Labour Disputes
Texto da decisão
REF FPSD-2334
Decision of the
Dispute Resolution Chamber
passed on 19 August 2021
regarding an employment-related dispute concerning the player Youssef Mallat
COMPOSITION:
Clifford J. Hendel (USA &France)
Roy Vermeer (The Netherlands)
Pavel Pivovarov (Russia)
CLAIMANT:
Youssef Mallat, Tunisia
Represented by Amir Hizem
RESPONDENT:
Leixoes SC, Portugal
Represented by Andrea Macedo
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I.
FACTS OF THE CASE
1. On 31 January 2019, the Tunisian player, Youssef Mallat (hereinafter: Claimant), and the
Portuguese club, Leixoes SC (hereinafter: Respondent) signed an employment contract valid
as from the date of signing until 30 June 2021.
2.
In accordance with article 3 of the employment contract, the Respondent undertook to pay
to the Claimant inter alia as follows:
For the 2018/2019 season
The total amount of EUR 4,200, payable in 5 monthly instalments in the amount of EUR 840
as from 10 February 2019.
For the 2019/2020 season
The total amount of EUR 14,700 payable in 10 monthly instalments of EUR 1,470.
For the 2020/21 season
The total amount of EUR 14,700 payable I 10 monthly instalments of EUR 1,470.
3. According to article 14 of the contract, "In order to resolve conflicts between them, the parties
agree to submit the respective solution to the jurisdiction of the Arbitral Commission
established under the terms of article 55 of the collective employment contract for professional
players and/or the competent court for the purpose”.
4. On 21 August 2020, a Special Revitalization Procedure (hereinafter: “PER") was declared in
regards to the Respondent before a commercial court in Portugal. The special revitalization
procedure is intended to enable the party which is proven to be in a difficult economic situation
or in a situation of insolvency merely imminent, but which is still capable of recovery, to
negotiate with its creditors in order to conclude with these agreements leading to its
revitalization.
5. On 21 September 2020, the Claimant put the Respondent in default, stating that the
Respondent had failed to pay the salaries for February to June 2019 (EUR 4,200) and
September 2019 to June 2020 (EUR 14,700), for a total amount of EUR 18,900 and granted
the Respondent 15 days to comply with its financial obligations and also requested the
Respondent to send him his visa so he could travel to Portugal for his contractual duties,
however to no avail.
6. On 19 October 2020, the Claimant sent a notification of contract termination to the
Respondent stating that he sent a default notice to the Respondent on 21 September 2020,
requesting that the Respondent pays his outstanding salary in the amount of EUR 18,900 and
to send him a visa so that he can travel to Portugal within 15 days, to no avail.
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7. On the same day, the Respondent replied to the Claimant’s email and stated that his
unjustified absence for more than 10 days in a row, constitutes abandonment of his work and
functions as per the provisions of article 403 of the Portuguese Labour Code and as a result,
the contract was considered as terminated.
8. In the same letter, the Respondent informed the Claimant that a special revitalization process
in relation to it is underway.
II.
PROCEEDINGS BEFORE FIFA
9. On 20 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
10. According to the Claimant, since the signature of the contract, he did receive any salary from
the Respondent and it remained indebted to him for the total amount of EUR 18,900 as
follows:
- the salaries of February, March, April, May and June 2019 for the total amount of EUR
4,200;
- the salaries from September 2019 to June 2020 for the total amount of EUR 14,700;
11. According to the Claimant, despite sending a default notice on 21 September 2020, the
Respondent still failed to respect its contractual obligations.
12. The Claimant added that not only did the Respondent fail to respect its financial obligations,
it also failed to regularize his visa situation and did not grant him either a residence card or a
work permit, which obliged him to leave the European territory.
13. As a result, the Claimant submitted that on 21 September 2020, he unilaterally terminated his
contract with just cause.
14. In view of the above, the Claimant requested that the Respondent be ordered to pay his
outstanding remuneration and compensation for breach of contract.
15. The requests for relief of the Claimant, were as follows:
EUR 18,900 as outstanding remuneration plus 5% interest p.a. as of the date of the
default notice (21 September 2020), broken down as:
-EUR 4,200 as outstanding salary for the 2018/2019 season (EUR 840 x5);
-EUR 14,700 as outstanding salary for the 2019/2020 season (EUR 1,470 x10);
EUR 14,700 as compensation for breach of contract.
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b.
Position of the Respondent
16. The Respondent in its reply contested FIFA’s competence to adjudicate on this claim.
17. According to the Respondent, in accordance with article 14 of the contract (cf. point 3 above),
it is evident and not subject to discussion of any kind that the parties, in accordance with
Article 22 of the FIFA RSTP, freely and expressly agreed on submitting the disputes arising from
the contract to a competent Portuguese Arbitral Commission or to a Portuguese Court.
18. Therefore, according to the Respondent, FIFA bodies are not competent to adjudicate on
disputes arising from the contract because Portuguese Arbitral Commission or Portuguese
Judicial Courts are competent to adjudicate on said disputes by express choice of the parties.
19. The Respondent added that it is of paramount importance to also note that the reference
made to Portuguese Arbitral Commission cannot be understood as a reference to an
independent arbitration tribunal guaranteeing fair proceedings at national level as provided in
Art. 22 b) of the FIFA RSTP in force because the nature of these Portuguese Arbitral
Commissions are of a civil court of employment-related dispute, which is different to
arbitration.
20. The Respondent also made reference to the national ordinary labour law in Portugal and stated
that in this sense, the Circular Letter No. 1010 issued by FIFA on 20 December 2005, which
contains the criteria of what FIFA considers an independent and duly constituted arbitration
tribunal for the purposes of, infer alia, article 22 b) of the FIFA RSTP, cannot be applied to the
case at hand.
21. In addition, the Respondent submitted that the well-established jurisprudence of CAS has
confirmed that parties can opt out of FIFA jurisdiction in favour of national courts, as it is the
present case.
22. In view of all the above, given the express choice of forum made by the parties in the contract,
the Respondent concluded that FIFA lacks jurisdiction to adjudicate on this case and
consequently, the claim lodged by the Claimant shall be deemed inadmissible.
23. In continuation, the Respondent wished to submit an alternative position in the event that
FIFA decides that it is competent to hear the claim and proceeded to deny the Claimant’s
request for outstanding wages, stating that there are no overdue salaries to be paid.
24. According to the Respondent, from the start of the 2019/2020 pre-season, the Claimant did
not attend both training and scheduled games and gave no justification.
25. The Respondent added that it did not know the Claimant’s whereabouts and that this was
communicated to him on 19 October 2020. Without justification and in total absence of any
news, the Respondent submitted that it was forced to declare the termination of the contract.
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26. The Respondent added that according to the Portuguese labour legislation (article 403.0 of
the Labour Code), the absence for more than 10 working days in a row and if it is not verified,
by any means, the intention of the worker to resume the exercise of his functions, that
configures a situation of abandonment of the workplace.
27. Additionally, according to the Respondent, on 20 November 2020, in the sequence of an
exchange of messages on WhatsApp between the Claimant and the Respondent's President
at that time (Mr Paulo Lopo), the Claimant accepted to sign a declaration which stated that
he had no receivables or claim against the Respondent. As a result of the above, the
Respondent submitted that the Claimant has no basis for this claim and it is made in bad faith
and must therefore be rejected.
28. In continuation, the Respondent submitted that the COVID-19 pandemic greatly affected it
financial situation and stated that due to the pandemic situation, a State of Emergency in
Portugal was declared at the beginning of March 2020 and as well as it was again decreed at
the present date by the law, DL n. 0 8/2020, of 8th November - the establishments and facilities
were forced to close, namely all sports, football included, professional and amateur clubs.
29. The Respondent submitted that in August 2020, it launched a legal procedure called PER
(special plan for the recovery of companies) as it is under great financial strain and cannot
resolve its debts.
30. The Respondent added that it appealed on 21 August 2020 to the PER before the Court of
the District of Porto, Santo Tirso Trade Court, Judge 5, a procedure that stands under the
number 2079/20.0TSSTS. According to the Respondent, this is a legal procedure that is
regulated by Portuguese Law, in Chapter II of the Code of Insolvency and Recovery of
Companies, the so called "CIRE".
31. The Respondent stated that it is obliged to comply with the decision that emanated from a
sovereignty Judicial Court of Law of the Portuguese State and cannot benefit creditors at the
expense of others, since such judicial and legal decision has mandatory and in force.
32. The Respondent added that it informed the Claimant of this legal procedure, signifying that
the Claimant has to be paid under the terms and conditions that are approved in the said PER
as the Respondent must comply with the conditions in relation to all creditors, including the
Claimant.
33. According to the Respondent, in addition to Portuguese legislation and in particular the CIRE
prohibiting a creditor from benefitting to the detriment of others, the principle of equality
between creditors applies in the present case, for it is disposed at article 194 paragraph 1 of
the CIRE, « The insolvency plan complies with the principle of equality of insolvency creditors
without prejudice to differentiations justified on objective grounds».
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34. In view of the foregoing, the Respondent submitted that it may not pay the Claimant under
conditions other than those set out in the PER Payment Plan, otherwise it is committing a crime
in view of Portuguese legislation. As a result, the Respondent reiterated that it is under judicial
protection and is obliged to comply with payment agreements that are to be approved under
the PER.
35. According to the Respondent, the FIFA Regulations allow clubs who have demonstrated proof
of financial difficulties to be allowed to resolve debts under special mitigating circumstances,
such as those granted under the PER in the current case.
36. In conclusion, the Respondent submits that FIFA has no jurisdiction to hear the current claim
in view of the express choice of forum made by the parties in favour of the Portuguese Courts
in the Employment Contract and that in the unlikely event that FIFA decides that it is
competent, then the Respondent requests that the case be closed, since the Claimant has no
grounds and that the case should be excluded under the terms of article 24bis,3 (b) of the
FIFA Regulations and the PER issued by the Portuguese judicial court.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
37. 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 April 2021 and submitted for decision
on .Taking into account the wording of art. 21 of the 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.
38. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b)
of the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between a Tunisian player
and a Portuguese club.
39. However, the DRC acknowledged that the Respondent contested the competence of FIFA’s
deciding bodies on the basis of art. 14 of the contract highlighting that given the express
choice of forum made by the parties in the contract, FIFA lacks jurisdiction to adjudicate on
this case and consequently, the claim lodged by the Claimant shall be deemed inadmissible.
40. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players it is competent to deal with a matter
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such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players and clubs, has
been established at national level within the framework of the Association and/or a collective
bargaining agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to FIFA Circular no.
1010 dated 20 December 2005. In this regard, the Chamber further referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
41. After a careful analysis of article 14 of the contract, the Chamber noted that the Respondent
makes reference to “(…) the jurisdiction of the Arbitral Commission established under the
terms of article 55 of the collective employment contract for professional players and/or the
competent court for the purpose”. In this regard, the Chamber noted that the Respondent did
not submit a copy of the collective employment contract referred to and that said clause was
not specific as to what court the parties would have recourse to. As a result, the Chamber
deemed that it was not in a position to determine whether such Commission would respect
or meet the principles envisioned under FIFA Circular 1010 and the FIFA Regulations.
42. As a result, the Chamber concluded that FIFA is competent to hear the current claim and that
the argumentation of the Respondent alleging the contrary would need to be rejected.
43. 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 Player (edition February 2021), and
considering that the present claim was lodged on 20 April 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
44. The Chamber 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 stressed the wording of art.
12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties.
45. In this respect, the Chamber 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
46. The competence of the DRC and the applicable regulations having been established, the DRC
entered into the merits of the dispute. In this respect, the DRC started by acknowledging all
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the above-mentioned facts as well as the arguments and the documentation on file. However,
the DRC 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
47. The foregoing having been established, the Chamber moved to the substance of the matter,
and noted that based on the documentation on file and the submissions of the parties, the
contract appears to have never been executed and/or performed by either party to the
contract. The members of the Chamber were of the firm opinion that – given the
circumstances described in the case file by the parties – both parties apparently departed from
the initial terms of the contract.
48. The Chamber further noted that the Respondent failed to make payments to the Claimant
and to send him his work visa, however that on the other hand, the Claimant waited almost
20 months, a considerable period, to put the Respondent in default of payment. These
actions, according to the members of the Chamber showed a clear lack of interest of both
parties to execute or perform their obligations under the contract.
49. With the above in mind, the Chamber concluded that there was no outstanding remuneration
or compensation due to the Claimant..
50. The DRC concluded its deliberations by concluding that the claim of the Claimant is admissible,
however has to be rejected.
d.
Costs
51. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and
a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
52. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par.
4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
53. 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, Youssef Mallat, is admissible.
2.
The claim of the Claimant is rejected.
3.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
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:
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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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