Labour Disputes
Texto da decisão
REF 20-01384
Decision of the
DRC Judge
passed on 10 March 2021,
regarding an employment-related dispute concerning the player Pedro Joel
Pereira da Silva
BY:
Pavel Pivovarov (Russia), DRC Judge
CLAIMANT:
Pedro Joel Pereira da Silva, Portugal
Represented by Mr Pedro Macieirinha
RESPONDENT:
Lusitanos de Saint-Maur U.S, France
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REF 20-01384
I. FACTS OF THE CASE
1.
On 25 June 2019, the Portuguese player, Pedro Joel Pereira da Silva (hereinafter: the player), and the
French club, Lusitanos de Saint-Maur U.S. (hereinafter: the club), concluded an employment
agreement (hereinafter: the contract) valid as from 1 July 2019 until 30 June 2021.
2.
In accordance with clause 4 of the contract, the club undertook to pay to the player a fixed monthly
salary of EUR 2,500; plus a lump sum of EUR 40,000 to be paid in four 4 instalments of EUR 10,000,
as follows:
-
EUR 10,000 as sign-on fee;
-
EUR 10,000 “in December 2019”;
-
EUR 10,000 “in June 2020”;
-
EUR 10,000 “in December 2020”.
3.
As per clause of 4 of the Contract, the Respondent undertook to also pay the player’s travel expenses
(including 2 roundtrip flight tickets from / to Porto, Portugal).
4.
On 6 January 2020, the Respondent club and the Portuguese club, Futebol Clube Alverca (hereinafter:
Alverca), contractually agreed on the temporary transfer of the player as from the said date until 30
June 2020.
5.
Subsequently, the player and Alverca concluded an employment contract (hereinafter: the loan
contract), whereby Alverca undertook to pay to the player a fixed monthly salary of EUR 1,500 net
until the end of the loan period.
6.
Upon expiry of the loan period, the player attempted to return to the Respondent club but the latter
refused to provide the Claimant with a return-flight ticket, arguing that the contractual relationship
between the parties had been terminated at the moment in which the player moved to Portugal on
loan.
7.
On 16 and 28 July 2020 the Claimant requested clarifications to the Respondent regarding the
Respondent´s refusal to register the player once his loan contract had expired and expressed his will
to resume his duties with the club in order to keep playing football, also requesting the Respondent
to provide him with the corresponding flight tickets to come back to France; however, to no vail.
8.
By means of his letter dated 4 August 2020, the Claimant put the Respondent in default of payment
regarding the salary of July 2020 in the amount of EUR 2,500, granting the Respondent a 10 days´
deadline in order for the latter to comply with his financial obligations towards the player, i.e. until
14 August 2020.
9.
Furthermore, by the same letter, the Claimant warned the Respondent that in case of a persistent
non-compliance, the former would have no alternative but to terminate the contract with just cause.
10. However, no reply thereto was provided by the Respondent.
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11. On 21 August 2020, the Claimant unilaterally terminated his contract in writing on the grounds of
art. 14 para. 2 of the RSTP (abusive conduct of the club), insofar: the club did not provide the player
with the flight tickets to return to France, did not reply to the player´s correspondence dated 4 and
11 August 2020 following the expiry of the loan contract with Alverca and did not pay the player´s
salary of July 2020; thereby showing no interest in the player´s services.
12. On 25 September 2020, the Claimant lodged a claim against the Respondent before FIFA, requesting
to be awarded outstanding remuneration and compensation in the total amount of EUR 50,000, plus
5% interest p.a. as from the respective due dates, broken down by the player as follows:
Outstanding remuneration: EUR 12,500
-
EUR 2,500 corresponding to the salary of July 2020;
-
EUR 10,000 corresponding to the third instalment of the bonus payable as per clause 4 of
the contract, which was payable in June 2020;
Compensation for breach of contract: EUR 37,500
-
EUR 37,500 as full compensation for the breach of contract by the Respondent,
corresponding to the residual value of the contract –as from August 2020 until 30 June
2021–, i.e. EUR 2,500*11); plus the fourth instalment of the bonus agreed as per Clause 4
of the Contract (i.e. EUR 10,000) which was payable in December 2020.
13. In his claim, the player maintained that, despite having contacted the Respondent in several occasions,
in order to join the Respondent once the contract with Alverca had expired, given that the contract
with the Respondent was still in force and it is his right to come back to his parent club once the loan
transfer agreement and the loan contract had expired, the latter never replied to him and did not
provide him with the corresponding flight tickets despite the latter being the club´s contractual
obligation.
14. In addition, the player held that the Respondent failed to pay his salary for the month of July 2020,
as well as the third bonus instalment of EUR 10,000 that was payable in June 2020, which contributes
to the assumption that the club was no longer interested in his services.
15. Despite having been invited to do so, the Respondent failed to reply to the claim within the deadline
granted by the FIFA administration for it to do so. In this respect, the Respondent only provided its
comments as to the claim of the player on 17 February 2020, once the investigation-phase of the
matter-at-hand had been closed.
16. On 19 February 2021, upon request from the FIFA administration, the player informed that he has
not signed any new contract by means of which he could have mitigated his damages.
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REF 20-01384
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 25 September 2020 and was submitted for decision on 10
March 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.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which
concerns an employment–related dispute with an international dimension.
3.
In continuation, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (February 2021 edition), and considering that
the claim was lodged on 25 September 2020, the August 2020 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, the DC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC 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.
5.
Having said that, the DRC judge duly examined all the documentation on file and acknowledged that,
according to the player, upon expiry of the contract he had concluded with Alverca, following his
transfer –on loan– from the Respondent to Alverca in June 2019, the Respondent: failed to provide
the player with the corresponding flight tickets Portugal – France, failed to comply with its financial
obligations towards the player despite the parties being bound by a valid employment contract that
was still valid for one more season, and failed to reply to the player´s correspondence – thereby
showing that it was no longer interested in the player´s services.
6.
Furthermore, the DRC judge noted that the Claimant based the termination of the contract on the
abusive conduct of the Respondent, i.e. on art. 14 para. 2 of the Regulations, insofar –according to
the Claimant– the Respondent forced him to prematurely terminate the contract given the
impossibility of the player to fulfil his contractual obligations and resume his professional activities
within the team of the Respondent – given that the Respondent maintained that there was no binding
contract between the parties following the player´s departure to Portugal.
7.
The DRC judge acknowledged that, -on its part and despite having been invited to provide its
comments as to the claim lodged by the player- the club failed to provide its comments within the
deadline granted by the FIFA administration for the Respondent to do so. In this context, the DRC
judge – while referring to art. 9 para. 3 of the Procedural Rules– stressed that submissions received
after the expiration of the time limit granted by the FIFA administration to do so, will not be taken
into account. In addition, the DRC judge wished to emphasize that the Respondent only provided its
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REF 20-01384
statement of defence on 17 February 2020, once the investigation-phase of the present matter was
closed (the investigation-phase was closed on 15 February 2021). In this respect, the DRC judge
further referred to art. 9 para. 5 of the Procedural Rules and highlighted that the parties to the
proceedings shall not be authorised to supplement or amend their requests or their arguments, to
produce new exhibits or to specify further evidence on which they intend to rely, after notification of
the closure of the investigation. Hence, in view of all of the above, the DRC judge decided to disregard
the comments provided by the Respondent on 17 February 2021.
8.
Consequently, the DRC judge referred to art. 9 para. 3 of the Procedural Rules and determined that,
in accordance with the said provision, if no statement or reply is received before the time limit expires,
a decision shall be taken on the basis of the file. In this respect, the DRC judge pointed out that, in
view of the lack of a reply timely submitted by the Respondent, the allegations of the Claimant
regarding the statement of the Respondent that it considered that the contractual relationship ended
upon the player´s temporary registration with Alverca remained uncontested.
9.
In this respect, the DRC judge wished to emphasize that, once the contractual relationship between
a player and a loanee club expires, should the player still have a valid contract with the loaner club,
the player shall and is entitled to resume his professional activities with the loaner club (the parent
club, i.e. the Respondent in the present case), which shall comply with its contractual obligations
towards the player following his comeback. In the present case, –continued the DRC judge– given
that the Respondent showed a clear lack of interest following the expiration of the contract concluded
between the Claimant and Alverca, the DRC judge determined that the Respondent breached its
contractual obligations and the player terminated the contract with just cause on 21 August 2020,
ex. art. 14 para. 2 of the Regulations, as alleged by the Claimant.
10. What is more –wished to highlight the DRC judge–, albeit not raised by the Claimant, given that at
the date of termination, i.e. 21 August 2020, the Respondent was in default of payment of the 3rd
instalment of the lump sums in the amount of EUR 10,000, as well as of the salary of July 2020 in the
amount of EUR 2,500; amounts which –if summed up– represent more than 2 monthly salaries of the
player, the latter would have also terminated the contract with just cause ex. art. 14bis of the
Regulations. Nevertheless –stressed the DRC judge– insofar the Claimant is basing his termination on
art. 14 para. 2 of the Regulations and not on art. 14bis thereof, it is to be determined that the
termination of the contract with just cause made by the player was motivated by the abusive conduct
of the club and not by the overdue payables due to him at the date of termination.
11. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences
of the early termination of the employment contract.
12. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment
contract up until the date of termination of the contract in accordance with the general legal principle
of “pacta sunt servanda”.
13. On account of the above considerations and the documentation on file, the DRC judge decided that
the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of
the termination i.e. the amount of EUR 12,500, corresponding to the salary of July 2020 in the amount
of EUR 2,500 and the instalment of EUR 10,000 that was payable in June 2020.
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14. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of the respective
due dates.
15. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding remuneration on the basis of the relevant employment
contract.
16. In this context, the DRC judge outlined that, in accordance with said provision, 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 Claimant 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.
17. In application of the relevant provision, the DRC judge held that it, first of all, had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of breach of
contract. In this regard, the DRC judge established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
18. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC
judge took into account the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional situation of
the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that,
despite the contract premature termination on 21 August 2020, if organically continued, the contract
would have run until 30 June 2021. Consequently, taking into account the financial terms of the
contract, the DRC judge concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to EUR 37,500,
corresponding to the residual value of the contract –as from August 2020 until 30 June 2021–, i.e.
11 instalments of EUR 2,500 each; plus the fourth instalment of the lump sums agreed as per clause
4 of the Contract (i.e. EUR 10,000) which was payable in December 2020.
19. In continuation, the DRC judge remarked that following the early termination of the employment
contract at the basis of the present dispute, the Claimant was not able to find a new employment. As
a result, no further amounts will be deducted from the compensation the Claimant would be entitled
to.
20. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of EUR
37,500 to the Claimant as compensation for breach of contract, which is considered by the DRC judge
to be a reasonable and justified amount as compensation.
21. In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the DRC
in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of 25 September
2020 until the date of effective payment.
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REF 20-01384
22. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR 50,000
to the Claimant, consisting of the amount of EUR 12,500 corresponding to the Claimant’s
outstanding remuneration at the time of the unilateral termination of the contract with just cause by
the Claimant and the amount of EUR 37,500 corresponding to compensation for breach of contract.
23. Furthermore, taking into account the consideration under number II.3 above, the DRC judge referred
to para. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent
FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.
24. In this regard, the DRC judge pointed out that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players, either
nationally or internationally, up until the due amounts are paid and for the maximum duration of
three entire and consecutive registration periods.
25. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does
not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant,
following the notification of the present decision, communicates the relevant bank details to the
Respondent, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
26. Finally, the DRC 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. 24bis par. 3 of the
Regulations.
27. The DRC judge concluded his deliberations in the present matter stipulating that the Claimant’s claim
is accepted.
III.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Pedro Joel Pereira da Silva, is accepted.
2.
The Respondent, Lusitanos de Saint-Maur U.S., has to pay to the Claimant, outstanding
remuneration in the amount of EUR 12,500, plus 5% interest p.a., calculated as follows:
-
On the amount of EUR 10,000, as from 1 July 2020 until the date of effective payment;
-
On the amount of EUR 2,500, as from 1 August 2020 until the date of effective payment.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in the amount
of EUR 37,500, plus 5% interest p.a. as from 25 September 2020 until the date of effective
payment.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount
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5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. The decision is rendered free of costs.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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:
Fédération Internationale de Football Association
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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