Labour Disputes
Texto da decisão
REF FPSD-6117
Decision of the
Dispute Resolution Chamber
passed on 6 July 2022
regarding an employment-related dispute concerning the player
Diogo Campos Gomes
BY:
Jorge Gutiérrez (Costa Rica)
CLAIMANT:
Diogo Campos Gomes, Brazil
Represented by Mr Pedro Macieirinha
RESPONDENT:
Negeri Sembilan FC, Malaysia
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REF FPSD-6117
I. Facts of the case
1.
On 6 February 2021, the Brazilian player Diogo Campos Gomes (hereinafter the Claimant
or the Player) and the Malaysian club Negeri Sembilan FC (hereinafter the Respondent or
the Club), signed a mutual termination agreement (hereinafter the Termination
Agreement).
2.
Therein, the Claimant and the Respondent (jointly referred to as the Parties) agreed on
the following:
“iv. The “Player” agrees to do his knee surgery in the Republic of Brazil
v. The “Player” and the “Club” must decide and mutually agree the hospital appointed to do
the player’s knee surgery once confirmed the hospital for the surgery. The “Club” will make
the payment for the surgery directly via Telegraphic Transfer (TT) to the hospital one (1) week
before the surgery. The “Club” will notify the “Player” once the payment has been transferred
to the hospital.
vi. The “Club” will bear the medical cost for the surgery only for the injury as stated above with
conditions it must be agreed between both parties.”
3.
Allegedly, on 4 February 2022 (prior to signing of the Termination Agreement), the
Respondent sent the following WhatsApp message to the Claimant:
“Amigo after big argument coach and the team lawyer..Now we comes to conclusion that
When diogo leave they gonna pay him cash 15k ringgit malaysia and 2 months salary will be
credited to his account in brazil. And he go back there and let us know the charges for surgery.
Team doctor already give us the price here patella surgery and meniscus scope nett RM23K
including 3 months clinical rehab..
Thats the best we could do for him. Now coaches job in question mark.”
4.
The Claimant underwent the knee surgery and received the reimbursement of the
medical costs for the surgery from the Respondent.
5.
On 4 March 2022, the Claimant sent a default notice to the Respondent, requesting the
amount of BRL 43,600 (Brazilian Real), corresponding to additional rehabilitation costs.
6.
On 30 March 2022, the Respondent replied to the said letter and argued that the
rehabilitation costs were not contractually stipulated and, for the avoidance of doubt, the
Respondent clarified that the medical costs do not include the rehabilitation of the Player.
Finally, the Respondent argued that it is discharged of all obligations since it paid the
medical costs.
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7.
On 9 April 2022, the Claimant insisted that the respective amount for the rehabilitation
costs remained outstanding and sent yet another default notice.
II. Proceedings before FIFA
8.
On 20 May 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
9.
In his claim, the Claimant requested the amount of BRL 43,6000, corresponding to the
rehabilitation costs.
10. The Claimant was of the opinion that the medical costs for the surgery stipulated in the
Termination Agreement included the medical rehabilitation and, requested the
reimbursement based on the legal principle pacta sunt servanda.
b. Position of the Respondent
11. Despite being invited to do so, the Respondent failed to reply to the Claim within the
stipulated deadline granted by FIFA.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge (hereinafter also referred to as the Single Judge) analysed
whether he was competent to deal with the case at hand. In this respect, the Single Judge
took note that the present matter was presented to FIFA on 20 May 2022 and submitted
for decision on 6 July 2022. Taking into account the wording of art. 34 of the June 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.
13. 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 (July 2022 edition), the Single Judge is
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competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Brazilian player and a Malaysian club.
14. 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 (July 2022), and
considering that the present claim was lodged on 20 May 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
15. 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
16. 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.
i. Main legal discussion and considerations
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this claim of a player against a club concerns
reimbursement of rehabilitation costs as established in a mutual termination agreement.
Furthermore, the Single Judge noted that the Claimant underwent a knee surgery and,
consequently, had to attend rehabilitation.
18. In this context, the Single Judge recalled the following provision stipulated in the
Termination Agreement: “The “Club” will bear the medical cost for the surgery only for the
injury as stated above with conditions it must be agreed between both parties” (emphasis
added).
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19. In view of the above, the Single Judge concluded that whereas the Parties agreed that the
surgery will be reimbursed, he pointed out that any other costs (e.g. for physiotherapy or
rehabilitation) were not subject of the Termination Agreement. Thus, the Single Judge
concluded that there is no contractual basis for the Claimant’s claim.
20. Finally, for the sake of completion, the Single Judge wished to clarify that the WhatsApp
message does not have bearing on the case since (i) it was not possible to establish the
identity of the sender; (ii) the sender does not acknowledge that the rehabilitation costs
shall be paid; (iii) there is a Termination Agreement between the Parties, concluded two
days later, establishing that merely the surgery will be reimbursed.
ii. Consequences
21. Having stated the above, the Single Judge rejected the claim of the Claimant due to the
lack of contractual basis.
d. Costs
22. 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.
23. 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.
24. Lastly, the Single Judge concluded its 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, Diogo Campos Gomes, is rejected.
2.
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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www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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