F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 11 March 2021

Decision of the

Dispute Resolution Chamber

passed on 11 March 2021,

regarding an employment-related dispute concerning the player Camila Mehler Carvalho

COMPOSITION:

Clifford J. Hendel (USA / France), Deputy Chairman Tomislav Kasalo (Croatia), member Mohamed Muzammil (Singapore), member

CLAIMANT / COUNTER-RESPONDENT:

Camila Mehler Carvalho, Portugal

Represented by Ms Rafaela Camargo

RESPONDENT / COUNTER-CLAIMANT:

Club de Fútbol Femenino la Solana, Spain

I. FACTS OF THE CASE

1. On 4 December 2019, the Portuguese player, Camila Mehler Carvalho (hereinafter: Claimant/Counter-Respondent or player) and the Spanish club, Club de Fútbol Femenino la Solana (hereinafter: Respondent/Counter-Claimant or club) concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 3 May 2020.

2. According to the clause 4 of the contract, the club undertook to pay the player a monthly remuneration of EUR 400, payable within the first 7 days of the following month, with the exception of the salary of December 2019, for which the player is only entitled to EUR 200. The original text in Spanish reads as follows: “Por la temporada 2019-2020: Se becará en concepto de ayuda a la promoción deportiva de la jugadora con la cantidad de 400 EUR (cuatrocientos euros) mensuales a pagar por mes vencido dentro de los 7 primeros días (del 1 al 7) de cada mes. Dichos pagos se harán efectivos a partir de la firma del presente contrato, exceptuando el mes de diciembre de 2019 que se abonaría el 50% (200 EUR)”.

3. As per clause 7 of the contract, the club will provide the player with individual accommodation in one of the flats at the club’s disposal as well as with a “main meal” from Monday to Sunday in a local restaurant. The original text in Spanish reads as follows: “El club facilitará el alojamiento de la jugadora en una habitación individual en uno de los pisos que tiene a su disposición el club. Igualmente se compromete a facilitarle la comida principal de lunes a domingo en un restaurante de la localidad”.

4. Pursuant clause 8 of the contract, the club undertook to provide the player with a flight ticket Madrid-Brazil for the month of May 2020 after having agreed on a specific date with the player. The original text in Spanish reads as follows: “El club se hará cargo del billete de avión Madrid-Brasil para el mes de mayo de 2020, previo acuerdo de fecha con la jugadora”.

5. As per clause 9 of the contract, the player shall comply with the club’s regulations. The original text in Spanish reads as follows: “La jugadora deberá cumplir las normas de reglamento y disciplina interna del club.”

6. By means of letter dated 30 June 2020, the player put the club in default of payment of the salaries of March and April 2020 in the amount of EUR 800, as well as the amount of EUR 450 for the flight ticket expenses Madrid-Brazil, and granted it a 15 days’ deadline to remedy the default.

7. In response to her letter, the player received a correspondence dated 14 July 2020 from the club, whereby the latter requested the player to reimburse the expenses related to the accommodation as well as further expenses incurred by the club for the period between April and May 2020 in view of the fact that the club’s responsibility to pay those expenses ceased upon the suspension of the championship due to the Covid-19 outbreak.

8. On 24 July 2020, the player lodged a claim against the club in front of FIFA, requesting payment of outstanding remuneration in the amount of EUR 1,250, plus 5% interest p.a. as from the corresponding due dates until the date of effective payment, broken down by the player as follows:

 EUR 400 corresponding to the salary of March 2020;

 EUR 400 corresponding to the salary of April 2020;

 EUR 450 corresponding to flight ticket expenses.

9. The player held that despite having complied with her contractual obligations, the club failed to comply with its financial obligations.

10. In reply, the club rejected the player’s claim and lodged a counterclaim against him, requesting the difference between the amount requested by the player (i.e. EUR 1,250) and the amount paid by the club amounting to EUR 1,640.

11. In this regard, the club stated that on 1 March 2020 it played its last official match before the Spanish Government with the “Boletín Oficial del Estado (BOE) n. 67” dated 14 March 2020 decreed a state of alarm throughout the country.

12. The club further stated that due to the BOE n. 67 and a circular issued by the Real Federación Española de Fútbol (RFEF), by means of which the RFEF suspended its competitions, the club had to suspend its sporting activities and, as a consequence, the payment of the salaries of its players until the club’s sporting activities would resume.

13. According to the club, all its players accepted said circumstance except for the player, which returned to her country on 15 May 2020.

14. In continuation, the club maintained that the team’s training resumed on 18 June 2020.

15. The club added that upon request of the player on 10 June 2020, it provided the following documentation to her on 12 June 2020:

 Letter of release from the club certifying that the player is free of sporting and financial commitment to the club;

 Termination of the contract;

 “Proof signed by the club that there is not TPO of the player economic rights”;

 “Proof of the last contract end date.”

16. With regards to clause 7 of the contract, the club held that, on 15 March 2020, without informing the club, she left the apartment provided by it and moved to another one.

17. In this respect, the club affirmed that in accordance with clause 9 of the contract and point 5.6 of the internal regulation of the club for the sporting season 2019/2020, which stipulates, inter alia, that in the event that a player abandons the accommodation assigned to the her, changing flats without requesting it to the club and without the pertinent authorisation, it will be considered a serious misconduct, and said player will be responsible for the expenses generated by the change made, exempting the club from the payment of the aforementioned costs incurred.

18. Moreover, with regard to clause 8 of the contract, the club affirmed that on 15 March 2020, it informed the player that due to the suspension of the competition she could return to her country of origin and offered her a flight ticket for the 31 March 2020, which was refused by the player on the grounds that she wanted to remain in Spain because she was waiting to receive a mobile phone.

19. Subsequently, on 10 April 2020, the club sustained that in view of the information of a possible closure of airports and borders, it offered for the second time a flight ticket Madrid-Brazil for the 15 April 2020, which was again rejected by the player on the grounds that she wanted to remain in Spain.

20. In this respect, the club referred to point 5.9 of its internal regulation, according to which the payment of travel or transport tickets, according to agreement, for those players who need to return at the end of the season to their homes of origin, the club will propose two dates always at the end of the regular league and in the event that the player does not accept any of the two dates proposed for any vital reason or circumstance (illness or serious injury), the club reserves the right not to pay any ticket or travel expenses.

21. The club maintained that in light of point 5.9 of the club’s internal regulation, it is not obliged to pay for the flight ticket purchased by the player for the 15 May 2020, as she was previously offered two flights tickets, which were not accepted by her.

22. Furthermore, the club indicated the expenses generated by the player which were paid by the club in the total amount of EUR 1,640:

a. Accommodation in a shared flat paid by the club with electricity and water expenses in the total amount of EUR 656.50 broken down as follows:

- March 2020 in the amount of EUR 225.75;

- April 2020 in the amount of EUR 220.50;

- May 2020 in the amount of EUR 210.25.

b. Accommodation due to a change made by the player without consulting the club or having the relevant authorisation, for which the club has had to pay the total amount of EUR 680 detailed as follows:

- As of 15 to 31 March 2020 (water, electricity and internet) the amount of EUR 180;

- As of 1 to 30 April 2020 (water, electricity and internet) the amount of EUR 320;

- As of 1 to 14 May 2020 (water, electricity and internet) the amount of EUR 180.

c. Maintenance costs from 15 March to 14 May 2020 in the total amount of EUR 915, broken down as follows:

- Breakfast: EUR 5 * 61 days = EUR 305;

- Dinner: EUR 10 * 61 days = EUR 610.

d. Payment of train ticket Manzanares to Madrid on 15 May 2020 in the amount of EUR 25;

e. Travel costs by car from La Solana to Manzanares and back on 15 May 2020 equal to EUR 20.

23. In her response to the club’s counterclaim, the player stated that at the beginning of March 2020, when the Real Federacion Española de Fútbol suspended the competition due the COVID pandemic, the player moved from the apartment provided by the club to the apartment of Mr Micael Arias Ruiz Orejón, which according to the player has relationship with the management of the club and which invited her to stay at his home, while the player was alone during the lockdown in Spain.

24. The player held that she did not know that Mr. Micael Arias Ruiz Orejón charged the club the expenses of her stay at his apartment. She added that, according to the contract signed between the parties, it was responsibility of the club to provide her with accommodation and food, especially considering that the player was living abroad, for playing for the Club.

25. The player further held that the club did not notify her about any payment made to Mr. Micael Arias. Therefore, she was unaware of such situation.

26. Finally, the player stated that according to clause 8 of the contract, the club should pay the flight tickets Spain – Brazil in May 2020, which was not the case, given that the player had to pay for it. Moreover, the monthly payment of the EUR 400, as per clause 4 of the contract, was not paid in March and April 2020.

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 24 July 2020 and submitted for decision on 11 March 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the Procedural Rules is applicable to the matter at hand.

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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension.

3. In continuation, the Chamber analysed which regulations 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 2 of the Regulations on the Status and Transfer of Players (February 2021 edition), and considering that the claim was lodged on 24 July 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the 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. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that, on 4 December 2019, the player and the club had concluded an employment contract valid as from the date of its signature until 3 May 2020.

7. Furthermore, the members of the DRC took note of the player’s claim for outstanding remuneration in the amount of EUR 1,250.

8. The Chamber duly noted that the club, on the other hand, acknowledged its debt towards the player in the amount of EUR 1,250, however it maintained that in view of the suspension of the sporting activities in the country due to the COVID-19, it had to suspend the payment of the player salaries of March and April 2020. In this context, the club lodged a counterclaim against the player requesting the difference between the amount requested by the player and the expenses paid by the club, amounting to EUR 1,640.

9. In turn, the DRC acknowledged that the player rejected such counterclaim. She argued that in accordance with the contract, the club had also to provide the player with accommodation and food as well as pay the flight ticket from Spain to Brazil in May 2020.

10. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

11. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s salary. In this regard, clubs and players were encouraged to work together to find agreements and solutions during the period when football is suspended. Nevertheless, unilateral decisions that alter the contractual rights and obligations of the parties are not permitted.

12. In this context, the DRC considered that the arguments raised by the club cannot be considered a valid reason for non-payment of the monies claimed by the player, in other words, the reasons brought forward by the club in its defence do not exempt it from its obligation to fulfil its contractual obligations towards the player.

13. On account of the aforementioned considerations, the Chamber deemed that the requested monthly salaries have a contractual basis and noted that the club itself acknowledged being in default of payment regarding the amount of EUR 800, therefore, by virtue of application of the general principle of law pacta sunt servanda, the club is liable to pay the claimed remuneration to the player.

14. In continuation, with regard to the club’s allegation concerning the flight ticket, the Chamber pointed out that the contract, in its clause 8, clearly stipulates that the club would pay for a flight in the month of May 2020. Therefore, the fact that the player refused to travel to Brazil before the agreed date, does not give to the club the possibility to deem that it complied with the mentioned obligation. Consequently, the members of the Chamber decided to reject the club’s argument in this regard.

15. Moreover, concerning the club’s allegation about the payment of EUR 1,640 for the player stay at Mr Micael Arias Ruiz Orejón’s apartment plus the additional expenses, the DRC established that by failing to provide proof of said alleged payment (according to the club it paid in cash) the club did not discharge its burden of proof.

16. Consequently, the members of the Chamber decided to accept the player’s claim and to reject the club’s counterclaim and that, in accordance with the general legal principle of pacta sunt servanda, the club is liable to pay to the player outstanding remuneration in the total amount of EUR 1,250.

17. Moreover, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player interest on the aforementioned amount at the rate of 5% p.a. as of the due dates until the date of effective payment.

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

20. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

21. The Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

22. Finally, the Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, Camila Mehler Carvalho, is accepted.

2. The counterclaim of the Respondent/Counter-Claimant, Club de Fútbol Femenino la Solana, is rejected.

3. The Respondent, Club de Fútbol Femenino la Solana, has to pay to the Claimant, the amount of EUR 1,250 as outstanding remuneration plus 5% interest p.a. calculated as follows:

- Over the amount of EUR 400 as of 8 April 2020 until the date of effective payment;

- Over the amount of EUR 400 as of 8 May 2020 until the date of effective payment;

- Over the amount of EUR 450 as of 24 July 2020 until the date of effective payment.

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.

7. This decision is rendered without costs.

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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