Labour Disputes
Texto da decisão
REF FPSD-5227
Decision of the
Dispute Resolution Chamber
passed on 7 April 2022
regarding an employment-related dispute concerning the player Miguel
Palha
BY:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Jérôme Perlemuter (France), member
CLAIMANT:
Miguel Palha, Portugal
Represented by João Rodrigues de Oliveira
RESPONDENT:
F91 Dudelange, Luxemburg
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I.
Facts of the case
1.
On 31 May 2019, the Portuguese player Miguel Palha (hereinafter: the player) and the
Luxembourg club Union Tirus Pétange (hereinafter: Pétange) concluded an employment
contract (hereinafter: the contract), valid between 1 July 2019 and 31 May 2022 (in which it
is explicitly mentioned that the season 2021/2022 is optional for the club), based on which
the player was entitled to receive a monthly salary of EUR 2,070.
2.
On 26 January 2021, Pétange and the Luxembourgian club F91 Dudelange (hereinafter:
Dudelange) concluded a transfer agreement for the transfer on loan basis of the player, in
which Pétange agreed with the player ‘getting a license at Dudelange’ and based on which
Dudelange committed to pay EUE 4,000.
3.
On 30 January 2021, the player and Dudelange signed an employment agreement
(hereinafter: the loan contract), valid between 1 February 2021 and the end of the 2021/2022
season, with a unilateral option for the club to extend the contract – before 30 March 2022
- for the 2022/2023 season, i.e. until 30 June 2023.
4.
Based on the loan contract, the player was entitled to a sign-on fee of EUR 1,000, a monthly
salary of EUR 1,500 between February and June 2021, and a monthly salary of EUR 2,000 for
the 2021/2022 season.
5.
In January 2021, Pétange wished to loan the player to Dudelange as from 1 February 2021,
with the intention to make the loan permanent in the summer registration period before the
2021/2022 season, however the player explains that he was not provided with the loan
agreement.
6.
On 28 July 2021, Pétange informed Dudelange that it did not want the player back anymore.
On the same day, Dudelange replied that it had signed a transfer agreement with Pétange
on 26 January 2021 and that on 30 January 2021, a loan contract was signed between the
player and Dudelange.
7.
On 19 October 2021, the player put Dudelange and Pétange in default, as he only received
3 monthly salaries (allegedly for the months of August, September and October 2021) in the
2021/2022 season from Dudelange, but afterwards, both Dudelange and Pétange refused to
provide him with work or the payment of his monthly salaries.
8.
On 27 October 2021, Pétange informed the player that it had no contract with him anymore
and that it was the player who decided to leave the club in May 2020.
9.
On 23 December 2021, the player put again Dudelange and Pétange in default, asking for all
documentation related to his employment situation, including loan agreements, as well as
asking for the payment of his monthly salaries.
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10. On 4 January 2022, Pétange refused to provide a copy of the loan agreement and denied
that any remuneration was outstanding.
11. At the end of January 2022, Dudelange requested the player to sign a document, confirming
that all salaries had been paid until 31 December 222, which the player refused to do.
12. On 1 January 2022, the player signed a new contract with the Luxembourg club FC Alisontia
Steinsel, valid for the second half of the season 2021/2022.
II. Proceedings before FIFA
13. On 22 February 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
14. In his claim, the player explains that his registration with Dudelange (a loan followed by a
definitive registration) was apparently not allowed under the national legislation of the
Luxemburg FA, but he was never informed as to why the transfer to Dudelange failed.
15. What is more, the player explains that Dudelange however confirmed that it would continue
to pay his salaries, even though he could not be registered.
16. The requests for relief of the player, as amended, were the following:
•
•
EUR 6,000 as outstanding remuneration, corresponding to the salaries for July,
November and December 2021, plus 5% interest p.a. as from the respective due
dates;
EUR 12,000 as moral damages (according to the player also to be called additional
compensation), corresponding to the six months between July and December 2021,
he was unable to play, plus 5% interest p.a. as from 31 December 2021.
b. Position of Dudelange
17. In its reply, Dudelange explains that there are two categories of national transfers, i.e. a
temporary national transfer and a definitive transfer, and that there are also special rules for
the transfer of players licensed with a foreign federation and having been previously licensed
by the FLF, and explains that it followed all these rules in the matter at hand.
18. In this respect, Dudelange explains that – since the player was a foreign player, who signed a
contract with Pétange on 1 July 2019 – it was impossible for the player, based on art. 32 of
the Regulations on licensed members to temporarily transfer to another Luxembourgian club
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before 1 July 2020 and or to definitely transfer to another Luxembourgian club before 1 July
2022.
19. Based on the foregoing, Pétange, Dudelange and the player signed on 30 January 2021 a
loan document from the Football Federation of Luxemburg (FLF), in which the following
remark was made: ‘According to agreement between the parties, a temporary transfer for
the season 2021/2022 and a definitive transfer for the season 2022/2023’.
20. What is more, in view of the 2021/2022 season, Dudelange took steps to confirm the
temporary transfer of the player for the 2021/2022 season on another form of the FLF, but
Pétange refused to sign said document. After Dudelange consequently sent the form to FLF,
it was informed that the temporary transfer of the player to Dudelange was not possible, as
Pétange had exceeded the maximum number of temporary transfers allowed in Luxemburg.
As a result, the player could not be registered for Dudelange in the 2021/2022 season and
allegedly remained registered with Pétange.
21. Based on the foregoing, Dudelange deems that the contract it concluded with the player is
null and void and that is not obliged to pay the player salaries as from 1 July 2021, also
because the registration of the player remained with Pétange and based on internal
regulations of the FLF, it is forbidden to pay the salaries of the player of another club.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 22 February 2022 and submitted for
decision on 7 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.
23. 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 Portuguese player
and a Luxembourgian club.
24. 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 22 February 2022, the August 2021 edition
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of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
26. 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
27. 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 whether or not Dudelange is
responsible to pay the player salaries for the period between 1 July 2019 and 31 December
2019, since the player could not be properly registered for Dudelange, as the regulations of
the Luxemburg Football Federation did not allow a temporary transfer of the player to another
Luxembourgian club before 1 July 2020.
28. In this context, the Chamber acknowledged that it its task was to determine whether the
reasons brought forward by Dudelange did exempt it from its contractual obligations.
29. In this context, the Chamber first of all reminded the parties that, in line with the contents of
art. 18 par. 4 of the Regulations, as well as the jurisprudence of FIFA, the validity of an
employment contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the registration procedure in connection with the
international transfer of a player, which are of the sole responsibility of a club and upon which
a player has no influence. As the club is supposedly interested in acquiring the rights of the
player and in benefiting from his services, it is also expected to act accordingly and execute
the administrative formalities in view of obtaining, for instance, the player’s ITC and his
subsequent registration with the engaging FA. Consequently, the registration or not of the
contract is irrelevant in determining if the contract was a valid and binding document.
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30. Based on the foregoing, the Chamber rejected Dudelange’s objection that it would be obliged
to pay the salaries of the player in the period between July and December 2021 as the
registration of the player could not properly be done in Luxembourg.
31. What is more, the Chamber recalled its well-established jurisprudence 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.
32. In casu, after a thorough analysis of the documentation on file, the Chamber concluded that
all such elements were included in the document filed by the player. In other words, the
Chamber understood that the contract concluded by the parties indeed included all the
relevant information at the basis of an employment relationship between contractual parties.
Thus, the Chamber concluded that the player and Dudelange had effectively concluded, on
31 January 2021, a valid and binding employment contract for the period between 1 February
2021 and (at least) the end of the 2021/2022 season.
33. As such, the members of the Chamber deemed that it was the responsibility of Dudelange to
pay the salaries to the player in the 2021/2022 season, which it allegedly had not completely
done, as on 1 July 2021, it actually departed from the contract by alleging that the player was
not properly registered, however on the same time still paying the player his salaries for the
months of August, September and October 2021.
34. Based on the foregoing, the Chamber concluded that Dudelange was bound to a valid
employment contract with the player in the claimed period between 1 July and 31 December
2021, and that it shall be considered that it breached said contract without just cause on 1
July 2021.
ii. Consequences
35. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by Dudelange.
36. The Chamber observed that the player’s claim is limited to the period between 1 July 2021
and 31 December 2021, for which period the player requested to be paid the salaries he did
not receive (August, November and December 2021). What is more, the members of the
Chamber noted that from the information on file, it appears that Dudelange stopped
executing the contract after 1 July 2021, when the registration issues at the FLF arose.
37. As a consequence of the foregoing circumstances, and taking into account that the parties
had allegedly departed from the contract as from 1 July 2021, the members of the Chamber
concluded that there was no outstanding remuneration to be awarded to the player, since
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the claim of the player was limited to monies payable after the termination of the contract
between the parties.
38. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
39. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
40. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
41. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of EUR 12,000 (i.e. the 6 monthly salaries in the amount of EUR 2,000 each
due in the period between July and December 2021) serves as the basis for the determination
of the amount of compensation for breach of contract.
42. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
43. In this respect, it turns out that the player, in the period between 1 July and 31 December
2021, was not able to find new employment with another club. As a result, the members of
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the Chamber took into account that in principle, no further mitigation or additional
compensation shall be applied in the matter at hand.
44. However, taking into account that the player limited his claim to the total amount of EUR
6,000 for the months of July, November and December 2021, and based on the legal principle
of non ultra petita, the Chamber decided that Dudelange must pay the amount of EUR 6,000
to the player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
45. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 22 March 2021 until the date of effective payment.
46. What is more, the members of the Chamber decided that the player’s requests for moral
damages and/or additional compensation shall be rejected, as it overlaps with the requests
for the payment of the salaries for the months of July, November and December 2021 and
there is no regulatory basis to award amounts claimed as moral damages to the player.
iii. Compliance with monetary decisions
47. 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.
48. 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.
49. Therefore, bearing in mind the above, the DRC decided that Dudelange must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on Dudelange in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
50. Dudelange 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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51. 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
52. 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.
53. 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.
54. 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, Miguel Palha, is partially accepted.
2.
The Respondent, F91 Dudelange, has to pay to the Claimant, the following amount:
- EUR 6,000 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 22 March 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
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