Labour Disputes
Texto da decisão
REF FPSD-3734
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Matheus
Leiria dos Santos
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stefano Sartori (Italy), member
CLAIMANT:
Futboll Klub Kukesi SH.A, Albania
RESPONDENT:
Matheus Leiria dos Santos, Brazil
Represented by Breno Costa Ramos Tannuri
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REF FPSD-3734
I.
Facts of the case
1.
On 18 September 2020, the Albanian club, Futboll Klub Kukesi SH.A (hereinafter: the
Claimant or club), and the Brazilian player, Matheus Leiria dos Santos (hereinafter: the
Respondent) signed an employment contract valid as from the date of signature until 17
September 2022.
2.
According to the employment contract, the Claimant undertook to pay the Respondent a
monthly salary of Albanian Lek (ALL) 30,000 (approx. EUR 245).
3.
On 19 March 2021, the parties concluded a settlement agreement, which inter alia reads as
follows:
“The player asked the club to leave Albania immediately, because his mother has been
diagnosed with cancer. The player asked the club to lend the amount of 20,000 Euros,
in order to use it for the case of his mother’s health. The club paid the player 20,000
Euros in cash on 19.03.2021.”
“If the player cannot return to Albania, because he has to take care of his mother in
Brazil and the player decides to become active in Brazilian Football Clubs near the place
where his mother lives, Kukesi Club declares that will not ask for this value anymore
and the player is free to play in Brazil”.
If the player does not return to Kukesi club and is activated with any other foreign Club
(except those Brazilian clubs), the Player is free to play with new club but must pay the
debt to Kukesi in the amount of 20,000 Euros, in the bank account with the following
details, within 30 days from the date of his activation with the respective club and for
every day of delay the player declares that he will pay, a penalty of 0,5%”.
4.
Art. 2 of the settlement agreement reads as follows: “For any dispute the parties will try to
resolve amicably otherwise competent for their resolution will be FIFA DRC and CAS”.
5.
According to information contained in the Transfer Matching System (TMS), on 21 June 2021,
the Respondent concluded an employment contract with the Japanese club, Kataller Toyama.
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II. Proceedings before FIFA
6.
On 21 September 2021, 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
7.
Claimant lodged a claim against the Respondent in front of FIFA and requested payment of
the following monies:
EUR 20,000 in accordance with the settlement agreement;
EUR 6,000 as “penalty fee” in accordance with the settlement agreement.
8.
In its claim, the Claimant held that after it found out that the player signed an employment
contract with a club in Japan, it put him in default as the payment had fallen due. According
to the Claimant, the payment remained outstanding.
9.
In this framework, the Claimant held that the wording of the settlement is clear and that the
player has to reimburse the amount in case he would sign a contract outside of Brazil, which
materialized.
10. Furthermore, the Claimant maintained that the penalty clause has to be applied and that
since the player signed the contract on 21 June 2021, a penalty of EUR 6,000 is due (100 EUR
x 60 days of delay). Such penalty corresponds to 30% of the debt.
b. Position of the Respondent
11. In its reply, the Respondent held that the claim was not admissible, and alternatively rejected
it.
12. The Respondent disputes the competence of the FIFA DRC, since the settlement agreement
established a loan payment, which is not related to the employment contract. According to
the Respondent, the dispute is not employment related, but rather “strictly
financial/commercial”.
13. As to the substance, the Respondent acknowledged having signed the settlement agreement,
but held that the amount of EUR 20,000 was never paid to him.
14. In this regard, the Respondent held that the burden of proof lies with the Claimant in order
to establish that the cash payment was remitted and it pointed out that no receipt was
submitted.
15. The Respondent also maintained that the amount of EUR 20,000 was high in comparison to
his monthly salary of approx. EUR 247.
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16. Moreover, the Respondent held that the penalty was excessive and disproportionate and shall
be reduced to 5% if applied at all.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 21 September 2021 and submitted for
decision on 16 February 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 members of the Chamber 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 (August 2021 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Albanian club and a Brazilian player.
19. However, the Chamber noted that the Respondent disputed the competence of the FIFA DRC
as the matter allegedly was not employment related.
20. In this regard, the DRC held that the parties undisputedly entered into an employment
contract and later into a settlement agreement, which established the curcumstances of the
termination of the contract and the payment of EUR 20,000 from the club to the player.
21. On account of the above, the Chamber is of the opinion that the main framework of the
dispute is employment related as the settlement agreement established the conditions to
terminate the employment relationship as well as a payment that would have to be
reimbursed under certain circumstances.
22. Therefore, the DRC concluded that it is competent to decide the matter in question.
23. 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 (August 2021 edition), and
considering that the present claim was lodged on 21 September 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
24. 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. Merits of the dispute
25. 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
above-mentioned 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
26. 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 the consequences of the settlement
agreement.
27. In this context, the Chamber acknowledged that it its task was to analyse the settlement
agreement and to decide if the Claimant was entitled to the claimed amount.
28. On account of the above, the DRC started to analzye the content of the settlement agreement
and concluded that such settlement agreement established a payment of EUR 20,000 to the
player that had to be reimbursed in case the player would play outside of Brazil again.
Furthermore, the Chamber held that the background of such agreement was that the player
wished to terminate the contract and return to his family in Brazil.
29. In this regard, the Chamber stated that the decisive clause is clear and it remained undisputed
that the player signed a contract outside of Brazil again.
30. The DRC further pointed out that the argument that the player did not receive the payment
of EUR 20,000 has to be rejected since he signed the agreement and therefore acknowledged
it therewith.
31. On account of the above, the arguments of the Respondent have to be rejected and the DRC
decided to award the club the amount of EUR 20,000 as reimbursement based on the
settlement agreement.
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32. Subsequently, the DRC focussed its attention on the penalty clause contained in the
settlement agreement and pointed out that said clause appears to be a hidden interest clause
establishing an interest rate of 0,5% per day, which amounts to 178% per year. The Chamber
concluded that such interest clause was explicitly and contractually agreed upon between the
parties and is therefore not per se inapplicable.
33. Nevertheless, in line with the jurisprudence of the Football Tribunal, as well as CAS
jurisprudence and in accordance with Swiss Law, the DRC had no other option but to
conclude that a yearly interest of 178% was disproportionate, and decided to reduce it to a
rate of 18% p.a.
ii. Consequences
34. Consequently, the DRC decided that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent is liable to pay to the Claimant the amount of EUR 20,000
plus 18% interest p.a. as of 30 August 2021, i.e. 30 days after his registration with the
Japanese club.
iii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
36. 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
37. Therefore, bearing in mind the above, the DRC 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.
38. 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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39. The DRC 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
40. 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.
41. Likewise and for the sake of completeness, 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.
42. Lastly, the DRC 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, Futboll Klub Kukesi SH.A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Matheus Leiria dos Santos, has to pay to the Claimant, the following
amount(s):
- EUR 20,000 plus 18% interest p.a. as from 30 August 2021 until the date of effective
payment
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.7. The Respondent shall be a restricted on playing in official matches up until the due
8. amounts are paid. The overall maximum duration of the restriction shall be of
up to six months on playing in official matches.
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 six months restriction.
7.
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.
8.
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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