Labour Disputes
Texto da decisão
REF 20-00118
Decision of the
Dispute Resolution Chamber
passed on 22 October 2020
regarding an employment-related dispute concerning the player Davi Wanderley Silva
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Angela Collins (Australia), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Davi Wanderley Silva, Brazil
Represented by Maciej Krzeminski
RESPONDENT:
FKS Stal Mielec, Poland
Represented by A&M Kancelaria Adwokacka
Page 2 of 12
REF 20-00118
I.
Facts
1. On 11 February 2019, the parties concluded an “Agreement on Professional Football
Playing” valid as from the date of signature until 31 December 2019.
2. According to §2.1 of the contract, the player was entitled to a basic salary of PLN 10,000
net payable in arrears by the 15th day of each month.
3. In addition §2.2 of the contract stipulated that the player was entitled to the following:
“Equivalent to washing and using your own clothing and working footwear for the entire
duration of the contract, payable to the 15th day of the following month in the amount
of PLN 1000.00 (one thousand zlotys) paid in the form of reimbursement, i.e. in gross
amounts = net. Player is entitled to obtain this equivalent, provided only when the Player
is a member of the first senior team.”
4. Furthermore, §2.3 of the contract stipulated that the player was entitled to the following:
“The club is obliged to pay to the player a bonus for the 100% attendance on the training,
sparring, friendly games, official matches paid down to the 15th of next month in the
amount of PLN 2000,00 net (in words: two thousand zlotys net). Absence can be justified
by an injury or disease documented by a doctor. In the event of failure to meet the above
conditions, §3 section 3 of the contract will apply accordingly”
5. Art. V par. 7 of the contract stipulated that, “in the event of a player’s violation of
confidentiality provisions, irrespective of the possibility of the club to claim compensation
on general terms, the club is entitled to impose a contractual financial penalty in the
amount of PLN 50,000 for each event”.
6. Art. 6 par 3 of the contract stipulated the following:
“3. All disputes regarding the validity, existence or termination of the contract as well as
disputes over property rights or non-proprietary rights will be resolved by the Football
Arbitration Court at the PZPN.”
7. On 5 December 2019, the player sent a default notice to the club, requesting the payment
of the total amount of PLN 78,000 net as outstanding remuneration (i.e. 13,000*6, from
June 2019 until November 2019, plus “statutary interest” as from the 16th day of each
month.
8. On 10 January 2020, the Claimant lodged a claim against the Respondent for outstanding
remuneration and requested the following:
“to order the Respondent to pay to the Claimant the amount of 78.000 PLN with interests
as follows:
1. from the amount 13000 PLN from 16th July 2019 until the day of payment
2. from the amount 13000 PLN from 16th August 2019 until the day of payment
3. from the amount 13000 PLN from 16th September 2019 until the day of payment
Page 3 of 12
REF 20-00118
4. from the amount 13000 PLN from 16th October 2019 until the day of payment
5. from the amount 13000 PLN from 16th November 2019 until the day of payment
6. from the amount 13000 PLN from 16th December 2019 until the day of payment.”
9. In its reply to the claim, the club stated that “according to paragraph 6 art. 3 this dispute
should be contributed to Pilkarski Sad Polubowny (Football Mediation Court) in PZPN .”
10. In this respect the club provided a copy of the Statutes of the Polish FA, which establish,
inter alia, the following:
Article 48 –The composition of the PZPN Football Court
§ 1.PZPN Football Court shall be composed of 25 –27 arbitrators, appointed and dismissed
by the Executive Committee of PZPN.
§ 2.The disputes submitted to the PZPN Football Court shall, in first instance, be examined
and settled by three-person adjudicating panels. Each party shall designate one arbitrator
from the list of Football Court members, and the two appointed arbitrators shall elect the
Chairman of the panel (mediator) from this list.
§ 3.A party may submit within fourteen days from the delivery of the decision with grounds
a request for a new examination of a case by a group of five new arbitrators. Each party
shall two arbitrators, who will select the mediator.
§ 4.The PZPN Football Court is a permanent court of arbitration within the meaning of
article 1158 of the act dated 17th November, 1964 -the Code of Civil Procedure (Journal of
Law No. 43, position 296, with subsequent amendments) and operates under articles 11541217 of the aforementioned code. § 5.A state judge may not be a member of the Football
Court.
§ 6.The current activity of the PZPN Football Court is managed by its Praesidium, which
includes the chairman, deputy chairmen, secretary and 2 members selected by the
arbitrators.
11. The club stated that, “the Player concealed that he did not have a valid work permit and
therefore the signed contract could not be performed -he was suspended from execution
of the contract until obtaining the work permit.”
12. In view of the above, the club stated that it could not pay the player’s remuneration,
because it would be exposed not onlv to disciplinary liability towards the PZPN bodies but
also to penal and fiscal liability.
13. The club thereafter explained that, as from 15 May 2019, the player was legally allowed to
work in Poland.
14. Within this context, the club explained that it paid the player as follows:
May 2019 - PLN 6500 – “the Player has permission to work from 15th May 2019”
June 2019 - PLN 3000
July 2019 - PLN 10,000 – “the Player was playing for the second team, so he was not able
to obtain the additional equivalent for participation in first team training and obtain the
equivalent for using own clothing and footwear”
August 2019 – PLN 10,000 – “the Player was playing for the second team, so he was not
able to obtain the additional equivalent for participation in first team training and obtain
the equivalent for using own clothing and footwear”
Page 4 of 12
REF 20-00118
September 2019 – PLN 10,000 - “the Player was playing for the second team, so he was not
able to obtain the additional equivalent for participation in first team training and obtain
the equivalent for using own clothing and footwear)
October 2019 –PLN 11,500 – “The player was member of the second team from the 1st do
14th October, after he was member of the first team”
November 2019 - PLN 13,000 – “The Player was member of the first team until 25th
November”
December 2019 – “The Player was absence through the 10 training session without any
justification”.
15. In support of said payment, the Club attached a report from “Alior Bank” in Polish only,
exposing the following payments since July 2019 and for the total amount of PLN 31,000.
16. The club further requested the payment of PLN 50,000 for “violation of confidential
provisions” in accordance with art. 5 par.7 of the contract.
17. In support of its allegations concerning the absences, the club submitted a report from the
coach.
18. The Claimant was invited to reply to the club’s response.
19. As to the competence, the player argued that the Polish NDRC does not provide equal
representation of players and clubs, and referred to Chapter VI of the PZPN Statutes.
20. In this respect, the Claimant considered that, as to the work permit, it is the responsibility
of the future employer to obtain a work permit for a foreigner,
Page 5 of 12
REF 20-00118
21. Moreover, the Claimant underlined that the contract’s validity was not made conditional
to obtaining a work permit. As a result, the Claimant considered that the Club's failure to
obtain a work permit is an obstacle caused by the Club in fulfilling its contractual
obligations, which should not affect the Player's right to receive remuneration.
22. As to the alleged payments, the player considered that the Club has not provided reliable
and credible data to conclude that it has paid the Player's remuneration and allowances
for the period from June 2019.
23. In relation to the salary deductions occurred due to the move to the second team, the
player underlined that the contract itself does not state on what terms the transfer to
second team should take place and that the club “clearly did so in order to reduce the
remuneration due to the Player for benefits due to the equivalent or reward for training·”.
24. According to the player, he was moved to the second team in December 2019, i.e. at the
end of the contract, when a dispute arose regarding the payment of overdue
remuneration.
II. Considerations of the Dispute Resolution Chamber
1. 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 submitted to FIFA on 10 January 2020.
Taking into account the wording of art. 21 of the November 2019 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2. Subsequently, the members of the Chamber referred to art. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players the Dispute Resolution Chamber shall
adjudicate on employment-related disputes between a club and a player that have an
international dimension.
3. As a consequence, the DRC would, in principle, be competent to decide on the present
litigation which involves a Brazilian player and a Polish club regarding an employmentrelated dispute.
4. However, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies alleging that the competent body to deal with any dispute deriving
from the relevant employment contract is the “Pilkarski Sad Polubowny (Football
Mediation Court) in PZPN”.
5. On the other hand, the Chamber noted that the Claimant insisted on the competence of
the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.
6. Taking into account all the above, the Chamber emphasised that in accordance with art.
22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal
Page 6 of 12
REF 20-00118
with a matter such as the one at hand, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal representation of
players and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the standards to be
imposed on an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
members of the Chamber referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January
2008.
7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic
conditions that needs to be met in order to establish that another organ than the DRC is
competent to settle an employment-related dispute between a club and a player of an
international dimension, is that the jurisdiction of the relevant national arbitration
tribunal or national court derives from a clear reference in the employment contract.
8. Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute contained a clear jurisdiction
clause.
9. In this respect, the Chamber recalled that clause 6 par. 3 of the contract stipulated that “3.
All disputes regarding the validity, existence or termination of the contract as well as
disputes over property rights or non-proprietary rights will be resolved by the Football
Arbitration Court at the PZPN.”
10. Thus, in principle, the Chamber understood that said clause appears to be sufficiently clear.
11. However, in relation to the outlined requirements of art 22 lit. b) concerning the
composition of the aforementioned body, referred to of the contents of art. 12 par. 3 of
the Procedural Rules, according to which “any party claiming a right on the basis of an
alleged fact shall carry the burden of proof”.
12. In this respect, and after duly examining the documentation on file, the Chamber noted
that the Respondent failed to provide clear and specific information concerning the
composition of said decision-making body. In particular, the Chamber understood that the
Respondent was unable to provide evidence that clubs and players were able to exercise
equal influence over the compilation the arbitrators’ list of the Polish Football Court of
Arbitration.
13. As a result, the Chamber could not confirm that the aforementioned body guarantees
guaranteeing fair proceedings and respects the principle of equal representation of players
and clubs,
14. On account of all the above, the Chamber established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected, and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as to the
substance.
Page 7 of 12
REF 20-00118
15. In continuation, the Chamber analyzed which edition of the Regulations on the Status and
Transfer of Players should be applicable as to the substance of the matter. In this respect,
the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (edition October 2019) and, on the other hand, to the fact
that the present claim was lodged on 10 January 2020. Therefore, the Dispute
Resolution Chamber concluded that the October 2019 edition of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
16. The competence of the Chamber and the applicable regulations having been established,
and entering into the substance of the matter, the Chamber continued by acknowledging
the above-mentioned facts as well as the documentation contained in the 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.
17. In this respect, the Chamber noted that, on 11 February 2019, the parties concluded an
“Agreement on Professional Football Playing” valid as from the date of signature until 31
December 2019.
18. Subsequently, the Chamber noted that, on 10 January 2020, the Claimant lodged a claim
against the Respondent for outstanding remuneration and requested the following:
“to order the Respondent to pay to the Claimant the amount of 78.000 PLN with interests
as follows:
1. from the amount 13000 PLN from 16th July 2019 until the day of payment
2. from the amount 13000 PLN from 16th August 2019 until the day of payment
3. from the amount 13000 PLN from 16th September 2019 until the day of payment
4. from the amount 13000 PLN from 16th October 2019 until the day of payment
5. from the amount 13000 PLN from 16th November 2019 until the day of payment
6. from the amount 13000 PLN from 16th December 2019 until the day of payment.”
19. Within this context, the Chamber recalled: that the contract stipulated the following
economic conditions:
§2.1: ,Basic salary of PLN 10,000 net payable in arrears by the 15th day of each month.
§2.2: “Equivalent to washing and using your own clothing and working footwear for the
entire duration of the contract, payable to the 15th day of the following month in the
amount of PLN 1000.00 (one thousand zlotys) paid in the form of reimbursement, i.e. in
gross amounts = net. Player is entitled to obtain this equivalent, provided only when the
Player is a member of the first senior team.”
§2.3 of the contract: “The club is obliged to pay to the player a bonus for the 100%
attendance on the training, sparring, friendly games, official matches paid down to the
15th of next month in the amount of PLN 2000,00 net (in words: two thousand zlotys net).
Absence can be justified by an injury or disease documented by a doctor. In the event of
failure to meet the above conditions, §3 section 3 of the contract will apply accordingly”
20. As a result, the Chamber concurred that, in principle, the player was entitled to a monthly
salary of PLN 13,000.
Page 8 of 12
REF 20-00118
21. Conversely, the Chamber observed that, in this respect, the club attached a report from
“Alior Bank” in Polish only.
22. In this regard, the DRC recalled the basic principle of the burden of proof, as stipulated in
art. 12 par. 3 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. Similarly, the Chamber
referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates that all documents
of relevance to the dispute shall be submitted in the original version as well as translated
into one of the official FIFA languages.
23. In this context, the DRC noted that the Respondent did not provide a translated version of
the documents it submitted in Polish. In view of the foregoing and taking into
consideration art. 9 of the Procedural Rules, the DRC decided that it could not take into
account the documents which have not been made available in an official FIFA language.
24. Therefore, the Chamber decided that the documents as presented by the Respondent could
not be considered.
25. Moreover, the Chamber noted that the Respondent argued that the player was entitled to
a monthly salary of PLN 10,000 (and not PLN 13,000) since “the Player was playing for the
second team, so he was not able to obtain the additional equivalent for participation in
first team training and obtain the equivalent for using own clothing and footwear”
26. In this respect, the Dispute Resolution Chamber reminded the parties of the contents of
art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on
the basis of an alleged fact shall carry the burden of proof”.
27. After duly examining the documentation on file, the Chamber understood that the
Respondent failed to provide sufficient evidence in support of its argumentation in this
regard. As a result, the Chamber dismissed the Respondent’s allegations in this respect.
28. In view of all of the above, the Chamber could only presume that the amount of PLN
78,000, corresponding to his remuneration between June 2019 and November 2019,
remained outstanding (i.e. PLN 13,000*6).
29. As a result, in accordance with the principle of pacta sunt servanda, the Chamber
established that the Respondent shall pay to the claimant, the outstanding amount of PLN
78,000, as contractually provided.
30. In addition, and taking into account the jurisprudence of the DRC and the request of the
Claimant, the Chamber decided to award 5% interest p.a. over the relevant due dates (i.e.
the day following the “15th day of the following month”, as indicated in the contract)
31. Subsequently, the Chamber noted that the club requested requested the payment of PLN
50,000 for “violation of confidential provisions” in accordance with art. 5 par.7 of the
contract.
32. In this respect, the Chamber observed that the contract Art. V par. 7 of the contract
stipulated the following:
Page 9 of 12
REF 20-00118
“in the event of a player’s violation of confidentiality provisions, irrespective of the
possibility of the club to claim compensation on general terms, the club is entitled to
impose a contractual financial penalty in the amount of PLN 50,000 for each event”.
33. After duly examining the contents of the aforementioned clause, the Chamber
unanimously considered that its contents appear to be arbitrary in their very own nature.
In addition, the Chamber also considered that the Respondent failed to provide specific
evidence to support that the player breached any confidentiality rule.
34. As a result, the Chamber rejected the Respondent’s request in this regard.
35. Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 and 2 of art. 24bis 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.
36. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
37. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the Respondent does not pay the amounts due to the Claimant within 45
days as from the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
38. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.
Page 10 of 12
REF 20-00118
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Davi Wanderley Silva, is admissible.
2.
The claim of the Claimant, is partially accepted.
3.
The Respondent, FKS Stal Mielec, has to pay to the Claimant, the following amount:
- PLN 78,000 as outstanding remuneration plus 5% interest p.a. as from the due dates
until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 11 of 12
REF 20-00118
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 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
Page 12 of 12