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 24 March 2021

Decision of the

Dispute Resolution Chamber (DRC) Judge

passed on 24 March 2021

regarding an employment-related dispute concerning the player William Martins de Menezes

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

William Martins de Menezes, Brazil

Represented by Ms. Rita Neves Mota

RESPONDENT:

Boavista Futebol Clube, Portugal

I. FACTS OF THE CASE

1. On 28 February 2019, the Brazilian player, Williams Martins de Menezes (hereinafter: the player or the Claimant) and the Portuguese club, Boavista Futebol Clube (hereinafter: the club or the Respondent) executed an employment agreement, valid as from 28 February 2019 until 30 June 2019 (hereinafter: the contract).

2. In accordance with the third clause of the contract, the club undertook to pay the player the following amounts:

a. monthly salary of EUR 3,500 net, to be paid on 15 April, 15 May and 15 June 2019;

b. monthly housing allowance of EUR 350.

3. On 6 November 2020, the player sent the club a first default notice highlighting its failure to perform the payment of all three instalments of EUR 3,500 within the established deadline, in addition to also failing to pay the monthly housing compensation in the total amount of EUR 350. The player granted the club granted the club a 10 days’ deadline for it to proceed with the payment of the total outstanding amount of EUR 11,550.

4. On 19 November 2020, the club replied to the player via e-mail and requested an additional period so it could properly assess the matter at question. The club further stated that the contract was not registered, and, for that reason, that it could not generate sporting effects, but it could still generate employment-related effects.

5. On 20 November 2020, the player sent the club a second default notice by means of which he held that the non-registration of the contract could not be considered as an acceptable justification for the club’s failure to perform the payment of salaries and housing allowance. The player granted an additional 7 days’ period for the club to perform the payment of EUR 11,550, to no avail.

6. On 11 December 2020, the player lodged the claim at hand before FIFA requesting payment of EUR 11,550, plus 5% interest p.a. as of the due dates until the date of effective payment. Additionally, the player also requested the imposition of sporting sanctions on the club.

7. In his claim, the player stated that the club opted for not registering him in any competitions, as well as it forced him only to participate in the training sessions of the club’s senior squad. Furthermore, the player stated that the club failed to perform the payment of all three monthly salaries and housing allowances during the term of the contract.

8. In this context, it is the player’s understanding that the non-payment of the aforesaid amounts has been tacitly recognized by the club since the latter had never indicated, either orally or in writing, to the player or to his legal representatives, that it did not owe the amounts in question. On the contrary, the player remarked that the club had simply stated that the contract “was not registered” and for that reason, “it could not generate sporting effects”, but admitted that it could still “generate employment related effects”.

9. Finally, the player also pointed out that the club had breached article 12bis of the FIFA Regulations on the Status and Transfer of Players (RSTP).

10. In its reply to the claim, the club wrote, quoted verbatim: “the player Williams Martins de Menezes does not have and never had any contract registered in the national or international sports Associations/Federations, by Boavista Futebol Clube, Futebol SAD. FIFA is aware that the player Williams Martins de Menezes was not registered in any sports competitions, organized by FIFA neither by the Portuguese Football Federation or Liga Portugal. Under the Portuguese law and regulations, sports work activity in professional competitions requires registration of the employment contract in Liga Portugal and Portuguese Football Federation. In conclusion, the player Williams Martins de Menezes does not have any employment contract registered with any of the aforementioned entities, not even at FIFA, so this case must be closed”.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

a. Competence and applicable legal framework

11. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 11 December 2020 and submitted for decision on 24 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 aforementioned edition of the Procedural Rules is applicable to the matter at hand.

12. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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), he 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 Portuguese club.

13. Subsequently, the DRC Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition February 2021), and considering that the present claim was lodged on 11 December 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

14. 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 he may consider evidence not filed by the parties.

15. 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

16. His competence and the applicable regulations having been established, the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

17. The foregoing having been established, the DRC Judge moved to the substance of the matter, and took note of the fact that the player requested the total amount of EUR 11,550, plus interests, corresponding to his outstanding salaries and housing allowances.

18. In this respect, the DRC Judge acknowledged that the amounts claimed by the player have a clear contractual basis and, additionally, that the club did not dispute the fact that the payments were not made to the player within the relevant deadlines. In this respect, the DRC Judge observed that the club only stated that said remuneration was not due because the contract executed with the player “was not registered in any sports competitions, organized by FIFA neither by the Portuguese Football Federation or Liga Portugal”.

19. Having noted the above, the DRC Judge referred to the content of article 18 para. 4 of the Regulations and recalled the DRC well-established jurisprudence according to which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are in general of the sole incumbency of a club and on which the player has no influence.

20. In this context, the DRC Judge wished to point out that it is the responsibility of the engaging club to ensure that the player is properly registered with his new club in order to be able to provide it with his services. Since the club is supposedly interested in acquiring the rights of the player and in benefiting from his services, it is also expected from it to act accordingly in view of obtaining the player’s ITC and his subsequent registration.

21. On such basis, the DRC Judge confirmed that the contract concluded between the parties was a valid and binding document, which must thus have been complied with.

22. To this end, the DRC Judge was eager to emphasize that, given that the club did not deliver the player a significant part of his remuneration and that, in fact, it merely disputed the legal validity of the contract, the conclusion that a valid and binding employment contract had been entered into by the parties unavoidably leads to the decision that such contract was breached by the club.

23. As a consequence and in accordance with the general legal principle of pacta sunt servanda, the DRC Judge decided that the club is liable to pay to the player the amounts claimed by the player.

24. Furthermore, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC Judge decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from the day following their due dates until the date of effective payment.

25. Therefore, the Single Judge concluded that the claim shall be accepted.

ii. Article 12bis of the Regulations

26. Subsequently, taking into account the applicable Regulations, the DRC Judge referred to art.12bis par. 2 of the Regulations, which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

27. To this end, the DRC Judge confirmed that the player put the club in default of payment of the amounts sought, which had fallen due form more than 30 days, and granted the club with 10 days to cure such breach of contract.

28. Accordingly, the DRC Judge confirmed that the club had delayed a due payment without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations was met in the case at hand.

29. The DRC Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above and bearing in mind that this is the first offense by the club within the last two years, the DRC Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

30. In this connection, the DRC Judge highlighted that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

iii. Compliance with monetary decisions

31. Finally, taking into account the Regulations, the DRC Judge 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.

32. In this regard, the DRC Judge highlighted 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 Judge 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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. The DRC Judge recalled that the above-mentioned bans 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.

d. Costs

35. 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 Chamber decided that no procedural costs were to be imposed on the parties.

36. 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.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Williams Martins de Menezes, is accepted.

2. The Respondent, Boavista Futebol Clube, has to pay to the Claimant, the following amount:

- EUR 3,500 plus 5% interest p.a. as from 16 April 2020 until the date of effective payment;

- EUR 350 plus 5% interest p.a. as from 1 May 2020 until the date of effective payment;

- EUR 3,500 plus 5% interest p.a. as from 16 May 2020 until the date of effective payment;

- EUR 350 plus 5% interest p.a. as from 1 June 2020 until the date of effective payment;

- EUR 3,500 plus 5% interest p.a. as from 16 June 2020 until the date of effective payment; and

- EUR 350 plus 5% interest p.a. as from 1 July 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. A warning is imposed on the Respondent.

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.

8. This decision is rendered without costs.

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).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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