Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 16 August 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Monsen (Norw ay ), member
Johan v an Gaalen (S outh Africa), member
Pav el Piv ov arov (Rus s ia), member
Daan de Jong (the Netherlands ), member
on the claim presented by the player,
Raphael Ros s i Branco, Italy
represented by Mr Nuno Rêgo
as Claimant
against the club,
Boav is ta FC, Portugal
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 3 July 2017, the Italian player, Raphael Rossi Branco, (hereinafter: the
Claimant or the player) concluded an employment contract (hereinafter: the
contract) with the Portuguese club, Boavista FC, S.A.D. (hereinafter: the
Respondent or the club), valid as from 3 July 2017 until 30 June 2019.
2.
On 27 June 2018, the Claimant and the Respondent agreed on the termination
of the contract.
3.
On 27 June 2018, the club acknowledged a debt toward the player (note:
hereinafter: the debt recognition) of the total amount of EUR 20,700
corresponding to the following:
EUR 15,000 corresponding to 2 outstanding salaries for an amount of EUR
7,500 each;
EUR 700 corresponding to 2 monthly accommodation allowance for an
amount of EUR 350 each;
EUR 5,000 corresponding to an outstanding bonus.
4.
The debt recognition further provided that the club “agree to pay to [the player]
EUR 20,700 which we agree to pay as discussed by 10 July 2018. […] Thank you
for your understanding and agreeing to sign the termination agreement prior
to receiving this money”.
5.
On 10 December 2018, the player put the club in default, requesting the
payment of EUR 20,700 corresponding to the amounts provided in the debt
recognition, granting 10 days for the club to remedy its default.
6.
By correspondence dated 14 February 2019, the Claimant put the Respondent in
default of payment of EUR 38,000, corresponding to the second and the third
instalment, setting a 10 days’ time limit in order to remedy the default.
7.
On 19 February 2019, the Claimant lodged a claim against the Respondent in
front of FIFA for outstanding remuneration and requested the payment of the
total amount of EUR 20,700 corresponding to the following amounts, plus 5%
interest p.a. as from the respective due dates:
EUR 15,000 corresponding to 2 outstanding salaries for an amount of EUR
7,500 each;
EUR 700 corresponding to 2 monthly accommodation allowance for an
amount of EUR 350 each;
EUR 5,000 corresponding to an outstanding bonus
Player Raphael Rossi Branco, Italy / Club Boavista FC, Portugal
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The Claimant further requested for the club to cover all costs of the
proceedings and legal costs.
8.
The Claimant argued that he did not receive any amounts from the Respondent,
despite his default notice, which remained unanswered.
9.
In reply to the claim, the Respondent alleged that it had appealed to a
Portuguese judicial proceeding in order to recover economically and financially.
In support of its allegations, the Respondent provided with the “Portuguese
Court decision accepting the appeal to this Special Revitalization Plan”, dated
22 May 2018. Therefore, according to the Respondent, “all debt payment actions
are immediately suspended”. The Respondent did not provide comments as to
the substance.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 19
February 2019. Consequently, the DRC concluded that the 2018 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber, (hereinafter: the Procedural Rules), is applicable
to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 2 and 3 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition of June 2019), the Dispute Resolution Chamber is competent to
deal with the present matter, which concerns an employment-related dispute
with an international dimension between an Italian player and a Portuguese
club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition of
June 2019) and considering that the present claim was lodged in front of FIFA
on 19 February 2019, the June 2018 edition of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect,
the Chamber started by acknowledging the above-mentioned facts as well as
Player Raphael Rossi Branco, Italy / Club Boavista FC, Portugal
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the documentation contained in the 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.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances
surroundings the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
6.
In this respect and first of all, the members of the Chamber acknowledged that,
on 3 July 2017, the Claimant and the Respondent had concluded an employment
contract valid as from 3 July 2017 until 30 June 2019.
7.
Secondly, the Chamber took note that, on 27 June 2018, the parties had
concluded a termination.
8.
Equally, the DRC observed that on 2 June 2018, the Respondent acknowledged
a debt toward the player of the total amount of EUR 20,700 corresponding to:
EUR 15,000 corresponding to 2 outstanding salaries for an amount of EUR
7,500 each;
EUR 700 corresponding to 2 monthly accommodation allowance for an
amount of EUR 350 each;
EUR 5,000 corresponding to an outstanding bonus.
9.
In this regard, the DRC took note that the Respondent, in the debt recognition,
agreed to pay said amount “by 10 July 2018”.
10.
In continuation, the Chamber observed that the Claimant claimed from the
Respondent the amount of EUR 20,700, plus 5 % interest as of the due date,
thereby asserting that the Respondent had not complied with the abovementioned debt recognition. In addition, the Chamber further took note that
the Claimant requested the Respondent to be ordered to pay legal and
procedural costs.
11.
At this point, the Chamber took note that, for its part, the Respondent
requested FIFA to suspend the current proceedings, alleging, that, in view of its
financial difficulties, it had resorted to the “revitalization plan” in order to
recover economically and financially, and, as a consequence, said proceedings
having been accepted by “the Portuguese Court”, “all debt payment actions are
immediately suspended”.
Player Raphael Rossi Branco, Italy / Club Boavista FC, Portugal
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12.
In this respect, the members of the DRC first wished to stress that when deciding
a dispute before the DRC, FIFA’s regulations prevail over any national law
chosen by the parties. In this regard, the Chamber emphasized that the main
objective of the different FIFA Regulations is to create a standard set of rules to
which all the actors within the football community are subject to and can rely
on. This objective would not be achievable if the DRC would have to apply the
national law of a specific party on every dispute brought to it. Therefore, the
Chamber deemed that it is not appropriate to apply the principles of a particular
national law to a dispute brought before it but rather the Regulations on the
Status and Transfer of Players, general principles of law and, where existing, the
Chamber’s well-established jurisprudence.
13.
With respect to the request put forward on behalf of the Respondent to suspend
proceedings in which the Respondent is involved due to the ongoing
“revitalization plan”, the Chamber stressed that in accordance with the
jurisprudence of both the DRC and the Court of Arbitration for Sport,
bankruptcy/insolvency procedures do not affect procedures in front of the DRC.
In fact, the Chamber wished to outline that it is only requested to address the
recognition of the Claimant’s claim and not the execution of a possible debt.
What is more, the members of the Chamber noted that according to the
correspondence dated 7 March 2019 of the Federação Portuguesa de Futbol
(FPF), the Respondent remains affiliated to the FPF and is participating in the
FPF competitions. Consequently, the Chamber decided that there is no reason
to suspend the proceedings and that such request has to be dismissed and the
claim of the Claimant considered as admissible.
14.
In this context, the DRC was eager to emphasise that the Respondent, in the
debt recognition of 27 June 2018, acknowledged a debt of EUR 20,700 payable
to the Claimant by no later than 10 July 2018.
15.
Subsequently, the DRC observed that the Claimant reverted to FIFA indicating
that the Respondent had not fulfilled its obligations as established in debt
recognition, since it did not pay the acknowledged amount despite the default
notice of the Claimant to the Respondent.
16.
Furthermore, the DRC noted that the Respondent had been given the
opportunity to reply to the claim submitted by the Claimant, but that the
Respondent had failed to present its response as to the substance in this respect,
referring only as to its request to suspend the current proceedings. In this way,
the DRC deemed that the Claimant’s allegations as to the substance remained
undisputed and therefore, that the Respondent accepted said allegations.
17.
On account of the aforementioned considerations, the DRC established that the
Respondent had failed to pay to the Claimant the amounts due to him, as
acknowledged by the Respondent in the debt recognition, for a total amount of
EUR 20,700. Consequently, the DRC concluded that, in accordance with the general
Player Raphael Rossi Branco, Italy / Club Boavista FC, Portugal
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legal principle of “pacta sunt servanda”, the Respondent is liable to pay the
Claimant the amount of EUR 20,700.
18.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. as
from 11 July 2018.
10.
Finally, the Dispute Resolution Chamber held that the Claimant’s claim for legal
and procedural costs is rejected in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence.
11.
The DRC concluded its deliberations in the present matter by establishing that
any further claims lodged by the Claimant are rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Raphael Rossi Branco, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Boavista Futebol Clube, has to pay to the Claimant, w ithin 30
day s as from the date of notification of this decision, outstanding remuneration
in the amount of EUR 20,700 plus 5% interest p.a. as from 11 July 2018 until the
date of effective payment.
4.
In the event that the aforementioned amount plus interest is not paid within
the stated time limit, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
Player Raphael Rossi Branco, Italy / Club Boavista FC, Portugal
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6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Raphael Rossi Branco, Italy / Club Boavista FC, Portugal
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