Labour Disputes
Texto da decisão
REF. FPSD-12719
Decision of the
Dispute Resolution Chamber
passed on 16 January 2024
regarding an employment-related dispute concerning
the player Lucas Massaro Garcia Gama
BY:
André dos Santos Megale, Brazil
CLAIMANT:
Lucas Massaro Garcia Gama, Brazil
Represented by Cleiton Bernardes
RESPONDENT:
Tiffy Army FC, Cambodia
Represented by Serge Vittoz
pg. 2
REF. FPSD-12719
I.
Facts of the case
1.
On 17 July 2023, the Brazilian player, Lucas Massaro Gama (hereinafter: the Claimant or the player),
and the Cambodian club, Tiffy Army FC (hereinafter: the Respondent or the club) signed an
employment contract valid as from the same date until 30 April 2024 (hereinafter: the contract).
2.
Under the contract, the club undertook to pay to the player:
●
●
●
●
●
●
A salary of THB 100,000 or USD 2,890 net per month.
A sign-on fee of THB 50,000 or USD 1,450.
A “room (the club will prepare the proper room to the player)”.
2 flight tickets between Thailand and Cambodia.
Visa.
A motor bike.
3.
Under clause 14 of the contract, payments would be made in cash.
4.
On 23 July 2023, via electronic messaging the president of the club (hereinafter: the President) told
the player he had “failed the test”. The player contextually opposed the position of the President, and
stated that the parties had a valid and binding contract.
5.
On 15 October 2023, the player put the club in default and requested payment of USD 3,068,
comprising of the following, granting the club with 15 days to cure its breach:
a. USD 950 as balance of the sign-on fee;
b. USD 338 as pro rata salary for July 2023;
c. USD 890 as unpaid portion of August 2023 salary;
d. USD 890 as unpaid portion of September 2023 salary.
6.
In addition, the player warned that he had not agreed to any changes in the contract and that the
club should stop threatening him to terminate the contract.
7.
On 4 November 2023 the club issued a termination letter with the content described in continuation.
The letter is signed by the club, and despite having a designated area for the player to sign, he did
not do it.
“Termination Contract
This letter is to confirm that the contract between the player and [the club] have been terminated (sic).
Reason: the player doesn't comply with the requirements of the club by not passing the physical test in
the beginning. and didn't attend to physical test two times. Furthermore, the player has breached the
Disciplinary Statues, Rule and Regulation of the dub by going to nightclub during the league season.
Both parties have no obligation or any compensation due with each other from the signing date.
We certify that Mr. MASSARO GARCIA GAMA LUCAS is free player to join any other clubs.”
pg. 3
REF. FPSD-12719
8.
On the same date, the player wrote to the club and while rejecting the termination of the contract
, offered to solve the matter amicably, to no avail.
9.
Per the information available in the Transfer Matching System (TMS), following the termination of
the contract, the player signed a labour agreement with the Thai club, Krabi FC, valid as from 27
December 2023 until 30 April 2024 for a monthly salary of THB 65,000.
II. Proceedings before FIFA
10. On 17 November 2023, the player lodged a claim before FIFA for compensation for
contract and outstanding remuneration.
breach of
11. In his claim, the player alleges that the club breached the contract by failing to pay him the full salar
ies and sign-on fee as agreed. He also argues that the club terminated the contract prematurely
without just cause, using a baseless argument that he did not pass the physical test.
12. The player requested the following relief, quoted verbatim:
“Understanding the preceding, the total amount based on the facts and pieces of evidence provided
shall be the following:
a) USD 4,010 (Four Thousand and Ten US Dollars) related to the Claimant's missed amounts as
following:
USD 950 (Nine Hundred Fifty US Dollars) of the remaining sign-on fee;
USD 338 (Three Hundred Thirty-Eight US Dollars) related to the remaining right amount of the 14 days
worked in July 2023;
USD 890 (Eighty Hundred Ninety US Dollars) late August 2023 salary portion and;
USD 890 (Eighty Hundred Ninety US Dollars) late September 2023 salary portion;
USD 942 (Nine Hundred and Forty-Two US Dollars) late October 2023 salary portion as the Respondent
failed to comply with the notices and paid only USD 1,948 (One Thousand and Nine Hundred FortyEight US Dollars).
The difference stated in the formal notices from this value is the addition of the October 2023 month
that the Respondent failed to comply with besides not complying with the legal notices.
b) USD 17,340 (Seventeen Thousand and Three Hundred Forty US Dollars) related to the remaining
salaries of November 2023 until April 30, 2024;
c) USD 8,670 (Eight Thousand and Six Hundred Seventy US Dollars) referred to the compensation for
the breach of contract without just cause;
The total amount of requested relief is USD 30,020 (Thirty Thousand and Twenty US Dollars).
(…)
4 – THE REQUIREMENTS - ON MERIT
That said, in this complaint, the Claimant requests this Excellency FIFA DRC Tribunal the condemnation
of the Respondent club and the conviction of the Respondent club in the following requests:
1. Sentence the payment of USD 30,020 (Thirty Thousand and Twenty US 365 Dollars) according to Item
3 – Demand for Relief;
pg. 4
REF. FPSD-12719
2. Apply an additional 5% interest p.a. over the total amounts from August 1, 2023.
3. APPLY to the Respondent club, in addition to financial conviction, disciplinary sanction for acting in
bad faith towards the Claimant;
4. Releases only a private copy of this claim for jurisprudence purposes.”
13. On 21 November 2023, the FIFA general secretariat invited the Respondent to file its position as to
the claim of the Claimant by 11 December 2023.
14. Having received no reply, on 12 December 2023 the FIFA general secretariat closed the submissionphase of the proceedings in line with art. 23 par. 1 of the Procedural Rules Governing the Football
Tribunal.
15. On 28 December 2023, the Respondent wrote to FIFA and stated inter alia as follows, quoted
verbatim:
“As per your letter of 12 December 2023, we understand that the written submission-phase of the
matter has been closed, in accordance with Article 23 para. 1 of the Procedural Rules Governing the
Football Tribunal (the Procedural Rules).
Considering their inexperience in football-related disputes before the FIFA Tribunal and the use of the
FIFA Legal Portal, the Respondent has not been able to, alone, previously file their position in the
present matter. This shall not be understood as a waiver by the Club to exercise their procedural rights,
in particular their right to be heard.
Furthermore, should the case end up being submitted to the Court of Arbitration for Sport (CAS) in an
appeal procedure, the CAS Panel will have the power to review the case de novo, in accordance with
Article R57 of the CAS Code. This means that the Panel will have full power to review the facts and the
law, including the right for the parties to submit any factual and legal arguments they deem
appropriate.
In this context, and as a matter of procedural economy, it would be preferable for the Respondent to
be provided with the opportunity to submit their factual and legal arguments in the present
proceedings before the FIFA Tribunal.
The Procedural Rules Governing the FIFA Tribunal (the Procedural Rules) do not contain any provision
on whether or not the tribunal may reinstate a deadline which has already elapsed. In the absence of
any specific provisions in the Procedural Rules, the FIFA general secretariat shall decide on the present
request, in accordance with 32.1 of the Procedural Rules.
On behalf of the Respondent, we therefore respectfully request that the deadline for the filing of their
written submissions be reinstated, and a new deadline be fixed in this regard.”
16. On 9 January 2024, the FIFA general secretariat wrote to the parties and informed them of the
following, quoted verbatim:
“We refer to the matter of the reference and to our previous correspondence, by means of which we
pg. 5
REF. FPSD-12719
informed you that the submission phase in the matter at hand was closed.
In this regard, we are in receipt of the correspondence filed with our services by the Respondent in
reply thereto, a copy of which is available in the FIFA Legal Portal.
Accordingly, we revert to art. 23 par. 1 of the Procedural Rules Governing the Football Tribunal, in
accordance with which the parties may not supplement or amend their submissions or requests for
relief or produce new evidence after notification of the closure of the submission phase. As such, and
in that the request by the Respondent has been made outside of the deadline granted by means of our
letter of 21 November 2023, the request made by the Respondent is rejected.
Lastly, we wish to inform the parties that the case at hand will be submitted to the Single Judge of the
Dispute Resolution Chamber, Andre DOS SANTOS MEGALE (Brazil), for a formal decision on 16 January
2024.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single
Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 17 November 2023 and submitted for
decision on 16 January 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.
18. Furthermore , the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (May 2023), he 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 Cambodian club.
19. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the
present claim was lodged on 17 November 2023, the said edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
20. The Single Judge 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 Single Judge stressed the wording of art. 13 par.
4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties,
including without limitation the evidence generated by or within TMS.
c.
Merits of the dispute
pg. 6
REF. FPSD-12719
21. The competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, he
emphasised that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the matter, and
took note of the fact that this is a claim for outstanding remuneration and compensation for breach
of contract in which no reply was filed. Accordingly, he confirmed that the decision shall be based
upon the documentation filed by the Claimant (cf. art. 14, Procedural Rules).
23. In this context, the Single Judge acknowledged that the termination of the contract was made by
hand of the club alleging poor performance and lack of discipline. As per art. 18 par. 4 of the
Regulations however, the Single Judge recalled that medical issues cannot affect the validity of a
contract. By the same token, he underlined that the jurisprudence of the Football Tribunal states
that poor performance does not constitute grounds for termination of a contract.
24. Lastly, the Single Judge wished to remark that there is no evidence on file of any lack of discipline on
the player’s part, let alone that any proper disciplinary proceedings to this effect were carried out
by the club.
25. Consequently, the Single Judge was firm to establish that the club did not have just cause to
terminate the contract and thus shall endure the consequences that follow.
ii. Consequences
26. Having stated the above, the Single Judge turned their attention to the question of the consequences
of such unjustified breach of contract committed by the Respondent.
27. On this note, the Single Judge firstly outlined that it was for the club to prove that it had complied
with its financial obligations under the contract. In absence of a reply, the Single Judge considered
that the amounts sought by the player shall be awarded. He accordingly observed that the
outstanding remuneration at the time of termination, coupled with the specific requests for relief
of the player, amount to the below:
a.
b.
c.
d.
e.
USD 950 as remaining portion sign-on fee.
USD 338 related to the remaining right amount of the 14 days worked in July 2023.
USD 890 as late August 2023 salary portion.
USD 890 as late September 2023 salary portion.
USD 942 as late October salary portion.
28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the abovementioned sums.
pg. 7
REF. FPSD-12719
29. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Judge decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from their due dates until the date of effective payment.
30. Having stated the above, the Single Judge 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 Single Judge 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.
31. In application of the relevant provision, the Single Judge 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 Single Judge established that no such compensation
clause was included in the employment contract at the basis of the matter at stake.
32. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
33. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge concluded that the amount
of USD 17,340 (i.e., the residual value of the contract from November 2023 to April 2024 given the
monthly salary of USD 2,890) serves as the basis for the determination of the amount of
compensation for breach of contract.
34. In continuation, the Single Judge 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 Football
Tribunal 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.
35. Indeed, the player found employment. In accordance with the pertinent employment contract, the
player was entitled to THB 65,000 per month. Therefore, the Single Judge concluded that the player
mitigated his damages in the total amount of THB 260,000, that is, THB 65,000 times 4
, which
corresponds to approximately USD 7,340.
36. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
pg. 8
REF. FPSD-12719
payables. In the case at hand, the Single Judge confirmed that the contract termination did not take
place due to said reason i.e. overdue payables by the club, and therefore decided that the player
shall not receive additional compensation.
37. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Single Judge decided that the club must pay the amount of USD 10,000 to the
player (i.e. USD 17,340 minus USD 7,340), which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
38. Lastly, taking into consideration the player’s request as well as the constant practice of the Football
Tribunal in this regard, the Single Judge decided to award the player interest on said compensation
at the rate of 5% p.a. as of 4 November 2023 until the date of effective payment.
39. As a final remark, the Single Judge noted that the Claimant could have sought other concepts under
the contract but failed to do so, and as such he was not in a position to examine them per the
principle of ne ultra petita.
iii. Compliance with monetary decisions
40. Finally, taking into account the applicable Regulations, the Single Judge 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.
41. In this regard, the Single Judge 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.
42. Therefore, bearing in mind the above, the Single Judge 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.
43. 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.
44. The Single Judge 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.
pg. 9
REF. FPSD-12719
d. Costs
45. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.
46. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
47. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-12719
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lucas Massaro Garcia Gama, is partially accepted.
2.
The Respondent, Tiffy Army FC, must pay to the Claimant the following amount(s):
a.
b.
c.
d.
e.
f.
USD 950 as outstanding remuneration plus 5% interest p.a. as from 1 August 2023 until the date
of effective payment;
USD 338 as outstanding remuneration 5% interest p.a. as from 1 August 2023 until the date of
effective payment;
USD 890 as outstanding remuneration plus 5% interest p.a. as from 1 September 2023 until the
date of effective payment;
USD 890 as outstanding remuneration plus 5% interest p.a. as from 1 October 2023 until the
date of effective payment;
USD 942 as outstanding remuneration plus 5% interest p.a. as from 1 November 2023 until the
date of effective payment;
USD 10,000 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 4 November 2023 until the date of effective payment.
3.
Any further claims of the Claimant 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.
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. The Respondent 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.
2. 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-12719
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. 12