Labour Disputes
Texto da decisão
REF FPSD-3405
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Heberty
Fernandes de Andrade
COMPOSITION:
DE WEGER, Frans (The Netherlands) , Chairperson
MOHAMED AL-NOAIMI, Dana (Qatar), member
VAN GAALEN, Johan (South Africa), member
CLAIMANT:
Heberty Fernandes de Andrade, Brazil
Represented by Marcelo Amoretti
RESPONDENT:
Port FC, Thailand
Represented by Christophe Larrouilh
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I.
Facts of the case
1.
On 1 June 2018, the Brazilian player Heberty Fernandes de Andrade (hereinafter: the player
or the Claimant) and the Thai club SCG Muangthong United Football (hereinafter:
Muangthong), signed an employment contract valid until 30 November 2020 (hereinafter:
the Employment Agreement).
2.
Clause 2 of the Employment Agreement reads inter alia as follows:
“2. Salaries, Wages and Other Benefits
2.1 Salary: 30,720,000 per year which is 2,560,000 baht net (without Tax) per month will be
paid on monthly basis at the end of each month. Daily calculation may be applied for the
period that the player is not on contract for the full month.
2.2 The use of an apartment or house during the stay in Thailand that meets the needs and
requirements of the player and his family which the club will subsidize the housing allowance
for 25,000 baht per month. The residence will not be further than 15 km from the training
ground.
2.4 A sedan car (Toyota Camry or Honda Accord) with fully maintenances
2.5 Five round trip air ticket per year between Brazil and Bangkok for the player and family
(4 Business class tickets+ 1 economy ticket for each year of the contract)
2.6 Health Insurance for the player and his wife to cover during the contract period”
3.
On 10 December 2019, the Claimant, Muangthong and the Thai club Port FC (hereinafter:
the club or the Respondent), signed a Loan Agreement (hereinafter: the Loan Agreement)
pursuant to which the parties agreed the temporary transfer of the Claimant to the
Respondent for the period of 15 December 2019 to 30 November 2020.
4.
Clause 3 of the Loan Agreement reads as follows:
“3. "Player" has the right to receive his total salary and benefits stated in the contract signed
with “Muangthong" on 1 June 2018 and to be paid by "Thaiport" until end of this loan
agreement.”
5.
On 7 May 2020, the Claimant and the Respondent signed a modification to the Employment
Agreement (hereinafter: the Modification Agreement).
6.
According to the Modification Agreement, “the employee monthly salary will be reduced to
THB 2,060,000 per month for the period from 1 April 2020 to 30 November 2020.”
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II. Proceedings before FIFA
7.
On 24 August 2021, 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
8.
According to the Claimant, the Respondent sent him to a hotel and when the Claimant
checked out, the hotel bill had not been paid by the Respondent. The Claimant stated he had
paid the hotel bill in the amount of THB 73,232.10.
9.
The Claimant further submits that his wife had to undergo medical treatments and thus he
had to pay medical bills in the amount of THB 99,188.49.
10. The Claimant submits that the total expenses he incurred amount to THB 172,511.59.
11. The Claimant argues that article 2.2 and 2.6 of the Employment Agreement, respectively,
stipulated that Muangthong had the obligation to pay to the Claimant the costs for an
apartment, as well as the medical insurance. The Claimant argues that this obligation was
transferred from Muangthong to the Respondent in the Loan Agreement, as per its clause 3.
12. The Claimant submits that on 11 April 2020, the Respondent forced all players to sign a
document, called “Voluntary Salary Reduction”, in which the players agreed to reduce 30%
their salaries, for the period of April 2020 and December 2020 or until the contract expires,
whichever comes first. However, the Claimant confirmed he did not sign this document.
13. On the other hand, the Claimant argues that the Respondent forced him to sign the
Modification Amendment. The Claimant states that he was “coerced to accept this
reduction”. In support of this allegation, he provided an audio recording of a conversation
between the Claimant and a representative of the Respondent in which according to the
Claimant, the Respondent “threatened the Claimant to accept the reduction, otherwise the
Respondent would suspend the payment of the Claimant’s salary”.
14. The Claimant further submits that the Respondent did not attempt to reach a mutual
agreement with its employees and did not negotiate, imposing its conditions unilaterally.
15. The Claimant’s requests for relief are the following:
“the present is to request FIFA, through its competent body, to:
a) condemns the Respondent to pay to the Claimant the amount of THB 172,511.59, as
reimbursement of the amounts spent by the Claimant for the hotel and medical costs;
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b) not recognize the “Modification to Employment Agreement” signed by the Claimant,
regarding the reduction on Claimant’s salary, having in mind was not in line with the FIFA
guidelines, and consequently to declare that the said “Modification to Employment
Agreement” is not valid;
c) condemns the Respondent to pay the Claimant all the amounts that were deducted from
his salaries for the period between April and November 2020, in the total of THB 4,000,000
plus 5% interest as from each due date until the date of the effective payment;
d) adopts the pertinent disciplinary sanctions for cases of non-compliance with a possible FIFA
decision (…)
b. Position of the Respondent
16. According to the Respondent, “the Claimant submits considers he has been a victim of
extortion, FIFA has no jurisdiction on the matter, as this is a crime under Thai law”.
17. The Respondent further submits that FIFA cannot replace the Police Authority of the Kingdom
of Thailand and if the Claimant considers that he has been victim of such an offense he has
to follow the normal process and lodge a claim before the police.
18. According to the Respondent, on 11 April 2020, it proposed to its employees “a reduction of
the monthly salary of 30%, from April 2020 to December 2020”. This proposal was
“accepted by all the foreign employees” but not by the Claimant.
19. However, the Claimant and the Respondent signed the Modification Agreement in which
they agreed “a monthly reduction of THB 500,000, which corresponds to a 20% reduction
of the initial salary”.
20. In relation to the hotel expenses, the Respondent states that its “only obligation toward his
player was to pay the housing allowance of THB 12,500 for the second part of December
2019”
21. The Respondent further submits that “It was never part of the contract that the club had to
pay the medical expenses of [the Claimant] and his family”. In the view of the Respondent,
“both the custom and the law imposed to the player to conclude a medical insurance contract
by himself, and then to solicit the club to refund the player of the expense. But, the player
never presented to the club such a contract”.
22. In the view of the Respondent, if the Claimant “did want to accept the proposal of the Club,
could either personally or through a lawyer notify to the club his disagreement with any of
the proposed agreements and remind the club of its obligation to pay his full contractual
salary”
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23. The Respondent further states that the reduction was compliant to the Thai labour law which
provides the notion of force majeure and with article 75 of the Thai Labour Protection Act
which states:
"When it is necessary for an Employer for whatever cause other than a force majeure which
affects his/her business and causes the Employer incapable to operate his or her business as
normal so as to temporarily suspend the business in whole or in part, the Employer shall pay
wages to an employee in amount of not less than seventy-five per cent of wages of working
days received by the employee before the suspension of business for the entire period which
the Employer does not require the employee to work”.
24. In the view of the Respondent, “everywhere in the world, and in Thailand also, the Covid-19
crisis is considered as a force majeure event. It means that, according to the Thai labor law,
[the Respondent] could reduce the salary of their players and coaches on the simple ground
of the force majeure”.
25. The Respondent further states that the reduction has been reasonable and fair pursuant to
the guiding principles proposed by FIFA as in its view, “it is obvious that:
-
the club attempted to reach an agreement
the situation economic of all the clubs of Thai League has been deeply impacted by the
crisis, among them [the Respondent],
the amendment at stake was proportionate,
the net income after contract amendment was sufficient,
the salary reduction was lower than the reduction agreed by the other employees of the
Club”.
26. Lastly, the Respondent submits that the Thai Football Association and the Professional Thai
League authorized clubs to operate a reduction up to 50% on the wages of players and
coaches.
27. The Respondent’s requests for relief are:
“Club Port FC requests:
-
the rejection of Heberty Fernandes de Andrade's whole claim,
the Player to be sentenced to bear all legal fees and costs of proceeding in relation to this
matter,
the player to be sentenced to pay 10,000 (ten thousand) USD for inappropriate
proceeding.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 24 August 2021 and submitted for decision
on 28 October 2021. 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.
29. 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 (August 2021 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 Brazilian player and
a Thai club.
30. 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 Player (August 2021 edition, and
considering that the present claim was lodged on 24 August 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
31. 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
32. 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.
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i. Main legal discussion and considerations
33. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that it is undisputed that the parties signed an agreement (i.e. the
Modification Agreement) to reduce the Claimant’s salary due to the situation which arose as
result of the Covid-19 pandemic. Although, the Claimant submits he was forced to sign this
agreement, signing it under duress.
34. In this context, the Chamber acknowledged that it its task was to ascertain on the validity of
the Modification Agreement and on the entitlement of the Claimant to be reimbursed the
expenses claimed.
35. Turning to the issue of the salary reduction, the Chamber firstly wished to recall that FIFA
issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate
guidance and recommendations to member associations and their stakeholders, to both
mitigate the consequences of disruptions caused by COVID-19 and ensure that any response
is harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the most
relevant questions in connection with the regulatory consequences of the COVID-19 outbreak
and identifies solutions for new regulatory matters.
36. In particular, in accordance with pages 6 and 7 of said COVID 19 Guidelines, clubs and
employees were “strongly encouraged to work together to find appropriate collective
agreements to work together to find appropriate collective agreements on a club or a league
basis regarding employment conditions for any period where the competition is suspended
due to the COVID-19 outbreak”. What is more, the document further referred to the
proposed guiding principal for the analysis of unilateral decisions to vary agreements, taking
into account their proportionality and reasonableness.
37. Based on the evidence on file, it seems that the parties not only attempted to reach an
agreement, but indeed arrived at one, i.e. the Modification Agreement. However, the
Claimant deems that such conclusion was made under duress. It shall be recalled that this
agreement establishes a salary reduction of 20% for a period of 8 months, applicable as from
April 2020.
38. In support of his position, the Claimant provides a recorded conversation (and its transcript)
between a representative of the Respondent and himself which took place for longer than
one hour.
39. Based on the abovementioned considerations, the DRC turned its attention to the evidence
on the file, particularly the audio recording, and drew the following conclusions:
a. The parties engaged in a difficult negotiation with several offers and counteroffers from
both parties. Afterwards, the representative of the Respondent informed the Claimant
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that the payment of his salary was going to be suspended “for a few days” until an
agreement was reached.
b. The overall tone of the conversation appeared not to be aggressive or intimidating,
contrary to the Claimant’s allegations of having been “coerced” or “threatened”.
c. The Claimant has not presented any default notice or correspondence sent to the
Respondent after the alleged coerced signature of the Modification Agreement, before
filing the claim at hand approximately 10 months after his contract ended.
40. As a consequence, the Chamber found by majority that the Claimant had not been able to
prove the existence of duress and therefore, based on the principle of pacta sunt servanda,
the Modification Agreement shall be deemed valid and enforceable between the parties. The
Chamber gave particular weight to the fact that the Claimant did not challenge or complain
about the duress for a period of 10 months, which entailed that he had freely and voluntarily
signed the Modification Agreement.
41. Once the above had been established the DRC turned to the matter of the different expenses
claimed.
42. In this regard, the Chamber firstly noted that the relevant constellation of contractual
provisions of the three pertinent documents are not entirely clear regarding the coverage of
accommodation for the Player.
43. The DRC observed that as per Clause 2.5 of the Employment Contract, the Claimant would
be entitled to the amount of THB 25,000 per month as housing allowance. Furthermore, the
Chamber could not find a contractual provision according to which the Respondent abides
to cover the Claimant’s hotel expenses.
44. On the other hand, the Chamber found that the Respondent had admitted that it had not
paid the amount of THB 12,500 due as housing allowance for the half month of December
2019. Hence, the Chamber found that this amount, as admitted by the Respondent, shall be
awarded to the Claimant.
45. Secondly, as for the medical expenses, the Chamber turned to the Employment Agreement
and observed that it states that the Respondent shall provide “Health Insurance for the player
and his wife to cover during the contract period”. This obligation was further transferred on
the Respondent as per the Loan Agreement, which expressly names “salary and benefits” in
its clause 3.
46. Contrary to the Respondent’s allegations, the Chamber was convinced that had the
Respondent complied with this contractually agreed provision, the Claimant would have not
been liable to pay the medical expenses submitted. Furthermore, against the Respondent’s
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argument, the DRC found that the relevant provision does not require or impose any
additional burden or requisite on the Claimant in order to maintain this benefit.
47. Hence, the Chamber based on the principle of pacta sunt servanda was comforted in finding
that the Respondent shall be liable to reimburse the amount of THB 99,188.49 as medical
expenses incurred by the Claimant.
ii. Compliance with monetary decisions
48. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
49. 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.
50. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
51. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
52. 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. 24bis par. 8 of
the Regulations.
d. Costs
53. 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.
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54. 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.
55. 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, Heberty Fernandes de Andrade, is partially accepted.
2. The Respondent, Port FC, has to pay to the Claimant, the following amounts:
- Thai Baht (“THB”) 99,188.49 as outstanding amount.
- THB 12,500 as outstanding expenses.
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.
Pursuant to art. 24bisof the Regulations on the Status and Transfer of Players (February 2021
edition), 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 shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. 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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