Labour Disputes
Texto da decisão
REF. FPSD-11857
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Alan Junior Lhamas de Jesus
BY:
Frans de Weger (the Netherlands), Chairperson
Stijn Boeykens (Belgium), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Alan Junior Lhamas de Jesus, Brazil
Represented by Soccer Sport Network LLC
RESPONDENT:
Tarxien Rainbows FC, Malta
pg. 2
REF. FPSD-11857
I. Facts of the case
1. On 25 August 2023, the Brazilian player Alan Junior Lhamas de Jesus (hereinafter:
Claimant or player) received a contractual offer (hereinafter: the Offer) from the Maltese
club Tarxien Rainbows (hereinafter: club or Respondent).
2. The Offer was titled as follows: “Proposal with Tarxien FC 2023-2024”.
3. According to the Offer, the Respondent undertook to pay the Claimant the following
remuneration:
-
EUR 1,600 gross monthly salary;
EUR 1,000 championship bonus and EUR 2,000 “trophy bonus”;
Accommodation and flight ticket.
4. Furthermore, the Offer stipulated as follows:
“I hope that you accept our proposal and looking forward to receiving your confirmation.
Above Proposal is subject to medical, fitness tests and to final approval by President, technical
staff and transfer committee. Also subject to Covid-19 restrictions and regulations on
incoming flights.”
5. On the same day, the Claimant’s agent and an intermediary allegedly engaged by the
Respondent exchanged various WhatsApp messages in which the terms of a potential
employment contract were agreed upon. In these messages, it appears that the
Respondent sent a draft offer to the Claimant with certain financial conditions, asked the
Claimant’s agent to get the Claimant to sign the Offer, and stated “the club will buy the
tickets”. The Claimant’s agent, on the other hand, sent back what appears to be another
draft offer, and asked whether it would be possible to have one monthly salary paid as
a signature bonus.
6. On the same day, the Claimant signed the final Offer, countersigned by its head coach,
and sent it back to the Respondent, via its alleged intermediary.
7. On the same day still, the Claimant’s old club provided a release letter of the Claimant
from his previous contract, which was communicated to the intermediary allegedly
engaged by the Respondent.
8. On 26 August 2023, the intermediary allegedly engaged by the Respondent provided the
Claimant with a flight ticket to travel to Malta, with the date of departure being
28 August 2023.
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REF. FPSD-11857
9. On 27 August 2023, in an exchange of WhatsApp messages, the intermediary allegedly
engaged by the Respondent informed the Claimant’s agent that the Respondent was not
interested in the Claimant, since the head coach (who had been looking for a new player
to sign) confused him with another player named “Alan”. The intermediary offered the
Claimant to still board the flight and to go on trial with another team in Malta. The
Claimant turned down this proposal.
10. On 29 August 2023, the Claimant’s agent contacted the head coach of the Respondent
via WhatsApp and requested an explanation for why the Offer, which he described as an
“official pre-agreement”, was cancelled, and to confirm if the reason was that he
confused the Claimant with another “Alan”. The head coach replied as follows:
“First and foremost, that is not an official pre-agreement, that is a proposal. (…) It is subject
to final approval by president and technical staff. There was a mistake by Pedro [the club’s
alleged intermediary], we were discussing about another Alan and he sent a video of another
Alan. We did not purchase the [flight] ticket ourselves. While we apologise for the
misunderstanding (…) I am not a general manager, I am the coach of the club. (…) That was
just a proposal, I do not have power of authority to enter into any binding agreement on
behalf of the club, as I am not a member of the committee.
(…) Even though there was a mistake by Pedro [the club’s alleged intermediary] I never told
the player not to travel. (…) I never cancelled anything – I just told you that 1. this was a
proposal from me as the trainer and that this was subject to final approval 2. that [the club’s
alleged intermediary] made a mistake as we were not talking about this player but another
player 3. I never purchased the flight ticket myself 4. I never told the player not to come and I
was waiting for him today.”
11. On 19 September 2023, the Claimant sent the Respondent (via its head coach, on
WhatsApp) a formal notice, stating that by not respecting the pre-agreement constituted
by the Offer, it was liable to pay compensation for breach of contract. The Claimant
requested payment of EUR 14,145 within 10 days of said notice being sent.
12. At an unspecified date, the Claimant signed a contract with his former club Dom Bosco
(Brazil), with a term of three months (September 2023 – November 2023) and a monthly
remuneration of BRL 3,000 (hereinafter: the New Contract).
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REF. FPSD-11857
II. Proceedings before FIFA
13. On 20 September 2023, 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
14. According to the Claimant, the Respondent failed to respect the pre-agreement constituted
by the Offer, which purportedly constitutes a valid and binding employment contract. The
Claimant emphasised that the Offer contained all essentialia negotii.
15. The Claimant equally dismissed the argumentation presented by the Respondent that the
intermediary allegedly engaged by itself made a mistake as to which player was sought by
the Respondent, as well as to the alleged lack of authority to conclude agreements on
behalf of the Respondent. The Claimant emphasised that he terminated his previous
contract on the same day as signing the Offer for the sole reason of joining the Respondent,
and that that the Offer with the club’s badge and signature of the head coach contained
his name and passport number.
16. By failing to respect the contract given rise to by the Offer, the Respondent is, according to
the Claimant, liable to pay him compensation for breach of contract without just cause.
17. The Claimant, thus, requested EUR 20,800, corresponding to 10 monthly salaries of
EUR 1,600 as the residual value of the contract, plus three monthly salaries of additional
compensation.
18. Lastly, the Claimant requested interest from 10 September 2023 until the date of effective
payment.
b. Position of the Respondent
19. In its reply, the Respondent described that the Offer could not give rise to a valid and
binding employment contract as it contained suspensive conditions – namely formal
approval by the club president, as well as a medical examination of the player.
20. The Respondent also wished to emphasise that a “proposal” / “offer” cannot in itself give
rise to a valid and binding agreement, since it lacked the intention of the offering party to
give rise to a valid and binding contract. Rather, according to the Respondent, the Offer
was a mere undertaking to guarantee certain terms, should the direction of the club agree
to sign the player.
21. The Respondent also admitted that the confusion regarding the Claimant’s name is the
reason why it decided no longer to pursue him, and that, as the Offer was sent in error,
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REF. FPSD-11857
should not be held to give rise to a valid and binding contract or any liability arising from a
potential breach thereof.
22. The Respondent also stressed that the Claimant unilaterally decided to no longer travel to
Malta, since the head coach of the Respondent had told the Claimant’s agent that he is still
waiting for him to attend and that, regardless of the misunderstanding, he would try to
accommodate him and accompany him to training. The Respondent thus argued that, if
there is a contract (quod non), it was the Claimant who breached it without just cause by
refusing to travel to Malta.
23. The Respondent also asserted that the Offer did not contain all of the required essentialia
negotii to give rise to a valid and binding employment contract. More specifically, the Offer
contained no start and/or end date, did not contain the official club letterhead, and was
not homologated with the Maltese FA as part of a formal employment contract.
24. Lastly, the Respondent wished to point out that the Claimant presented no evidence of any
formal relationship between itself and the alleged intermediary.
c. Unsolicited correspondence(s) of the parties
25. Both parties made further submissions outside the relevant deadline(s) granted by the FIFA
Administration. On account of being unsolicited, after being presented to the Dispute
Resolution Chamber as part of the case file, these submissions were deemed as
inadmissible and were consequently not taken into consideration during the decisionmaking process.
pg. 6
REF. FPSD-11857
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 20 September 2023 and
submitted for decision on 8 February 2024. Taking into account the wording of art. 34 of
the March 2023 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.
27. 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 February 2024 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 Maltese club.
28. 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 (February 2024 edition), and
considering that the present claim was lodged on 20 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
29. 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
30. 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.
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REF. FPSD-11857
i. Main legal discussion and considerations
31. 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 existence of a
contractual relationship and the potential liability arising therefrom.
32. In this context, the Chamber acknowledged that it its task was to determine, based on the
evidence submitted to the file, whether the parties had indeed concluded a valid and
binding employment contract, whether such potential contract had been terminated with
or without just cause, and what the consequences arising therefrom may be.
33. Prior to entering the analysis of the matter as to its merits, the Chamber briefly recalled
the parties’ arguments. On one hand, the Claimant argued that the Respondent terminated
the Contract without just cause by failing to give effect to the Offer, which contained the
essentialia negotii necessary to give rise to a valid and binding employment contract.
34. On the other hand, the Chamber took note of the Respondent’s submission, which argued
that the Offer did not represent the official position of the club, the suspensive provisions
contained therein rendered it incapable of giving rise to a valid and binding contract, and
that the alleged intermediary that delivered the Offer was never authorised by the
Respondent.
35. The Chamber, at this point, deemed it important to recall the contents of art. 13 par. 5 of
the Procedural Rules, pursuant to which a party that wishes to rely on a fact also bears the
burden of proving its veracity.
36. With this in mind, the Chamber proceeded to assess the matter as to its merits, and began
by considering the question of whether the Offer had been validly communicated to the
Claimant.
37. The Chamber noted that, whilst it remained uncontested that the Claimant had somehow
received the Offer and returned it with his signature, that such Offer was, according to the
Respondent, not only presented by an unauthorised intermediary, but also intended for
another player bearing a similar name. The Respondent thus contended that the Offer had
been invalid from the outset.
38. In this respect, the Chamber referred to the jurisprudence of the Court of Arbitration for
Sport (CAS), which laid down in the award with reference CAS 2017/A/5164 (FAT v. Victor
Jacobus Hermans) that the formal conditions of authority between an employee of a club or
association and an employee is not a matter within the knowledge or control of the person
dealing with said club or association; where the relevant representative or employee has
“apparent authority” to act on behalf of said club or association, and the counterparty has
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REF. FPSD-11857
grounds to believe that they are acting on behalf of their employer, then the argument of
lack of authority to bind may not be invoked to nullify any subsequent agreement.
39. In the case at hand, the Chamber opined, despite the subsequent arguments of the head
coach in the correspondence exchanged with the Claimant’s agent, that he was not
empowered to conclude any agreements on behalf of the club, the Claimant (along with
his agent) had grounds to believe that the Respondent intended to make an Offer, through
its head coach – a position that is generally associated with team management and
recruitment responsibilities – and, not least either, on a letter bearing the club’s logo.
40. The Chamber continued in respect of the misunderstanding concerning the Claimant’s
name, underlining that the Respondent had all available tools (football-related databases
and online platforms) to verify the Claimant’s identity. The fact that the Respondent
(through its head coach, as established above) based itself purely on a conversation with a
purported intermediary, and failed to conduct basic due diligence, should not undermine
or dismiss the fact that the Claimant had a legitimate expectation that arose as a result of
the Offer. This was, in the Chamber’s opinion, further evidenced by the fact that the
Claimant departed from his previous contract on the very same day as receiving the Offer.
41. Consequently, the Chamber firstly concluded that the Offer had been validly
communicated to the Claimant.
42. With this in mind, the Chamber moved on to consider the validity of such Offer in as far as
giving rise to a valid and binding employment relationship.
43. In this respect, the Chamber recalled its own longstanding jurisprudence, pursuant to
which an employment contract must contain certain key elements – generally known as
essentialia negotii – which are capable of constituting an employment relationship. Such
elements include a clear and specific reference to remuneration, the duration of the
potential contract, an indication that the relevant employee would carry out professional
football activities, and the signature of the parties and/or any other indication of a bilateral
intention to enter legal relations.
44. In terms of these requirements, the Chamber was immediately able to establish that the
Offer contained a clear indication as to remuneration (EUR 1,600 as a monthly salary as
well as conditional bonuses), duration (the 2023/2024 season), and that the player would
be rendering the services of a professional football player, not least with reference to
art. 2 par. 2 of the Regulations.
45. In relation to the parties’ intention to create legal relations, the Chamber referred to its
previous deliberations concerning the signature of the head coach that was contained on
the Offer. In the Chamber’s opinion, it was evident that, through the signature of the Offer
through the head coach, the Respondent had indicated its intention to create legal
relations in the matter at hand.
pg. 9
REF. FPSD-11857
46. The Chamber did not fail to observe the suspensive provisions contained in the Contract –
namely that the Offer had been subject to a medical examination, homologation by the
President and conversion into a “standard form” MFA contract.
47. In respect thereof, the Chamber firstly pointed out that, pursuant to art. 18 par. 4 of the
Regulations, an employment contract cannot be made subject to a medical examination.
48. Furthermore, the Chamber referred to its jurisprudence in laying down that purported
formal defects concerning an offer or pre-contract do not detract from the fact that such
offer and/or pre-contract satisfied the requirement of essentialia negotii. This, indeed,
extends to both “internal” requirements, such as “rubber-stamp” approvals by the
president, as well as “external” requirements, such as the homologation of a purported
employment contract into a “standard form” contract as per the relevant domestic
regulations.
49. Therefore, the Chamber was able to conclude that both parties had demonstrated an
intention to be legally bound, and that, as a result, all requirements set forth by essentialia
negotii had been met.
50. In conclusion, the Chamber established that the Offer, in fact, constituted a valid and
binding employment contract (hereinafter: the Contract).
51. With this in mind, the Chamber moved on to determine whether the Contract had been
terminated with or without a just cause.
52. It was recalled, at this point, that the Respondent, at first in a correspondence via its
intermediary, as well as subsequently through the head coach, invited the Claimant to
attend the flight ticket originally purchased for him and travel to Malta, either to follow
through with training and potentially signing a “formal employment contract” (as offered
by the coach) or to go on trial with another team (as proposed by the alleged intermediary).
53. In this respect, the Chamber wished to highlight that the flight was scheduled for
28 August 2023; the intermediary informed the Claimant for the first time that he could
travel to Malta to go on trial for another team on 27 August 2023 – and only two days later
(i.e. when the flight had already departed without the Claimant) to continue pursuing the
potential relationship with the Respondent.
54. In light of the above, the Chamber considered that the Respondent’s conduct – retracting
the Offer at incredibly short notice, only offering to remedy it after the flight for Malta had
already left – without offering a replacement ticket, and denying the existence of an
employment relationship entirely, constituted a de facto termination of the Contract by the
Respondent on 27 August 2023, as a further collaboration between the parties could no
longer be envisaged at that stage.
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REF. FPSD-11857
55. At this point, the Chamber recalled its own longstanding jurisprudence, pursuant to which
a premature termination of a contract is deemed to have been with just cause only where
there has been a sufficiently severe or frequent breach of contract by the counterparty,
constituting an ultima ratio measure.
56. In the case at hand, the Chamber observed that there was no evidence of the Claimant
having breached the Contract at all.
57. Consequently, the Chamber concluded that the Respondent terminated the Contract
without just cause on 27 August 2023, to the Claimant’s detriment, and proceeded to
analyse the consequences of such unlawful breach of contract.
ii. Consequences
58. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
59. The Chamber firstly recalled that, due to the short timeline between the conclusion of the
Contract and its termination, the Claimant was not entitled to any outstanding
remuneration. The Chamber, therefore, immediately went on to determine the
compensation that may be payable in the case at hand to the Claimant.
60. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club. In doing so, the Chamber firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the
new contract, the time remaining on the existing contract up to a maximum of five years,
and depending on whether the contractual breach falls within the protected period.
61. In application of the relevant provision, the Chamber 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
62. As a consequence, the members of the Chamber 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 Chamber recalled that
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REF. FPSD-11857
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
63. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 16,000 (i.e. the entire value of the Contract – or ten
times EUR 1,600 between September 2023 and June 2024) served as the basis for the
determination of the amount of compensation for breach of contract.
64. In continuation, the Chamber 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
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
65. Indeed, the player found employment with the Brazilian club Dom Bosco. In accordance
with the pertinent employment contract, the player was entitled to approximately
BRL 3,000 per month. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of BRL 9,000, that is, three times BRL 3,000, or approximately
EUR 1,678.
66. Subsequently, the Chamber 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 Chamber confirmed that the contract
termination did not take place due to said reason, meaning that the Claimant was not
entitled to claim additional compensation.
67. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 14,322 to the player (i.e. EUR 16,000 minus EUR 1,678), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
68. 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 September 2023 until the date of effective
payment.
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iii. Compliance with monetary decisions
69. 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.
70. 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.
71. 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.
72. 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.
73. 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
74. 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.
75. 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.
76. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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pg. 14
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alan Junior Lhamas de Jesus, is partially accepted.
2.
The Respondent, Tarxien Rainbows FC, must pay to the Claimant EUR 14,322 as
compensation for breach of contract without just cause plus 5% interest p.a. as from
10 September 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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 Governing the Football
Tribunal).
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