Labour Disputes
Texto da decisão
REF. FPSD-12849
Decision of the
Dispute Resolution Chamber
passed on 23 January 2024
regarding an employment-related dispute concerning
the player Joao Paulo Ambrosio Simoes
BY:
Jon Newman (USA)
CLAIMANT:
Joao Paulo Ambrosio Simoes, Portugal
Represented by Mr Maciej Bałaziński
RESPONDENT:
Differdange FC 03, Luxembourg
pg. 2
REF. FPSD-12849
I. Facts of the case
1.
On 11 August 2022, the Portuguese player Joao Paulo Ambrosio Simoes (hereinafter:
Claimant or player) and the Luxembourgish club Differdange FC 03 (hereinafter: club or
Respondent) concluded an employment contract (hereinafter: contract) valid as from the
date of signature until the end of the season 2023/2024 (cf. TMS: 30 June 2024).
2.
According to the Contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 1,500, as well as a victory bonus of EUR 150 for official matches in the league.
3.
Furthermore, pursuant to art. 9.2 of the Contract, the following terms were established in
terms of payment during the period of a potential injury:
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“in the first month following the injury, the player shall be entitled to 100% of his remuneration;
In the second month following the injury, the player shall be entitled to 50% of his remuneration;
Starting from the third month following the injury, the player shall be entitled to 0% of his
remuneration.”
4.
Furthermore, in accordance with art. 11 of the Contract, the parties agreed that, unless the
Respondent renounces in writing by no later than 15 March 2024, the term of the Contract
is automatically extended for one additional season.
5.
Equally, the same provision outlined that, should the club terminate the Contract without
just cause, it would only be obligated to pay the Claimant a compensatory amount of one
monthly salary.
6.
Moreover, pursuant to art. 13, the parties agreed as follows:
“The present contract is subject to the law of Luxembourg and any dispute arising from the terms
of the present contract is submitted to the exclusive competence of the tribunals of
Luxembourg.”
7.
On 30 April 2023, the Claimant suffered an injury during an official match playing for the
Respondent.
8.
On 15 May 2023, the Claimant obtained a medical report which certified that he had
suffered a rupture of his ACL, lateral ligament and meniscus.
9.
At an unspecified date, a meeting took place between the Player and the representatives
of the Club, in which the former obtained authorization to undertake a second examination
by a Portuguese doctor, as well as to travel to Portugal to undertake such examination.
pg. 3
REF. FPSD-12849
10. At a further unspecified date, the Claimant communicated that he would perform surgery
in Portugal on the basis of the assessment of the Portuguese doctor which had examined
the injury.
11. At an unclear point in time, the Respondent allegedly requested the Claimant to make his
room available due to his prolonged absence, so that another player could be
accommodated there. The Claimant supposedly sent a member of his family to collect his
personal belongings from the apartment, whereupon said family member found the
apartment of the player broken into. When the Claimant confronted the Respondent about
the door being forced open, the latter purportedly stated that the damage and intrusion
into the apartment was “not on purpose”.
12. On 12 July 2023, the Claimant asked a representative of the Respondent “to pay him this
week”, as the “money would come in handy”.
13. On 19 July 2023, the Claimant sent a further text message to the Respondent, stating that
he must visit the clinic in Porto and that described “I really don’t have any money, I really
need it”.
14. On 24 July 2023, the Claimant reiterated his request for payment via text message, without
specifying an amount or a deadline.
15. On 25 July 2023, the Claimant sent the following text message to the Respondent: “Good
morning Remy, any news?”
16. On 27 July 2023, the Respondent made a payment of EUR 225 in the concept of a
qualification bonus to the final of the Luxembourgish Cup – an amount which was originally
EUR 725, but with a deduction of EUR 500 applied.
17. On 27 September 2023, the Claimant unilaterally terminated the Contract, indicating that
he had unfairly been paid only 50% of his salary since May 2023, as well as not being
provided with any financial assistance for his surgery and recovery in Portugal.
18. On 4 October 2023, the Respondent replied to the Claimant, outlining that it had firstly paid
an advance salary at the beginning of the Contract in order to assist the Claimant with his
move to Luxembourg, as well as being entitled to withhold certain payments due to his
injury, per the Contract. As to the financial assistance for the surgery and recovery, the
Respondent emphasized that it consented to the surgery and recovery taking place in
Portugal, as the Claimant undertook such course of action on his own initiative, the
Respondent was not required to provide any assistance. Consequently, the Respondent
believed that it complied with its obligations, and asked the Claimant to withdraw his
contractual termination within 10 days.
pg. 4
REF. FPSD-12849
II. Proceedings before FIFA
19. On 27 November 2023, 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
20. In his claim, the player argued that the Respondent had been in breach of its contractual
obligations, which entitled the former to terminate the Contract prematurely.
21. The Claimant outlined that the Respondent unlawfully withheld his salary since May 2023,
particularly stating that the provision under art. 9.2 of the Contract was disproportionate
and contrary to the jurisprudence of the Football Tribunal.
22. Furthermore, the Claimant outlined that the Respondent failed to support him financially
with his recovery from injury, and for the surgery that he underwent due to an incident
taking place in the course of his employment – i.e. during an official match.
23. The Claimant also described that he was driven out of the club due to his injury, which was
evidenced by the fact that the Respondent had broken into his apartment in order to assign
it to another player, despite the Claimant’s personal belongings still being there.
24. Therefore, the Claimant outlined that he had a just cause to terminate the Contract.
25. The Claimant requested, consequently, as follows:
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EUR 7,350 for outstanding remuneration between May 2023 and (pro-rata)
September 2023;
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EUR 31,650 for compensation, corresponding to the residual value of the Contract
until June 2025 (cf. art. 11 of the Contract);
-
Interest as from respective due dates.
b. Position of the Respondent
26. Despite having been invited to do so, the Respondent failed to provide a position to the
claim.
pg. 5
REF. FPSD-12849
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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
27 November 2023 and submitted for decision on 23 January 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.
28. 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 May 2023 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Portuguese player and a
Luxembourgish club.
29. 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 (May 2023 edition), and
considering that the present claim was lodged on 27 November 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
30. 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 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
31. 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.
pg. 6
REF. FPSD-12849
i. Main legal discussion and considerations
32. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the basis of the present dispute revolved around the
lawfulness of the contractual termination as a result of the purported breach of contract
by the Respondent.
33. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence and submission(s) on file, whether the Claimant had a just cause to
unilaterally terminate the Contract before its term, and consequently, whether or not he is
entitled to claim both outstanding remuneration and compensation from the Respondent
for such potentially unlawful breach.
34. Prior to entering the analysis of the matter, the Single Judge recalled the parties’
submissions, starting with the Claimant, pursuant to whom the Respondent had defaulted
on its financial obligations under the Contract as a result of a potestative clause triggered
by the player’s injury, and furthermore, alleging that the Respondent had engaged in
abusive behaviour towards the Claimant, enabling him to prematurely put an end to the
Contract.
35. On the other hand, the Single Judge took note of the fact that, despite having been invited
to do so, the Respondent failed to provide a position to the claim.
36. Lastly, the Single Judge wished to once again stress the importance of the principle of
burden of proof, laid down by art. 13 par. 5 of the Procedural Rules, which stipulates that
a party which intends to assert a certain fact also bears the burden of proving its veracity.
37. Having stated the above, the Single Judge went on to consider the allegation of the Claimant
as to non-payment. The Single Judge recalled that the Claimant specifically argued not
having received his entire remuneration corresponding to the period between May 2023
and September 2023 due to his injury.
38. In respect of the above, the Single Judge made reference to the Respondent’s
correspondence dated 4 October 2023. Said letter revealed as follows:
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One salary was (allegedly) paid as an advance, to be deducted at the end of the
Contract, in order to assist the Claimant with his moving situation. Allegedly, said
advance salary may be seen as the instalment due for May 2023;
-
The Claimant had been entitled to a payment of EUR 775, which corresponded,
however, to a discretional bonus, from which EUR 500 were once again deducted in
the context of “tickets for the Cup final, for personal use”;
pg. 7
REF. FPSD-12849
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The Respondent alleged having made a partial payment of EUR 500 corresponding
to the June 2023 salary, with half – i.e. EUR 750 – withheld due to the Claimant’s injury
and EUR 250 not remitted at all;
-
Thereafter, as August 2023 was already the third month following the injury of the
Claimant (which took place on 30 April 2023, the Respondent claims that it was no
longer obligated to remit any salaries until the Claimant returned from his injury.
39. As to the above, the Single Judge wished to point out that all of the above assertions – in
particular those concerning the remittance of the advance and separately the EUR 500
payment, were not only entirely uncorroborated, but also not contested during the present
proceedings.
40. Thus, in any case, the Single Judge was able to deduce that the entire salary of May 2023
and half of the salary of June 2023 had remained unpaid without a due explanation.
41. Having said this, the Single Judge turned to the deductions made by the Respondent on
account of the player’s injury as to his salary – that is, half of June 2023, and the integral
salary for July 2023, August 2023 and September 2023.
42. The Single Judge, at this point, recalled the contents of art. 9.2 of the Contract, which stated
that the Respondent is entitled to withhold salary payments if the Claimant is injured,
starting with 50% as from the second month from which the Claimant is injured, to not
paying any salary anymore as from the third month thereafter.
43. In this respect, the Single Judge deemed it important to recall that the Claimant had
suffered his injury during the course of his employment with the Respondent – i.e. during
an official match.
44. The Single Judge wished to refer to the jurisprudence of the Football Tribunal at this stage,
according to which the injury of a player – particularly when sustained during the course of
his regular employment, may not be held against him. By the same token, the state of injury
of a player does not consist of a breach of contract per se.
45. Consequently, the Single Judge determined that art. 9.2 of the Contract could not be
upheld, meaning that the payments withheld by its virtue were ultimately unlawfully
defaulted upon by the Respondent.
46. With this in mind, the Single Judge wished to address the remaining allegations of the
Claimant as to a breach of contract by the Respondent.
47. The Single Judge deemed it important to point out that the Respondent had – from what
the evidence on file revealed – seemingly broken into the Claimant’s apartment in his
absence.
pg. 8
REF. FPSD-12849
48. According to the Single Judge, this constituted a further breach of contract by the
Respondent – not only violating the Claimant’s right to privacy, but by vacating the
apartment for another player, depriving the former of his accommodation.
49. At this stage, the Single Judge recalled his own longstanding jurisprudence, pursuant to
which a contract may only be terminated with just cause as a result of a very serious or
consistent breach of contract by the counterparty. Where more lenient measures are
available to remedy the contractual situation, parties should resort thereto. A premature
contractual termination may only be an ultima ratio measure.
50. In the case at hand, the Single Judge opined that there was ample evidence on file to
suggest not only that the Claimant had been owed a substantial amount under the
Contract, which the Respondent deliberately and unlawfully withheld, but beyond this the
Respondent had committed a serious breach of contract when driving the Claimant out of
his accommodation.
51. On account of the above, the Single Judge concluded comfortably that the Claimant had a
just cause to terminate the Contract, giving rise, consequently, to a right to claim the
outstanding amounts outlined above and compensation.
ii. Consequences
52. 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.
53. The Single Judge observed that the amount of outstanding remuneration due at the time
of termination of the Contract amounted to EUR 7,350 – that is, four full salaries between
May 2023 and August 2023, as well as the pro-rata salary for the month of September 2023.
54. 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 outstanding
remuneration in the amount of EUR 7,350.
55. Furthermore, in accordance with the Claimant’s request as well as the standard practice of
the Football Tribunal, the Single Judge decided that the Respondent must pay interest at
the annual rate of 5% on the above amounts, as from the following dates:
-
on the amount of EUR 1,500, as from 1 June 2023 until the date of effective payment;
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on the amount of EUR 1,500, as from 1 July 2023 until the date of effective payment;
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on the amount of EUR 1,500, as from 1 August 2023 until the date of effective payment;
-
on the amount of EUR 1,500, as from 1 September 2023 until the date of effective payment;
pg. 9
REF. FPSD-12849
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on the amount of EUR 1,350, as from 28 September 2023 until the date of effective payment.
56. 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 and the time remaining on the existing contract up to a
maximum of five years.
57. In application of the relevant provision, the Single Judge held that he 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.
58. In this regard, the Single Judge referred to art. 11 of the Contract, pursuant to which the
last paragraph established a contractual compensation of one monthly salary in case of
termination without just cause by the Respondent.
59. In respect of such provision, the Single Judge made reference to the longstanding
jurisprudence of the Football Tribunal, pursuant to which such a compensation clauses
may only be upheld if they satisfy the criteria of reciprocity and proportionality.
60. In the case at hand, the Single Judge opined that neither of the above criteria had been met
– not only was such compensation clause only applicable in the club’s favour, but
additionally was the foreseen amount of one monthly salary entirely disproportionate in
comparison to the residual value of the Contract.
61. On the basis of the above arguments, the Single Judge considered that the provision on
liquidated damages as foreseen under art. 11 of the Contract should be disregarded.
62. 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.
63. 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
until its term. Consequently, the Single Judge concluded that the amount of EUR 31,650 (i.e.
the residual value of the Contract) serves as the basis for the determination of the amount
of compensation for breach of contract.
pg. 10
REF. FPSD-12849
64. In this respect, the Single Judge placed particular emphasis on the wording of art. 11 of the
Contract, pursuant to which, unless the Respondent were to give a unilateral notice until
15 March 2024, the Contract would automatically extend until the end of the season
2024/2025.
65. The Single Judge considered two aspects as key in this regard: firstly, the provision, by its
nature, was already potestative. More specifically, it resulted in the duration – and
performance – of the Contract being entirely within the control of one party, i.e., the
Respondent, and in turn left the Claimant – as the “weaker” contractual party – at the mercy
of his employer.
66. Secondly, the Single Judge considered that an interpretation of the above clause in favour
of the Respondent – reducing the term of the Contract and consequently its liability to pay
around one annual salary to the Claimant as compensation – could not be applied in the
case at hand. The Single Judge specified that the Respondent could not benefit from a
favourable interpretation of the above provision when it had itself been the party in breach.
67. 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 Football Tribunal 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 general obligation of the player
to mitigate his damages.
68. In the present case, the player had confirmed that he remained unemployed following the
contractual termination. Consequently, the Single Judge was able to establish that the
former had not mitigated his damages.
69. 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 EUE 31,650 to the player (i.e. the residual value of the Contract between September 2023
and June 2025), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
70. 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 28 September 2023 until the date of effective
payment.
pg. 11
REF. FPSD-12849
iii. Compliance with monetary decisions
71. 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 his 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.
72. 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.
73. 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.
74. 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.
75. 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. 8 par. 8
of Annexe 2 of the Regulations.
d. Costs
76. 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.
77. 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.
78. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 12
REF. FPSD-12849
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Joao Paulo Ambrosio Simoes, is partially accepted.
2.
The Respondent, Differdange FC 03, must pay to the Claimant the following amount(s):
- EUR 7,350 as outstanding remuneration plus interest p.a. as follows:
-
5% interest p.a. over the amount of EUR 1,500 as from 1 June 2023 until the date of
effective payment;
-
5% interest p.a. over the amount of EUR 1,500 as from 1 July 2023 until the date of
effective payment;
-
5% interest p.a. over the amount of EUR 1,500 as from 1 August 2023 until the date
of effective payment;
-
5% interest p.a. over the amount of EUR 1,500 as from 1 September 2023 until the
date of effective payment;
-
5% interest p.a. over the amount of EUR 1,350 as from 28 September 2023 until the
date of effective payment.
- EUR 31,650 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 28 September 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. 8 of Annexe 2 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. 8 par. 7 and 8 of Annexe 2 and art. 25 of the Regulations on the Status and Transfer
of Players.
pg. 13
REF. FPSD-12849
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-12849
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
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pg. 15