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 9 April 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Daan de Jong (The Netherlands), member

on the claim presented by the player,

Paulo Leomar, Brazil

represented by Mr Imran Y Adam

as Claimant

and the club,

Lusaka Dynamos FC, Zambia

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 15 March 2017, the Brazilian player Paulo Leomar (hereinafter: the Claimant or the player) and the Zambian club Lusaka Dynamos FC (hereinafter: the Respondent or the club) signed an employment contract valid as from 14 March 2017 until 31 December 2019.

2. As the per the contract, the player was inter alia entitled to:

a) a signing on fee of USD 25,000, payable in 3 instalments, namely USD 5,000 on 31 March 2017, USD 10,000 on 15 May 2017 and USD 10,000 on 15 June 2017;

b) a monthly salary of USD 2,500;

c) Zambian Kwacha (ZMW) 4,000 as bonus “per league or cup game won for which the player is named in the final team”;

d) ZMW 200 as bonus “per goal scored by a playing member in favour of the Club for which the player is named in the final team”;

e) a furnished house;

f) two return tickets for the Claimant and his family once a year to Brazil;

g) (cf. contract below, note: Claimant does not provide the employment agreement as it “has not yet been released to the player”, but the contract is to be found in TMS; he also claims that the agreement was valid until 15 March 2019).

3. On 27 May 2019, the Claimant lodged a claim requesting the payment of USD 78,800, broken down as follows:

a) Salaries due:

i) April: USD 2,500

ii) May: USD 2,500

iii) August: USD 2,500

iv) October: USD 2,500

v) January 2018 to March 2019 (14 months x USD 35,000)

b) a signing on fee of USD 25,000;

c) Air tickets for a round trip in the amount of USD 4,000;

d) Wining bonuses of USD 4,800 for 12 wins;

e) “Moral damages based on the fact that when the player got injured, the club did not provide for a physiotherapist when he had fractured his foot”.

4. The Claimant maintained that the Respondent did not fulfil his financial obligations towards him. Since the player claims that the contract was only valid until 15 March 2019, he only claims outstanding remuneration and makes no reference to any premature termination from either party.

5. In spite of having been invited to do so, the Respondent did not reply to the player’s claim.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the DRC analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 27 May 2019 and decided on 9 April 2020. 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 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, the DRC 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 Zambian club.

3. Furthermore, the DRC analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 27 May 2019, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the 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 submitted by the parties. However, the DRC 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.

6. In this respect, the DRC acknowledged that, on 15 March 2017, the Claimant and the Respondent signed an employment contract valid as from 14 March 2017 until 31 December 2019, for the remuneration detailed in point I.2 above.

5. Moreover, the DRC noted that the player does not appear to have a copy of the employment contract – which is however to be found in TMS –and acknowledged that he deems that the contract naturally expired on 15 March 2019, providing no information or documentation related to a premature termination by any of the parties.

7. Furthermore, the DRC took note that the club did not reply to the player’s claim and therefore tacitly accepted the player’s arguments. As per art. 9 par. 3 of the Procedural Rules, a decision shall be taken based on the argumentation and documentation provided by the player only.

8. In this respect, the Chamber in its duty of verifying ex officio whether all formal pre-requisites for the admissibility of the claim are indeed present, noted that the player’s claim was lodged on 27 May 2019 and that he requests inter alia the payment of his salary of April 2017 and of the first 2 instalments of the sign-on fee, of USD 5,000 due on 31 March 2017 and USD 10,000 due on 15 May 2017.

9. At this point, the Chamber deemed it appropriate to remind the parties of the wording of art. 25 par. 5 of the Regulations, according to which “The Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as the case may be) shall not hear any case subject to these regulations if more than two years have elapsed since the event giving rise to the dispute. Application of this time limit shall be examined ex officio in each individual case”.

10. Bearing in mind the foregoing, the Chamber concluded that the player’s requests for his salary of April 2017 and of the first 2 instalments of the sign-on fee, due on 31 March 2017 and on 15 May 2017 are time-barred. Therefore, the Chamber established that this part of the player’s claim is to be considered as inadmissible.

11. Having established the foregoing, the DRC referred to 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 burden of proof”.

12. In this respect, the Chamber noted that the player failed to provide any evidence of his having incurred in any medical costs or of his entitlement to the bonuses requested. Thus, these requests of the player cannot be upheld.

13. As to the moral damages, no contractual basis or otherwise any evidence of such has been provided. Thus, this request of the player must also be rejected.

14. In continuation, the Chamber noted that the player requested the payment of USD 2,500 as salary for May 2017, USD 2,500 as salary for August 2017, USD 2,500 as salary for October 2017, USD 35,000 as salaries for January 2018 to March 2019 (14 months à USD 2,500) and of the third instalment of the sign-on fee (USD 10,000) and due on 15 June 2017, amounting in total to USD 52,500.

15. In continuation, the DRC took note that the Respondent, for its part, failed to present its response to the claim of the Claimant, despite having been invited to do so.

16. In light of the above, the DRC highlighted that the Respondent must fulfill its obligations as per the termination agreement in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant the aforementioned remuneration that was outstanding at the time of the claim was lodged, i.e. the amount of USD 52,500.

17. Furthermore, considering the player’s request and its longstanding jurisprudence, the Chamber also decided to award the player the amount of USD 1,565 as a flight ticket, as informed by FIFA Travel.

18. Furthermore, taking into account the consideration under number II./3. 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.

19. 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.

20. 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.

21. 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.

22. The DRC concluded its deliberations in the present matter by establishing that the claim lodged by the Claimant is partially accepted insofar as it is admissible.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Paulo Leomar, is partially accepted insofar as it is admissible.

2. The Respondent, Lusaka Dynamos FC, has to pay to the Claimant the amount of USD 52,500 as outstanding remuneration.

3. The Respondent has to pay to the Claimant the amount of USD 1,565 as a flight ticket.

4. Any further claim of the Claimant is rejected.

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 points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due in accordance with points 2. and 3. above is not paid by the Respondent within 45 days 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.

9. In the event that the aforementioned sum 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.

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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 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: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer