Labour Disputes
Texto da decisão
REF. FPSD-13344
Decision of the
Dispute Resolution Chamber
passed on 22 April 2024
regarding an employment-related dispute concerning
the player Andres Camilo Sanchez Gil
BY:
Livia SILVA KÄGI (Brazil/Switzerland), Deputy Chairwoman
Michele COLUCCI (Italy), member
Andre DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Andres Camilo Sanchez Gil, Colombia
Represented by Pablo Sebastian Rodriguez
RESPONDENT:
UD Lanheses, Portugal
Represented by Jose Gomes Mendes
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REF. FPSD-13344
I. Facts of the case
1.
On 16 August 2022, the Colombian player Andres Camilo Sanchez Gil (hereinafter, the
Claimant or the Player) and the Portuguese club UD Lanheses (hereinafter, the Respondent
or the Club) concluded employment agreement (hereinafter, the Contract), valid as from
1 September 2022 until 31 August 2023.
2.
In accordance with Clause 2 of the Contract, the Claimant and the Respondent (hereinafter,
jointly referred to as the Parties) agreed on the following financial conditions:
“The Club undertakes to pay the Player the gross monthly salary of EUR 705.00 (euro
seven hundred and five) before 15th day of the following month”. (freely translated to
English)
3.
On 16 January 2023, the Player suffered an injury which led to physiotherapy and other
medical treatments.
4.
On 28 June 2023, the Claimant send a letter to the Respondent by way of which he
terminated the Contract for the following alleged reasons:
• He had not been paid the salaries from September 2022 to June 2023;
• He had to perform duties other than those for which he was employed, such as coaching
kids and driving them in his car without gas reimbursement from the Respondent);
• He had to live in deplorable conditions and the Respondent did not pay the rent nor
allowance;
• He was forced to work for a company in order to make ends meet; and
• He had to bear the medical costs derived from his injury.
5.
Based on the above, the Claimant informed the Respondent the following:
“I hereby communicate to you the decision to terminate with just cause the FIXED TERM
EMPLOYMENT CONTRACT what links the player with the club that you represent, a
decision that will be effective as of the date. A determination that is based on the
serious breaches of your obligations that as an employer you are legally obliged to
observe (…).
This leaves in unforeseen, that these conducts are proscribed in numeral two of article
14 of the FIFA Regulations on the Status and Transfer of Players which states that “Any
abusive conduct of a party aiming at forcing the counterparty to terminate or change
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the terms of the contract shall entitle the counterparty (a player or a club) to terminate
the contract without just cause”.
Mr. Enrique, in accordance with the above facts and situations, it is irrefutably
demonstrated that it is impossible for the player to continue developing his activity as
a professional football player in the service of UNIAO DESPORTIVA LANHESES for the
reasons and legal grounds that I have exposed in this communication and for this
reason, I ratify the determination to terminate with just cause the employment
contract that binds the player with the entity that you represent.
As a consequence of the foregoing, in addition to the salaries and values related in the
present communication that are owed to the player to date, he must be paid what he
has incurred in extra expenses for his maintenance, which was the obligation of the
club you represent, that is to say, medical expenses, food and rent”. (freely translated
to English)
II. Proceedings before FIFA
6.
On 12 January 2024, 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
7.
According to the Claimant, he tried to resolve the matter in an amicable way in multiple
occasions, to no avail. In this respect, the Claimant alleged that: “This indifference and lack
of professionalism on the part of the club left Andrés with no other option but to seek legal
justice”. (freely translated to English)
8.
The requests for relief of the Claimant, as amended, were the following:
1. “Unpaid salaries and employee benefits (Between 01/09/2022 and 31/08/2023):
- Player’s salary EUR 705 after 12 months of non-payments: EUR 8,460.
- Unpaid labour benefits that were NOT part of the contract. According to
Portuguese law, the Minimum Wage is EUR 886.7 per month. After 12 months of
non-payments: EUR 10,640.40.
2. Medical expenses:
- Total medical expenses: EUR 237.
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3. Damages for abandonment:
- It is claimed that the amounts be doubled as a fine for total abandonment of the
player, requiring him to work on tasks that did NOT correspond to him according
to his contract.
4. Total claimed:
- Amount in Euros: EUR 19,337.40 (Equivalent to USD 21,000).
- Rate of damages for abandonment: 100%
- Total amount claimed: USD 42,000.00.
- Interest at 18% per annum until effective payment in accordance with article 21
point 1-C of the FIFA Disciplinary Code.” (freely translated to English)
b. Position of the Respondent
9.
Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. First of all, the Dispute Resolution Chamber (hereinafter, also referred to as 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 presented to FIFA on 12 January 2024 and
submitted for decision on 22 April 2024. Taking into account the wording of art. 24 of the
March 2023 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.
11. Subsequently, the Chamber 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 (February 2024), it is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Colombian player and a Portuguese
club.
12. 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 (February 2024 edition), and
considering that the present claim was lodged on 12 January 2024, the May 2023 edition of
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REF. FPSD-13344
said regulations (hereinafter, the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
13. 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
14. 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
15. The foregoing having been established, the Chamber moved to the substance of the matter
and first took note that this is a claim of a player against a club concerning the termination
of an employment agreement.
16. In this respect, the Chamber took note of the fact that the Player claimed that he
terminated the Contract for the existence of several outstanding salaries, and also as a
consequence of the alleged abusive and deliberate conduct of the Club.
17. Based on the above, the Chamber referred to the content of art. 14 of the Regulations, in
accordance with which “A contract may be terminated by either party without consequences of
any kind (either payment of compensation or imposition of sporting sanctions) where there is
just cause”. In this respect, the definition of just cause and whether just cause exists shall
be established in accordance with the merits of each particular case.
18. The Chamber further recalled that it is a longstanding and well-established jurisprudence
that only a breach or misconduct which is of a certain severity justifies the termination of
a contract, i.e., only when there are objective criteria which do not reasonably permit to
expect a continuation of the employment relationship between the parties, a contract may
be terminated prematurely. Hence, if there are more lenient measures which can be taken
into in order for an employer to ensure the employee’s fulfilment of his contractual
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obligations, and vice versa, such measures must be taken before termination an
employment contract. A premature termination of an employment contract can only ever
be an ultima ratio measure.
19. The Chamber recalled that, in casu, the Player alleged (i) that the Club was in default for the
salaries from September 2022 to August 2023; (ii) that he had to perform duties other than
those for which he was employed; (iii) that he had to live in deplorable conditions and that
the Respondent did not pay the rent nor allowance; (iv) that he was forced to work for a
company in order to make ends meet; and (v) that he had to bear the medical costs derived
from an injury.
20. Regarding the Player’s allegations concerning the living conditions, the DRC emphasised
that the Contract did not provide the obligation for the Club to provide the Claimant with
housing nor to bear his allowances costs. As to the allegations relating to the additional
work, the Chamber was of the opinion that the Player pictures provided by the Player are
not sufficient to coincide with the Claimant’s allegations.
21. Notwithstanding the foregoing, the Chamber noted that the Respondent did not dispute
the termination of the Contract nor being in default for the alleged outstanding salaries
claimed by the Player from September 2022 to August 2023 (i.e., the total Contract). In this
respect, the Chamber then referred to art. 21 par. 1 of the Procedural Rules, in accordance
with which “(…) If the respondent(s) fail(s) to submit a response to the claim within the time
limit, a decision will be made based on the file” and concluded that, given that the Respondent
did not provide any evidence to the contrary, and in spite that the Player did not put the
Respondent in default before terminating the Contract on 28 June 2023, the former was in
serious breach of its obligations since, at the time of termination, there were ten monthly
instalments due.
22. In other words, the Chamber was of the opinion that, in casu, there were objective criteria
which did not reasonably permit to expect a continuation of the employment relationship
between the Parties and, in essence, that the Player had just cause to terminate the
Contract and that the Respondent must be liable to the consequences that follow.
ii. Consequences
23. Having stated the above, the members of the Chamber turned its attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
24. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, is equivalent to EUR 7,050,
corresponding to the monthly salaries of September 2022 to June 2023 (i.e., EUR 705 per
month).
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REF. FPSD-13344
25. As a consequence, and in accordance with the legal principle pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay the Claimant the amounts which
were outstanding under the Contract at the moment of termination, i.e., EUR 7,050.
26. The Chamber then noted that the Claimant claimed he was entitled to reimbursement of
the medical costs derived from his injury. In this regard, the Chamber concluded that the
Claimant’s request for reimbursement was not only supported by the relevant evidence
that substantiated the incurred medical costs, but also aligned with the Club’s general duty
to provide medical treatment.
27. On account of the above, the Chamber decided that the Respondent is liable to reimburse
the Claimant the amount of EUR 237.
28. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at a rate
of 5% p.a. both on the outstanding remuneration and the reimbursement as from the date
of termination (i.e., 20 June 2023) until the date of effective payment.
29. 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.
30. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
31. 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.
32. As a consequence, the Chamber determined that the amount of compensation payable by
the Respondent to the Claimant 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.
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33. 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
until its term. Consequently, the Chamber concluded that the amount of EUR 1,410 (i.e.,
EUR 705 x 2) serves as the basis for the determination of the amount of compensation for
breach of contract.
34. In continuation, the Chamber verified 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
Chamber 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
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
35. In this respect, the Chamber noted that the Player remained unemployed since the
unilateral termination of the contract.
36. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
37. In this respect, the Chamber decided to award the Player compensation for breach of
contract in the amount of EUR 1,710, i.e. EUR 705 times 2, as the residual value of the
Contract.
38. 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 20 June 2023 until the date of effective payment.
iii. Compliance with monetary decisions
39. 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.
40. In this regard, the Chamber 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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41. Therefore, bearing in mind the above, the Chamber 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 creditor, 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.
42. 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.
43. The Chamber 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
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.
45. Furthermore, 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 Chamber 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, Andres Camilo Sanchez Gil, is partially accepted.
2.
The Respondent, UD Lanheses, must pay to the Claimant the following amount(s):
- EUR 7,050 as outstanding remuneration plus 5% interest p.a. as from 20 June 2023 until
the date of effective payment;
- EUR 1,410 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 20 June 2023 until the date of effective payment; and
- EUR 237 as reimbursement plus 5% interest p.a. as from 20 June 2023 until the effective
date of payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
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).
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