Labour Disputes
Texto da decisão
REF. FPSD-13282
Decision of the
Dispute Resolution Chamber
passed on 2 May 2024
regarding an employment-related dispute concerning the player Lucca Souza
Cortizo
BY:
Angela COLLINS (Australia), member
CLAIMANT:
Lucca Souza Cortizo, Brazil/Spain
Represented by Joao Barreto
RESPONDENT:
AC Ajaccio, France
pg. 2
REF. FPSD-13282
I. Facts of the case
1.
On 13 September 2022, the Brazilian/Spanish player (hereinafter: Claimant or player) and
AC Ajaccio (hereinafter: club or Respondent) concluded an employment contract
(hereinafter: first contract) and as per the Transfer Matching System (TMS), valid as from 13
September 2022 until 30 June 2023.
2.
According to the contract, the Claimant was entitled to a monthly salary of EUR 2,800.
3.
According to the Claimant, he signed a second employment contract (hereinafter: second
contract) with the Respondent which allegedly fixed a term of four years from 23 September
2022 until 23 September 2026.
4.
According to the Claimant, the Respondent paid his monthly salaries until April 2023,
however, the Respondent has failed to fulfil its payment obligations for the months of May
2023, June 2023, July 2023, August 2023, and October 2023, resulting in a clear default of
its contractual financial obligations amounting EUR 14.000.
5.
Allegedly, “during the time the player was a member of the club, he trained with the first team
only in the first month. After that period, he was removed from the active roster and, sometime
later, was sent to Brazil – where he followed the training programs in accordance with the
instructions provided by the club.”
6.
On 6 June 2023, the Claimant ”received an email from the French Football Federation (FFF)
mentioning that the contract was rejected because the club could not provide a document
proving the authorization for the Player’s residence in France.”
7.
On an unspecified date, the Claimant put the Respondent in default and requested
payment of the amount of EUR 14,000, granting it a 15-day deadline to comply, however to
no avail.
8.
The player confirmed that he remained unemployed.
II. Proceedings before FIFA
9.
On 8 January 2024, 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
10. In his claim, the player argued that the rejection by the FFF of his contract on the basis that
he did not permission to reside in France should be rejected, on the basis that:
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REF. FPSD-13282
i)
ii)
The player is in possession of a Spanish Passport which grant him the right to live in any
European Union country.
According to article 18(4) of the Regulations, it’s the obligation of the club to provide the
necessary permit to the player
11. The Claimant requested the following relief:
“1) The Club breached the employment contract by committing a severe contractual breach,
thereby providing the Player just cause to terminate the contract in accordance with Art. 14bis
of the RSTP.
2) The Club is obliged to pay the Player the outstanding amount due as unpaid salaries, i.e. May
2023, June 2023, July 2023, August 2023, and October 2023) in the amount of EUR 14.000
(fourteen thousand euros) plus interest of 5% p.a.
3) The Club is required to pay the Player compensation for breach of contract corresponding to
the residual value of the Contract i.e. from November 2023 to September 2026, which would
amount to EUR98.000,00 (ninety-eight thousand euros) plus interest of 5% p.a.”
b. Position of the Respondent
12. Notwithstanding being invited to do so, the Respondent failed to reply to the claim.
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REF. FPSD-13282
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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 8 January 2024
and submitted for decision on 2 May 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.
14. 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
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Brazilian/Spanish player and a French
club.
15. 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 8 January 2024, 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
16. 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
17. Her 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.
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REF. FPSD-13282
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge moved to the substance of the
matter and noted that the case at hand pertains to a claim of the player for outstanding
remuneration and compensation for breach of contract against the club.
19. The Single Judge noted that – after having been provided with the claim of the Claimant –
the Respondent failed to present its response. By not presenting its position to the claim,
the Single Judge was of the opinion that the Respondent renounced its right of defence
and, thus, accepted the allegations of the Claimant.
20. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
expressed that she shall take a decision upon the basis of the documentation already on
file; in other words, upon the statements and documents presented by the Claimant.
21. The Single Judge took note that the Claimant claims not having received his remuneration
corresponding to a period of at least two months, moreover that the club cancelled his
contract on the basis that he was not authorised to reside in France.
22. In this regard, the Single Judge firstly recalled the jurisprudence of the Football Tribunal,
which indicates that as soon as a contract is signed between a player and a club, as a
general rule, it is the club´s duty and responsibility to act accordingly in order to obtain, if
necessary, a work permit or a visa for its players prior to the signing of an employment
contract or during its period of validity, in order for players to be able to legally enter a
particular country and be in a position to render their services to the club.
23. On analysis of the documentation on file, the Single Judge noted that the player had a
Spanish passport which technically could grant him residence status in France, however
the Single Judge observed that the club on its account made no effort to obtain the
visa/work permit for the player.
24. Additionally, the Single Judge noted that the player provided his playing services to the club
from September 2022, moreover that he was remunerated by the club until April 2023.
25. Taking the above into account, the Single Judge was of the opinion that the club had failed
to carry out the necessary arrangements in order for the player to enter and/or remain in
the country.
26. As to whether the first and/or second contract should be considered in the assessment of
this this matter, in this regard the Single Judge noted that the player argued that he signed
both the first and second contract with the club therefore both should be applied in
assessment.
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REF. FPSD-13282
27. In this context, the Single Judge remarked that the player failed to provide a fully signed
copy of the second contract or to substantiate his claim with corroborating evidence,
moreover the Single Judge noted that the details of the first contract were captured in TMS
and therefore the Single Judge decided that the first contract shall be taken in
consideration in the assessment of this matter.
28. As there is no formal termination notice on file, the Single Judge concluded that the
contract was terminated by the club on 6 June 2023, as per the contract cancellation date.
29. In conclusion, the Single Judge held that the Respondent bore the burden of proving that
it indeed fully complied with the financial terms of the contract concluded between the
parties, which it failed to do.
ii. Consequences
30. Having stated the above the Single Judge observed that the outstanding remuneration at
the time of termination, coupled with the specific requests for relief of the player, are
equivalent to the May 2023 monthly salary under the contract, amounting to EUR 2,800.
31. 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 the amounts
which were outstanding under the contract at the moment of the termination, i.e. EUR
2,800.
32. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amount as from the respective due date until the date
of effective payment.
33. 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.
34. In application of the relevant provision, the Single Judge held that it 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.
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REF. FPSD-13282
35. 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.
36. As a consequence, the Single Judge determined that the amount of compensation payable
by the Respondent to the Claimant 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.
37. 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 2,800 (i.e.,
June 2023) serves as the basis for the determination of the amount of compensation for
breach of contract.
38. In continuation, the Single Judge verified 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.
39. In this respect, the Single Judge noted that the player remained unemployed.
40. 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.
41. Consequently, on account of all 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
2,800 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
42. 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 2023 until the date of effective payment.
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REF. FPSD-13282
iii. Compliance with monetary decisions
43. 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.
44. 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.
45. 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.
46. 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.
47. 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
48. 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.
49. 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.
50. 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-13282
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lucca Souza Cortizo , is partially accepted.
2.
The Respondent, AC Ajaccio, must pay to the Claimant the following amount(s):
-
EUR 2,800 as outstanding remuneration plus 5% interest p.a. as from 6 June 2023 until
the date of effective payment
-
EUR 2,800 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 June 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-13282
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
CONTACT INFORMATION
Fédération Internationale de Football Association
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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