Labour Disputes
Texto da decisão
REF FPSD-7776
Decision of the
Dispute Resolution Chamber
passed on 11 January 2023
regarding an employment-related dispute concerning
the player Lucas Massaro Garcia Gama
BY:
Gonzalo de Medinilla (Spain)
Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Lucas Massaro Garcia Gama, Brazil
Represented by Mr Cleiton Bernardes
RESPONDENT:
Dragon Pathumwan Kanchanaburi FC, Thailand
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I. Facts of the case
1.
On 22 June 2022, the Brazilian player, Lucas Massaro Gama (hereinafter: the Claimant),
and the Thai club, Dragon Pathumwan Kanchanaburi FC (hereinafter: the Respondent)
signed an employment contract (hereinafter: the Contract) valid as from the date of
signature until the end of the 2024 season in Thailand (cf. TMS: 31 May 2024).
2.
In accordance with art. 2 of the Contract, the Respondent undertook to pay to the
Claimant as follows:
-
THB 100,000 as monthly remuneration, payable by no later than the 5th day of the
following respective month;
-
THB 100,000 as a signing bonus;
-
THB 10,000 bonus per goal scored;
-
THB 5,000 bonus per match won;
-
THB 75,000 bonus for winning the national championship;
-
In case of promotion, increase to THB 200,000 as the new base salary.
3.
Furthermore, in accordance with art. 2.6 of the Contract, the Respondent undertook to
arrange a visa and work permit for the Claimant.
4.
By correspondence dated 13 July 2022, the Claimant requested the Respondent to receive
an advance of THB 60,000 on his salary in order to renew his visa, which was confirmed
to have been remitted by the Respondent.
5.
On 15 August 2022, the Respondent sent the Claimant a warning letter indicating that the
season would start on 10 September 2022 and that the Claimant was obligated to submit
his visa by no later than 29 August 2022 in order to give effect to the Contract.
6.
On 30 August 2022, the Respondent terminated the Contract, stating as follows:
“As Sing Golden Bell Kanchanaburi Company Limited has entered into a contract to hire you
as a player according to the Contract referred to above, which you agree to bring a document
showing that you can live and work in Thailand to show to the company. Subsequently, the
company has issued a letter notifying you to bring such documents. Presented 29 August 2022,
according to the documents above, which when it is due, you do not show it in any way. The
company know that you do not able to live and work in Thailand legally for the aforementioned
reasons the company therefore has this latter to terminated the contract to hire players with
you assuming that you break the promise.
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According to the above reasons, there is this latter notifying the termination of the employment
contract by giving you a refund of wages from the date they have been received under the
contract until the end of the employment contract. and contract with [the Respondent] within
31 August 2022 if due, you have ignored the company. will be prosecuted in the civil and
criminal section according to the law to the end.
In addition, for other damages from breach of contract, the club still reserves the right.”
7.
On 31 August 2022, the Claimant requested to schedule a meeting with the Respondent
regarding his contractual situation. Said request was denied by the latter.
8.
Between 7 August 2022 and 8 August 2022, the Claimant and the Respondent exchanged
correspondence via WhatsApp, discussing the liability for organising the Claimant’s visa.
In this regard, the Respondent outlined that it refused to organise the visa, and instead
transferred the amount of THB 60,000 to the Claimant as an advance payment on his
salary in order for the latter to organise it by himself.
II. Proceedings before FIFA
9.
On 6 October 2022, 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
10. According to the Claimant, the Respondent terminated the Contract without just cause,
wanting to get rid of the former for poor performances and using the failure of the
Claimant to organise his own visa as an excuse.
11. The Claimant stressed that the Respondent undertook contractually to organise his visa,
and that, in any case, the validity of a Contract may not be made dependant on the
obtention of a visa and/or work permit, in accordance with art. 18 par. 4 of the
Regulations.
12. The Claimant also alleged that the Respondent put pressure on him to leave as soon as
possible and forced him to purchase a flight ticket to return home.
13. The requests for relief of the Claimant, as amended, were the following:
-
Outstanding remuneration of THB 70,000, corresponding to the salary for
August 2022, as THB 30,000 was deducted as stipulated in the latter of 13 July 2022;
-
Compensation of THB 2,200,000, corresponding to the residual value of the Contract;
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-
Additional compensation of THB 400,000;
-
Reimbursement for flight ticket of THB 57,000.
b. Position of the Respondent
14. According to the Respondent, it had been misled by the Claimant in the sense that it was
led to believe that he was already the holder of a valid work permit and that it was, in any
event, not responsible for the obtention of such a permit on the Claimant’s behalf. The
Respondent particularly relied on provisions allegedly contained in Thai labour law that
an employee must already be in possession of a work permit when commencing their
employment.
15. The Respondent further outlined that it had just cause to terminate the Contract because
the Football Association of Thailand allegedly issued a communication to its members
indicating that foreign players must be registered with the relevant work permits prior to
the commencement of the season. Despite being aware of these requirements, the
Claimant failed to organise the relevant documents, thereby allegedly being in breach of
his obligations.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) 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 6 October 2022
and submitted for decision on 11 January 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.
2.
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 October 2022 edition), he 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.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (October 2022
edition), and considering that the present claim was lodged on 6 October 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
4.
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
5.
His 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, he emphasised that in the following considerations he
will refer only to the facts, arguments and documentary evidence, which he considered
pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
contractual termination by the Respondent on 30 August 2022.
7.
In this context, the Single Judge acknowledged that his task was to determine whether,
based on the arguments and documentation on file, the Respondent had just cause to
terminate the Contract, and subsequently, what the consequences of such termination
are.
8.
To begin with, the Single Judge recalled the argumentation submitted by the Claimant,
namely that the Respondent was obligated both contractually, as well as per the
Regulations, to provide him with a work permit / visa, and that he not only refused to bear
this responsibility, but used the lack of a visa as an excuse to terminate the Contract
prematurely on the grounds of poor performance.
9.
The Single Judge equally took note of the Respondent’s line of argument that the Claimant
had allegedly misled it by creating the impression that, in accordance with Thai labour
law, he already had a work permit before commencing the Contract, as well as arguing
that, in any case, it was not responsible to assist the Claimant in this regard.
10. Before analysing the argumentation of the parties above, as well as the documentation
submitted to the file, the Single Judge referred to the wording of art. 18 par. 4 of the
Regulations, in accordance with which the validity of an employment contract may not be
made dependant on the obtention of a work permit and/or visa, as well as a medical
examination.
11. Furthermore, the Single Judge referred to art. 13 par. 5 of the Procedural Rules, which
stipulate that a party asserting a fact bears the burden of proving the veracity thereof.
12. Having established the above, the Single Judge firstly assessed whether there were any
outstanding amounts which had fallen due before the Contract was terminated.
13. In this respect, the Single Judge noted that the Claimant had acknowledged having
received THB 60,000, which was set off in equal parts from the Claimant’s salaries of
July 2022 and August 2022 respectively. As such, the Claimant argued that he was still due
to receive THB 70,000, corresponding to pro-rata unpaid salary for August 2022.
14. Furthermore, the Single Judge noted that the non-payment of said amount was not
contested by the Respondent, and that the latter indeed corroborated the Claimant’s
allegation that the amount of THB 60,000 had been set off from his salary.
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15. Therefore, the Single Judge firstly concluded that the Respondent was liable to pay the
Claimant the remaining amount of THB 70,000 for the monthly salary of August 2022.
16. Moreover, the Single Judge also noted that the Claimant was expulsed from the country
and forced to return home to Brazil as a result. In this respect, given that no evidence was
submitted to the file as to the value of said flight ticket, the former recalled his
longstanding jurisprudence and decided that the Claimant is entitled to payment of the
costs for such flight, as calculated by FIFA Travel, which in the present case was held to be
THB 50,000.
17. Having established the above, the Single Judge turned to the lawfulness of the contractual
termination by the Respondent on 30 August 2022.
18. In this sense, the Single Judge firstly pointed out that, in accordance with his longstanding
jurisprudence, the responsibility of obtaining a work permit falls on the Respondent as
the employer.
19. Furthermore, the Single Judge observed that the Respondent provided no evidence to
displace said standard position in the sense that the parties had mutually agreed upon
the responsibility of obtaining a work permit shifting on the Claimant, nor that the latter
had misled the Respondent in any way, thereby falling short of the standard set by
art. 13 par. 5 of the Procedural Rules.
20. Lastly, and in any event, the Single Judge wished to stress that the validity of an
employment contract may not be made dependant on the obtention of a visa/work
permit, as stipulated by art. 18 par. 4 of the Regulations.
21. Having outlined the above, and having noted that no further arguments were provided to
justify the early termination of the Contract, the Single Judge concluded that the
termination of the Contract on 30 August 2022 was not an ultima ratio measure.
22. Therefore, the Single Judge concluded that the Contract was terminated by the
Respondent without just cause.
ii. Consequences
23. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
24. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, was equivalent to the remainder
of the salary for August 2022 under the Contract, namely THB 70,000.
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25. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amount which was outstanding under the Contract at the moment of the termination,
i.e. THB 70,000.
26. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amount as from 6 September 2022 until
the date of effective payment.
27. Furthermore, in accordance with his longstanding jurisprudence, the Single Judge decided
to award the Claimant the costs of his return flight to Brazil, in the amount of THB 50,000.
28. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, he 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.
29. In application of the relevant provision, the Single Judge held that he first of all had to
clarify as to whether the 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. In this regard, the Chamber established that no
such compensation clause was included in the Contract.
30. As a consequence, the Single Judge 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 Single Judge recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
31. Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge
proceeded with the calculation of the monies payable to the latter under the terms of the
Contract from the date of its unilateral termination until its end date. Consequently, the
former concluded that the amount of THB 2,100,000 (i.e. the residual value of the
Contract, or 21 x THB 100,000 for the period between September 2022 and May 2024)
serves as the basis for the determination of the amount of compensation for breach of
contract.
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32. In continuation, the Single Judge verified as to whether the Claimant 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 Single Judge 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.
33. In the present case, the Single Judge established that the Claimant had not found any new
employment following the termination of the Contract.
34. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay
the amount of THB 2,100,000 to the Claimant, which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter.
35. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award interest on said compensation
at the rate of 5% p.a. as of 6 October 2022 until the date of effective payment.
iii. Compliance with monetary decisions
36. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
37. 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.
38. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) 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. 24 par. 2, 4, and 7 of the Regulations.
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39. 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.
40. 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. 24 par. 8 of the Regulations.
d. Costs
41. 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, he decided that no procedural costs were to be
imposed on the parties.
42. 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.
43. Lastly, the Single Judge concluded his 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, Lucas Massaro Garcia Gama, is partially accepted.
2.
The Respondent, Dragon Pathumwan Kanchanaburi FC, has to pay to the Claimant, the
following amount(s):
- THB 70,000 as outstanding remuneration plus 5% interest p.a. as from
6 September 2022 until the date of effective payment;
- THB 50,000 as reimbursement for the flight ticket to return home;
- THB 2,100,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 October 2022 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 article 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
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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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