Labour Disputes
Texto da decisão
REF. FPSD-15844
Decision of the
Dispute Resolution Chamber
passed on 18 October 2024
regarding an employment-related dispute concerning the Player
Tharcysio Henrique Silva
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Alejandro ATILIO TARABORELLI (Argentina & Italy), Member
Stefano SARTORI (Italy), Member
CLAIMANT:
Tharcysio Henrique Silva, Brazil
Represented by Vilaça Advogados
RESPONDENT:
A.P.O. Panargeiakos, Greece
pg. 2
REF. FPSD-15844
I. Facts of the case
1.
On 24 June 2024, the Brazilian player Tharysio Henrique Silva (hereinafter: Claimant or
player) received a “cooperation proposal” from the Greek club APO Panargeiakos
(hereinafter: club or Respondent) envisaging the conclusion of an employment contract valid
for the 2024-2025 season (hereinafter: the Offer).
2.
The proposal, contained on letterheaded paper by the Respondent, stated the following
conditions:
-
Net monthly salary of USD 1,200
Flight ticket from Brazil to Athens and from Athens to Brazil
Bonus per each goal EUR 100 net
Bonus if club stay in Super League 2 EUR 1,000 net
Bonus if club promote to Super League 1 EUR 5,000 net
Housing and food
3.
The Offer contained the stamp of the Respondent and signature of its president, as well as
what appeared to be the Claimant’s digital signature.
4.
On 24 June 2024, the Respondent sent the Claimant the Offer.
5.
On 25 June 2024, the Respondent allegedly sent the Claimant’s agent a commission
agreement concerning his services in facilitating the player’s recruitment.
6.
At an unspecified date, the Claimant allegedly signed and returned the Offer to the
Respondent.
7.
On 19 July 2024, the Claimant sent an email to the Respondent requesting integration into
the squad within 15 days, stating that the Offer contained all essentialia negotii, and that,
notwithstanding this, the Respondent is refusing to abide by its terms and is “acting as if
the player never signed”.
8.
On 26 August 2024, the Claimant sent a further email requesting integration and an
explanation for the lack of communication regarding the alleged contract that was formed
upon signature of the Offer within two days, failing which he would consider the Contract
unilaterally terminated by the Respondent without just cause and whereafter he would
lodge a claim at FIFA.
pg. 3
REF. FPSD-15844
II. Proceedings before FIFA
9.
On 30 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
10. In his claim, the player argued that the Respondent failed to give effect to the contract that
had arisen as a result of the mutually signed Offer.
11. The Claimant emphasised that the Offer satisfied the requirements of essentialia negotii,
thus giving rise to a valid and binding employment contract.
12. The Claimant equally emphasised that the Respondent abusively broke off contact and
failed to take any administrative action following the alleged mutual signature of the Offer,
such as registering the player before the Hellenic Football Federation and issuing flight
tickets as stipulated in the latter document.
13. Consequently, the Claimant asserted that the Respondent terminated the employment
contract without just cause following the expiration of the two-day deadline issued in the
second warning letter.
14. Thus, the Claimant formulated the following request for relief:
-
EUR 14,400 compensation (corresponding to twelve monthly salaries between July 2024
and June 2025 – the duration of the season in Greece per TMS);
5% interest p.a..
b. Position of the Respondent
15. Despite having been invited to do so, the Respondent failed to provide a reply to the claim.
pg. 4
REF. FPSD-15844
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or DRC) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 30 August 2024 and submitted for decision
on 18 October 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. Furthermore, the Chamber 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), 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 Brazilian player
and a Greek club.
18. 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 (June 2024 edition), and
considering that the present claim was lodged on 30 August 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
19. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
pg. 5
REF. FPSD-15844
i. Main legal discussion and considerations
21. The Chamber then moved to the substance of the matter and took note of the fact that the
basis of the present dispute was the conclusion of a valid and binding employment
agreement and subsequent alleged breach of contract by the Respondent.
22. In this context, the Chamber acknowledged that its task was to determine whether the
parties signed a valid and binding employment agreement, and subsequently whether the
Respondent, as alleged, neglected its contractual obligations, thereby enabling the
Claimant to unilaterally and prematurely terminate such supposed contract.
23. The Chamber briefly recalled the parties’ positions, starting with the Claimant, according to
whom the Respondent failed to give effect to the alleged contract by issuing an Offer that
satisfied the requirements of essentialia negotii, and then subsequently and without a valid
reason failed to give effect thereto, thus constituting a breach of contract.
24. On the other hand, the Chamber noted that the Respondent failed to respond to the claim
altogether.
25. Notwithstanding, the Chamber wished to emphasise that the lack of a response by the
Respondent did not detract from the fact that the Claimant equally bore the burden of
proving the veracity of his submissions, in accordance with art. 13 par. 5 of the Procedural
Rules.
26. In the case at hand, the Chamber deemed the following questions relevant:
-
Did the Offer constitute a valid and binding employment contract?
If so, what were the circumstances of the alleged contract’s termination?
What are the consequences of a potentially unlawful termination?
27. The Chamber firstly turned to the question of the purported contract’s validity. In this
respect, the Chamber started by recalling its well-established jurisprudence which dictates
that, in order for an employment contract to be considered valid and binding, apart from
the signature of both the employer and the employee, it should contain the essentialia
negotii of an employment contract, such as the parties to the contract and their role, the
duration of the employment relationship and the remuneration payable by the employer
to the employee.
28. The Chamber also recalled the content of 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. With this in mind, the Chamber deemed that it was up to the player to
prove that the employment relationship, on the basis of which he claimed compensation
for breach of contract from the club, indeed existed.
pg. 6
REF. FPSD-15844
29. In this context, the Chamber turned its attention to the documentation provided by the
Claimant, and was able to establish that three of the four requisite elements were clearly
present – namely the duration of the Contract, the financial terms thereof, and the
Claimant’s role as a professional football player employed by the Respondent.
30. Having established this, the Chamber turned to the fourth requisite element – namely the
parties’ intention to be legally bound, usually constituted by the mutual signature of the
document in question.
31. In the case at hand, the signature of the Offer gave rise to some doubts as to whether any
contract was effectively concluded. Though this is not challenged by the Respondent, a
closer analysis of the signatures revealed to the Chamber that the signature of the Claimant
(contrary to the Respondent’s president and club stamp) appeared to be a digital signature.
32. Particularly in the context that the Claimant was not present / at the club premises to sign
the Offer and thus place the veracity of the signature beyond any doubt, evidence
corroborating the return of the reciprocally Offer to the Respondent, thus communicating
the Claimant’s agreement to the terms, was, in the Chamber’s opinion, crucial.
33. The lack of evidence submitted by the Claimant in this respect was, in the Chamber’s view,
detrimental, considering the complex legal situation with which it was presented – namely
establishing whether the parties concluded a valid and binding employment contract.
34. The Chamber took note of the documentation provided by the Claimant in this respect,
namely:
-
An alleged email to the Claimant’s agent concerning a commission for facilitating the
player’s recruitment
-
A default notice / warning letter dated 19 July 2024 – i.e., almost one month after the
Offer’s alleged signature, requesting integration and referring to the Offer previously
remitted by the club;
-
A second warning letter dated 26 August 2024 – more than one month after the first
warning letter, granting a short deadline of two days to integrate the Claimant.
35. From the above, the Chamber deemed several aspects notable. Firstly, the Claimant failed
to provide any evidence demonstrating that he had actually sent the signed Offer back to
the Respondent.
36. What is more, the first instance following the remittance of the Offer in which the alleged
conclusion of a contract (through the purported signature of the Claimant) is acknowledged
or raised was 19 July 2024.
pg. 7
REF. FPSD-15844
37. The Chamber observed that there was no evidence of any communication between the
parties between those points in time. Significantly, pursuant to the information on TMS,
the season in Greece began on 1 July 2024 – thus meaning that nearly three weeks had
passed until the Claimant expressed any concerns concerning the validity, ratification or
respect of any contract.
38. Having set out the above, the Chamber once again referred to its jurisprudence, pursuant
to which a player’s failure to demonstrate having reached out to the club in a more timely
manner was detrimental to the line of argument that an employment contract had been
given rise to. In such cases, the timeline between the first alleged possible execution of the
contract and the first warning letter to the Respondent was similar to the present case –
around one month.
39. Thus, the Chamber considered that, in light of the tight timeline following the Offer and the
beginning of the season, the time elapsed until the first warning letter was detrimental to
the Claimant’s argument that he considered the Offer having been ratified and given rise
to an employment contract. Failing to request flight tickets, visa support and further steps
laying within the obligations of the Respondent as a purported employer in a more timely
manner exhibited a lack of urgency which suggested – in the absence of evidence to the
contrary – that the Offer was not effectively accepted following its remittance.
40. In light of the above and taking into consideration the inconsistencies of the alleged
employment contract, the Chamber understood that the player did not meet his burden of
proof in order to demonstrate that the document was indeed concluded with the club (nor
at least with its consent).
41. In particular, the Chamber deemed that the player could not establish based on substantial
evidence that he adopted the reasonable precautions that could be expected from him
when entering a labour relationship such as the one supposedly entailed by the
employment contract, thus falling short of the standard set by the doctrine of essentialia
negotii.
42. Therefore, the Chamber decided that no valid and biding employment contract had been
concluded between the club and the player and the latter’s claim had no legal basis.
43. In conclusion, the Chamber decided to reject the player’s claim in full.
d. Costs
44. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
pg. 8
REF. FPSD-15844
45. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-15844
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Tharcysio Henrique Silva, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-15844
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 11