Labour Disputes
Texto da decisão
REF FPSD-4323
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Leandro
Miguel Pereira da Silva
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
BOEYKENS, Stijn (Belgium), member
CHETTY, Elvis (Seychelles), member
CLAIMANT/COUNTER-RESPONDENT 1:
Leandro Miguel Pereira da Silva, Portugal
Represented by Kiara Schiavetto
RESPONDENT/COUNTER-CLAIMANT:
AEL Limassol FC, Cyprus
Represented by Duarte Costa
COUNTER-RESPONDENT 2:
FC Arouca, Portugal
Represented by Emanuel Calçada
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REF FPSD-4323
I.
Facts of the case
1.
Following a previous contract between them, on 26 June 2020, the Portuguese player
Leandro Miguel Pereira da Silva (hereinafter: the player) and the Cypriot club AEL Limassol FC
(hereinafter: the club) concluded an employment contract valid as from the same date until
31 May 2023 (hereinafter: the employment agreement).
2.
The player was entitled to the following remuneration under the employment agreement:
a. Between 31 August 2020 and 31 May 2021: EUR 2,000 net per month;
b. Between 31 August 2021 and 31 May 2022: EUR 2,800 net per month;
c. Between 31 August 2022 and 31 May 2023: EUR 3,000 net per month.
3.
Clause 2 of the employment agreement reads as follows:
“2.1 The present contract is regulated by the provisions of the Standard Employment
Contract, as these have been agreed between the Cyprus Football Association and the
Cyprus Footballers’ Unios (PASP) and these provisions have been codified in Annex 1 of
the CFA Registration and Transfer of Players Regulations.
2.2 The terms of the Standard Employment Contract constitute an integral part of the
present Contract having full and direct implementation.
2.3 In case of conflict, the terms of the Standard Employment Contract shall take
precedence over the terms of the present Contract”.
4.
No specimen of the aforementioned “standard employment agreement” was provided by
the parties.
5.
On the same date i.e. 26 June 2020, the player and the club signed an image rights agreement
(hereinafter: the IR Agreement).
6.
Clause 3 of the IR agreement reads as follows:
“3. This agreement shall terminate automatically:
3.1 After its expiry;
3.2 By mutual consent of the parties;
3.3 By termination of the employment agreement dated 25/06/2020 between the
Employer and the Player”.
7.
Clause 7 of the IR Agreement reads as follows:
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“Both parties accept explicitly and unconditionally that their contractual relationship this
is governed by the present agreement and any difference that concerns this agreement
will first be adjudicated by the Regulations of the CFA and/or UEFA and/or FIFA
supplementary with the contract of employment that the parties have already sign.”
8.
The player was entitled to the following remuneration under the IR Agreement, per its exhibit
1:
a. Between 31 August 2020 and 31 May 2021: EUR 1,000 net per month;
b. Between 31 August 2021 and 31 May 2022: EUR 4,700 net per month;
c. Between 31 August 2022 and 31 May 2023: EUR 5,500 net per month;
d. Numerous bonuses in connection with the sporting success of the club. In
particular, a EUR 10,000 bonus should the club win the domestic league.
9.
Therefore, considering both the employment contract and the IR Agreement, the player’s
global remuneration was as follows:
a. Between 31 August 2020 and 31 May 2021: EUR 3,000 net per month;
b. Between 31 August 2021 and 31 May 2022: EUR 7,500 net per month;
c. Between 31 August 2022 and 31 May 2023: EUR 8,500 net per month.
10. On 4 August 2020, the player, the club and the Portuguese club, FC Arouca (hereinafter:
Arouca) signed a loan agreement valid as from the same date until 30 June 2021 (hereinafter:
the loan agreement).
11. According to clause 1 item 2 of the loan agreement, Arouca was the sole responsible for
payment of the player’s salary during the term of the loan.
12. On 3 June 2021, the player wrote to the club and while recognizing to have received EUR
17,000 under both the employment agreement and the IR Agreement, claimed that EUR
13,000 were outstanding. The player granted the club 15 days to cure its default.
13. On 16 June 2021, the club replied to the player via e-mail and stated that “[his letter] was
submitted to the Cyprus Football Association with instructions from AEL FC to receive it as
soon as possible”.
14. On 19 June 2021, the player wrote to the club again and terminated the employment
relationship on the basis of art. 14bis of the FIFA Regulations on the Status and Transfer of
Players (RSTP). In such letter, he additionally acknowledged the receipt of EUR 2,000 on 11
June 2021, but nonetheless underlined that the following amounts were still outstanding:
a. EUR 2,000 for February 2021;
b. EUR 9,000 between March and May 2021.
15. On 5 July 2021, the club paid EUR 11,000 to the player.
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16. Following the termination of the employment relationship between the club and the player,
the latter and Arouca signed a contract valid for seasons 2021/2022 and 2022/2023, namely
as from 5 July 2021 until 30 June 2023, for a remuneration of EUR 40,000 for each season,
plus performance-based bonuses.
17. According to the information available in the Transfer Matching System (TMS), the only
transfer instruction entered by the club and Arouca is that related to the player’s loan transfer.
There is no subsequent instruction regarding the player’s permanent engagement with
Arouca.
II. Proceedings before FIFA
18. On 17 November 2021, 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
19. The player referred to the termination of the employment relationship with the club and
sought payment of EUR 160,000 as “damages” as well as EUR 10,000 as league win bonus.
20. The player explained that the employment agreement and the IR Agreement are
“inseparable”. The player also seeks 5% interest p.a. on the cited amounts as from the date
of claim until the date of effective payment.
21. As to the league win bonus, the player filed evidence of the championship results for season
2020/2021. From such evidence, the club finished 2nd that season.
b. Reply and counterclaim of the club
22. The club stated that the amount owed to the player did not allow him to terminate the
contract unilaterally on the basis of at. 14bis RSTP as it “wasn’t enough”. The club deems the
player did not have just cause to terminate the contract.
23. As a consequence, the club seeks compensation for breach of contract and filed a
counterclaim against the player and Arouca in the amount of EUR 160,000. The club’s
requests for relief were as follows:
“1. To decide that the claimant terminated his contract without just cause.
2. To dismiss and reject all the requests of the Claimant.
3. To accept the Respondent’s counterclaim and order the player and his new club (FC Arouca)
to pay compensation in the amount of 160.000€ to the Club AEL LIMASSOL FC. Both shall
be jointly and severally liable for this payment.
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4. The Player shall be subject to sporting sanctions as well as the Respondent new Club, FC
Arouca, in accordance with article 17/3 and 17/4 of the Regulations on the Status and
Transfers of Players.
5. An interest rate of 5% p.a. is applicable to the requested compensation amount.
6. All possible costs relating to this procedure shall be carried by the Respondent player.
7. If FIFA Football Tribunal is the opinion that the Respondent shall pay compensation:
7.1 the total amount which the player will receive from his new club (FC
Arouca) shall be deducted from the requested compensation;
7.2 after the deduction stated above, an equity deduction shall also be made from the
compensation”.
c. Reply to the counterclaim by the player
24. The player reiterated his position and argued that he had just cause to terminate the contract.
He objected to the allegations of the club that the amounts overdue did not entitle him to
terminate the contract.
25. More in particular, the player pointed out that the club did not deny owing the amounts to
the player and that on 16 June 2021, instead of paying him his dues, the club informed that
the matter was forwarded to the Cyprus FA.
26. He asked that the club’s counterclaim be dismissed.
d. Reply to the counterclaim by Arouca
27. Arouca filed a short reply and argued that when it signed the player, he was a free agent. It
furthermore argued that it had “nothing to do” with the termination of the employment
relationship between the player and the club and requested that the counterclaim be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 17 November 2021 and submitted for
decision on 24 March 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.
29. 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
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employment-related dispute with an international dimension between a Portuguese player
and a Cypriot club, with the involvement of a Portuguese club. On this note, the DRC
highlighted that its competence has not been challenged by any of the parties. Equally, it
highlighted the argumentation of the player, and concurred that the employment agreement
and the IR Agreement are closely connected and shall be read as a single document governing
the relationship between the player and the club.
30. 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 17 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
31. 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
32. 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
33. 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 if the player had just cause or not
to terminate the contract.
34. More in particular, the DRC observed that the club argued solely that there was no just cause,
for the amounts overdue were “not sufficient”. In other words, the club disputes only the
quantum owed to the player at the time of termination. Most interestingly, the DRC noted
that the club does not dispute – in spite of the contents of the loan agreement – that it was
not obliged to pay the player’s salary while he was loaned to Arouca.
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35. It remained unclear to the Chamber why the club never denied neither in its e-mail of 16 June
2021, nor in these proceedings, the obligation to pay the player’s salary. Accordingly, the
Chamber was left with no other option but to conclude that the club (tacitly) admitted its
payment obligation toward the player in spite of the fact that he had been loaned to Arouca,
and the corresponding provisions under the loan agreement.
36. In this context, the Chamber acknowledged that its task was therefore limited to determine
whether the quantum due by the time of the termination entitled the player to terminate the
contractual relationship with just cause, and the consequences that follow. In other words,
the DRC had to conclude based on the evidence presented by the parties, whether the
claimed amounts had in fact remained unpaid by the club and, if so, whether the formal prerequisites of art. 14bis of the Regulations had in fact been fulfilled.
37. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline of
at least 15 days for the debtor club to fully comply with its financial obligation(s).
38. The Chamber noted that the player claims not having received his remuneration amounting
to EUR 13,000, corresponding to the unpaid portion of his remuneration up to the moment
he sent a default notice to the club on 3 June 2021, following which a payment of EUR 2,000
was undisputedly made by the club. Furthermore, the Chamber confirmed that the player has
provided written evidence of having put the club in default on said date, i.e. at least 15 days
before unilaterally terminating the contract on 19 June 2021.
39. The Chamber also noted that in the case at hand the club bore the burden of proving that it
indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the DRC noted that a payment of EUR 11,000 was only made by the club to the
player after the contract had already been terminated. Therefore, the club did not cure its
default within the deadline given by the player on the basis of the Regulations, since, by the
time of the termination, more than two salaries were still outstanding to the player.
40. Thus, the Chamber concluded that the player had a just cause to unilaterally terminate the
employment agreement, based on art. 14bis of the Regulations. The club therefore shall
endure the consequences that follow, and its counterclaim is accordingly rejected.
ii. Consequences
41. 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 club.
42. The Chamber observed that the player claimed an outstanding bonus of EUR 10,000
regarding the alleged league title of the club in the season 2020/2021 – no other amounts
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are sought as outstanding remuneration insofar as it stood undisputed that the remaining
remuneration of the player was paid by the club.
43. In this respect, the DRC could not help to notice that in accordance with the evidence
provided by the player himself, the club did not win the league in the cited season. Hence, in
that the condition set forth under the employment agreement was not met, the DRC firmly
rejected this part of the player’s claim.
44. 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.
45. 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.
46. 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.
47. 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 160,000 (i.e. the residual value of the contract comprising of EUR
75,000 for the season 2021/2022, plus EUR 85,000 for the season 2022/2023) serves as the
basis for the determination of the amount of compensation for breach of contract.
48. 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
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compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
49. Indeed, the player found employment with Arouca. In accordance with the pertinent
employment contract, the player was entitled to EUR 40,000 per season. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of EUR
80,000, that is, EUR 40,000 for 2 entire seasons.
50. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
51. In this respect, the DRC decided to award the amount of additional compensation of EUR
22,500, i.e. three times the monthly remuneration of the player for the relevant season
(2021/2022, since no payments were to be performed by the club in the months of June and
July each year).
52. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 102,500
to the player (i.e. EUR 160,000 minus EUR 80,000 plus EUR 22,500), which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
53. 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 the date of claim until the date of effective payment.
iii. Compliance with monetary decisions
54. 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.
55. 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.
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56. Therefore, bearing in mind the above, the DRC 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 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 club in accordance with art.
24 par. 2, 4, and 7 of the Regulations.
57. 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.
58. 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
59. 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.
60. 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.
61. 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 1, Leandro Miguel Pereira da Silva, is partially
accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, AEL Limassol FC, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1, EUR
102,500 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 17 November 2021 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent 1 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 (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/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 1 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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