Labour Disputes
Texto da decisão
REF FPSD-2693
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Allira Jean
Patricia Toby
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT / COUNTER-RESPONDENT:
Allira Jean Patricia Toby, Australia
Represented by Professional Footballers Australia
RESPONDENT / COUNTER-CLAIMANT:
FC Famalicao, Portugal
Represented by Mr Joao Filipe Lobao
INTERVENING PARTY:
Sidney Football Club, Australia
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REF FPSD-2693
I.
Facts of the case
1.
On 2 September 2020, Australian player, Allira Jean Patricia Toby (hereinafter: the Player) and
the Portuguese club, FC Famalicao (hereinafter: the Club) signed an employment contract
valid as from 7 September 2020 until 30 June 2021 (hereinafter: the employment contract).
2.
In accordance with the employment contract, the Club undertook to pay to the Player inter
alia EUR 889 per month for a period of 10 months, no later than the fifth day of the following
month.
3.
Furthermore, Clause 19 of the employment contract stipulated that the Player had “the right
to unilaterally terminate the contract without the need to invoke a just cause, being
immediately dissociated from the (Respondent) under the following conditions: 19.1 A
written communication must be sent to the (Respondent) 15 days before the date on which
it must operate its effects; 19.2 With that communication, an immediate payment should be
made to the club in the amount of EUR 50,000”.
4.
Additionally, Clause 21 of the employment contract stated the following: “Applicable Law:
in everything that is not provided for in this contract is apply the National Union of
Professional Football Players and the Portuguese Football League will apply [sic], as well as
Law No. 28/98 of 26th June”.
5.
On the date of signature of the employment contract, the parties also signed a declaration
forming part of the contract, in which it was stated that the Club would provide the Player
with accommodation in a single room, food (breakfast and lunch), return flight tickets from
Brisbane to Porto, and medical insurance until the end of the validity of the employment
contract.
6.
On 3 October 2020, the Club informed the Player via WhatsApp messages that they were
disappointed with her due to her performance and that “ (…) they did not register the
contract in the first month in accordance with national law the club has 30 days to suspend
the contract so she has to return to Australia (…) Yes, she is free agent. She just have to sign
a paper to break friendly the contract (…)”.
7.
On 7 October 2020, the parties allegedly signed a termination agreement, according to which
the employment contract was inter alia terminated. The Player disputes that she signed such
document. Said termination agreement was drafted in Portuguese only.
8.
By correspondence dated 27 October 2020, the Player via her intermediary informed the Club
of the following:
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a. “Law No 28/98” was no longer in force and had been replaced the Portuguese
CBA and Law 54/2017 of 14 July;
b. a contract must expressly mention a trial period. As the trial period is not expressly
referenced, it is presumed that it does not form part of the Contract;
c. according to Law 54/2017, a trial period for a contract with a duration of less than
two (2) seasons cannot be longer than 15 days;
d. in any event, the Player was entitled to be remunerated during the period of the
alleged trial period; and
e. the validity of the Contract could not be made subject to the player’s registration.
9.
In the same correspondence, the Player requested to be allowed to resume training with the
Club, as well as to immediately receive the medical insurance and outstanding remuneration
owed to her at that point, to no avail.
10. By correspondence dated 19 November 2020, the Player informed the Club via her
intermediary that she had not been able to train with the team or access the Club’s facilities
since 11 October 2020, and that she had not been paid any remuneration owed under the
contract signed by the parties on 2 September 2020.
11. On 25 November 2020, the player left Portugal and returned to Australia. She paid for her
own flight ticket.
12. On 10 December 2020, the Player and the Australian club, Sydney Football Club (hereinafter:
Sydney FC) signed an employment contract valid as from 15 November 2020 until 25 April
2021.
13. By correspondence dated 29 January 2021, the Player informed the Club via her legal
representative that she disputed the validity and existence of a purported termination
agreement signed by the parties, outlining as follows:
a. at no point had the Player agreed to mutually terminate the contract, nor did she
sign the purported termination agreement;
b. the signature on the document was vastly different to the Player’s signature in the
contract;
c. the Player had consistently disputed the Club’s purported ability to unilaterally
terminate the contract during a 30-day trial period in reliance of “Law No 28/98
of 26 June” and Clause 21 of the contract; and
d. the Club repudiated the contract by failing to pay the Player any of her salary or
comply with its obligations under the contract.
14. By correspondence dated 14 April 2021, the Player put the Club in default of payment of EUR
2,341, corresponding to outstanding salaries for the months of September 2020, October
2020, and the pro rata part of the salary for the month of November 2020, as well as AUD
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4,816.68 corresponding to the cost of return flight tickets from Portugal to Australia, setting
a time limit expiring on 24 April 2021 in order to remedy the default.
II. Proceedings before FIFA
15. On 2 June 2021, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Player
16. According to the Player, the Club terminated the employment contract without just cause by
not allowing her to train with the team and preventing access to the Club’s facilities as from
11 October 2020, as well as not paying any of the salaries from the beginning of the
employment contract.
17. In particular, the Player argues that the Club informed her on 11 October 2020 that it had
elected not to proceed with the employment and that, based on Clause 21 of the contract,
it was able to terminate said contract within the 30-day trial period stipulated in “Law No.
28/98 of 26 June”.
18. The Player submits that she was, at no point, informed or led to believe that the contract was
subject to a trial period of any kind.
19. Furthermore, the Player argues that Law No. 28/98 of 26th June, which is referred to in the
employment contract, had been replaced by Law No. 54/2017 of 14 July, which states that a
trial period for a contract with a term of two (2) seasons or less cannot be longer that 15 days
and that such a period commences on the provision of work by a player; and that pursuant
to article 11.4 of the collective bargaining agreement entered into by the National Union of
Professional Football Players and the Portuguese Professional Football League (Portuguese
CBA), a club may assert the existence of a trial period only if the trial period is expressly
mentioned in the relevant employment contract. In the absence of an express mention of a
trial period in an employment contract, there is a presumption of non-existence.
20. The Player also argues that any player would need to be notified in writing if a club sought
to unilaterally terminate a contract within a legitimate trial period; in any case she would be
entitled to be remunerated in accordance with the terms of the contract during any trial
period.
21. Moreover, the Player states that she was forced to return to her home country of Australia
on account of the Club’s behaviour and the lack of alternatives in Portugal, booking a flight
on 25 November 2020.
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22. In this respect, the Player alleged that when she was departing Portugal, a representative of
the Club approached her and requested to sign a document written in Portuguese, which she
refused. Following her refusal to sign the document, the Player was presented with an
envelope, which contained a separate document. The document, which purports to have
been signed by the Player, contains terms pertaining to a mutual termination of the contract,
effective from 7 October 2020.
23. The Player categorically rejects having signed the purported termination agreement. In this
respect, the Player argues not to have agreed to mutually terminating the contract with the
Club and not having signed any agreement to this effect. The Player added that the signature
on the document was vastly different from the one in the contract.
24. Lastly, the Player further stated that the purported termination agreement is allegedly dated
and effective as from 7 October 2020 and argues that the Club would not feel the need to
inform the player on 11 October 2021 of the non-continuation of the contract if the
purported termination agreement was legitimate and legally binding.
25. The requests for relief of the Player were the following:
a. EUR 889.00 being the outstanding remuneration in respect of the September
Salary Instalment (plus 5% interest p.a. from 5 October 2020 until the date of
effective payment);
b. EUR 889.00 being the outstanding remuneration in respect of the October Salary
Instalment (plus 5% interest p.a. from 5 November 2020 until the date of effective
payment);
c. EUR 563.00 being the outstanding remuneration in respect of the November Salary
Instalment (plus 5% interest p.a. from 5 December 2020 until the date of effective
payment);
d. AUD 4,816.68 for the airfares returning from Portugal to Australia;
e. the imposition of appropriate sanction(s) on the Club in accordance with art. 12bis
of the FIFA Regulations on the Status and Transfer of Players (RSTP); and
f. the awarding of any additional, further or other remedy that the DRC deemed
appropriate.
b. Position of the Club
26. The Club firstly outlined that the Player should have been at the club premises as from 7
September 2020 but she only arrived on 16 September 2020, therefore she missed 9 days
without any clear justification.
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27. Furthermore, the Club argued that the Player did not present evidence proving that the
former repudiated the contract, holding that it was the latter’s intention to return to Australia
on the basis of unproven allegations.
28. The Club argues that the Player’s intermediary informed it of the date and time of the Player’s
flight and that, subsequently, the parties signed the purported termination agreement.
29. The Club also submitted that, should the Dispute Resolution Chamber hold that the purported
termination agreement is not valid, its position is that the Player terminated the contract with
the Club by way of the e-mail sent by her representative and the fact that she returned to
Australia to sign a new contract with Sydney Football Club.
30. In this respect, the Club highlighted that under Clause 19, the Player had the right to
terminate the contract signed between the parties on 7 September 2020, subject to a 15-day
notice-period and a EUR 50,000 compensatory sum paid to the Club.
31. Lastly, the Club outlined that under art. 46 of the Portuguese CBA, termination clauses
including liquidated damages were permitted.
32. The requests for relief of the Club were the following:
a. The termination agreement is valid and enforceable and therefore the Club does
not have to pay any amount to the Player;
failing this, the Club lodges a counterclaim, requesting as follows:
b. The Player is to be found to have terminated the employment contract with the
Club unilaterally;
c. The Player is ordered to pay not only a compensation to the Club in the amount
of EUR 50.000 but also all the legal costs incurred by the Club and fees as well as
any cost related to the present procedure;
d. Sporting sanctions shall be imposed on the Player for terminating the contract
without just cause within the protected period (art. 17.3 FIFA RSTP);
e. Sporting sanctions and solidarity responsibility shall be imposed on any club that
hires the Player following the unlawful breach of contract (art. 17.4 FIFA RSTP) and
therefore the present counterclaim shall be also directed to Sydney Football Club;
f. The decision shall be executed in accordance with art. 24bis FIFA RSTP and shall
already include a decision about the consequence of the Player failure to pay the
amount according to the request of relief no 3.
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c. Claimant’s position to the counterclaim
33. The Player rejects the Club’s counterclaim and reiterates her stance which was outlined in
the original claim.
34. Furthermore, the Player adds the following in response to the counterclaim lodged by the
Club:
a. The Club had no interest in retaining the Player’s services, insofar as the former
failed to register the contract with the Portuguese Football Federation, prevented
the Player from raining with the team, as well as not attempting to procure the
International Transfer Certificate (ITC) following the execution of the employment
contract.
b. The Player submitted evidence in the form of WhatsApp messages exchanged
between herself and the Club, in which she was told that the Club no longer
intended to continue the contractual relationship due to its disappointment with
the Player’s performance;
c. Furthermore, the Player rejects the allegations that she breached the employment
contract by arriving on 16 September 2020, nine (9) days after the term of the
contract commenced. The Player’s arrival in Portugal on 16 September 2020 was
the result of the delay by the Club confirming her flights from Australia to Portugal.
The Player reiterates that, by virtue of the Declaration appended to the
employment contract, the Club was responsible for arranging her flights from
Australia to Portugal.
d. Additionally, the Player enclosed evidence that the Club was only able to confirm
the Player’s flights on 10 September 2020, whereby she departed Brisbane on 15
September 2020 and arrived in Porto on 16 September 2020. The receipts for these
airfares were enclosed as well. At the time the Club was arranging the flights, there
were significant restrictions in place for international travel and a shortage of
available flights due to the COVID-19 pandemic.
e. The Player also stated that, at no time prior to the Club submitting the
counterclaim had it alleged that the Player breached the contract by arriving in
Portugal on 16 September 2020”.
f. Lastly, the Player added that, in case the Dispute Resolution Chamber would
consider that she terminated the contract without just cause, the amount of
compensation requested by the Club in its counterclaim is excessive, taking into
account the global remuneration under the contract. As such, the Player states
that the maximum amount which she should be liable to pay in such an event
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would be EUR 8,890.08. In respect to this, she submits that Sydney FC should be
held jointly liable and no sporting sanction would be imposed on the player.
d. Sydney FC’s position to the counterclaim
35. Sydney FC did not present its comments regarding the counterclaim of the Club.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. 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 2 June 2021 and submitted for decision on
24 February 2022. Taking into account the wording of art. 34 of the October 2021 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.
37. 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 lit. b) of the
Regulations on the Status and Transfer of Players (edition August 2021), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Australian player
and a Portuguese club, with the involvement of an Australian club.
38. 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 (August 2021 edition) and
considering that the present claim was lodged on 2 June 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
39. 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
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40. 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
41. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the employment contract
was validly terminated by way of a termination agreement purportedly signed on 7 October
2020, and if so, what the consequences of such circumstance would be.
42. First of all, the members of the Chamber deemed that it was of particular significance to
establish that the Player categorically denies having signed any termination agreement
whatsoever, in particular the one which she allegedly received in an envelope on 25 October
2020, as well as pointing out that the signature on the employment contract signed on 7
September 2020 differed substantially to the one on the purported termination agreement.
43. The members of the Chamber also deemed that it was of particular significance to establish
that the Player presented evidence in the form of messages interchanged by the parties which
highlight that the Club was no longer interested in the Player’s services.
44. In this respect, the Chamber deemed appropriate to remind the parties that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the
one of alleged falsified signatures of documents, and that such affairs fall into jurisdiction of
the competent national criminal authority.
45. After a thorough analysis of the evidence provided by the parties, the Chamber concluded
that, in spite of the technical remarks made by the Club, the evidence on file suggests that
the Player did not sign the purported termination agreement. In this respect, the DRC
confirmed that in light of the (significant) differences in the Player’s signature when
comparing the termination agreement and the other documents on file, the Club could not
discharge its burden of proof that the termination agreement was validly executed. On this
note, the Chamber furthermore highlighted that the factual circumstances of the case equally
did not support the Club’s position.
46. Consequently, the DRC decided that the termination agreement could not be deemed as
validly executed.
47. Turning to the substance of the matter at hand, more precisely, whether or not the Player
terminated the contract without just cause, as a result of the purported termination
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agreement being invalid, the members of the Chamber deemed that the following points
were of particular significance:
a. The Club failed to register the Player more than one month after the contract was
signed;
b. the messages submitted by the Player show that the Club was not satisfied with
the Player’s level of performance;
c. the alleged absence of the Player between 7 September 2020 and 16 September
2020 was due to the failure of the Club to arrange the tickets as contractually
agreed upon; and
d. the Club never sent any warning to the Player requesting her to resume her duties,
or imposing any disciplinary sanctions.
48. In this context, the Chamber determined that the Player did not terminate the contract
without just cause, and therefore rejected the counterclaim submitted by the Club.
ii. Consequences
49. The foregoing having been established, the members of the Chamber moved to the substance
of the matter, and took note of the fact that the parties strongly dispute the payment of
certain financial obligations by the Club as per the contract, namely the salaries for the
months of September 2020, October 2020 and the pro rata part of the salary for the month
of November 2020, until the Player signed a new contract with Sydney FC.
50. In this context, the Chamber 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 Club and, if so, whether the latter had a valid justification for not having complied
with its financial obligations.
51. The Chamber first noted that in the case at hand the Club bore the burden of proving that it
indeed complied with the financial terms of the employment contract concluded between
the parties.
52. Nonetheless, the Chamber noted that the Club did not provide any evidence to comfortably
proof the payment of the amounts claimed as outstanding by the Player. Furthermore, no
reasonable justification was presented by the Club for not having complied with the terms of
the contract. In particular, the argument presented by the Club that the Player should have
been at the premises of the Club as from 7 September 2020, but only arriving on 16
September 2020, as well as the allegation that the player was relying on unproven allegations
of repudiation on the Club’s side were both considered insufficient by the DRC.
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53. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Club is held liable to pay the Player the outstanding amounts deriving from the contract
concluded between the parties, namely EUR 2,341 (i.e. 2 times EUR 889 in respect of the
salary for the months of September 2020 and October 2020, plus EUR 563 in respect of the
pro rata part of the salary for the month of November 2020) plus AUD 4,816.68 (in respect
of the airfares from Portugal to Australia).
54. 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 the outstanding
amounts as follows:
a. 5% interest p.a. on the amount of EUR 889 from 5 October 2020 until the date
of effective payment;
b. 5% interest p.a. on the amount of EUR 889 from 5 November 2020 until the date
of effective payment;
c. 5% interest p.a. on the amount of EUR 563 from 5 December 2020 until the date
of effective payment.
55. The DRC further remarked that the Player did not request application of interest on the
airfares sought, and thus no interest was to be awarded.
iii. Compliance with monetary decisions
56. Finally, taking into account the applicable Regulations, the Chamber 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.
57. In this regard, the DRC 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.
58. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
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59. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
60. The DRC 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.
61. Lastly, the DRC wished to remark that while the Player lacks standing to sue regarding the
imposition of sanctions under the scope of art. 12bis of the Regulations, it ex officio did not
deem that any sanctions were in order in light of the specific circumstances of the case and
more in particular the issues surrounding the termination agreement.
d. Costs
62. 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.
63. 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.
64. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
▪
1.
The claim of the Claimant/Counter-Respondent, Allira Jean Patricia Toby, is partially accepted.
2.
The Respondent/Counter-Claimant, FC Famalicao, has to pay to the Claimant/CounterRespondent, the following amounts:
- EUR 889 as outstanding remuneration plus 5% interest p.a. as from 5 October 2020 until
the date of effective payment;
- EUR 889 as outstanding remuneration plus 5% interest p.a. as from 5 November 2020
until the date of effective payment;
- EUR 563 as outstanding remuneration plus 5% p.a. from 5 December 2020 until the date
of effective payment; and
- AUD 4,816.68 as outstanding remuneration.
3.
Any further claims of the Claimant/Counter-Respondent are rejected.
4.
The counterclaim of the Respondent/Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
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/Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid. The maximum
duration the ban shall be of 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.
7. The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
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