Labour Disputes
Texto da decisão
REF. FPSD-13141
Decision of the
Dispute Resolution Chamber
passed on 20 March 2024
regarding an employment-related dispute concerning
the player Matheus Dario Pinheiro Da Silva
BY:
Sihon Gauci (Malta), Single Judge
CLAIMANT:
Matheus Dario Pinheiro Da Silva, Brazil
Represented by Duarte Costa and Tiago Coelho
RESPONDENT:
Atletico Clube Vila Mea, Portugal
pg. 2
REF. FPSD-13141
I. Facts of the case
1.
On 10 August 2023, the Brazilian player Matheus Dario Pinheiro Da Silva (hereinafter: the
Player or the Claimant) and the Portuguese club Atletico Clube Vila Mea (hereinafter: the
Club or the Respondent) concluded an employment agreement (hereinafter: the Contract)
valid for the entire duration of the season 2023/2024.
2.
According to the data inserted in the FIFA Transfer Matching Systems (TMS) by the
Portuguese Football Federation (FPF), the dates of the relevant season were fixed to be
running as from 1 July 2023 to 30 June 2024.
3.
In continuation, it shall be noted that the Contract appears to be stipulated within a
standard document template drafted by the FPF and it is provided to its affiliated clubs for
the purpose of drafting the relevant employment agreements with their players.
4.
Nevertheless, under article 2, which in principle refers to the sum stipulated by the parties
as consideration for the Player’s sporting services, it appears that no specific amount has
been indicated by the Club.
5.
In this respect, it is therefore necessary to revert to art. 10 of the Contract, which reads as
follows:
“Cases and situations not provided for in this contract are governed by the CCT signed between
the Professional Football Players' Union and the Portuguese Professional Football League
6.
The contract therefore refers to the applicable national law on minimum wages (“DecretoLei n. º 85-A/2022 de 22 de dezembro”) as well as the relevant national collective agreement
between the Portuguese Professional Football League and the Portuguese Union of
Professional Football Players.
7.
In accordance with the above provisions, the relevant minimum monthly salary for a player
within the same category of the Claimant (i.e. fourth division in Portugal) can be determined
in the amount of EUR 760 net.
8.
Between 24 July 2023 and 7 September 2023, the Club posted on its official social media
several pictures which portrait, inter alia, the Player during the relevant matches and/or
training session of the Club’s first team.
9.
On 17 October 2023, the Claimant signed a new employment contract with the Portuguese
club FC Lixa, valid from 17 October 2023 until 30 June 2024.
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REF. FPSD-13141
II. Proceedings before FIFA
10. On 21 December 2023, the Player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
11. In his claim the Player affirmed that, in spite of having concluded the Contract on 10 August
2023, the Respondent has never paid any salary to the Player nor it registered the latter
with the FPF, thus preventing the Player from participating in any official match with the
Club.
12. Accordingly, the Player held that the Club failed to execute the Contract without any just
cause and shall pay the relevant compensation.
13. In this respect, the Claimant referred to the minimum wage established by the Portuguese
law due to the absence of any specific indication under the Contract and based on art. 10
of the latter.
14. The Player therefore submitted the following requests for relief:
-
“EUR 7,600 as regular compensation;
EUR 2,280 as additional compensation in case of mitigation;
5% interest per annum as from the due date of the obligation to pay each monthly salary
until it is actually paid in full”.
15. In spite of having been invited to do so, the Club did not provide its position to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on 21
December 2023 and submitted for decision on 20 March 2024. Taking into account the
wording of art. 34 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.
17. 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 (February 2024 edition), the Single Judge
of the Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
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REF. FPSD-13141
Brazilian player and a Portuguese club. The Single Judge furthermore underlined that the
competence of FIFA was not challenged by any of the parties.
18. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 21 December 2023, the May 2023
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
19. 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 she 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
20. The 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 she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that on 10 August 2023 the Player and the Club concluded
an employment contract valid until 30 June 2024.
22. In this respect, the Single Judge noted that according to the Player, the Club failed to
execute the Contract as from its very beginning, thus leading to an irreparable breach of
the Player’s trust in the prosecution of their employment relationship.
23. In this context, the Single Judge noted that the Club failed to present its response to the
claim of the Player, in spite of having been invited to do so. By not presenting its position
to the claim, the Single Judge was of the opinion that the Club renounced its right of defence
and, thus, accepted the allegations of the Player. Consequently, the Single Judge confirmed
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REF. FPSD-13141
she shall render her decision on the basis of the allegations and documentation put
forward by the Claimant alone in line with art. 14 par. 1 of the Procedural Rules.
24. Consequently, after having thoroughly analysed the submission of the Player as well as the
documentation at his disposal, the Single Judge deemed that the underlying question in
the present matter was whether the Club had indeed breached the Contract to the extent
of causing a premature termination of the employment relationship.
25. In this respect, the Single Judge wished to emphasize that the Club bore the burden of
proving that it indeed complied with the relevant obligations under the contract concluded
between the parties. Nonetheless, the Club failed to provide any evidence in this regard.
26. With the foregoing in mind, the Single Judge concluded that the Club has indeed failed to
comply with its contractual obligations and, in particular, it prevented the Contract from
being executed as from the very beginning.
ii. Consequences
27. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Club.
28. By doing so, the Single Judge proceeded with the calculation of the amount of
compensation payable to the player by the club in the case at stake. In this context, the
Single 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.
29. In application of the relevant provision, the Single Judge held that she first of all had to
clarify as to 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. 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.
30. 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.
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REF. FPSD-13141
31. 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 unilateral termination until its end date. However, having the Club failed
to execute the Contract as from the date in which this was supposed to entry into force,
the Single Judge decided to compute the entire contractual value as from its starting date,
hence she concluded that the amount of EUR 7,600 shall serve as the basis for the
determination of the amount of compensation for breach of contract.
32. In continuation, the Chamber 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
Single Judge 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.
33. Indeed, the player found employment with the Portuguese club FC Lixa. In accordance with
the pertinent employment contract, the player was entitled to a total remuneration of EUR
7,539.5 until 30 June 2024. Therefore, the Single Judge concluded that the player mitigated
his damages in the total amount of EUR 7,539.50.
34. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Single Judge however assessed that the
contract was never executed as the Club refused to register the Player and prevented the
latter from effectively render his services as from the beginning of the season.
35. Accordingly, the Single Judge concluded that art. 17 par. 1 lit. ii) was not applicable in the
case at stake.
36. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the amount
of EUR 60.50 to the player (i.e. EUR 7,600 minus EUR 7,539.50), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
37. 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 the date of the claim until the date of effective
payment.
iii. Compliance with monetary decisions
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REF. FPSD-13141
38. 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.
39. In this regard, the Single Judge 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.
40. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
41. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
42. 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
43. 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, the Single Judge decided that no procedural costs were to be
imposed on the parties.
44. Likewise, and 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.
45. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-13141
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Matheus Dario Pinheiro Da Silva, is partially accepted.
2.
The Respondent, Atletico Clube Vila Mea, must pay to the Claimant the following amount(s):
EUR 60,5 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 21 December 2023 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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REF. FPSD-13141
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 Governing the Football
Tribunal).
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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