Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Daan de Jong (The Netherlands ), member
on the claim presented by the player,
Paulo Leom ar, Brazil
represented by Mr Imran Y Adam
as Claimant
and the club,
Lus aka Dy nam os FC, Zambia
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 15 March 2017, the Brazilian player Paulo Leomar (hereinafter: the Claimant or
the player) and the Zambian club Lusaka Dynamos FC (hereinafter: the Respondent
or the club) signed an employment contract valid as from 14 March 2017 until 31
December 2019.
2.
As the per the contract, the player was inter alia entitled to:
a) a signing on fee of USD 25,000, payable in 3 instalments, namely USD 5,000 on 31
March 2017, USD 10,000 on 15 May 2017 and USD 10,000 on 15 June 2017;
b) a monthly salary of USD 2,500;
c) Zambian Kwacha (ZMW) 4,000 as bonus “per league or cup game won for which
the player is named in the final team”;
d) ZMW 200 as bonus “per goal scored by a playing member in favour of the Club for
which the player is named in the final team”;
e) a furnished house;
f) two return tickets for the Claimant and his family once a year to Brazil;
g) (cf. contract below, note: Claimant does not provide the employment agreement
as it “has not yet been released to the player”, but the contract is to be found in
TMS; he also claims that the agreement was valid until 15 March 2019).
3.
On 27 May 2019, the Claimant lodged a claim requesting the payment of USD 78,800,
broken down as follows:
a) Salaries due:
i) April: USD 2,500
ii) May: USD 2,500
iii) August: USD 2,500
iv) October: USD 2,500
v) January 2018 to March 2019 (14 months x USD 35,000)
b) a signing on fee of USD 25,000;
c) Air tickets for a round trip in the amount of USD 4,000;
d) Wining bonuses of USD 4,800 for 12 wins;
e) “Moral damages based on the fact that when the player got injured, the club did
not provide for a physiotherapist when he had fractured his foot”.
4.
The Claimant maintained that the Respondent did not fulfil his financial obligations
towards him. Since the player claims that the contract was only valid until 15 March
2019, he only claims outstanding remuneration and makes no reference to any
premature termination from either party.
Player Paulo Leomar, Brazil / Club Lusaka Dynamos FC, Zambia
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5.
In spite of having been invited to do so, the Respondent did not reply to the player’s
claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the DRC analysed whether it was competent to deal with the matter at
stake. In this respect, the DRC took note that the present matter was submitted to
FIFA on 27 May 2019 and decided on 9 April 2020. Taking into account the wording
of art. 21 of the 2019 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.
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, the DRC 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 Zambian club.
3.
Furthermore, the DRC analysed which edition of the Regulations on the Status and
Transfer of Players should be applicable as to the substance of the matter. In this
respect, the DRC confirmed that, in accordance with art. 26 par. 1 and par. 2 of the
said Regulations and considering that the present claim was lodged in front of FIFA
on 27 May 2019, the June 2018 edition of the Regulations on the Status and Transfer
of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC and the applicable regulations having been established,
the DRC entered into the substance of the matter. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. 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.
6.
In this respect, the DRC acknowledged that, on 15 March 2017, the Claimant and the
Respondent signed an employment contract valid as from 14 March 2017 until 31
December 2019, for the remuneration detailed in point I.2 above.
5.
Moreover, the DRC noted that the player does not appear to have a copy of the
employment contract – which is however to be found in TMS –and acknowledged
that he deems that the contract naturally expired on 15 March 2019, providing no
Player Paulo Leomar, Brazil / Club Lusaka Dynamos FC, Zambia
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information or documentation related to a premature termination by any of the
parties.
7.
Furthermore, the DRC took note that the club did not reply to the player’s claim and
therefore tacitly accepted the player’s arguments. As per art. 9 par. 3 of the
Procedural Rules, a decision shall be taken based on the argumentation and
documentation provided by the player only.
8.
In this respect, the Chamber in its duty of verifying ex officio whether all formal prerequisites for the admissibility of the claim are indeed present, noted that the player’s
claim was lodged on 27 May 2019 and that he requests inter alia the payment of his
salary of April 2017 and of the first 2 instalments of the sign-on fee, of USD 5,000 due
on 31 March 2017 and USD 10,000 due on 15 May 2017.
9.
At this point, the Chamber deemed it appropriate to remind the parties of the
wording of art. 25 par. 5 of the Regulations, according to which “The Players’ Status
Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as
the case may be) shall not hear any case subject to these regulations if more than two
years have elapsed since the event giving rise to the dispute. Application of this time
limit shall be examined ex officio in each individual case”.
10.
Bearing in mind the foregoing, the Chamber concluded that the player’s requests for
his salary of April 2017 and of the first 2 instalments of the sign-on fee, due on 31
March 2017 and on 15 May 2017 are time-barred. Therefore, the Chamber established
that this part of the player’s claim is to be considered as inadmissible.
11.
Having established the foregoing, the DRC referred to art. 12 par. 3 of the Procedural
Rules, according to which: “Any party claiming a right on the basis of an alleged fact
shall carry the burden of proof”.
12.
In this respect, the Chamber noted that the player failed to provide any evidence of
his having incurred in any medical costs or of his entitlement to the bonuses
requested. Thus, these requests of the player cannot be upheld.
13.
As to the moral damages, no contractual basis or otherwise any evidence of such has
been provided. Thus, this request of the player must also be rejected.
14.
In continuation, the Chamber noted that the player requested the payment of USD
2,500 as salary for May 2017, USD 2,500 as salary for August 2017, USD 2,500 as salary
for October 2017, USD 35,000 as salaries for January 2018 to March 2019 (14 months
à USD 2,500) and of the third instalment of the sign-on fee (USD 10,000) and due on
15 June 2017, amounting in total to USD 52,500.
Player Paulo Leomar, Brazil / Club Lusaka Dynamos FC, Zambia
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15.
In continuation, the DRC took note that the Respondent, for its part, failed to present
its response to the claim of the Claimant, despite having been invited to do so.
16.
In light of the above, the DRC highlighted that the Respondent must fulfill its
obligations as per the termination agreement in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the DRC decided that the
Respondent is liable to pay to the Claimant the aforementioned remuneration that
was outstanding at the time of the claim was lodged, i.e. the amount of USD 52,500.
17.
Furthermore, considering the player’s request and its longstanding jurisprudence, the
Chamber also decided to award the player the amount of USD 1,565 as a flight ticket,
as informed by FIFA Travel.
18.
Furthermore, taking into account the consideration under number II./3. above, the
DRC 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.
19.
In this regard, the DRC pointed out 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.
20.
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 moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, 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.
21.
Finally, 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. 24bis par. 3 of the Regulations.
22.
The DRC concluded its deliberations in the present matter by establishing that the
claim lodged by the Claimant is partially accepted insofar as it is admissible.
Player Paulo Leomar, Brazil / Club Lusaka Dynamos FC, Zambia
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Paulo Leomar, is partially accepted insofar as it is
admissible.
2.
The Respondent, Lusaka Dynamos FC, has to pay to the Claimant the amount of USD
52,500 as outstanding remuneration.
3.
The Respondent has to pay to the Claimant the amount of USD 1,565 as a flight ticket.
4.
Any further claim of the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the amount
mentioned under points 2. and 3. above.
6.
The Respondent shall provide evidence of payment of the due amount in accordance
with points 2. and 3. above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
7.
In the event that the amount due in accordance with points 2. and 3. 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 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 (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
9.
In the event that the aforementioned sum 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 FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note related to the publication:
Player Paulo Leomar, Brazil / Club Lusaka Dynamos FC, Zambia
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The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Paulo Leomar, Brazil / Club Lusaka Dynamos FC, Zambia
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