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