Labour Disputes
Texto da decisão
REF FPSD-6128
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player Leonardo Francisco Incorvaia
BY:
Frans DE WEGER (The Netherlands), Chairperson
Stefano SARTORI (Italy), member
Laurel VAURASI (Fiji), member
CLAIMANT:
Leonardo Francisco Incorvaia, Argentina & Italy
RESPONDENT:
East Riffa Sports Club, Bahrain
REF FPSD-6128
I Facts
1.
On 15 July 2021, the parties concluded an employment contract valid as from 15 July 2021 until 31 May
2022.
2.
In this respect, art. 4 of the contract stipulated the following:
“Financial entitlements: The player is entitled to 40,000/- US (US 40,000 only) as a total amount throughout
the 2021/2022 sports season paid on (10) monthly instalments.
(…)
3) Provide a total of two (2) return travel tickets for the Player and his wife, between Bahrain and Argentina
during the Term, along with a car and apartment during the Term for the Player for each season.”
3.
The contract stipulated the following:
“7.8) The Parties hereto have agreed expressly and mutually that The Club shall pay Amount of Four
Thousand United States Dollars (USD 4,000) upon contract termination without cause prior to the expiry of
the Term. The Player declares that the above amount is to be paid as compensation for contract termination
and declares not to claim any additional amounts due to contract termination.”
9) In the case that the player wants to terminate the contract before its expiration date , its shall be by
mutual consent between the two parties.”
4.
On 16 January 2022, Mr Yaqoob Bani Hammad sent the following message to the player via
“WhatsApp”:
“Brother, I am sorry for that, but the club told me to tell you that your contract with the team had ended
because they tried to register you as a local player, but to no avail. We are sorry for that and thank you for
your professionalism and discipline with the team. I did not intend for you to leave at this time, but these
are the decisions of the club. I am sorry.. and tomorrow come to club and take your Financial Clearance
(…)
the club say they need striker and now we register 4 professional and now we have 5 we need to remove 1”
5.
On 19 January 2022, the club issued a “notice of termination of player contract” with the following
contents:
“The management of the East Riffa Sports Club informs you that the contract between you and us has been
terminated (Mr.Leonardo francisco passport no. YB7028251- Nationality ITALY ),
A clearing and financial matters will be agreed between you and us.”
6.
In January 2022, the club issued a “mutual termination agreement” with the following contents:
“The player here by agrees and declares that he has received all salaries from August 2021 to Dec 2021 (…)
The club and professional Football Player also declares that there are 4000$ (…) only, the club does not owe
him any sums and that the club has fulfill all its contractual obligations (…)
This contract agreed to end by both parties in mutual agreement on 15st Jan 2022”
7.
On 24 January 2022, the legal representative sent a letter to the club asking to confirm if the contract
was terminated.
8.
On 29 January 2022, the parties signed a document referred to as “Termination of Contract”, with the
following contents:
REF FPSD-6128
“The player here by agrees and declares that he has received all his salaries from 15th July 2021 to Jan 2022,
with other payments if any with his tickets, after mutual agreement of both parties
The club and professional Football Player also deal that we have 4000S ( Four thousand dollar US) as Jan
2022 salary and 4000$ (…) as penalty for termination of contract , that the total will be 8000$ (…), & we will
pay for him 500$ (…) instead of tickets, that the club will pay the amount in cheque no.104535 , the club
does not owe him any sums and that the club has fulfill all its contractual obligations.
The club here by declares that the professional Football Player does not owe the club any sums and that the
football player has fulfilled all his contractual obligations.”
9.
On 30 January 2022, and according to the information contained in the TMS, the parties concluded a
“Financial Settlement Enforcement”, with the following contents:
“This FINANCIAL SETTEMENT ENDORSEMENT termination is made on Sunday 30st Jan 2022 between East
Riffa Sports Club, and Mr. Leonardo francisco (…) hereby agrees that the contract will end on 31/01/2022
by mutual agreement of both parties.
The player hereby agrees and declares that he has received all salaries from 15 Julv to Jan 2022, with other
payments if any with his tickets after mutual agreement of both parties.
The club and professional Football Player also declares that there are no any other outstanding amount,
the club does not owe him any sums and that the club has fulfill all its contractual obligations.
The club her by declares that the professional Football Player does not owe the club any sums and that the
football player has fulfilled all his contractual obligations. ”
10. According to the player, he tried to return to Argentina on and he arrived to the airport. However, he
explained that “when he arrived at the migration control, the authorities prohibited him from getting on
the plane to take the flight due to a problem with his visa.”
11. The player explained that, subsequently, the local immigration authorities indicated him that his
tourist visa expired and that he should have had a proper work permit. As a result, the player stated
that he would not be allowed to leave the country.
12. The player explained that he contacted the club, which requested him to sign a mutual termination
agreement in order to perform the necessary arrangements that could allow him to leave the country.
13. The player acknowledged that, ultimately, “even though his desire was never to reach those
agreements”, he did sign the mutual termination agreement and a “financial settlement
endorsement.
REF FPSD-6128
14. On 3 February 2022, and according to the player, a border control officer explained him that the
issue was that he only had a tourist visa (note: video on file).
15. On 4 February 2022, the player returned to Argentina.
16. On 9 January 2022, the player sent a correspondence to FIFA and FIFPro complaining about the
following (free translation from Spanish):
“Club officials told me through phone calls and WhatsApp audios that in order for them to solve the visa
problem I had to sign the mutual termination agreement by the club, which, I reiterate, foresaw absurd
figures violating my right to be compensated in full for the dismissal without cause that really happened.
Otherwise, they told me to go to the embassy and that they would do nothing.”
17. According to the information contained in the Transfer Matching System (TMS), the player transferred
to East Riffa FC to the Argentinean club, CA Temperley (Ref. 483037).
18. In this respect, on 2 February 2022, the player and CA Temperley concluded an employment contract
valid as from the date of signature until 31 December 2022, for a monthly salary of ARS (Argentinean
Pesos) 90,000 (approx.. 856 USD as of 2 February 2022). (from 2 February 2022 until 31 May 2021, the
player would have earned 856*4= 3,424)
REF FPSD-6128
II Proceedings before FIFA
1.
On 23 May 2022, the player lodged a claim before FIFA for breach of contract without just cause.
2.
The player explained that the Club first tried to naturalize him as a Bahraini national and, failing to do
so, directly opted to terminate his contract without just cause.
Residual value of the contract
USD 20.000
Difference in the price of the player's
USD 857
return air ticket to Argentina
Wife's round-trip airline ticket
USD 2.000
Additional compensation (at least)
USD 24.000
TOTAL
USD 46.857
3.
The player requested 5% interest p.a. as from 24 January 2022.
4.
In relation to the amount claimed as “difference in price” for a return air ticket, the player explained
that he paid USD 1,507 in order to return to his country, but the club paid USD 650 when he signed
the settlement.
5.
According to the player, in accordance with art. 9.4 of the football competitions regulations in in
Bahrain, local clubs can only register 3 foreign players + 1 Asian.
6.
In this respect, the player explained that the club exceeded the quota and that, in view of the above,
tried to naturalize him as a Bahraini national and, failing to do so, decided to terminate his contract.
7.
The player explained that the club tried to terminate sign a mutual termination agreement, but that
he refused to sign it in view of the proposed low compensation.
8.
The player stated that he finally decided to sign the termination agreements as it was required by the
club in order for him to leave the country. In this respect, the player considered that “the club took
unfair advantage” of his situation.
9.
The player considered that the entire situation indicates not only the bad faith and abusive conduct
of the club, but also a serious breach by the club of its obligations as an employer that should have
arranged the correct visa for the duration of his employment contract.
10. The player further stated that, in any case, it is not possible to terminate by mutual agreement a
contract that had already been terminated days before.
11. The player argued that the Club was in complete control of the process related to the Player’s ITC as
well as of the negotiations with the Player concerning the mutual termination agreement and the
financial settlement endorsement and noted that, in this position, the Club could prevent his
registration for any new club, if he did not sign the termination agreement.
12. The player therefore explained that he signed the mutual termination agreement due to his fear to
stay in Bahrain, which would have left him without the possibility of reaching his new club.
REF FPSD-6128
13. As to the liquidated damages clause of the contract (art. 8 par 8), the player considered that it shall be
understood as invalid since it gives a unilateral, arbitrary, and disproportional right for the Respondent
to terminate the Contract based on subjective basis, without granting him with the same rights.
14. In relation to the requested air tickets, the player explained that he paid an air ticket for a value of
USD 1.507, whereas the club provided him with a ticket for USD 650. The player therefore requested
USD 857 as a difference in both amounts.
15. The player further requested USD 2,000 for his wife’s ticket for the journey Bahrain - Argentina,
corresponding to “average costs” for “the different air ticket websites consulted”.
16. In its reply to the claim, the Respondent explained that it concluded a settlement agreement.
REF FPSD-6128
III Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) 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 23 May 2022 and submitted for decision on 1 September 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players, it is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between an
Argentinean player and a Bahraini club.
3.
Subsequently, the Chamber 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 23 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
4.
The Chamber 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 Chamber 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.
5.
Merits of the dispute
Its competence and the applicable regulations having been established, the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on 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.
i. Main legal discussion and considerations
6.
The Chamber first noted that, on 15 July 2021, the parties concluded an employment contract valid
as from 15 July 2021 until 31 May 2022.
7.
Subsequently, the Chamber observed that the Claimant lodged a claim against the Respondent,
arguing that the latter unilaterally terminated the contract without just cause.
REF FPSD-6128
8.
On the other hand, the Chamber acknowledged the position of the Respondent, which
fundamentally argued that, under any circumstance, the matter was settled amicably due to the
conclusion of a mutual termination agreement.
9.
In relation to said agreement, the Chamber also considered the position of the Claimant, who
acknowledged its existence, but considered it to be null and void insofar it was signed under duress.
10. In view of the dissent between the parties, the Chamber understood that the first legal issue at stake
is to determine whether the contract was mutually terminated or not.
11. In doing so, the Chamber recalled that it is fundamentally undisputed that, on 29 January 2022, the
parties signed a document referred to as “Termination of Contract”, with the following contents:
“The player here by agrees and declares that he has received all his salaries from 15th July 2021 to Jan
2022, with other payments if any with his tickets, after mutual agreement of both parties
The club and professional Football Player also deal that we have 4000S ( Four thousand dollar US) as Jan
2022 salary and 4000$ (…) as penalty for termination of contract , that the total will be 8000$ (…), & we
will pay for him 500$ (…) instead of tickets, that the club will pay the amount in cheque no.104535 , the
club does not owe him any sums and that the club has fulfill all its contractual obligations.
The club here by declares that the professional Football Player does not owe the club any sums and that
the football player has fulfilled all his contractual obligations.”
12. The Chamber also recalled that, on 30 January 2022, and according to the information contained in
the TMS, the parties concluded a “Financial Settlement Enforcement”, with the following contents:
“This FINANCIAL SETTEMENT ENDORSEMENT termination is made on Sunday 30st Jan 2022 between East
Riffa Sports Club, and Mr. Leonardo francisco (…) hereby agrees that the contract will end on 31/01/2022
by mutual agreement of both parties.
The player hereby agrees and declares that he has received all salaries from 15 Julv to Jan 2022, with
other payments if any with his tickets after mutual agreement of both parties.
The club and professional Football Player also declares that there are no any other outstanding amount,
the club does not owe him any sums and that the club has fulfill all its contractual obligations.
The club her by declares that the professional Football Player does not owe the club any sums and that
the football player has fulfilled all his contractual obligations (…)”
REF FPSD-6128
13. In this respect, the Chamber analysed the contents of said documents, and observed that they
appear to be relatively clear, and that they also include the player’s signature.
14. Given the above, the Chamber wished to refer to the basic principle of burden of proof, as stipulated
in art. 13 par. 5 of the Procedural Rules , according to which a party that asserts a fact has the burden
of proving it. In addition, the Chamber highlighted that, following art. 13 par. 3 of the Procedural
Rules, “any type of evidence may be produced. A chamber has ultimate discretion as to the weight it gives
to evidence.”
15. In the present case, the DRC pointed out that the Claimant bore the burden of proving that the
contested documents were executed under duress, or any other circumstance that demonstrates
that the free-will of the parties was affected on the occasion of such execution
16. As a general consideration, the members of the DRC underlined that, in principle, the existence of
duress needs to be proved to the comfortable satisfaction of the Chamber. This “comfortable
satisfaction” standard is always stricter than the “balance of probabilities” standard but is less strict
than the standard of “beyond a reasonable doubt”.
17. In the matter at stake, and after analysing the evidence provided by the Claimant in support of his
allegation, and particularly the provided videos, the Chamber considered that the player discharged
his burden of proof, as it can be established with compelling evidence that the player fundamentally
signed the mutual termination agreement to obtain an administrative permission to leave Bahrain.
18. Besides, the Chamber further noted that, other than the permission to leave Bahrain, the mutual
termination agreements do not provide any benefit to the player. In the opinion of the Chamber,
this indicates that the player only signed said documents to obtain his exist visa.
19. On this note, the Chamber further noted that the club did not provide any substantive argument as
to the alleged duress.
20. Finally, the Chamber also took note that the player immediately objected against the termination
agreement after leaving the country.
21. In sum, the Chamber unanimously agreed that it can be established that the mutual termination
agreement was concluded under pressure against the player, as it he was required to sign it for the
purpose of leaving the country. In other words, the mutual termination agreement was signed under
duress, and it is thus legally invalid and cannot be held against the player. The Chamber wished to
emphasize that, as part of their basic human right to freedom of movement, foreign workers have
a fundamental right to leave a country without the permission of an employer.
22. The foregoing being established, the Chamber reverted to the player’s allegation, according to which
the club terminated the contract unilaterally and without just cause.
23.
In particular, the Chamber observed that, on 19 January 2022, the club issued a “notice of
termination of player contract” with the following contents:
REF FPSD-6128
“The management of the East Riffa Sports Club informs you that the contract between you and us has
been terminated (Mr.Leonardo francisco passport no. YB7028251- Nationality ITALY ), A clearing and
financial matters will be agreed between you and us.”
24. After duly examining the contents of said document, the Chamber observed that the club did not
provide any reason for the termination, although also noted that, on 16 January 2022 (cf. point I 4
above) it apparently stated that it did so due to not being able to register the player in local
competitions.
25. In this regard, the Chamber wished to underline that, in accordance with its jurisprudence, among
a player’s fundamental rights under an employment contract, is not only his right to a timely
payment of his remuneration, but also his right to access training and to be given the possibility to
compete with his fellow team mates in the team’s official matches. By not being able to register him,
the club is effectively barring, in an absolute manner, the potential access of a player to competition
and, as such, violating one of his fundamental rights as a football player.
26. As a result, the Chamber established that the club terminated the contract without just cause and,
consequently, the player is entitled to compensation.
ii. Consequences
27. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
iii. Compliance with monetary decisions
28. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, the Chamber 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 Chamber held that it first of all had to clarify whether
the pertinent employment 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.
30. In this regard, the Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
31. As a consequence, the Chamber 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 Chamber recalled that said provision provides for a non-exhaustive
REF FPSD-6128
enumeration of criteria to be taken into consideration when calculating the amount of compensation
payable.
32. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Chamber concluded that the amount of USD 20,000 (i.e. 5*USD 4,000, from
January 2022 until 31 May 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
33. In continuation, the Chamber verified whether the player 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 Chamber 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.
34. Indeed, the player found new employment with Temperley (cf. point I 16 above), valid as from 2
February 2022 until 31 December 2022, for a monthly salary of ARS 90,000 (appro. USD 856 as of 2
February 2022). Thus, the Chamber estimated that from February 2022 until May 2022, the player
would have earned USD 3,424 (i.e. 856*4). Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of USD 3,424.
35. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the
Regulations, the overall compensation may never exceed the rest value of the prematurely
terminated contract.
36. Consequently, on account of all the above-mentioned considerations and the specificities of the case
at hand, the Chamber decided that the club must pay the amount of 16,576 to the player (i.e. USD
20,000 minus USD 3,424), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
37. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award the player interest on said compensation at the rate of 5%
p.a. as of the date of the claim until the date of effective payment.
38. Furthermore, the Chamber also noted that the player also requested a difference in price for his air
ticket to Argentina, as well as the price of a round ticket Bahrain-Argentina for his wife.
39. In relation to the round ticket for his wife, the Chamber observed that this was contractually
provided (cf. art. 4 par 3) of the Contract).
40. As to the ticket for the player, the Chamber noted that the player acknowledged the receipt of USD
650, but requested a price difference of USD 857. On the basis of the evidence, the Chamber decided
to grant said amount.
41. As to the ticket for his wife, the Chamber, in accordance with its jurisprudence, calculated its costs
on the basis of the information provided by FIFA Travel, according to which the journey ManamaBuenos Aires would cost USD 1,835.
REF FPSD-6128
42. Accordingly, the Chamber decided to award said amount of USD 1,835 for the return journey to
Argentina.
43. In sum, and as to the relevant air tickets, in accordance with the principle of pacta sunt servanda, the
Chamber decided to award the final outstanding amount of USD 2,692.
d. Costs
44. The Chamber 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 Chamber decided that no procedural costs were to be imposed on the parties.
45. Furthermore, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and
decided that no procedural compensation shall be awarded in these proceedings.
46. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-6128
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Leonardo Francisco Incorvaia, is partially accepted.
2.
The Respondent, East Riffa Sports Club, has to pay to the Claimant, the following amounts:
- USD 2,692 as outstanding remuneration (air tickets reimbursement)
- USD 16,576 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 23 May 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 art.
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
REF FPSD-6128
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777