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 18 June 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 18 June 2020,

regarding an employment-related dispute concerning the player Leonardo Matos de Oliveira

COMPOSITION:

Geoff Thompson (England), Chairman

Mohamed Muzammil (Singapore), member

Stefano Sartori (Italy), member

CLAIMANT:

Leonardo Matos de Oliveira, Brazil

Represented by Mr Pedro Macieirinha

RESPONDENT:

Birkirkara FC, Malta

Represented by Mrs Rebecca Mercieca & Mr Keith Borg

I. FACTS OF THE CASE

1. In June 2018, the Brazilian player, Leonardo Matos de Oliveira (hereinafter: the Claimant or the player) and the Maltese club, Birkirkara FC (hereinafter: the Respondent or the club) allegedly concluded an employment contract (hereinafter: the contract), valid “till the last competitive match or 15th May 2019 whichever comes first”.

2. According to the information contained in the Transfer Matching System (hereinafter: the TMS), the relevant season ended on 8 June 2019.

3. Pursuant to article 2.1 of the contract, the club committed itself to pay to the player a monthly salary of EUR 1,500 as well as a monthly allowance of EUR 4,000.

4. According to the Claimant, “21 days after the beginning of the Contract, the Respondent Club terminated the Contract unilaterally and without just cause or sporting just cause”. In this respect, as regards the termination, the player maintained that “[he] was sent away by the Club, without any formalization or document of dismissal”.

5. In this context, on 10 February 2020, the player allegedly put the Respondent in default, requesting payment of EUR 49,500 and granting a 15 days’ deadline to remedy the situation.

6. According to the Claimant, the Respondent did not reply to his default notice.

7. On 27 February 2020, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the total amount of EUR 66,000, plus 5% interest p.a. as from June 2018 until the date of effective payment, corresponding to compensation for breach of contract without just cause.

8. In his claim, the Claimant maintained that, in accordance with articles 13 and 17.1 of the Regulations on the Status and Transfer of Players and the legal principle of “pacta sunt servanda”, “the player is entitled to the payment of compensation”.

9. In its reply to the claim, the Respondent explained that the document provided by the Claimant, and referred to as the contract, was actually “a proposal which the Club was willing to offer the Player”. However, as per the club, “the circumstances changed” and said document “had neither been signed by both parties […] nor had it been dated”.

10. Furthermore, the Respondent pointed out that the player “had played a few [friendly games] for the Club, however the Parties never reached a mutual understanding with regard to the Player’s employment and thus the Employment Contract was never signed and accepted by both Parties”. Having said this, the club further sustained that the Claimant had not even been registered with the Malta Football Association.

11. Consequently, the Respondent held that the parties were never bound by any contract and, as such, the “contractual relationship between the Parties could not be terminated as it had not even begun”.

12. In continuation, the Respondent provided a “receipt of full and final payment of Euro 6000 in cash to [the player]”, dated 21 June 2018, allegedly signed by both parties, which provided that “No other forms of payment or any other type of compensation will be requested” (hereinafter: the waiver). In addition, the Respondent deemed that said document could even be considered as a termination of an employment contract should the unsigned document be considered as such.

13. As per the club, the Claimant failed to fulfil the burden of proof as to: (i) the date of the player’s arrival in Malta; (ii) the player’s registration with the Malta Football Association; (iii) the validity of the employment contract; (iv) the precise date when the employment contract supposedly took effect; (v) the matches played by the player for the Respondent; and (vi) the date of departure of the player from Malta.

14. Consequently, having provided a proof of the mutual will of the parties not to enter into any employment relationship, and relying on the Claimant’s own words as to the absence of a proof of termination on the club’s behalf, the Respondent requested the claim to be rejected in full “with Costs against the Player”.

15. Finally, and after being invited to do so, the Claimant informed FIFA that he remained unemployed.

16. In addition, the Claimant submitted additional unsolicited comments as to the waiver provided by the Respondent in its reply (cf. see point I.12. above), maintaining that said document had not been signed by him.

17. In this context, FIFA requested the Respondent to provide the original version of the waiver dated 21 June 2018.

18. In support of its statements, the Respondent provided the following documents:

a) The alleged original version of the waiver;

b) A copy of the Claimant’s passport with his signature; and

c) Two “Affidavit” allegedly signed by the Respondent’s treasurer and committee member referring to the above-mentioned facts in the Respondent’s reply to the claim.

19. As regards the aforementioned affidavits, dated 11 May 2020, the treasurer and the committee member of the Respondent both confirmed that the player “in the year 2018 […] joined the club and shortly afterwards, the Player and the Club came to a mutual agreement to terminate the Player’s contract, which agreement was signed by [both parties] on the 21st June 2018”. In this respect, according to the affidavits, it was further indicated that the player received a payment of EUR 6,000 “in cash”.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it referred to 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) as well as to the fact that the present matter was submitted to FIFA on 27 February 2020 and decided on 18 June 2020. Therefore, the DRC concluded that the 2019 edition of the Procedural Rules is applicable to the matter at hand.

2. Furthermore, 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 Players, and considering that the present claim was lodged on 27 February 2020, the January 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

3. Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 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, it is competent to adjudicate on the present employment-related dispute between a Brazilian player and a Maltese club.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter, by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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.

5. First of all, the Chamber took into account that, according to the Claimant, in June 2018, the parties concluded an employment contract valid “till last competitive match or 15th May 2019 whichever comes first”.

6. Subsequently, the members of the Chamber further observed that, as per the Claimant, the Respondent had prematurely terminated the contract “21 days after the beginning of the Contract”. In this respect, the DRC noted that the Claimant was unable to provide evidence of the premature unilateral termination of the contract by the Respondent, as “[he] was sent away by the Club, without any formalization or document of dismissal”.

7. In addition, the DRC observed that the Claimant was claiming the amount of EUR 66,000 from the Respondent, thereby asserting that the Respondent had not complied with the above-mentioned contract and had not paid him any amount whatsoever.

8. The Chamber noted that according to the Respondent, as opposed to the Claimant’s claim, no legally binding employment contract had come into effect between the Claimant and the Respondent, as the latter merely “prepared and drafted a Contract of Employment for the Player to consider”, the object of which was simply to set forth the provisions of a prospective employment contract. In this context, the DRC took note of the fact that the Respondent pointed out “that this contract had neither been signed by both parties […] nor had it been dated”.

9. In view of aforementioned dissent between the parties in respect of the basic question as to whether or not an employment contract between the Claimant and the Respondent had been concluded, the members of the Chamber firstly 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 respective burden of proof. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the Claimant to prove the existence of the employment contract on the basis of which compensation for breach of contract by the Respondent is claimed.

10. Having stated the above, the Dispute Resolution Chamber recalled that the Respondent maintained that it never signed a written employment contract with the Claimant and that the document provided by the Claimant was a mere “proposal” that had “neither been signed by both parties […] nor had it been dated”.

11. Furthermore, the members of the Chamber observed that the Claimant was unable to provide an evidence of the premature unilateral termination of the contract by the Respondent, as the latter allegedly concluded the Claimant’s contract “without any formalization or documentation of dismissal”.

12. On account of these considerations, the Chamber deemed it appropriate to underline mentioning a starting date of the employment relationship. Thus, as per the members of the Chamber, the contract provided by the Claimant did not contain, in principle, all the essentialia negotii.

13. Notwithstanding the above, the DRC took particular note of the fact that the Respondent provided a waiver in support of its statements (cf. see point I.12. above), which was in continuation examined by the members of the Chamber.

14. In this regard, the Dispute Resolution Chamber observed that the aforementioned waiver, dated 21 June 2018, stated the following: “This is a receipt of full and final payment of Euro 6000 in cash to the above mentioned player […] This is a full and final settlement”. that the player failed to provide a contract signed by both parties, duly dated and

15. In continuation, the members of the Chamber further noted that the Respondent provided two affidavits, dated 11 May 2020, allegedly signed by the Respondent’s treasurer and committee member, according to which “the [parties] came to a mutual agreement to terminate the Player’s contract” on 21 June 2018.

16. Having duly analysed the documentation presented by the Respondent, the members of the Chamber wished to emphasise that the mere existence of a waiver proved that the parties have had a previous employment relationship. Furthermore, the Chamber also pointed out that the affidavits expressly referred to an “agreement to terminate the Player’s contract” (emphasis added).

17. In respect of the foregoing, the members of the Chamber concluded that the documents submitted by the Respondent proved beyond doubt that the Claimant and the Respondent had validly entered into an employment contract. Therefore, the members of the Chamber acknowledged that the parties were contractually bound by means of an employment contract valid as from June 2018 until 15 May 2019.

18. Subsequently, following its analysis of the waiver, the Chamber reverted to the Claimant’s argumentation, in accordance with which the document submitted by the Respondent is invalid as it would be a forgery.

19. In this regard, the DRC emphasized that, as a general rule, it is not the competent body to decide upon matters of criminal law, such as allegedly falsified signatures or documents, but that such affairs fall within the jurisdiction of national penal courts.

20. In continuation, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, focused its attention on the waiver as well as the other documents containing the player’s signature. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures, the DRC concluded that for a layman the player’s signatures seem to be different.

21. On account of all of the above considerations, the Chamber decided to reject the arguments put forward by the Respondent in its defence and established that the Respondent has seriously failed to comply with its contractual obligations.

22. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such termination. In this regard, the members of the Chamber determined that the Respondent was to pay compensation for breach of contract in accordance with art. 17 par. 1 of the Regulations.

23. In this context, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

24. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

25. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from June 2018 until 15 May 2019, and concluded that the Claimant would have received in total EUR 63,250 as remuneration had the contract been executed. Consequently, the members of the Chamber concluded that the amount of EUR 63,250 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

27. In continuation the Chamber verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

28. The Chamber noted that it appears from the documentation on file that the Claimant did not sign any contract with a new club within the relevant period. Thus, the Claimant had apparently not been able to mitigate damages. In this context, the DRC declared that there is no remuneration to be taken into account in order to mitigate the amount of compensation for breach of contract.

29. Consequently and bearing in mind all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 63,250 to the Claimant, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

30. Furthermore, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 63,250 as from 27 February 2020 until the date of effective payment.

31. Furthermore, taking into account the consideration under number II.13. 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.

32. In this regard, the Chamber 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.

33. 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.

34. Finally, the member of the Chamber 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.

35. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Leonardo Matos de Oliveira, is partially accepted.

2. The Respondent, Birkirkara FC, has to pay to the Claimant EUR 63,250 as compensation for breach of contract without just cause plus 5% interest p.a. as from 27 February 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established 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 following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

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) 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 20 of the Procedural Rules).

CONTACT INFORMATION:

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