Labour Disputes
Texto da decisão
REF FPSD-4901
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player Gustavo Adolfo
Torres Grueso
BY:
Daan de Jong (Netherlands)
CLAIMANT:
Gustavo Adolfo Torres Grueso, Colombia
Represented by Melanie Schärer and Gaudenz Koprio
RESPONDENT:
Club de Regatas Vasco Da Gama, Brazil
Represented by Gustavo Koch Pinheiro
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REF FPSD-4901
I.
Facts of the case
1.
On 4 November 2020, the Colombian player, Gustavo Adolfo Torres Grueso (hereinafter: the
Claimant), and the Brazilian club, Club de Regatas Vasco da Gama (hereinafter: the Respondent)
signed an employment contract Grueso (hereinafter: the contract), valid from 4 November 2020
until 31 December 2021.
2.
On 8 March 2021, the Claimant and the Respondent concluded a termination agreement
(hereinafter: the termination agreement), by means of which they agreed to mutually terminate the
contract.
3.
In accordance with the provisions of the termination agreement, the Respondent undertook to
pay to the Claimant the total amount of (Brazilian Real) BRL 729,197.91, as follows:
-
BRL 200,000 payable on 3 August 2021; and
-
10 equal instalments of BRL 52,919.79 each, with the first instalment due on 20 April 2021 and
the others always 30 days later
4.
Clause 3 of the termination agreement stipulated the following:
“Notwithstanding the above, the PARTIES agree that if there is a delay in payment of more than
15 (fifteen) days, of 03 (three) consecutive instalments and/or 06 (six) non-consecutive instalments,
regardless of the payroll o of VASCO’s main and professional staff, the agreed amount – due and falling
due – will have an early due date for payment within 30 (thirty) days after such due date.”
5.
On 4 September 2021 the Claimant sent a letter to the Respondent, indicating that it is in arrears
with two respective instalments of BRL 52,919.79, i.e., the total amount of BRL 105,839.58.
6.
On 11 November 2021, the Claimant sent a default notice to the Respondent, requesting payment
of the outstanding amount of BRL 370,438.53, corresponding to 7 outstanding instalments of
BRL 52,919.79 each for the period July 2021 – January 2022, granting the Respondent until
11 December 2021 to comply with payment thereof, however to no avail.
II. Proceedings before FIFA
7.
On 21 January 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
8.
According to the Claimant, the Respondent breached the termination agreement and as a
consequence, the Respondent should be held liable to pay him the outstanding amount of
BRL 370,439, based on the legal principle of pacta sunt servanda.
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9.
The requests for relief of the Claimant, were that the Respondent pay him the amount of
BRL 370,439 corresponding to 7 outstanding instalments of BRL 52,919.79 each for the period
July 2021 until January 2022, plus 5% interest p.a. as from 12 December 2021.
b. Position of the Respondent
10. The Respondent did not dispute the fact that a termination agreement was concluded between
the parties, but disputed the outstanding amount, on the basis that it paid the first six instalments
as detailed in the termination agreement in the total amount of BRL 464,598.95, hence the
remaining debt is – according to the Respondent - only BRL 264,598.95, corresponding to the
remaining five instalments.
11. Furthermore, the Respondent mentioned that considering that the amount established in the
termination agreement entailed outstanding remuneration and compensation for early
termination of contract, the compensation must be mitigated in light of the fact that the Claimant
concluded a new employment contract with the Colombian club, Atlético Nacional on 15 July 2021.
12. In conclusion, the Respondent requested that the DRC decide that:
(a) “The Club already paid six instalments out of the eleven established in the Settlement Agreement,
in a total of R$ 464,598.95.
(b) The remaining debt is R$ 264,598.95 (two hundred and sixty-four thousand, five hundred and
ninety-eight Reais and ninety-nine cents); and
(c)
The R$ 250,000 compensation established by the early termination of the contract is subject to
mitigation as per art. 17 FIFA RSTP and art. 337c SCO, and must consider any remuneration earned
by the Player after the termination to prevent any unfair enrichment.”
c.
Additional comments Claimant
13. On 18 March 2022, the FIFA administration requested additional comments from the Claimant in
relation to the alleged payments made by the Respondent.
14. In this context, the Claimant attached his bank statements for the period between June and
October 2022, mentioning the following:
“The Respondent, however, alleges having made two further payments to the Player, one of R$ 52,919.79
on 9 September 2021 and another of R$ 52,919.79 on 22 October 2021.With respect to the latter two
alleged payments, the Player would hereby like to inform the DRC that he has not received the amounts
in question.”
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15. The Claimant stated that following his departure from Brazil, his account was deactivated, hence
the payments as shown on the Respondent’s bank account never reflected to his account and
concluded that the said amounts were returned to the Respondent.
16. The Claimant further indicated that he disagrees with the Respondent’s statement pertaining to
the mitigation of the compensation due to the Claimant, as the parties have mutually terminated
the contract and consequently, art. 17 of the RSTP cannot be applied.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
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 21 January 2022 and submitted for
decision on 8 June 2022. 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.
18. 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 (March 2022 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Colombian player and a Brazilian club.
19. 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 (March 2022 edition) and considering that
the present claim was lodged on 21 January 2022, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
20. 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 it 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
21. 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
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above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge 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
22. The foregoing having been established, the Single Judge moved to the substance of the matter and
took note that the parties strongly dispute the total amount that was outstanding and due to the
Claimant as per the termination agreement concluded between the parties on 8 March 2021.
23. In this context, the Single Judge acknowledged that his task was to determine whether the amounts
claimed by the Claimant had indeed already fallen due and were to be paid by the Respondent.
24. The Single Judge acknowledged, that it remained undisputed between the parties that the
Respondent failed to comply with the payment of all amounts specified on the agreed dates as
detailed in the termination agreement.
25. The Single Judge noted that in its submissions, the Respondent argued that it paid two additional
instalments to the Claimant respectively on 9 September and 22 October 2021, in the amount of
BRL 52,919.70 each and accordingly submitted payment documents, which illustrated the said
payments it had made to the Claimant. In this regard, the Single observed that the Claimant
disagreed that he received the payments from the Respondent based on the deactivation of his
bank account in Brazil, moreover, he submitted documentary evidence as proof that the funds was
not received by him.
26. In this regard, the Single Judge wished to point out that, in accordance with art. 13 par. 1 of the
Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be
presented into one of the official FIFA languages.
27. In this context, the Single Judge wished to specify that the documentary evidence provided by the
Claimant, were provided without a translation in one of the official FIFA languages and could
therefore not be taken into account in assessment of the matter at hand, accordingly the Claimant
did not meet its burden of proof as established under article 13 par. 5 of the Procedural Rules.
28. The Single Judge, however pointed out that the documentation as submitted by the Respondent
would be deemed as conclusive documentary evidence, on the basis of which it could be
established that it made the relevant additional payments to the Claimant and will therefore be
taken into account in deduction on any dues payable to the Claimant.
29. As to the Respondent’s allegations regarding the mitigated compensation, the Single Judge
deemed that, in case the parties intended to take a potential new contract into consideration for
the calculation of any sum due to the Claimant under the termination agreement, they should have
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done so in writing. However, they failed to do so, and thus, the Single Judge established that the
Respondent’s argumentation in this respect should be set aside.
30. Finally, taken all of the above into account the Single Judge concluded that the Respondent was
indeed in arrears of its financial obligations as per the termination agreement and is thus to be
held liable for the consequences thereof.
ii. Consequences
31. Having stated the above, the Single Judge turned his attention to the question of the consequences
of such unjustified breach of the termination agreement committed by the Respondent.
32. 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 of
BRL 264,598.50 (BRL 370,437.90 less BRL 105,839.40 as the additional payments made by
Respondent).
33. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above amounts from
12 December 2021 until the date of effective payment.
iii. Compliance with monetary decisions
34. 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.
35. 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.
36. 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.
37. 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.
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38. 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
39. 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.
40. 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.
41. 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, Gustavo Adolfo Torres Grueso, is partially accepted.
2.
The Respondent, Club de Regatas Vasco Da Gama, has to pay to the Claimant, the following
amount:
BRL 264,598.50 as outstanding amount plus 5% interest p.a. as from 12 December 2021 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 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
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).
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