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 15 January 2020
Decision of the Dispute Resolution Chamber (DRC) judge
passed on 15 January 2020,
by Omar Ongaro (Italy),
on the claim presented by the player,
Patrick dos Santos Cruz, Brazil,
represented by Mr Marcelo Franklin dos Santos Filho
as Claimant
and the club,
Sai Gon Football Club, Vietnam
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 30 December 2016, the player Patrick dos Santos Cruz (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the contract) with the club Sai Gon Football Club (hereinafter: the club or the Respondent) valid as from 30 December 2016 until 30 November 2017.
2. In accordance with the appendix 1 of the contract the player was, inter alia, entitled to a monthly salary in the amount of USD 2,000.
3. In addition, according to art. 4 of the appendix 1 of the contract “if Party B [the player] is sick, injured, Party A [the club] has the responsibility to take Party B for treatment in specialized hospitals of Vietnam. Party A shall support a part of treatments costs and the remained cost shall be paid by Party B.
Party A shall not be responsible for cases of sickness or injury not cause by Party B’s training and competition for Party A under direction of Coach or Board of Leaders of Party A or the injury, illness cause by Party B’s violation against Party A’s regulation, not following the instructions of coaches, doctors or injury or sickness caused by Party B suffers from cardiovascular disease, hypertension or historic diseases.”
4. On 24 November 2017, the parties signed a document titled “Contract Liquidation Minutes”, according to which the parties agreed to “liquidate the labor contract” and acknowledged that “from the signing date of this contract liquidation minutes, the two parties do not have any related rights and obligations and none of the parties shall execute any appeal or protest which is related to the signed labor contract, Player is free to negotiate or sign contract with other club.”.
5. On 6 March 2019, the player put the club in default for the payment of USD 89,800, setting a 10 days’ deadline
6. On 21 March 2019, the Claimant lodged a claim for breach of contract and requested the payment of the following amounts:
- USD 1,000 as “reimbursement of medical expenses”;
- USD 4,800 “for the 12 working days withdrawn from the original contract by the Club after the player’s arrival in Vietnam”;
- USD 3,600 “for the 9 days of work withdrawn from the contract by the Club on termination of contract without just cause”;
- USD 32,400, as “the salaries corresponding to the 81 days in which the athlete could not work as a result of the surgery”;
- USD 36,000 as “damages due to the specificity of the sport”;
- USD 10,000 as moral damages;
- “5% of interest counted from the moment in which each request is demandable”.
7. The Claimant further requested the payment of USD 8,700 corresponding to “defense costs”.
8. In his claim the player deemed that “the Club breached the contract and FIFA regulations since the Player had a severe injury during a match played on 5 November 2017, had to go under surgery and received no support by the Club. Also, the Defendant modified the dates of the original contract and its values to harm the player, in addition to having terminated the contract without just cause”.
9. According to the player “the Club gave the Player two separate contracts, one of USD 2,000 […] and one of USD 12,000”, the latter was dated 28 December 2016 and was addressed to “The Board of Administrators”.
10. In this regards, the player claimed that the club paid USD 2,000 to his bank account, whereas “the greater part (ten thousand dollars) was always delivered in cash without any receipt or proper documentation”.
11. Furthermore, the player deemed that the “club’s worst actions came when the athlete was injured during the match on November 5, 2017. In a ball dispute, Patrick took a strong kick in his testicles.”
12. In this respect, the player stressed that due to this injury he had to be operated and “had half a testicle removed”.
13. Moreover, the player highlighted that he “was totally abandoned by the Club to his own fate” and that the club stated that “the Player’s testicle injury should be probably related to excessive sexual intercourse”.
14. In addition, the player claimed that on 20 November 2017 he “was called to the club’s administration room. Upon arrival they said that either he signed the contractual termination or would only receive his salary in late December 2017”.
15. Continuously, the player deemed that he “felt compelled to sign an early termination agreement (presented in English and Vietnamese, which he never even received a copy), otherwise he would simply not receive his last salary”.
16. Consequently, the player emphasized that he “was forced by the Club to give away 9 days of his November salary”.
17. In spite of having been invited to do so, the club did not reply to the claim.
II. Considerations of the Dispute Resolution Chamber (DRC) judge
1. First, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge) analysed whether he was competent to deal with the matter at stake. In this respect, he took note that the present matter was submitted to FIFA on 21 March 2019. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 (January 2020 edition) 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 Vietnamese club.
3. Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players (January 2020 edition), and considering that the present claim was lodged on 21 March 2019, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4. 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, the DRC judge started by acknowledging all the above-mentioned facts of the case as well as the documentation contained in the file.
5. In this respect, the DRC judge acknowledged that the parties to the dispute had signed a valid employment contract on 30 December 2016, in accordance with which the Respondent would pay the Claimant a monthly salary in the amount of USD 2,000.
6. In continuation, the DRC judge acknowledged that on 21 March 2019, the Claimant lodged a claim against the Respondent in front of FIFA, alleging that, on that date, the following amounts remained outstanding:
- USD 1,000 as “reimbursement of medical expenses”;
- USD 4,800 “for the 12 working days withdrawn from the original contract by the Club after the player’s arrival in Vietnam”;
- USD 3,600 “for the 9 days of work withdrawn from the contract by the Club on termination of contract without just cause”;
- USD 32,400, as “the salaries corresponding to the 81 days in which the athlete could not work as a result of the surgery”.
7. In this context, the DRC judge referred to art. 25 par. 5 of the Regulations, according to which the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. Considering that the claim of the Claimant was lodged on 21 March 2019 only, the DRC judge found that he could not enter into any claim for salaries that fell due prior to 21 March 2017.
8. Taking into account the previous considerations, the DRC judge preliminarily concluded that the Claimant’s request for salaries accrued before the date of 21 March 2017 was barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.
9. Subsequently, the DRC judge noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the DRC judge was of the opinion that the Respondent renounced its right of defence and thus, in principle, accepted the allegations of the Claimant.
10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, the DRC judge shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.
11. In this respect, the DRC judge acknowledged that the Claimant signed a document containing a declaration in accordance with which the player admitted having received all his dues and entitlements from the club (cf. point I. 4).
12. In continuation, the DRC judge noted that the Claimant alleged that said document was signed by him as he felt “compelled” to sign it, otherwise he would “not receive his last salary”.
13. After duly analysing the contents of the aforementioned document and the argument of the Claimant, the DRC judge came to the conclusion that, indeed, the player waived any of his potential rights arisen from any agreement concluded before the date of the signature of said document. Moreover, the DRC judge understood that, on the basis of the documentation and information on file, it appears that the player was sufficiently aware of the consequences of signing the aforementioned document.
14. In addition, the DRC judge wished to emphasise that he did not consider the document dated 28 December 2016, to be a valid employment contract, as it was addressed to the “Board of Administrators” and was not signed by the player.
15. On account of the above, the DRC judge decided to reject the claim of the Claimant.
III. Decision of the DRC judge
1. The claim of the Claimant, Patrick dos Santos Cruz, is rejected insofar it is admissible.
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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 relating to the motivated decision (legal remedy):
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, a copy of which we enclose hereto. 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 (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: info@tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer