Labour Disputes
Texto da decisão
REF FPSD-4802
Decision of the
Dispute Resolution Chamber
passed on 10 March 2022
regarding an employment-related dispute concerning the player Leonardo
Pereira dos Santos
BY:
Frans de Weger (Netherlands), Chairperson
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Leonardo Pereira dos Santos, Brazil
Represented by João Henrique Cren Chiminazzo and Bento Lupercio Pereira Neto
RESPONDENT:
MFK Karvina a.s., Czech Republic
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REF FPSD-4802
I.
Facts of the case
1.
On 4 February 2021, the Brazilian club Capivariano Futebol Clube (hereinafter: Capivariano),
the Czech club MFK Karvina a.s. (hereinafter: the club) and the Brazilian player Leonardo
Pereira dos Santos (hereinafter: the player) concluded a loan agreement for the transfer on
loan basis of the player from Capivariano to the club in the period between 5 February 2021
and 30 June 2022.
2.
Art. III par. 2 of the loan agreement holds the following clause: ‘The player shall not be
submitted to any type of surgery during the periods of disagreement without prior and
express authorization of Capivariano and of the player except in emergency cases which
Capivariano may indicate a trusted medical team to opine on whether or not surgery should
be performed and which may have a right to veto any procedure in all cases the expenses
shall be incurred by Karvina’.
3.
Also on 4 February 2021, the player and the club concluded an employment agreement
(hereinafter: the contract), valid between 5 February 2021 and 30 June 2022, based on which
the player was entitled to a monthly salary of EUR 4,000.
4.
Article III (o) of the contract holds the following obligation for the player:
‘o) undergo all medical examination, treatment and regular medical examinations and
inspections exclusively at Club’s doctors or specialists designated by the Club’.
5.
Article V of the contract inter alia stipulates the following:
‘b) develop favourable conditions for training, implementation of daily routine of the
Player, regeneration and rehabilitation, provide quality
medical and therapeutic service ...’.
[…]
g) reimburse the Player the damage which was caused by a breach of the legal obligations
from
the Party of the Clube,”
[…]
i) ensure the arranging of the initial medical examination of the Player at the Club’s doctor
and ensure regular medical examinations of the Player, and this at least once a year,
[…]
j) provide both basic and specialized medical care to the Player performed by the Club’s
doctors and financially covered by health insurance of the Player concluded under this
Contract (...)’.
6.
On 31 July 2021, the player and the club allegedly concluded a termination agreement, by
means of which it was agreed that ‘the abovementioned contract in the wording of all the
supplements, annexes and amendments or subsequent contracts will be terminated on
31/07/2021’. What is more, the parties agreed that:
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-
-
the club owned an amount of EUR 4,000 (payable as CZK 104,000) for salary of
June 2021, and an amount of EUR 4,000 (payable as CZK 104,000) for salary of July
2021;
the player owned an amount of CZK 31,200 to the club ‘as withholding tax of
15%’;
as a result, the club would pay the player the difference of CZK 176,800 no later
than 31 August 2021.
7.
On 31 July 2021, according to the player, the club unilaterally terminated the contract with
the player, alleging financial issues by signing the abovementioned termination agreement.
8.
On 31 July 2021, Capavariano and the club concluded a termination of the loan agreement,
by means of which the parties agreed the player and the club will cancel the contract ‘to
enable the player to re-register with Capivariano’.
9.
On 13 August 2021, the club sent a letter to the player, referring to his valid contract until
30 June 2022 and asking him to resume his duties with the club.
10. On 9 September 2021, the player requests the club to provide him with the results of the
medical examination.
11. On 16 September 2021, the club replied that it provided said results to the player on 28 May
2021 via WhatsApp.
12. On 1 October 2021, the player underwent surgery on his right knee in Brazil, and that the
foreseen recovery period was about 8 months.
13. On 20 October 2021, the player again requested to be provided with the results of the
medical examination, as he alleged that he never received the WhatsApp messages on 28
May 2021.
14. After the unilateral termination of the contract with the club, the player returned to
Capivariano, where he continued to fulfil the contract of origin, which was valid between 4
February 2021 and 31 December 2022, and based on which the player was entitled to a
monthly salary of BRL 1,100 (approximately USD 211).
15. Additionally, the player confirmed having signed the termination agreement dated 31 July
2021, as well as that he had received the amount of CZK 176,000, albeit it later than 31
August 2021.
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REF FPSD-4802
II. Proceedings before FIFA
16. On 13 January 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
17. According to the player, he suffered a knee injury and that the club, after conducting some
medical examinations, informed him that it was only a minor injury and did not provide the
player with a copy of the medical results.
18. What is more, the player explained that after his return to Brazil, and restarting his training
with Capivariano, he still suffered issues with his knee. After he underwent surgery, he had
to recover for approximately 8 months.
19. As a result of the foregoing, the player deems that the club was in breach of the contract by
not providing him sufficient medical assistance and by paying his salaries throughout the
treatment and should therefore be obliged to pay him damages and reimburse his costs for
the necessary treatment
20. The requests for relief of the player, as amended, were the following:
•
•
•
•
•
EUR 44,000 as residual value of the contract in the period between 1 August 2021 and
30 June 2022;
EUR 4,500 as reimbursement of medical costs;
EUR 8,000 as compensation for the damages to the player’s career;
20% of all amounts due to the player as legal fees;
(sporting) sanctions based on art. 12bis and/or art. 17 RSTP.
b. Position of the club
21. In its reply, the club explains that the player had also co-signed the loan agreement and that
the player, Capivariano and the club had all three agreed to terminate the loan agreement
with effect as from 31 July 2021.
22. The club confirms that the player indeed suffered an injury as from 16 May 2021, however
denies that it underestimated the seriousness of the player’s injury and that it also agreed
that the player would undergo the medical treatments in Brazil. In this respect, the club
explains that Capivariano would be considered as ‘decision maker’ regarding the treatment
of the player, and further states that the clauses in art. V of the contract are standard clauses
in Czech Republic and the clauses in art. III of the loan agreement prevail.
23. Since all parties agreed that the medical examination would take place in Brazil, the club
provided the player with a flight ticket to Sao Paulo, Brazil on 27 May 2021, and also paid for
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REF FPSD-4802
a PCR-test for the player. According to the club, the player left Czech Republic on 27 May
2021 and that as from that moment, it had no longer influence on the medical treatment of
the player.
24. What is more, the club explains that on 28 May 2021, it provided the player with the outcome
of the medical examinations that took place on 19 May 2021, and also provided some further
instructions for medical treatment.
25. In addition, the club explains that on 13 August 2021, it requested the player to re-join the
club’s first team for the preseason training camp. What is more, the club explains that, as the
player allegedly did not want to continue his loan spell with the club, they eventually
concluded in August 2021 a termination of the loan agreement and the contract, which
documents were ‘antedated’ to 31 July 2021.
26. In this respect, the club denies having out any pressure on the player during the conclusion
of the termination agreement. The club argues that the player was fully aware of the
consequences of signing the termination agreement, and the only amount he was entitled to
is specified in the settlement agreement.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 13 January 2022 and submitted for decision
on . 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.
28. 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 (August 2021 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 Brazilian player and
a Czech club.
29. 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 (August 2021 edition), and
considering that the present claim was lodged on 13 January 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
30. 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
31. 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
32. 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 the question whether the club was
effectively in breach of the contract, by not providing sufficient medical assistance for the
injury the player suffered from, as well as by not paying him the monthly salaries during the
period in which he was injured.
33. In this context, the Chamber acknowledged that it its task was to determine what the club’s
obligations as per the contract were and whether it was indeed in breach of its contract
towards the player.
34. First of all, the members of the Chamber noted that from the information on file, it turns out
that all parties involved, i.e. the player, the club and Capivariano, allegedly in mid-August
2021, after the player indicated that he did not wish to continue his career at the cub, agreed
that the loan of the player to the club would be terminated as per 31 July 2021, and that the
player would return to Capivariano.
35. Moreover, based on the documentation that was submitted by the parties, the members of
the Chamber established that the player and the club had similarly agreed to terminate the
contract in force between the two of them, in exchange for the payment of an amount of
CZK 176,000, to be made by the club to the player.
36. Additionally, the Chamber noted that the player confirmed having received said termination
agreement, as well as that he eventually received the amount of CZK 176,000 from the club.
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37. Based on the foregoing circumstances, the members of the Chamber came to the conclusion
that, insofar it concerns the termination of the contract and the loan agreement, the parties
had complied with their contractual obligations.
38. What is more, the members of the Chamber deemed it relevant to focus on the potential
obligations the club had towards the player in relation to his injury. In this respect, first of all,
the Chamber noted that the club had provided documentary evidence and clarifications,
based on which it could be assumed that a medical examination of the player’s injury had
taken place on 19 May 2021 and that the club had duly provided the outcome of said medical
examination to the player on 28 May 2021, as well as some further medical instructions.
39. What is more, the club also demonstrated with documentary evidence that the player, on 27
May 2021, had returned to Brazil, in order to undergo a medical examination in order to
evaluate the best treatment for his injury.
40. Moreover, the Chamber deemed it relevant to point out that based on art. III par. 2 of the
loan agreement, the club had no decisive influence on the decision how the injury of the
player would be treated, as Capivariano had to give authorization for any medical treatments.
41. Given the fact that that the player was already in Brazil to undergo medical treatment, which
is in line with the contents of the loan agreement (which gave Capivariano decisive influence
on how the injury would be treated), the members of the Chamber concluded that the club
had complied with its contractual obligations towards the player in relation to the treatment
of his injury.
42. Based on the aforementioned circumstances, the members of the Chamber came to the
conclusion that the player and the club had effectively terminated their employment
relationship by means of a settlement agreement dated 31 July 2021, and that the club had
duly paid the amount agreed upon in the settlement agreement, i.e. the amount of CZK
176,000, whilst it had no further obligations towards the player regarding the treatment of
his injury.
ii. Consequences
43. Having established the foregoing, the members of the Chamber came to the unanimous
conclusion that the claim of the player had to be rejected.
d. Costs
44. 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.
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45. 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.
46. 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, Leonardo Pereira dos Santos, is rejected.
2.
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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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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