Labour Disputes
Texto da decisão
REF FPSD-5464
Decision of the
Dispute Resolution Chamber
passed on 18 May 2022
regarding an employment-related dispute concerning the player Suellen Serra Rocha
BY:
Johan van Gaalen (South Africa)
CLAIMANT:
Suellen Serra Rocha, Brazil
Represented by Rafaela Camargo
RESPONDENT:
FC Lokomotiv Moscow, Russia
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REF FPSD-5464
I.
Facts of the case
1.
On 20 February 2021, the Brazilian player Suellen Serra Rocha (hereinafter the Claimant or the
player) and the Russian club FC Lokomotiv Moscow (hereinafter the Respondent or the Club)
concluded an employment agreement (hereinafter the Employment Agreement), valid as from 20
February 2021 until 30 November 2021.
2.
On 29 June 2021, the Claimant and the Respondent (jointly referred to as the Parties) decided to
unilaterally terminate the Employment Agreement. At this occasion, the Parties signed a
termination agreement (hereinafter the Termination Agreement).
3.
In Clause 3 of the Termination Agreement, the Parties stipulated the following: “The labour
contract dated "20" February 2021 and the additional agreements to it are considered expired as
of "30" June 2021.”
4.
Furthermore, Clause 3 of the Termination Agreement:
“The Club realizes the final settlement of accounts with the Player under the labor contract
dated "20" February 2021 and the additional agreements to it in accordance with the current
legislation of the Russian Federation as of "30" June 2021 that is, pays all amounts due to the
Player upon dismissal, and performs a one-time lump sum payment for the benefit of the Player
in the amount of 175 000 (one hundred seventy five thousand) rubles (after deduction of
personal income tax, Net).
The Club must provide the Player with one Moscow - Brazil economy-class flight ticket by
acquiring the tickets for the Player. The Club designates the flight company at its own
discretions.”
5.
Furthermore, Clause 4 of the Termination Agreement:
“After the present Agreement enters into force the Player is not entitled to claim from the Club
to perform financial or any other obligations under the labor contract dated "20" February 2021
and the additional agreements to it, as well as he is not entitled to claim any compensation,
including the one related with the preterm labor relations termination.”
6.
Furthermore, Clause 4 of the Termination Agreement:
“By signing the present Agreement the Parties confirm that they do not have any financial or
other claims to each other following from or related with their relations upon the labor contract
dated "20" February 2021 and the additional agreements to it.”
7.
In early May 2021, the Claimant faced medical problems.
8.
On 30 June 2021, the Claimant received the following document from the Respondent:
“Due to the granted license for the licensable 2022-2023 season, JSC "FC "LOKOMOTIV" kindly
asks you to confirm to the Russian Football Union (herein, the "Licensor") that by the time this
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letter was written, JSC " FC "LOKOMOTIV" as your employer had fulfilled all its financial
obligations accumulated before "30" June 2021 before you under the signed labour contract,
local statutory acts of JSC "FC "LOKOMOTIV", existing legislation of the Russian Federation, as
well as the FIFA and UEF A regulative documents.
Please fill in the form bellow in order to confirm the presence or absence of unfulfilled financial
obligations before you. If any financial liabilities (current or overdue) hadn't been discharged as
of the date you have signed this letter, please inform Licensor on the amount of such liabilities
under the signed labour contract, local statutory acts of JSC "FC "LOKOMOTIV", existing
legislation of the Russian Federation, as well as the FIFA and UEFA regulative documents.”
9.
On the same date, the Claimant filled in the form as follows: On the same date, the Claimant filled
in the form as follows:
10. Upon returning to Brazil, the Claimant underwent a medical evaluation, which concluded that the
latter needed a surgery, which should approximately amount to BRL 29.738,40 (Brazilian Real).
11. On 4 July 2022, the Claimant sent a written notification to the Respondent, requesting “to cover
the expenses of the surgery and also provide a financial compensation during the period the
Players is away from her professional activities, due to the injury caused as a result of her activity
at FC Lokomotiv.”
12. On 21 January 2022, the Respondent replied that based on the Termination Agreement signed by
the Parties, the Claimant’s “request has no legal grounds.”
II. Proceedings before FIFA
13. On 15 March 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
14. The requests for relief of the Claimant, was the following:
a) “An order requiring the Respondent to pay to the Claimant the Hospital and Surgery
expenses, which totalize the amount of R$ 29.738,40, which corresponds EUR 6,000.00
(six thousand euros)
b) An order requiring the Respondent to pay to the Claimant a compensation in the amount
of EUR 22,500.00 (twenty-two thousand and five hundred euros), regarding to nine
monthly salaries (July/2021; August/2021; September/2021; October/2021;
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November/2021; December/2021; January/2022; February/2022 and March/2022),
regarding the period the Claimant stayed out of her activities.”
15. In her claim, the Claimant argued that such compensation shall be paid “considering that since the
player returned to Brazil she is out of activities, in view of the fact that she needs the surgery to
return to her professional activities”.
b. Position of the Respondent
16. The Respondent rejected the claim of the Claimant as it argued that it “properly performed its
duties to hold recovery activities for the player during the entire term of the employment contract”
and, furthermore, “by signing the [Termination Agreement] the player legally accepted the
termination of the contract by mutual consent”, confirming that the Respondent fulfilled all its
obligation towards her.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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,
he took note that the present matter was presented to FIFA on 15 March 2022 and submitted for
decision on 18 May 2022. Taking into account the wording of art. 34 of the October 2021 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.
18. 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 (March 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 Russian club.
19. Finally, 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 Player (March 2022 edition) and considering that the
present claim was lodged on 15 March 2022, the March 2022 edition of said regulations
(hereinafter the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
20. 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
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the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
21. 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 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
22. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the Parties contest the due performance of financial obligations of
the Respondent towards the Claimant.
23. In this respect, the Single Judge drew its attention to the document mentioned in par. I./9. and to
the fact that the Claimant did not contest its validity, what is more, that she explicitly recognized
to have executed the said document.
24. Recalling its contents, the Single Judge was of the opinion that the Claimant has no legal basis to
claim the “Hospital and Surgery expenses” nor any compensation, as she confirmed that the
Respondent “fulfilled in full all its financial obligations” and “doesn’t have any liabilities” towards
her.
ii. Consequences
25. Having stated the above, the Single Judge decided that in view of the contents of the document
signed by the Claimant, the claim of the Claimant against the Respondent had to be rejected.
d. Costs
26. 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.
27. 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.
28. 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, Suellen Serra Rocha, is rejected.
2.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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