Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 23 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jos é Luis Andrade (Portugal), member
S tijn Boey kens (Belgium ), member
on the claim presented by the player,
Cleiton Augus to Oliv eira S ilv a, Brazil
represented by Mr Rafael Queiroz Botelho
as Claimant
against the club,
S uphanburi FC, Thailand
represented by Mr Menno Teunissen
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 8 January 2019, the Brazilian player, Cleiton Augusto Oliveira Silva
(hereinafter: the Claimant or the player), and the Thai club, Suphanburi Football
Club (hereinafter: the Respondent or the club) (hereinafter jointly referred to
as the parties), concluded an employment contract (hereinafter: the contract)
valid as from the date of signature until 30 December 2019.
2.
Article 3. of the contract provided, inter alia, the following remuneration :
“3.1. The salary will be paid in monthly instalments by way of salary, adding up
to 12 (Twelve) monthly salaries of USD 40,000 (…) net after tax due each month
on the last business day”.
3.
Moreover, article 4. of the contract stipulated that the player would be entitled,
inter alia, to the following “Special Bonuses” :
“4.1. Should the Player score more than 10 goals for the Club in Thai League 1
Season 2019, the Player shall receive a special bonus of USD 60,000 (…)
4.2. Should the Player score more than 20 goals for the Club in Thai League 1
Season 2019, the Player shall receive a special bonus of USD 50,000 (…)
4.3. Should the Player played more than 15 games for the Club in Thai League
1 Season 2019, the Player shall receive a special bonus of USD 50,000 (…)”.
4.
Furthermore, article 16. of the contract stipulated that “This Contract will
terminate without liability for either party if the Club’s senior men’s first team
is relegated from the Thai League 1 for ordinary sporting reasons. On such
relegation, this Contract will terminate with effect from the end of the month
in which the Club’s senior men’s played its last match”.
5.
In accordance with the information available in the Transfer Matching System
(TMS), the 2019 season in Thailand ended on 3 November 2019.
6.
On 27 October 2019, the Respondent terminated the contract alleging its
relegation form the Thai League 1 and informing the Claimant that he would
be paid his October 2019 salary in accordance with article 16. of the contract.
7.
On 7 November 2019, following an exchange of correspondence between the
parties subsequent to the early termination, the parties agreed upon the
payment of the salary for October 2019 amounting to USD 40,000 and bonuses
Player Cleiton Augusto Oliveira Silva, Brazil / Club Suphanburi FC, Thailand
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amounting to USD 110,000, i.e. “a once-only gross sum of 150.000,00 USD in full
and final settlement”.
8.
On 11 December 2019, the player acknowledged a cash payment in the amount
of Thai Baht (THB) 3,003,660 (approx. USD 100,000 on said date), corresponding
to the player’s bonuses in accordance with art. 4.1 and 4.3 of the contract.
9.
On 2 January 2020, the Claimant put the Respondent in default of payment of
USD 10,000, corresponding to the residual value of his bonuses, setting a 10
days’ time limit in order to remedy the default.
10. In continuation, on 3 January 2020, the Respondent appeared to have informed
the Claimant that it withheld USD 10,000 as “taxes”.
11. On 11 February 2020, the Claimant lodged a claim against the Respondent in
front of FIFA and requested the payment of USD 10,000, corresponding to the
residual value of his bonuses resulting from art. 4.1 and 4.3 of the contract, i.e.
USD 110,000, plus 5% interest as from 31 October 2019.
12. In addition, the Claimant requested that the Respondent be imposed sportive
and/or financial sanctions “in connection with the provisions of article 12bis par.
4 of FIFA Regulations” and that it be held liable “to support all procedural costs
before the DRC”.
13. In his claim, the Claimant requested the payment of the residual value of his
bonuses and held in this regard having fulfilled the requirements of the relevant
bonus clauses, i.e. having played more than 15 games and scored more than 10
goals during the relevant season. In the Claimant’s opinion, said facts were
acknowledged by the Respondent in its letter dated 7 November 2019.
14. In reply to the claim, the Respondent contested FIFA’s competence to adjudicate
in the present case on the substance and referred to the fact that the disputed
amount of USD 10,000 was linked to its obligations of payment towards the tax
authorities of Thailand, not to its contractual obligations towards the Claimant.
15. Therefore, the Respondent held that “any objections with respect to the
payment of the relevant amounts to the tax authorities should have been raised
with said tax authorities”.
16. Moreover, as to the merits, the Respondent held that the contract clearly
mentioned that the salary was payable “net after tax” in opposition to the
section of the bonuses which did not provide such specification. Therefore, in
its opinion, such bonuses were payable as amounts “before tax”. In this respect,
the Respondent referred to national tax law according to which the Claimant
was to be considered as a local “tax resident”, reason why the contract provided
Player Cleiton Augusto Oliveira Silva, Brazil / Club Suphanburi FC, Thailand
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the aforementioned net/gross specification. For that reason, it held that “juristic
partnership or other juristic person paying assessable income to any person who
is subject to income tax [(i.e. the player)], must withhold specific amounts
depending on the type of income category”.
17. In addition, the Respondent deemed that by signing the payment receipt on 11
December 2019, the Claimant accepted the relevant amount as the final
outstanding amount from the Respondent.
18. Consequently, the Respondent further referred to national tax law on
withholding tax provisions and held that, in combination with the contract, it
had duly applied the relevant deductions and invited the player to provide
proof that it had already paid such amounts, any dispute in this sense being of
the competence of the national tax authorities.
19. As such, the Respondent requested the DRC to pronounce itself not competent
to hear the present matter, to entirely dismiss the claim of the player, to confirm
that the payment receipt signed by the player on 11 December 2019 constituted
the full and final settlement amount of bonus, to entirely dismiss any demand
of sportive sanctions, to impose the legal fees and costs of the present incurred
by it on the Claimant and, subsequently, to suspend the current procedure in
order to provide further evidence from the tax authorities as the Respondent
held that it was not in a position to do so in such a short time span.
20. Finally, following the above, the Respondent provided, in an additional reply to
the claim, however received late, an alleged proof of payment amounting to
THB 187,590 (approx. USD 5,700) made to the tax authorities on 13 January 2020
and apparently linked to the present proceedings.
21. In a subsequent unsolicited correspondence received from the Claimant, he
rejected the aforementioned allegations from the Respondent.
II.
Cons iderations of the Dis pute Res olution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the case at hand.
In this respect, the Chamber took note that the present matter was submitted
to FIFA on 11 February 2020. Consequently, the 2019 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 of the Procedural Rules).
Player Cleiton Augusto Oliveira Silva, Brazil / Club Suphanburi FC, Thailand
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2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (March 2020 edition) the Dispute Resolution Chamber shall adjudicate
on employment-related disputes between a player and a club that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves a Brazilian player
and a Thai club regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies referring to the fact that the disputed
amount of USD 10,000 was linked to its obligations of payment towards the tax
authorities of Thailand and not to its contractual obligations towards the
Claimant. As such, the Respondent considered that any issue in this sense should
have been raised with said tax authorities.
5.
On the other hand, the Chamber noted that the Claimant referred to the
competence of the FIFA DRC to adjudicate in and on the claim lodged by him
against the Respondent.
6.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the March 2020 edition of the Regulations on the Status
and Transfer of Players it is competent to deal with a matter such as the one at
hand, unless an independent arbitration tribunal, guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20
December 2005. Equally, the members of the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
7.
In relation to the above, the Chamber also deemed it vital to outline that one
of the basic conditions that needs to be met in order to establish that another
organ than the DRC is competent to settle an employment-related dispute
between a club and a player of an international dimension, is that the
jurisdiction of the relevant national arbitration tribunal or national court
derives from a clear reference in the employment contract.
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8.
Therefore, while analysing whether it was competent to hear the present
matter, the Dispute Resolution Chamber considered that it should, first and
foremost, analyse whether the employment contract at the basis of the present
dispute contained a clear jurisdiction clause.
9.
In this respect, the Chamber recalled that the contract did not contain such
clause referring to the jurisdiction of a relevant national arbitration tribunal, a
national court, or any other organ than the DRC, such as a tax authority in
Thailand, being competent to assess and settle the present matter.
10. In addition, the Chamber also noted that, to the contrary of what argued by the
Respondent, the amount in dispute appeared to be the consequence of an
obligation arising from the contract which had been concluded between the
parties.
11. As such, on account of all the above, the Chamber established that the
Respondent’s objection towards the competence of FIFA to deal with the
present matter has to be rejected, and that the Dispute Resolution Chamber is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and
Transfer of Players, to consider the present matter as to the substance.
12. In continuation, the Chamber analyzed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2020
edition) and, on the other hand, to the fact that the present claim was lodged
on 11 February 2020. Therefore, the Dispute Resolution Chamber concluded
that the January 2020 edition of the Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
13. The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect,
the Chamber started by acknowledging the above-mentioned facts as well as
the documentation contained in the 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.
14. Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well as the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
Player Cleiton Augusto Oliveira Silva, Brazil / Club Suphanburi FC, Thailand
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accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
15. In this respect, the DRC recalled that the parties concluded an employment
contract valid as from 8 January 2019 until 30 December 2019, according to
which the player was entitled, inter alia, to USD 40,000 “net after tax” as a
monthly salary, as well as to “Special Bonuses” as described in point I./3.
16. Moreover, the DRC took note that, following the early termination of the
contract, the parties had agreed, on 7 November 2019, upon the payment by
the Respondent to the Claimant of the salary for October 2019, i.e. USD 40,000
and bonuses, i.e. USD 110,000, amounting to “a once-only gross sum of
150.000,00 USD in full and final settlement”.
17. Following this, the DRC recalled that the player acknowledged on 11 December
2019 having received the payment in cash of (THB) 3,003,660 (approx. USD
100,000) which corresponded to the bonuses as provided in art. 4. of the
contract.
18. Subsequently, the DRC observed that, despite having put the Respondent in
default on 2 January 2020, the Claimant lodged a claim against the Respondent
requesting the residual value of his bonuses resulting from article 4. of the
contract amounting to USD 10,000, plus 5 % interest as from 31 October 2019.
In this respect, the DRC took note that the player held having duly fulfilled the
requirements of the relevant bonus clauses, i.e. having played more than 15
games and scored more than 10 goals during the relevant season, this, in his
opinion, having been acknowledged as well by the Respondent in its letter
dated 7 November 2019.
19. Equally, the DRC took note that the Respondent, for its part, maintained that,
in accordance with the contract, the salary being payable “net after tax” in
opposition to the bonuses which did not provide such specification, such
bonuses were payable as amounts “before tax”. As such, the DRC further noted
that for the Respondent, the Claimant being considered as a local “tax
resident”, it had duly applied the relevant deductions, fulfilled the required
local tax obligations and it emphasised that by signing the payment receipt on
11 December 2019, the Claimant accepted the relevant amount as the total
outstanding remuneration to be paid by the Respondent.
20. Finally, the DRC also took note that both parties provided further arguments on
top of the above in subsequent unsolicited correspondences.
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21. With due consideration to the above, the DRC highlighted that the underlying
issue in this dispute was to determine whether the financial entitlements of the
player as to the bonuses were payable net or gross.
22. However, the members of the Chamber deemed it fit to first address the issue
of the aforementioned unsolicited position received from the Respondent by
means of which it provided alleged evidence referring to a payment made to
the tax authorities in accordance with its above described position. In this
regard, after having duly taken note of the exchange of correspondence and
documents between the parties, the Chamber concluded that the Respondent’s
right to be heard had been duly respected on the basis of and after one
exchange of correspondence only and as such that it had failed to remit the
aforementioned unsolicited correspondence in due time (cf. art. 9 par. 3 of the
Procedural Rules). Consequently, the Chamber agreed that it could not assess
nor back the Respondent’s arguments provided in said correspondence.
23. As such, the DRC decided that on basis of the elements on file, the Respondent
failed to provide evidence on the alleged payment / allocation of the disputed
amount to the competent tax authorities.
24. In continuation, the DRC pointed out that the contract established an amount
of conditional remuneration in its art. 4., which was payable to the Claimant,
without making any reference as to whether such amount should be considered
net or gross. As such and in accordance with its practice, if the contract does not
specify gross amounts, it is assumed that said amounts are to be considered as
net amounts. Consequently, despite the salaries being paid explicitly as net
amounts, the members of the Chamber concluded that the bonuses did not have
any contractual specification “net/gross” for their part and should therefore be
understood as net amounts.
25. On account of the above, the DRC established that the Respondent’s
explanations, as regards the gross amount of the Claimant’s remuneration as to
the bonuses contained in art. 4. of the contract, should not be upheld.
26. Consequently, the DRC established that the Respondent failed to remit the
Claimant’s remuneration in the total amount of USD 10,000 corresponding to
the residual value of his bonuses resulting from art. 4.1 and 4.3 of the contract.
27. In view of the above, and in accordance with the principle of pacta sunt
servanda, the DRC determined that the club has to pay to the player the total
amount of USD 10,000 as outstanding remuneration.
Player Cleiton Augusto Oliveira Silva, Brazil / Club Suphanburi FC, Thailand
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28. In addition, taking into account the Claimant’s request as well as the constant
practice of the DRC in this regard, the Chamber decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the aforementioned amount,
until the date of effective payment, as from 4 November 2019, i.e. one day after
the date set for the end of the 2019 sporting season in Thailand, being 3
November 2019.
29. The DRC concluded its deliberations in the present matter by establishing that
any further claims lodged by the Claimant are rejected.
30. Furthermore, taking into account the consideration under number II./12. 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 amount of outstanding remuneration.
31. In this regard, the DRC 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 amount is paid and for the maximum duration of three entire and
consecutive registration periods.
32. Therefore, bearing in mind the above, the DRC decided that, in the event that
the Respondent does not pay the amount 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.
33. The DRC recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amount, in accordance
with art. 24bis par. 3 of the Regulations.
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Cleiton Augusto Oliveira Silva, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Suphanburi FC, has to pay to the Claimant outstanding
remuneration in the amount of USD 10,000, plus interest at the rate of 5% p.a.
as from 4 November 2019 until the date of effective payment.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail addresses as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts plus interest mentioned under point 3 above.
6.
The Respondent shall provide evidence of payment of the due amounts plus
interest in accordance with point 3 above to FIFA to the e-mail address
[email protected], duly translated, if need be, into one of the official FIFA
languages (English, French, German, Spanish).
7.
In the event that the amounts due plus interest in accordance with point 3
above are 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 Respondent
shall be banned from registering any new players, either nationally or
internationally, up until the due amounts plus interest are paid and for the
maximum duration of three entire and consecutive registration periods (cf. art.
24bis of the Regulations on the Status and Transfer of Players).
8.
The ban mentioned in point 7 above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
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9.
In the event that the aforementioned sums plus interest are 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 FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status
Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber).
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). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision
and shall contain all the elements in accordance with point 2 of the directives issued
by the CAS. Within another 10 days following the expiry of the time limit for filing
the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Cleiton Augusto Oliveira Silva, Brazil / Club Suphanburi FC, Thailand
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