Labour Disputes
Texto da decisão
REF FPSD-3610
Decision of the
Dispute Resolution Chamber
passed on 19 May 2022
regarding an employment-related dispute concerning the player Guilherme Mantuan
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Stefano Sartori (Italy), member
Laurel Vaurasi (Fiji), member
CLAIMANT / COUNTER-RESPONDENT:
Guilherme Mantuan, Italy
Represented by Filipe Miranda
RESPONDENT / COUNTER-CLAIMANT:
Gil Vicente FC, Portugal
Represented by Isabel Carneiro Bastos
INTERVENING PARTY:
Botafogo, Brazil
Represented by Isabel Carneiro Bastos
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REF FPSD-3610
I.
Facts of the case
1.
On 27 August 2020, the Italian player, Guilherme Mantuan (hereinafter: player or
Claimant/Counter-Respondent) and the Portuguese club, Gil Vicente FC (hereinafter: club or
Respondent/Counter-Claimant) concluded an employment contract (hereinafter: contract) valid
as from the date of signature until 30 June 2023.
2.
According to the contract, the club, inter alia, undertook to pay the player the following monies:
- EUR 9,330 gross as monthly salary during the season 2020/2021; payable on the 5th day of the
following month
- EUR 12,180 gross as monthly salary during the season 2021/2022; payable on the 5 th day of
the following month
- EUR 13,049.17 gross as monthly salary during the season 2022/2023, payable on the 5th day of
the following month;
- EUR 350 as housing allowance per month.
3.
Art. 14 of the contract establishes: “The [club] and the Player agree, as a revocation clause of the
present contract, for the termination of the employment contract before its expiry, to be paid to
the [club] by the Player or by any Sports Company or Sporting Limited Company, national or
foreign, or by any third party entity, the amount of EUR 7,000,000.00”.
4.
Art. 15 of the contract states: “Cases and situations not provided for in this contract are governed
by the [CBA] granted between the Professional Football Players Union and the Portuguese
Professional Football League”.
5.
The Collective Labour Agreement of the League (Exhibit 11 of the claim; hereinafter: CBA) states:
- “Art. 2.1. The present CLA shall apply to professional footballers who, by virtue of a sports
employment contract, after the necessary technical-professional training, undertake, for
payment, to play football as an exclusive or main exclusive or principal profession, under the
authority and direction of a club or sports company.”
- “Art. 12 Duties of the club: The club or sports association shall:
a) Treat and respect the player as its collaborator;
[…]
c) To provide them with good working conditions, ensuring the technical and human
resources necessary for the good performance of their functions
[…]
f) Comply with all other obligations arising from the sports employment contract and the rules
that govern it. and the norms that govern it, as well as the rules of discipline and sporting
ethics.”
- “Art. 14 Guarantees for the player: The employer is forbidden:
a) Opposing in any manner whatsoever the player's exercise of his rights, as well as
terminating his contract or imposing sanctions on him because of such exercise
b) Putting pressure on the player to act in order to influence his working conditions
unfavourably or on his teammates;
c) […]
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-
-
d) Affect the conditions under which work is performed, namely by preventing the worker
from working as part of the normal work group, except in special situations for medical or
technical reasons.”
“Art. 39 Causes of termination of the sports work contract.
A sports work contract may terminate by
[…]
d) Termination with just cause by initiative of the player.”
“Art. 43 Just Cause for Termination by Initiative of the Player
Par 1: The following, among others, shall constitute just cause for termination of the contract
on the initiative of the player, with the right to of the player, with the right to compensation,
shall constitute just cause for termination at the initiative of the player, with the right to
compensation, amongst others, the following conduct imputable to the
[…]
c) Violation of the player's guarantees in the cases and under the terms foreseen in article 12
[…]
e) Offence to the physical integrity, honour or dignity of the player committed by the
employer or his legitimate representatives;
f) Intentional conduct of the employer in such a manner as to cause the worker to
terminate the contract. termination of the contract.”
6.
On 15 July 2021, the player sent a letter to the club protesting against the club’s decision to ban
him from first team training and requesting to reinstate him in the professional team. He pointed
out that he was prevented to perform his work in accordance with the contract.
7.
On 27 July 2021, the player again sent a letter to the club protesting against the club’s decision to
ban him from first team training and requesting to reinstate him in the professional team. He
pointed out that he was prevented to perform his work in accordance with the contract.
8.
On 5 August 2021, the player terminated the contract since the club prevented him from
performing his work and did not indicate any date as of when he would be able to resume training
with the professional team.
9.
On 10 December 2021, the player signed a new employment contract with the Brazilain club,
Botafogo, valid as of the date of signature until 10 October 2022, including a monthly
remuneration of Brazilian Real (BRL) 7,800 (approx. EUR 1,500).
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II. Proceedings before FIFA
10. On 8 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
11. In his claim, the player requested payment of the following monies:
- EUR 350 as “house rent” for June 2021 plus 5% interest p.a. as of the due date;
- EUR 12,180 net as salary for July 2021 plus 5% interest p.a. as of the due date;
- EUR 298,970 net as compensation for breach of contract, corresponding to the residual value
of the contract (including house allowances), plus 5% interest p.a. as of 17 August 2021.
12. In this regard, the player held that he had just cause to terminate the contract since the club “has
not granted to the player his right to effective occupation”, as he was prevented to take part in
training with the professional team.
13. The player argued that he had to spend “more than a month, in a period between June and July
2021, at home” due to an “order” of the club, while he was not allowed to train nor play with the
club. The player also held that the club did not give him a date to report back to work.
14. Moreover, the Claimant alleged that his contractually guaranteed housing allowance was “taken
away”.
15. Subsequently, the Claimant held that he was ordered to join the training of the under-23 Team
on 15 July 2021, but that no team training took effectively place. According to the player, as of 26
July 2021, he was able to train with the U23-Team, where he also took part in at least one match.
16. Consequently, since his requests to be reinstated with the professional team remained
unanswered, the player deemed to have just cause to terminate the contract on 5 August 2021.
17. In his termination letter, the player held that the club breached the contract and he referred to
art. 12a),c),f), 14a),b),d), 39 d) and 43 par. 1 c),e) and f) of the CBA.
b. Position of the Respondent / Counterclaim
18. In its reply, the club rejected the player’s claim and lodged a counterclaim against him, requesting
the following payment:
- EUR 7,000,000 as compensation for breach of contract based on art. 14 of the contract;
- Alternatively: EUR 295,815.95 as compensation for breach of contract, corresponding to the
residual value of the contract plus fees and expenses.
The Respondent requested payment of interest of 5% p.a. as of 5 August 2021.
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19. The club rejected the player’s arguments and argued that he terminated the contract without just
cause.
20. First of all, the Respondent strongly disputed the allegations that it prevented the player from
training, “ordered” him to stay at home or that it prevented him from exercising his occupation.
In this regard, the club argued that all the staff of the club were on holidays after 19 May 2021
until the “beginning of July” 2021. According to the club, on 22 June 2021, the sporting director
and the player agreed that he would temporarily join the U-23 team in July 2021.
21. The club confirmed that the training of the U-23 Team on 26 July 2021 did not take place as
planned as the team had to be restructured. Subsequently, the player was placed in a different
youth team on a temporary basis. With this team he had the possibility to train and to play, as
confirmed by the player himself. Such temporary measure was taken as the player had various
injuries and was not yet fully recovered.
22. In this context, the club pointed out that the player had no contractual right to play exclusively in
the first team of the club.
23. The club held that it was surprised by the Claimant’s termination, since his placement with the
youth team was temporary and only happened for less than a month (12 July 2021 until 5 August
2021), while his salary was paid in accordance with the contract.
24. In this regard, the club held that the termination was without just cause as a termination of a
contract has to be ultima ratio, which is not the case in the present dispute as more lenient
measures could have been taken by the player.
25. Regarding the claimed housing allowance, the club explained that it deducted it since it was
wrongly paid in September 2020, a period where the player still stayed in a hotel at the club’s
expense.
26. Furthermore, regarding the claimed outstanding salary ,the club held that it remitted the
following payments to the player:
- EUR 7,440.34 as salary for July 2021 on 6 August 2021;
- EUR 1,609.51 as salary for August 2021 (pro-rata for 5 days) on 7 September 2021.
27. Regarding the calculation of compensation due to the club, the Respondent held that art. 14 of
the contract establishes the amount of EUR 7,000,000.
28. Alternatively, the club held being entitled the amount of EUR 295,815.95, as follows:
- EUR 133,980 corresponding to the residual salaries for the season 2021/2022;
- EUR 156,590 corresponding to the residual salaries for the season 2022/2023;
- EUR 5,245.95 as expenses for the player’s registration.
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c. Position of the player to the counterclaim
29. In reply to the club’s claim, the player refuted the Respondent’s allegations and requested to
dismiss the counterclaim.
30. The player insisted on the club’s breach of contract as brought forward in the claim, especially
that his right for “effective occupation” was violated, due to his exclusion from the first team.
31. The player repeated his allegations that he had to spend “more than a month, in a period between
June and July 2021, at home” due to an “order” of the club, while he was not allowed to train nor
play with the club, without reacting to the club’s explanations thereto.
32. Moreover, the player argued that the club informed his agent that it “wasn’t interested in the
future footballing activity of the player”.
33. In this regard, the player brought forward that “it is inadmissible for a club that doesn’t want to
pay the costs of a termination of a contract without just cause before its expiry date, to keep a
player tied until the end of the contract to a secondary team.”
34. The player agreed that the contract does not mention a right to be in the first team, but he argued
that this was implicitly agreed when the contract was concluded.
35. Moreover, the player confirmed having had injuries in the previous season, but he argued that he
was fully recovered in the beginning of the season 2021/2022.
36. As a conclusion, the player maintained that the club did not act in good faith and he terminated
the contract with just cause as an ultima ratio.
37. Additionally, the player held that art. 14 of the contract is no compensation clause, and therefore
not applicable to the matter in question.
38. Furthermore, he held that such clause was “disproportionate, excessive and illegal”.
d. Position of the intervening party
39. Botafogo failed to submit its comments, even though it was requested to do so.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
40. 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 08 September 2021 and submitted for decision on
19 May 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.
41. 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 (March 2022), the Dispute Resolution Chamber is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Italian player and a Portuguese club.
42. 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 (March 2022), and considering that the present
claim was lodged on 08 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
43. 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
44. 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 abovementioned 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.
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i. Main legal discussion and considerations
45. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties dispute the justice of the early termination of the contract
by the Claimant.
46. In this context, the Chamber acknowledged that its task was to determine as to whether the
contract was terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
47. After having requested twice to be reinstated in the first team, the player terminated the contract,
since the club prevented him from performing his work and failed to indicate any date as of when
he would be able to resume training with the professional team. The members of the Chamber
noted, that the player argued that he had no other choice than to terminate the contract, as he
was prevented from working.
48. The club on the other hand held that he was temporarily put in a youth team in order to prepare
him again for the first team. Therefore, the club held that the player had no just cause to terminate
the contract and lodged a counterclaim against the player.
49. In this context, the DRC referred to its jurisprudence that only a breach or misconduct which is of
a certain severity justifies the termination of a contract. In other words, only when there are
objective criteria which do not reasonably permit to expect a continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if there are
more lenient measures which can be taken, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can always only be
an ultima ratio.
50. In this context, the Chamber started to analyse the concrete circumstances of the player’s
termination on 5 August 2021. The members of the Chamber focussed on the time in which the
player was effectively prevented to train and noted that no order from the club was issued in this
regard. In fact, the DRC established that after a long holiday period, the player could not train for
at least 3 full weeks, i.e. “beginning of July” until 26 July 2021, before the training with the youth
team restarted. The members of the Chamber wished to point out that the training during the
summer period is important for a football player in order to prepare for the season.
51. Moreover, the Chamber referred to the CBA applicable in the case at hand, which established that
the player has a right to be part of the “normal working group”, which is in the DRC’s eyes the first
team and not a youth team.
52. Furthermore, the DRC noted the player’s requests be reinstated in the first team or to be given
an indication when such measure would happen, which was not answered by the club.
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53. Taking into account the requests of the player, the provision in the CBA and the fact that the
player was prevented to train for more than 3 weeks and that he was subsequently put in the
club’s youth team without any perspective for the upcoming season, the DRC established that the
player had just cause to terminate the contract on 5 August 2021. The total of the player’s
exclusion from the first team was more than a month, without any perspective to be changed in
the foreseeable future and therefore qualifies as a breach of a certain severity.
54. Consequently, the Chamber rejected the club’s arguments and its counterclaim.
ii. Consequences
55. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
56. The Chamber observed that a the time of the termination, no outstanding remuneration was due.
57. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, the Chamber 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.
58. In application of the relevant provision, the Chamber held that it 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. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
59. As a consequence, the members of the Chamber 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 Chamber recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
60. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber concluded that the
amount of EUR 185,413.74 (i.e. 11x EUR 7,440.34 plus 12x EUR 7,960 plus the housing allowance
of EUR 8,050) serves as the basis for the determination of the amount of compensation for breach
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of contract. In order to take into account the net amounts, the Chamber based its calculation on
the receipt on file and deducted taxes of 39%.
61. In continuation, the Chamber 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 DRC as well
as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract
shall be taken into 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.
62. Indeed, the player found employment with the Brazilian club, Botafogo. In accordance with the
pertinent employment contract, the player was entitled to approximately EUR 1,500 per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total amount of
EUR 15,000, that is, 10 times EUR 1,500.
63. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of EUR 170,414) to the
player (i.e. EUR 185,413.74 minus EUR 15,000; rounded off due to the conversion), which was to
be considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
64. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation at
the rate of 5% p.a. as of the date of claim, i.e. 8 September 2021, until the date of effective
payment.
iii. Compliance with monetary decisions
65. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and
2 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.
66. In this regard, the DRC 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.
67. Therefore, bearing in mind the above, the DRC 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.
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68. 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.
69. The DRC 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.
d. Costs
70. 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.
71. 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.
72. 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 / Counter-Respondent, Guilherme Mantuan, is partially accepted.
2.
The Respondent / Counter-Claimant, Gil Vicente FC, has to pay to the Claimant, the following
amount:
- EUR 170,414 as compensation for breach of contract plus 5% interest p.a. as from 08 September
2021 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
The claim of the Respondent / Counter-Claimant is rejected.
6.
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.
2.
The Respondent / Counter-Claimant 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.
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.
7.
The consequences shall only be enforced at the request of the Claimant / Counter-Respondent
in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer
of Players.
8.
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).
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