Labour Disputes
Texto da decisão
REF. FPSD-12624
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Victor Guilherme Massaia
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Tarek BRAUER (Germany), Member
Johan VAN GAALEN (South Africa), Member
CLAIMANT:
Victor Guilherme Massaia, Brazil & Portugal
Represented by Ivan Prudente Araujo
RESPONDENT:
Wisla Plock, Poland
Represented by LAS Legal
pg. 2
REF. FPSD-12624
I. Facts of the case
1.
The parties to the dispute are the Brazilian/Portuguese player, Victor Guilherme Massaia
(hereinafter: player or Claimant) and the Polish club, Wisla Plock (hereinafter: club or
Respondent).
2.
On 27 September 2023, the club issued two documents regarding the player, namely a
contractual offer (hereinafter: the Offer) and an “Invitation to Sports Tests” (hereinafter: the
Invitation). Both documents were signed by the club only and do not contain a designated
field for the player to countersign them.
3.
The Invitation reads as follows:
“On behalf of Wisla Plock S.A., we would like to invite Mr Victor Guilherme Massaia, born on
9 February 1992, for sports tests at our Club, in the period from 2 October 2023 to 14 October
2023.
The Club will provide the Player with insurance, hotel including breakfast and training
equipment.
Travel costs remain with the Player.”
4.
The Offer reads as follows:
“On 27th of September 2023, we as a football club Wista Plock S.A. seated in PLOCK, ul.
tukasiewicza 34 09-400 Plock, would like to confirm our official offer for Player Victor
Guilherme Massaia (born 09/02/1992), which are confirmed and accepted by the Player, on
following conditions:
Period of agreement:
from 15.10.2023 to 30.06.2024 with an extension until 30.06.2025 at the option of the Club,
with a 20% increase in salary.
Payments
•
in season 2023/2024 – 4.000, -euro + VAT
(four thousand euros) a month;
Form of employment: self-employment
If the Player plays 630 minutes in official matches for he Club’s first team, the salary will
increase by €1,000 + VAT.
•
Bonus for 1. points in Canadian stats (goals or assists together)-250 euro + VAT
•
Match bonuses accordance with the interior rules (about 400 euro gross per win game
for basic player) if the team is placed in positions 1-6 in the table
•
Bonuses for the success in the league accordance with the interior rules;
Commission to the Agency: 1.700 euro + AT - payable by 15.11.2023
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REF. FPSD-12624
In case of contract extension 2.880 euro + VAT - payable by 15.09.2024
Wisla Plock SA, does not provide the Player:
airline tickets
flat
car
** Both parties of agreement confirm that this agreement is valid after a positive passing of
medical exams and acceptance of Board of Directors of our Club
** Payment net is understood as the amount the Player will receive on his bank account”.
5.
On 30 September 2023, the player arrived in Poland via plane. He paid for the airfare
himself.
6.
On 2 October 2023, the player started training with the club, following a schedule that was
provided to him by the latter, which would run from the same date until 15 October 2023.
7.
On 10 October 2023, the player underwent medical examinations, which inter alia indicated
as follows:
As to the player’s knee:
“Physiological amount of fluid in the knee joint cavity. Synovial membrane without
pathological changes.
Moderately severe fibrous/scarring changes in the Hoffa's fat pad. Small fibrous changes on
the posterior outline of the Hoffa's fat pad and in the suprapatellar recess.
Anterior to the ACL graft there is a limited area of fibrosis 14 x 16 x 8 mm (cyclops lesion).
The proximal part of the patellar ligament is thickened and slightly swollen, with preserved
continuity - a picture suggestive of overload lesions. Apart from that, the extensor apparatus
is normal.
Condition after ACL reconstruction; the graft is correctly positioned, with maintained
continuity and no fluid in the bone tunnels. Slight scarring changes in the proximal parts of
the collateral ligaments; ligaments with preserved continuity.
No other abnormalities in the knee ligaments were found.
Menisci with minor degenerative changes; medial meniscus with a short horizontal tear of the
body, without displacement; free edge of the posterior horn of the lateral meniscus is jagged,
without a distinct fissure. No other abnormalities in the menisci were found.
Wiberg type 2 patella, correctly positioned.
I-S index 1.06; TT-TG 13 mm; bony angle of the intercondylar groove 142 degrees.
Articular cartilage:
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REF. FPSD-12624
on the articular surface of the patella, the cartilage is jagged in the central part, with
several cracks exceeding half the thickness of the cartilage (features of focal chondromalacia
grade 11-111); in addition, a small focus of subchondral bone marrow edema is visible,
no other abnormalities.
Popliteus tendinopathy. No other abnormalities were found in the popliteal fossa.”
As to the player’s heart:
“No cardiological contraindications to competitive football.
It is advisable to supplement the examination with echocardiography or to evaluate the
previous echocardiogram and ECG recordings (non-specific changes in T waves over the
inferior wall)”.
8.
On 18 October 2023, the club sent a draft contract to the player’s agent (hereinafter: the
Draft Contract).
9.
On 19 October 2023, the club’s director informed the player that due a decision of the club’s
management, it was not in a position to sign a contract with him.
10. On 23 October 2023, the player left Poland.
11. On 1 November 2023, the player sent a default notice to the club, requesting compensation
for breach of contract and availing himself to settle his dispute with the club, to no avail.
12. According to the information contained in the FIFA Transfer Matching System (TMS) and as
confirmed by the player, he signed an employment contract with the Brazilian club,
Desportiva Ferroviária valid as from 12 January 2024 until 30 April 2024, including a
monthly salary of BRL 2,000 plus 4 additional payments of BRL 1,500.
II. Proceedings before FIFA
13. On 13 November 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Claim of the Claimant
14. The player submits that he had concluded a valid contract with the club. He claims to have
provided evidence of the club’s unilateral termination of contract, failure to provide
necessary documentation, and refusal to comply with the financial terms agreed upon by
the parties, including the payment of salary and bonuses. The player contended these
actions constitute a breach of contract without just cause, entitling him to compensation
in line with art. 17 of the Regulations on the Status and Transfer of Players (RSTP).
pg. 5
REF. FPSD-12624
15. The player further explained that the club undertook to pay the following amounts:
“According to the employment contract, WISLA PLOCK S.A has committed to paying the player
an amount of €41,328 (forty-one thousand three hundred and twenty-eight euros):
(i) The value corresponds to the monthly salary is €$ 4,000 (four thousand euros) plus the
application of VAT totaling €$ 4,920 (four thousand nine hundred and twenty euros) per
month;
(ii) The currency adjusted for payment was euros (€$);
(iii) The contractual basis is the value of €$4,000 (four thousand euros) per month plus the
application of VAT.
(iv) The Contract period is from 10/20/2023 to 06/30/2024.”
16. The player filed the following request for relief:
“23. From the above, in accordance with art. 2 pair. 1st and art. 24, paragraph 1, of the
Procedural Regulations and with art. 23 pair. 1 in combination with art. 22 caput, b) of the
Player Status and Transfer Regulations (October 2022 edition), requires that the Dispute
Resolution Chamber be competent to deal with the matter in question, which concerns a labor
dispute of an international dimension between a Brazilian player and a Slovak club, asserting
FIFA's jurisdiction as competent to decide on the matter.
24. Taking into account the clear will of the club, and the disrespect for the contract between
the parties, there was a breach of the contract from the part of WISLA PLOCK S.A, and, for this
reason, seek the club's responsibility based on article 17 from FIFA RSTP:
25. Requests compensation in the amount of EUR 41,328 (forty-one thousand three hundred
and twenty-eight euros), related to the salaries plus VAT for the 2023/2024 season.
26. Requests reimbursement of the tickets paid by the player for his presentation in the Club
and return to Brazil in the amount of R$ 12,549.19 (twelve thousand five hundred and fortynine reais and nineteen cents) equivalent to the value of €2,346 (two thousand three hundred
and forty-six euros).
27. The Applicant requests, as a constant practice of Dispute Resolution, the payment of
interest of 5% p.a. for each payment instalment as due for delay and breach of contract until
actual payment in accordance with the well-established jurisprudence of FIFA and CAS.
28. Still regarding the disciplinary sanctions resulting from the player's abandonment, the
player requests to prevent further irregular practices that WISLA PLOCK S.A be held
responsible in accordance with article 17, 4 of the RSTP FIFA.
29. After analysis and decision of this Illustrious Judge, seeking to hold WISLA PLOCK S.A
responsible for breach of contract without just cause, he must impose the expected
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REF. FPSD-12624
compensation and sanctions on the Club, without prejudice to the player, Victor Guilherme
Massaia, determining the payment of compensation, so that the player can provide livelihood
for himself and his family.”
b. Reply of the Respondent
17. In its reply, the club disputes the claim made by the player regarding the termination of an
alleged contract without just cause.
18. The club argues that there was never a contract between club and player and that the claim
is based on untrue facts. The club explains that the negotiations were conducted by the
sport director of the club, and a formal contract proposal was sent to the player and his
agent via WhatsApp messenger (i.e., the Offer). However, the club decided not to sign a
contract with the player and informed him of their decision on 19 October 2023.
19. The club further argues that the player did not pass the medical examination conducted
on behalf of the club, which was a condition for signing a contract with him. This forms a
crucial part of the club’s defense against the player’s claim, as the results of the medical
examination indicated the need for additional tests related to the player’s heart and
showed health problems related to a previous knee injury.
20. As a result, the club asserts that they did not violate any FIFA regulations concerning the
performance of obligations in connection with an eventual employment relationship with
the player, as they never actually concluded any contract with the player. Therefore, the
club’s position is that the player’s attempt to assert claims against them is unlawful in
nature.
21. The club requested that the claim be dismissed.
c. Rejoinder of the Claimant
22. In his rejoinder, the player rebutted the club’s position and largely reiterated his own. In
doing so, the player advanced the following arguments:
•
The player accused the club of hiding information by not providing a copy of the signed
contract between the parties. He underlined that the club acknowledges sending the
Draft Contract for negotiation, but failed to prove that it clearly indicated the file was
only a draft and not the final contract. Along these lines, the player insisted that the club
proposed him a contract, but the negotiations were ultimately terminated by the club.
•
The player rejected the notion put forth by the club that that the decision to hire him
would be subject to approval of medical examinations and highlighted that the club
admitted not executing the contract due to his health status.
pg. 7
REF. FPSD-12624
•
The player questioned why the club sent the Draft Contract to him and his agent after
allegedly being aware of the health problems revealed in the medical report.
•
The player argued that the club breached such contract without just cause. He highlights
that the club took several steps to sign him, including presenting an offer, allowing him
to train with the team, and formalizing an employment contract. However, the club
cancelled the payment for accommodation at the hotel, forced the player to pay for his
return ticket to Brazil, and remained silent after receiving a notification to comply with
the contract.
•
The player requests compensation for the unilateral breach of the contract without just
cause and highlights that he is currently without a salary, without a club, and without an
employment contract, which further strengthens his argument for compensation.
d. Final comments of the Respondent
23. In its final comments, the Respondent argued as follows:
•
The club maintains that there was no valid and binding employment agreement between
the player and the club. They argue that the player has not provided sufficient evidence
to prove the existence of a signed contract. The club reiterated that upon the conclusion
of the player’s medical examinations, it had concerns about his medical condition and
decided not to sign him.
•
The club emphasizes the burden of proof on the player, stating that it is his duty to
objectively demonstrate the existence of the alleged facts. They refer to jurisprudence
of FIFA and the Court for Arbitration in Sport (CAS), highlighting that the party claiming
an effective contract must provide relevant evidence to convince the panel of the truth
and accuracy of the alleged facts.
•
The club asserts that the Claimant’s allegations are unfounded and unsupported. They
specifically mention that the claim is based on assumptions, media reports, and the
player’s participation in training sessions, which the club argues does not constitute valid
evidence. In support of this, the club has filed witness statements to rebut the player’s
position.
•
The club disputes the credibility of media reports cited by the player, stating that they
have no legal validity and are not issued by a credible source. They emphasize that there
has been no official communication from the club in this regard.
pg. 8
REF. FPSD-12624
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 13 November 2023 and
submitted for decision on 22 February 2024. Taking into account the wording of art. 34 of
the March 2023 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.
25. 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 par. 1 lit. b)
of the RSTP (May 2023 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/Portuguese player and a Polish club.
26. 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 RSTP (May 2023 edition), and considering that the present claim was lodged
on 13 November 2023, the said edition of the RSTP (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
27. 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 TMS.
c. Merits of the dispute
28. The 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
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REF. FPSD-12624
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
29. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact this is a claim of a player against a club for breach of
contract. The parties’ dissent lies on whether there was a valid and binding contract or not
between them, and the ensuing consequences.
30. In view of the foregoing, the Chamber recalled its well-established jurisprudence which
dictates that, in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee (or other forms of mutual
consent), it should contain the essentialia negotii of an employment contract, such as the
parties to the contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee.
31. After thoroughly analysing the documentation on file, the DRC understood that the alleged
employment contract concluded between the parties (i.e., the Offer) indeed (i) contains the
proper identification of the parties; (ii) provides for the duration of the employment
relationship and the payable remuneration to the player; and (iii) refers to the player as
being employed as a footballer with the club. The DRC underscored that the same
information is found in the Draft Contract.
32. In spite of the above, the DRC concurred with the club’s argumentation and considered
that the Offer was not meant to be a bilateral document (i.e., an employment contract), but
solely a unilateral offer to the player in order to enable his participation in a trial period.
The relevant trial invitation was equally issued, and the timeline of both documents clearly
indicates that a definitive contract would be signed if the player was satisfactorily approved
in the trial – which is further denoted by the Draft Contract sent later to the player’s agent.
33. Nevertheless, the DRC equally observed that the Offer was only signed by the club’s
representative and did not include the designated field for the player to insert his signature
– which indeed he has never done. What is more, the player has failed to provide a signed
specimen of the Draft Contract (even if signed by him only) as well as evidence of having
sent the club the signed version of the same contract. Despite feeling unimpressed by the
behaviour of the club to send a draft employment agreement to the player after the
medical examinations had been conducted and after the expiry of the trial period only to
withdraw its desire to move forward with the deal, the DRC was equally unimpressed by
the player’s apparent lack of diligence to demonstrate that he was in agreement with such
Draft Contract, and that he had unequivocally manifested his consent to the club.
34. The DRC found it noteworthy that the player did not provide any evidence capable of
demonstrating that any other document was ever concluded between the parties with a
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REF. FPSD-12624
view to confirm that the conditions described in the Offer (or the Draft Contract) were
indeed validated, and the unsigned specimens of said documents are not sufficient to
establish the player’s thesis.
35. In light of the abovementioned considerations, the DRC found that the essential elements
mentioned by the jurisprudence were not fully included in the document(s) at the basis of
the dispute and therefore they were not able to trigger the consequences of a labour
relationship between the parties. Put simply, the DRC explained that the player was unable
to demonstrate to the required degree of satisfaction his consent to the Offer (or the Draft
Contract) made by the club, reason why his claim cannot succeed.
36. In other words, in the present case, the DRC concluded that the player could not meet his
burden of proof to demonstrate that an employment relationship was ever initiated with
the club and therefore his claim lacked any contractual basis and must be entirely rejected.
37. As a final note, the DRC highlighted that the documentation at its disposal, including that
available in TMS, confirms that the club has failed to properly undertake the adequate
steps outlined by article 19ter of the Regulations, because no TMS proceeding was made,
or any FIFA trial form adequately executed. Accordingly, the DRC requested the FIFA
general secretariat to forward the case file to the FIFA Disciplinary Committee for analysis
and consideration, in line with the contents of art. 19ter par. 11 of the Regulations.
d. Costs
38. 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.
39. 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.
40. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-12624
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Victor Guilherme Massaia, 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-12624
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13