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 27 January 2021

Decision of the

Dispute Resolution Chamber Judge

passed on 27 January 2021

regarding an employment-related dispute concerning the player Ricardo Alves Pereira

BY:

Alexandra Gómez Bruinewoud (Uruguay/Netherlands), DRC Judge

CLAIMANT:

Ricardo Alves Pereira, Brazil

Represented by Marcelo Amoretty Souza

RESPONDENT:

Club US Ben Guerdane, Tunisia

I. FACTS OF THE CASE

1. On 16 May 2019, the Brazilian player Ricardo Alves Pereira (hereinafter “the player”) and the Tunisian club US Ben Guerdane (Hereinafter “the club”) signed an employment contract (hereinafter: “the contract”) valid as from 1 July 2019 until 30 June 2021.

2. According to art. 4 of the contract, the club undertook to pay to the player the following salary:

- Season 2019/2020: USD 30,000 to be paid as follows:

• USD 10,000 before 31 July 2019;

• USD 10,000 before 31 January 2020;

• USD 10,000 before 31 May 2020.

- Season 2020/2021: USD 30,000 to be paid as follows:

• USD 10,000 before 31 July 2020;

• USD 10,000 before 31 January 2021;

• USD 10,000 before 31 May 2021.

3. In addition to the above, the club undertook to provide the player with accommodation with two other players and collective transportation.

4. On an unknown date, the player, the club and the Saudi Arabian club, Al Ansar (hereinafter: the Saudi Arabian club or Al Ansar) signed a loan agreement (hereinafter: “the loan agreement”) according to which the player was loaned from the former to the latter “as from its date until 15/06/2020”.

5. According to the loan agreement, Al Ansar paid USD 20,000 to the club for the loan of the player and Al Ansar undertook to pay the player USD 30,000 for the duration of the loan, including his agent’s fees.

6. By means of a letter dated 10 August 2020 to the club, the player complained that the salaries due on 31 May 2020 and 31 July 2020 remained outstanding. However, the player underlined that he wished to continue working for the club. As such, the player granted the club 15 days to pay the relevant amounts, failing which he would terminate the contract.

7. On 26 August 2020, the player noted that no payment and no answer had been received by the club within the 15-day deadline. In this context, the player informed the club of the termination of the contract.

8. On 4 September 2020, the club replied expressing its surprise with regard to the aforementioned correspondence. The club explained that the player was loaned to the Saudi Arabian club, as from 1 January 2020 until 15 June 2020. With the foregoing in mind, the club stated the following:

- It always respected its commitments and the player “signed a document dated 30/01/2020 certifying that he has received all his salaries”;

- The player cannot claim his salary of 31 May 2020 since his loan ends on 30 June 2020;

- The sports season in Tunisia ends on 15 June 2020 but due to covid-19, the season was extended until 15 September 2020 in accordance with FIFA Circular 1714;

- The payment due on 31 July 2020 “is provided for in the contract for the start of the 2020/2021 season, but this season does not start until 10/01/2020”;

9. The club further informed the player that “we are ready in case of your refusal of any cooperation to pay the player” and explained that “coming to an agreement in good faith will be beneficial for the player”. In particular, the club expressed its “desire to see the player again in our team and we are counting on him very much for next season”. Finally, the club held that the player went directly to Brazil at the end of his loan, in clear violation of the contract and considered that the player’s termination was not valid.

II. PROCEEDINGS BEFORE FIFA

10. On 10 September 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

11. In his claim, the player insisted that he always complied with his contractual obligations. However, the player explained he only received the two first salaries set out in the contract, the club failing to pay the salaries due on 31 May 2020 and 31 July 2020.

12. According to the Claimant, the club did not reply to his default notices.

13. The Claimant submits that taking into account that the player’s annual salary was USD 30,000, to be paid in 3 instalments, the player “came to the conclusion that each instalment covers 4 (four) months of salary”. Therefore, by failing to pay the two instalments of 31 May 2020 and 31 July 2020, the club actually failed to pay 8 months of salary.

14. As such, the player considered that the club was in breach of contract and that thus, he was entitled to terminated the contract with just cause as per art. 14bis, as he did.

15. In light of the above, the player requested the following:

- USD 20,000 as outstanding remuneration;

- USD 20,000 as compensation corresponding to the residual value of the contract (instalments due on 31 January and 31 May 2021);

- Sporting sanctions as per art. 17 par. 4 of the FIFA Regulations on the Status and Transfer of Players (RSTP) against the club.

b. Position of the Respondent

16. In his reply, the club held that the player expressed his intention to be loaned and was thus loaned to the Saudi Arabian club as from 30 January 2020 until 15 June 2020.

17. According to the Respondent, when the player sent his default notices, the player was on loan in the Saudi Arabian club. Considering that the contract between the player and the club was suspended during the loan, the player had no right to receive said amounts.

18. The club also explained that the salaries were paid in cash because the player failed to provide a valid bank account.

19. The Respondent further argues that the player never came back to the club after his loan in Saudi Arabia and travelling was not an issue as there were still regular flights between the two countries.

20. However, by means of its letter dated 4 September 2020, the club offered to the player to amicably resolve the situation and to let the player resume his activity with the club.

21. This said, the Respondent emphasises that the player never replied to its correspondence, thereby clearly demonstrating his bad faith and wish to terminate the contract rather than resuming his activities.

22. In light of the above, the club considered that the player terminated the contract without just cause and claimed to have suffered a damage since it lost a valuable foreign player. As such, the club lodged a counterclaim against the player and requested the following.

- USD 40,000 calculated on the basis of the contract “(USD 10,000 received + USD 30,000 to be received)” (free translation from original in French);

- Sporting sanctions in the form of a suspension of 6 months against the player.

23. Alternatively, the club requested that the player’s claim be rejected.

c. Answer to the counterclaim

24. In its position on the counterclaim, the player confirmed that he was loaned to the Saudi Arabian club “for the period of 30 January 2020 to 30 May 2020”.

25. This said, the player claimed that “this contract was terminated on 05 March 2020, having in mind the player’s ITC was never delivered to the Saudi club, because the Respondent delayed the insertions of the details on the TMS system”. As such, the player emphasised that the non-obtaining of the ITC is not his fault and referred to DRC jurisprudence in that regard.

26. The termination agreement between the player and Al Ansar provided the following (quoted verbatim):

“I am the undersigned RICARDO ALVES PEREIRA, BRAZILIAN nationality passport no (YE020972) professional player in the first team football club Al-Ansar city IN Madinah for the sports season 2019/20920 THAT My contract had been terminated consensually between me and the club and I received my full financial dues from salaries and housing allowance until today 5/3/2020, and that my contract with the club, which started on 30/1/2020 and end on 30/5/2020 and I have no right to claim the club or any other entity any financial aspects for this period by check number (05375140) Fro (37500 riyals), equivalent to 10,000 dollar, and this is my confirmation of that”.

27. The Claimant argues that considering the loan agreement and the employment contract between the player and the Saudi Arabian club were terminated on 5 March 2020, the “contract between the Claimant and the Respondent returned to be in force, consequently, the obligation to make the payments of the salary was in force also”.

28. The player also acknowledged that the club offered to amicably terminate the contract, however the player “never wanted to terminate his contract. On contrary, the Claimant wanted to maintain his contract until the final day, reason why the Claimant did not accepted (sic) the termination agreement offered by the Respondent.”

III. CONSIDERATIONS OF THE DRC JUDGE

a. Competence and applicable legal framework

29. First of all, the Dispute Resolution Chamber Judge (hereinafter: DRC Judge) analysed whether she was competent to deal with the case at hand. In this respect, she took note that the present matter was presented to FIFA on 10 September 2020 and submitted for decision on 27 January 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 aforementioned edition of the Procedural Rules is applicable to the matter at hand.

30. Subsequently, the DRC Judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition January 2021), 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 a Tunisian club.

31. Subsequently, 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 Player (edition January 2021), and considering that the present claim was lodged on 10 September 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

32. The DRC Judge recalled the basic principle of 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. Likewise, the DRC Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider evidence not filed by the parties.

33. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

34. The competence of the DRC Judge and the applicable regulations having been established, the DRC Judge entered into the substance of the matter. In this respect, she started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC Judge emphasised that in the following considerations she will refer only to the facts, arguments and documentary evidence, which she considered pertinent for the assessment of the matter at hand.

35. Having said this, the DRC Judge 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.

36. From the documentation available on TMS and on file, the DRC Judge was convinced of the fact that the player’s loan to Al Ansar was terminated prematurely, due to player’s ITC not being delivered. In this regard, the termination agreement signed between the player and Al Ansar, provided only in the response to the counterclaim, provides convincing evidence of the fact that the loan of the player ended at the latest on 5 March 2020.

37. Against such background, the DRC Judge deemed that the contract between the player and the club should had become valid again on or around March 2020, since its term was 30 June 2021.

38. Analysing the evidence on file, the DRC Judge took note that the club held that the player never came back after his unsuccessful loan in Saudi Arabia and further specified that travelling was not an issue as there were still regular flights between the two countries.

39. The DRC Judge gave weight to the fact that in his default notice dated 10 August 2020, the player claimed that he wished to continue working for the club. However, it should be noted that the player did not mention anything in his claim with regard to his loan to Saudi Arabia.

40. Moreover, the DRC Judge gave weight to the fact that the player did not provide any elements to explain whether or not he returned to Tunisia in March 2020. Indeed, it was noted by the DRC Judge that the player did not contest the club’s argument that he did not return back to Tunisia in March 2020, nor any other time thereafter. Furthermore, the player did not provide any evidence as to whether he tried to return Tunisia at any given time.

41. Furthermore, the DRC Judge turn to the fact that according to the club’s correspondence dated 4 September 2020, the club made an offer to the player to amicably resolve the situation and to let the player resume his activity with the club. The player did not reply to said correspondence and lodged his claim in front of FIFA only 6 days later, i.e. on 10 September 2020.

42. On the other hand, the DRC Judge noted that the club was, or should had been, aware that the loan to Al Ansar had not materialized due to the impossibility for delivering the ITC on time, partly due to the club’s actions.

43. Moreover, whilst there is no evidence on file to suggest that the club was aware of the termination signed between Al Ansar and the player, there is no evidence either of any attempt made by the club to contact the player at the time before or after the loan agreement was originally due to expire (i.e. 30 June 2020) in order for the parties to organize the return of the player.

44. Against such background, the DRC Judge was comfortably satisfied to consider that the parties lost interest in one another as no services were provided by the player since 15 December 2019 and as from the evidence available on file, it also appears that the club did not try to reach out to the player to ask him to return to Tunisia to resume his activities, at any given time, neither at the expected expiry date of the loan nor at the factual early termination date of the loan. Put differently, the DRC Judge concluded that both parties mutually departed from the contract since 15 December 2019.

45. Bearing in mind all the above, the DRC Judge decided that the claim and the counterclaim are both rejected in its entirety.

46. As a way of conclusion, the DRC Judge 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 DRC Judge decided that no procedural costs were to be imposed on the parties.

47. Likewise, and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DRC JUDGE

1. The claim of the Claimant/Counter-Respondent, Ricardo Alves Pereira, is rejected.

2. The counterclaim of the Respondent/Counter-Claimant, Club US Ben Guerdane, is rejected.

For the DRC Judge:

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).

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