Labour Disputes
Texto da decisão
REF. FPSD-14637
Decision of the
Dispute Resolution Chamber
passed on 3 October 2024
regarding a contractual dispute concerning the player
Julia Elias Macena
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Khalid AWAD ALTHEBITY (Saudi Arabia), Member
Tomislav KASALO (Croatia), Member
CLAIMANT:
Julia Elias Macena, Brazil
Represented by Rafael Carvalho Cunha
RESPONDENT:
Sport Clube União Torreense Futebol SAD, Portugal
Represented by Diogo Soares Loureiro
pg. 2
REF. FPSD-14637
I. Facts of the case
1.
On 22 July 2022, the Brazilian player Julia Elias Macena (hereinafter: the Claimant or the
Player) and the Portuguese club Sport Clube União Torreense Futebol SAD (hereinafter: the
Respondent or the Club) allegedly concluded an employment contract (hereinafter: the
Contract) valid as from 25 July 2022 until 30 June 2023.
2.
In accordance with the Contract, which remained unsigned by the Respondent, the
Claimant was entitled to a net monthly salary of €705, by the fifth day of the month
following the month in which the work is performed.
3.
In addition, article 8 of the Contract stipulated the following:
“1. If the Parties terminate the contract claiming just cause that will not be recognized, they will
be obliged to indemnify the counterparty as follows:
a) If SCUT SAD proceeds to detach the PLAYER without just cause, it will be obliged to pay the
latter the amount corresponding to the value of the remuneration that would be due to it. If the
employment contract had ended at its end.
b) If the PLAYER Terminates this contract without just cause, she will be obliged to pay SCUT SAD
the amount of € 1,000,000.00 (one million euros) plus VAT at the legal rate in force.
2. If the PLAYER terminates this contract, she will be obliged to pay SCUT SAD the same amount
referred to in paragraph b) of the previous number, that is, € 1,000,000.00 (one million euros)
plus VAT at the legal rate in effect.
3. The indemnity provided for in paragraph b) of number 1 and number 2 of this clause was
agreed between the Parties due to the PLAYER recognizing the importance of the stability of the
contractual bond, as well as the importance of SCUT SAD in its sporting enhancement and also
the damages that will result to SCUT SAD for the loss of an athlete with the sporting season in
progress, whether the sporting damages, or the economic and financial damages, since, in case
the PLAYER terminates the contract by any of the ways referred to in this clause , SCUT SAD will
have to hire an athlete to replace them in a short period of time and without the possibility of
adapting to the team, which is advisable, desirable and which occurs in the denomination
“preseason”.”
4.
By correspondence dated 18 July 2022, the Respondent sent a letter to the Portuguese
immigration authority communicating its intention to hire the Player and to cover the travel
expenses, such as accommodation, airline tickets, food etc.
5.
On 25 July 2022, the Claimant flew from Brazil to Portugal.
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REF. FPSD-14637
6.
By correspondence dated 28 February 2023, the Claimant put the Respondent in default of
payment of €4,230.
7.
On 1 March 2023, the Claimant signed a new employment contract (hereinafter: the New
Contract) with the Brazilian club Fortaleza Esporte Clube, valid as from its date of signature
until 15 December 2023. According to the New Contract, the Player was entitled to a
monthly salary of BRL 1,800.00.
II. Proceedings before FIFA
8.
On 15 May 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
9.
According to the Claimant, it has not received from the Respondent any of the salaries to
which it is entitled under the Contract, amounting to €7,050.
10. In addition, the Claimant argued that it is entitled to €1,000,000 as compensation for the
Respondent’s termination of the Contract without just cause, pursuant to the penal clause
provided in article 8 of the Contract.
b. Position of the Respondent
11. According to the Respondent, the claim should be rejected as the Contract is not signed by
anyone from the Club, which confirms that the Player was not hired on 25 July 2022.
12. The Respondent argued that the Claimant was never part of the Club’s squad, but only did
a few trials. In this regard, the Respondent indicated that it was agreed with the Player that
she would have a short trial while the parties tried to finalize the final version of the
Contract, and that a draft had been sent to the Player, with conditions that had not been
accepted at the time. Therefore, according to the Respondent, it withdrew the contractual
offer due to disagreements over the conditions, which led the Claimant to leave the Club’s
facilities on 15 August 2022.
13. In addition, the Respondent stated that the Claimant’s notice of default dated 28 February
2023 did not attract its attention as no binding Contract had been signed between the
parties.
14. Considering the foregoing, the Respondent argued that it had acted in good faith, by
inviting the Claimant to travel to Portugal and assuming all expenses but is obviously
released from any obligation since no agreement had been reached on the terms of the
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REF. FPSD-14637
Contract, no document had been signed, and the Player was not registered with the
Portuguese Football Federation.
c. Replica of the Claimant
15. The Claimant failed to provide its comments on the position of the Respondent within the
deadline granted by the FIFA administration.
d. Unsolicited correspondence from the parties
16. After the closure of the submission phase of the procedure, the parties sent unsolicited
correspondence, which must be disregarded according to art. 23 par.1 of the Procedural
Rules Governing the Football Tribunal (hereinafter: the Procedural Rules).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter: the 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 15 May 2024 and submitted for decision on
03 October 2024. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules, the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
18. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 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 Portuguese club.
19. 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 (June 2024 edition), and
considering that the present claim was lodged on 15 May 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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REF. FPSD-14637
b. Burden of proof
20. 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
21. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
22. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the existence of a contractual relationship.
23. On one hand, the Chamber recalled the position of the Claimant, namely that the
Respondent terminated the Contract without just cause and that it is entitled to
outstanding remuneration and compensation.
24. On the other hand, the Chamber considered the position of the Respondent, who
acknowledged that the Player was trialling with the Club in Portugal but argued that the
Contract was only a draft for the purposes of the negotiations which ended up being
unsuccessful, as reflected by the fact that the Contract is not signed by the Club.
25. In addition, the Chamber took note that the Claimant failed to provide its comments on the
position of the Respondent within the deadline granted by the FIFA administration.
Therefore, the Chamber concluded that, in this way, the Claimant had renounced to its
right of defence and, thus, it had not formally contested the position of the Respondent.
26. In this context, the Chamber acknowledged that its task was to determine whether the
parties concluded a valid and binding employment contract.
27. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence
which dictates that, in order for an employment contract to be considered as valid and
binding, apart from the consent of both the employer and the employee (usually
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REF. FPSD-14637
manifested by the signature to the relevant agreement), it should contain the essentialia
negotii of an employment contract, such as the name of the parties to the contract and
their role, the duration of the employment relationship and the remuneration payable by
the employer to the employee.
28. Equally, the Chamber recalled that the signature of a contract by both parties is an
important element in order to establish an employment relationship, essentially because
this is the easiest way to demonstrate mutual consent. However, having an unsigned
specimen of an employment contract does not automatically mean there is no
employment relationship between the parties, because this shall be established on a caseby-case basis and considering the entirety of the facts of the case and the elements at the
disposal of the deciding authority.
29. Lastly, the Chamber recalled the content of 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. With this in mind, the Chamber deemed that it was up to the Claimant to
prove that the employment relationship, on the basis of which it claimed outstanding
remuneration and compensation for breach of the Contract from the Respondent, indeed
existed.
30. In casu, after a thorough analysis of the documentation on file, the Chamber highlighted
that the Claimant failed to provide sufficient evidence to establish a valid and binding
employment relationship with the Respondent. More specifically, the Chamber
underscored that the Claimant did not present conclusive evidence regarding the factual
framework involving the negotiations between the parties prior to signing the Contract. In
fact, the Chamber noted the lack of evidence on file of how the Claimant had received the
Contract from the Respondent, and that the Club’s correspondence to the Portuguese
immigration authority does not demonstrate the conclusion of the Contract, but rather the
Club’s administrative formalities should it wish to hire the Player.
31. In addition, by looking closely at the behaviour of the parties and by duly weighing the
evidence on file, it appeared to the Chamber that neither of the parties can be held
responsible for the non-conclusion of the contractual relationship as neither of them
showed interest therein. In fact, the evidence on file revealed to the Chamber that there
was no communication between the parties between the Player’s signing of the Contract
on 25 July 2022 and the Player’s default notice dated 28 February 2023. In this regard, the
Chamber understood that the Player sent the default notice to the Respondent when she
had already signed the New Contract.
32. In light of the above and considering that the Contract only bore the Player’s signature, the
Chamber decided that no valid and binding employment contract had been concluded
between the parties and the Claimant’s claim had no legal basis.
33. For the foregoing reasons, the Chamber decided that the claim shall be rejected.
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REF. FPSD-14637
d. Costs
34. 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.
35. 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.
36. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14637
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Julia Elias Macena, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14637
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:
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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