Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 4 June 2020,
in the following composition:
Clifford Hendel (USA/France), Deputy Chairman
Elv is Chetty (S eychelles ), member
Tom is lav Kas alo (Croatia), member
on the claim lodged by the player,
Júlio Ces ar Vaz de Andrade, Brazil,
represented by Messrs Cassiano Neves & Morais Palmeiro
as Claimant
against the club,
Manam a Club, Bahrain,
represented by Mr Tarek Alaimi
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 22 November 2018, the Brazilian player, Mr Júlio Cesar Vaz de Andrade, (hereinafter:
the player or the Claimant) and the Bahraini club, Manama Club (hereinafter: the club or
the Respondent) signed an employment contract (hereinafter: the contract), valid as from
1 January 2019 until 15 May 2022 or the end of the 2021/2022 season, whichever occurred
later.
2.
According to art. 2 of the contract, the Claimant was entitled to the following
remuneration:
(i)
(ii)
(iii)
(iv)
USD 1,200 as monthly salary as from 1 January 2019 until 15 May 2019;
USD 1,500 as monthly salary as from 15 July 2019 until 15 May 2020;
USD 1,700 as monthly salary as from 15 July 2020 until 15 May 2021;
USD 2,000 as monthly salary as from 15 July 2021 until 15 May 2022.
3.
Moreover, the Respondent undertook to make an advance payment of USD 1,000 to the
Claimant “20 days from the date of receipt of player ITC”.
4.
According to art. 5.4 and 5.5 of the contract, the parties could terminate the contract, as
follows:
“5.4: If the Club elects to terminate this contract before its due date, for reasons other
than the ones mentioned in clauses from 5.1 to 5.3 of the contract, the Club must give two
months’ notice to the Player.
5.5: If the Player elects to terminate this contract or receives an offer from any other club
outside Bahrain only before its due date, he must reach to an agreement with the club to
terminate the contract or transfer as Loan to the other club.”
5.
On 15 May 2019, the Respondent sent a WhatsApp message to the Claimant’s
representative, stating that it will “terminate Vaz [the Claimant’s] contact since his
passport is expiring on 25th of May […] and he will be forced to leave Bahrain on 21 May
[…].” The conversation between the Claimant’s representative and the Respondent
continued, the latter confirming that it “will apply the contract”.
6.
On 18 May 2019, the parties allegedly terminated the contract by signing a termination
agreement (hereinafter: the termination agreement). According to the termination
agreement, the Respondent undertook to pay the Claimant an amount of 272 Bahraini
Dinars (BHD) and “the Player confirms the receipt of Cheque #712337 dated 18/05/2019
drawn of BBK and amounting to BD 272.00 (Two Hundred Seventy Two Bahraini Dinar
only)”. In this respect, the termination agreement further stipulated that “both parties
confirm that neither of them has any financial obligations on each other.”
Player Júlio Cesar Vaz de Andrade, Brazil / Manama Football Club, Bahrain
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7.
On 10 June 2019, the Claimant’s representative sent a copy of the Claimant’s renewed
passport to the Respondent and continuously requested updates from the Respondent on
his return to training.
8.
By means of a letter dated 2 September 2019, the Claimant acknowledged receipt of the
payment of BHD 272, made on 18 May 2019 and corresponding to “the salary for the
18 days worked during the month of May 2019”. Moreover, the Claimant indicated that
on 29 August 2019, the Respondent had sent him a copy of the termination agreement. In
this respect, the Claimant “categorically denies having signed any such document and finds
it abhorrent that the Club is suggestion that a person would waiver the right to 3 years of
remunerations in exchange for a partial payment of roughly 720,000$USD. The Player
categorically denies that the signature in the alleged termination is his or was produced
by him.” In these circumstances, the Claimant granted the Respondent 48 hours “to
apologize for the distress caused, to confirm its willingness to maintain the employment
relationship and to issue a plane ticket for the return of the Player to the Club.”
9.
On 6 September 2019, the Respondent asked for a valid power of attorney from the
Claimant’s representative and indicated that it would reply by “Sunday 8th September 2019
because Friday and Saturday are official days in Bahrain”.
10. On 13 September 2019, the Claimant took note of the absence of reply by the Respondent
and stated that he “unequivocally states that that the employment contract entered into
between the Club and himself remains valid and binding, and he expects to resume his
employment with utmost urgency”. As such, the Claimant granted the Respondent “a final
period of 7 days, i.e. until 20 September 2019 to reinstate the Player” and 10 days “to
complete the payment of the salary of July 2019, in the amount of 1.500,00$USD, which
was due on 31 July 2019 and has been outstanding for more than 30 days”. Finally, the
Claimant requested the payment of USD 1,500 as the salary of August 2019 within 15 days.
11. On 17 September 2019, the Claimant reiterated his request and observed that the
Respondent’s behavior was an “undeniable disregard for the Player’s well-being and
professional interest, which constitutes an overwhelming demonstration of the Club’s lack
of interest in the maintenance of the employment relationship between the parties”.
12. On 20 September 2019, the Respondent firmly rejected the charge of forgery with regard
to the signature of the termination agreement. In this respect, the Respondent held that
“the Player has signed the Contract Termination with full awareness and in absolute direct
way” and that “the signature is true and Player has used the same signature on multiple
number of documents as important as the Contract Termination”.
Player Júlio Cesar Vaz de Andrade, Brazil / Manama Football Club, Bahrain
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13. On 23 September 2019, the Claimant terminated the contract with immediate effect,
“based on the Club’s evident lack of interest in the Player’s professional performance, as
well as the continuous breach by the Club of its contractual duties.”
14. On 6 December 2019, the Claimant lodged a claim against the Respondent in front of FIFA.
15. In his claim, the Claimant held that the termination agreement was first provided to him
by the Respondent on 29 August 2019, via a WhatsApp message. In this regard, the
Claimant maintained that he never signed the termination agreement and that such
document is forged. To support his allegations, the Claimant provided evidence allegedly
proving that his various signatures on several official documents are always written in full,
never abbreviated.
16. In these circumstances, the Claimant considered to have terminated the contract with just
cause on 23 September 2019, as the Respondent “considered the Alleged Termination
Agreement to be valid and it had no interest in the Player’s return to Bahrain.”
17. Furthermore, the Claimant deemed that the termination clause set out at art. 5.4 of the
contract should not apply as it “provides for a benefit only towards [the Respondent] with
no corresponding or comparable right in favour of [the Claimant].”
18. In light of the above, the Claimant requested the following:
USD 3,424.19 as outstanding remuneration, corresponding to 16 working days of
July 2019, the monthly salary of August 2019 and 23 working days of September
2019.
USD 53,775.81 as compensation for breach of contract, corresponding to the
residual value of the contract.
19. The Claimant also requested the imposition of sanctions on the Respondent.
20. In its reply to the claim, the Respondent rejected the Claimant’s assertions as to any forgery
and referred to its good faith when concluding the aforementioned termination
agreement.
21. In this respect, the Respondent further referred to various documents, deemed by the
Respondent as “of major importance”, signed by the Claimant with his abbreviated
signature, i.e. identical as in the disputed termination agreement, such as the proof of “no
TPO” signed by the Claimant; the Claimant’s professional statement; the Claimant’s
registration; and, finally the Claimant’s license.
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22. Consequently, the Respondent held that the aforementioned documents confirm the
validity of the Claimant’s abbreviated signature on the termination agreement which, in
addition, has been allegedly duly remitted to the Bahrain FA which confirms, in the
Respondent’s opinion, the validity of said document.
23. Finally, the Respondent held that the Claimant had been duly paid what he was due until
the mutual termination, i.e. 18 May 2019.
24. Upon being requested to provide an original version of the alleged termination
agreement, the Respondent sent said document on 18 March 2020. In addition, the
Respondent also provided “original versions of the salary vouchers acknowledged by the
player”.
25. In light of the above, the Respondent considered that the termination agreement is valid
and as a result, the Claimant’s claim should be rejected. Finally, the Respondent requested
that the Claimant pays its legal costs in the amount of USD 5,000.
II. Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In this respect,
the Chamber took note that the present matter was first submitted to FIFA on 6 December
2019. Consequently, the November 2019 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 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 (March 2020 edition), it is
competent to decide on the present litigation, which concerns an employment-related
dispute with an international dimension between a Brazilian player and a Bahraini club.
3.
Furthermore, the DRC analysed which edition of the Regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that, in accordance
with art. 26 par. 1 and 2 of the Regulations (March 2020 edition) and considering that the
present matter was submitted to FIFA on 6 December 2019, the October 2019 edition of
said Regulations is applicable to the present matter as to the substance.
4.
With the above having been established, the Chamber entered into the substance of the
matter. In doing so, it started to acknowledge the facts of the case as well as the documents
contained in the file. However, the Chamber emphasized that in the following
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considerations it will refer only to facts, arguments and documentary evidence which it
considered pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber firstly acknowledged that it was undisputed that the Claimant
and the Respondent had signed an employment contract on 22 November 2018, valid as
from 1 January 2019 until 15 May 2022 or the end of the 2021/2022 season, whichever
occurred later, and that the Claimant was entitled to the remuneration as set out at points
I./2. and 3. above.
6.
This being said, the Chamber noted that the Claimant and the Respondent disputed the
validity of the termination agreement allegedly concluded between the parties on 18 May
2019.
7.
In this regard, the Chamber took note of the extensive argumentation of all parties and
noted, in particular, that while the Claimant stated that the termination agreement was
forged, as he had never signed it and that he was only presented with a copy on 29 August
2019, the Respondent held that the termination agreement was valid as it had been signed
by the parties in good faith.
8.
In view of the foregoing, the Chamber established that the main issue to be resolved in
the present dispute was to determine whether the parties were indeed bound by a valid
termination agreement or not.
9.
At this point, the Chamber deemed it necessary to recall the content 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 respective burden of proof.
10. Bearing in mind the foregoing, the Chamber recalled that the Claimant argued not to have
signed the termination agreement and accused the Respondent of having forged his
signature on the aforementioned termination agreement.
11. At this stage, the Chamber considered it appropriate to remark that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon, nor do they have sufficient
power and authority to fully investigate and address, matters of criminal law, such as the
ones of alleged falsified signature or documents. Furthermore, the Chamber indicated that
it is not part of its usual practice to appoint handwriting experts and that such questions
of allegedly falsified documents generally must fall into the jurisdiction and expertise of
the competent national criminal authority.
12. The Chamber then recalled that all documentation remitted shall be considered with free
discretion and, therefore, it focused its attention on the termination agreement of 18 May
2019 as well as on other documents containing the Claimant’s signature provided by the
parties in the context of the present dispute. In this regard, the Chamber pointed out that
Player Júlio Cesar Vaz de Andrade, Brazil / Manama Football Club, Bahrain
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the original version of the termination agreement was in fact provided by the Respondent,
following a request of FIFA.
13. In this respect, the Chamber noted the Claimant’s position that he always used his name
written in full as a signature on official documents and that he never used an abbreviated
signature. On the other hand, the Chamber pointed out that the Respondent referred to
other documents “of major importance”, signed by the Claimant with his abbreviated
signature.
14. On the basis of its appreciation of the aforementioned documents, in particular, comparing
the relevant signatures of the Claimant in the various documents provided in the present
case, the DRC was obliged to conclude that, at least from a layman’s perspective, the
signatures on such documents appear on a prima facie basis to be the same.
15. In view of all of the above, i.e., the burden of proof on the Claimant to prove the alleged
forgery of his signature, the inherent limitations of the Chamber’s investigative powers,
and its review of the documentation at its disposal, the Chamber concluded that it was
constrained to deem the termination agreement as a valid contractual document
concluded between the Claimant and the Respondent on 18 May 2019.
16. In this context, the Chamber pointed out that with regard to the burden of proof set out
at art. 12 par. 3 of the Procedural Rules, it could have been expected that the Claimant
provides expert statements or further examples of his signature.
17. In continuation, the Chamber observed that pursuant to the termination agreement, the
Respondent undertook to pay the Claimant the amount of 272 Bahraini Dinars (BHD) and
that the Claimant confirmed having received said amount. Furthermore, the Chamber
referred to the final part of the termination agreement, according to which “both parties
confirm that neither of them has any financial obligations on each other.”
18. In light of all of the aforementioned considerations, the DRC came to the conclusion that
the conditions set out in the termination agreement had been fulfilled and as a result, the
request of the Claimant for the payment of outstanding remuneration and compensation
for breach of contract had to be rejected.
19. Consequently, the DRC concluded its deliberations in the present matter by establishing
that the claim lodged by the Claimant is rejected.
Player Júlio Cesar Vaz de Andrade, Brazil / Manama Football Club, Bahrain
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III. Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Júlio Cesar Vaz de Andrade, is rejected.
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Note related to the publication:
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Players’ Status Committee and the Dispute Resolution Chamber).
Note relating 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). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days
following the expiry of the time limit for filing the statement of appeal, the appellant shall file
a brief stating the facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Júlio Cesar Vaz de Andrade, Brazil / Manama Football Club, Bahrain
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