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 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

Jose Luis Andrade (Portugal), member

on the claim presented by the player,

Luis Vinicius Da Silva Matos, Brazil

represented by Mr Raphael Pitombo de Cristo

as Claimant

against the club,

Vegalta Sendai, Japan

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. The Claimant and the Respondent (hereinafter jointly referred to as: the parties) concluded an employment contract (hereinafter: the contract), valid as from 3 August 2017 until 1 January 2020.

2. According to the contract, the Claimant was entitled to receive from the Respondent the following amounts as “basic remuneration”:

- USD 60,000 during the “first term”, i.e. between 3 August 2017 and 1 January 2018;

- USD 165,000 during the “second term”, i.e. between 1 February 2018 and 1 January 2019;

- USD 220,000 during the “third term”, i.e. between 1 February 2019 and 1 January 2020.

3. Moreover, the Claimant was entitled to receive several bonuses depending on the performances of the Respondent.

4. On 3 December 2017, the parties signed a document (hereinafter: the termination agreement) by means of which they terminated their contractual relationship as of 1 January 2018 “on mutual consent”.

5. In accordance with the termination agreement, “the player shall make a deposit of USD 2.000,00 to the Club in order to have the Club clear on behalf of the Player any of unpaid expenses which the Player has an obligation to pay (…). After completion of such clearing of such unpaid expenses, the Club shall refund remaining amount of the deposit to the Player (...).”

6. In addition, the termination agreement stated that “bills for medical expenses that the Payer payed in Brazil have to be sent to the Club by January 1st, 2018. Those expenses will be reimbursed by the Club to the designated accounts by January 31st, 2018.

7. On 19 June 2019, the Claimant lodged his claim against the Respondent in front of FIFA.

8. In his claim, the Claimant explained having suffered a knee injury in October 2017. According to the Claimant, the Respondent agreed that he would undergo treatment in Brazil and to pay “for the first surgery” and for “some physiotherapy sessions.”

9. In continuation, the Claimant accused the Respondent of having induced him into signing the termination agreement which was “clearly harmful to the athlete, violating the principle of the FIFA legislation, namely, parity and equity between the parties.” The Claimant considered that the termination agreement “has only clauses prejudicial to the athlete” and that it could not be considered as a “friendly termination agreement” but only as a “unilateral termination of the agreement”.

10. The Claimant deemed that the fact that he had to pay USD 2,000 to the Respondent confirmed the above, as “in addition to not receiving any value from the termination of the contract, [he] still had to pay a fee to the club to pay his basic expenses, which shows the total abuse of the agreement, which had the sole purpose of breaking the bond of the club with the athlete, in view of the injury suffered.”

11. According to the Claimant, the termination agreement was “directly contrary to the general principle of proportionality and balance of rights of the parts since it provides benefits only to the club without establishing an equivalent right to the athlete.”

12. In view of the above, the Claimant deemed that the termination agreement was to be considered invalid in line with art. 14 par. 2 of the Regulations and asked FIFA to consider his request “valid so that the agreement signed is invalidated, constituting a justified cause of termination of the contract, and, consequently, the payment of all salary amounts due to the athlete until the end of his bond with the club in addition to his medical expenses, which amount to US $ 387,201.00”.

13. The amount of USD 387,201, requested by the Claimant, was broken down as follows by the latter:

“For the second phase of the contract - $ 165,000

For the third stage of the contract - $ 220,000

Medical Fees - $ 673,00

Anesthesia - $ 260,00

Surgical Material - $ 336,00”

14. In its reply, the Respondent contested the Claimant’s claim, arguing that the termination agreement was concluded by mutual agreement of the parties. The Respondent also contested the allegation that the termination agreement had been prejudicial to the Claimant.

15. In his replica, the Claimant reiterated the content of his claim. In particular, the Claimant argued that at the moment that the termination agreement was concluded, the Respondent had taken advantage “of the moment of difficulty and emotional fragility that [he] was experiencing due to his injury” and had induced him into signing a document which was “clearly harmful” and “violates FIFA’s principle of parity and equity between the parties”.

16. Moreover, the Claimant indicated that he was “currently without a job, in the final stages of recovery from injury suffered when he was an athlete of club Vegalta Sendai.”

17. In its duplica, the Respondent maintained once again that the termination agreement had been concluded by mutual consent of the parties. In addition, the Respondent emphasized that the Claimant had failed to provide any evidence in support of its allegations.

18. Subsequently, the Respondent clarified that the sum of USD 2,000 paid by the Claimant was “only to secure the various his utilities cost of his last month in Japan (water, electricity, gas and phone) for which he is liable (..) but had not been charged by each utility companies at the time of the termination agreement. (..) After Vegalta Sendai has completed the payment to each utility companies on behalf of the player, remaining money of deposit been paid back to the player bank account on 2018 February od 2nd (..) together with winning bonuses, prize money (total of 2,250.26 USD) and the amount of money the player paid for medical treatment in Brazil (10,500 BRL = 3,300.43 USD) which are in total of 5,550.69 USD”.

19. Hence, the Respondent considered that it had “completed all payments towards the player”. In this regard, the Respondent concluded that “this payment rather shows our good faith to respect the contract and does not show any bad faith by any means.”

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber took note that the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018, hereinafter: Procedural Rules) were applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2019), it was competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between a Brazilian player and a Japanese club.

3. In continuation, 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 Players (edition June 2019), and considering that the present claim was lodged on 19 June 2019, the June 2019 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

4. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. 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.

5. First, the Dispute Resolution Chamber noted that the parties concluded the contract for the period between 3 August 2017 and 1 January 2020, by means of which the Claimant was entitled to receive from the Respondent “basic remuneration” in the amounts of USD 60,000 during the “first term”, USD 165,000 during the “second term” and USD 220,000 during the “third term”. The Chamber also took note that the Claimant was entitled to receive several bonuses depending on the performances of the Respondent.

6. Second, the Chamber noted that the parties signed the termination agreement on 3 December 2017. In this regard, the Chamber observed that the conclusion of the termination agreement was not contested by either party.

7. Third, the Chamber took note of the Claimant’s position, according to which the Respondent had induced him into signing the termination agreement and that said document was prejudicial to the Claimant, not proportionate and contrary to art. 14 par. 2 of the Regulations. In this context, the Chamber also acknowledged the Claimant’s request that the termination agreement be considered as an invalid unilateral termination, justifying the payment of all salaries and medical expenses by the Respondent in the total amount of USD 387,201.

8. On the other hand, the Chamber took note of the Respondent’s position that the termination agreement had been concluded by mutual agreement between the parties and should therefore be considered as valid.

9. The Chamber emphasised that the central element of the present matter was to determine the validity of the termination agreement concluded between the parties.

10. In this context, the DRC recalled the content of art. 14 par. 2 of the Regulations, whereby “any abusive conduct of a party aiming at forcing the counterparty to terminate or change the terms of the contract shall entitle the counterparty (a player or a club) to terminate the contract with just cause”.

11. In light of the above and in view of the position and documentation submitted by the parties, the DRC decided that there was no evidence to support the allegation that the Claimant would have been induced by the Respondent into signing the termination agreement.

12. Moreover, the DRC considered that no evidence could ascertain that the Respondent had acted abusively in the context of art. 14 par. 2 of the Regulations.

13. In continuation, the Chamber noted that it appears that the obligations set out in the termination agreement have been complied with.

14. In view of the above, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Luis Vinicius Da Silva Matos, 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 article 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.

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

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer