Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 23 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jos é Luis Andrade (Portugal), member
S tijn Boey kens (Belgium), member
on the claim presented by the player,
Allano Brendon de S ouza Lim a, Brazil
represented by Mr Rafael Queiroz Botelho
as Claimant
against the club,
Burs as por Kulubu, Turkey
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 30 July 2018, the Brazil player, Allano Brendon de Souza Lima (hereinafter: the player or
the Claimant), and the Turkish club, Bursaspor Kulubu (hereinafter: the club or the
Respondent), signed an employment contract (hereinafter: the contract), valid as from the
date of signature until 31 May 2019.
2.
In accordance with the contract, the Claimant was entitled to a total remuneration of EUR
300,000 payable in 10 monthly salaries of EUR 30,000 payable between August 2018 and May
2019.
3.
By correspondence dated 11 December 2019, the Claimant put the Respondent in default of
payment of EUR 120,000 corresponding to outstanding based on the employment contract
and setting a time limit of 10 days in order to remedy the default, to no avail.
4.
On 26 December 2019, the Claimant lodged a claim against the Respondent before FIFA,
requesting outstanding remuneration in the total amount of EUR 120,000 plus 5% interest as
from the due dates until the date of effective payment. He further requested procedural costs
at the expense of the Respondent.
5.
In his claim, the Claimant held that for the total duration of the contract, he should have been
entitled to receive EUR 300,000 but received EUR 180,000, leaving EUR 120,000 as
outstanding.
6.
In its reply, the Respondent held that it paid EUR 180,000 to the player as follows:
EUR 10,000 on 30 July 2018;
EUR 20,000 on 3 October 2018;
EUR 30,000 on 6 December 2018;
EUR 30,000 on 21 December 2018;
EUR 30,000 on 7 February 2019;
EUR 30,000 on 21 March 2019;
EUR 30,000 on 5 April 2019.
7. The club explained that it was attempting to provide proofs of payment of other amounts
allegedly paid to the player.
Player Allano Brendon de Souza Lima, Brazil / Bursaspor Kulubu, Turkey
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II.
Cons iderations of the Dis pute Res olution Cham ber
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 26 December 2019. Consequently,
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2019; hereinafter: Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that
in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b of the Regulations on the
Status and Transfer of Players (edition 2020) he 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 Turkish club.
3.
Furthermore, the DRC analysed which regulations should be applicable as to the substance
of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2
of the Regulations on the Status and Transfer of Players (edition 2020), and considering that
the present claim was lodged on 26 December 2019, the 2019 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the substance of the matter. In this respect, the DRC 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand..
5.
In this respect, the Chamber observed that the parties had signed an employment contract
on 30 July 2018, in accordance with which the player was entitled to receive, inter alia, the
total remuneration of EUR 300,000 payable in ten instalments of EUR 30,000 from August
2018 to May 2019.
6.
In continuation, the Chamber noted that the Claimant alleged that the Respondent failed
to pay the alleged outstanding amount of EUR 120,000. Consequently, the Claimant asked
to be awarded the payment of the total amount of EUR 120,000 plus 5% interest as of the
due date as well as an additional interest of 5 % on the total amount plus interest.
7.
In this context, the Chamber took particular note of the fact that, on 11 December 2019, the
Claimant put the Respondent in default of the payment of the aforementioned amounts,
setting a 10 days’ time limit in order to remedy its default.
8.
Consequently, the DRC concluded that the Claimant had duly proceeded in accordance with
art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must
Player Allano Brendon de Souza Lima, Brazil / Bursaspor Kulubu, Turkey
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have put the debtor club in default in writing and have granted a deadline of at least ten
days for the debtor club to comply with its financial obligation(s).
9.
Having said that, the Chamber took note of the reply of the Respondent, which asserted
that it had paid EUR 180,000 to the Claimant and that it was looking for further proof of
additional payments.
10.
In view of the above, the Chamber emphasized that in accordance with the legal principle
of the burden of proof, which is a basic principle in every legal system, a party deriving a
right from an asserted fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of
the Procedural Rules). In this regard, the Chamber duly took note that the Respondent
provided proof of payments of EUR 180,000. The Chamber further noted that the
Respondent did not provide any additional proof of payments on top of those ones.
11.
In this regard, the Chamber found it relevant to underline that the proof of payments
provided by the Respondent corresponded to the amount acknowledged as received by the
Claimant in his claim, amounts which were not requested by the Claimant, but did not
provide any further evidence as to the requested amounts.
12.
The Chamber highlighted that in accordance with the contract, the Claimant was entitled
to the total amount of EUR 300,000 and that the Respondent provided evidence of the
payment of EUR 180,000, leaving EUR 120,000 as unsubstantiated.
13.
In view of the above, and based on the documentation currently at its disposal, the Chamber
unanimously came to the conclusion that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence, and that the
Respondent had failed to provide conclusive evidence that all the due amounts under the
contract had been paid to the Claimant.
14.
On account of the aforementioned considerations, the DRC established that the Respondent
failed to remit the Claimant’s remuneration in the total amount of EUR 120,000
corresponding to monthly salaries of February to May 2019 included.
15.
In addition, the Chamber established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
16.
Consequently, the DRC decided that, in accordance with the legal principle of pacta sunt
servanda, the Respondent is liable to pay to the Claimant overdue payables in the total
amount of EUR 120,000.
Player Allano Brendon de Souza Lima, Brazil / Bursaspor Kulubu, Turkey
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17.
In addition, taking into consideration the claim lodged by the Claimant, as well as the
constant practice of the DRC, the Chamber decided to award the Claimant interest at the
rate of 5% p.a. until the date of effective payment on each payment the day following the
due date provided in the contract, and noted that in the absence of any due dates for the
payments, each salary would therefore become due on the last day of the relevant month.
18.
In continuation, taking into account the consideration under number II./15. above, the DRC
referred to art.12bis par. 2 of the Regulations which stipulates that any club found to have
delayed a due payment for more than 30 days without a prima facie contractual basis may
be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
19.
The DRC established that in virtue of art. 12bis par. 4 of the Regulations he has competence
to impose sanctions on the Respondent. In this context, the DRC duly noted that the
Respondent has previously been found by the DRC to have neglected its contractual
obligations towards players on multiple occasions in the recent past, as well as by the Single
Judge of the Players’ Status Committee, neglecting its obligation toward clubs on multiple
occasions, the DRC decided to impose a fine on the Respondent in accordance with art. 12bis
par. 4 lit. c) of the Regulations..
20.
Moreover, the DRC referred to art. 12bis par. 6 of the Regulations, which establishes that a
repeated offence will be considered as an aggravating circumstance and lead to a more
several penalty.
21.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as well as
the considerations under number II./19. above, the DRC decided to impose a more severe
fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.
Furthermore, taking into consideration the amount due of EUR 120,000, the DRC regarded
a fine amounting to CHF 52,500 as appropriate and hence decided to impose said fine on
the Respondent.
22.
In this connection, the DRC wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations
23.
Furthermore, taking into account the consideration under number II./9. above, the DRC
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.
Player Allano Brendon de Souza Lima, Brazil / Bursaspor Kulubu, Turkey
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24.
In this regard, the DRC 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.
25.
Therefore, bearing in mind the above, the DRC 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.
26.
Finally, 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.
3 of the Regulations.
27.
The DRC concluded its deliberation by rejecting any further claim of the Claimant.
II.
Decision of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Allano Brendon de Souza Lima, is partially accepted.
2. The Respondent, Bursaspor Kulubu, has to pay to the Claimant overdue payables in the
amount of EUR 120,000 plus 5% interest p.a. until the date of effective payment as
follows:
a. 5% p.a. as of 1 March 2019 on the amount of EUR 30,000;
b. 5% p.a. as of 1 April 2019 on the amount of EUR 30,000;
Player Allano Brendon de Souza Lima, Brazil / Bursaspor Kulubu, Turkey
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c. 5% p.a. as of 1 May 2019 on the amount of EUR 30,000;
d. 5% p.a. as of 1 June 2019 on the amount of EUR 30,000.
3. Any further claim lodged by the Claimant is rejected.
4. The Respondent is ordered to pay a fine in the amount of CHF 52,500. The fine is to be
paid within 45 days of notification of the present decision to FIFA to the following bank
account with reference to case nr. 20-00011/iml:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5. The Claimant is directed to inform the Respondent, immediately and directly, preferably
to the e-mail address as indicated on the cover letter of the present decision, of the
relevant bank account to which the Respondent must pay the amount mentioned under
point 2 above.
6. The Respondent shall provide evidence of payment of the due amount in accordance
with point 2. above to FIFA to the e-mail address [email protected], duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
7. In the event that the amount due plus interest in accordance with point 2. above is not
paid by the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, 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 (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete
serving, once the due amount is paid.
Player Allano Brendon de Souza Lima, Brazil / Bursaspor Kulubu, Turkey
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9. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
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). 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 (cf. point 4 of the directives).
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 Allano Brendon de Souza Lima, Brazil / Bursaspor Kulubu, Turkey
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