F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 15 April 2020
Decision of the
Dispute Resolution Chamber
(DRC) j udge
passed on 15 April 2020,
by Stijn Boeykens (Belgium)
on the claim presented by the player,
Jean Alexandre Deretti, Brazil,
represented by Mr Gabriel de Andrade Bezerra dos Santos Lima
as Claimant
against the club,
FC Dila Gori, Georgia
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 19 December 2016, the Brazilian player, Jean Alexandre Deretti (hereinafter: the Claimant) and the Georgian club, FC Dila Gori (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) “in respect for the season 2017.”
2. According to art. 2.2.1 and 2.2.2 of the contract, the Claimant was entitled to receive a monthly salary of USD 5,000 “net”, to be paid “until the 20th day of the month, following the month for which the payment is made.”
3. According to art. 2.3.1 of the contract, the Respondent agreed to “take care of [the Claimant’s] housing arrangements (including furniture). In addition [the Claimant] will be entitled to receive a car, in a category that [the Respondent] will decide.”
4. According to 2.3.2 of the contract, the Claimant gave the possibility to the Respondent to make salary deductions, inter alia, should the Claimant be fined for misconduct.
5. The Claimant is considering that the 2017 football season in Georgia ended on 31 December 2017, whilst according to the information available in the Transfer Matching System (TMS), the 2017 football season in Georgia started on 4 March 2017 and ended on 10 December 2017.
Overview of the dispute
6. The Claimant maintained that the Respondent failed to perform the payment of three salaries that were, according to the Claimant, due on 20 October 2017, 20 November 2017, 20 December 2017, corresponding to a total amount of USD 15,000.
7. Moreover, the Respondent allegedly did not pay the Claimant winning bonuses in the amount of USD 750 and a car costs for July 2017, October 2017 until December 2017 in the amount of USD 750. The Claimant did not provide any evidence supporting these requests.
8. On 25 November 2017, the Respondent sent a notice to the Claimant, imposing a fine of USD 12,500 for (1) refusal of continuation of a pre-match training and (2) an alleged racist act based on refusal to share a room with a colleague. The Claimant contested the above-mentioned allegations, and provided a copy of the notice he sent in response to the Respondent’s allegations.
9. The Respondent stated that the Claimant was entitled to a total remuneration of USD 53,150 under the contract, and that it had paid to the Claimant USD 42,188.25, meaning that a difference of USD 10,961.75 had not been paid.
10. In this respect the Respondent indicated that it had fined the Respondent the total amount of USD 12,500 for several misconducts.
11. In fact, the Respondent alleged that the Claimant’s conducted started to worsen as from June 2017, culminating to an alleged racist incident towards one of his teammates on 13 September 2017. In this respect, the Respondent explained that it took disciplinary action against the Claimant, but that it did not deduce the fines so “he did not lose motivation”.
12. On 24 November 2017, the Respondent explained that the Claimant refused to take part in a league match during the warmup and that he invoked a pain that after medical tests prove to be unfounded. The Respondent provided with a copy of a medical report from the Respondent’s club doctor in support.
13. The Respondent declared that it offered to the Claimant to reduce the “penalty on 30%, which means that the player would be fined in amount of 8750 (eight thousand seven hundred and fifty) instead of 12,500 (twelve thousand five hundred) dollars. Accordingly, the club agreed to return the amount of 2000 (two thousand) dollars from the fine to Jean Alexander Deretti. This amount would be transferred only if he stopped discrediting the club and making ungrounded accusations against it. But he continued dispute and claimed in FIFA”.
14. On 29 December 2019 the Claimant lodged a claim in front of FIFA, requesting as follows:
a) “Notify the Claimant so it can timely and willingly present its defence regarding the enlightened facts;
b) Consider the Respondent as guilty of breaching the dispositions set forth in the “Player Agreement”;
c) Consider the Respondent to be in debt of the amount of USD 15,000 (…) regarding the salaries of the months of October, November and December 2017;
d) Consider the Respondent to be in debt of the amount of USD 750 (…) regarding the unpaid sums concerning the winning bonuses;
e) Consider the Respondent to be in debt of the amount of USD 750 (…) regarding the unpaid sums concerning the additional amount owed by Respondent for not providing the Claimant a car;
f) Notify UEFA and the Georgian Football Association of the present demand so the referred entities can take the adequate matters in regard to the malicious and unfounded accusation of racism from the Respondent;
g) Concede the Claimant the opportunity to collect the statement of the athletes with whom he has played together during the validity of his contract with the Respondent, namely: Ahy Audu Abubakar; Núbio Flávio Martins de Souza; Guilherme Gianotti Morassi; and Joao Pedro Oliveira Santos;
h) That an interest of 5% (…) per annum shall be applied over the total amount due by the Respondent to the Claimant, from the date that the Respondent should have performed the payments of the overdue salaries until the date pf the effective payment;
i) Immediately impose the cumulative sanctions established in Paragraph 4 of Article 12bis, given the conditions for such imposition are met as per Paragraphs 2 and 3, until the payment of the full amounts due by the Respondent to the Claimant;
j) Order that the Respondent bears with any and all legal costs incurred by the Claimant.”
15. In its reply, the Respondent rejected on the basis that the outstanding amounts claimed correspond to the fines that were deducted from his salaries in view of repeated misconduct throughout the contractual relationship.
II. Considerations of the Dispute Resolution Chamber (DRC) judge
1. First of all, the Dispute Resolution Chamber Judge (hereinafter: the DRC judge) analysed whether it was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 29 December 2019. Taking into account the wording of art. 21 of the 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 DRC judge referred to art. 3 par. 1 and par. 3of the Procedural Rules and highlighted that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (editions October 2019 and March 2020) the DRC judge, would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Brazilian player and a Georgian club.
3. Notwithstanding the above, bearing in mind that the employment contract at the basis of the present matter was concluded on 19 December 2016 and the contractual relationship ended at the end of the 2017 football season in Georgia, and that the Claimant lodged his claim against the Respondent in front of FIFA on 29 December 2019, the DRC judge considered that he should examine if the present claim, or any part of it, is barred by the statute of limitations.
4. Indeed, the DRC Judge referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations; editions October 2019 and March 2020), which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the DRC judge shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.
5. In view of the above, the DRC judge deemed fundamental to underline that in order to determine whether he could hear the present matter, the DRC judge should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations.
6. The DRC judge acknowledged that, according to the documents presented by the Claimant in support of his claim, the parties were bound by an employment contract, which was signed on 19 December 2016 and was valid “in respect for the season 2017.”
7. The DRC judge duly noted that the Claimant was entitled to receive, inter alia, a monthly remuneration of USD 5,000, along with housing arrangements and a company car, and that the Claimant lodged his claim in front of FIFA based on the alleged non-payment of the salaries of October, November and December 2017 as well as the non-payment of his housing and car allowances.
8. Having observed that the Claimant’s claim is based on the alleged non-payment of all of the aforementioned contractual instalments, the DRC judge determined that the alleged non-payment of the relevant instalments must be considered the events giving rise to the present dispute.
9. Furthermore, the DRC judge took into account that, according to the information contained in TMS the 2017 season in Georgia ended on 10 December 2107. The Claimant, for his part, maintained that the end date of the employment contract was 31 December 2019.
10. Bearing in mind the discrepancy between the contractual duration indicated in the contract, in TMS and indicated by the Claimant, while referring to the general principle of the burden of proof as outlined in art. 12 par. 3 of the Procedural Rules, the DRC judge underlined that the Claimant had not been able to corroborate his allegation that the employment contract was to last until 30 December 2019 with relevant documentation.
11. Having said that, the DRC judge recalled that in accordance with art. 6 par. 3 of Annexe 3 of the aforementioned Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the said Regulations, any documentation or evidence generated or contained in the TMS.
12. What is more, the DRC judge wished to emphasise that Member Associations, inter alia, are responsible for maintaining their season and registration details (cf. art. 3.2.1 and art. 5.1.1 of Annexe 3 of the Regulations) and have a duty to enter valid information and act in good faith (cf. art. 3 par. 3 of Annexe 3 of the Regulations).
13. On the basis of the information contained in the TMS in combination with the wording of the contract and the aforementioned provisions of Annexe 3 of the Regulations, the DRC judge established that the end date of the relevant employment contract at the basis of the present dispute should correspond to the end date of the 2017 football season as entered in the TMS by the Georgian Football Federation.
14. Therefore, the DRC judge concluded that the contract naturally ended on 10 December 2017, and that, in line with the Claimant’s claim, any amount due by the Respondent for the month of October, November and December 2017 had fallen due respectively on 20 October, 20 November and 20 December 2017, and therefore had become overdue on 21 October 2017, 21 November and 21 December 2017.
15. While recalling that the present claim was submitted to FIFA on 29 December 2019, the DRC judge took into account that the amount claimed by the Claimant was payable in various instalments, all of which thus had fallen due more than two years prior to the date on which the Claimant lodged his claim in front of FIFA.
16. What is more, the DRC judge duly noted that the claims for housing and car allowances were made in line with the contents of art. 2.3.1 of the contact. Having thoroughly analysed the contents of this clause, the DRC judge took note that it did not refer to a fee to be reimbursed to the Claimant, nor to a flat fee and/or a monthly fee to be paid to the Claimant to cover all or part of his housing and transportation expenses. Furthermore, In relation to the request for “winning bonuses”, the DRC judge duly noted that those amounts were neither contractually agreed nor the Claimant provided any evidence to support his claim, including but not limited to a copy of the bonus schedule.
17. The DRC judge was of the opinion that in view of the impossibility to determine if and when the aforementioned allowances and bonuses were due, the DRC judge concluded that the natural end date of the contract, i.e. 10 December 2019, should be held as the due date for those amounts should it be determined that they are indeed due.
18. In view of all the above, referring to art. 25 par. 5 of the Regulations on the Status and Transfer of Players, the DRC judge concluded that the time limit of two years for the Claimant to claim outstanding remuneration had elapsed at the time he lodged his claim in front of FIFA.
19. Therefore, the DRC judge determined that the claim of the Claimant is barred by the statute of limitations and, consequently, inadmissible.
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III. Decision of the DRC judge
The claim of the Claimant, Jean Alexandre Dreretti, is not admissible.
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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 relating to the motivated decision (legal remedy):
According to art. 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:
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Tel: +41 21 613 50 00
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e-mail: info@tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer