Labour Disputes
Texto da decisão
REF 20-00385/sil
Decis ion of the
Dis pute Res olution Cham ber
pas s ed v ia v ideoconference, on 18 June 2020,
regarding an em ploy m ent-related dis pute concerning the play er Leonardo
Matos de Oliv eira
COMPOS ITION:
Geoff Thom ps on (England), Chairman
Moham ed Muzamm il (Singapore), member
S tefano S artori (Italy), member
CLAIMANT:
Leonardo Matos de Oliveira, Brazil
Repres ented by Mr Pedro Macieirinha
RES PONDENT:
Birkirkara FC, Malta
Repres ented by Mrs Rebecca Mercieca & Mr Keith Borg
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I. FACTS OF THE CAS E
1.
In June 2018, the Brazilian player, Leonardo Matos de Oliveira (hereinafter: the Claimant
or the player) and the Maltese club, Birkirkara FC (hereinafter: the Respondent or the
club) allegedly concluded an employment contract (hereinafter: the contract), valid “till
the last competitive match or 15th May 2019 whichever comes first”.
2.
According to the information contained in the Transfer Matching System (hereinafter:
the TMS), the relevant season ended on 8 June 2019.
3.
Pursuant to article 2.1 of the contract, the club committed itself to pay to the player a
monthly salary of EUR 1,500 as well as a monthly allowance of EUR 4,000.
4.
According to the Claimant, “21 days after the beginning of the Contract, the Respondent
Club terminated the Contract unilaterally and without just cause or sporting just cause”.
In this respect, as regards the termination, the player maintained that “[he] was sent away
by the Club, without any formalization or document of dismissal”.
5.
In this context, on 10 February 2020, the player allegedly put the Respondent in default,
requesting payment of EUR 49,500 and granting a 15 days’ deadline to remedy the
situation.
6.
According to the Claimant, the Respondent did not reply to his default notice.
7.
On 27 February 2020, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the total amount of EUR 66,000, plus 5% interest p.a. as from
June 2018 until the date of effective payment, corresponding to compensation for breach
of contract without just cause.
8.
In his claim, the Claimant maintained that, in accordance with articles 13 and 17.1 of the
Regulations on the Status and Transfer of Players and the legal principle of “pacta sunt
servanda”, “the player is entitled to the payment of compensation”.
9.
In its reply to the claim, the Respondent explained that the document provided by the
Claimant, and referred to as the contract, was actually “a proposal which the Club was
willing to offer the Player”. However, as per the club, “the circumstances changed” and
said document “had neither been signed by both parties […] nor had it been dated”.
10. Furthermore, the Respondent pointed out that the player “had played a few [friendly
games] for the Club, however the Parties never reached a mutual understanding with
regard to the Player’s employment and thus the Employment Contract was never signed
and accepted by both Parties”. Having said this, the club further sustained that the
Claimant had not even been registered with the Malta Football Association.
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11. Consequently, the Respondent held that the parties were never bound by any contract
and, as such, the “contractual relationship between the Parties could not be terminated
as it had not even begun”.
12. In continuation, the Respondent provided a “receipt of full and final payment of Euro
6000 in cash to [the player]”, dated 21 June 2018, allegedly signed by both parties, which
provided that “No other forms of payment or any other type of compensation will be
requested” (hereinafter: the waiver). In addition, the Respondent deemed that said
document could even be considered as a termination of an employment contract should
the unsigned document be considered as such.
13. As per the club, the Claimant failed to fulfil the burden of proof as to: (i) the date of the
player’s arrival in Malta; (ii) the player’s registration with the Malta Football Association;
(iii) the validity of the employment contract; (iv) the precise date when the employment
contract supposedly took effect; (v) the matches played by the player for the Respondent;
and (vi) the date of departure of the player from Malta.
14. Consequently, having provided a proof of the mutual will of the parties not to enter into
any employment relationship, and relying on the Claimant’s own words as to the absence
of a proof of termination on the club’s behalf, the Respondent requested the claim to
be rejected in full “with Costs against the Player”.
15. Finally, and after being invited to do so, the Claimant informed FIFA that he remained
unemployed.
16. In addition, the Claimant submitted additional unsolicited comments as to the waiver
provided by the Respondent in its reply (cf. see point I.12. above), maintaining that said
document had not been signed by him.
17. In this context, FIFA requested the Respondent to provide the original version of the
waiver dated 21 June 2018.
18. In support of its statements, the Respondent provided the following documents:
a) The alleged original version of the waiver;
b) A copy of the Claimant’s passport with his signature; and
c) Two “Affidavit” allegedly signed by the Respondent’s treasurer and committee
member referring to the above-mentioned facts in the Respondent’s reply to the
claim.
19. As regards the aforementioned affidavits, dated 11 May 2020, the treasurer and the
committee member of the Respondent both confirmed that the player “in the year 2018
[…] joined the club and shortly afterwards, the Player and the Club came to a mutual
agreement to terminate the Player’s contract, which agreement was signed by [both
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parties] on the 21st June 2018”. In this respect, according to the affidavits, it was further
indicated that the player received a payment of EUR 6,000 “in cash”.
II. CONS IDERATIONS OF THE DIS PUTE RES OLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, it
referred to the wording of art. 21 of the 2019 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) as well as to the fact that the present matter was
submitted to FIFA on 27 February 2020 and decided on 18 June 2020. Therefore, the DRC
concluded that the 2019 edition of the Procedural Rules is applicable to the matter at
hand.
2. Furthermore, 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, and considering that
the present claim was lodged on 27 February 2020, the January 2020 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
3. Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 of the
Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b of the Regulations, it is competent to adjudicate on the
present employment-related dispute between a Brazilian player and a Maltese club.
4. The competence of the Chamber and the applicable regulations having been established,
the Chamber entered into the substance of the matter, by acknowledging the abovementioned facts as well as the documentation contained in the file in relation to the
substance of the matter. 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.
5. First of all, the Chamber took into account that, according to the Claimant, in June 2018,
the parties concluded an employment contract valid “till last competitive match or 15th
May 2019 whichever comes first”.
6. Subsequently, the members of the Chamber further observed that, as per the Claimant,
the Respondent had prematurely terminated the contract “21 days after the beginning
of the Contract”. In this respect, the DRC noted that the Claimant was unable to provide
evidence of the premature unilateral termination of the contract by the Respondent, as
“[he] was sent away by the Club, without any formalization or document of dismissal”.
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7. In addition, the DRC observed that the Claimant was claiming the amount of EUR 66,000
from the Respondent, thereby asserting that the Respondent had not complied with the
above-mentioned contract and had not paid him any amount whatsoever.
8. The Chamber noted that according to the Respondent, as opposed to the Claimant’s
claim, no legally binding employment contract had come into effect between the
Claimant and the Respondent, as the latter merely “prepared and drafted a Contract of
Employment for the Player to consider”, the object of which was simply to set forth the
provisions of a prospective employment contract. In this context, the DRC took note of
the fact that the Respondent pointed out “that this contract had neither been signed by
both parties […] nor had it been dated”.
9. In view of aforementioned dissent between the parties in respect of the basic question
as to whether or not an employment contract between the Claimant and the Respondent
had been concluded, the members of the Chamber firstly referred to art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. The application of the said principle in
the present matter led the members of the Dispute Resolution Chamber to conclude that
it was up to the Claimant to prove the existence of the employment contract on the basis
of which compensation for breach of contract by the Respondent is claimed.
10. Having stated the above, the Dispute Resolution Chamber recalled that the Respondent
maintained that it never signed a written employment contract with the Claimant and
that the document provided by the Claimant was a mere “proposal” that had “neither
been signed by both parties […] nor had it been dated”.
11. Furthermore, the members of the Chamber observed that the Claimant was unable to
provide an evidence of the premature unilateral termination of the contract by the
Respondent, as the latter allegedly concluded the Claimant’s contract “without any
formalization or documentation of dismissal”.
12. On account of these considerations, the Chamber deemed it appropriate to underline
that the player failed to provide a contract signed by both parties, duly dated and
mentioning a starting date of the employment relationship. Thus, as per the members
of the Chamber, the contract provided by the Claimant did not contain, in principle, all
the essentialia negotii.
13. Notwithstanding the above, the DRC took particular note of the fact that the
Respondent provided a waiver in support of its statements (cf. see point I.12. above),
which was in continuation examined by the members of the Chamber.
14. In this regard, the Dispute Resolution Chamber observed that the aforementioned
waiver, dated 21 June 2018, stated the following: “This is a receipt of full and final
payment of Euro 6000 in cash to the above mentioned player […] This is a full and final
settlement”.
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15. In continuation, the members of the Chamber further noted that the Respondent
provided two affidavits, dated 11 May 2020, allegedly signed by the Respondent’s
treasurer and committee member, according to which “the [parties] came to a mutual
agreement to terminate the Player’s contract” on 21 June 2018.
16. Having duly analysed the documentation presented by the Respondent, the members of
the Chamber wished to emphasise that the mere existence of a waiver proved that the
parties have had a previous employment relationship. Furthermore, the Chamber also
pointed out that the affidavits expressly referred to an “agreement to terminate the
Player’s contract” (emphasis added).
17. In respect of the foregoing, the members of the Chamber concluded that the documents
submitted by the Respondent proved beyond doubt that the Claimant and the
Respondent had validly entered into an employment contract. Therefore, the members
of the Chamber acknowledged that the parties were contractually bound by means of
an employment contract valid as from June 2018 until 15 May 2019.
18. Subsequently, following its analysis of the waiver, the Chamber reverted to the
Claimant’s argumentation, in accordance with which the document submitted by the
Respondent is invalid as it would be a forgery.
19. In this regard, the DRC emphasized that, as a general rule, it is not the competent body
to decide upon matters of criminal law, such as allegedly falsified signatures or
documents, but that such affairs fall within the jurisdiction of national penal courts.
20. In continuation, the DRC recalled that all documentation remitted shall be considered
with free discretion and, therefore, focused its attention on the waiver as well as the
other documents containing the player’s signature. After a thorough analysis of the
aforementioned documents, in particular, comparing the relevant signatures, the DRC
concluded that for a layman the player’s signatures seem to be different.
21. On account of all of the above considerations, the Chamber decided to reject the
arguments put forward by the Respondent in its defence and established that the
Respondent has seriously failed to comply with its contractual obligations.
22. Having established that the Respondent is to be held liable for the early termination of
the employment contract without just cause, the Chamber focused its attention on the
consequences of such termination. In this regard, the members of the Chamber
determined that the Respondent was to pay compensation for breach of contract in
accordance with art. 17 par. 1 of the Regulations.
23. In this context, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of
the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
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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
Claimant 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.
24. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contains 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.
25. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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. Therefore, other objective criteria may be taken into account at the discretion
of the deciding body.
26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from June
2018 until 15 May 2019, and concluded that the Claimant would have received in total
EUR 63,250 as remuneration had the contract been executed. Consequently, the
members of the Chamber concluded that the amount of EUR 63,250 serves as the basis
for the final determination of the amount of compensation for breach of contract in the
case at hand.
27. In continuation the Chamber verified as to whether the Claimant 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, 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.
28. The Chamber noted that it appears from the documentation on file that the Claimant
did not sign any contract with a new club within the relevant period. Thus, the Claimant
had apparently not been able to mitigate damages. In this context, the DRC declared
that there is no remuneration to be taken into account in order to mitigate the amount
of compensation for breach of contract.
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29. Consequently and bearing in mind all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of EUR 63,250 to the Claimant, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
30. Furthermore, the Chamber decided to award the Claimant interest at the rate of 5% p.a.
on the amount of EUR 63,250 as from 27 February 2020 until the date of effective
payment.
31. Furthermore, taking into account the consideration under number II.13. above, the DRC
referred to par. 1 and 2 of art. 24bis 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.
32. In this regard, the Chamber pointed out 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
and for the maximum duration of three entire and consecutive registration periods.
33. Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any
new players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the Respondent in
accordance with art. 24bis par. 2 and 4 of the Regulations.
34. Finally, the member of the Chamber 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. 24bis par. 3 of the Regulations.
35. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant is rejected
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III. DECIS ION OF THE DIS PUTE RES OLUTION CHAMBER
1.
The claim of the Claimant, Leonardo Matos de Oliveira, is partially accepted.
2.
The Respondent, Birkirkara FC, has to pay to the Claimant EUR 63,250 as compensation
for breach of contract without just cause plus 5% interest p.a. as from 27 February 2020
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to ps [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent w ithin 45 day s , as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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