Labour Disputes
Texto da decisão
REF. FPSD-9588
Decision of the
Dispute Resolution Chamber
passed on 4 May 2023
regarding an employment-related dispute concerning
the player Jefferson Tavares da Silva
COMPOSITION:
Omar ONGARO (Italy), Deputy Chairperson
Tomislav KASALO (Croatia), Member
Calum BEATTIE (Scotland), Member
CLAIMANT:
Jefferson Tavares da Silva, Brazil
Represented by Ricardo Alipaz
RESPONDENT:
Club Blooming, Bolivia
Represented by Eduardo Alberto Martins & Diego Raguseo
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REF. FPSD-9588
I. Facts of the case
1.
On 1 January 2022, the Brazilian player, Jefferson Tavares da Silva (hereinafter: the Claimant
or the player), and the Bolivian club, Club Blooming (hereinafter: the Respondent or the club)
signed an employment contract valid as from the same date until 31 December 2023
(hereinafter: the contract).
2.
According to the information available in the Transfer Matching System (TMS), the player
was born on 22 November 1989 and therefore was older than 28 years when the contract
was signed.
3.
In accordance with the contract, the Respondent undertook to pay to the Claimant inter
alia the following:
a. USD 110,000 as annual salary for the season 2022, payable in 11 monthly quotas
of USD 10,000 each by the 15th day of the following month;
b. USD 600 as monthly housing allowance;
c. Return flight tickets to Brazil, one in January and another in December without
further specification.
4.
Furthermore, the contract reads that for the season 2023 the parties would renegotiate
the player’s salary.
5.
On 23 December 2022, the club sent a letter to the player with reference “re-negotiation of
salary for the season 2023” (hereinafter: the re-negotiation letter). In such letter, the club
presented the following remuneration conditions:
a. USD 67,500 as total remuneration for the season 2023, payable in one lump
payment of USD 25,000 as sign-on fee due by 5 January 2023 plus in 11 monthly
quotas of USD 3,863.63 each by the 15th day of the following month;
b. The other benefits (housing allowance, travel, and bonuses) would remain equal.
6.
On 4 January 2023, the Claimant, via his lawyer, put the Respondent in default and
requested payment of USD 30,000, regarding the quotas due respectively on 15 October,
15 November, and 15 December 2022. The player granted the club 15 days to cure the
breach. Said letter was accompanied by a mandate, a copy of which was not provided to
FIFA, and requested that the payment was made to the lawyer’s bank account.
7.
On 30 January 2023, the player terminated the contract.
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REF. FPSD-9588
8.
On 6 February 2023, the club replied and stated as follows (freely translated to English):
“Dear Dr. Alipaz,
José Sebastián Peña Parada, in my capacity as President of Club Blooming, with the legal
advice of Drs. Eduardo Alberto Martins and Diego Ariel Raguseo, in response to your
summons for payment issued on 4 January 2023 in the amount of U$S 30,000; and
subsequent termination sent on 30 January 2023, on behalf of the Player Jefferson Tavares
Da Silva, I respectfully submit:
Firstly, according to the mandate you have submitted, it does not expressly authorise you to
carry out the termination, nor does it authorise you to terminate an employment contract.
You have therefore performed two legal acts without being duly empowered to do so.
The various legal systems applicable to the Player/Club relationship provide that employment
rights are non-waivable. This means that a player cannot grant authority to terminate a
contract. In order to be valid, such an act must have the intervention of the employee himself.
Along these lines, with regard to the impossibility to waive a worker's labour rights, we cannot
consider as valid an intimation of payment that seeks to have what is allegedly owed
deposited in an account that does not belong to the Player.
In short, notices were issued on behalf of the Player: (i) without having express powers for
such acts, which is expressly required; (ii) the termination is a very personal legal act of the
worker; (iii) the informed account does not belong to the Player.
For all of the above reasons, we reject your notice and subsequent termination.
Yours sincerely
José Sebastián Peña Parada
9.
On 1 March 2023, the player signed an employment contract with Nanjing City FC valid as
from the same date until 31 December 2023, including a total salary of USD 160,000 net
plus a total of USD 4,200 as housing allowance.
II. Proceedings before FIFA
10. On 13 March 2023, as amended on 14 March 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
11. In his claim, the player argued that he had just cause to terminate the contract on the basis
of art. 14bis of the Regulations on the Status and Transfer of Players (RSTP). He seeks the
following amounts:
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REF. FPSD-9588
a. USD 78,000 as outstanding remuneration plus 5% interest p.a. as from 30
January 2023, as follows:
i. USD 50,000 as salaries between September 2022 and February 2023;
ii. USD 25,000 as sign-on fee due on 5 January 2023;
iii. USD 1,800 as housing allowance between December 2022 and
February 2023;
iv. USD 2,000 as travel allowance for December 2022 and January 2023.
b. USD 108,000 as compensation for breach of contract plus 5% interest p.a. as
from 30 January 2023, as follows:
i. USD 100,000 as residual value of the contract;
ii. USD 6,000 as housing allowances from February to December 2023;
iii. USD 1,000 as travel allowance for December 2023.
c. Interest of 5% p.a. on all amounts above as from 30 January 2023.
12. In his claim, the player made no mention to the re-negotiation letter.
b. Position of the Respondent
13. In its reply, the Respondent denied having failed to pay the player, in particular the salaries
of October to December 2022, and filed a series of cash receipts allegedly signed by the
player in support of this. However, none of these payments refers to payments of salaries
from September 2022 onwards.
14. As to the termination of the contract, the club argued as follows (freely translated to
English):
“The notice and the termination have been issued by Dr. Alipaz without being duly authorised,
and even more so when the criterion for the breach of the principle of contractual stability is
full compliance with the requirements established by Art. 14 bis of the RSTP.
The principle of contractual stability must be in full compliance with the requirements
established by Art. 14 bis of the RSTP, which establishes that it is the Player who must give
notice and not any other person, and this is logical in view of the non-delegability and nonwaivability of employment rights.
In other words, it is only the Player who can decide whether or not to continue the
employment relationship, and this right is non-delegable. Thus, there is no regulation that
allows the delegation of the power to terminate a sports/employment contract.
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REF. FPSD-9588
With regard to the alleged breach of contract, it falls under Article 14 of the RSTP, which
alleges abusive conduct on the part of our Club. It should be emphasised that Blooming has
never been put in default to cease any abusive conduct, so that the alleged claim lacks a
necessary requirement such as intimation or constitution in arrears.
Therefore, the resolution has been without just cause since the fundamental requirement
established in Article 14 bis of the RSTP has not been complied with, such as the notice given
by the Player himself.
15. The club also pointed out that the player found a new club and compensation, if any,
should take into consideration the mitigation of the player’s new contract.
c. Reaction of the Claimant to the proof of payment filed by the Respondent
16. Upon request of the FIFA general secretariat, the Claimant confirmed the payments made
but outlined that they only refer to salaries until August 2022, which reinforces his claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 13 March 2023 and submitted
for decision on 4 May 2023. 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.
18. Subsequently, the members of 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 RSTP (March 2022 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 player from Brazil and a club from Bolivia.
19. 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 RSTP (March 2023 edition), and considering that the present claim was lodged
on 13 March 2023, the October 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
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REF. FPSD-9588
20. 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 TMS.
c. Merits of the dispute
21. Its competence and the applicable regulations having been established, 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 the assessment of the matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established, the DRC moved to the substance of the matter, and
took note of the fact that the parties strongly dispute the justice of the early termination of
the contract by the Claimant, based on the alleged non-payment of certain financial
obligations by the Respondent as per the contract, in accordance with art. 14bis of the
Regulations.
23. Before entering into the issue of the termination, the DRC wished to clarify that the parties
did not dispute the validity of the re-negotiation letter, which had been duly agreed upon
the contract. In fact, the DRC noted that the Claimant requested relief calculating the
amounts in connection thereto on the basis of the same remuneration agreed for the
season 2022. Yet, the DRC remarked that there is no contractual basis for such request in
that the contract referred to a re-negotiation of the salaries and benefits for the season
2023.
24. In the absence of any dispute as to the validity of the letter in question as well as the fact
that any claim of the Claimant for monies in 2023 payable equal to the season 2022 lacks
contractual basis, the DRC confirmed that the player de facto accepted the re-negotiation
letter, which as such governed the parties’ relationship for the season 2023.
25. In this context, the DRC acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had been fulfilled.
26. The DRC then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance
with which, if a club unlawfully fails to pay a player at least two monthly salaries on their
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REF. FPSD-9588
due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
27. The Claimant claims not having received his remuneration corresponding to September
2022 to February 2023. Furthermore, the Claimant has provided written evidence of having
put the Respondent in default on 4 January 2023, i.e., at least 15 days before unilaterally
terminating the contract on 30 January 2023.
28. Against this background, the DRC highlighted that in the case at hand the Respondent bore
the burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties. Nonetheless, the Chamber acknowledged that the
evidence provided by the Respondent has no connection to the payment of the amounts
claimed as outstanding by the Claimant.
29. In parallel, the DRC underlined that the club failed to reply to the default notice given by
the player, and equally failed to provide in these proceedings a copy of the power of
attorney which allegedly did not empower the lawyer to terminate the contract. Thus, while
having the principle venire contra factum proprium in mind, the DRC was equally of the
opinion that the club failed to meet its burden of proof and its position was accordingly
rejected.
30. In light with the above, the DRC concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
31. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
32. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounts to USD 70,963.63 as
follows:
a.
the salaries from September to December 2022 à USD 10,000 each plus USD
3,863.63 as the salary of January 2023;
b.
USD 25,000 as sign-on fee due on 5 January 2023, as stated in the re-negotiation
letter;
c.
USD 1,200 as housing allowances for December 2022 and January 2023;
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REF. FPSD-9588
d.
USD 900 as travel allowance, which represents approximately the value of a
return trip between Bolivia and Brazil.
33. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber 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 as detailed
above.
34. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 30 January 2023, as requested by the player,
until the date of effective payment.
35. Having stated the above, the Chamber 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
Chamber 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.
36. In application of the relevant provision, the Chamber held that it 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
37. As a consequence, the members of the Chamber 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 Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
38. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 45,236.50 (i.e., the residual value of the contract from
February to December 2023 considering the remuneration agreed under the renegotiation letter) serves as the basis for the determination of the amount of
compensation for breach of contract.
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REF. FPSD-9588
39. 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
DRC 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.
40. Indeed, the player found new employment. In accordance with the pertinent employment
contract, the player was entitled to approximately USD 164,200 in total. Therefore, the
Chamber concluded that the player mitigated his damages in that amount.
41. Subsequently, the Chamber 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 Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
42. In this respect, the DRC decided to award the amount of additional compensation of USD
18,409.09, i.e., three times the monthly (average) remuneration of the player, considering
the advance payment of USD 25,000.
43. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 18,409,09 to the player (i.e., USD 45,236.50 minus USD 164,200 – therefore fully
mitigating the residual value of the contract – plus USD 18,409.09), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
44. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 30 January 2023 as requested by the Claimant
until the date of effective payment.
iii. Sporting Sanctions
45. The Chamber noted that the Respondent had also on several occasions in the recent past
been held liable by the Football Tribunal for the early termination of employment contracts
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REF. FPSD-9588
without just cause, namely in the following cases: FPSD-2491, FPSD-3134, FPSD-3534 and
FPSD-3760.
46. Under article 17 par. 4 of the Regulations, in addition to the obligation to pay compensation
(if any), sporting sanctions shall be imposed on any club found to be in breach of contract
or found to be inducing a breach of contract during the protected period.
47. As to the protected period, this is defined in the Regulations as “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a contract, where
such contract is concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a contract, where such
contract is concluded after the 28th birthday of the professional”.
48. In the present case, the player was older than 28 years old when he signed the contract.
For two years or two entire seasons had not elapsed by the time the contract was
terminated, the Chamber confirmed that said termination took place within the protected
period.
49. At the same time, the DRC recalled that both (a) the player terminated the employment
relationship with the club with just cause, as the club had was found to have breached the
contract; and (b) the club was a repeat offender in this respect. As such, and by virtue of
art. 17 par. 4 of the Regulations, the Chamber decided that the Respondent shall be banned
from registering any new players, either nationally or internationally, for the two next entire
and consecutive registration periods following the notification of the present decision.
50. For the sake of completeness, the Chamber recalled that in accordance with article 24 par.
3 lit. a) of the Regulations, the consequences for failure to pay relevant amounts in due
time may be excluded where the Football Tribunal has imposed a sporting sanction on the
basis of article 17 in the same case. Consequently, the Chamber confirmed that the
consequences for failure to pay relevant amounts in due time envisaged by art. 24 of the
Regulations were excluded in the present matter, and that should the Respondent fail to
timely comply with this decision, it would be for the FIFA Disciplinary Committee to adopt
the necessary measures in accordance with the FIFA Disciplinary Code.
d. Costs
51. 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.
52. 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.
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REF. FPSD-9588
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-9588
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jefferson Tavares da Silva, is partially accepted.
2.
The Respondent, Club Blooming, must pay to the Claimant the following amount(s):
- USD 70,963.63 as outstanding remuneration plus 5% interest p.a. as from 30 January 2023
until the date of effective payment;
- USD 18,409.09 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 30 January 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.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment is not made within 30 days of notification of this decision, the present
matter shall be submitted, upon request of the Claimant, to the FIFA Disciplinary
Committee.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-9588
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
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