Labour Disputes
Texto da decisão
REF FPSD-4434
Decision of the
Dispute Resolution Chamber
passed on 9 February 2022
regarding an employment-related dispute concerning the player Ezequiel Osvaldo Cerruti
BY:
Daan DE JONG (The Netherlands), DRC Judge
CLAIMANT:
Ezequiel Osvaldo Cerruti, Argentina
RESPONDENT:
Coritiba - PR, Brazil
REF FPSD-4434
I Facts
1. On 13 October 2020, the player Ezequiel Osvaldo Cerruti and Coritiba - PR concluded an
employment contract valid as from the date of signature untuil 30 June 2022.
2. On 1 June 2021, the parties concluded a mutual termination agreement with the following
contents:
CLÁUSULA SEGUNDA - IMPORTES ADEUDADOS
1. Las partes reconocen que se deben los siguientes valores:
a) BRL neto 170.148,00 (ciento setenta mil, ciento cuarenta y ocho reales), correspondientes a los
salarios de febrero y mayo de 2021;
b) BRL 20.290,00(veinte mil, doscientos noventa reales)netos correspondientes al salario 13o de 2020;
c) BRL 72.000,00 (setenta y dos mil reales)referidoal monto de FGTS adeudado en relación con el saldo
base;
d) BRL 3.959,99(tres mil novecientos cincuenta y nueve reales y noventa y nueve centavos) referidos a
la rescisión fgts;
e) BRL 134.658,58 (ciento treinta y cuatro mil, seiscientos cincuenta y ocho y cincuenta y ocho
centavos) referidos a los montos netos de los montos de rescisión descritos en el TRCT adjunto.
TOTAL: BRL 401.056,57 (cuatrocientos mil cincuenta y seis reales y cincuenta y siete centavos).
2. De común acuerdo, las partes declaran que dichos importes se abanten de la siguiente manera:
a) El monto de BRL 75.959,99, referido al FGTS y descrito en los puntos "c" y "d", se pagará en cuotas
mensuales 10(diez) de BRL 7.595,99, entre julio de 2021 y abril de 2022, surgiendo las actualizaciones
legales correspondientes.
b) BRL 85.074,00 netos, referidos a la porción de los montos descritos en el inciso "a" de la cláusula
anterior, se pagarán en una sola cuota hasta el 20 de junio de 2021;
c) Los BRL 240.021,59 netos, referidos a la parte de los montos descritos en la partida "a" y a la
integralidad a las partidas "b" y "e" de la cláusula anterior, se pagarán en 10 (diez) cuotas iguales y
consecutivas de BRL 24.002,16, con vencimiento el día 20, entre los meses de julio de 2021 y abril de
2022.
CLÁUSULA TERCERA – RETRASO
En caso de retraso en el pago de cuotas ajustadas por más de 30 (treinta) días, se percibirán intereses
de mora del 6% (seis por ciento) anual y multa del 5% (cinco por ciento) sobre el importe incumplido,
desde la finalización del plazo para la exoneración del importe hasta la fecha del pago real.
Free translation into English:
CLAUSE TWO – AMOUNTS DUE
1. The parties acknowledge that the following amounts are due:
(a) BRL 170,148.00(one hundred and seventy thousand, one hundred and forty-eight reais) net,
corresponding to the salaries of February and May 2021;
b) BRL 20,290.00 (twenty thousand, two hundred and ninety reais) net, corresponding to the 13th
salary of 2020;
c) BRL 72,000.00 (seventy-two thousand reais) referring to the amount of FGTS due in relation to the
base balance;
REF FPSD-4434
d) BRL 3,959.99 (three thousand nine hundred and fifty-nine reais and ninety-nine cents) referring to
the termination fgts;
e) BRL 134,658.58 (one hundred and thirty-four thousand, six hundred and fifty-eight and fifty-eight
cents) referring to the net amounts of the termination amounts described in the attached TRCT.
TOTAL: BRL 401,056.57 (four hundred thousand and fifty-six reais and fifty-seven cents).
2. By mutual agreement, the parties declare that the said amounts shall be paid as follows:
a) The amount of BRL 75,959.99, referred to the FGTS and described in points “c” and “d”, shall be
paid in 10 (ten)monthly instalments of BRL 7,595.99, between July 2021 and April 2022, arising the
corresponding legal updates.
b) BRL 85,074.00 net, referring to the portion of the amounts described in item “a” of the preceding
clause, shall be paid in a single installment until June 20, 2021;
c) The net BRL 240,021.59, referring to the portion of the amounts described in item “a” and to the
integral to items “b” and “e” of the preceding clause, shall be paid in 10 (ten) equal and consecutive
installments of BRL 24,002.16, due on the 20th, between the months of July 2021 and April 2022.
CLAUSE THREE – DELAY
In case of delay in the payment of adjusted instalments for more than 30 (thirty) days, default interest
of 6% (six per cent) per annum and a fine of 5% (five per cent) on the unpaid amount will be charged
from the end of the period for the exoneration of the amount until the date of actual payment.
3. On 20 August 2021, the player, via his representative, sent a default notice requesting the payment
of BRL 116,672.15, plus a penalty of BRL 5,833.60 and interest at 6% p.a.
4. On 30 November 2021, Ezequiel Osvaldo Cerruti lodged a claim before FIFA for outstanding
remuneration and requested the payment of BRL 255,217.98 net, plus 6% interest as follows:
o BRL 85,074.00, net, established in clause 2b), due on 20 June 2021.
o BRL 37,979.95 net, corresponding to 5 instalments of the 10 agreed in clause 2a, of BRL
7,595.99 each, for the months of July 2021 to November 2021 (also reserving for the instalments
until April 2022).
o BRL 120,010.80 net, corresponding to 5 instalments of the 10 agreed in the second clause c of
BRL 24,002.16 each, due on the 20th, between the months of July 2021 and November 2021
(November next to expire, also reserving for the instalments until April 2022);
BRL 12,153.23 as a penalty of 5% of the amounts due to date (BRL 243,064.75).
5. In its reply to the claim, the Respondent expressed that it accepts the claimed amounts, but
requested to pay in 24 instalments with interest, whereas the first instalment would comprise 20%
of the debt.
6. In this respect, the Respondent requested the claimant to understand its tough financial situation.
7. In its replica, the Claimant requested the payment of BRL 306,261.05 net as follows:
o BRL 85,074.00, net, established in clause 2b), due on 20 June 2021.
o BRL 53,171.93.- net, corresponding to 7 instalments of the 10 agreed in clause 2a, of BRL 7,595.99
each, for the months of July 2021 to January 2022 (also reserving for the instalments until April 2022).
o BRL 168,015.12 net, corresponding to 7 instalments of the 10 agreed in the second clause c of BRL
24,002.16 each, due on the 20th, between the months of July 2021 and January 2022 (also reserving
for the instalments until April 2022);
REF FPSD-4434
- To these sums should be added the penalty of 5% fixed as a fine, amounting to BRL 15,313.
- To these sums shall be added an interest of 6% per annum from the date of each due date in
accordance with the provisions of the termination agreement.
8. In addition, the Claimant requested to be provided with his tax certificates.
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Single Judge) analysed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was presented to FIFA on 30 November 2021 and submitted for decision on 09
February 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.
2. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit.
b) of the Regulations on the Status and Transfer of Players (August 2021 edition), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Argentinean player and a Brazilian club.
3. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and considering
that the present claim was lodged on 30 November 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
4. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof. Likewise, the Single Judge stressed the wording of art.
13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the
parties, including without limitation the evidence generated by or within the Transfer Matching
System (TMS).
c. Merits of the dispute
REF FPSD-4434
5. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
6.
First of all, the Single Judge noted that, on 30 November 2021, the player Ezequiel Osvaldo
Cerruti and Coritiba -PR concluded an employment contract valid as from the date of signature
untuil 30 June 2022.
7.
Subsequently, the Single Judge observed that, on 1 June 2021, the parties concluded a mutual
termination agreement by means of which they agreed upon the following:
CLAUSE TWO – AMOUNTS DUE
1. The parties acknowledge that the following amounts are due:
(a) BRL 170,148.00(one hundred and seventy thousand, one hundred and forty-eight reais)
net, corresponding to the salaries of February and May 2021;
b) BRL 20,290.00 (twenty thousand, two hundred and ninety reais) net, corresponding to the
13th salary of 2020;
c) BRL 72,000.00 (seventy-two thousand reais) referring to the amount of FGTS due in relation
to the base balance;
d) BRL 3,959.99 (three thousand nine hundred and fifty-nine reais and ninety-nine cents)
referring to the termination fgts;
e) BRL 134,658.58 (one hundred and thirty-four thousand, six hundred and fifty-eight and
fifty-eight cents) referring to the net amounts of the termination amounts described in the
attached TRCT.
TOTAL: BRL 401,056.57 (four hundred thousand and fifty-six reais and fifty-seven cents).
2. By mutual agreement, the parties declare that the said amounts shall be paid as follows:
a) The amount of BRL 75,959.99, referred to the FGTS and described in points “c” and “d”,
shall be paid in 10 (ten)monthly instalments of BRL 7,595.99, between July 2021 and April
2022, arising the corresponding legal updates.
b) BRL 85,074.00 net, referring to the portion of the amounts described in item “a” of the
preceding clause, shall be paid in a single installment until June 20, 2021;
c) The net BRL 240,021.59, referring to the portion of the amounts described in item “a” and
to the integral to items “b” and “e” of the preceding clause, shall be paid in 10 (ten) equal and
consecutive installments of BRL 24,002.16, due on the 20th, between the months of July 2021
and April 2022.
CLAUSE THREE – DELAY
REF FPSD-4434
In case of delay in the payment of adjusted instalments for more than 30 (thirty) days, default
interest of 6% (six per cent) per annum and a fine of 5% (five per cent) on the unpaid amount will
be charged from the end of the period for the exoneration of the amount until the date of actual
payment.
8.
Thereafter, the Single Judge took note of the fact that the Claimant lodged a claim for outstanding
remuneration and requested the payment of BRL 255,218.98 arising from said amount, and
subsequently amended his claim to BRL 306,261.05, detailed as follows:
o BRL 85,074.00, net, established in clause 2b), due on 20 June 2021.
o BRL 53,171.93.- net, corresponding to 7 instalments of the 10 agreed in clause 2a, of BRL
7,595.99 each, for the months of July 2021 to January 2022 (also reserving for the instalments
until April 2022).
o BRL 168,015.12 net, corresponding to 7 instalments of the 10 agreed in the second clause c of
BRL 24,002.16 each, due on the 20th, between the months of July 2021 and January 2022 (also
reserving for the instalments until April 2022);
- To these sums should be added the penalty of 5% fixed as a fine, amounting to BRL 15,313.
- To these sums shall be added an interest of 6% per annum from the date of each due date in
accordance with the provisions of the termination agreement.
9.
On the other hand, the Judge took note of the Respondent’s position and that, in particular, it
fundamentally acknowledged the claimed debt, while requested to pay the relevant amount in 24
instalments.
10. In view of the above, and considering that the claim is fundamentally uncontested, the Single Judge
observed that the player is entitled to the following:
-
BRL 85,074 net as established in clause 2b of the agreement, plus 5% interest p.a. as from 21
June 2021.
-BRL 53,171.93 net (i.e. 7 595.99*7 from July 2021 to January 2022), as established in clause 2
b of the agreement
-BRL 168,015.12 net (i.e. 24 002.16 from July 2021 to January 2022), as established in clause 2
c of the agreement,
11. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge
established that the Respondent has to pay to the Claimant, the total outstanding amount of BRL
306 261.05, as detailed above.
12. Furthermore, and taking into account the contents of the contract as well as the jurisprudence of
the DRC, the Single Judge decided to award 6% interest p.a. over the aforementioned amount as
from the due dates until the date of effective payment.
13. In addition, the DRC Judge noted that clause 3 of the mutual termination agreement stipulated the
following:
REF FPSD-4434
CLAUSE THREE – DELAY
In case of delay in the payment of adjusted instalments for more than 30 (thirty) days, default
interest of 6% (six per cent) per annum and a fine of 5% (five per cent) on the unpaid amount will
be charged from the end of the period for the exoneration of the amount until the date of actual
payment.
14. Therefore, taking into account the player’s request and the principle of pacta sunt servanda, the
Single Judge of the DRC decided that the club shall pay 5% of the debt (i.e. BRL 15,315) to the
player.
ii. Compliance with monetary decisions
15. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
body shall also rule on the consequences deriving from the failure of the concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
16. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
17. Therefore, bearing in mind the above, the Single Judge decided that the club 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 creditor, 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 club in accordance with art. 24
par. 2, 4, and 7 of the Regulations.
18. The club 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.
19. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d.
Costs
20. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were
to be imposed on the parties.
REF FPSD-4434
21. Furthermore, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules,
and decided that no procedural compensation shall be awarded in these proceedings.
22. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-4434
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ezequiel Osvaldo Cerruti, is partially accepted.
2.
The Respondent, Coritiba - PR, must pay to the Claimant, the following amounts:
- BRL 306,261.05 net as outstanding remuneration plus interest as follows:
6% interest p.a. over the amount of BRL 85,074 as from 21 June 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 7,595.99 as from 1 August 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 7,595.99 as from 1 September 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 7,595.99 as from 1 October 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 7,595.99 as from 1 November 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 7,595.99 as from 1 December 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 7,595.99 as from 1 January 2022 until the date of effective payment;
6% interest p.a. over the amount of BRL 7,595.99 as from 1 February 2022 until the date of effective payment;
6% interest p.a. over the amount of BRL 24,002.16 as from 20 August 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 24,002.16 as from 20 September 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 24,002.16 as from 20 October 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 24,002.16 as from 20 November 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 24,002.16 as from 20 December 2021 until the date of effective payment;
6% interest p.a. over the amount of BRL 24,002.16 as from 20 January 2022 until the date of effective payment;
6% interest p.a. over the amount of BRL 24,002.16 as from 20 February 2022 until the date of effective payment;
- BRL 15,313 as penalty.
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 (August 2021 edition),
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.
REF FPSD-4434
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
REF FPSD-4434
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).
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