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 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Cléber Francisco Alves Pacheco De Almeida Prado, Brazil

represented by Mr Mauricio Ferrão Pereira Borges

as Claimant

against the club,

Al Nahda, Oman

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On an unspecified date, the player and the club signed an employment contract (hereinafter: the contract) valid as from 25 July 2018 until 24 May 2019.

2. In accordance with clause 1 of the contract, the club undertook to pay to the player, inter alia, a monthly salary of “USD 2,300 (equivalent to [Omani Rial] RO 887.800)”.

3. On 10 December 2018, the parties signed a document with the title “Adoption” (hereinafter: the document dated 10 December 2018), by means of which it was acknowledged by both parties that the club will pay the player’s monthly salaries for the months of November and December 2018, in the amount of RO 887.800 each, “in February 2019”.

4. On 20 December 2018, the parties signed an agreement titled “Clearance financial player Cleber Francisco Alves Pacheco de Almeida Prado” (hereinafter: the termination agreement), by means of which the employment contract was terminated by mutual consent of the parties. Said agreement reads as follows:

“In reference to the meeting which was between you and [the club] to terminate the contract between the two parties to share with the first team this season, we have agreed to terminate the contract by mutual consent between the two parties, and therefore does not have any financial obligations of the parties (the club and the player) and not the right of any party in any other claims after such removal and the contract is canceled from 20/12/2018 and the player is free to contract with any other club”.

5. On 7 March 2019, the player put the club in default of payment of USD 4,600 via email, corresponding to his outstanding salaries for the months of November and December 2018, setting a 10 days’ time limit in order to remedy the default. In his default notice, the player referred to the document dated 10 December 2018 and explained that “although [the club] and the player terminated the employment agreement on 20 December 2018, the club was obligated to pay the player’s salaries of November (OMR 887.800/USD 2,300) and December (OMR 887.800/USD 2,300), totaling 1775.600 in February 2019, as to the agreement dated 10 December 2018”.

6. On 13 March 2019, the player put the club in default for a second time and reiterated the content of his correspondence dated 7 March 2019.

7. On 27 May 2019, the player lodged a claim for outstanding remuneration and breach of contract against the club in front of FIFA requesting the total amount of USD 18,975 (or OR 7,324.350), representing “8,25 salaries”. The player further asked to be awarded 5% interest p.a. “as from the date in which the payments should be made”.

8. In particular, the player deemed that the termination agreement dated 20 December 2018 should be declared null and void “since the reason the player accepted to early terminate the employment relationship was the promise of payment agreed on 10 December 2018 and the club never intended to comply with its financial obligations”. What is more, the player held that “the only reason it promised to pay two monthly salaries was to avoid the unilateral termination of the employment contract due to overdue payments”.

9. Furthermore, the player affirmed “it is clear that the club did not want to comply with its financial obligations and, therefore committed a unilateral breach of the employment contract without just cause”.

10. In this context, the player referred to the contract and affirmed that the club only paid “one monthly salary (USD 2,300) and 75% of another month (USD 1,725)” and consequently claimed being entitled to “the whole amount due as to the original contract”, i.e. the total amount of USD 18,975 (or OR 7,324,350), corresponding to “8.25 salaries”.

11. In its reply to the claim, the club stated that the player “has received all his funds” and submitted a copy of the termination agreement dated 20 December 2018.

12. In response to FIFA’s request, the player stated that he had signed an employment contract with the Portuguese club, Uniao da Madeira, valid as from 20 February 2019 until 30 June 2019, for a monthly salary of EUR 900.

II. Considerations of the Dispute Resolution Chamber

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 27 May 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 (cf. article 21 par. 2 and 3 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), 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 an Omani club.

3. 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 May 2019, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the 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.

13. The DRC then started by acknowledging that on an unspecified date, the player and the club signed an employment contract valid as from 25 July 2018 until 24 May 2019. Furthermore, the Chamber acknowledged that on 10 December 2018, the parties signed a document named “Adoption”, by means of the club undertook to pay the player’s monthly salaries for November and December 2018. Finally, the Chamber noted that on 20 December 2018, the parties signed the “Clearance financial player Cleber Francisco Alves Pacheco de Almeida Prado”, through which they “[…] agreed to terminate the contract by mutual consent between the two parties, and therefore does not have any financial obligations of the parties (the club and the player) and not the right of any party in any other claims after such removal and the contract is canceled from 20/12/2018 and the player is free to contract with any other club”.

14. In particular, the Chamber noted that the player does not deny having signed the clearance, but claims to have done so precisely in order to receive his salaries of November and December 2018.

15. In this regard, the Dispute Resolution Chamber deemed it appropriate to remind the parties of its longstanding jurisprudence according to which a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility. In this respect, and in relation to the player’s arguments, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). In this context, the DRC concluded that the Claimant was unable to provide any substantial evidence of the nullity of the clearance. In view of all the foregoing, the DRC concluded that the parties had indeed agreed upon the mutual termination of the contract by means of the clearance and that through this document they stated that the parties did not have any pending financial obligations towards each other.

16. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Cléber Francisco Alves Pacheco De Almeida Prado, is rejected.

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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 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.

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