Labour Disputes
Texto da decisão
REF FPSD-2938
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 18 August 2021
regarding an employment-related dispute concerning the player Thiago Starling Otoni
Moura
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Thiago Starling Otoni Moura, Brazil
Represented by Bortolato Advogados
RESPONDENT:
Semen Padang Football Club, Indonesia
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REF FPSD-2938
I.
FACTS OF THE CASE
1.
On 24 August 2019, the Brazilian player, Mr Thiago Starling Otoni Moura (hereinafter: the
player or the Claimant) received from the Indonesian club, Semen Padang Football Club
(hereinafter: the club or the Respondent) an employment offer containing the terms of an
employment relationship to be initiated between them “for the Indonesian league 2019”
(hereinafter: the employment offer).
2.
In accordance with the employment offer, the player would be entitled, inter alia, to a total
remuneration of IDR 270,000,000, payable as follows:
a. IDR 20,000,000 as “down payment”; and
b. IDR 62,500,000 as monthly remuneration from 1 September 2019 until 31 December
2019.
3.
The employment offer was only signed by the club’s director, Mr Hasfi Rafiq, and sent to
the player’s intermediary by a club’s representative via the electronic message application,
WhatsApp. The document was not counter-signed by the player.
4.
On 27 August 2019, the player travelled to Indonesia in order to join the club. In accordance
with the player, the flights tickets were provided by the club as per the employment offer.
5.
On the same date, i.e. 27 August 2019, the player was announced by the unofficial
Instagram page “infosemenpadangfc” as the new hiring of the club. Subsequently, he
started training with the team and underwent medical examinations.
6.
On 28 August 2019, the player received the results of the MRI examination conducted by
the club. Said exam established that the player had a health problem described as “partial
tear PCL, minimal effusion / bursitis in the medial and lateral condyle region of the distal
femur and small cyst in the posterior region of the ACL”.
7.
On 5 September 2019, the player took part in a trial test at the Club Persela Lamongan,
also in Indonesia.
II.
PROCEEDINGS BEFORE FIFA
8.
On 28 June 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the player
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9.
In his claim, the player maintained that he initiated an employment relationship with the
club – encompassed in the employment offer – and moved to Indonesia in order to render
his services. In this regard, the player referred to the posts allegedly shared in the club’s
social media, as well as to the videos of the training sessions available in the internet.
10.
Notwithstanding the above, the player stated that “around 8 (eight) days after the
Claimant’s arrival, the Respondent informed that it was no longer interested in the athlete’s
services, reason why the Claimant could no longer join the trainings of the Respondent”.
Consequently, he held that the club breached the contract (i.e. the employment offer) and
should be liable to the consequences that follow.
11.
Subsequently, the player referred to FIFA’s jurisprudence and to the content of art. 17 of
the Regulations on the Status and Transfer of Players (RSTP). By doing so, he informed that
he did not sign a new employment agreement following the termination of his relationship
with the club and, hence, that the compensation should be equal to the residual value of
the employment offer.
12.
Having established the above, the player requested, inter alia, compensation for breach of
contract in the amount of USD 18,706.98 (equal to IDR 270,000,000, according to the
player), corresponding to the total value of the employment offer, plus 5% interest p.a. as
from 27 August 2019 until the date of effective payment.
b.
Position of the club
13.
In its reply, the club argued that it had never initiated an employment relationship with the
player. In particular, the club mentioned that it prepared the employment offer on the
player’s request in order to allow him to participate in physical and medical tests.
14.
As to the employment offer, the club pointed out that it was not signed by the player. As
a consequence, the club opposed the player’s allegations and maintained that said
document did not fulfil the essentialia negotii and could not be considered as valid and
binding to the parties.
15.
In continuation, the club stressed that the social media submitted by the player was
published by unofficial pages, as well as that the videos expressly referred to the “trial
period”. Accordingly, the club remarked that the player “only came for a trial and medical
check-up test”, but was never announced as an official player nor took part in matches by
the club, as suggested in the statement of claim.
16.
Additionally, the club informed that the player did a “medical check-up” and was
diagnosed with a health condition that affected his quality to play football. In accordance
with the club, the same results were also confirmed by the other Indonesian club, Persela
Lamongan, in which the player had also passed through a trial period.
17.
Based on the foregoing, the club requested the player’s claim to be entirely dismissed.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
Competence and applicable legal framework
18.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
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 28 June 2021 and submitted
for decision on 18 August 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
19.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the RSTP (edition
February 2021), 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 Indonesian club.
20.
Subsequently, the DRC Judge 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 RSTP (edition February 2021), and considering that the present claim was
lodged on 28 June 2021, said edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b.
Burden of proof
21.
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
22.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
23.
Merits of the dispute
His competence and the applicable regulations having been established, the DRC Judge
entered into the merits of the dispute. In this respect, the DRC Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
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considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
24.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether there was an
employment relationship between them and, if so, the consequences thereof.
25.
In this context, the DRC Judge acknowledged that the player, on his part, argued that he
was de facto employed by the club after receiving the employment offer and joining the
club’s training. In addition, the player claimed that the club unlawfully terminated the
contract (i.e. the employment offer) and should be liable to pay compensation accordingly.
26.
On the other hand, the DRC Judge was also observant that the club categorically denied
the existence of an employment relationship with the player. In this respect, the club
admitted that it sent the player’s representative the employment offer via WhatsApp,
however only for the sake of a probation period. Furthermore, the club clarified that the
player failed the medical tests and, as a consequence, was dully informed that he would
not be able to permanently join its squad.
27.
In view of this dissent between the parties, the DRC Judge considered that his main task
was to determine if the employment offer is to be considered a valid and binding contract
to the parties.
28.
In doing so, the DRC Judge started by recalling the well-established jurisprudence of the
Dispute Resolution Chamber which dictates that, in order for an employment contract to
be considered as valid and binding, apart from the signature of both the employer and the
employee, it should contain the essentialia negotii of an employment contract, such as the
parties to the contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee.
29.
With the above in mind, the DRC Judge turned his attention to the documentation on file
and went on carefully analysing the content of the employment offer submitted by the
player. As such, the DRC Judge observed that: (i) it contains the proper identification of the
parties; (ii) it provides for the duration of the employment relationship and the payable
remuneration to the player; and (iii) it relates to the player as being employed as a footballer
with the club.
30.
Nevertheless, the DRC Judge further observed that the employment offer was only signed
by the club’s representative and did not include the consent of the player. In this respect,
the DRC Judge concurred with the club’s argumentation and considered that the
employment offer was not designed to be a bilateral document (i.e. an employment
contract), but solely a unilateral offer to the player in order to enable his participation in a
trial period. The DRC Judge was moreover comforted in his decision by the fact that there
is no wording, nor area, in the employment offer which was designed for the player to sign.
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31.
The DRC Judge also found it noteworthy that the player did not provide any evidence
capable of demonstrating that any other document was ever concluded between the parties
(or even sent by the player to the club) in order to confirm that the conditions described in
the employment offer were indeed validated.
32.
In light of the abovementioned considerations, the DRC Judge concluded that the essential
elements mentioned by the jurisprudence were not fully included in the document at the
basis of the dispute. Likewise, the DRC Judge deemed that the employment offer was not
capable of triggering the consequences of a labour relationship between the parties.
33.
Although confident of the foregoing line of reasoning, the DRC Judge wished in any event
and for the sake of completeness to outline that the documentation brought forward by
the parties and the overall developments of the case corroborated with the club’s allegation
that the player was only undergoing a trail period. Specifically, the DRC Judge highlighted
that: (i) the player confessed that he stayed at the club for only 8 days; (ii) the videos filed
by the player expressly mentioned that he was in a trial period; (iii) the player was diagnosed
with an injury during the medical examinations conducted by the club, previously to the
execution a labour agreement; and (iv) the player subsequently joined another Indonesian
club for a second test.
34.
To this extent, the DRC Judge recalled that, on the basis of art. 18 par. 4 of the Regulations,
a club wishing to employ a player has to exercise due diligence and carry out all relevant
medical examination prior to entering into an employment contract with a player.
Therefore, by referring to art. 12, par. 3 of the Procedural Rules, the DRC Judge was also
of the opinion that the player could not meet his burden of proof in order to demonstrate
that an employment relationship was ever initiated with the club.
35.
Consequently, the DRC Judge determined that there being no employment agreement
between the parties, no breach occurred and hence no compensation should be awarded
to the player in the case at stake. It followed that the player’s claim should be entirely
rejected.
d.
Costs
36.
Lastly, the DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to
which “DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC Judge decided that
no procedural costs were to be imposed on the parties.
37.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Thiago Starling Otoni Moura, is rejected.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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