Labour Disputes
Texto da decisão
REF FPSD-5909
Decision of the
Dispute Resolution Chamber
passed on 17 August 2022
regarding an employment-related dispute concerning the player Filipe
Rodrigues De Souza
BY:
Jon Newman (USA)
CLAIMANT/COUNTER-RESPONDENT:
Filipe Rodrigues de Souza, Brazil
Represented by Loizos Hadjidemetriou
RESPONDENT/COUNTER-CLAIMANT:
Zejtun Corinthians, Malta
Represented by Joseph Gauci
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REF FPSD-5909
I.
Facts of the case
1.
On 2 August 2021, the Brazilian player Filipe Rodrigues de Souza (hereinafter: the Player
or the Claimant) and the Maltese club Zejtun Corinthians (hereinafter: the Club or the
Respondent) concluded an employment contract (hereinafter: the Contract) valid until “the
last game of the season 2021/2022”.
2.
According to clause 2.1 of the Contract, the Claimant’s remuneration would be €1,200
monthly, payable at the end of each month.
3.
On 29 August 2021, the parties allegedly signed a document headed “Release of a
professional player” (hereinafter: the Release) which read as follows:
ZEJTUN CORINTHIANS -FC do hereby release the under-mentioned player, and grant him
permission to register and ploy, with any other Club.
I Rodrigues De Souza Santos Filipe [136731) consent to the release Issued by ZEJTUN
CORINTHIANS FC, thereby terminating my agreement with this Club
I declare that the Club has no further obligations towards me.
4.
On 16 September 2021 the Respondent requested the Claimant to sign a document titled
“Declaration”.
5.
On 25 September 2021, the Claimant sent an email to the Malta Football Association
(MFA) requesting information about his release and a copy of the employment contract.
6.
On 27 September 2021, the MFA provided copy of the Release.
7.
On 20 January 2022, the Player signed a contract with the Brazilian club Unai D.F valid
until April 2022 with a total remuneration of Brazilian Reais (BRL) 3,969.89
8.
On 5 April 2022, the player signed an employment contract with Brazilian club Ceilandia
EC valid until 2 September 2021, with a monthly salary of BRL 1,300.
II. Proceedings before FIFA
9.
On 30 April 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
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10. According to the Claimant, at the beginning of September 2021, he was informed by the
Respondent that “the latter was no longer interested in his services and their contractual
relationship had to be terminated. The Claimant was also told that he should stop attending
and participating in the team’s trainings sessions and was given a few days to vacate the
accommodation which had been provided to him by the Respondent”.
11. The Claimant states that he was told to sign the Declaration what he refused to do.
12. The Claimant states that after some inquiries, he contacted the MFA which provided him
with the Release.
13. Regarding this document, the Claimant states that “the signature on the release document
writes only - Filipe Rodrigues. This is not the way the Claimant signs. What is more, the
handwriting on the [Contract] is different than the one on the release document. What is more
it seems that the same person and the same pen which signed for the Claimant also filled out
the names of the Respondent’s representatives and affixed their signatures”.
14. As to the authenticity of the Release, the Claimant makes the following considerations:
a. If the Claimant had indeed signed that paper on 29/08/2021, then why was his [Contract]
terminated more than a week later, i.e. on 06/09/2021?
b. If the Claimant had indeed signed that paper confirming that he had consented to the
termination of his [Contract] and that the Respondent had no further obligations towards
him, then why was the Respondent so intensely insisting on the signing of the Declaration
on 16/09/2021, 18 days afterwards?
c. If the Claimant had indeed signed that paper, then why was the Respondent even
discussing on 18/09/2021, 20 days afterwards, to buy him a ticket back to Brazil? From
the moment that it had no further obligations towards him?
d. Why is the signature of the Claimant different than the one on the [Contract] and the other
documents mentioned above?
e. Why was the Claimant training with the Respondent’s team in the beginning of
September? If his [Contract] had been terminated since 29/08/2021?
f. If the Claimant had indeed signed that paper why did the Respondent never made any
reference to the existence of that document? And why did the Claimant only found out
about it from the MFA?
g. If the Claimant had indeed signed that document why did he not make any reference to
it to his lawyer?
15. For all reasons mentioned above, the Claimant deems that that the Respondent breached
the Contract without just cause it and must therefore be ordered to pay compensation to
the Claimant.
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16. Regarding the end date of the Contract, the Claimant states that “as seen in the FIFA TMS,
the MFA 2021-22 season is to expire on 08/06/2022. Consequently, the compensation which
the Respondent must pay the Claimant is equal to 9 months, i.e. from September 2021 until
May 2022, both included”.
17. The Claimant filed the following requests for relief:
EUR 10,800, as compensation for breach of contract, plus 5% p.a. interest from 06/09/2021
until full settlement.
Aggravated damages equal to the Claimant’s salaries for up to 6 months, plus 5% p.a. interest
from 06/09/2021 until full settlement.
b. Position & Counterclaim of the Club
18. According to the Club, “the player at the end of August met with club official Edward Schembri
and team Manager Chris Mangion as he wanted to leave as he was feeling that competition
was too tough for him and since we had 4 registered foreign plays and only 3 could play in
official games he felt that the coach was leaving him out”.
19. The Respondent further states that “Club officials also told player that release form will not
be filed before his final decision was made by him”. Moreover, “after some days player started
complaining to leave and stopped attending training”. “Since he was leaving in club premises
with other players, we insisted that he must leave as soon as possible or else the risk of infecting
other players will grow as he was just staying out all day and club had no further control on
him”.
20. The Respondent states that in its emails it “always made it clear that contract was
terminated by mutual consent and always clearly stated (…). Player never answered my emails”
21. The Respondent states that “the player did not provide any evidence whatsoever confirming
or otherwise that the signature is not his. Zejtun hereby declare that the signature is of the
player”.
22. The Club filed the following requests for relief:
For moral reasons for damages caused we are asking
(a) Refund of ticket 750euro and PCR cost 150euro. Plus interest at 5%.
(b) Replacement of player to replace him since he wanted to leave Tounkara Samba for 7
months x 1600euro wage per month = Euro11200. Plus interest at 5%.
(c) Moral damages to be decided by FIFA for false allegations
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(d) Legal costs.
(e) Interest will be based on final settlement date.
c. Answer to the Counterclaim
23. The Claimant argues that the Respondent has admitted in its submission that the
Claimant was not eligible to compete in the Respondent’s official matches. “This was
because the coach had already made up his mind as to which 3 foreign players he preferred
to play for the team”.
24. In the view of the Claimant, “the Respondent is trying to persuade the DRC that a player who,
on his own initiative, persuaded his club to mutually terminate his [Contract], just a few days
before the closing of the transfer window, accepted to stay training with a club with which he
was not registered and missed the possibility to look and sign with another club”.
25. The Claimant states that the Respondent breached the Contract when it filed the Release
with the MFA.
26. The Claimant further states that “the Respondent marked one of the pages of the WhatsApp
conversation between the Claimant and his lawyer and submitted this marked page. This
marked conversation shows the Claimant admitting to his lawyer that he had signed something
for the Respondent. And the latter argues that this is proof by the Claimant that he had signed
the release form. However this is not the case at all. As can be seen, studying the whole
conversation, exhibit 7 of the SoC, page 8, the Claimant’s reply to his lawyer was on whether
he had signed any documents to the Respondent for the cash payments he had received”.
27. The Player argues that Respondent’s counterclaim is totally unsubstantiated for the
following reasons:
a. It submitted no proof at all any damages relating to flight tickets. Neither did it prove that,
even if it had indeed purchased any flight ticket, the Claimant was obliged to accept it.
b. The Respondent’s claim for replacement costs are also unsubstantiated. If the Parties had
agreed to a mutual termination, how does that entitle the Respondent to request any
damages? The only way the Respondent would be entitled to request such damages would be
if the Claimant had unilaterally terminated his CoE. Something which is not the position
forwarded by the Respondent.
c. Moral damages and legal costs are not awarded in FIFA DRC proceedings.
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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 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 30 April 2022 and submitted for
decision on 17 August 2022. Taking into account the wording of art. 34 of the July 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.
29. 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 (June 2022
edition), he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Brazilian player
and a Maltese club.
30. 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 (June 2022 edition) and
considering that the present claim was lodged on 30 April 2022, the June 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
31. 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. Likewise, the Single Judge
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. 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
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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 Single Judge moved to the substance of the
matter and took note of the fact that the parties strongly dispute whether the Contract
had been terminated by mutual agreement. In this regard, the Single Judge observed that
the Respondent had been requested by FIFA general secretariat to provide the original
documents in relation to the dispute.
34. The Single Judge noted that it was undisputed by the parties that the Respondent had
sent the Release to the MFA on 6 September 2021 with the purpose of de-registering the
Claimant. However, the Claimant adduces that he never signed the Release and that his
signature was forged.
35. Bearing in mind the foregoing, the Single Judge went on to analyse the documentation
provided by both parties in support of their position. The Single Judge also emphasised
that, according to the last sentence of art. 13 par. 3 of the Procedural Rules, he has
ultimate discretion to as to the weight it gives to evidence.
36. At this stage, the Single Judge considered appropriate to remark that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as
the ones of alleged falsified signature or documents, and that such affairs fall into the
jurisdiction of the competent national criminal authority. In order to be able to solve such
disputes in a satisfactory and timely manner, without the need to wait for the initiation
and conclusion of a potential criminal investigation, the Single Judge adopts a practical
procedure in such cases, namely, to request the party who claims the authenticity of the
disputed document to provide its original version via regular mail. If for a layman the
document appears to be authentic and in line with the further documentation on file,
such document is considered as authentic for the purposes of solving the dispute at hand.
37. After a thorough analysis of the evidence provided by the parties, the Single Judge
concluded that, although the Respondent had allegedly provided the original documents
of the employment relationship, the Single Judge observed that the employment contract
filed with the claim and the alleged original were clearly different, in particular the
signature of the Club’s representative, the colour of the signatures and the full name of
the player under his signature, as shown below:
Signature section of employment contract filed with the claim:
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Signature section of the employment contract as provided by the Respondent:
38. Based on the foregoing, the Single Judge deemed that the Respondent had failed to
submit the authentic documents as signed by the Claimant, and therefore he had no
possibility to assess the authenticity of the Claimant’s signature.
39. The Single Judge referred to art. 12 par. 2 of the Procedural Rules according to which
parties “shall always act in good faith, tell the truth, and cooperate with any request for
information made by a chamber or the FIFA general secretariat”. The Single Judge stated that
since the Respondent had failed to provide the original documents, as requested, it had
not acted in good faith and consequently, such behaviour may not be condoned.
40. Therefore, in line with FIFA’s well-established jurisprudence, the Single Judge established
that the Release could not be taken into account in the context of the present dispute.
41. In addition to the above, the Single Judge underlined that the Respondent did not provide
any further evidence capable of demonstrating that any other document was ever
concluded or exchanged between the parties with a view to confirm the termination of
the Contract by mutual consent.
42. Based on the all the aforementioned considerations, the Single Judge confirmed that the
Respondent terminated the Contract without just cause when it de-registered the
Claimant at MFA, on 6 September 2021.
ii. Consequences
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43. Having stated the above, the Single Judge turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
44. The Single Judge observed that the Claimant did not claim any outstanding remuneration
at the time of termination.
45. Having stated the above, the Single Judge 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 Single
Judge 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.
46. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
47. As a consequence, the Single Judge 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 Single Judge recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
48. Bearing in mind the foregoing as well as the claim of the player, the Single Judge
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 Single Judge concluded that the amount of EUR 10,800 (i.e. EUR 1,200 * 9 months)
serves as the basis for the determination of the amount of compensation for breach of
contract.
49. In continuation, the Single Judge 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
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calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
50. Indeed, the player found employment with the Brazilian clubs Unai and Ceilandia. In
accordance with the pertinent employment contracts, the player was entitled to Brazilian
Reais (“BRL”) 6,569.89, approximately EUR 1,043, for the entire overlapping period.
Therefore, the Single Judge concluded that the player mitigated his damages in the total
amount of EUR 1,043.
51. Subsequently, the Single Judge 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 Single Judge confirmed that the contract
termination did not take place due to said reason and therefore, additional compensation
may not be awarded.
52. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the
amount of EUR 9,757 to the player (i.e. EUR 10,800 minus EUR 1,043), 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 Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of from the date of the claim, 30 April 2022, until
the date of effective payment.
iii. Compliance with monetary decisions
54. Finally, taking into account the applicable Regulations, the Single Judge 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 Single Judge 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.
56. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days
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of notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
57. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
58. The Single 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.
24 par. 8 of the Regulations.
d. Costs
59. 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.
60. 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.
61. 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/Counter-Respondent, Filipe Rodrigues De Souza, is partially
accepted.
2.
The Respondent/Counter-Claimant, Zejtun Corinthians, has to pay to the Claimant, the
following amount(s):
- EUR 9,757 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 30 April 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The counterclaim of Zejtun Corinthians is 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, 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/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.
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.
7.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent 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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