Labour Disputes
Texto da decisão
REF FPSD-7650
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning
the player Jefferson Reis de Jesus
BY:
Jorge Gutierrez (Costa Rica), Single Judge of the Dispute Resolution
Chamber
CLAIMANT:
Jefferson Reis de Jesus, Brazil
Represented by Evandro Luis Rezende Forte
RESPONDENT:
FK Banga, Lithuania
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REF FPSD-7650
I. Facts of the case
1.
On 4 January 2022, the Brazilian player Jefferson Reis de Jesus (hereinafter: the Claimant
or the Player) and the Lithuanian club FK Banga (hereinafter: the Respondent or the Club)
concluded an employment contract valid from 17 January 2022 until 30 November 2022
(hereinafter: the Contract).
2.
Art. 4 of the Contract reads as follows:
IV Obligations of the Club
1. The Club undertakes to pay to the Player remuneration and other payouts in amount of
1,200 EUR (one thousand and two hundred euros) per month.
2. The payments for the Player under this contract are made transferring the funds into the
Player’s payment card or the Player’s bank account opened in a bank administering the Club’s
bank accounts. The Club may provide assistance for the Player to open a bank account or to
receive a payment card. If the Player so requests, payments could be paid by cash.
The Club can pay bonuses for the Player.
3.
On 4 May 2022, the Player suffered an injury on his right knee during an official match.
4.
On 10 May 2022, the Player underwent a medical examination under the auspices of the
medical staff of the Club.
5.
On 13 May 2022, the parties concluded an “agreement of contract termination” (hereinafter:
the Settlement).
6.
According to the Settlement, the parties concluded the employment relationship on 13
May 2022 and had not financial claims against each other.
7.
On 16 May 2022, the Player returned to Brazil.
8.
On 11 August 2022, the Player underwent a medical examination which confirmed that
he had a partial rupture of the anterior cruciate ligament
9.
On 9 September 2022, the Claimant sent a notice to the Respondent stating that he “will
not honour the contents of the Agreement of Contract Termination” and that he “will demand
the Club before the decision-making bodies of FIFA the payment of the necessary compensation
for all losses and damages suffered because of its unacceptable behaviour”.
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10. The Claimant informed that he remains unemployed.
II. Proceedings before FIFA
11. On 27 September 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
12. According to the Claimant, on 12 May 2022, the Respondent paid him the amount of EUR
1,500, corresponding to the salary due in April 2022, as well as the remaining values due
for the month of March 2022 and February 2022.
13. The Claimant states that he “had no other option but to sign the Termination Agreement” and
subsequently, the Respondent paid him EUR 3,000.
14. The Claimant submits that he “only entered into the Termination Agreement because of the
serious injury suffered in his right knee and the necessity of obtaining a second opinion from a
medical specialist”.
15. The Claimant further submits that “there was no reasonable reason whatsoever for the Player
having accepted to terminate the Employment Contract and consequently, waive a very
considerable amount of money – due as outstanding remuneration – that the Club still had to
pay until the termination date”.
16. In the view of the Claimant, the Respondent “upon outraged bad faith used the vulnerability
and fragile circumstances faced by the Player and his desire to return to Brazil with the purpose
of obtaining a second opinion from a medical specialist to avoid the obligation to pay the
remuneration (and the compensation) clearly indicated in the Employment Contract.”
17. The Claimant sustain that according to the Contract the Club undertook to pay the overall
amount of EUR 13,200 and solely paid him EUR 7,600.
18. Based on the foregoing, the Claimant deems that the Respondent shall pay him EUR 5,600
as compensation plus default interest at a rate of 5% annually from 13 May 2022 until the
effective date of payment.
19. The Claimant also request the medical expenses incurred in the amount of BRL 21,000.
20. The Claimant filed the following requests for relief:
FIRST – To uphold the present claim in full;
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SECOND – To confirm that the Club breached the Employment Contract during the “Protected
Period”;
THIRD – To order the Club to pay the Player EUR 5,600 (five thousand and six hundred Euros)
due as compensation, plus default interest at a rate of 5% p.a. from 13 May 2022 until the
effective date of payment;
FOURTH – To order the Club to reimburse all of the costs of treatment in the amount of R$
21,000.00 (twenty-one thousand Brazilian reals), plus interest at a rate of 5% p.a. as follows:
a) R$ 3.000,00 (three thousand Brazilian reals) plus 5% interest p.a. as from 31 May 2022 until
the effective date of payment;
b) R$ 6.000,00 (six thousand Brazilian reals) plus 5% interest p.a. as from 28 June 2022 until
the effective date of payment;
c) R$ 6.000,00 (six thousand Brazilian reals) plus 5% interest p.a. as from 29 July 2022 until the
effective date of payment; and
d) R$ 6.000,00 (six thousand Brazilian reals) plus 5% interest p.a. as from 26 August 2022 until
the effective date of payment
FIFTH – To ban the Club from registering any new players, either nationality or internationally,
for two entire and consecutive registration periods;
b. Position of the Respondent
21. Despite being invited to submit its position, the Respondent failed to reply to FIFA.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Single Judge (hereinafter also referred to as Single 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 27 September 2022 and submitted for decision
on 07 December 2022. Taking into account the wording of art. 34 of the October 2022
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.
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23. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (October 2022),
he 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 Lithuanian club.
24. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 27 September 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
25. The Single Judge 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.
c. Merits of the dispute
26. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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 Single Judge moved to the substance of the
matter, and took note of the fact that, it is undisputed that the parties concluded the
Settlement after the injury of the Claimant, terminating their employment relationship.
However, the Claimant has herein challenged the validity of the said Settlement.
28. In this context, the Single Judge acknowledged that his task was to ascertain whether the
Settlement shall be deemed valid and enforceable between the parties and the
consequences arising thereof.
29. Having established the above, Single Judge observed that the Claimant submits that he
“had no other option but to sign” the Settlement in order to return to Brazil for carrying
further medical examinations.
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30. In this regard, the Single Judge underlined that the Claimant has not submitted any
evidence or argumentation that he was induced, forced or coerced into signing the
Settlement. Moreover, the Single Judge noted that he is not in a position to evaluate the
rationale behind the signature of the Settlement by the parties. Furthermore, the Single
Judge further noted that there is no contractual provision in support of the Claimant’s
intention of setting aside the Settlement.
31. As a consequence, the Single Judge made reference to art. 13. par 5. of the Procedural
Rules and found that the Claimant had not been able to prove the existence of duress
and therefore, based on the principle of pacta sunt servanda, the Settlement shall remain
valid and enforceable between the parties.
32. Thus, since the parties terminated their employment relationship by mutual agreement
and confirmed that they had no financial claims against each other, the Single Judge
deemed that the claim shall be rejected.
d. Costs
33. The Single Judge 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 Single Judge decided that no procedural costs
were to be imposed on the parties.
34. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
35. Lastly, the Single Judge 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, Jefferson Reis de Jesus, 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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