Labour Disputes
Texto da decisão
REF. FPSD-8694
Decision of the
Dispute Resolution Chamber
passed on 29 March 2023
regarding an employment-related dispute concerning
the player Erivaldo Tavares da Silva
BY:
Alejandro ATILIO TARABORELLI (Argentina)
CLAIMANT:
Erivaldo Tavares da Silva, Brazil
Represented by Roberto Pugliese Jr
RESPONDENT:
F.C. Kingersheim, France
pg. 2
REF. FPSD-8694
I. Facts of the case
1.
In 2020, the Brazilian futsal player Erivaldo Tavares da Silva (hereinafter: player or Claimant)
was invited by the French futsal club, FC Kingersheim (hereinafter: club or Respondent) to
play for the club.
2.
The player states that following this invitation the parties never concluded an employment
contract, but that he played official matches for the club’s team, nonetheless.
3.
On an unspecified date, the club issued a document, which allegedly is signed and stamped
by the club alone, which states as follows:
“Contract for the season 2020/2021
ERIVALDO TAVARES DA SILVA
Passport number FW874866
Fixed remuneration of EUR 500 / month until 31 December 2020 and reassessment based
according to performance on 1 January 2021
- Bonus per match won: EUR 50/match”
4.
On 1 October 2020, the club issued a letter with the following content, in its letterhead and
stamped:
“The Football Club Kingersheim, a club affiliated to the French Football Federation.
Declare on their honour to host and take care of Mr ERIVALOO TAVARES DA SILVA
Of Brazilian nationality
Born on 27 April 1995 in SAO PAULO (BRAZIL)
Passport number FW874866
During the period from 5 October 2020 to 31 December 2020 in French soil
In order to take part in the French Futsal 2nd Division championship”
5.
On 1 December 2020, the club published an interview with the player on its social media.
6.
On 1 January 2021, the club issued a letter with the following content, in its letterhead and
stamped:
“The Football Club Kingersheim, a club affiliated to the French Football Federation.
Declare on their honour to host and take care of Mr ERIVALDO TAVARES DA SILVA
Of Brazilian nationality
Born on 27 April 1995 in SAO PAULO (BRAZIL)
Passport number FW874866
During the period from 5 January 2021 to 31 March 2021 in French soil
In order to take part in the French Futsal 2nd Division championship”
7.
In February 2021, the player was allegedly dismissed by the club.
pg. 3
REF. FPSD-8694
8.
By means of a letter dated 24 February 2022 but sent on 7 March 2022, the player stated
that the club had failed to comply with the work proposal “signed by the parties” on 5
October 2020 (hereinafter: the Alleged Contract). The player inter alia argued that the club
had “broken the link” by sending him away, which amounted to a breach of contract under
art. 17 of the FIFA Regulations on the Status and Transfer of Players (RSTP). As such, the
player requested payment of EUR 2,340, amounting to 4 salaries of EUR 500 each plus EUR
340 for a plane ticket between France and Brazil.
9.
As to the player’s employment situation after the alleged termination of his relationship
with the club, the player provided the following information:
a. He signed an employment contract with the Brazilian club, AAB Botucatu, in May
2020 including a monthly salary of USD 500; and
b. On 19 December 2022, he was hired by the French club, Elsass Pfastatt Futsal for
the season 2022/2023 including a monthly salary of EUR 1,200.
10. The player’s submission in regard of the above expressly read as follows, quoted verbatim:
“After leaving Kingersheim, the Claimant was hired in May 2020 by Brazilian Club, AAB
Botucatu, receiving a salary equivalent to US$ 500 (five hundred American dollars), monthly.
On December 19th, 2022, after conversations that started on October 30th, 2022, he was
linked to Elsass Pfastatt Futsal in France until the end of the 2022/2023 season.
According to the attached documents, the French Club hired the Claimant on December 19th,
2022. The Club did not provide work contract that demonstrates his current salary, in the
order of monthly €1.200 (twelve hundred) euros, as proposed by attached Instagram
application messages. However, the Club provided the federative bond document, insurance
policy and housing declaration, which are attached”.
11. On 29 December 2022, the Claimant lodged a claim against the Respondent in front of FIFA
and argued that the club had failed to comply with “its bond with the player” and thus the
latter shall be compensated for breach of contract on the basis on art. 13 and 17 of the FIFA
RSTP.
12. The player calculated such compensation at EUR 2,340, as follows: 4 salaries of EUR 500
each between February and May 2021 plus EUR 340 for a plane ticket between France and
Brazil “plus 5% (five percent) interest until the date of payment, granting a period of up to 30
(thirty) days for payment”.
13. In its reply, the Respondent stated as follows:
pg. 4
REF. FPSD-8694
-
The player was granted a licence by the club as an amateur player from 12 October 2020.
No contract bound the player with the club and the club with the player.
-
The club admitted that it undertook to pay the player EUR 500 per month from 5 October
2020 to 31 December 2020, as well as to house him throughout this period, free of
charge.
-
Said period therefore covered the duration of the player’s tourist visa. He was on the
territory for a maximum of 90 days, and the club kept its financial commitments so that
this "amateur" licensee could eat and be accommodated. The player did not secure a
visa extension and in January 2021, it considered that the player was in breach of the
law by exceeding the 90 days of his visa period and therefore invited him to return to
Brazil.
14. Furthermore, the club objected to the validity of the Alleged Contract. In doing so, the club
indicated as follows:
-
The document is not a contract in that it is not signed by both parties.
-
It impossible to identify the issuer of the document and ensure that said person was
part of the management and had the authority to make such a proposal.
-
The document is, as its name indicates, a simple proposal. It does not present definitive
conditions.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 29 December 2022
and submitted for decision on 29 March 2023. Taking into account the wording of art. 34 of
the October 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.
16. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 RSTP (October 2022), 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 a French club.
pg. 5
REF. FPSD-8694
17. 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 RSTP (October 2022 edition), and considering that the present claim was
lodged on 7 December 2022, the cited edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
18. 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, he 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).
c. Merits of the dispute
19. The 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,
he 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
20. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that this is a claim of a player against a club for breach of
contract, where the parties dissent if a contract existed between them. In fact, the Single
Judge noted that the parties’ fundamental disagreement derives from the fact that, despite
the player’s allegations in this regard, the parties have never drafted nor concluded a
written contract.
21. In this context, the Single Judge started by recalling the Football Tribunal’s well-established
jurisprudence which dictates that, in general, in order for an employment contract to be
considered as valid and binding, apart from the consent of both the employer and the
employee (usually manifested by the signature to the relevant agreement), 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.
22. Furthermore, the Single Judge outlined that the actual signature of the contract is not the
sole (or even a necessary) element to determine whether there was an existing contractual
pg. 6
REF. FPSD-8694
relationship between the parties. Instead, the validity and the enforcement of the contract
should be established on the basis of a comprehensive understanding of all the facts and
actions taken by the parties within their context of their relationship. Put differently, the
Single Judge confirmed that the signature requirement is essentially the easiest way that a
party has to prove that their counterparty has entered into a contract; however, he was
comforted to determine in line with the jurisprudence of both the Football Tribunal and the
Court of Arbitration for Sport (CAS) that an employment agreement can be materialised
with the wish to be executed, and the signature can be understood as a requirement to
prove the club’s acceptance, but it is not the only evidence.
23. In parallel, the Single Judge 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. On this note, the Single Judge deemed that it was up to the
player to prove that the employment relationship on the basis of which he claimed
outstanding remuneration and compensation for breach of contract from the club indeed
existed.
24. With the above in mind, the Single Judge turned his attention to the documentation brought
forward by the parties and acknowledged that the Claimant relies on a unilateral letter from
the club (i.e., the Alleged Contract), without any indication of origin, in support of his claim.
25. After thoroughly analysing such letter, the Single Judge remarked that it (i) contains the
proper identification of the parties; (ii) provides for the duration of the employment
relationship and the payable remuneration to the player; and (iii) refers to the player as
being employed as a futsal player with the club. Nevertheless, the Single Judge observed
that the unilateral letter was only signed by the club’s representative, if at all (which
remained disputed by the club) and did not even include the designated space for the
player to insert his signature. In this respect, the Single Judge concurred with the club’s
argumentation and considered that the disputed document was not meant to be a bilateral
document (i.e., an employment contract).
26. The Single Judge was further of the opinion that:
•
while the signature of a contract and/or the consent by the club could have been
corroborated by other evidence, there is none on file to demonstrate that the player
had been employed with the club after December 2020;
•
the player did not provide any evidence capable of demonstrating that any other
document was ever concluded between the parties with a view to confirm that the
conditions described in the initial proposal were indeed validated;
•
the player expressly, and rather unequivocally, admitted that since May 2020 he had
been engaged by a club in Brazil, which further contradicts his statement of claim;
pg. 7
REF. FPSD-8694
•
the player took more than a year to put the Respondent in default, and such a
belated reaction further demonstrates, in the Single Judge’s view, that no
employment relationship existed in line with the principle venire contra factum
proprium.
27. In light of the foregoing and taking the club’s argumentation regarding the inconsistencies
of the Alleged Contract into consideration, the Single Judge understood that the player did
not meet his burden of proof in order to demonstrate that a contract was indeed concluded
with the club (nor at least with its consent). He determined, in this respect, that the essential
elements mentioned by the jurisprudence were not fully included in the document at the
basis of the dispute and therefore the Alleged Contract was not able to trigger the
consequences of a labour relationship between the parties, absent further evidence to the
contrary.
28. In other words, the Single Judge found that that the player could not sufficiently establish
that an employment relationship existed between the parties. Consequently, the Single
Judge 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. It was accordingly rejected.
pg. 8
REF. FPSD-8694
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Erivaldo Tavares da Silva, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-8694
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10