Labour Disputes
Texto da decisão
REF. FPSD-13390
Decision of the
Dispute Resolution Chamber
passed on 2 May 2024
regarding an employment-related dispute concerning
the player Bruno Felipe Lima Teixeira
BY:
Angela Collins (Australia)
CLAIMANT:
Bruno Felipe Lima Teixeira, Brazil
Represented by Pugliese, Mencarini & Loturco
RESPONDENT:
Al Hussein SC, Jordan
pg. 2
REF. FPSD-13390
I. Facts of the case
1.
On 12 July 2023, the Brazilian player Bruno Felipe Lima Teixeira (hereinafter: Claimant or
player) and the Jordanian club Al Hussein SC (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: the Contract) valid as from 11 July 2023 until the end of
the season 2023/2024 (cf. FIFA Transfer Matching System: 30 May 2024).
2.
According to art. 20 of the contract, the Respondent undertook to pay the Claimant a total
remuneration of USD 80,000 as follows:
-
USD 8,000 as sign on fee;
USD 7,200 as monthly salary over a period of 10 months.
3.
Furthermore, according to art. 15 of the Contract, the parties agreed that “in the event that
either party to the Contract terminates the Contract without proper cause, such party shall be
obliged to pay an amount of one month to the other party.”
4.
On 2 December 2023, the Respondent allegedly unilaterally terminated the Contract via an
audio message sent to the Claimant by the head coach.
5.
Thereafter, at an unspecified date, the Claimant allegedly expressed his dissatisfaction to
the director of the Respondent about the dismissal and the fact that, pursuant to the
Contract, he would only be able to receive compensation of one monthly salary. In
response thereto, the Respondent’s director allegedly told the Claimant to pursue his rights
with legal action if he was not happy.
6.
On 17 December 2023, the Respondent’s head coach allegedly informed the Claimant via
text message that he would only receive one monthly salary and flight tickets to return
home, recommending him to accept such terms.
7.
At an unspecified date, after the Respondent allegedly refused to provide him with a plane
ticket, the Claimant purchased the plane ticket to return home out of his own funds, in the
amount of USD 1,350.
8.
On 20 December 2023, the Claimant was detained at the airport as his visa had expired,
leading to a fine of JOD 164 (approx. USD 250) which had to be paid before he was able to
return to Brazil.
9.
On 24 December 2023, the Respondent emailed the Claimant, informing him that it was
surprised to learn about his departure and threatening with the imposition of fines
pursuant to Jordanian law and FIFA regulations.
pg. 3
REF. FPSD-13390
10. On 26 December 2023, the Claimant replied to the Respondent, stating that he was
dismissed without just cause and that, failing an amicable resolution, he would submit a
claim before FIFA.
11. On 27 December 2023, the Respondent replied, stating that it rejected the notion that it
had acted in bad faith, reiterating that the Claimant had left the country without
authorization, and that the Claimant’s attempt to request the full value of the Contract
when there is a compensation clause of one monthly salary in the Contract constitutes an
attempt to “circumvent the law”.
II. Proceedings before FIFA
12. On 18 January 2024, 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
13. According to the Claimant, the Respondent terminated the Contract suddenly and without
justification on 2 December 2023.
14. The Claimant specified that the Respondent had communicated the termination through
the head coach and pressured him to accept one monthly salary as a compensatory
payment as well as tickets to return home. However, the Claimant insisted having received
neither such compensation, nor the flight ticket, which he had to purchase himself.
15. The Claimant pointed out equally that he had to pay a fine of USD 250 due to his visa
expiring, before being able to leave the country.
16. Additionally, the Claimant commented on art. 15 of the Contract, stating that the liquidated
damages clause contained therein is disproportionate and that, rather, his compensation
should be calculated with reference to art. 17 RSTP.
17. Consequently, the Claimant’s request for relief was as follows:
-
USD 43,200 compensation (6 x USD 7,200 between December 2023 and May 2024);
USD 1,350 flight ticket reimbursement;
USD 250 as visa costs.
b. Position of the Respondent
18. In its reply, the Respondent argued that the termination is invalid as it took place through
the coach, who is not an “authorised representative” of the club, as well as taking the shape
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REF. FPSD-13390
of an audio message, which does not constitute the official mode of communication per
the Contract (e-mail).
19. The Respondent equally argued that the Claimant was in breach of the Contract by leaving
the country without any authorisation, which gave rise to various fines against the player
in excess of USD 80,000.
20. The Respondent also pointed to the Claimant’s bad faith constituted by the fact that he
appears to be claiming the residual value of the Contract, when the compensation clause
in art. 15 thereunder specifies that the maximum amount he may receive is one month.
21. Consequently, the Respondent requested for the claim to be rejected and for a monetary
fine to be imposed on the Claimant as a result of his allegedly breachful behaviour.
c. Comments of the Claimant
22. The Claimant was invited to provide short comments and largely reiterated his previous
arguments, however, also adduced that his departure on 20 December 2023 can in no way
be considered a breach of contract, since, even if (quod non) the Contract had not been
previously terminated by the Respondent, the team had a winter break from
20 December 2023 until 6 January 2024. The Claimant adduced a copy of the team schedule
as evidence.
pg. 5
REF. FPSD-13390
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on
18 January 2024 and submitted for decision on 2 May 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.
24. 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 February 2024 edition), the former 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 Jordanian club.
25. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 18 January 2024, 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
26. 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 she 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
27. Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she 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 she will refer only to the
facts, arguments and documentary evidence, which she considered pertinent for the
assessment of the matter at hand.
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REF. FPSD-13390
i. Main legal discussion and considerations
28. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
premature contractual termination by the club.
29. In particular, the Single Judge recalled that, according to the Claimant, the Respondent
terminated the Contract without just cause, not invoking any justification, but merely
basing itself on the compensation clause in the Contract.
30. On the other hand, the Single Judge noted that the Respondent challenged the termination
of the Contract based on a formal defect, and subsequently arguing that the Claimant had
departed without any permission, constituting a breach of contract.
31. With this in mind, the Single Judge acknowledged that her task was to determine when the
Contract was terminated, whether or not such termination occurred with or without just
cause, and what the consequences of such potential premature termination may be.
32. As a preliminary remark, the Single Judge wished to recall the principles of art. 13 par. 5 of
the Procedural Rules, pursuant to which a party that asserts a certain fact also bears the
burden of proving its veracity.
33. Equally, the Single Judge referred to the jurisprudence of the Football Tribunal, pursuant
to which a contractual termination may only result as a consequence of a significant or
frequent enough breach of contract by the counterparty. Where the parties can turn to
more lenient measures to remedy their relationship, such measures shall be readily turned
to prior to terminating the contract. A premature contractual termination may only be an
ultima ratio measure.
34. With the above being established, the Single Judge moved on to consider the matter as to
its substance, and firstly took note of the fact that the Respondent has challenged the
validity of the contractual termination, stating that the head coach had no authority to
terminate the Contract, and that a written termination notice had to be produced and
communicated via email.
35. In this respect, the Single Judge wished to point out that the head coach, acting in the
capacity of a club representative as before the player, conveyed an apparent authority
towards the latter which was sufficient for the sake of binding the club. In particular, the
Single Judge opined that it would be considered overly burdensome upon the Claimant (as
an employee) to bear an assumption that he could be aware at all times of the internal
dynamic of a club and its distribution of authority.
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REF. FPSD-13390
36. Significantly, the Single Judge observed, the Respondent challenged only the procedural
validity of the contractual termination, however, neither the veracity, nor the content of
the coach’s notifications.
37. The Single Judge also did not want to lose sight of the fact that the Claimant was addressed
concerning the future of the Contract both orally on 2 December 2023, as well as in writing
on 17 Decembre 2023. It was, therefore, beyond any doubt that the Claimant was
effectively informed about the fact that he was no longer welcome at the club.
38. Not least importantly, the Single Judge wished to point out, the Respondent received a
formal notification via email – as contractually prescribed – from the Claimant’s attorney
shortly after his departure.
39. In the opinion of the Single Judge, if the Respondent truly was surprised by – and opposed
to – the fact that the coach had let the Claimant know that he was no longer wanted, it
would have attempted to retrieve the player’s services and mitigate the circumstances
existing at the time, rather than threatening with the imposition of financial sanctions due
to an allegedly unauthorised absence (for which no prior warning had been sent).
40. For the sake of completeness, the Single Judge pointed out that the Respondent did not
challenge the allegation of the Claimant that he went to express his dissatisfaction to the
club’s director, who then encouraged him to lodge a claim if he was unhappy. Such fact
further substantiated the previously confident conclusion of the Single Judge that the
Respondent’s unilateral termination of the Contract was abusive – and far from meeting
the threshold of ultima ratio as prescribed by FIFA’s jurisprudence.
41. By way of consequence, the Single Judge concluded that the Respondent terminated the
Contract without just cause on 2 December 2023.
ii. Consequences
42. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
43. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounted to no salaries,
however, consisted of a request for reimbursement for flight ticket costs (which were
adequately corroborated at a value of USD 1,350), as well as additional visa costs of
USD 250 (equally duly evidenced).
44. As a consequence, and 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
which were outstanding under the contract at the moment of the termination, i.e.
USD 1,600.
pg. 8
REF. FPSD-13390
45. 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, she 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.
46. In application of the relevant provision, the Single Judge held that she 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.
47. In this regard, the Single Judge recalled that, pursuant to art. 15 of the Contract, the parties
agreed that “in the event that either party to the Contract terminates the Contract without
proper cause, such party shall be obliged to pay an amount of one month to the other party.”.
48. The Single Judge was of the firm opinion that the abovementioned clause, whilst being
reciprocal in its application, could not be held as proportionate, particularly when
compared to the residual value of the Contract at the time of its termination.
49. As a consequence, the Single Judge dismissed the application of art. 15 of the Contract and
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.
50. 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 USD 43,200 (i.e. the residual value of the Contract, or six
times USD 7,200 between December 2023 and May 2024) serves as the basis for the
determination of the amount of compensation for breach of contract.
51. 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 FIFA Dispute Resolution Chamber, as well as art. 17 par. 1 lit. ii) of the
Regulations, such remuneration under a new employment contract shall be taken into
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REF. FPSD-13390
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.
52. In the case at hand, the player confirmed having remained unemployed following the
termination of the Contract, meaning that no mitigation was applicable.
53. 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 USD 43,200 to the player (i.e. the residual value of the Contract), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
54. Lastly, and for the sake of completeness, the Single Judge decided that the “fines” imposed
by the club should be disregarded in their entirety (cf. ex turpi causa non oritur actio).
iii. Compliance with monetary decisions
55. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with her 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.
56. 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 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.
57. 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. 24 par. 2, 4, and 7 of the Regulations.
58. 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.
59. 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. 24 par.
8 of the Regulations.
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REF. FPSD-13390
d. Costs
60. 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.
61. 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.
62. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 11
REF. FPSD-13390
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bruno Felipe Lima Teixeira, is accepted.
2.
The Respondent, Al Hussein SC, must pay to the Claimant the following amount(s):
- USD 1,600 as outstanding remuneration;
- USD 43,200 as compensation for breach of contract without just cause.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13390
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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pg. 13