Labour Disputes
Texto da decisão
REF FPSD-3692
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Kaique
Mafaldo Ferraz
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
AWAD AL-THEBITY Khalid (Saudi Arabia), member
SARTORI Stefano (Italy), member
CLAIMANT:
Kaique Mafaldo Ferraz, Brazil
Represented by CSMB Advogados
RESPONDENT:
Millonarios FC, Colombia
Represented by Andrés Camilo Murcia Vargas & Roberto Jaime Castro Sabbagh
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REF FPSD-3692
I.
Facts of the case
1.
On 25 August 2020, the player Mr. Kaique Ferraz Mafaldo (hereinafter: the Claimant or the
Player), the Colombian club Millonarios (hereinafter: the Respondent or the Club) and the
Brazilian club Sociedade Esportiva Palmeiras (hereinafter: Palmeiras) entered into a Loan
Agreement valid from 1 September 2020 until 30 June 2021 (hereinafter: the Loan
Agreement).
2.
Based on clause 4.1 of the Loan Agreement, the Respondent would be solely and fully
responsible for any remuneration due to the Player.
3.
The Claimant and the Respondent concluded an Employment Agreement valid from 1
September 2020 until 30 June 2021 (hereinafter: the Contract) which provided a monthly
salary of Colombian Pesos (“COP”) 11,430,000.
4.
On 23 October 2020, the Claimant and the Respondent signed a Termination Agreement
(hereinafter: the Termination Agreement).
5.
The Termination Agreement includes inter alia the following provisions:
“That the parties, decided to terminate, with effectiveness from the work day of October 25,
2020 by mutual agreement, the Work Contract that had occurred between them which
comprehended the whole contractual link from the first (1st) of the month of September of
two thousand twenty (2020). (…)
6.- That the Worker expresses that for the present Transaction Agreement he has acted freely
and per his own will.
SEVENTH. The former worker, in virtue of this contract, expressly ratifies that the leave
agreement by mutual agreement with effects starting off from October twenty-five (25),
2020, is not due to a unilateral decision of Azul & Blanco Millonarios F.C. S.A., but instead it
is due to a free and voluntary agreement between the parties,
NINTH. Due to all the above, the former employee reiterates and declares on behalf of Azul
& Blanco Millonarios F.C. S.A., to be up to date for every concept of labor or work related,
particularly, for the concepts of wages (…)”
6.
On 26 September 2020, the Player travelled to Bogota/Colombia.
7.
On 13 October 2020, the Player received the total amount of COP 8,709,910.
8.
On 14 October 2020, Palmeiras sent a notice (“Palmeiras First Notice”) regarding the delay
of payment
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9.
On 22 October 22, the Respondent answered (“Millonarios First Response”) informing that
the Player’s medical examinations would have detected a “severe heart failure with extreme
medical restriction for intense physical exercise, for an initial period of six months” and
enclosed the above-mentioned examination results.
10. On 25 October 2020 the Player returned to Brazil with a ticket paid by the Respondent.
11. On 18 November 2020, Palmeiras sent another Notice (“Palmeiras Second Notice”) stating
that not only the Respondent was already in default even before the Player was submitted to
medical examination.
12. On 11 December 2020, the Player underwent new medical examinations in São Paulo.
13. On 13 January 2021, Palmeiras sent another notice (“Palmeiras Third Notice”) to the
Respondent by means of which informed MIllonarios that the Player was “in perfect health
conditions and that the Player should be reintegrated to the Respondent ´s squad”.
14. On 24 September 2021, the Player was temporarily transferred from Palmeiras to Brazilian
club Ibrachina FC.
II. Proceedings before FIFA
15. On 16 September 2021, 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
16. According to the Claimant, he was coerced and forced to sign the Termination Agreement
under the threat that if he did not sign it, the Respondent would not pay any amount to the
Player and he would have to stay in Colombia without performing his activities of a
professional football player profession and without receiving his wages.
17. In the Claimant’s view, it is noteworthy that the employment contract of the Player was
terminated because of a medical examination, as stated by the Respondent in their First
Response. Besides, Palmeiras also assured that the Claimant was and is in perfect physical
and medical conditions before, and after the temporary transfer was concluded. For this
reason, the Respondent gave cause for an unlawful and unfair termination of a contract, in
other words, a termination without just cause.
18. The Claimant argues that it is the new club the responsibility to obtain information and to
know about the particularities of the athletes before signing the agreement, and that it was
responsibility of the Respondent to take care of the athlete's health.
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19. The Claimant further argues that the Respondent could not have conditioned the sign of the
loan agreement and the employment agreement based on a medical examination and, more
than that, could not have terminated the employment contract without grounds and just
cause, coercing the athlete to sign the termination.
20. The Claimant adduces that if the agreement had not been prematurely terminated, he would
have received at least the value of his salary during the agreement, that is COP 114,300,000,
allegedly equivalent to USD 29.837,49.
21. The Claimant reiterates that he was coerced to sign the Termination Agreement and during
his time in Colombia the Claimant was never authorized by the Respondent to join the team´s
training sessions.
22. The Claimant states that he was dismissed for “severe heart failure with extreme medical
restriction for intense physical exercise, for an initial period of six months, causing fear to the
player and messing with his psychological who, besides being in an unknown country, could
stay, at least, a long time without playing football, without performing his activities and far
from his country and family.”
23. The Claimant argues that the DRC shall declare the invalidity of the Termination Agreement
and order the Respondent to pay to the Claimant its total remuneration of USD 29.569,49.
24. The Claimant filed the following requests for relief:
(i) To enforce FIFA’s jurisdiction as competent to rule on the matter;
(ii) To rule the invalidity of the Termination Agreement;
(iii) To rule that Millonarios shall pay to the Player remuneration of USD 29.569,49 (twenty
nine thousand and five hundred sixty nine and forty nine American Dollars), equivalent to 10
(ten) wages instalments of the Employment Agreement concerning the months of September
2020 to June 2021, accrued by 5% (five per cent) annual interest on the amount due to the
Claimant from 22 October 2020 until the date of actual payment also accrued by a compatible
fine arbitrate by FIFA DRC despite the unacceptable conduct of Millonarios;
(iv) To arbitrate a fine that is compatible and reasonable with the inadmissible conduct of
Millonarios;
(v) To rule that Millonarios present and prove the total amount spent with the Player during
the 20th and 21st Seasons in order to enable the calculation of the sum due to the Player;
(vi) To calculate and compute the amount corresponding to the punitive damages and moral
coercion suffered by the Player; and
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(vii) In any event, to order the Club to cover all costs of the proceedings and to bear all the
legal fees and costs incurred by the Claimant in connection with present matter.
b. Position of the Respondent
25. According to the Respondent, it has paid and “recognized absolutely all the social rights and
entitlements of the Claimant”.
26. The Respondent argues that “the on-line practice sessions were intended to keep-up in good
shape and fitness the player, as a gesture of kindness with whom was expected would
become part of the crew as soon as the medical/clinical results were confirmed”.
27. Regarding the termination of the Contract, the Respondent adduces that the Contract ended
“by mutual agreement between the parties and as a result of what the laws of the land and
the economy require, MILLONARIOS FC proceeded with the payment of the liquidation of the
work contract attending the agreed on conditions”.
28. The Respondent further states that the Player “expressed his consent by signing the
aforementioned documents, but he also placed or inserted an implicit consent by remaining
silent and not filing any claim whatsoever at the time the work contract was rescinded as
consented to”.
29. Moreover, the Respondent argues that the Claimant “shall have to demonstrate the existence
of coercion and the abusive relationship that they say exists”.
30. The Respondent filed the following requests for relief:
a. To accept the jurisdiction of the FIFA, as the competent one to attend this labor type of
matter.
b. It wants it to express itself about the validity of the termination agreement subscribed by
the parties.
c. It opposes any and all payment of money be made to Player.
d. It opposes paying out any penalty or fine, given the fact that the Club has strictly followed
the rules and laws in this sense.
e. It opposes the filing of expense and costs accounts, since it considers it to be
inappropriate.
f. It opposes paying out any sum whatsoever for the concept of damages and moral
constraint
g. It opposes paying any sum whatsoever in what refers to legal fees and costs.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 16 September 2021 and submitted for
decision on 16 February 2022. 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.
32. 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 (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 Colombian club.
33. 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 (August 2021 edition), and
considering that the present claim was lodged on 16 September 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
34. 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.
c. Merits of the dispute
35. 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.
i. Main legal discussion and considerations
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36. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that it is undisputed that the parties entered into the Contract and
that this contract was terminated by the parties by means of the Termination Agreement.
However, the Claimant has herein challenged the validity of the said Termination Agreement.
37. In this context, the Chamber acknowledged that it its task was to ascertain whether the
Termination Agreement shall be deemed valid and enforceable between the parties and the
consequences arising thereof.
38. Having established the above, the DRC turned to the Claimant’s allegations that the
Termination Agreement was signed under coercion or duress and observed that the Claimant
had not submitted any supporting evidence of such duress.
39. Furthermore, the DRC observed the conduct of the Claimant and noted that, unlike Palmeiras
who sent several notices, the Claimant had never complained in any way to the Respondent
regarding the signature of the Termination Agreement until the filing of the claim at hand,
approximately 11 months after the signature of the said agreement.
40. As a consequence, the Chamber made reference to art. 13. par 5. of the Procedural Rules
and found by majority that the Claimant had not been able to prove the existence of duress
and therefore, based on the principle of pacta sunt servanda, the Termination Agreement
shall be deemed valid and enforceable between the parties. The Chamber gave particular
weight to the fact that the Claimant did not challenge or complained about the alleged duress
for a period of 11 months, which entailed that he had freely and voluntarily signed the
Termination Agreement.
41. Based on the above, the Chamber by majority deemed that the claim shall be rejected.
d. Costs
42. 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.
43. 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.
44. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kaique Mafaldo Ferraz, is rejected.
2.
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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