Labour Disputes
Texto da decisão
REF FPSD-1989
Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player Edson
Marques Levinski
BY:
Mario Flores Chemor (Mexico), Single Judge of the DRC
CLAIMANT / COUNTER-RESPONDENT:
Edson Marques Levisnki, Brazil
Represented by Mr Roberto Pugliese Jr.
RESPONDENT / COUNTER-CLAIMANT:
FC Kingersheim, France
Represented by SELARL PHILIPPOT AVOCAT
INTERVENING PARTY:
Associação Desportiva Jaragua, Brazil
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REF FPSD-1989
I.
Facts of the case
1.
At the beginning of the year 2020, the Brazilian futsal player, Edson Marques Levinski
(hereinafter: the player or the Claimant) and the French club, FC Kingersheim (hereinafter:
the club or the Respondent) entered into negotiations regarding his potential transfer to the
club.
2.
On 4 May 2020, the club sent an offer (hereinafter: the offer) to the player (note: document
on file, offer unsigned), in accordance with which the club would have undertaken to pay to
the player the following amounts and benefits:
For the season 2020/2021:
− A salary of EUR 25,000
For the season 2021/2022:
− A salary of EUR 30,000
For the season 2022/2023:
− A salary of EUR 30,000
Additional benefits:
− 6 return flight tickets;
− An apartment;
− Weekly French class with a teacher;
− EUR 2,000, should the team end up within the top 4 positions of the competition;
− EUR 50 bonus for each match won.
3.
In this context, the Claimant argued that, on 7 June 2020, he sent a counter-offer
(hereinafter: the financial proposal) regarding his financial entitlements to Mr Giomar Murias
Fernández, a Futsal player within the team of the Respondent, with whom the player seemed
to be negotiating the conditions of the contract, financial proposal that was accepted by the
said individual via Whatsapp on the same date. In accordance with the financial proposal, the
said person, on behalf of the club, would have undertaken to pay to the player the following
amounts and to provide the following benefits:
For the season 2020/2021:
− EUR 5,000 as sign-on fee;
− EUR 25,000 divided into 10 instalments of EUR 2,500 each;
− EUR 3,000 on 1 September 2020
For the season 2021/2022:
− EUR 8,000 at the beginning of the season;
− EUR 32,000 divided into 10 instalments of EUR 3,200 each
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For the season 2022/2023:
− EUR 8,000 at the beginning of the season;
− EUR 32,000 divided into 10 instalments of EUR 3,200 each;
Additional benefits:
− 6 return flight tickets Florianópolis (Brazil) – Kingersheim (France);
− Luxury apartment or houses furnished with all expenses paid;
− Weekly French class with a teacher;
− EUR 2,000, should the team end up within the top 4 positions of the competition;
− EUR 50 bonus for each match won
4.
On 8 June 2020, the parties concluded an employment contract (hereinafter: the contract),
valid as from 1 September 2020 until 31 May 2023, i.e. for the seasons 2020/2021,
2021/2022 and 2022/2021 (3 sporting seasons).
5.
Clause 5 of the contract provides that the player is entitled to a monthly remuneration of EUR
1,539 gross.
6.
Clause 6 of the contract states that the transport fees in which the player effectively incurred
would be reimbursed by the Respondent if the Claimant provides the relevant payment
evidence.
7.
On 6 August 2020, a real estate company called “Citya Etige Logement” seems to have sent
a rental contract to the player, for the lease of an apartment, which would be valid as from
24 August 2020 for a duration of one year, against payment of a monthly rent of EUR 485.
8.
First of all, and for the clarification purposes, it remained uncontested that the following
individuals held the following positions within the club:
− Mr Roméo DI GUISTO: President of the club;
− Mr Sebti BOUADJADJA: President of the Futsal Section;
− Mr Salim: one of the managers of the club;
− Giomar Murias Fernández, alias “Gio”: futsal player within the club
9.
As per the financial documentation provided by the player, the gross monthly salary to which
he was officially entitled amounted to EUR 1,539 gross.
10. On 1 October 2020, all sports-related activities in France were suspended until 1 December
2020 due to the Covid-19 pandemic.
11. In this context, due to the fact that the Club's sporting activities remained suspended, on an
unspecified date, the player informed the club, via Mr Bouadjadja, that he would go to Brazil
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to visit his family, that he would remain available to call for training and games and that he
would return to France as soon as it was so required.
12. Thereafter, the player left France on 8 November 2020, the club being aware and agreeing
to the said situation and returned on 5 January 2021.
13. At least between 17 December 2020 and 6 January 2021, the player and Mr Salim (manager
of the club) exchanged messages, where the parties amicably spoke about a match played by
the team and an incident that occurred at the house that the player had rented in France
(apparently the player was robbed in his house in France while being abroad in Brazil), the
parties not putting in question the continuation of the player in the club.
14. On 6 or 7 January 2021, the player communicated to Mr Sebti BOUADJADJA and Mr Salim
his intention to leave the club.
15. In a Whatsapp conversation maintained between the player and Mr Salim on 7 January 2021,
the latter informed the player that the club had made a huge investment in him and that it is
not reasonable that the player now seeks the termination of the contract, also considering
that he had signed a contract for a duration of 3 sporting seasons and that, hence, he must
respect his contractual obligations towards the club.
16. In a Whatsapp message exchanged between the player and Mr Salim on 9 January 2021, the
player explains that it has been difficult to take the decision to leave the club, but he hopes
that the parties can reach an amicable settlement to the situation and that the reason why
he wishes to leave the club is related to the health of his family.
17. By means of its letter dated 15 January 2021, the club sent a notice to the player, informing
him that he had breached the contract and stating, with –inter alia– the following: “I would
like to inform you that I have already been mandated by the Association to take the matter
to the Conseil des Prud'hommes without delay in order to seek compensation for the damage
that your refusal will cause the Association. According to our calculations, this damage will
amount to more than EUR 30,000. Indeed, the club has had to spend a lot of money in the
context of your arrival, particularly on advertising, communication, travel, accommodation,
administrative formalities, etc. Moreover, due to the health crisis, all the markets are closed
and the recruitment of your replacement will and the club will have to bear the absence of a
player in an important position for a long time. The Association is also considering taking
legal action against you in the criminal courts for using the club to obtain your permission to
stay in France” (free translation from the original text In French).
18. Thereto, the player replied –on an unspecified date– stating, inter alia, that “The player rejects
the accusation of having resolved the contract and cause any damage to the club. He cannot
admit to be used for an illicit economic gain: if the club does not want to respect the contract,
this should be communicated to the player in order to reach an agreement, but not threaten
him in order to save money. In this regard, the only unfulfillment has been carried out by the
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REF FPSD-1989
club, by not paying him the agreed salary. To date, the club still owes him the payrolls for
November and December 2020 and flight tickets”. In this context, the player thereby further
requested the club to pay him “the overdue payables” immediately.
19. The club replied thereto by means of its correspondence of 18 January 2021, whereby the
club explained that the player orally requested the termination of the contract, being Mr
Fabiean Sangines, the club´s goalkpeer, who was, apparently, a witness thereof. In this
respect, the club stressed that it opposes to the termination requested by the club and urged
the player to resume his contractual obligations. In the said notice, the club stated, inter alia,
the following: “During the months of November and December 2020, training was allowed.
The French authorities gave access to the sports facilities for professional players, particularly
to Dione Alex VERONEZE, Baptiste JAEGER and Edson MARQUES LEVINSKI. Edson MARQUES
LEVINSKI preferred to go on holidays to Brazil. The club had informed him that he would not
be paid during this period as he was not available to train in November and December. The
club is nevertheless prepared to take administrative steps to see if your client can obtain partial
activity allowance for this period. To do this, please send us a copy of your client's stamped
passport to find out the exact dates of his departure from national territory. Concerning the
plane tickets, it is not foreseen that they will be paid for by the club. Finally, could you please
confirm your client's intention to resume training in earnest and to continue his training and
to continue his contract?”.
20. On 26 January 2021, the player put the club in default of payment in the amount of EUR
8,544.58, corresponding to the salaries of November 2020, December 2020 and January
2021 in the amount of EUR 2,500 each, plus the costs of the return flight tickets FranceBrazil-France in the amount of EUR 1,044.58; thereby granting the Respondent a 15 days´
deadline to remedy the default.
21. By means of its letter dated 5 February 2021, the club replied thereto, accepting to pay the
outstanding salaries of November 2020, December 2020 and January 2020, but not in the
amount requested by the player (EUR 2,500 each), but in the amount agreed in the contract,
i.e. EUR 1,539 gross each. In addition, the club rejected the request of the player to be
reimbursed the flight tickets´ expenses, since the said request has no contractual basis.
22. Thereto the player replied by means of his correspondence of 8 February 2021, whereby the
player stated that, for the period between 31 October 2020 and 22 January 2021, the club
“remained inactive” and that, in any case, he was always available to go back to France and
resume trainings, but the club “never called to train or play, as there were no sports
activities”. In addition, the player stressed that the fact that France underwent a lockdown
cannot be held against him. In this sense, the player argued that: “There is no agreement on
any obligation to the player to stay exclusively in France during the “lockdown” i[f] the club
do not offer sports training or games”. What is more, the player reiterated his previous
argumentation as to the amount that the club undertook to pay him as salary and held that
the club failed to pay the rent of the month of February and that the “real estate responsible
for his apartment” informed him that he will have to leave the property. Thereby, the player
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put the club in default of payment, granting the club a 15 days´ deadline to pay the
outstanding amount of EUR 8,544.58.
23. By means of its letter of 11 February 2021, the club informed the player that it had proceeded
with the payment of the salaries of November 2020, December 2020 and January 2021, in
the amounts indicated in the contract, from which the club deducted some amounts for the
following considerations: “the reimbursement of the rents advanced by the club for the
months of September 2020 to January 2021 inclusive”; i.e. the cub made a payment of EUR
564.78 in favour of the player.
24. On 5 March 2021, the player stressed that the amount of EUR 7,979.80 remains unpaid,
referred to the bad faith of the club, which –according to the player– “unreasonably failed to
pay the rent of the apartment provided for the housing of the player and his family as transfer
agreement. The [player] has been constantly charged by the property responsible for the
lease, in danger of imminent eviction”. In this context, the player unilaterally terminated the
contract in writing, alleging that the situation “became untenable” for him since the club “is
not fulfilling the established transfer agreement” insofar the club has been in default of 4
salaries, failed to reimburse the flight tickets´ expenses and the player is “still at risk of
eviction” and since the player has been “morally harassed to force the breach of contract”.
II. Proceedings before FIFA
25. On 10 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the Claimant / Counter-Respondent
26. On 10 March 2021, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration and compensation for breach of contract, plus 5%
interest p.a., in accordance with the following breakdown and explanation:
Outstanding remuneration:
− EUR 9,435.22 corresponding to the salaries as of November 2020, December 2020,
January 2021 and February 2021 (EUR 10,000 in total; cf. point 3 above) minus the amount
of EUR 564.78, which was paid by the club to the player on 12 February 2021;
− EUR 1,044.58 as reimbursement of flight tickets´ expenses.
Compensation for breach of contract:
− “[T]he indemnity equivalent to the residual value of the contract prematurely broken by
an act of the Club”
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27. In connection with the difference between the amounts of the financial proposal and the
contract, the player maintained that the club stressed that “only this amount [a monthly salary
of EUR 1,539 gross] would be officially registered, and the remaining amounts would be paid
“outside””.
28.
As proof of the club having accepted the financial proposal, the player argued that, for the
month of September 2020, the club paid him “[…] the wages due, part in checks from the
Club, part in bank transfers, and the leftover in cash, faithfully complying with the terms of
the contract, in the total amount of € 2500 (two thousand and five hundred euros) each
instalment”.
29.
The Claimant alleged that, since November 2020, he has received no remuneration
whatsoever but he has kept rendering his services for the club, resuming trainings on 22
January 2021 once he returned from Brazil.
30.
In this context, the Claimant explained that he has been experiencing “difficulties when
failing to receive the correct salary amounts, agreed ticket reimbursement and even having
their housing paid for by the Club. Especially since he has not participated in official games
since October, which directly damages his physical and technical form”.
31.
The player argued that he had no alternative but to terminate the contract “in view of the
Club's misconduct, the consolidated debt and the Player's need to survive, according to the
attached document”.
b. Reply and counter-claim of the Respondent / Counter-Claimant
32. On its part, the club replied to the claim and lodged a counter-claim against the player and
his new club, Associação Desportiva Jaragua, from Brazil.
33. The club firstly contested having concluded the offer and held that the only valid contract
entered into between the parties was the one concluded on 8 June 2020, i.e. the contract.
What is more, the club argued that the offer provided by the player does not hold the
signatures of the parties, is not an official document and cannot be considered a contract.
What is more, the club challenged the authenticity of the relevant documentation provided
by the player in this regard.
34. As to the Whatsapp messages provided by the Claimant as acceptance from the club of the
terms of the financial proposal, the club held that the said messages were exchanged with
Mr Giomar Murias Fernández, which is a player of the team and is not, in any case, a
representative of the club.
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35. Moreover, the club argued that, should the financial conditions contained in the said
messages have been accepted by the club, quad non, the referred financial conditions would
have been included in the contract, but those were not.
36.
In connection with the salaries due to the player, the club stressed that the net monthly
salary of the player amounts to EUR 1,112.84, from the gross amount of EUR 1,539.
37.
The above being explained, the club affirmed that it duly paid the salary of February 2021
to the player in the amount of EUR 1,112.84 via check.
38.
Concerning the player´s departure to Brazil in November 2020, the club acknowledged that
the player communicated his will to go to Brazil but the club never granted any
authorization to the player to leave the country and informed him that, if he did so, he
would not get any remuneration for the period he was absent. The club further argued that
the player, when leaving France to go to Brazil, breached the contract, insofar, during the
period he was not in France, he could not possibly render his services to the club.
39.
However, continued the club, it paid him the salaries of November, December (2020) and
January (2021), as “proof of good faith”.
40.
As to the argument of the player that he could reasonably leave France, insofar the
competition was suspended during the period he was abroad, the club held that the player
was very much aware of the fact that the club had been granted a permit for some of its
players to continue training, amongst which the player was considered.
41.
With regards to the housing rental contract, the club maintained that, upon his arrival in
France, the player did not have an operative bank account in France, reason why the club
accepted to make an advance payment for the payment of the deposit (EUR 485), the
agency fees (EUR 521.95) and for the payment of the first monthly allowances.
42.
The club further maintained that it advanced payments to the player as housing allowances,
payments that were never paid back by the player and that, therefore, it had no alternative
but to deduct the said moneys from the monthly salaries of the player, which –as per the
club– is permitted under French law.
43.
Moreover, the club held that the player left the apartment and, therefore, the amount paid
as deposit must have been reimbursed by him.
44.
As to the request of the Claimant to be awarded the relevant flight tickets´ expenses, the
club maintained the following: “There was no contractual obligation for the club to pay for
personal travel. Consequently, the [club] is not obliged to reimburse [the player] for the
Brazil - France plane tickets” (free translation from the original text in French).
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45.
In this context, the club finally held that it has been proved that the club was not obliged
to pay neither the salaries of the player as from November 2020 until January 2021, which
it nevertheless did in good faith; nor any flight tickets´ expenses, reason why –continued
the club– it was the player who terminated the contract without just cause.
46.
Regarding the argumentation of the player as to the termination of the contract, the club
rejected the facts and arguments brought forward by the latter and alleged that the player
wished to leave the club in order to sign a new contract in Brazil, where he wanted to return
since the beginning, since he was allegedly going through a complicated personal moment,
which is also demonstrated by the fact that the player even suggested the club hiring
another player to replace him.
47.
In this context, the club explained that the player had no valid reason to terminate his
contract and, therefore, he is arguing that it was the club the one that breached the
contract.
48.
What is more –continued the club– after the player´s unilateral termination of the contract
on 5 March 2021, only some days thereafter, on 17 March 2021, it was announced that
the player had signed a new contract with the Brazilian club, Jaraguá Futsal.
49.
The above being explained, the club requested to be awarded outstanding moneys and
compensation for breach of contract, as follows:
Outstanding amounts:
− EUR 485 corresponding to the housing deposit paid by the club;
− EUR 521.95 corresponding to the agency fees paid by the club;
− EUR 770 as fine for not having granted a 2 weeks’ notice prior to the player’s termination
Ex art. 1243.3 of the French Labor Code.
Compensation for breach of contract:
− EUR 41,305 corresponding to the residual value of the contract;
− EUR 20,000 as damages.
c. Reply to the counter-claim of the Claimant / Counter-Respondent
50.
In his reply to the counterclaim, the player contested the argumentation of the club as to
several points.
51.
As to the argument of the club that it never agreed to the content of the financial proposal,
the player reiterated his previous argumentation and stressed that: “The player's hiring
agreement was, in fact, made by messages, brokered by another Futsal player from the
Club who, at the Board's request, conducted the conversations for hiring”. In addition, as
to the representative powers of Mr Giomar Murias Fernández, the player held that the
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Whatsapp conversations maintained with the said player on 7 June 2020 “resulted in the
[player´s] hiring and his trip to France, with tickets provided by the Club, according to the
attached conversations”.
52.
In this respect, the player further argued that the terms of the financial proposal were
agreed by the parties and that, as proof thereof, not only the Whatsapp messages
exchanged between the player and Mr Giomar Murias Fernández are to be considered, but
also the offer, which was drafted by the club itself and that, albeit unsigned, contains the
exact same amounts that the club -in the Whatsapp messages- had accepted to pay to the
player.
53.
However, the player acknowledged the following: “the contract was unilaterally drawn up
by the Club and provided to be signed, only in French, without the Player being able to
check if the terms were in accordance with what was offered in the proposal and agreed
in the message exchanges. The Claimant assumed the good faith of the Respondent, which
did not occur”. In this regard, the player further stressed that: “If all these terms [of the
financial proposal] are not included in the employment contract, this is due to the Club's
total and exclusive bad faith, and the Complainant was a victim of the Respondent's
improper conduct”.
54.
The player wished to emphasize that the argumentation of the club as to his monthly
remuneration cannot be followed in any case, insofar the financial conditions that according to the club- are the only ones due, a monthly salary of EUR 1,539 gross, are way
lower than the ones he had at his former club. In this regard, the player maintained that,
with his former club, the Spanish club, Jimbee Cartagena, he received a monthly salary of
EUR 5,000, plus housing and air tickets and that it would not make sense that he then
accepted to be transferred to the club of the Respondent if the financial terms were the
ones indicated in the contract.
55.
The player held that the club itself acknowledged that the sport-related activities in Brazil
were suspended during the period he was in Brazil and that he missed no training session
during the said time. What is more, continued the player, the club acknowledged that it
failed to pay his salaries as from November 2020 until February 2021 and that, once it
proceeded with the payment of the said salaries, it unilaterally applied deductions such as
rental expenses, which were not contractually agreed.
56.
The Claimant contested the payment of EUR 1,112.84 that the club held having made in
February 2021. On 12 February 2021, explained the player, he only received the amount of
EUR 564.78 from the club.
57.
As to the argumentation of the club that the player should have been present at the club
during the period he was in Brazil, the player pointed out that: “there was no work at the
Club in November and December, he was never called by the Defendant. On the contrary,
the physical training guidelines were promoted by messages in the WhatsApp application's
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player group, so that everyone was instructed to do the physical exercises and maintain
their fitness wherever they were, regardless of location” (note: document on file). What is
more, underscored the Claimant, he was never summoned by the club to return to work in
November and December 2020.
58.
As to the only match that took place during the period he was in Brazil, the player argued
that it took place on 16 December 2020, because the City of Kingersheim authorized a
friendly match between the club and the under-21 French team. However, stressed the
player, none of the professional players registered with the club played for Respondent in
the said game. In this respect, the player held that there is “no evidence that the Claimant
has been called up to participate in this match”.
59.
In this context, the Claimant alleged that he “returned to France on January 5, 2021,
without the Respondent summoning him to any activity, but aware that training activities
could return at any time”.
60.
Concerning the allegations of the club that it never undertook to provide the player with
an apartment, the Claimant referred not only to the offer issued by the Respondent, but
also to a Whatsapp conversation maintained with Mr Bouadjadja on 11 August 2020,
whereby the latter stated that, should the player wish to move from his back then current
apartment, he had to assume the costs, insofar the apartment offered by the club was
upscale for two people.
61.
According to the player, the rent agreement “was signed in the Player's name with real
estate, but the Club that indicated the apartment, paid for the bail and all the lease and
electricity expenses during the Claimant’s and his wife's residence period. The Player has
never paid any real estate fees for his housing”. In this line, the Claimant held that “there
is no element to support the [Respondent]’s absurd claim that the Player's housing should
be under his funding, nor that he authorized any further deduction from his salary”.
62.
As to the reimbursement of the flight tickets requested by the Claimant, the latter stressed
that not only the offer but also the contract provides that the player is entitled to the
reimbursement of expenses of such nature and that, therefore, “it is certain that there is a
duty of the Club to reimburse the Player for these two round-trip tickets from France to
Brazil”.
63.
In connection with the new contract signed with his new club, the Claimant held that only
on 11 March 2021 did he receive a formal proposal from his new club, ADJ Jaraguá Futsal,
i.e. 6 days after having terminated his contract with the club; and that it was not until 17
March 2021 that the player signed a new contract with the said club.
64.
In this respect, the player held that he had no alternative but to terminate the contract,
given the constant breaches of the club, which failed to duly pay his salaries. In this regard,
the player argued that “he had to take advantage of CBF's (Brazilian Football Association)
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international transfer window” and that his transfer to his new club was not in his benefit,
since he “ended up trading an excellent three-season contract in France for a two-season
contract in Brazil”.
d. Position of the intervening party
65.
Despite having been invited to do so, Associação Desportiva Jaragua did not present its
comments as to the counter-claim lodged by the Respondent / Counter-Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
66. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as the
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 10 March 2021 and
submitted for decision on 13 October 2021. 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.
67. 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 (August 2021 edition), 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 French club, with the
intervention of a Brazilian club.
68. 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 Player (August 2021 edition) and
considering that the present claim was lodged on 10 March 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
69. 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).
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c. Merits of the dispute
70. 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 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
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
71. The foregoing having been established, the Single Judge moved to the substance of the
matter and wished to briefly recall that the player is requesting to be awarded outstanding
remuneration and compensation for breach of contract from the club, which, on its part,
lodged a counter-claim against the player and his new club, requesting to be awarded
compensation for breach of contract from the player and his new club, which the
Respondent/Counter-Claimant considers as jointly liable.
72. After a careful analysis of the positions of the parties and the documentation provided by
them as evidence of their respective statements, the Single Judge brought up the following
questions:
Which document should serve as legal basis of the dispute at stake: the offer, the financial
offer or the contract?
73. In this regard, the Single Judge highlighted that it seems that the offer was indeed sent by
the official e-mail of the club to the player on 4 May 2020. However, the said offer was signed
by neither the player nor the club and no other exchange of correspondence whereby the
parties accepted to its content seems to have been sent by them. In this respect, the consent
being one of the essentialia negottii for a contract to be considered validly entered into by
the parties, the Single Judge that –in view of the lack of manifest consent of the parties to
the content of the proposal– the offer cannot be considered as the legal basis of the dispute
at stake.
74. As to the financial proposal, which was sent by the player to the club as a counter-offer to
the above-mentioned offer, the reasoning followed in the paragraph above is also applicable
to this document, stressed the Single Judge, albeit in a different way. Although the financial
proposal seems to have been sent by the player and accepted by Mr Giomar Murias
Fernández, there is no proof on file as to the representation powers of Mr Giomar Murias
Fernández to validly act on behalf of the club, considering that –as acknowledged by both
parties– the said individual does not hold a managerial position within the club but, on the
contrary, is a player of the club´s team. In this respect, the argumentation of the player as to
the chain of events that allegedly occurred, i.e.the financial negotiations undertaken between
the Claimant / Counter-Respondent and the said player leading to the player flying to France
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REF FPSD-1989
and concluding the contract, that -in the opinion of the player- would serve as proof that Mr
Giomar Murias Fernández did act on behalf of the club, the said argument cannot be
followed, insofar as no Power of Attorney or any other document has been provided by player
as proof thereof. What is more, the club contested the said affirmation and challenged any
eventual representation rights of the referred player. Hence, the Single Judge decided that
the financial proposal cannot be deemed as the legal basis of the dispute.
75. Lastly, underscored the Single Judge, the contract does seem to comply with the legal
requirements of a valid employment contract: it has an object, a cause and counts with the
consent of the parties.
76. The above being established, the Single Judge wished to emphasize that, in accordance with
the contract, the duration of the contractual relationship was as from 1 September 2020 until
31 May 2023; and that, for the said period, the player was entitled to a monthly salary of
EUR 1,539 gross. In this regard, the Single Judge pointed out that it remained uncontested
that the amount of EUR 1,539 gross corresponds to EUR 1,122.84 net, in view of the
documentation provided by the club.
77. In connection with the argumentation of the player that the offer was issued unequivocally
by the club and that the financial conditions of the contract are way lower, as well as that
the former contract of the player was of a higher value than the financial value of the contract
(which would demonstrate that the financial proposal and not the contract was the real
agreement entered into by the parties), albeit eventually possible, the Single Judge
underscored that the player failed to provide evidence as to having received the remuneration
specified in the financial offer for the months of September and October 2020 (months during
which, as per the player, he was duly paid by the club, i.e. he received monthly salaries of
EUR 2,500) and failed to submit proof of having validly concluded a contract with the terms
of the financial proposal.
78. Thus, referring to art. 13.5 of the Procedural Rules, the Single Judge decided that, considering
that the player carried the burden of the proof to demonstrate that the club undertook to
pay him a monthly salary of EUR 2,500 and failed to do so, the argumentation of the player
that the financial proposal shall serve as legal basis of the matter at hand is to be rejected.
79. What is more, in connection with the argument of the player that the contract was unilaterally
drafted by the club and provided to be signed, only in French, without the player being able
to check if the terms were in accordance with what was offered in the proposal and agreed
in the message exchanges and that, in this context, “the player assumed the good faith of
the Respondent”, cannot be followed. In this respect, the Single Judge stressed that it is a
general principle of law that contracting parties must make sure of the content of what they
are signing since, in principle, parties are bound to what they agree and it is their responsibility
to make sure of the content of a contract before giving their consent to be bound thereby.
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REF FPSD-1989
80. Hence, the Single Judge determined that the only contract shall serve as legal basis of the
present dispute.
Was the player allowed to return to Brazil between 8 November 2020 and 5 January 2021?
81. In this respect, the Single Judge noted that the contract does not contemplate any kind of
entitlement of the player to abandon the country where he should provide his services to the
club and that the player has not submitted any kind of authorization in this regard.
Nevertheless, the Whatsapp messages exchanged between the player and the club in
November and December 2020 (cf. points 12 and 13 supra) confirm that the club was aware
of the fact that the player was leaving France to go to Brazil and, what is more: did not oppose
thereto (the club even acknowledged that the club’s President accompanied the player to the
airport when he travelled to Brazil), nor urged the player to return to France while he was
abroad and even accepted to pay to him his salaries for the said period.
82. In view of the above, in spite of the lack of express authorization granted by the club, the
Single Judge determined that –contrary to the statements provided by the club– the player
left France with the approval of the club and did not, thereby, breach the contract, also
considering that, during the said period, sporting competitions in France were suspended and
no match was played where the attendance of the player was required.
When did the player terminate the contract? Did he terminate the contract with or without
just cause?
83. In view of the considerations made in the section above, the Single Judge concluded that the
player did not terminate his contract when he left France to go to Brazil, since the club seemed
to have agreed thereto.
84. As to the communication made by the player to the club on 6 or 7 January 2021 about his
intention to leave the club, the Single Judge pointed out that it was not contested by the
club that the player continued rendering his services for the club until 5 March 2021, when
he officially communicated his unilateral termination of the contract.
85. Thus, the Single Judge decided that the date of 5 March 20201 shall serve as date of
termination.
86. As to whether the player terminated his contract with or without just cause on the said date,
the Single Judge noted that, on 26 January 2021, the player put the club in default of
payment of the monthly salaries of November 2020, December 2020 and January 2021,
thereby granting the club a 15 days´ deadline to remedy the default; the club only proceeding
with partial payments of EUR 564.78 on 12 February 2021 and of EUR 1,122.84 on 3 March
2021, i.e. the amount of EUR 2,991.18 (which represents more than 2 monthly salaries still
remained outstanding – considering that the salary of the player was EUR 1,122.84 net).
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REF FPSD-1989
87. Hence, considering that more than 2 monthly salaries were outstanding at the date of
termination and that the player had duly put the club in default of payment in accordance
with the requirements of art. 14bis RSTP, the Single Judge determined that the player did
terminate the contract with just cause on 5 March 2021.
88. As to the argumentation of the club that the player terminated the contract due to personal
issues related to the health of his family and that the player signed a new contract right after
having terminated his contract with the club, the Single Judge stated that several
considerations must be made: the player did acknowledge, in January 2021, that he wished
to leave the club due to personal reasons, but that event does not alter the fact that the club
was in default of payment of 2 monthly salaries at that moment in time, nor alters the fact
that the player continued rendering his services during the following months and that he duly
complied with the requirements of art. 14bis before unilaterally terminating the contract.
Thus, the Single Judge was of the opinion that the fact that he signed a new contract 12 days
after having terminated his contract with the club does not change the degree of just cause
with which the player terminated his contractual relationship with the club.
89. In view of all of the above, the Single Judge concluded that the player did terminate the
contract with just cause on 5 March 2021 and must, therefore, be entitled not only to the
outstanding remuneration due at the date of termination, but also to compensation for
breach of contract.
ii. Consequences
90. Having stated the above, the members of the Single Judge turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
91. Concerning the amount due to the player as outstanding remuneration, the Single Judge
determined that the player is entitled to the amount of EUR 2,804, which results from the
following calculation: out of the amount of EUR 4,491.36 that the player was entitled to
receive between November 2020 and February 2021 (considering that his monthly salary was
EUR 1,122.84 net), the club only provided proof of having paid the amount of EUR 1,687.62
to the player (EUR 564.78 on 12 February 2021 and EUR 1,122.84 on 3 March 2021); hence
the player is entitled to the remainder of the outstanding moneys due to him, i.e. EUR 2,804
(4,491.36 – 1,687.62 = 2,804).
92. The above being said, the Single Judge stated that any further request of the player as to
outstanding remuneration due to him, i.e. flight tickets, are rejected, insofar there is no
contractual provision foreseeing the entitlement of the player to be reimbursed flight tickets´
expenses.
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REF FPSD-1989
93. Thus, 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 amounts that were
outstanding under the contract at the moment of the termination, i.e. EUR 2,804.
94. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% p.a. on the outstanding amounts as from their respective due dates until the
date of effective payment.
95. Having stated the above, the Single Judge 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 Single
Judge 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.
96. In application of the relevant provision, the Single Judge held that it first of all had to clarify
as to 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. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
97. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
98. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of EUR 30,317, i.e. the salaries due for the period as from March
2021 until May 2023 (1,122.84*27 = 30,317) - the residual value of the contract -, serves as
the basis for the determination of the amount of compensation for breach of contract.
99. In continuation, the Single Judge verified as to 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
DRC 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
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REF FPSD-1989
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
100.Indeed, verified the Single Judge, the player found employment with his new club, Associação
Desportiva Jaragua, which is valid as from 17 March 2021 until 31 December 2022 and
whereby the player is entitled to a total fixed remuneration of BR 369,000, which equals EUR
60,000 approximately. Therefore, considering that the income that the player will receive
from this new club is higher than the amount of the residual value of the contract during the
overlapping period (it is to be noted that the length of the contract goes beyond the length
of the new contract that the player signed with his new club), the Single Judge concluded
that the player fully mitigated his damages by concluding the new contract with his new club.
101.Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be due
to overdue payables. In the case at hand, the Single Judge confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
102.In this respect, the Single Judge decided to award the amount of additional compensation of
EUR 3,369, i.e. three times the monthly remuneration of the player (3*1,122.84 = 3,369).
103.Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of EUR
3,369 to the player as overall compensation for breach of contract, which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
104.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 10 March 2021, i.e. the date on which the player lodged his claim
before FIFA, until the date of effective payment.
iii. Compliance with monetary decisions
105.Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
106.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
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REF FPSD-1989
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.
107.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. 24bis par. 2, 4, and 7 of the Regulations.
108.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.
109.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. 24bis par.
8 of the Regulations.
d. Costs
110.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.
111.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.
112.Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties and, in particular, the counter-claim lodged by the Respondent /
Counter-Claimant.
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REF FPSD-1989
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter - Respondent, Edson Marques Levinski, is partially
accepted.
2.
The Respondent / Counter - Claimant, FC Kingersheim, has to pay to the Claimant / CounterRespondent, the following amounts:
-
EUR 2,804, as outstanding remuneration plus 5% interest p.a. as follows:
- On the amount of EUR 558, as from 1 January 2021;
- On the amount of EUR 1,123, as from 1 February 2021;
- On the amount of EUR 1,123, as from 1 March 2021.
-
EUR 3,369 as overall compensation for breach of contract, plus 5% interest p.a. as from
10 March 2021 until the date of effective payment.
3.
Any further claims of the Claimant / Counter – Respondent are rejected.
4.
The counter-claim of the Respondent / Counter – Claimant is 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. 24bis 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.
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REF FPSD-1989
7. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter 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
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
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