Labour Disputes
Texto da decisão
REF FPSD-5664
Decision of the
Dispute Resolution Chamber
passed on 19 May 2022
regarding an employment-related dispute concerning the player Yuri de Jesus
Messias
BY:
Omar Ongaro (Italy), Deputy Chairperson
Stefano Sartori (Italy), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Yuri de Jesus Messias, Brazil
Represented by Soccer Sport Network
RESPONDENT:
Al-Diwaniyah SC, Iraq
Represented by Hamouda Bouazza
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REF FPSD-5664
I.
Facts of the case
1.
On 13 January 2022, the Maltese club Gzira United FC (hereinafter: Gzira) and the Iraqi club
Al Diwaniyah (hereinafter: Diwaniyah) concluded a transfer agreement for the transfer of the
player Yuri de Jesus Messias (hereinafter: the player) from Gzira the Respondent for a transfer
amount of USD 50,000, payable as follows:
•
•
•
USD 20,000 ‘upon the arrival of the player in Iraq and his signing of the official
employment contract’;
USD 15,000 on 1 March 2022;
USD 15,000 on 1 April 2022.
2.
Article 3 of the transfer agreement contains the following clause: ‘First party (i.e. Gzira)
releases the subject’s players ITC via FIFA TMS when the first payment of USD 20,000 reaches
the first parties account in Malta or second party (i.e. the Respondent) has provided proof of
payment. First party understands and agrees that this is the first from 3 installments payments
to receive from second part to reduce the subject player’.
3.
On 14 January 2022, the player and Diwaniyah concluded an employment agreement
(hereinafter: the contract), valid between 14 January 2022 and 15 July 2023, based on which
the player was entitled to receive the following amounts:
•
•
a monthly salary of USD 8,000, the first salary being payable on 15 February 2022 and
the last one on 15 July 2023, with the additional following remark: ‘The first payment
when the second party successful completion of the medical examination and player
registration in the transfer system and after arriving in Iraq‘;
USD 500 bonus for each goal scored.
4.
On 28 January 2022, the registration period in Iraq closed.
5.
On 30 January 2022, the player put Diwaniyah in default and requested for the execution of
the contract validly concluded between the parties, to which Diwaniyah on the same day
replied that indeed, the contract is valid and that within 48 hours, an amount of USD 20,000
would be paid to Gzira.
6.
On 16 February 2022, Diwaniyah provided the player with a flight ticket to fly to Iraq.
7.
On 17 February 2022, the player arrived in Erbil, Iraq and was subsequently forced to travel
to Baghdad for 9 hours, while changing cars 5 times, as he allegedly ‘practically illegally’
entered the country, as the player had not a valid visa for the country of Iraq, as the Kurdistan
region, where Erbil is in, does not require such document. The player however confirmed that
Diwaniyah provided him with a good hotel and good food.
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8.
In the next days, when the player was moved by Diwaniyah to the club’s accommodation,
which was according to the player noisy, and he was not provided with good food.
9.
On 2 March 2022, the player put Diwaniyah again in default for two outstanding salaries,
providing it a 10 days’ deadline to remedy its default, however to no avail.
10. Also on 2 March 2022, Gzira put Diwaniyah in default and requested it to comply with the
conditions of the transfer agreement, and to pay the overdue amount of USD 15,000,
however to no avail.
11. Allegedly on 13 March 2022, Diwaniyah’s president, Mr Alankosei, informed the player that
he would come to Diwaniyah and give the player his monthly salary, however this payment
was never made according to the player.
12. On 22 March 2022, the player put Diwaniyah again in default for two outstanding salaries,
and also explaining that the player wished to receive his passport and would lodge a claim
before FIFA. According to the player, he received no answer to this letter.
13. On 24 March 2022, the player proposed a mutual termination of the contract to Diwaniyah,
however the parties did eventually not agree on an amicable settlement.
14. On 28 March 2022, Gzira put Diwaniyah again in default for the instalments as per the
transfer agreement, however to no avail.
15. On 29 March 2022, Gzira lodged a claim against Diwaniyah, which is currently pending
before FIFA under ref. nr. FPSD-5610.
16. On 4 April 2022, the player lodged the current claim against Diwaniyah, by stating that he
has the right to terminate the contract and that outstanding remuneration and compensation
for breach of contract should be paid to him.
17. On 28 March 2022, the player agreed with Gzira that he would return to Malta and Gzira
and start playing for the club, and signed an employment agreement, valid between 28 March
2022 and 8 June 2023, based on which he was entitled to a monthly salary of EUR 1,000
gross, as well as an additional amount of EUR 850 gross for every won match, as well as EUR
8,000 as advance payment, to be deducted ‘at a rate of EUR 1,000 per month from the first
balance of the salary and allowances…’.
II. Proceedings before FIFA
18. On 4 April 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the player
19. In his claim, the player explains that he started to have problems with Diwaniyah, as he was
not duly provided with a flight ticket from Malta to Iraq.
20. What is more, the player explained that Diwaniyah was allegedly serving a registration ban
and was therefore not able to properly register the player. In addition, the player explained
that upon arriving in Iraq, he learned from other players that Diwaniyah would most likely
not pay him (timely).
21. In addition, the player argues that Diwaniyah did not duly comply with the transfer
instructions in TMS and asked the DRC to take ‘provisional measures to release the player
before the conclusion of this claim to avoid abuse from Diwaniyah as per art. 6 par. 1 of the
Regulations’.
22. Also, the player explains that he deems that Diwaniyah, by failing to answer his default letters
and the proposal for a mutual termination dated 24 March 2022, had effectively unilaterally
terminated the contract.
23. The requests for relief of the player, as amended, were the following:
Compensation for breach of contract as follows:
• USD 144,000 as residual value of the contract in the period between January 2022
and July 2023, corresponding to 18 monthly salaries of USD 8,000 each;
• USD 32,000 as additional compensation, corresponding to 4 monthly salaries of
USD 8,000 each;
• Minus the value of the new contract the player signed with Gzira on 28 March
2022.
24. What is more, the player asked that disciplinary sanctions will be imposed on Diwaniyah and
that the registration of the player with Gzira is accepted in TMS.
b. Position of Diwaniyah
25. Despite having been requested to do so, Diwaniyah failed to reply to the player’s claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 4 April 2022 and submitted for decision on
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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.
27. 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 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 player and
an Iraqi club.
28. 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 edition), and
considering that the present claim was lodged on 4 April 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
29. 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
30. 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
above-mentioned 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.
i. Main legal discussion and considerations
31. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player is of the opinion that Diwaniyah had effectively
unilaterally terminated the contract without just cause, by not replying to his default letters
and the proposal from the player for a mutual termination, sent in March 2022.
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32. In this context, the Chamber acknowledged that it its task was to determine whether one of
the parties had terminated the contract, if so, whether said termination was made with or
with just cause and what the consequences of such termination would be.
33. First of all, the Chamber wished to remark that Diwaniyah, for its part, failed to present its
response to the claim of the player, in spite of having been invited to do so. Consequently,
the Chamber deemed that Diwaniyah had renounced to its right of defence.
34. As a consequence of the aforementioned consideration, the members of the Chamber
concurred that, in accordance with art. 21 par. 1 of the Procedural Rules, a decision shall be
taken upon the basis of the documents already on file, in other words, upon the statements
and documents presented by the player.
35. Entering into the substance of the matter at hand, the members of the Chamber noted that
from the information on file, it can be noted that the parties, on 14 January 2022, concluded
a valid and binding employment contract, containing all essentialia negotii, valid for the
period between 14 January 2022 and 15 July 2023.
36. The Chamber also noted that the player implicitly indicated that the non-issuance of his ITC
and the non-correct registration of the player might have been the reason that Diwaniyah
remained passive when it came to the execution of the contract, as well as the compliance
with the transfer agreement concluded between Gzira and Diwaniyah. For the sake of
completeness, the members of the Chamber took note that the latter issue connected to the
transfer agreement is dealt with in the separate case FPSD-5610.
37. As to the part of the player’s claim related to the administrative procedure in TMS, the
Chamber could establish from the information on file that Diwaniyah – after it had already
signed an employment agreement with the player - only entered the request to register the
player after the closure of the respective transfer window in Iraq.
38. In this context, the Chamber first reminded the parties that, in line with the contents of art.
18 par. 4 of the Regulations, as well as the jurisprudence of FIFA, the validity of an
employment contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the registration procedure in connection with the
international transfer of a player, which are of the sole responsibility of a club and upon which
a player has no influence. As the club is supposedly interested in acquiring the rights of the
player and in benefiting from his services, it is also expected to act accordingly and execute
the administrative formalities in view of obtaining, for instance, the player’s ITC and his
subsequent registration with the engaging FA. Consequently, the registration or not of the
contract is irrelevant in determining if the contract was a valid and binding document.
39. Moreover, the members of the Chamber noted that Diwaniyah had provided the player with
a flight ticket and also provided him accommodation for a specific period.
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40. Based on the foregoing, the Chamber was of the firm opinion that the contract concluded
between the parties on 14 January 2022 was valid and binding on them.
41. What is more, from the information on file, the members of the Chamber noted that – despite
having a valid and binding employment relationship with the player - Diwaniyah however
failed to pay the player his monthly remuneration, as a result of which the player put
Diwaniyah in default on several occasions, however to no avail.
42. As a result of the foregoing situation, the player did not officially terminate the contract with
Diwaniyah, however on 28 March 2022 agreed with his former club Gzira that he would
return to Malta and further only indicated on 4 April 2022 that he deemed that he had the
right to terminate the contract and on the same day, 4 April 2022, lodged a claim before
FIFA.
43. Based on the circumstances described, the members of the Chamber considered that the
contract was effectively terminated by the player on 28 March 2022, when he agreed with
his previous club Gzira that he would return to Malta and start playing for said club again.
44. Following the above conclusion, and turning their attention to the claimed outstanding
remuneration, the Chamber remarked that in the case at hand, Diwaniyah bore the burden
of proving that it indeed complied with the financial terms of the contract concluded between
the parties. Nonetheless, in view of the absence of any evidence provided by Diwaniyah, it
could not be considered proven at all that the amounts claimed as outstanding by the player
were effectively paid.
45. Thus, the Chamber concluded that the player – on 28 March 2022 - had a just cause to
unilaterally terminate the contract and is therefore entitled to the outstanding salaries at that
moment in time, as well as compensation for breach of contract.
ii. Consequences
46. 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.
47. The Chamber observed that the outstanding remuneration that had fallen due at the time of
termination, 28 March 2022, coupled with the specific requests for relief of the player, are
equivalent to 2 salaries under the contract, amounting to USD 8,000 each, for the period
between 15 January and 15 February 2022 and 16 February and 15 March 2022 respectively.
48. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that Diwaniyah is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. USD 16,000 (i.e. 2
times USD 8,000 each).
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49. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by Diwaniyah 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.
50. 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.
51. As a consequence, the members of the Chamber determined that the amount of
compensation payable by Diwaniyah 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.
52. 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 USD 128,000 (i.e. the 16 monthly salaries of USD 8,000 each due in the
period between 16 March 2022 and 15 July 2023) serves as the basis for the determination
of the amount of compensation for breach of contract.
53. 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.
54. Indeed, the player found employment with his old club Gzira. In accordance with the
pertinent employment contract, the player was entitled to the total amount of EUR 14,000
or approximately USD 15,376 in the period between 4 April and 8 June 2022. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of USD
15,376.
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55. Subsequently, the Chamber 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
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
56. In this respect, the DRC decided that the player is principle entitled to USD 24,000 as
additional compensation, i.e. three times the monthly remuneration of the player, however
also noted that based on art. 17 par. 1 lit. ii) of the Regulations, the overall compensation
may never exceed the rest value of the prematurely terminated contract.
57. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that Diwaniyah must pay the amount of USD
128,000 to the player (i.e. the residual value of the contract in the period between 16 March
2022 and 15 July 2023), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
58. Lastly, the Chamber decided that the player’s request linked to the acceptance of his
registration in TMS cannot be granted, as there is no regulatory basis for said claim.
iii. Compliance with monetary decisions
59. 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.
60. 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.
61. Therefore, bearing in mind the above, the DRC decided that Diwaniyah must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 Diwaniyah in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
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62. Diwaniyah shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
63. 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
64. 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.
65. 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.
66. 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, Yuri de Jesus Messias, is partially accepted.
2.
The Respondent, Al-Diwaniyah SC, has to pay to the Claimant, the following amount(s):
- USD 16,000 as outstanding remuneration;
- USD 128,000 as compensation for breach of contract without just cause.
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.
2.
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.
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
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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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