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 21 January 2020

Decision of the Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 21 January 2020,

by

Omar Ongaro (Italy), DRC Judge

on the matter between the player,

Antonio Benvenutti de Souza, Brazil

represented by Mr Rodrigo Tittoto Acra and

Mr Alexandre Dias Bortolato

as Claimant

and the club,

AD Metapan, El Salvador

as Respondent

regarding a dispute arisen between the parties in connection with

an employment-related dispute

I. Facts of the case

1. On 21 April 2018, the Brazilian player, Antonio Benvenutti de Souza (hereinafter: the player or the Claimant) and the Salvadoran club, AD Metapán (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract) valid for the 2018/2019 season.

2. Pursuant to clause II of the contract, the parties further agreed that the contract may be extended or terminated in advance by mutual agreement between the parties.

3. As to the remuneration, clause III of the contract stipulated that the player was entitled to the following:

- A monthly salary of USD 1,625 during the “First Tournament”;

- A monthly salary of USD 1,875 during the “Second Tournament”.

4. According to clause III, the contract further indicated that the above-mentioned amounts will be paid monthly, on the last working day of each month within the term, to which the corresponding Income Tax withholding will be applied. Likewise, both contracting parties agreed that during the Pre-Season of each Tournament, and having participated in it, the club shall only be obligated to pay the Player fifty percent of the agreed-upon amount.

5. According to the player, on the 22 October 2018, the club decided to terminate the contract unilaterally.

6. In this respect, the club provided during the course of the investigation a copy of a mutual termination agreement, dated 22 October 2018, stating, inter alia, that the parties had agreed to terminate the contract. Furthermore, according to said agreement the player declared having nothing to claim in economic matters and in any other matter to the club. Lastly, the club further declared not having any future commitment.

7. The player lodged a claim before FIFA against the club for outstanding remuneration, and requested the payment of the total amount of USD 8,784.68, plus 5% interest p.a. as from 22 November 2018 until the date of effective payment, detailed as follows:

- USD 5,259.68 “corresponding to the remainder of the salary of the contract period”;

- USD 3,525 “as indemnity for the early termination of the contract cause by the Club”.

8. According to the player, considering the content of the contract, he was entitled to receive the amount of USD 9,900, corresponding to six monthly salaries as from 21 April 2018 until

22 October 2018. However, as per the player, he only received the amount of USD 4,640.32 “paid in different checks in the different values”

9. The club underlined in its reply that the contract was not terminated unilaterally, but rather on the basis of a mutual termination agreement dated 22 October 2018. In this respect, the club provided a copy of said agreement and explained that, by means of said document, the player acknowledged that no outstanding amounts remained due.

10. Before the closure of the investigation, the player sent an unsolicited correspondence, arguing that the club did not present “any proof of payment of the amount due, neither presented the deposit receipt”.

11. In addition, the player argued that he “was coerced into signing the “Declaration” presented by the Respondent to take back his passport and personal documents and to be able to return to his home country, even not agreeing to the early termination of the employment contract and aware of the existence of amounts due”.

II. Considerations of the Dispute Resolution Chamber (DRC) judge

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge or the judge) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 August 2019. Taking into account the wording of art. 21 of the 2019 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.

2. Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, 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 Salvadoran club.

3. Furthermore, the DRC judge 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, and considering that the present claim was lodged on 5 August 2019, the 2019 edition of said regulations (hereinafter: 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 judge entered into the substance of the matter. Entering into the substance of the matter, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge 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. In this respect, the judge recalled that the Claimant and the Respondent, on 21 April 2018, concluded an employment contract valid for the 2018/2019 season, according to which the player was entitled to the remuneration specified in points I.3. and I.4. above.

6. In order to determine the duration of the contract, the DRC judge took note that, according to the TMS, the Salvadoran 2018/2019 season ran as from 28 July 2018 until 15 June 2019.

7. Subsequently, the DRC judge noted that the Claimant lodged a claim against the Respondent for breach of contract without just cause, arguing that the club did “not comply with its financial obligations towards the player”.

8. Furthermore, the judge acknowledged that the Respondent provided a copy of a document containing a declaration in accordance with which the player and the club agreed to terminate the employment relationship. Additionally, the DRC judge took note that, by means of said declaration, the player admitted having nothing to claim in economic matters and in any other matter (cf. point I.6. above).

9. In continuation, the DRC judge noted that the Claimant, by means of his unsolicited correspondence dated 11 November 2019, argued that he “was coerced into signing the “Declaration” presented by the Respondent to take back his passport and personal documents and to be able to return to his home country, even not agreeing to the early termination of the employment contract and aware of the existence of amounts due”.

10. In this regard, referring to 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, the DRC judge took into account that the player failed to present documentary evidence in support of his allegation that he had been coerced, by the Respondent, into signing the above-mentioned document. Consequently, the judge decided that the Claimant’s allegations in this regard cannot be accepted.

11. In the light of all of the above, and in particular bearing in mind the fact that the Claimant signed the aforementioned waiver, the Dispute Resolution Chamber judge decided that it must reject the claim put forward by the Claimant.

III. Decision of the Dispute Resolution Chamber (DRC) Judge

1. The claim of the Claimant, Antonio Benvenutti de Souza, 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 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 (cf. point 4 of the directives).

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 Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer