Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 20 February 2020,
in the following composition:
Clifford Hendel (USA), Deputy Chairman
Roy Verm eer (The Netherlands ), member
Daan De Jong (The Netherlands ), member
on the claim presented by the player,
Denils on Gabionetta, Brazil & Italy
represented by Mr Nilo Effori and Ms Cintia R Nicolau
as Claimant / Counter-Respondent
against the club,
Zhejian Greentow n FC, China PR
(formerly known as Hangzhou Greentown FC)
represented by Mr Yu Shengjie
as Respondent / Counter-Claimant
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On an unspecified date, the Brazilian and Italian player Denilson Gabionetta
(hereinafter: the player or the Claimant / Counter-Respondent) and the Chinese
club Zhejian Greentown FC, formerly known as Hangzhou Greentown FC
(hereinafter: the club or the Respondent / Counter-Claimant) signed an
employment contract valid as from 1 March 2016 until 31 December 2017.
2.
According to clause 5 par. 1.1 of the contract, the player was entitled to receive an
annual remuneration of USD 350,000 for the 2016 season.
3.
In addition, as regards to the salary of the 2017 season, and pursuant to clause 5
par. 1.3 of the contract, the parties agreed that the player’s yearly salary would be
determined as follows:
a)
b)
“If [the player] assists 10 times in the 2016 season, 2017 season Salary is
[USD] 500,000”;
“If [the player does not assist] 10 times in the 2016 season, 2017 season
Salary is [USD] 400,000”.
4.
Pursuant to clause 8 par. 3.1, the parties agreed upon the following:
“In case of [the player]’s breaking the above discipline, [the club] shall inflict
punishment according to natures and seriousness as regulated and meanwhile can
determine fine within the range of 50% of [the player]’s salary”.
5.
Additionally, clause 8 par 3.3 of the contract established the following:
“In case of [the player]’s serious breach of discipline and causing great damage to
[the club]’s interest or reputation and being in line with the cancellation clause of
the contract, the contract will be cancelled”.
6.
As per the Claimant / Counter-Respondent, after the expiration of the contract on
31 December 2017, the salaries for January and February 2017 were still
outstanding to him, amounting a total debt of USD 66,666.
7.
In this context, on 9 January 2019, the Claimant / Counter-Respondent allegedly
put the Respondent in default of payment of USD 66,666, setting a 10 days’
deadline to remedy the situation.
8.
On 21 January 2019, the player lodged a claim against the Respondent / CounterClaimant before FIFA and requested the following:
Player Denilson Gabionetta, Brazil and Italy / Club Zhejian Greentown FC, China
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a)
b)
USD 66,666, corresponding to the monthly salaries for January and
February 2017;
To be awarded 5% interest p.a. “on the outstanding compensation
amount”.
9.
In his claim, the Claimant / Counter-Respondent sustained that the Respondent /
Counter-Claimant had committed itself to pay to the player an annual salary of
USD 400,000.
10.
Furthermore, according to the Claimant / Counter-Respondent’s claim, the club
“without any valid reason, did not pay his salaries of January and February 2017”.
11.
In its reply to the claim, the Respondent / Counter-Claimant rejected the player’s
arguments and filed a counterclaim against the player on 21 March 2019 for
having been absent “without just cause” as “from 1 December 2016 until 18
January 2017”. In this context, according to the provision contained in clause 8 par.
3.3 of the contract, the Respondent pointed out that the player “committed a
serious breach of the contract and therefore, the Club was fully entitled to
terminate the employment relationship”.
12.
According to the Respondent / Counter-Claimant, notwithstanding the provisions
under clause 8 par 3.3 of the contract, “the Club preferred to open disciplinary
proceedings, which offered guarantee to the right to be heard of the Player, and
then decided to suspend the payment of the salary for the period of absence”. In
this regard, as per the club, it decided to withhold the player’s salary based on the
stipulations provided under clause 5 par. 3 of the contract, which established the
following: “In case that those resulted from breach of law, breach of discipline and
violation of social ethics and other misbehaviour, [the club] shall not pay [the
player] the salary”.
13.
In this context, the Respondent / Counter-Claimant explained that it “preferred to
apply other and less heavy disciplinary measures such as the [non-payment] of the
salary for the period of the unjustified absence and the fine of 49,000 USD in
compliance with clauses 4, 5, and 8 of the Employment Contract”. As regards the
fine of USD 49,000 and the non-payment of the player’s salaries, the Respondent /
Counter-Claimant sustained that this was “not contradictory because they are
different in nature”.
14.
Furthermore, with regard to the imposition of the fine in the amount of USD
49,000, the Respondent / Counter-Claimant considered it “proportionate, fair and
legitimate” for the following reasons: (i) “the Club could terminate the contract in
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accordance with the relevant FIFA and CAS jurisprudence and decided not to do
it”; (ii) “the fine itself did not deprive the Player from his basic needs”; and (iii)
“the Player was informed of the entire disciplinary proceedings and he did not
show any interest in informing the Club on the reasons of his absence prior, during
and after the proceedings”.
15.
In this context, the Respondent / Counter-Claimant stated that, on 21 January
2017, within the framework of the club’s disciplinary proceedings, the player was
duly informed of the imposition of the above-mentioned fines. In support of its
statements, the club provided a copy of the “Notice of penalties to Italian Denilson
Gabionetta” allegedly sent to the Claimant / Counter-Respondent.
16.
In addition, the Respondent / Counter-Claimant maintained that it had booked a
flight ticket for 4 December 2016. In this regard, the Respondent / CounterClaimant pointed out the following: “the Player’s total ignorance of the 4
December 2016 return flight and the club’s phone call, SMS as well as messages
from his agent company clearly show that the Player did not want to return to the
Club on time”.
17.
Finally, the Respondent / Counter-Claimant requested the Claimant / CounterRespondent’s claim to be dismissed and sustained that the player had “acted in
procedural bad faith”. Therefore, the Respondent / Counter-Claimant requested
that the player shall bear the legal costs in the amount of CNY 80,000, plus 5%
interest p.a. as from 4 March 2019 until the date of payment.
18.
As to the counterclaim, the Claimant / Counter-Respondent acknowledged having
been absent as from 1 December 2016 until 18 January 2017, i.e. 49 days, however,
he maintained having been “in contact with the Respondent/Counter-Claimant
[…] between 28 November 2016 [until] 10 January 2017”. In support of his
statements, the player provided a copy of the conversations exchanged with the
club.
19.
Moreover, the player provided a copy of his “Medical Certificate”, dated 30
November 2016, according to which the player “should be in bed rest for 18
(eighteen) days as of today”, i.e. until 18 December 2016. In this regard, the player
maintained that he was diagnosed with dengue, so he had been “prevented from
travelling at least until 19 December 2016”.
20.
Furthermore, the Claimant / Counter-Respondent sustained that, on 28 November
2016 and 9 January 2017, the player requested the club to be provided with a
return flight ticket for 4 January 2019. However, as per the player, the flight ticket
“was only issued by the Respondent/Counter-Claimant for 17 January 2019”. In this
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context, the player maintained that “the delay for the issuance of the flight ticket
[…] was entirely […] the Respondent/Counter-Claimant’s fault”.
21.
Subsequently, as regards the penalty imposed on the Claimant / CounterRespondent, the player underlined that he “never accepted the amount of the
imposed penalty by signing the receipt”, as he considered it “excessive” and
disproportionate.
22.
First of all, as per the player, taking into account that the Respondent / CounterClaimant disregarded the player’s request to be provided with a flight ticket for 4
January 2017, and considering that the club imposed a fine of USD 4,900 per each
day of absence, i.e. a total amount of USD 49,000, the player underlined that the
club had “directly contributed to at least thirteen (13) extra days, i.e. 4 to 17
January 2017”.
23.
Secondly, the Claimant / Counter-Respondent also highlighted the content of
clause 8 par. 3.1, according to which disciplinary sanctions were limited to a 50%
of the player’s salary. Having said this, the player wished to emphasised that the
amount of USD 49,000, i.e. the fine imposed by the club, represented “around
149% of the Claimant/Counter-Respondent’s salary for 2017 season”.
24.
Furthermore, the player also maintained that the club had added “an extra
penalty of USD 29,000”, corresponding to the player’s salary for December 2016.
Therefore, the imposed sanction represented “around 236%” of the Claimant /
Counter-Respondent’s salary.
25.
In continuation, with regard to the fact that the club withheld the monthly salaries
for December 2016, January and February 2017, as well as part of the salary for
March 2017, the Claimant / Counter-Respondent sustained having sent a default
letter on 28 April 2017. In support of his statements, the Claimant / CounterRespondent provided a letter according to which he put the Respondent / CounterClaimant in default of payment of USD 116,066.
26.
In view of the above, the Claimant / Counter-Respondent amended his original
claim and requested the following:
a) The Respondent / Counter-Claimant’s counterclaim to be rejected;
b) To determined that the fine imposed on the Claimant / Counter-Respondent
was excessive and that the maximum applicable amount of USD 16,500 was
duly paid by the Claimant / Counter-Respondent with the withholding of his
salary for December 2016;
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c) To determine that the salaries of January and February 2017 were withheld by
the Respondent / Counter-Claimant “in abuse of its rights and therefore such
salaries are outstanding”;
d) To order the club to pay to the player the total amount of USD 68,155, plus 5%
interest p.a., corresponding to the following:
- USD 33,000 “as outstanding salary of the month of January 2017”;
- USD 33,000 “as outstanding salary of the month of February 2017”;
- USD 2,155 as part of the monthly salary for March 2017.
27.
After the closure of the investigation, by means of an unsolicited correspondence
dated 11 February 2020, the Respondent / Counter-Claimant wished to point out
inter alia that the player had allegedly “added many false statements on many key
facts”. In this respect, the Respondent / Counter-Claimant held that all the
evidences submitted by the player on 25 November 2019 had been allegedly
“manipulated” and several exhibits, such as the medical certificate and the default
letter dated 28 April 2020, had been “forged”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, it
referred to the wording of art. 21 of the 2019 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) as well as to the fact that the present matter
was submitted to FIFA on 21 January 2019 and decided on 20 February 2020.
Therefore, the Chamber concluded that the 2019 edition of the Procedural Rules is
applicable to the matter at hand.
2.
Furthermore, the DRC 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, and
considering that the present claim was lodged on 21 January 2019, the June 2018
edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
3.
Subsequently, the members of the Chamber 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, the Dispute Resolution Chamber
is competent to adjudicate on the present employment-related dispute between a
Brazilian and Italian player and a Chinese club.
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4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation
contained in the 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.
5.
First of all, the Chamber acknowledged that the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant entered into an employment contract
valid as from 1 March 2016 until 31 December 2017, i.e. corresponding to the 2016
and 2017 seasons, which entitled the Claimant to the following remuneration:
a)
b)
An annual remuneration of USD 350,000 for the 2016 season;
An annual remuneration of USD 400,000 for the 2017 season.
6.
Furthermore, as regards the remuneration for the 2017 season, the Chamber
wished to highlight that it remained undisputed that the player was entitled to
receive a monthly salary of USD 33,000.
7.
In continuation, the DRC further observed that the Claimant / Counter-Respondent
lodged a claim in front of FIFA against the Respondent / Counter-Claimant seeking
payment of the amount of USD 68,155, indicating that the Respondent / CounterClaimant had “wrongfully withheld” the monthly salaries for December 2016,
January 2017 and February 2017 and part of the monthly salary for March 2017.
8.
Moreover, the DRC acknowledged that the Respondent / Counter-Claimant, for its
part, was of the opinion that the Claimant / Counter-Claimant breached the
contract “by failing to report to work from 1 December 2016 to 18 January 2017”.
In this context, the Chamber observed that due to the player’s alleged “unjustified
absence”, the Respondent / Counter-Claimant deemed appropriate to impose the
following disciplinary sanctions: (i) the payment of a fine in the amount of USD
49,000; and (ii) the non-payment of the salaries “for the period of absence”.
9.
In this context, taking into account the parties’ arguments, the members of the
Chamber established that the main issue at stake was determining whether the
Respondent / Counter-Claimant’s disciplinary sanctions imposed on the Claimant /
Counter-Respondent had been imposed proportionally and justifiably.
10.
First of all, as regards to the absence of the player, the members of the Chamber
acknowledged that the Claimant / Counter-Respondent submitted a medical report
dated 30 November 2016, according to which the doctor prescribed bed rest for
the following 18 days, i.e. until 18 December 2016.
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11.
In addition, the DRC further acknowledged that the Claimant / CounterRespondent had duly put the Respondent / Counter-Claimant in default on 28
April 2019.
12.
As regards the club’s disciplinary sanctions against the player, the members of the
Chamber turned their attention to the content of clause 8 par. 3 of the contract
(cf. point I.4. above), according to which the fines imposed on the player could not
exceed 50% of the player’s salary. Therefore, the DRC deemed that the disciplinary
measures imposed by the club were already covered by the non-payment of the
player’s monthly salary for December 2016, in the amount of USD 16,500.
13.
In view of all the aforementioned, the members of the Chamber deemed that the
club did not sufficiently substantiate its response to the Chamber’s satisfaction, as
it did not present any conclusive documentary evidence which could corroborate
that the salaries from January 2017 until March 2017 had been withheld in a
“proportionate” and “fair” way. Taking into account that the monthly salary for
December 2016 had already been deducted (cf. see point II.12. above), and
according to the stipulations provided under clause 8 par. 3 of the contract, the
Chamber emphasised that withholding the monthly salaries for January 2017,
February 2017 and part of the monthly salary for March 2017, amounting to the
total amount of USD 68,155, for allegedly being unjustifiably absence, is excessive
and disproportionate and cannot be upheld.
14.
In addition, and irrespective of the foregoing considerations, the DRC wished to
address the fact that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a method to set off outstanding
financial obligations towards players.
15.
In this context, in view of the aforementioned considerations, the members of the
Chamber unanimously concluded that the player’s salaries for January 2017,
February 2017 and part of the monthly salary for March 2017 were outstanding to
the player.
16.
Consequently, the DRC decided to partially accept the Claimant / CounterRespondent´s claim and determined that the Respondent / Counter-Claimant must
pay to the player the total amount of USD 68,155 as outstanding remuneration,
corresponding to the following:
a) USD 33,000 as the monthly remuneration for January 2017;
b) USD 33,000 as the monthly remuneration for February 2017;
c) USD 2,155 as the remainder of the March 2017 salary.
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17.
In addition, taking into account the player’s request, the Chamber further decided
that the club must pay to the player an interest at the rate of 5% p.a. on the
amount of USD 68,155 as from 25 November 2019 until the date of effective
payment.
18.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant / CounterRespondent is rejected.
19.
The DRC concluded its deliberations in the present matter reiterating that the
claim of the Claimant / Counter-Respondent is partially accepted and, at the same
time, establishing that the counterclaim of the Respondent / Counter-Claimant is
rejected.
20.
Furthermore, taking into account the consideration under number III.6. above, the
Chamber referred to par. 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 in due time.
21.
In this regard, the Chamber 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.
22.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent / Counter-Claimant does not pay the amounts due to the Claimant /
Counter-Respondent within 45 days as from the moment in which the Claimant /
Counter-Respondent, following the notification of the present decision,
communicates the relevant bank details to the Respondent / Counter-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 effective on the Respondent / Counter-Claimant in accordance with art.
24bis par. 2 and 4 of the Regulations.
23.
Finally, the Chamber recalled that the above-mentioned sanction 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.
***
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III.
Decision of the Dis pute Res olution Cham ber
1. The claim of the Claimant / Counter-Respondent, Denilson Gabionetta, is partially
accepted.
2. The Respondent / Counter-Claimant, Zhejian Greentown FC (formerly known as
Hangzhou Greentown FC), has to pay to the Claimant / Counter-Respondent
outstanding remuneration in the amount of USD 68,155 plus 5% interest p.a. as
from 25 November 2019 until the date of effective payment.
3. Any further claim by the Claimant / Counter-Respondent is rejected.
4. The counterclaim of the Respondent / Counter-Claimant is rejected.
5. The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant, immediately and directly, preferably to the e-mail address as
indicated on the cover letter of the present decision, of the relevant bank
account to which the Respondent / Counter-Claimant must pay the amount
mentioned under point III.2. above.
6. The Respondent / Counter-Claimant shall provide evidence of payment of the
due amount plus interest in accordance with point III.2. above to FIFA to the email address [email protected], duly translated, if need be, into one of the official
FIFA languages (English, French, German, Spanish).
7. In the event that the amount due plus interest in accordance with point III.2.
above is not paid by the Respondent / Counter-Claimant w ithin 45 day s as from
the notification by the Claimant/ Counter-Respondent of the relevant bank
details to the Respondent / Counter-Claimant, the Respondent / CounterClaimant shall be banned from registering any new players, either nationally or
internationally, up until the due amount is not paid and for the maximum
duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
8. The ban mentioned in point III.7. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
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9. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note relating to the m otiv ated decision (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS.
Within another 10 days following the expiry of the time limit for filing the statement of
appeal, the appellant shall file a brief stating the facts and legal arguments giving rise
to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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