Labour Disputes
Texto da decisão
REF FPSD-3961
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Raphael
Felipe Ortiz de Oliviera
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Angela Collins (Australia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT / COUNTER-RESPONDENT:
Raphael Felipe Ortiz de Oliveira, Brazil
Represented by Paolo Torchetti and Leonardo Carvalho
RESPONDENT / COUNTER-CLAIMANT:
FC Eindhoven Futsal, Netherlands
Represented by Erik Jansen
INTERVENING PARTY:
Al Thuqbah, Saudi Arabia
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I.
Facts of the case
1.
After having been previously bound to an employment contract in the seasons 2017/2018
and 2018/2019, on 10 April 2019, the Brazilian player Raphael Felipe Ortiz de Oliviera
(hereinafter: the Claimant / Counter-Respondent) and the Dutch futsal club FC Eindhoven
Futsal (hereinafter: the Respondent / Counter-Claimant) concluded an employment contract,
valid between 1 August 2019 and 30 June 2023.
2.
Based on the contract, the Claimant / Counter-Respondent was entitled to the total amount
of EUR 13,200 gross, to be paid in a period of ‘a maximum of 12 months, depending on the
KNVB-calendar’. Also, the Claimant was entitled to ‘two tickets (August and December) from
Sao Paolo, Brasil to Amsterdam v.v., with a maximum of 1,000.00 euros’.
3.
According to the Claimant / Counter-Respondent, in the period between January 2021 and
June 2021, the Claimant / Counter-Respondent was on loan with the Saudi Arabian futsal
club Al Thuqbah (hereinafter: Al Thuqbah). The Respondent / Counter-Claimant however
explains that the loan period with Al Thuqbah only lasted between November 2020 and
March 2021.
4.
On 1 April 2021, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant
in default for the amount of EUR 13,200 for the season 2020, providing the Respondent /
Counter-Claimant a 10 days’ deadline to remedy its default, however to no avail.
5.
On 1 August 2021, the Respondent / Counter-Claimant replied to the Claimant / CounterRespondent’s default letter, putting the Claimant / Counter-Respondent in default as he did
not stick to the agreements he made on 6 November 2020. Moreover, the Respondent /
Counter-Claimant asked the Claimant / Counter-Respondent to return by no later than
Monday 2 August 2021 to the Respondent / Counter-Claimant, for the first training session
of the new season. What is more, the Respondent / Counter-Claimant indicated that the
Claimant / Counter-Respondent would be responsible for paying for a flight ticket.
6.
On 15 September 2021, the Claimant / Counter-Respondent put the Respondent / CounterClaimant in default for the amount of EUR 12,100 as overdue salaries and a flight ticket,
which was not provided to him, providing the Respondent / Counter-Claimant a 15 days’
deadline to remedy its default, however to no avail.
7.
On 4 October 2021, the Claimant / Counter-Respondent unilaterally terminated the contract
with immediate effect, because of the Respondent / Counter-Claimant’s alleged refusal to
pay him his monthly remuneration.
8.
In addition, according to the information provided by the Claimant / Counter-Respondent
and confirmed by the Saudi futsal club Ettifaq (hereinafter: Ettifaq) and the Saudi Arabian
Football Federation (SAFF), the Claimant/Counter-Respondent played on loan basis in the
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period between 1 January 2021 and 1 April 2021 for Al Thuqbah, during which period he
was entitled to the total amount of USD 4,500 (i.e. USD 1,500 per month).
9.
On or around 5 July 2021, the Claimant / Counter-Respondent accepted to play for 3 months
for the Brazilian team AE Uruguaianense, an amateur team from an independent league,
without a contract, as he remained available to re-join the team of the Respondent / CounterClaimant. The Claimant / Counter-Respondent explains that in the period between July and
September 2021, he earned a monthly salary of BRL 3,750 (approximately USD 700).
10. What is more, on 5 October 2021, as confirmed by the Saudi Arabian Football Federation
(SAFF), the Claimant/Counter-Respondent concluded a contract with the Saudi Arabia (futsal)
club Ettifaq, valid between 6 October 2021 and 6 January 2022, based on which he was
entitled to receive a monthly salary of USD 3,000.
11. In addition, according to the SAFF, the Claimant / Counter-Respondent was never officially
registered with Ettifaq and is currently, after being already previously registered with Al
Thuqbah in the period between 25 February 2021 and 22 October 2021, currently registered
with Al Thuqbah again.
II. Proceedings before FIFA
12. On 12 October 2021, the Claimant / Counter-Respondent filed the claim at hand before FIFA.
A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant / Counter-Respondent
13. In his claim, the Claimant / Counter-Respondent explains that in the season 2019/2020, he
played for the Respondent / Counter-Claimant without any incident until March 2020. After
such month, the Claimant / Counter-Respondent explains that because of the COVID-19
pandemic, the Championship was cancelled and he returned to Brazil.
14. According to the Claimant / Counter-Respondent, he received his March 2020 salary at the
beginning of April 2020, and that from May 2020 onwards, he did not receive any salary,
only the ‘rent aid’ and ‘plan aid health’.
15. What is more, after returning to the Netherlands in August 2020, the Claimant / CounterRespondent was allegedly informed by the Respondent / Counter-Claimant that he had to
pay EUR 5,000 as compensation to the Respondent / Counter-Claimant, however received
one salary payment in September 2020. Despite this, the Claimant / Counter-Respondent
played in all matches of the Respondent / Counter-Claimant since August 2020.
16. What is more, the Claimant / Counter-Respondent explains that the Respondent / CounterClaimant unilaterally deducted EUR 500 from his salary and that in October 2020, the
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Championship was again cancelled, because of the COVID-19 pandemic. The Claimant /
Counter-Respondent explains that the Respondent forced him to leave the house he was
staying in, as a result of which the Claimant / Counter-Respondent had to stay at a Brazilian
friends’ place in the Netherlands.
17. Furthermore, the Claimant / Counter-Respondent explains that he was on loan with the Saudi
Arabian club Al Thuqbah between January and June 2021, and that – when he wanted to
get in contact with Respondent / Counter-Claimant in April 2021 - he could not get in contact
with the Respondent / Counter-Claimant anymore, as he was blocked from WhatsApp.
18. The Claimant / Counter-Respondent summarizes that:
-
-
-
for the 2020 season (January 2020 – December 2020), he received 4 monthly salaries
of EUR 1,100, i.e. EUR 4,400 and that 8 monthly salaries of EUR 1,100, i.e. EUR 8,800,
remained outstanding;
for the 2021 season (January 2021 – September 2021), 9 monthly salaries of EUR
1,100, i.e. EUR 9,900, remained outstanding;
he played for 6 months (January 2021 – June 2021) for Al Thuqbah, as a result of
which the overdue amount has been mitigated (with EUR 6,600) to reflect these
months of alternative employment;
as a result, the outstanding amount is EUR 8,800 + EUR 9,900 -/- EUR 6,600 = EUR
12,100.
19. The requests for relief of the Claimant / Counter-Respondent, as amended, were the
following:
-
-
EUR 12,100 as outstanding remuneration for the period between January 2020 and
September 2021;
EUR 23,100 as compensation for breach of contract, corresponding to the residual
value of the contract in the period between October 2021 and June 2023, i.e. 21
months x EUR 1,100;
EUR 6,000 as costs for airplane tickets, i.e. 3 seasons x 2 tickets at EUR 1,000 per
ticket;
EUR 6,600 as additional compensation based on art. 17 of the FIFA Regulations;
Legal costs in the amount of CHF 3,000 and procedural costs to be paid by the
Respondent.
b. Position of the Respondent / Counter-Claimant and counterclaim
20. In its reply, the Respondent / Counter-Claimant asked for the rejection of the Respondent /
Counter-Claimant’s claim and lodges a counterclaim against the Claimant / CounterRespondent, claiming an amount of EUR 6,000 as compensation for breach of contract.
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21. The Respondent / Counter-Claimant explains that throughout the contract, it did not only pay
his salary, but also helped the Claimant / Counter-Respondent with gambling debts and
administrative matters.
22. What is more, the Respondent / Counter-Claimant explains that after the outbreak of the
COVID-19 pandemic, the Claimant / Counter-Respondent wanted to return to Brazil as soon
as possible to see his girlfriend and family and that it was clear to him that he would not be
entitled to receive his salary. (Note: copy of a WhatsApp conversation on file, confirming that
the Claimant / Counter-Respondent proposed that he could get back to Brazil and that he
would not need to receive salary). Based on the foregoing, the Respondent / CounterClaimant is of the opinion that based on the principle of ‘no work, no pay’, it had no financial
obligations towards the Claimant / Counter-Respondent for the time he was in Brazil.
23. Moreover, the Respondent / Counter-Claimant explained that in the time the Claimant /
Counter-Respondent was in Brazil, it kept paying for the Claimant / Counter-Respondent’s
debts with the municipality and health insurance company, which was an obligation of the
Claimant / Counter-Respondent himself. Also, the Respondent / Counter-Claimant argued
that it paid an amount of EUR 7,540.21 ‘in advances’.
24. Additionally, the Respondent / Counter-Claimant explained that it duly paid the salaries
between August and October 2020 and that for the period while the Claimant / CounterRespondent was on loan, it had no financial obligations towards him. The Respondent /
Counter-Claimant further alleges that it only agreed with the Claimant / Counter-Respondent
that he could play for a period of five months, i.e. between November 2020 and March 2021
– in Saudi Arabia, and not, as incorrectly explained by the Claimant / Counter-Respondent,
between January and June 2021.
25. The Respondent / Counter-Claimant further explained that – due to the Claimant / CounterRespondent’s erratic behaviour during his time he was in Brazil – it wanted to make
agreements on the forehand with him. In this respect, on 6 November 2020, the parties
agreed via e-mail inter alia upon the following aspects:
-
-
the Claimant / Counter-Respondent would pay EUR 2,600 to the Respondent /
Counter-Claimant;
the contract between the parties would remain in force;
the Respondent / Counter-Claimant would not need to pay any salary between
November 2020 and March 2021 and would resume the salary payment as from
April 2021;
the Respondent / Counter-Claimant expected the Claimant / Counter-Respondent to
be back on 31 March 2021.
would the Claimant / Counter-Respondent decide to go to another club, despite his
valid contract with the Respondent / Counter-Claimant, he would pay the back the
debt of EUR 6,000 that has accrued since a few years, because the Respondent /
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Counter-Claimant made several payments connected to the Claimant / CounterRespondent in advance.
26. The Respondent / Counter-Claimant further argues that on 1 April 2021, the Claimant /
Counter-Respondent did not return to its club, but rather extended his stay in Saudi Arabia
for a few days and then returned to Brazil, after which he again tried to return to Saudi Arabia
in June 2021 (without success as he could not board the plane to Saudi Arabia).
27. What is more, the Respondent / Counter-Claimant found out that the Claimant / CounterRespondent had signed a contract with the Brazilian club AE Uruguaianense, for which he
started to play in August 2021, which is to be considered a breach of contract by the Claimant
/ Counter-Respondent. After this, on 8 October 2021, the Claimant / Counter-Respondent
apparently made his debut for another team, the Saudi Arabian club Ettifaq FC.
28. What is more, it requests for the rejection of the claimed airline tickets, as these are to be
considered “expense allowances” that are only owed if actually incurred.
29. The requests for relief of the Respondent, as amended, were the following:
-
a compensation for breach of contract in the amount of EUR 6,000, or alternatively
that at least an amount of EUR 7,540.21 should be deducted from the compensation
potentially owed to the Claimant / Counter-Respondent.
c. Position of the Claimant / Counter-Respondent to the counterclaim
30. In reply to the counterclaim, the Claimant/Counter-Respondent explained that the
Respondent/Counter-Claimant did not prove it paid the overdue amounts he claimed.
31. The Claimant/Counter-Respondent explains that he had a just cause to terminate the contract
and the Respondent/Counter-Claimant referred to the fact that the contract might have
effectively already ended before the Claimant/Counter-Respondent’s termination on 4
October 2021, which contravenes the allegations of Mr Badloe dated 1 August 2021, which
deemed that the Claimant/Counter-Respondent still had a valid contract.
32. Additionally, the Claimant/Counter-Respondent argued that at the date the claim in the
matter at hand was lodged, the contract with Ettifaq Sports Club was not yet available.
d. Position of the (potential) Intervening Parties
33. Despite having been invited to provide its reply to the entire case file, as well as the
counterclaim of the Respondent / Counter-Claimant, the Brazilian club, failed to provide its
position. What is more, the Confederação Brasileira de Futsal (CBFS) confirmed that AE
Uruguaianense is an ‘irregular’ club, and does not participate in any competition ‘promoted
by CBFS as well as the Federacao Gaucha de Futsal’.
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REF FPSD-3961
34. Despite having been invited to provide its reply to the entire case file, as well as the
counterclaim of the Respondent / Counter-Claimant, the Saudi Arabian club Al Thuqbah
failed to provide its position.
35. What is more, the Saudi Arabian club Ettifaq FC indicated that it is not to be considered as
the Claimant / Counter-Respondent’s new club, which would potentially be jointly liable for
any compensation the Claimant / Counter-Respondent should pay, as the Claimant / CounterRespondent was previously already under contract with Al Thuqbah.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. 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 12 October 2021 and submitted for decision
on 21 April 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.
37. 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
a Dutch (futsal) club, with the involvement of a Saudi Arabian (futsal) club.
38. 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 12 October 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
39. 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).
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c. Merits of the dispute
40. 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
41. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the answer to the question whether
one of the parties was factually in breach the contract and had effectively terminated the
employment relationship, which was in force between the parties as from the start of
2017/2018 season. Also, the parties appear to disagree – if a breach of contract and
consequent termination of the employment relationship could be established - on who should
be held responsible for the consequences of the termination of the contract and/or
employment relationship.
42. In this context, the Chamber acknowledged that it its task was to determine whether the
contractual relationship between the parties was effectively terminated, and if so, when said
termination took place and what the consequences of sauch termination would be.
43. First of all, and before analysing the arguments of the parties, the Chamber deemed it
appropriate to recall the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules (October 2021 edition), according to which a party that asserts a fact
has the burden of proving it. With this in mind, the Chamber deemed that it was up to the
parties to prove that the employment relationship, on the basis of which the respective claims
of the parties regarding outstanding remuneration and/or compensation for breach of
contract are based, was indeed terminated due to behaviour of the other party.
44. Moreover, the Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules,
pursuant to which it may consider and rely on any evidence not presented by the parties,
including without limitation the evidence generated by or within TMS.
45. Additionally, the Chamber wished to point out that, in accordance with art. 13 par. 1 of the
Procedural Rules, all documentation provided in the context of a dispute in front of FIFA
should be presented into one of the official FIFA languages (English, French, Spanish and
German).
46. In this context, the Chamber turned its attention to the documentation brought forward by
the parties and acknowledged that from the documentation submitted by the parties, the
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exact factual circumstances in the matter at hand, as well as the exact career path of the
Claimant / Counter-Respondent and the circumstances and events that had effectively
occurred, cannot not be easy and unequivocally established. In this respect, the members of
the Chamber wished to specify that some of the documents provided by the Respondent /
Counter-Claimant, i.e. the alleged bank account statements and the email exchange between
the Claimant / Counter-Respondent and the Respondent / Counter-Claimant’s director, Mr
Badloe, were provided without a translation in one of the official FIFA languages and could
therefore not be taken into account. The same goes for some of the email exchanges that
were provided by the Claimant / Counter-Respondent: those also do not appear to have been
translated into one of the official FIFA languages and could therefore not be taken into
account.
47. Based on the foregoing considerations as well as the documentation on file, in combination
with the respective clarifications from the CBFS and the SAFF, the members of the Chamber
deemed it appropriate to take into account the following basic assumptions, which could be
established based on the documentation available at the Chamber’s satisfaction:
•
on 10 April 2019, the Claimant / Counter-Respondent signed a contract with the
Respondent / Counter-Claimant for the period between 1 August 2019 and 30 June
2023;
•
in March 2020, after the outbreak of the COVID-19 pandemic, the Claimant / CounterRespondent wished to return to Brazil to stay with his family, where he stayed there in
the period between March and July 2020, until returning to the Netherlands in August
2020;
•
in the period between August and October 2020, the Claimant / Counter-Respondent
continued to train with Respondent / Counter-Claimant and – according to the
Respondent / Counter-Claimant, which had provided some non-translated receipts received his monthly salary, which is however denied by the Claimant / CounterRespondent;
•
on 6 November 2020, the parties allegedly agreed that the Claimant / CounterRespondent would be loaned to Al Thuqbah in the period between November 2020 and
March 2021, however, since the relevant email dated 6 November 2020 is only available
in Dutch and not in one of the official FIFA languages, it remained unclear to what salaries
the Claimant / Counter-Respondent was entitled;
•
moreover, in the period between November and December 2020, the Claimant /
Counter-Respondent was not yet in Saudi Arabia or started playing with Al Thuqbah, and
as such, the temporary employment relationship with Al Thuqbah did not yet start;
•
the Claimant / Counter-Respondent was consequently on loan with Al Thuqbah in the
period between 1 January 2021 and 31 March 2021, however, according to the SAFF,
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he was registered with said club in the period between 25 February 2021 and 22 October
2021;
•
despite the parties having agreed that the Claimant / Counter-Respondent would return
come back on 31 March 2021 to the Netherlands, however instead, the Claimant /
Counter-Respondent returned to Brazil in April 2021, put the Respondent / CounterClaimant in default for alleged outstanding salaries, and also started to play for the
Uruguayan club AE Uruguaianense in the period between July and September 2021;
•
the Claimant / Counter-Respondent was – in the period between July and September
2021 allegedly not able to contact the Respondent / Counter-Claimant to request an
update about his contractual obligations in the Netherlands, and the Respondent /
Counter-Claimant was under the impression that the Claimant / Counter-Respondent
stayed a few days after 31 March 2021 in Saudi Arabia and consequently travelled to
Brazil;
•
on 1 August 2021, the Respondent / Counter-Claimant approached the Claimant /
Counter-Respondent and requested him to return to the Netherlands immediately, to
which the Claimant / Counter-Respondent replied complaining about the behaviour of
Respondent / Counter-Claimant’s manager, and explaining that the Respondent /
Counter-Claimant should pay for the flight and accommodation;
•
in September 2021, the Claimant / Counter-Respondent put the Respondent / CounterClaimant in default and eventually terminated the contract with the Respondent /
Counter-Claimant on 4 October 2021;
•
on 5 October 2021, the Claimant / Counter-Respondent signed a contract with the Saudi
Arabian futsal club Ettifaq, where he was never officially registered, and in the
meanwhile, is again playing for Al Thuqbah as from allegedly January 2022.
48. The foregoing having been established, the members of the Chamber started to analyse the
aforementioned circumstances, and outlined that from the above basic assumptions, as well
as the documentation on file, a few conclusions could be drawn.
49. The members of the Chamber noted that the Claimant / Counter-Respondent, who had a
valid contract for the period between 1 August 2019 and 30 June 2023 with the Respondent
/ Counter-Claimant, was loaned to Al Thuqbah until 31 March 2021 however failed to return
after the expiry of the loan period to the Respondent / Counter-Claimant.
50. To the contrary, the Chamber noted that the Claimant / Counter-Respondent - on 5 July
2021 - signed a new contract with an amateur team in Brazil, where he allegedly played in
the period between July and September 2021, without having contacted or received
permission from the Respondent / Counter-Claimant, eventually continuing his career in Saudi
Arabia with Ettifaq.
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51. As such, as a first conclusion, the Chamber established that the Claimant / CounterRespondent had signed a new employment contract with a (non-affiliated) club in Brazil in
July 2021, while still being under contract with the Respondent / Counter-Claimant.
52. What is more, the members of the Chamber turned their attention to the alleged outstanding
remuneration the Claimant / Counter-Respondent is claiming for the period between January
2020 and September 2021, which allegations are denied by the Respondent / CounterClaimant, and deemed it, based on the documentation on file as well as the explanations
provided by the parties, appropriate to draw the following conclusions:
•
For the period between January and March 2020:
-
•
For the period between April and July 2020:
-
•
the Claimant / Counter-Respondent did not contest the Respondent / CounterClaimant’s allegations that in the period between April and July 2020, he remained in
Brazil and that it mutually agreed between him and the Respondent / CounterClaimant that no salaries would be payable.
For the period between August and October 2020:
-
•
it remained uncontested between the parties that the salaries were duly paid by the
Respondent / Counter-Claimant to the Claimant / Counter-Respondent.
the Respondent / Counter-Claimant was not able to demonstrate that it duly paid the
Claimant / Counter-Respondent’s salary in this period, as it only provided an alleged
banking overview in Dutch, that is, not into one of the official FIFA languages, and
from the explanation of the Respondent / Counter-Claimant, it appears that it also
paid’ next to housing allowances - several alleged debts of the Claimant / CounterRespondent to the municipality and health insurance provider.
For the period between November 2020 and March 2021:
-
the Claimant / Counter-Respondent did not explicitly deny the Respondent / CounterClaimant’s allegations that in the period between November and March 2021, the
Respondent / Counter-Claimant had in principle no salary obligations towards him,
however the Respondent / Counter-Claimant only provided a copy of an email dated
6 November 2020 n Dutch, that is, not into one of the official FIFA languages, in an
attempt to prove said circumstances. Moreover, from the information provided by the
SAFF, it can be concluded that the loan with Al Thuqbah allegedly only started on 1
January 2021. Hence, the members of the Chamber concluded that the Respondent /
Counter-Claimant, without valid reason, failed to pay the Claimant / CounterRespondent his salaries for the months of November and December 2020.
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•
For the period between April and September 2021:
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the Claimant / Counter-Respondent allegedly started to play - without permission
from the Respondent / Counter-Claimant despite still being contractually bound to
the Respondent / Counter-Claimant - for other clubs in the mentioned period, and
was thus not available to render his services to the Respondent / Counter-Claimant.
Hence, the members of the Chamber concluded that in the mentioned period, the
Respondent / Counter-Claimant had no salary obligations towards the Claimant /
Counter-Respondent. On the other hand, the Chamber wished to point out that the
Respondent / Counter-Claimant only requested the Claimant / Counter-Respondent
to return to its club on 1 August 2021.
53. Based on the following observations regarding the salary obligations, the members of the
Chamber reached a second conclusion, i.e. they established that the Respondent / CounterClaimant had failed to demonstrate that it duly paid the Claimant / Counter-Respondent’s
salaries in the period between August and December 2020.
54. Having established that several salaries the Claimant / Counter-Respondent remained unpaid,
subsequently, the members of the Chamber deemed it relevant to also address the
circumstances as they allegedly had occurred in the period between July and October 2021,
as in said period, the parties tried to get in contact with each other, and the Claimant /
Counter-Respondent eventually sent a termination letter to the Respondent / CounterClaimant on 4 October 2021.
55. At this point, the members of the Chamber wished to point out that the Claimant / CounterRespondent, despite the fact that there were indeed several salaries outstanding, for which
he had put the Respondent / Counter-Claimant in default on 1 April 2021, still unilaterally
decided to start playing for a Brazilian club as from July 2021, without informing and/or
obtaining permission from the Respondent / Counter-Claimant, or officially terminating the
contract with the Respondent / Counter-Claimant. Said unilateral termination was eventually
only made on 4 October 2021, when the Claimant / Counter-Respondent was already for a
long period absent from the Respondent / Counter-Claimant’s premises and had in the
meanwhile already played for a Brazilian club.
56. On the other hand, the members of the Chamber were eager to emphasize that the
Respondent / Counter-Claimant only requested the Claimant / Counter-Respondent to return
to its club at the beginning of August 2021, after not having heard from the Claimant /
Counter-Respondent since April 2021 and not having had used the services of the Claimant
/ Counter-Respondent since at least January 2021. Said stance, in view of the Chamber,
showed that the Respondent / Counter-Claimant, in the summer period of 2021, also did not
appear to be active in following up on the Claimant / Counter-Respondent and/or interested
in making use of his services.
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57. The members of the Chamber wished to point out that the exact circumstances surrounding
the course of the employment relationship and the termination thereof could - based on the
documentation on file – not be clearly established.
58. In view of all the foregoing circumstances, the members of the Chamber reached a third
conclusion in the sense that they were comfortably satisfied, based on the elements on file,
to establish that the Claimant / Counter-Respondent, in July 2021, was no longer interested
in rendering his services for the Respondent / Counter-Claimant, whereas the latter itself had
also showed a rather passive stance and lack of interest in making use of the services of the
Claimant / Counter-Respondent, by only requesting him to come back in August 2021.
59. In conclusion, the members of the Chamber therefore decided that the employment
relationship, contrary to the letter of the Claimant / Counter-Respondent dated 4 October
2021, had effectively ended as from July 2021, when both parties had mutually departed
from the contract and did not appear to be longer interested in each other’s services.
60. Following the above line of reasoning, the members of the Chamber concluded that, since
none of the parties was sincerely interested in continuing the employment relationship, no
compensation for breach of contract to any of the parties could be awarded. As such, both
the request of the Claimant / Counter-Respondent as well as the request of Respondent /
Counter-Claimant to be awarded compensation for breach of contract, and also the request
to be awarded additional compensation had to be rejected.
ii. Consequences
61. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of the fact that the parties, as from July 2021, apparently were no longer
genuinely interested in each other’s services.
62. The Chamber observed that the outstanding remuneration in July 2021, coupled with the
specific requests for relief of the Claimant / Counter-Respondent, was equivalent to 5 salaries
under the contract, amounting to EUR 1,100 each.
63. As a consequence, following the request of the Claimant / Counter-Respondent and in
accordance with the general legal principle of pacta sunt servanda, the Chamber decided that
the Respondent / Counter-Claimant is liable to pay to the Claimant / Counter-Respondent the
amounts which were outstanding under the contract at the moment of the termination, i.e.
EUR 5,500 (i.e. 5 times EUR 1,100 for the period between August and December 2020).
64. In addition, taking into consideration the Claimant / Counter-Respondent’s request as well as
the constant practice of the Chamber in this regard, the latter decided to award the Claimant
/ Counter-Respondent interest at the rate of 5% p.a. on the outstanding amounts as from
12 October 2021 until the date of effective payment.
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65. Following the conclusions as from point 59. and 60., the members of the Chamber further
established that both the request of the Claimant / Counter-Respondent as well as the request
of Respondent / Counter-Claimant to be awarded compensation for breach of contract, and
also the request to be awarded additional compensation had to be rejected.
66. Furthermore, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4
of the Procedural Rules as well as to the longstanding and well-established jurisprudence of
the DRC, in accordance with which no procedural compensation shall be awarded in
proceedings in front of the Dispute Resolution Chamber. Consequently, the members of the
Chamber decided to reject the Claimant/Counter-Respondent’s request relating to legal costs.
67. Finally, the Chamber decided that the requests for reimbursement of flight tickets as made
by the Claimant / Counter-Respondent is also to be rejected, as the Claimant / CounterRespondent failed to demonstrate that he effectively incurred said costs.
68. The members of the Chamber finished their considerations by establishing that thus, the claim
of the Claimant / Counter-Respondent is partially accepted and that the counterclaim of the
Respondent / Counter-Claimant is rejected.
iii. Compliance with monetary decisions
69. 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.
70. 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.
71. Therefore, bearing in mind the above, the DRC decided that the Respondent / CounterClaimant must pay the full amount due (including all applicable interest) to the Claimant /
Counter-Respondent 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 the Respondent / Counter-Claimant in accordance
with art. 24 par. 2, 4, and 7 of the Regulations.
72. The Respondent / Counter-Claimant 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.
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73. 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
74. 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.
75. 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.
76. 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 / Counter-Respondent, Raphael Felipe Ortiz de Oliviera, is partially
accepted.
2.
The claim of the Respondent / Counter-Claimant, FC Eindhoven Futsal, is rejected.
3.
The Respondent / Counter-Claimant, has to pay to the Claimant / Counter-Respondent, the
following amount(s):
- EUR 5,500 as outstanding remuneration, plus 5% interest p.a. as from 12 October 2021
until the date of effective payment.
4.
Any further claims of the Claimant / Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
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 / Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
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).
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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