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 22 October 2020

Decision of the

Dispute Resolution Chamber

passed on 22 October 2020

regarding an employment-related dispute concerning the player Davi Wanderley Silva

COMPOSITION:

Clifford J. Hendel (USA & France), Deputy Chairman

Angela Collins (Australia), member

Abu Nayeem Shohag (Bangladesh), member

CLAIMANT:

Davi Wanderley Silva, Brazil

Represented by Maciej Krzeminski

RESPONDENT:

FKS Stal Mielec, Poland

Represented by A&M Kancelaria Adwokacka

I. Facts

1. On 11 February 2019, the parties concluded an “Agreement on Professional Football Playing” valid as from the date of signature until 31 December 2019.

2. According to §2.1 of the contract, the player was entitled to a basic salary of PLN 10,000 net payable in arrears by the 15th day of each month.

3. In addition §2.2 of the contract stipulated that the player was entitled to the following:

“Equivalent to washing and using your own clothing and working footwear for the entire duration of the contract, payable to the 15th day of the following month in the amount of PLN 1000.00 (one thousand zlotys) paid in the form of reimbursement, i.e. in gross amounts = net. Player is entitled to obtain this equivalent, provided only when the Player is a member of the first senior team.”

4. Furthermore, §2.3 of the contract stipulated that the player was entitled to the following:

“The club is obliged to pay to the player a bonus for the 100% attendance on the training, sparring, friendly games, official matches paid down to the 15th of next month in the amount of PLN 2000,00 net (in words: two thousand zlotys net). Absence can be justified by an injury or disease documented by a doctor. In the event of failure to meet the above conditions, §3 section 3 of the contract will apply accordingly”

5. Art. V par. 7 of the contract stipulated that, “in the event of a player’s violation of confidentiality provisions, irrespective of the possibility of the club to claim compensation on general terms, the club is entitled to impose a contractual financial penalty in the amount of PLN 50,000 for each event”.

6. Art. 6 par 3 of the contract stipulated the following:

“3. All disputes regarding the validity, existence or termination of the contract as well as disputes over property rights or non-proprietary rights will be resolved by the Football Arbitration Court at the PZPN.”

7. On 5 December 2019, the player sent a default notice to the club, requesting the payment of the total amount of PLN 78,000 net as outstanding remuneration (i.e. 13,000*6, from June 2019 until November 2019, plus “statutary interest” as from the 16th day of each month.

8. On 10 January 2020, the Claimant lodged a claim against the Respondent for outstanding remuneration and requested the following:

“to order the Respondent to pay to the Claimant the amount of 78.000 PLN with interests as follows:

1. from the amount 13000 PLN from 16th July 2019 until the day of payment

2. from the amount 13000 PLN from 16th August 2019 until the day of payment

3. from the amount 13000 PLN from 16th September 2019 until the day of payment

4. from the amount 13000 PLN from 16th October 2019 until the day of payment

5. from the amount 13000 PLN from 16th November 2019 until the day of payment

6. from the amount 13000 PLN from 16th December 2019 until the day of payment.”

9. In its reply to the claim, the club stated that “according to paragraph 6 art. 3 this dispute should be contributed to Pilkarski Sad Polubowny (Football Mediation Court) in PZPN .”

10. In this respect the club provided a copy of the Statutes of the Polish FA, which establish, inter alia, the following:

Article 48 –The composition of the PZPN Football Court

§ 1.PZPN Football Court shall be composed of 25 –27 arbitrators, appointed and dismissed by the Executive Committee of PZPN.

§ 2.The disputes submitted to the PZPN Football Court shall, in first instance, be examined and settled by three-person adjudicating panels. Each party shall designate one arbitrator from the list of Football Court members, and the two appointed arbitrators shall elect the Chairman of the panel (mediator) from this list.

§ 3.A party may submit within fourteen days from the delivery of the decision with grounds a request for a new examination of a case by a group of five new arbitrators. Each party shall two arbitrators, who will select the mediator.

§ 4.The PZPN Football Court is a permanent court of arbitration within the meaning of article 1158 of the act dated 17th November, 1964 -the Code of Civil Procedure (Journal of Law No. 43, position 296, with subsequent amendments) and operates under articles 1154-1217 of the aforementioned code. § 5.A state judge may not be a member of the Football Court.

§ 6.The current activity of the PZPN Football Court is managed by its Praesidium, which includes the chairman, deputy chairmen, secretary and 2 members selected by the arbitrators.

11. The club stated that, “the Player concealed that he did not have a valid work permit and therefore the signed contract could not be performed -he was suspended from execution of the contract until obtaining the work permit.”

12. In view of the above, the club stated that it could not pay the player’s remuneration, because it would be exposed not onlv to disciplinary liability towards the PZPN bodies but also to penal and fiscal liability.

13. The club thereafter explained that, as from 15 May 2019, the player was legally allowed to work in Poland.

14. Within this context, the club explained that it paid the player as follows:

May 2019 - PLN 6500 – “the Player has permission to work from 15th May 2019”

June 2019 - PLN 3000

July 2019 - PLN 10,000 – “the Player was playing for the second team, so he was not able to obtain the additional equivalent for participation in first team training and obtain the equivalent for using own clothing and footwear”

August 2019 – PLN 10,000 – “the Player was playing for the second team, so he was not able to obtain the additional equivalent for participation in first team training and obtain the equivalent for using own clothing and footwear” September 2019 – PLN 10,000 - “the Player was playing for the second team, so he was not able to obtain the additional equivalent for participation in first team training and obtain the equivalent for using own clothing and footwear)

October 2019 –PLN 11,500 – “The player was member of the second team from the 1st do 14th October, after he was member of the first team”

November 2019 - PLN 13,000 – “The Player was member of the first team until 25th November”

December 2019 – “The Player was absence through the 10 training session without any justification”.

15. In support of said payment, the Club attached a report from “Alior Bank” in Polish only, exposing the following payments since July 2019 and for the total amount of PLN 31,000.

16. The club further requested the payment of PLN 50,000 for “violation of confidential provisions” in accordance with art. 5 par.7 of the contract.

17. In support of its allegations concerning the absences, the club submitted a report from the coach.

18. The Claimant was invited to reply to the club’s response.

19. As to the competence, the player argued that the Polish NDRC does not provide equal representation of players and clubs, and referred to Chapter VI of the PZPN Statutes.

20. In this respect, the Claimant considered that, as to the work permit, it is the responsibility of the future employer to obtain a work permit for a foreigner,

21. Moreover, the Claimant underlined that the contract’s validity was not made conditional to obtaining a work permit. As a result, the Claimant considered that the Club's failure to obtain a work permit is an obstacle caused by the Club in fulfilling its contractual obligations, which should not affect the Player's right to receive remuneration.

22. As to the alleged payments, the player considered that the Club has not provided reliable and credible data to conclude that it has paid the Player's remuneration and allowances for the period from June 2019.

23. In relation to the salary deductions occurred due to the move to the second team, the player underlined that the contract itself does not state on what terms the transfer to second team should take place and that the club “clearly did so in order to reduce the remuneration due to the Player for benefits due to the equivalent or reward for training·”.

24. According to the player, he was moved to the second team in December 2019, i.e. at the end of the contract, when a dispute arose regarding the payment of overdue remuneration.

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 10 January 2020. Taking into account the wording of art. 21 of the November 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 members of the Chamber referred to art. 3 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 Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension.

3. As a consequence, the DRC would, in principle, be competent to decide on the present litigation which involves a Brazilian player and a Polish club regarding an employment-related dispute.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the “Pilkarski Sad Polubowny (Football Mediation Court) in PZPN”.

5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.

6. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

8. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause.

9. In this respect, the Chamber recalled that clause 6 par. 3 of the contract stipulated that “3. All disputes regarding the validity, existence or termination of the contract as well as disputes over property rights or non-proprietary rights will be resolved by the Football Arbitration Court at the PZPN.”

10. Thus, in principle, the Chamber understood that said clause appears to be sufficiently clear.

11. However, in relation to the outlined requirements of art 22 lit. b) concerning the composition of the aforementioned body, referred to of the contents of 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, and after duly examining the documentation on file, the Chamber noted that the Respondent failed to provide clear and specific information concerning the composition of said decision-making body. In particular, the Chamber understood that the Respondent was unable to provide evidence that clubs and players were able to exercise equal influence over the compilation the arbitrators’ list of the Polish Football Court of Arbitration.

13. As a result, the Chamber could not confirm that the aforementioned body guarantees guaranteeing fair proceedings and respects the principle of equal representation of players and clubs,

14. On account of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

15. In continuation, the Chamber analyzed 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 Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition October 2019) and, on the other hand, to the fact that the present claim was lodged on 10 January 2020. Therefore, the Dispute Resolution Chamber concluded that the October 2019 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.

16. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts 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.

17. In this respect, the Chamber noted that, on 11 February 2019, the parties concluded an “Agreement on Professional Football Playing” valid as from the date of signature until 31 December 2019.

18. Subsequently, the Chamber noted that, on 10 January 2020, the Claimant lodged a claim against the Respondent for outstanding remuneration and requested the following:

“to order the Respondent to pay to the Claimant the amount of 78.000 PLN with interests as follows:

1. from the amount 13000 PLN from 16th July 2019 until the day of payment

2. from the amount 13000 PLN from 16th August 2019 until the day of payment

3. from the amount 13000 PLN from 16th September 2019 until the day of payment

4. from the amount 13000 PLN from 16th October 2019 until the day of payment

5. from the amount 13000 PLN from 16th November 2019 until the day of payment

6. from the amount 13000 PLN from 16th December 2019 until the day of payment.”

19. Within this context, the Chamber recalled: that the contract stipulated the following economic conditions:

§2.1: ,Basic salary of PLN 10,000 net payable in arrears by the 15th day of each month.

§2.2: “Equivalent to washing and using your own clothing and working footwear for the entire duration of the contract, payable to the 15th day of the following month in the amount of PLN 1000.00 (one thousand zlotys) paid in the form of reimbursement, i.e. in gross amounts = net. Player is entitled to obtain this equivalent, provided only when the Player is a member of the first senior team.”

§2.3 of the contract: “The club is obliged to pay to the player a bonus for the 100% attendance on the training, sparring, friendly games, official matches paid down to the 15th of next month in the amount of PLN 2000,00 net (in words: two thousand zlotys net). Absence can be justified by an injury or disease documented by a doctor. In the event of failure to meet the above conditions, §3 section 3 of the contract will apply accordingly”

20. As a result, the Chamber concurred that, in principle, the player was entitled to a monthly salary of PLN 13,000.

21. Conversely, the Chamber observed that, in this respect, the club attached a report from “Alior Bank” in Polish only.

22. In this regard, the DRC recalled the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Similarly, the Chamber referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates that all documents of relevance to the dispute shall be submitted in the original version as well as translated into one of the official FIFA languages.

23. In this context, the DRC noted that the Respondent did not provide a translated version of the documents it submitted in Polish. In view of the foregoing and taking into consideration art. 9 of the Procedural Rules, the DRC decided that it could not take into account the documents which have not been made available in an official FIFA language.

24. Therefore, the Chamber decided that the documents as presented by the Respondent could not be considered.

25. Moreover, the Chamber noted that the Respondent argued that the player was entitled to a monthly salary of PLN 10,000 (and not PLN 13,000) since “the Player was playing for the second team, so he was not able to obtain the additional equivalent for participation in first team training and obtain the equivalent for using own clothing and footwear”

26. In this respect, the Dispute Resolution Chamber reminded the parties of the contents of 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”.

27. After duly examining the documentation on file, the Chamber understood that the Respondent failed to provide sufficient evidence in support of its argumentation in this regard. As a result, the Chamber dismissed the Respondent’s allegations in this respect.

28. In view of all of the above, the Chamber could only presume that the amount of PLN 78,000, corresponding to his remuneration between June 2019 and November 2019, remained outstanding (i.e. PLN 13,000*6).

29. As a result, in accordance with the principle of pacta sunt servanda, the Chamber established that the Respondent shall pay to the claimant, the outstanding amount of PLN 78,000, as contractually provided.

30. In addition, and taking into account the jurisprudence of the DRC and the request of the Claimant, the Chamber decided to award 5% interest p.a. over the relevant due dates (i.e. the day following the “15th day of the following month”, as indicated in the contract)

31. Subsequently, the Chamber noted that the club requested requested the payment of PLN 50,000 for “violation of confidential provisions” in accordance with art. 5 par.7 of the contract.

32. In this respect, the Chamber observed that the contract Art. V par. 7 of the contract stipulated the following:

“in the event of a player’s violation of confidentiality provisions, irrespective of the possibility of the club to claim compensation on general terms, the club is entitled to impose a contractual financial penalty in the amount of PLN 50,000 for each event”.

33. After duly examining the contents of the aforementioned clause, the Chamber unanimously considered that its contents appear to be arbitrary in their very own nature. In addition, the Chamber also considered that the Respondent failed to provide specific evidence to support that the player breached any confidentiality rule.

34. As a result, the Chamber rejected the Respondent’s request in this regard.

35. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

36. In this regard, the Dispute Resolution 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.

37. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

38. Finally, the Dispute Resolution 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.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Davi Wanderley Silva, is admissible.

2. The claim of the Claimant, is partially accepted.

3. The Respondent, FKS Stal Mielec, has to pay to the Claimant, the following amount:

- PLN 78,000 as outstanding remuneration plus 5% interest p.a. as from the due dates until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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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