Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber (DRC) judge
passed on 15 January 2020,
by
Om ar Ongaro (Italy),
on the claim presented by the player,
Patrick dos S antos Cruz, Brazil,
represented by Mr Marcelo Franklin dos Santos Filho
as Claimant
and the club,
S ai Gon Football Club, Vietnam
as Respondent
regarding an employment-related dispute
arisen between the parties
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I.
Facts of the cas e
1.
On 30 December 2016, the player Patrick dos Santos Cruz (hereinafter: the player or the
Claimant) concluded an employment contract (hereinafter: the contract) with the club Sai Gon
Football Club (hereinafter: the club or the Respondent) valid as from 30 December 2016 until
30 November 2017.
2.
In accordance with the appendix 1 of the contract the player was, inter alia, entitled to a
monthly salary in the amount of USD 2,000.
3.
In addition, according to art. 4 of the appendix 1 of the contract “if Party B [the player] is sick,
injured, Party A [the club] has the responsibility to take Party B for treatment in specialized
hospitals of Vietnam. Party A shall support a part of treatments costs and the remained cost
shall be paid by Party B.
Party A shall not be responsible for cases of sickness or injury not cause by Party B’s training
and competition for Party A under direction of Coach or Board of Leaders of Party A or the
injury, illness cause by Party B’s violation against Party A’s regulation, not following the
instructions of coaches, doctors or injury or sickness caused by Party B suffers from
cardiovascular disease, hypertension or historic diseases.”
4.
On 24 November 2017, the parties signed a document titled “Contract Liquidation
Minutes”, according to which the parties agreed to “liquidate the labor contract” and
acknowledged that “from the signing date of this contract liquidation minutes, the two
parties do not have any related rights and obligations and none of the parties shall execute
any appeal or protest which is related to the signed labor contract, Player is free to
negotiate or sign contract with other club.”.
5.
On 6 March 2019, the player put the club in default for the payment of USD 89,800, setting a
10 days’ deadline
6.
On 21 March 2019, the Claimant lodged a claim for breach of contract and requested the
payment of the following amounts:
- USD 1,000 as “reimbursement of medical expenses”;
- USD 4,800 “for the 12 working days withdrawn from the original contract by the Club after
the player’s arrival in Vietnam”;
- USD 3,600 “for the 9 days of work withdrawn from the contract by the Club on termination
of contract without just cause”;
- USD 32,400, as “the salaries corresponding to the 81 days in which the athlete could not
work as a result of the surgery”;
- USD 36,000 as “damages due to the specificity of the sport”;
- USD 10,000 as moral damages;
- “5% of interest counted from the moment in which each request is demandable”.
7.
The Claimant further requested the payment of USD 8,700 corresponding to “defense costs”.
8.
In his claim the player deemed that “the Club breached the contract and FIFA regulations since
the Player had a severe injury during a match played on 5 November 2017, had to go under
surgery and received no support by the Club. Also, the Defendant modified the dates of the
Player Patrick dos Santos Cruz, Brazil / Club Sai Gon Football Club, Vietnam
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original contract and its values to harm the player, in addition to having terminated the
contract without just cause”.
9.
According to the player “the Club gave the Player two separate contracts, one of USD 2,000
[…] and one of USD 12,000”, the latter was dated 28 December 2016 and was addressed to
“The Board of Administrators”.
10. In this regards, the player claimed that the club paid USD 2,000 to his bank account, whereas
“the greater part (ten thousand dollars) was always delivered in cash without any receipt or
proper documentation”.
11. Furthermore, the player deemed that the “club’s worst actions came when the athlete was
injured during the match on November 5, 2017. In a ball dispute, Patrick took a strong kick in
his testicles.”
12. In this respect, the player stressed that due to this injury he had to be operated and “had half
a testicle removed”.
13. Moreover, the player highlighted that he “was totally abandoned by the Club to his own fate”
and that the club stated that “the Player’s testicle injury should be probably related to excessive
sexual intercourse”.
14. In addition, the player claimed that on 20 November 2017 he “was called to the club’s
administration room. Upon arrival they said that either he signed the contractual termination
or would only receive his salary in late December 2017”.
15. Continuously, the player deemed that he “felt compelled to sign an early termination
agreement (presented in English and Vietnamese, which he never even received a copy),
otherwise he would simply not receive his last salary”.
16. Consequently, the player emphasized that he “was forced by the Club to give away 9 days of
his November salary”.
17. In spite of having been invited to do so, the club did not reply to the claim.
II. Cons iderations of the Dispute Resolution Chamber (DRC) judge
1.
First, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge) analysed whether
he was competent to deal with the matter at stake. In this respect, he took note that the
present matter was submitted to FIFA on 21 March 2019. Consequently, 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 of
the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of
Player Patrick dos Santos Cruz, Brazil / Club Sai Gon Football Club, Vietnam
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the Regulations on the Status and Transfer of Players (January 2020 edition) 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 Vietnamese club.
3.
Furthermore, the DRC 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
par. 2 of the Regulations on the Status and Transfer of Players (January 2020 edition), and
considering that the present claim was lodged on 21 March 2019, the June 2018 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the
DRC judge entered into the substance of the matter. In this respect, the DRC judge started by
acknowledging all the above-mentioned facts of the case as well as the documentation
contained in the file.
5.
In this respect, the DRC judge acknowledged that the parties to the dispute had signed a valid
employment contract on 30 December 2016, in accordance with which the Respondent would
pay the Claimant a monthly salary in the amount of USD 2,000.
6.
In continuation, the DRC judge acknowledged that on 21 March 2019, the Claimant lodged a
claim against the Respondent in front of FIFA, alleging that, on that date, the following
amounts remained outstanding:
- USD 1,000 as “reimbursement of medical expenses”;
- USD 4,800 “for the 12 working days withdrawn from the original contract by the Club after
the player’s arrival in Vietnam”;
- USD 3,600 “for the 9 days of work withdrawn from the contract by the Club on termination
of contract without just cause”;
- USD 32,400, as “the salaries corresponding to the 81 days in which the athlete could not
work as a result of the surgery”.
7.
In this context, the DRC judge referred to art. 25 par. 5 of the Regulations, according to which
the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than
two years have elapsed since the event giving rise to the dispute. Considering that the claim of
the Claimant was lodged on 21 March 2019 only, the DRC judge found that he could not enter
into any claim for salaries that fell due prior to 21 March 2017.
8.
Taking into account the previous considerations, the DRC judge preliminarily concluded that
the Claimant’s request for salaries accrued before the date of 21 March 2017 was barred by the
statute of limitations in accordance with art. 25 par. 5 of the Regulations.
9.
Subsequently, the DRC judge noted that the Respondent failed to present its response to the
claim of the Claimant, in spite of having been invited to do so. By not presenting its position
to the claim, the DRC judge was of the opinion that the Respondent renounced its right of
defence and thus, in principle, accepted the allegations of the Claimant.
Player Patrick dos Santos Cruz, Brazil / Club Sai Gon Football Club, Vietnam
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10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred
that in accordance with art. 9 par. 3 of the Procedural Rules, the DRC judge shall take a decision
upon the basis of the documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
11. In this respect, the DRC judge acknowledged that the Claimant signed a document containing
a declaration in accordance with which the player admitted having received all his dues and
entitlements from the club (cf. point I. 4).
12. In continuation, the DRC judge noted that the Claimant alleged that said document was signed
by him as he felt “compelled” to sign it, otherwise he would “not receive his last salary”.
13. After duly analysing the contents of the aforementioned document and the argument of the
Claimant, the DRC judge came to the conclusion that, indeed, the player waived any of his
potential rights arisen from any agreement concluded before the date of the signature of said
document. Moreover, the DRC judge understood that, on the basis of the documentation and
information on file, it appears that the player was sufficiently aware of the consequences of
signing the aforementioned document.
14. In addition, the DRC judge wished to emphasise that he did not consider the document dated
28 December 2016, to be a valid employment contract, as it was addressed to the “Board of
Administrators” and was not signed by the player.
15. On account of the above, the DRC judge decided to reject the claim of the Claimant.
Player Patrick dos Santos Cruz, Brazil / Club Sai Gon Football Club, Vietnam
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III. Decision of the DRC judge
1.
The claim of the Claimant, Patrick dos Santos Cruz, is rejected insofar it is admissible.
*****
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 relating to the m otiv ated decision (legal remedy):
According to art. 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, a copy of which we enclose hereto.
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.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-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 DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Patrick dos Santos Cruz, Brazil / Club Sai Gon Football Club, Vietnam
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