Labour Disputes
Texto da decisão
REF FPSD-6264
Decision of the
Dispute Resolution Chamber
passed on 14 December 2022
regarding an employment-related dispute concerning the player Bruno Silva
BY:
Iñigo Riestra (Mexico)
CLAIMANT:
Bruno Silva, Brazil
Represented by 14 Sports Law
RESPONDENT:
PSIS Semarang, Indonesia
Represented by Susanah Ng
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I. Facts of the case
1.
On 2 June 2021, the Brazilian player Bruno Silva (hereinafter the Claimant or the player)
and the Indonesian club PSIS Semarang (hereinafter the Respondent or the club)
concluded employment agreement (hereinafter the Employment Agreement), initially valid
for one sporting season.
2.
In this respect, Clause 3.1 of the Employment Agreement stipulated the following:
“This agreement is valid from:
One season Competition Liga 1 in 2021 (10 month)
(The contract will be active when/if the League 1 2021 kick off begins)
And or (1 season competition Liga I Indonesia 2021)”
3.
In Clause 3.2 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed to potentially extend the validity of the said Employment
Agreement:
“1 (one) month before this Agreement end, the Parties have been obliged to agree in regards
to the status of the Agreement related with the extension or termination and its status
reported to the league.”
4.
5.
In accordance with the Transfer Matching System (TMS), the respective seasons ran as
follows:
−
2021/2022: 27 August 2021 until 19 March 2022;
−
2022: 23 July 2022 until 11 November 2022.
In Clause 4 of the Employment Agreement, the parties agreed upon, inter alia, the
following financial terms:
Season 2021/2022
− A total remuneration of Indonesian Rupiah (IDR) 1.000.000.000,00, divided in 10
(ten) equal and subsequent instalments of IDR 100.000.000,00 to be paid until
the 10th day of the following month;
− A bonus of IDR 10.000.000,00 per match won;
− A bonus of IDR 5.000.000,00 per goal scored; and
− A monthly rent allowance of IDR 2.500.000,00.
Season 2022/2023
− A total remuneration of IDR 1.884.026.329,00 divided in 1 (one) down payment of
IDR 376.823.264,00 and 12 (twelve) equal and subsequent instalments of
IDR 125.607.754,00 to be paid until the 10th day of the following month; and
− A monthly rent allowance of RP 2.500.000,00.
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6.
In Clause 13 of the Employment Agreement, the parties stipulated the following
jurisdiction clause:
“The Parties agree to settle all disputes arisen from or in its relation with this Agreement or
its application will be brought to NDRC, DRC FIFA and or shall be submitted to a sole
Arbitrator, RSTP FIFA and in English before the court of CAS in Lausanne, Switzerland relating
with regulations made by PSSI and FIFA.”
7.
Between 11 August and 14 September 2021, the Respondent sent the Claimant three
warning letters due to the Claimant’s alleged misbehaviour during training sessions.
8.
On 13 December 2021, the Claimant requested to depart for Christmas to his home
country for the period between 18 December 2021 and 4 January 2022.
9.
On 14 December 2021, the Respondent issued a travel permit to the Claimant allowing
for his departure from Semarang on the condition that he departs Brazil latest 3 January
2022.
10. On 5 January 2022, after the Claimant’s return to Indonesia after vacations, “the Club’s
representatives verbally informed the Player that the Club did not intend to count with his
services for the second half of the 2021/22 season, i.e., until April 2022.”
11. Allegedly “on the last day of the 2021/22 Summer Registration Period (i.e. on 12 January 2022)
the Respondent, without any reasonable justification and without any previous notice,
cancelled Mr. Silva’s registration, in a blatant breach of the Player’s fundamental rights.”
12. In this respect, the Claimant was informed that the Respondent “had cancelled his
registration for the second half of the season.”
13. On 12 January 2022, the Claimant sent a letter to the Respondent, requesting “to proceed
with his reregistration until the end of the day, which would allow him to take part in official
matches until the end of the 2021/2022 season.”
14. On 13 January 2022, the following article has been published on the official website of the
club:
“Semarang• PSIS Semarang management explained the composition of foreign players in
the SRI Liga 1 2021/2022.
As is known to the public since Wednesday (12/1) yesterday, PSIS registered four foreign
players according to the SRI Liga 1 regulations with the names Wallace Costa, Flavio Beck,
and Chevaugn Walsh who are non-Asian foreign players.
While foreign players from Asia, PSIS Management registered Jonathan Cantillana with a
Palestinian passport.
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This then raises the question of the status of 8runo Silva. Yoyok Sukawi as the Chief Executlve
Officer(CEO) of PSIS explained that the four registered players had gone through several
technical considerations and several other considerations.
“We registered four foreign players who we registered for technical considerations and this
is a decision with the coaching team. In football it's normal. In our opinion, this is the best
team composition; said Yoyok Sukawi on Thursday (13/1) afternoon in Semarang.”
“Then about attitude, Bruno has taken several disciplinary actions so that it can be taken
into consideration because it has disrupted the team's conduciveness,” he continued.
Yoyok Sukawi also explained why the decision regarding foreign players was taken in the
final seconds of the SRI Liga 1 2021/2022 half-season transfer window.
The decision was taken at the last second due to many considerations and considering the
latest conditions and the needs of the team, so we were quite careful in making decisions,"
said Yoyok Sukawi.
Finally, Yoyok Sukawi also revealed that Bruno Silva is still a PSIS player because he is under
contract.
“Bruno is still a PSIS player. In the future, we will try to offer it to overseas clubs who are
interested in borrowing or buying Bruno on a transfer status. We will be open regarding
this," concluded Yoyok Sukawi.” (emphasis added)
15. The Respondent asserted that between 14 January to 22 January 2022, the Claimant
agreed to continue to remain at the Club and to train with his teammates, while the
Respondent shall honour the terms of the Employment Agreement and to pay Claimant’s
salaries.
16. On 26 January 2022, the Claimant terminated the Employment Agreement.
17. On 2 February 2022, the Respondent sent a letter to the Claimant, informing him that he
failed to attend training sessions between 27 to 31 January. In this respect, the
Respondent added that “It has come to our knowledge that you have departed from
Semarang, Indonesia without our permission. Kindly report for training on February 3 and 4,
2022, failing which the Club shall deem that you are no longer interested in employment at the
Club despite your earlier request to remain at the club pending a loan offer.”
18. The Claimant did not find a new club since the termination of the contract.
II. Proceedings before FIFA
19. On 6 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
20. The requests for relief of the Claimant, were the following:
“(i) Determine that the Claimant terminated the Employment Agreement with just
cause;
(ii) Order the Respondent to the payment of the total sum RP 2.244.026.329,00 (Two
Billion Two Hundred and Forty-Four Million Twenty Six Thousand and Three
Hundred and Twenty Nine Indonesian Rupiahs), which corresponds to the
compensation under Article 17 of the FIFA RSTP corresponding to the residual value of
the Employment Agreement, considering the renewal of such agreement for the 2022/23
season; or, in the alternative;
(iii) Order the Respondent to the payment of the total sum of RP 400.000.000,00 (Four
Hundred Million Indonesian Rupiahs), which corresponds to the compensation under
Article 17 of the FIFA RSTP corresponding to the residual value of the Employment
Agreement, in the unlikely event FIFA determines that the Employment Agreement was
not renewed for the 2022/23 season;
(iv) Order the Respondent to pay 5% interest p.a. calculated over each outstanding
amount, as of the day after each amount became due until the date of effective payment;
(vi) Impose the appropriate sporting sanctions to the Respondent.”
21. The Claimant argued that “the Parties explicitly agreed that the Employment Agreement
would last until the end of the 2022 season if the league was not cancelled/postponed due to
the Covid-19 pandemic.”
22. The Claimant further asserted that the Respondent blatantly violated his rights by the deregistration on the last day of 2021/2022 Summer Registration Period. In this respect, the
Claimant referred to CAS jurisprudence, establishing that “a club de-registering a player
bars the latter’s access to any official match with its team and it is, therefore violating the
player’s fundamental right as its employed football player to compete at the highest level
possible. The deregistering of the player is therefore a breach of contract.” (CAS 2015/A/4122).
23. In view of the above, the Claimant was of the opinion that he terminated the Employment
Agreement with just cause and shall be entitled to compensation in accordance with
art. 17 of the Regulations.
b. Position of the Respondent
24. The Respondent submitted the following request for relief:
−
−
“Find that it has no jurisdiction to decide on this case;
In the alternative if FIFA DRC assumes jurisdiction:
o Find that the Contract is for one (1) term of ten (10) months;
o Find that the Claimant accepted the de-registration by his conduct of remaining
at the Club and training with his teammates;
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Find that the Claimant is estopped from alleging a fundamental breach of his
rights to occupation and accordingly, no just cause to terminate; and
In the alternative if FIFA DRC finds that the termination is with just cause, that the
compensation payable shall be the remaining value of the Contract, i.e. Rp 300,000,000
and no sporting sanction be imposed.”
o
−
25. First and foremost, the Respondent rejected the competence of FIFA in favour of the
Indonesian NDRC. In this respect, the Respondent argued that the local NDRC “guarantees
fairs proceedings and respects the principle of equal representation of players and clubs” and
provided for a copy of the NDRC Regulations.
26. Thereafter, the Respondent argues that the Employment Agreement was merely valid
until the end of season 2022, i.e. “the extension is not automatic and required the Parties to
agree”. In this regard, the Respondent pointed to the wording of the Employment
Agreement.
27. As to the de-registration, the Respondent was of the opinion that “the Claimant had
accepted the de-registration for that season as he was assured that the financial terms of the
Contract will be respected. He also agreed to remain at the club and to train there.”
28. In view of the above, the Respondent argued that there is “no basis to terminate the
Contract with just cause due to the Claimant’s express acceptance by conduct of the alleged
breach.”
29. “In the alternative if FIFA DRC finds that the Contract has been terminated with just cause, then
the compensation under Article 17 of the RSTP shall be the remaining sum of the ten (10)
months Contract, ie, the sum of Rp Three Million (Rp 300,000,000) being the remaining salaries
of January, February and March (as the last day of the Liga 1 was 31 March 2021).”
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 6 June 2022
and submitted for decision on 14 December 2022. Taking into account the wording of
art. 34 of the November 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.
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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 (November 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 an Indonesian
club.
3.
At this point, the Single Judge noted that the Respondent contested the competence of
FIFA’s deciding bodies in favour of the National Dispute Resolution Chamber of Indonesia
(hereinafter the NDRC), alleging that the latter is competent to deal with any dispute
deriving from the relevant employment contract in accordance with Clause 13 of the
Employment Agreement, arguing that within the framework of the PSSI, the NDRC
“guarantees fairs proceedings and respects the principle of equal representation of players
and clubs”.
4.
First of all, the Single Judge recalled the jurisdiction clause stipulated between the parties
and analysed if such clause provides for a clear and exclusive competence of the NDRC:
“The Parties agree to settle all disputes arisen from or in its relation with this Agreement or
its application will be brought to NDRC, DRC FIFA and or shall be submitted to a sole
Arbitrator, RSTP FIFA and in English before the court of CAS in Lausanne, Switzerland relating
with regulations made by PSSI and FIFA.” (emphasis added)
5.
Taking into account the above, the Single Judge was of the opinion that Clause 13 of the
Employment Agreement is not exclusive as it equally foresees the competence of FIFA.
Consequently, the Single Judge concluded that he is competent to deal with this matter.
6.
Subsequently, 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 Players (November 2022
edition) and considering that the present claim was lodged on 6 June 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
7.
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).
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c. Merits of the dispute
8.
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
9.
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 club against a player concerning a
termination of the contract due to deregistration of the player.
10. 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.
11. Turning into the events of the present dispute, the Single Judge pointed out that it
remained undisputed between the parties that the Claimant was deregistered on
12 January 2022, without any interest of the Respondent to allow the player to compete
in official matches.
12. In this respect, the Single Judge noted that the Claimant requested to be re-registered by
the letter of 12 January 2022, nonetheless, the situation remained unchanged. In this
respect, the Single Judge highlighted that the Respondent merely sent WhatsApp
messages, proposing various solutions, none of them being the registration of the
Claimant, but rather a termination of the contract.
13. The Single Judge then recalled that the DRC has already confirmed on multiple occasions
that “among a player’s fundamental rights under an employment contract, is not only his right
to a timely payment of his remuneration, but also his right to access training and to be given
the possibility to compete with his fellow teammates in the team’s official matches”.
14. Considering the foregoing, the Single Judge concluded that the Claimant had just cause
to terminate the contract in accordance with art. 14 of the Regulations, highlighting the
severity of the breach committed by the Respondent.
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ii. Consequences
15. 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.
16. First of all, the Single Judge noted that there was no outstanding remuneration at the time
of the said breach.
17. 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.
18. 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.
19. 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.
20. 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.
21. Before entering to the calculation of the residual value of the contract, the Single Judge
noted that the parties dispute the duration of the Employment Agreement and that,
consequently, it first needs to be analysed when the Employment Agreement was due to
expire.
22. In this regard, the Single Judge was of the opinion that the contractual provisions
(Clause 3.1 of the Employment Agreement) are clearly stipulating that the Employment
Agreement is for one season until the completion Liga 1 in 2021 (10 months). In this
regard, based on the evidence in TMS, the season ended in March 2022. Also, the Single
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Judge noted that the Respondent equally acknowledged the remaining salaries were of
“January, February and March (as the last day of the Liga 1 was 31 March 2022).”
23. Finally, the Single Judge confirmed that the Employment Agreement ended in March 2022
and that no automatic extension took place. In this regard, the Single Judge, by
interpreting Clause 3.2 of the Employment Agreement, agreed with argumentation of the
Respondent that “the extension is not automatic and required the Parties to agree”.
24. 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 IRD 307,500,000.00 (i.e. the 3 times
IDR 100,000,000.00 plus 3 times IDR 2.500.000.00) serves as the basis for the
determination of the amount of compensation for breach of contract.
25. 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.
26. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
27. 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.
28. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of IRD 307,500,000.00, as the residual value of the contract.
29. 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 6 June 2022 until the date of effective payment.
iii. Compliance with monetary decisions
30. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
31. 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.
32. 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.
33. 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.
34. 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.
d. Costs
35. 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.
36. 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.
37. 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, Bruno Silva, is partially accepted.
2.
The Respondent, PSIS Semarang, has to pay to the Claimant, the following amount(s):
- IDR 307,500,000 as compensation for breach of contract without just cause plus
5% interest p.a. as from 3 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:
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).
CONTACT INFORMATION
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