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 24 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 24 February 2020,

by Philippe Diallo (France), DRC judge,

on the claim presented by the player,

Luiz Antonio de Campos Junior, Brazil

represented by Mr Sergio Roberto Ribeiro Filho

as Claimant

against the club,

FK Senica, Slovakia

represented by Mr Svetozar Pavlovic

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. Allegedly, on 25 July 2016, the Brazilian player Luiz Antonio de Campos Junior (hereinafter: the player or the Claimant) and the Slovakian club FK Senica (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract) valid as from 1 August 2016 until 31 May 2017.

2. According to the contract, the parties “agreed on a mutual extension of the contract on the period from 1 June 2017 to 31 May 2018 under the conditions specified in Appendix 1 of the contract. Both parts must confirm the extension”.

3. Annex 1 of the contract provided that “the contract is automatically extended for one year if the player enters at least 70% of all competition matches (minimum = 344 matches of this 33 leagues matches / and minimum 1 game Slovak national cup, when a match = 45min) in the year 2016/2017”.

4. In accordance with the contract, the player was entitled to a monthly salary of EUR 2,469 gross payable by no later than the last day of the following month.

5. According to art. 8.8 the player was entitled to “reimbursement of expenses related to sporting activities”.

6. Art.10 of the contract provided for a compensation in case of unilateral termination by the player corresponding to one monthly salary.

7. In July 2016, the player was invited by the club to join it and substantially, the player received the contract from the club and allegedly sent it back to the club signed by him.

8. On a unknown date, the club allegedly provided the player with flight tickets.

9. Allegedly, on 4 August 2016, the player underwent medical exams with the club.

10. On 18 August 2016, the club published through its social media pictures of the player and others training.

11. Allegedly, at the end of August, the club informed the player that his services were no longer needed.

12. On 20 March 2017, the player put the club in default requesting the total amount of EUR 46,200 net corresponding to:

 EUR 19,800 for the salaries of August 2016 to May 2017 (minus an advance payment of EUR 200);

 EUR 26,400 for the salaries of June 2017 to May 2018.

The player gave 15 days for the club to remedy its default.

13. On 13 June 2017, the player lodged a claim in front of FIFA against the club for compensation for breach of the contract, requesting the total amount of EUR 48,600, plus 5% interest per month as from August 2016, the above-mentioned amount corresponding to:

 EUR 19,800 net for the salaries of August 2016 to May 2017 (minus an advance payment of EUR 200);

 EUR 26,400 net for the salaries of June 2017 to May 2018;

 EUR 2,400 “air tickets Slovak Republic / Brazil”.

14. In his claim, the player considered he had a valid contract signed with the club, but was never provided with a signed version by the club. He considered that he travelled to the club and trained for a month there, but only received EUR 200 as advance payment.

15. The player was of the opinion that the club terminated without just cause the contract as it allegedly argued that “due some problems with the register of another Brazilian player, the club’s board decided that [the player] should also be released and his contract terminated”.

16. In reply to the claim of the player, the club held that the player was only in the club for a trial and that the contract provided by the player was only a draft and that “the only aim was to trial a player and subsequently move on with contractual issue should player undergo successful trial”.

17. The club argued that it was the standard procedure for the club to invite players during the transfer window, to pay flight tickets and accommodation for the club to undergo trial them.

18. The club acknowledged that the player came on trial but denied him going through medical examination.

19. The club underlined that it never signed the contract, and only provided it to the player as a draft .The club added that for a contract to be valid, it should be signed by both parties which is not the case at hand.

20. On the EUR 200, the club confirmed making that payment but held that it was only to cover some costs for the player during his trial and not an advance on a salary.

21. The club requested the reimbursement of his legal costs up to EUR 2,500.

22. In his replica, the player argued that it did not make sense that the club would spend EUR 3,000 on plane tickets just to trial a player. He also considered that it was not logical to send a draft contract to a player for a trial only.

23. The fact that it sent the contract to the player, shows, according to the player, that the club was really interested in him, and that to the least, the contract was an offer of the club to the player and accepted by the player.

24. In its duplica, the club reiterated its arguments and requested EUR 3,500 as reimbursement of legal fees.

25. After being requested to, the player informed the FIFA administration that on 18 January 2017 he signed an employment contract with the Brazilian club Esporte Clube Taubaté valid as from 2 January 2017 until 8 May 2017 for a total value of Brazilian Real 4,000 (approx. EUR 1,080). He further informed the FIFA administration that he signed an employment contract with the Brazilian club Sport Club Atibaia on 19 December 2017 valid until 30 April 2018 for a total value of BRL 5,000 (approx. EUR 1,290).

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 13 June 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are 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 (edition 2020) 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 Slovakian 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 (edition 2020), and considering that the present claim was lodged on 13 June 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand.

4. The applicable regulations having been established, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file which he considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC judge acknowledged that the according to the Claimant he signed an employment contract with the club on 25 July 2016 according to which he was entitled to a monthly remuneration of EUR 2,469.

6. Subsequently, the DRC judge noted that the Claimant argued that he had travelled to Slovakia with a plane ticket paid by the club, underwent medical exams and was provided with EUR 200, but that at the end of August 2016, the club informed the player that his services were no longer needed.

7. The DRC judge took note that on 20 March 2017, the Claimant put the Respondent in default considering that the contract had been unilaterally terminated by the Respondent without just cause and that as such he was entitled to outstanding remuneration, and compensation for breach of the contract. The DRC judge noted that this request was reiterated by the Claimant in his claim, for the total amount of EUR 48,600.

8. In the same way, the DRC judge recalled that the Respondent deemed that no contract had been signed by the club and that the player had only been invited in Slovakia for a trial, and that the document provided by the Claimant was only a draft and not an offer.

9. On account of the above and of the diverging opinion of the parties, the DRC judge deemed the main issue at stake in this current matter was to determine if a valid employment contract had been signed by the parties and in that case, by which party had it been breached and the consequence of said eventual breach.

10. In this regard, the DRC judge recalled that in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship, the remuneration and the signature of both parties. After a careful study of the contract presented by the Claimant, the DRC judge highlighted that said document was not signed by the Respondent.

11. In this regard, the DRC judge took note that according to the Claimant he was not provided with a signed copy of the contract but received the contract to be signed by him via email and sent it back with his own signature.

12. On the other hand, the DRC judge noted that the Respondent held that it did not sign the contract and only provided the player with a draft of the contract since it was interested in trying him but after the trial decided to not continue with the player.

13. The DRC judge further understood that the Claimant considered that he had accepted an offer from the Respondent by signing the contract and sending it to the club, and that he further held that the club paid him the flight ticket to joint the club, that he did a medical exam and that he was even paid an advance payment of EUR 200.

14. The DRC judge understood that according to the Claimant, even without a contract signed by the Respondent, the multiple elements brought forward by the Claimant were sufficient to demonstrate an employment relationship between the parties.

15. With this in mind, the DRC judge found it crucial to recall that in accordance with the legal principle of the burden of proof, which is a basic principle in every legal system, a party deriving a right from an asserted fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural Rules).

16. In this regard, the DRC judge, noted that the Claimant held that he passed medical examination but that allegation was denied by the Respondent. With art. 12 par.3 of the Procedural Rules in mind, the DRC judge noted that no evidence had been provided to substantiate that the player went through medical examination.

17. On the other hand, the DRC judge observed that the player had been paid EUR 200 and that according to the player that amount was an advance on his monthly salary. On that amount, the Respondent acknowledged making that payment but argued that it was simply to cover the costs of living of the Claimant during the trial period.

18. In this regard, the DRC judge took note that the player provided a payment slip, as well as its translation in English, but noted that said translation did not appear to be complete as the “purpose” for payment provided in the original had not been translated in the translation provided. Moreover, the DRC judge wanted, at this time, to underline that the amount paid by the Respondent was EUR 200 which was considerably less than the allegedly agreed monthly salary provided in the contract attached to the claim of the Claimant, since a monthly salary of EUR 2,469 was provided in it. In that sense, the DRC judge considered that the EUR 200 paid to the Claimant by the Respondent could not be assimilated to an advance payment on a monthly salary since the evidence provided in this regard was not sufficient and that the amount seemed to be too little compared to the alleged monthly remuneration of the Claimant.

19. Moreover, the DRC judged recalled that the events mentioned by the Claimant had happened around August 2016, and the DRC judge observed that the Claimant had put the Respondent in default on 20 March 2017. With this in mind, the DRC judge found it important to underline the relatively long period of time during which the Claimant did not contact the Respondent and considered that this could also be understood that at a certain point in time the parties may have had an interest in each other’s, but not to the extent of entering formally into a contractual relationship.

20. Taking all of the above into consideration, the DRC judge was of the firm opinion that in the absence of an employment contract signed by both parties, the Claimant had failed to provide any conclusive evidence that he had signed an employment contract with the Respondent. As such, the DRC judge considered that no valid employment contract had been signed between the Claimant and the Respondent, and that consequently no compensation could be claimed by the Claimant.

21. In the light of all of the above, the DRC judge decided that it must reject the claim put forward by the Claimant in its entirety.

III. Decision of the DRC judge

The claim of the Claimant, Luiz Antonio de Campos Junior, is rejected.

*****

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 appeal procedure:

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. 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 (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne, Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org / www.tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer