Labour Disputes
Texto da decisão
REF FPSD-6544
Decision of the
Dispute Resolution Chamber
passed on 11 January 2023
regarding an employment-related dispute concerning the player Eliandro dos
Santos Gonzaga
BY:
Gonzalo de Medinilla (Spain)
CLAIMANT:
Eliandro dos Santos Gonzaga, Brazil
Represented by André Scalli
RESPONDENT:
Samut Prakan City, Thailand
Represented by Kittamet Engchountada
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I. Facts of the case
1.
On 19 May 2021, the Brazilian player Eliandro dos Santos Gonzaga (hereinafter the
Claimant or the player) and the Thai club Samut Prakan City Football Club (hereinafter the
Respondent or the club) concluded employment agreement (hereinafter the Employment
Agreement), valid as from 14 June 2021 until 31 May 2022.
2.
In Clause 3 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed upon, inter alia, the following terms:
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USD 11,000 net on monthly basis at the end of the month, whereas “daily
calculation may be applied for the period that the Player is not on contract for the full
month”;
USD 11,000 net sign-up fee “to be paid at the end of the first month”;
“match win incentive at the Company’s sole discretion”;
USD 500 net per month for housing allowance;
medical care;
two round trip air tickets (economy class) per year for the player and his wife.
3.
The same clause stipulated that whereas the amounts are stipulated in USD, “the player
will receive its equivalent amount in Thai Baht.”
4.
In Clause 13.4 of the Employment Agreement concerning termination, the parties
stipulated the following:
“At any time during this term of service, either party wish to terminate the Agreement, the
requested party will compensate to another party an amount equal to at least 1 month of
the Player last remuneration to another party. If the contract term remains less than (1) one
month, the compensation shall be in the amount only up to the expiry date of this
agreement.”
5.
In Clause 14 of the Employment Agreement, the parties stipulated the following:
“In the case that the Club loses its status in the Thai League 1. The Club has an option in its
sole and absolute discretion and without any necessity for any prior notice and shall not be
liable to pay any sum or compensation to terminate this Agreement and all other
agreements between the Club and the Player.”
6.
In November 2021, the Respondent sent a termination letter (i.e. draft to be signed) to
the Claimant, establishing to mutually terminate the Employment Agreement as per
30 November 2021 upon payment of compensation of USD 11,000.
7.
On 14 November 2021, a meeting was allegedly held between the parties. In accordance
with the Claimant’s submission, the latter decided to terminate the Employment
Agreement “under the allegation of “LACK OF GOALS”.
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8.
On 17 November 2021, the legal representative of the Claimant reached out to the
Respondent, requesting clarification regarding the employment situation.
9.
On the same day, the Respondent answered that the reasons were explained to the
Claimant in a meeting of 14 November 2021.
10. On 18 November 2021, the legal representative of the Claimant referred to the
justification based on the “lack of goals”, requesting an appointment to understand the
situation better.
11. On 19 November 2021, the Respondent replied to the Claimant that it “has exercised its
right under Clause 13.4 to terminate Eliandro’s Agreement”.
12. On the same day, the legal representative of the Claimant contested the termination of
the employment relationship as it was without just cause.
13. On 20 November 2022, the Respondent reiterated that the Employment Agreement is
terminated and requested the Claimant to sign a termination agreement.
14. On 30 November 2020, various correspondences have been exchanged between the
parties, the Claimant insisting on maintaining the employment relationship and the
Respondent reiterating that the Employment Agreement is terminated.
15. Allegedly on 1 December 2021, the Respondent requested the Claimant to deliver back
the car, work permit and to leave the WhatsApp Group.
16. On 2 December 2021, the Player received an offer from the Thai club, Lamphun Warriors
football Club.
17. In December 2021, the Claimant sent further default notices to the Respondent.
18. Between 23 to 24 December 2021, the Claimant returned to Brazil.
19. On 27 and 30 December 2021, an exchange between the parties took place, referring to
the ITC procedure, i.e. “return of the ITC through TMS to CBF”.
20. The Claimant did not find a new club since the termination of the contract.
II. Proceedings before FIFA
21. On 29 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
22. The requests for relief of the Claimant were the following:
“(i) To enforce FIFA’s jurisdiction as competent to rule on the matter;
(ii) To rule that Samut Prakan shall pay to the Player a compensation of (i) USD 66,000 as
the residual amount; (ii) USD 3,500 of unpaid housing allowance; (iii) USD 2,400 of the
penalty paid by the Player due to the Lease Agreement as a consequence of the breach
without just cause by Samut Prakan; (iv) USD 2.280,00 as reimbursement of two one-way
flight tickets incurred by the Player and his wife from Thailand to Brazil on December 23rd,
2021; (v) USD 2.280,00 as the remaining round-trip air ticket (economy class) unpaid by
Samut;
(iii) As an evidentiary request, to order Samut Prakan to provide evidence of all “match win
incentive” paid for others players during the 2021 season in order to allow the Player to
receive his amount due in this regard;
(iv) That the Player shall be entitled to receive Additional Compensation increased to a
maximum of six-monthly salary due to the egregious circumstances the Player faced due to
Samut Prakan’s conduct, as per article 17.1 (ii);
(v) To rule that all claimed amounts shall be accrued with 5% of applicable interest per
annum from the date of default pursuant to FIFA’s well-established jurisprudence and Swiss
Law;
(vi) To impose a sporting sanction on the Club pursuant to the fact that the termination of
the Employment Contract without just cause occurred during the protected period; and
(vii) In any event, to order the Club to cover all costs of the proceedings and to bear all the
legal fees and costs incurred by the Claimant in connection with present matter.”
23. The Claimant argued that the Respondent terminated the Employment Agreement
without just cause as the termination appeared without “prior notice and without any
reasonable explanation the Club presented a Termination Agreement.”
24. The Claimant further argued that the argumentation as to the “lack of goals” on his behalf
is not only untrue but also an invalid ground to terminate the Employment Agreement.
The Claimant further alleged that he was replaced by another striker.
25. In continuation, the Claimant alleged that various clauses in the Employment Agreement,
inter alia Clause 13.4, are “abusive, illegal or unilateral” and that they were contested by
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the Claimant prior to signing of the Employment Agreement and shall be declared “null
and void”.
26. What is more, the Claimant specified that “the Termination Agreement is dated on
November 14, 2021 and the Club was still playing the first division of Thai League with 4 more
games to play within the first part of the championship” and that “even after receiving such
Termination Agreement, the Player was fielded as starter by Samut Prakan and the Club was
not relegated nor loose its status in Thai League by that time, reason why the Club’s argument
based on clause 13.4 is absurd.”
27. In conclusion, the Claimant was of the opinion that the compensation shall be calculated
based on art. 17 of the Regulations.
28. As to the claimed amounts, the Claimant provided for the following calculation:
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THB 80,000.00 “which corresponds to USD 2,400” for penalty in accordance with
the lease agreement;
USD 2,280 as a reimbursement for flight tickets to Brazil for the Claimant and his
wife;
USD 3,500 for house allowance between December 2021 to May 2022;
USD 66,000 as the residual value of the contract amounting “to the period from
December 2021 to May 2022”.
29. As to any other requests, the Claimant was of the opinion that he should receive bonuses
as well as an additional compensation for egregious circumstances.
b. Position of the Respondent
30. The Respondent was of the opinion that the claim is unjust and shall be rejected.
31. The Respondent argued that the performance of the Claimant “was not quite impressive”
and that the Claimant “did not help to improve the overall team’s performance”, which
“matter concerned the Club about to relegation to secondary tier or Thai League 2”.
32. In its answer, the Respondent confirmed that since the risk to be relegated was quite high,
it needed “to make an urgent decision to solve the problem” due to the considerable financial
impacts the relegation would have on itself and that it decided to terminate the
Employment Agreement on 14 December 2021.
33. Due to the fact that the Employment Agreement was terminated by triggering its
Clause 13 to which the Claimant agreed to when signing the said agreement, the
Respondent was of the opinion that the Employment Agreement was terminated with just
cause.
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34. What is more, the Respondent argued that the Claimant gave consent to terminate under
the conditions established in the termination agreement which was sent to the Claimant.
35. As to the validity of such clause, the Respondent asserted that it was “beneficial to both
parties”.
36. Finally, as to the alleged failed transfer, the Respondent was of the opinion that the
Claimant had no intention to stay in Thailand and that there was no notification of a
transfer to Thai club, Lamphun Warriors football Club.
37. The Respondent concluded that since it duly exercised Clause 13.4 of the Employment
Agreement and duly paid the therein stipulated amount, it shall not be liable for any
further damages.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether he was competent to deal with the case at hand.
In this respect, it took note that the present matter was presented to FIFA on 29 June 2022
and submitted for decision on 11 January 2023. 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.
2.
Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 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 Thai club.
3.
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 (October 2022 edition) and
considering that the present claim was lodged on 29 June 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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b. Burden of proof
4.
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 he 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
5.
His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he 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 he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note that this is a claim of a player against a club concerning a
termination for alleged poor performance and based on Clause 13.4 of the Employment
Agreement per 14 November 2021.
7.
First of all, the Single Judge recalled the respective clause of the Employment Agreement:
“At any time during this term of service, either party wish to terminate the Agreement, the
requested party will compensate to another party an amount equal to at least 1 month of
the Player last remuneration to another party. If the contract term remains less than (1) one
month, the compensation shall be in the amount only up to the expiry date of this
agreement.”
8.
At this point and in order to establish if the Claimant had just cause to terminate the
contract, the Single Judge closely looked at the situation between the parties prior to the
termination of the employment relationship by the Claimant.
9.
The Single Judge recalled the argument of the Respondent that it correctly applied
Clause 13.4 of the Employment Agreement, which the Claimant deemed invalid.
10. After a due analysis of the Clause, the Single Judge concluded that the clause violates
contractual stability as well as does not comply with the criterion of proportionality. As a
consequence thereof, the Single Judge continued to assess the case in light of art. 14 of
the Regulation.
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11. In this context, the Single Judge recalled its long-standing jurisprudence, according to
which only a breach or misconduct which is of a certain severity justifies the termination
of a contract. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between
the parties, a contract may be terminated prematurely. A premature termination of an
employment contract can only be an ultima ratio.
12. Furthermore, the Single Judge recalled in line with his long-standing jurisprudence, that a
player’s unsatisfactory performance cannot be a valid reason for an employer to cease
paying due salaries or terminate an employment contract, as this is a purely unilateral
and subjective evaluation by the club.
13. On account of the aforementioned, the Single Judge decided that the club had unlawfully
terminated the employment contract with the player and should be held liable for such
breach.
14. The Single Judge then turned his attention to the claims of the Claimant regarding
(i) reimbursement of the penalty based on the lease agreement and (ii) bonuses.
15. In this respect, the Single Judge concluded that the above-mentioned claims lack
contractual basis and, consequently, rejected the request of the Claimant.
16. Nonetheless, the Single Judge was of the opinion that the flight tickets in the amount of
THB 59,310 shall be reimbursed to the Claimant in line with Clause 3 of the Employment
Agreement.
ii. Consequences
17. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
18. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to the flight
tickets, amounting to THB 59,310.
19. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the above-mentioned amount.
20. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
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interest at the rate of 5% p.a. on the outstanding amounts as from 17 December 2021
until the date of effective payment.
21. 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.
22. In application of the relevant provision, the Single Judge held that he 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.
23. 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.
24. 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.
25. 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 USD 69,500 (i.e. 7 times USD 500 plus
6 times USD 11,000) serves as the basis for the determination of the amount of
compensation for breach of contract.
26. 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
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
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27. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
28. The Single Judge 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.
29. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of USD 69,500, as the residual value of the contract.
30. Lastly, taking into consideration the player’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 29 June 2022 until the date of effective payment.
iii. Compliance with monetary decisions
31. 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.
32. In this regard, the Single Judge highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months.
33. Therefore, bearing in mind the above, the Single Judge decided that the player must pay
the full amount due (including all applicable interest) to the club within 45 days of
notification of the decision, failing which, at the request of the creditor, a restriction on
playing in official matches for the maximum duration of six months shall become
immediately effective on the player in accordance with art. 24 par. 2, 4, and 7 of the
Regulations.
34. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the
present decision.
35. 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.
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d. Costs
36. 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, he decided that no procedural costs were to be
imposed on the parties.
37. 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.
38. Lastly, the Single Judge concluded his 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, Eliandro dos Santos Gonzaga, is partially accepted.
2.
The Respondent, Samut Prakan City, has to pay to the Claimant, the following amount(s):
- THB 59,310 as outstanding amount plus 5% interest p.a. as from 17 December 2021
until the date of effective payment;
- USD 69,500 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 29 June 2022 until the date of effective 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:
6.
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.
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.
8.
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.
9.
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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