Dispute Resolution Chamber
Texto da decisão
REF 20-01506
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Tiago Lima Leal
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Tiago Lima Leal, Brazil
Represented by Mr André Carvalho Sica & Mr Alexandre Miranda, CSMV
Advogados
RESPONDENT:
Olympiakos Nicosia, Cyprus
Represented by Ms Elena Koushos
Page 2 of 12
REF 20-01506
I.
FACTS OF THE CASE
1.
According to the Brazilian player Tiago Lima Leal (hereinafter: player or Claimant), on 11
July 2019 and on 12 July 2019, respectively, he concluded an Employment Agreement and
an Image Rights Contract with Cypriot club, Olympiakos Nicosia (hereinafter: club or
Respondent), both valid as from 1 August 2019 until 31 May 2020.
2.
The player produced copies of both the employment agreement and the image rights
contract, however these were not signed by the parties.
3.
The club confirmed having concluded these agreements with the player, but indicated that
the version of the image rights contract which the player provided was not the image rights
contract, which the parties had signed. The club produced another image rights contract,
which is signed by both parties.
4.
Pursuant to art. 1.3 of the employment agreement, the player was entitled to a monthly
salary of EUR 1,667 gross (EUR 1,500 net).
5.
According to the image rights contract, which is signed by both parties, the player was
entitled to EUR 30,000 due upon signing the agreement as well as a monthly salary of EUR
6,000 net and a bonus of EUR 250 net for every goal scored, a car, and accommodation
for up to EUR 400 per month.
6.
The player, however, produced an unsigned copy of an image rights contract, according to
which, on top of the aforementioned remuneration, he was also entitled to EUR 30,000
due on 15 September 2019.
7.
On 20 July 2020, the player put the club in default of payment of EUR 61,665.41
corresponding to four monthly salaries under the employment contract for February, March,
April and May 2020, four monthly instalments under the image rights contract for February,
March, April and May 2020 as well as the second instalment of EUR 30,000 due on 15
September 2019 (according to the unsigned version of the image rights contract), plus
interest.
8.
On 24 July 2020, the club replied to the player invoking the situation of force majeure in
relation to the Covid-19 pandemic, which had forced the club to register the player for the
Government’s Special Programme for subsidies in order to cover the player’s salaries for
March, April and May 2020. In this regard, the club highlighted that the player had received
an amount of EUR 1,293.50 from the government. Furthermore, the club alleged that it
had fulfilled its financial obligations with respect to the signing on fee. Finally, the club
underlined that the player did not offer his services to the club since 12 March 2020 and
concludes, “both parties are in breach of their respective contractual obligations due to the
pandemic”.
Page 3 of 12
REF 20-01506
9.
On 13 August 2020, the player sent a second notification to the club, requesting the
payment of EUR 61,862.67 and giving another 10 (ten) days to the club to comply with its
obligations.
10.
On 27 August 2020, the player the club a final reminder reiterating the contents of his
second notification.
II.
PROCEEDINGS BEFORE FIFA
11.
On 14 October 2020, the Claimant filed a claim for outstanding remuneration against the
Respondent before FIFA. A summary of the parties’ respective positions is detailed below.
a.
The claim of the Claimant
12.
As a preliminary remark, the Claimant emphasised that he did not have access to the signed
copies of the employment contract nor of the image rights contract.
13.
Furthermore, the player referred to his default notices and stated that it is undeniable that
the club had not complied with its financial obligations towards him.
14.
The player also explained that he will have to pay taxes in Brazil, hence he shall receive the
net amounts under the respective contracts.
15.
The requests for relief of the Claimant were the following:
b.
16.
EUR 6,000 in salaries for February, March, April and May 2020, plus 5% interest
p.a. as of the respective due dates,
EUR 24,000 in image rights payments for February, March, April and May 2020,
plus 5% interest p.a. as of the respective due dates,
EUR 30,000 as second instalment of the signing on fee due on 15 September
2020, plus 5% interest p.a., as from 15 September 2020,
Sanctions in accordance with art. 12bis of the Regulations on the Status and
Transfer of Players,
For the Respondent to cover all procedural costs and legal fees.
Position of the Respondent
In its reply to the claim, the club first emphasised that the image rights contract which the
player provided was not the one which the parties had signed.
Page 4 of 12
REF 20-01506
17.
In this regard, according to the image rights contract signed by both parties, the player was
entitled to a total amount of EUR 90,000, i.e. EUR 30,000 to be paid in advance and EUR
60,000 payable in ten equal instalments of EUR 6,000. Therefore, the club rejected the
player’s allegations with respect to a signing bonus.
18.
In continuation, the club underlined that the season was suspended in March 2020 and
permanently terminated on 15 May 2020. In this regard, the club referred to various
measures of the Cypriot government and the negotiations between football stakeholders
of Cypriot football and concludes that, given the situation, the club cannot be held liable
for the non-performance of its contractual obligations as from 13 March 2020, date of the
suspension of the season, until the expiry of the contract on 31 May 2020. The club held
that, should the DRC not agree with this conclusion, due to the various decrees issued by
the Cypriot government, it could not perform its obligations under the contract between
13 March 2020 and 17 May 2020, date on which trainings could resume.
19.
The club further stressed that it lost a significant income and sponsorships were not
honoured following the suspension and subsequent termination of the season.
20.
In addition, the club referred to the Covid-19 guidelines and held that for the period as
from 16 March 2020 onwards, the Cyprus Government assisted all football clubs in allowing
them to participate in the Full Suspension of Activities Scheme, according to which, as from
16 March 2020, clubs were not obliged to pay salaries to its players. According to such
scheme, employees would receive 60% of the value of their salary of January 2020. As
evidence of its allegations, the club provided a document entitled “Support measures for
the confrontation of the effects of coronavirus” issued by the Ministry of Labour, Welfare
and Social Insurance, which mentions, inter alia, as follows: “Valid from 15/04/2020 until
12/05/2020 (depending on the date on which they have been forced in a compulsorily
suspension by a Government decision) (…) For the period for which the Special
Unemployment Benefit will be paid, the employer is relieved of his obligation to pay the
salary to his employees who received the said benefit (…).”
21.
22.
Furthermore, the club provided a certificate issued by the same Ministry and dated 4
December 2020, which states as follows: “With the present we confirmed that football Club
Olympiakos Nicosia, participated to the Special Scheme for Complete Suspension of
Business of the Ministry of Labour, Welfare and Social Insurance during the period 16/3/20
until 12/6/2020”.
23.
The club additionally provided a statement from the Union of Pancypriot Players confirming
that clubs were entitled to suspend their financial obligations in light of the government
schemes implemented.
24.
Finally, the club referred to a survey published by Prof. Michele Colucci, which describes the
governmental schemes to assist football clubs in Cyprus and states, inter alia, as follows:
“Most of the CFA clubs applied and were accepted to participate in the Full Suspension of
Activities Scheme, according to which they are not obliged to pay any salaries to their
Page 5 of 12
REF 20-01506
footballers for as long as they participate in the scheme. Their footballers’ employment is
considered to have been temporarily suspended and the footballers are only entitled to the
so-called “Special Unemployment Benefit” payable by the Cypriot Social Insurance Services.
This benefit is an amount equal to the 60% of the gross salary of players in January 2020
but cannot exceed €1,214 per month”.
25.
In continuation, the club underlined that the player participated in the Full Suspension of
Activities Scheme and received the so-called Special Unemployment Benefit for the period
between 15 March 2020 and 31 May 2020. In this regard, the club provided a statement
from the Ministry of Labour, Welfare and Social Insurance dated 13 January 2021. The club
stated that the player had received two cheques from the Government in the amount of
EUR 923.28 and 1,022.22 respectively. Regarding the third payment the player should have
received, the club was not able to provide a copy of the respective cheque.
26.
As a final remark, the club alleged that, from August 2019 until 15 May 2020, the player
was paid EUR 8,250 in excess.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
27.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) 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 15 October 2020 and submitted
for decision on 3 June 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
28.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute
Resolution Chamber 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 Cypriot club.
29.
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 Player (edition February 2021), and
considering that the present claim was lodged on 15 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
Page 6 of 12
REF 20-01506
b.
Burden of proof
30.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
31.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
32.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
33.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the Claimant was
entitled to receive any additional remuneration from the Respondent. In addition, the
parties do not agree on which version of the image rights agreement was valid.
34.
Starting its analysis with the issue as to which image rights agreement was to be considered
as binding on the parties, the Chamber noted that the parties had produced two different
versions: one (the player’s version), which was not signed by the parties and the other (the
club’s version), which was signed by both parties. While the Chamber could not work out
the specifics as to why two versions of this agreement existed, it decided that it must rely
on the most compelling evidence on file and, consequently, on the signed version. Indeed,
only the latter version of the image rights agreement can be viewed as binding on the
parties.
35.
With the aforementioned in mind, the Chamber noted that the version of the image rights
agreement which is signed by both parties does not provide for a second instalment of a
sign-on fee in the amount of EUR 30,000, as claimed by the Claimant. As a result, the
Chamber is not in a position to establish that such amount was due to the Claimant and it
must reject this part of the Claimant’s claim.
Page 7 of 12
REF 20-01506
36.
In continuation and as to the other claims of the player with respect to outstanding
remuneration, the Chamber recognised that, according to the Respondent, it was
discharged of its obligation to pay the Claimant’s salary as from 15 March 2020 until the
end of the contractual relationship on in accordance with national legislation due to the
Covid-19 pandemic.
37.
From the substantial evidence provided by the Respondent, the Chamber understood that,
from 16 March 2020 onwards, the Cyprus Government assisted all football clubs in allowing
them to participate in the Full Suspension of Activities Scheme, according to which, as from
16 March 2020, clubs were not obliged to pay salaries to its players. In particular, the
Chamber referred to a document entitled “Support measures for the confrontation of the
effects of coronavirus issued by the Cypriot Ministry of Labour, Welfare and Social
Insurance, which mentions, inter alia: “Valid from 15/04/2020 until 12/05/2020 (depending
on the date on which they have been forced in a compulsorily suspension by a Government
decision) (…) For the period for which the Special Unemployment Benefit will be paid, the
employer is relieved of his obligation to pay the salary to his employees who received the
benefit”.
38.
Furthermore, the club provided a certificate issued by the same Ministry and dated 4
December 2020, which states that the Respondent was part of the Special Scheme for
Complete Suspension of Business during the period from 16 March 2020 until 12 June
2020.
39.
In addition, the club provided a statement from the same Ministry dated 13 January 2021,
according to which the club had enrolled the player to take part in the Benefit for the period
between 15 March 2020 and 31 May 2020. In that regard, the club provided copies of two
cheques issued by the Cypriot Government to the player in the amount of EUR 928.23 and
EUR 1,022.22 respectively. According to the club, the player was given another cheque,
however the club was not able to produce a copy of it.
40.
In light of the above, the Chamber the Chamber first recalled that, in light of the worldwide
Covid-19 outbreak, FIFA had issued a set of guidelines, the Covid-19 Football Regulatory
Issues, which aimed at providing appropriate guidance and recommendations to member
associations and their stakeholders, to both mitigate the consequences of disruptions
caused by COVID-19 and ensure that any response is harmonised in the common interest.
Moreover, on 11 June 2020, FIFA issued an additional document, the FIFA Covid-19 FAQ,
which provides clarification about the most relevant questions in connection with the
regulatory consequences of the COVID-19 outbreak and identifies solutions for new
regulatory matters. Those two documents will hereinafter be referred to as “the FIFA Covid19 guidelines”.
41.
In continuation, the Chamber emphasised that the FIFA Covid-19 guidelines said guidelines
aim, in particular, at tackling the situation regarding agreements, which cannot be
performed as the parties originally anticipated. In this regard, the guidelines identify
Page 8 of 12
REF 20-01506
circumstances under which a unilateral variation of the agreement may be justified.
Precisely, the guidelines mention the following:
“Unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within CBA structures or another collective
agreement mechanism.
Where:
a. clubs and employees cannot reach an agreement, and
b. national law does not address the situation or collective agreements with a players’ union
are not an option or not applicable,
Unilateral decisions to vary terms and conditions of contracts will only be recognised by
FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they
were made in good faith, are reasonable and proportionate (…)”.
42.
Having recalled the contents of the FIFA Covid-19 guidelines, the Chamber determined that
these guidelines are applicable to the present matter, as there is sufficient evidence that, in
accordance with Cypriot law, unilateral variations were indeed permissible. Equally, the club
provided evidence that it had participated in the so-called Full Suspension of Activities
Scheme and that it had enrolled the player, as one of his employees, to receive the Special
Unemployment Benefit.
43.
In view of the above, the Chamber came to the unanimous conclusion that, in accordance
with national law, and given the extensive evidence on file, the club had discharged its
burden to prove that it was dispensed from paying the player’s remuneration under the
employment contract during the period from 16 March 2020 until 31 May 2020, when the
contract expired.
44.
This being said, the Chamber took into account that the club had not provided evidence of
a third cheque having been issued in favour of the player. In this regard, the Chamber could
only conclude without a doubt that the player had received only two payments from the
government, this is, payment for March and for April 2020. As a result, the Chamber
decided to award the player the full amount of the salary for May 2020, i.e. EUR 1,500 net.
45.
In continuation, the Chamber also considered that any outstanding amounts under the
employment contract prior to mid March 2020 would have to be performed by the
Respondent. In this regard, the Chamber found that the Respondent could not justify the
non-payment of these amounts and they shall therefore be paid to the Claimant.
46.
As a consequence, the Respondent shall pay outstanding remuneration under the
employment contract to the Claimant in the amount of EUR 2,250 net, i.e. the salary of
February 2020 and of half of the salary of March 2020.
Page 9 of 12
REF 20-01506
47.
With this established, the Chamber moved on to the claimed outstanding remuneration
under the image rights agreement. In this regard, the Chamber was not convinced or could
not find sufficient evidence that the Cypriot governmental scheme extended to private
agreements such as the image rights agreement. As a consequence, the Chamber found it
fair and equitable to also grant the player outstanding remuneration under the image rights
agreement.
48.
In this regard, the Chamber also noted that the Respondent could not justify the nonpayment of the Claimant’s remuneration under the image rights agreement and that any
outstanding amounts under that agreement are also due to the latter, in accordance with
the legal principle of pacta sunt servanda.
49.
In conclusion, the Chamber decided that the Respondent shall pay the Claimant the amount
of EUR 24,000 as outstanding remuneration under the image rights contract.
50.
To summarise, the Respondent shall pay the Claimant outstanding remuneration in the total
net amount of EUR 27,750, plus interest, as follows:
EUR 1,500 (under the employment contract) and EUR 6,000 (under the image rights
agreement) for February 2020, plus 5% interest p.a. as of 1 March 2020 until the
date of effective payment,
EUR 750 (under the employment contract) and EUR 6,000 (under the image rights
agreement) for March 2020, plus 5% interest p.a. as of 1 April 2020 until the date
of effective payment,
EUR 6,000 (under the image rights contract) for April 2020, plus 5% interest p.a. as
of 1 May 2020 until the date of effective payment,
EUR 1,500 (under the employment contract) and EUR 6,000 (under the image rights
agreement) for May 2020, plus 5% interest p.a. as of 1 June 2020 until the date of
effective payment.
ii. Compliance with monetary decisions
51.
Finally, 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 and/or compensation in due time.
52.
In this regard, the DRC 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 and for the maximum
duration of three entire and consecutive registration periods.
53.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
Page 10 of 12
REF 20-01506
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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 in accordance
with art. 24bis par. 2 and 4 of the Regulations.
54.
The DRC recalled that the above-mentioned bans 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.
55.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
56.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
57.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Tiago Lima Leal, is partially accepted.
2.
The Respondent, Olympiakos Nicosia, has to pay to the Claimant, the following amount:
- EUR 27,750 net plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of EUR 7,500 as from 1 March 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of EUR 6,750 as from 1 April 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of EUR 6,000 as from 1 May 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of EUR 7,500 as from 1 June 2020 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
Page 11 of 12
REF 20-01506
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 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
Page 12 of 12