Labour Disputes
Texto da decisão
REF FPSD-7998
Decision of the
Dispute Resolution Chamber
passed on 8 March 2023
regarding an employment-related dispute concerning the player Jacsson
Antonio WICHNOVSKI
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
André dos Santos Megale (Brazil), member
Khadija Timera (Senegal), member
CLAIMANT:
Jacsson Antonio WICHNOVSKI, Brazil
Represented by Carlos Eduardo LICKS FLORES
RESPONDENT:
Club AREMA FC, Indonesia
REF FPSD-7998
I. Facts of the case
1.
On 3 May 2021, the Indonesian club, Arema FC (hereinafter: the Respondent) made an offer
(hereinafter: “the offer”) to the Brazilian player, Jacsson Antonio Wichnovski (hereinafter: the
Claimant), which inter alia, stipulated the following:
“With The Official Offer:
1. 10 Month Contract in Indonesian League 2021 and Tournament based on:
Salary: 4000 USD/month (Rp. 56.000.000, ·(fifty Six Million Rupiah)/month) for 10 month So the
total value of the contract is 40000 USD (Rp. 560,000,000, · (Fifty Six Hundred Million Rupiah))
2. Winning bonuses in accordance with the provisions of the dub
3. Ticket Brazil -Malang -Brazil for one person
4. Home & Car
5. Working & Stay Permit During Contract
In this Invitation Letter we provide confirmation or condition that :
1. This Offer Letter is not a formal letter of Contract Agreement
2. This Offer letter is valid if there is a decision on the progress of the competition or tournament.
3. If this Offer letter is approved, then all will be written in Rupiah when the contract Is signed
4. A letter of Offering and is approved if the PSSI or the Competition Operator declares that the
player has passed the verification in accordance with applicable regulations”
2.
According to the Claimant, he was informed “that the Respondent had broken its contract
promise.”
3.
No prior default notice was sent to the Respondent, or any form of correspondence is on
file.
4.
The Claimant provided the following information regarding his contractual situation:
Esporte Clube Internacional:
- Duration of the contract: 08/10/2021 to 09/27/2021 (attached early termination)
- estimated monthly salary in dollars: U$D 290.00 (two hundred and ninety dollars) in
Brazilian reais: R$ 1,500.00
Clube Atlético Patrocinense:
- Duration of the contract: 01/14/2021 to 04/14/2021
- estimated monthly salary in dollars: U$D 234.00 (two hundred and thirty four dollars)
in Brazilian reais: R$ 1,212.00
REF FPSD-7998
II. Proceedings before FIFA
5.
On 26 October 2022, 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
6.
According to the Claimant, he spent more than 1 month dealing with his transfer to
Indonesia and at the request of the Respondent, provided his visa for regular entry into the
country.
7.
The Respondent is therefore in breach of contract and is liable to pay compensation to the
Claimant.
8.
The requests for relief of the Claimant, were the following:
(a) to order the Respondent to pay him compensation in the amount of USD 40,000, plus
interest of 1% per month
(b) to impose sanctions and penalties on the Respondent.
(c) to order the Respondent to pay fees to the player’s lawyer, at a minimum of 10% of the
amount due
b. Position of the Respondent
9.
In its reply to the claim, the Respondent indicated the following:
-
“there has never been any official communication or agreement between the Claimant and
Respondent relating to Player Contracts, Work Permits or Transportation Tickets for departure
from the Claimant's domicile to the Respondent’s Club;
the Respondent never received information regarding the appointment of an agent from the
Claimant to continue the Player Contract agreement process,
that the Claimant for the duration of the 2021 competition is still a player in the Gaúcho 1
competition in Brazil;
the Claimant submitted the facts in April 2021 then the lawsuit was filed in June 2022, whereas
at that time or period, the Claimant had the status of a club player in Brazil”.
-
10. In the view of foregoing, the Respondent respectfully requests the FIFA DRC:
(a) Declaring a Letter of Offer, is not proof that the player has a contract with the Club and or an
agreement between the Player and the Club
(b) Declare the Claimant's Lawsuit unacceptable
(c) Reject the Claimant's lawsuit in its entirety.
REF FPSD-7998
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 26 October 2022 and submitted
for decision on 8 March 2022. 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.
12. 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 (October 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 Indonesia.
13. 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 (October 2022 edition) and
considering that the present claim was lodged on 26 October 2022, 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
14. 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
15. 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.
REF FPSD-7998
i. Main legal discussion and considerations
16. The foregoing having been established, the Chamber noted that the parties’ first
fundamental disagreement is whether the document submitted by the Respondent to the
Claimant on 3 May 2022 can be considered a valid and binding employment contract.
17. The Chamber turned its attention to the documentation brought forward by the parties
and noted that the Respondent did not deny that it submitted an offer to the Claimant, it
however argued that there has never been any official communication with the Claimant
regarding finalisation of the player contract, work permit or transportation tickets.
18. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence
which dictates that, in order for an employment contract to be considered valid and
binding, 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.
19. After thoroughly analysing the documentation on file, the Chamber noted that the essential
elements of a contract described above are indeed present in the legal document allegedly
concluded by the parties (i.e., the offer), dated 3 May 2021. In particular, the Chamber
highlighted that the document, provides for, the parties, the duration, the signatures of
both parties as well as the agreed obligations of the parties, particularly the remuneration
and benefits. It therefore seems that the offer, dated 3 May 2021 clearly represented the
basis of an employment relationship.
20. Considering the foregoing, the Chamber understood that while the Claimant and
Respondent indeed had a valid and binding employment contract in place, neither of the
parties started to execute it. In this regard the Chamber remarked that the Claimant never
started providing his football playing services to the Respondent, as he never arrived in
Indonesia, and the Respondent on the other hand never paid any salaries to the Claimant.
21. Moreover, the Chamber remarked that the Claimant failed to provide any evidence
indicating that he attempted to contact the Respondent for a period of more than one year
(3 May 2021 until 26 October 2022 i.e., date of lodgement of claim), furthermore there are
no evidence on file indicating that the Claimant tried to reach out to the Respondent to
offer his services or any exchange of correspondence between the parties regarding the
execution of the contract. Additionally, the Chamber recalled that the Claimant failed to
submit any corroboration proof of correspondence or communication with the
Respondent in particular information on how he was informed that the Respondent “broke
its contract promise”.
22. The Chamber referred to art. 13 par. 5 of the Procedural Rules, according to which a party
that asserts a fact has the burden of proving it and deemed that the Claimant failed to meet
his burden of proof in support of his claim and arguments.
REF FPSD-7998
23. With the above in mind and after having carefully analysed the parties’ submissions, the
Chamber concluded that the parties mutually departed from the execution of the
employment contract and, consequently, there is no entitlement to any potential
compensation in the present matter.
24. Consequently, the DRC decided to reject the claim of the Claimant.
d. Costs
25. 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.
26. 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.
27. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-7998
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jacsson Antonio WICHNOVSKI, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-7998
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).
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