Dispute Resolution Chamber
Texto da decisão
REF 20-01699
Decision of the
DRC Judge
passed on 7 April 2021,
regarding an employment-related dispute concerning the player Igor
Raphael Lima de Sousa
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Igor Raphael Lima de Sousa, Brazil
Represented by Comunale Sport & Legal
RESPONDENT:
Association Citoyenne Culturelle Educative et Sportive, France
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I. FACTS OF THE CASE
1.
On 21 June 2019, the Brazilian player, Igor Raphael Lima de Sousa, (hereinafter: the player), and the
French club, Association Citoyenne Culturelle Educative et Sportive, (hereinafter: the club), concluded
an employment agreement (hereinafter: the contract) valid as from 1 August 2019 until 31 May 2021
2.
Clause 7 of the contract provides the player´s remuneration, as follows:
For the season 2019/2020:
EUR 35,000 as sign-on fee, payable on 21 June 2019;
EUR 30,000 as salary, divided in 10 instalments of EUR 3,000 each
The contract stipulates that the monthly salary was payable on the 30th day of each month.
For the season 2020/2021:
EUR 30,000 payable at the beginning of the season;
EUR 30,000 as salary, divided in 10 instalments of EUR 3,000 each.
The contract stipulates that the monthly salary was payable on the 30th day of each month.
3.
On 1 August 2020, the club informed the player that it could not pay his salaries for the season
2020/2021 in accordance with the payment schedule agreed as per the contract. Nevertheless, the
club suggested a new payment schedule for the said season, as follows:
EUR 6,000 payable by 10 August 2020;
EUR 6,000 payable by 10 September 2020;
EUR 20,000 payable on 15 October 2020;
EUR 3,000 payable on 30 November 2020;
EUR 3,000 payable on 31 December 2020;
EUR 2,000 payable on 31 January 2021;
EUR 20,000 payable on 31 March 2021.
4.
The player accepted the new payment schedule, as proposed by the club.
5.
By means of his letter dated 4 November 2020, the player put the club in default of payment in the
amount of EUR 26,000 –corresponding to the instalments payable in September and October 2020–
thereby granting the Respondent a 15 days deadline to remedy the default; however, to no avail.
6.
By means of his email sent to the Respondent on 20 November 2020, the Claimant unilaterally
terminated the contract on the grounds of art. 14bis RSTP, insofar the Respondent failed to comply
with its financial obligations regarding the payment of the instalments due on 10 September and 15
October 2020.
7.
On 23 March 2021, the player informed our services that, on 1 December 2020, he signed a new
contract with the Kuwaiti club, Yarmouk Sports Club, valid as from the date of its signature until 30
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June 2021, whereby the player was entitled to a monthly salary of USD 5143 (approx.: EUR 4,268.69),
namely, the player´s income with the new club during the overlapping period amounts to EUR 25,612
(4,268*6 = 25,612.14)
8.
On 20 November 2020, the Claimant lodged a claim against the Respondent before FIFA, requesting
outstanding remuneration and compensation for breach of contract in the total amount of EUR
54,000, plus 5% interest p.a. as from their respective due dates until the date of effective payment,
broken down by the Claimant as follows:
Outstanding remuneration: EUR 26,000
EUR 6,000 payable by 10 September 2020;
EUR 20,000 payable on 15 October 2020;
Compensation for breach of contract: EUR 3,000
EUR 3,000 payable on 30 November 2020;
Additional compensation: EUR 18,000
9.
EUR 18,000 corresponding to 3 instalments of the player´s monthly salary of EUR 6,000.
In his claim, the Claimant held that, despite him having complied with his financial obligations and
having put the Respondent in default of payment, the latter failed to comply with its financial
obligations.
10. Despite having been invited to do so, the Respondent failed to reply to the claim.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 20 November 2020 and was submitted for decision on 7
April 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable
to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which
concerns an employment–related dispute with an international dimension.
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3.
In continuation, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (February 2021 edition), and considering that
the claim was lodged on 20 November 2020, the October 2020 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC judge stressed the wording of art. 12 par. 4 of the
Procedural Rules, pursuant to which it may consider evidence not filed by the parties.
5.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or contained in TMS.
c. Merits of the dispute
6.
The competence of the DRC judge and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, the DC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC judge emphasised that in the following considerations
he will refer only to the facts, arguments and documentary evidence, which he considered pertinent
for the assessment of the matter at hand.
i. Main legal discussion and considerations
7.
Having said that, the DRC judge duly examined all the documentation on file and acknowledged that,
after having concluded an employment contract, in accordance with which the club undertook to pay
to the player a total fixed remuneration of EUR 60,000 for the sporting season 2020/2021, in
accordance with the breakdown established in point I. 2 above, the parties seem to have concluded
a novation to the contract, whereby the said parties agreed on a different payment schedule to the
one indicated in the contract. However, noted the DRC judge, the amounts payable in accordance
with this novation correspond to the exact same amount payable in accordance with the contract for
the season 2020/2021, the only different being the dates on which the specific amounts were payable
(cf. point I. 3 above).
8.
Furthermore, the DRC judge noted that the Claimant, following a default notice sent to the club on
4 November 2020, whereby the player put the club in default in the amount of EUR 26,000,
corresponding to 2 instalments of the novation to the contract and granted the club a 15 days´
deadline to remedy the default –letter which remained unanswered–, terminated the contract on 20
November 2020 ex. art. 14bis of the Regulations.
9.
In this respect, the DRC judge acknowledged the argumentation of the Claimant, who alleged that
despite having put the club in default of payment, the latter failed to comply with its financial
obligations towards him, which led the player to unilaterally terminate the contract.
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10. The DRC judge further acknowledged that, -on its part, and despite having been invited to provide
its comments as to the claim lodged by the player- the club failed to provide its comments as to the
claim lodged by the player.
11. Consequently, the DRC judge referred to art. 9 para. 3 of the Procedural Rules and determined that,
in accordance with the said provision, if no statement or reply is received before the time limit expires,
a decision shall be taken on the basis of the file. In this respect, the DRC judge pointed out that, in
view of the lack of a reply from the Respondent, the allegations of the Claimant remained uncontested
and –if supported with the necessary documentary evidence– those will be deemed as uncontested
facts.
12. In this context, the DRC judge pointed out that it remained uncontested that the parties agreed on a
different payment schedule or novation regarding the amounts due to the player for the season
2020/2021. Nevertheless, continued the DRC judge, insofar the amounts due to the player in
accordance with the new payment schedule and the contract are exactly the same, i.e. EUR 60,000,
the new payment schedule is only relevant for the assessment of whether the Claimant terminated
the contract with or without just cause and for the calculation of the corresponding default interest,
should the Claimant be entitled to receive any such amount.
13. Moreover, stressed the DRC judge, it remained uncontested that the club failed to pay to the player
more than 2 monthly salaries, i.e. the instalments due on 11 September and 15 October 2020, which
are of a higher value than 2 average monthly salaries. In this respect, the DRC judge wished to
emphasize that, despite the conclusion of the new payment schedule and the difference of the
amount of the instalments therein contained, the amount that should serve as salary basis is the one
of the contract, i.e. EUR 6,000, considering both the amount payable at the beginning of the season
and the monthly salary. In addition, the DRC judge highlighted that the player put the club in default
of payment on 4 November 2020 regarding the outstanding moneys due to him at that moment in
time, i.e. EUR 26,000, and granted the Respondent a 15 days´ deadline for the latter to remedy the
default; however, to no avail.
14. In view of the above, the DRC judge determined that the player terminated the contract with just
cause on 20 November 2020 in accordance with art. 14bis of the Regulations, insofar –at that
moment in time– more than two average monthly salaries were outstanding and since the Claimant
duly put the club in default of payment regarding the said outstanding moneys, granting the club a
15 days´ deadline to remedy the default, without the club complying with its contractual obligations
towards the Claimant within the granted time limit.
ii. Consequences
15. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences
of the early termination of the employment contract.
16. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment
contract up until the date of termination of the contract in accordance with the general legal principle
of “pacta sunt servanda”.
17. On account of the above considerations and the documentation on file, the DRC judge decided that
the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of
the termination i.e. the amount of EUR 26,000 corresponding to the instalment payable on 10
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September 2020 in the amount of EUR 6,000 and the instalment of EUR 20,000 that was payable on
15 October 2020.
18. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of the respective
due dates.
19. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding remuneration on the basis of the relevant employment
contract.
20. In this context, the DRC judge outlined that, in accordance with said provision, 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 Claimant 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.
21. In application of the relevant provision, the DRC judge held that it, first of all, had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of breach of
contract. In this regard, the DRC judge established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
22. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC
judge took into account the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional situation of
the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that,
despite the contract´s premature termination on 20 November 2020, if organically continued, the
contract would have run until 31 May 2021. Consequently, taking into account the financial terms of
the contract, the DRC judge concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to EUR 28,000,
corresponding to the instalments due as from 30 November 2020 until 31 March 2020.
23. In continuation, the DRC judge remarked that following the early termination of the employment
contract at the basis of the present dispute, the Claimant was able to find a new employment. In
particular, the DRC judge noted, on 1 December 2020, the Claimant signed a new contract with the
Kuwaiti club, Yarmouk Sports Club, valid as from the date of its signature until 30 June 2021, whereby
the player was entitled to a monthly salary of USD 5143 (approx.: EUR 4,268.69), namely –stressed
the DRC judge– the player´s income with the new club during the overlapping period amounts to EUR
25,612 (4,268*6 = 25,612.14).
24. In view of the above, the DRC judge firstly emphasized that, insofar the player remained unemployed
until 1 December 2020, the instalment of EUR 3,000 which was payable on 30 November 2020, shall
be granted to the Claimant in its entirety, given that the player was not able to mitigate his damages
between the date on which he terminated the contract with just cause, i.e. 20 November 2020, and
the date on which he signed the new contract, i.e. 1 December 2020.
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25. Concerning the residual value of the contract, i.e. the amount of EUR 25,000 corresponding to the
instalments payable as from 31 December 2020 until 31 May 2021, the DRC judged observed that
the player fully mitigated his damages when signing the new contract, insofar his remuneration as
per the said contract –during the overlapping period– amounts to EUR 25,612.14, which exceeds the
residual (mitigatable) value of the contract.
26. Nevertheless –continued the DRC Judge–, insofar the termination of the contract was motivated by
overdue payables, art. 17 para. 1 lit ii. of the Regulations is applicable to the matter-at-hand, meaning
that the player is also entitled to receive an additional compensation in an amount equal to 3 monthly
salaries. In this respect, the DRC judge referred to the abovementioned considerations (cf. point II. 13
above) and held that the player shall be further entitled to an additional compensation in the amount
of EUR 18,000 (6,000*3 = 18,000).
27. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR
21,000 (EUR 3,000 –corresponding to the instalment due in November 2020– plus EUR 18,000 as
additional compensation) to the Claimant as overall compensation for breach of contract, which is
considered by the DRC judge to be a reasonable and justified amount as compensation.
28. In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the DRC
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. on the amount of
EUR 21,000, as of 20 November 2020, i.e. the date on which the claim was lodged, until the date of
effective payment.
29. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR 47,000
to the Claimant, consisting of the amount of EUR 26,000 corresponding to the Claimant’s
outstanding remuneration at the time of the unilateral termination of the contract with just cause by
the Claimant and the amount of EUR 21,000 corresponding to the overall compensation for breach
of contract.
iii. Compliance with monetary decisions
30. Furthermore, taking into account the consideration under number II.3 above, the DRC judge referred
to para. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent
FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.
31. In this regard, the DRC judge pointed out that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players, either
nationally or internationally, up until the due amounts are paid and for the maximum duration of
three entire and consecutive registration periods.
32. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does
not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant,
following the notification of the present decision, communicates the relevant bank details to the
Respondent, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
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33. Finally, the DRC 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. 3 of the
Regulations.
34. The DRC judge concluded his deliberations in the present matter stipulating that the Claimant’s claim
is partially accepted.
III.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Igor Raphael Lima de Sousa, is partially accepted.
2.
The Respondent, Association Citoyenne Culturelle Educative et Sportive, has to pay to the
Claimant, the following amounts:
- EUR 26,000 as outstanding remuneration, plus 5% interest p.a., as follows:
o
On the amount of EUR 6,000, as from 11 September 2020 until the date of
effective payment;
o
On the amount of EUR 20,000, as from 16 October 2020.
- EUR 21,000 as overall compensation, plus 5% interest p.a. as from 20 November 2020, until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
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entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court
of Arbitration for Sport (CAS) 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 20 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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