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 4 June 2020

Decision of the

Dispute Resolution Chamber

passed on 4 June 2020,

in the following composition:

Clifford Hendel (USA/France), Deputy Chairman

Elvis Chetty (Seychelles), member

Tomislav Kasalo (Croatia), member

on the claim lodged by the player,

Júlio Cesar Vaz de Andrade, Brazil,

represented by Messrs Cassiano Neves & Morais Palmeiro

as Claimant

against the club,

Manama Club, Bahrain,

represented by Mr Tarek Alaimi

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 22 November 2018, the Brazilian player, Mr Júlio Cesar Vaz de Andrade, (hereinafter: the player or the Claimant) and the Bahraini club, Manama Club (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract), valid as from 1 January 2019 until 15 May 2022 or the end of the 2021/2022 season, whichever occurred later.

2. According to art. 2 of the contract, the Claimant was entitled to the following remuneration:

(i) USD 1,200 as monthly salary as from 1 January 2019 until 15 May 2019;

(ii) USD 1,500 as monthly salary as from 15 July 2019 until 15 May 2020;

(iii) USD 1,700 as monthly salary as from 15 July 2020 until 15 May 2021;

(iv) USD 2,000 as monthly salary as from 15 July 2021 until 15 May 2022.

3. Moreover, the Respondent undertook to make an advance payment of USD 1,000 to the Claimant “20 days from the date of receipt of player ITC”.

4. According to art. 5.4 and 5.5 of the contract, the parties could terminate the contract, as follows:

“5.4: If the Club elects to terminate this contract before its due date, for reasons other than the ones mentioned in clauses from 5.1 to 5.3 of the contract, the Club must give two months’ notice to the Player.

5.5: If the Player elects to terminate this contract or receives an offer from any other club outside Bahrain only before its due date, he must reach to an agreement with the club to terminate the contract or transfer as Loan to the other club.”

5. On 15 May 2019, the Respondent sent a WhatsApp message to the Claimant’s representative, stating that it will “terminate Vaz [the Claimant’s] contact since his passport is expiring on 25th of May […] and he will be forced to leave Bahrain on 21 May […].” The conversation between the Claimant’s representative and the Respondent continued, the latter confirming that it “will apply the contract”.

6. On 18 May 2019, the parties allegedly terminated the contract by signing a termination agreement (hereinafter: the termination agreement). According to the termination agreement, the Respondent undertook to pay the Claimant an amount of 272 Bahraini Dinars (BHD) and “the Player confirms the receipt of Cheque #712337 dated 18/05/2019 drawn of BBK and amounting to BD 272.00 (Two Hundred Seventy Two Bahraini Dinar only)”. In this respect, the termination agreement further stipulated that “both parties confirm that neither of them has any financial obligations on each other.”

7. On 10 June 2019, the Claimant’s representative sent a copy of the Claimant’s renewed passport to the Respondent and continuously requested updates from the Respondent on his return to training.

8. By means of a letter dated 2 September 2019, the Claimant acknowledged receipt of the payment of BHD 272, made on 18 May 2019 and corresponding to “the salary for the 18 days worked during the month of May 2019”. Moreover, the Claimant indicated that on 29 August 2019, the Respondent had sent him a copy of the termination agreement. In this respect, the Claimant “categorically denies having signed any such document and finds it abhorrent that the Club is suggestion that a person would waiver the right to 3 years of remunerations in exchange for a partial payment of roughly 720,000$USD. The Player categorically denies that the signature in the alleged termination is his or was produced by him.” In these circumstances, the Claimant granted the Respondent 48 hours “to apologize for the distress caused, to confirm its willingness to maintain the employment relationship and to issue a plane ticket for the return of the Player to the Club.”

9. On 6 September 2019, the Respondent asked for a valid power of attorney from the Claimant’s representative and indicated that it would reply by “Sunday 8th September 2019 because Friday and Saturday are official days in Bahrain”.

10. On 13 September 2019, the Claimant took note of the absence of reply by the Respondent and stated that he “unequivocally states that that the employment contract entered into between the Club and himself remains valid and binding, and he expects to resume his employment with utmost urgency”. As such, the Claimant granted the Respondent “a final period of 7 days, i.e. until 20 September 2019 to reinstate the Player” and 10 days “to complete the payment of the salary of July 2019, in the amount of 1.500,00$USD, which was due on 31 July 2019 and has been outstanding for more than 30 days”. Finally, the Claimant requested the payment of USD 1,500 as the salary of August 2019 within 15 days.

11. On 17 September 2019, the Claimant reiterated his request and observed that the Respondent’s behavior was an “undeniable disregard for the Player’s well-being and professional interest, which constitutes an overwhelming demonstration of the Club’s lack of interest in the maintenance of the employment relationship between the parties”.

12. On 20 September 2019, the Respondent firmly rejected the charge of forgery with regard to the signature of the termination agreement. In this respect, the Respondent held that “the Player has signed the Contract Termination with full awareness and in absolute direct way” and that “the signature is true and Player has used the same signature on multiple number of documents as important as the Contract Termination”.

13. On 23 September 2019, the Claimant terminated the contract with immediate effect, “based on the Club’s evident lack of interest in the Player’s professional performance, as well as the continuous breach by the Club of its contractual duties.”

14. On 6 December 2019, the Claimant lodged a claim against the Respondent in front of FIFA.

15. In his claim, the Claimant held that the termination agreement was first provided to him by the Respondent on 29 August 2019, via a WhatsApp message. In this regard, the Claimant maintained that he never signed the termination agreement and that such document is forged. To support his allegations, the Claimant provided evidence allegedly proving that his various signatures on several official documents are always written in full, never abbreviated.

16. In these circumstances, the Claimant considered to have terminated the contract with just cause on 23 September 2019, as the Respondent “considered the Alleged Termination Agreement to be valid and it had no interest in the Player’s return to Bahrain.”

17. Furthermore, the Claimant deemed that the termination clause set out at art. 5.4 of the contract should not apply as it “provides for a benefit only towards [the Respondent] with no corresponding or comparable right in favour of [the Claimant].”

18. In light of the above, the Claimant requested the following:

 USD 3,424.19 as outstanding remuneration, corresponding to 16 working days of July 2019, the monthly salary of August 2019 and 23 working days of September 2019.

 USD 53,775.81 as compensation for breach of contract, corresponding to the residual value of the contract.

19. The Claimant also requested the imposition of sanctions on the Respondent.

20. In its reply to the claim, the Respondent rejected the Claimant’s assertions as to any forgery and referred to its good faith when concluding the aforementioned termination agreement.

21. In this respect, the Respondent further referred to various documents, deemed by the Respondent as “of major importance”, signed by the Claimant with his abbreviated signature, i.e. identical as in the disputed termination agreement, such as the proof of “no TPO” signed by the Claimant; the Claimant’s professional statement; the Claimant’s registration; and, finally the Claimant’s license.

22. Consequently, the Respondent held that the aforementioned documents confirm the validity of the Claimant’s abbreviated signature on the termination agreement which, in addition, has been allegedly duly remitted to the Bahrain FA which confirms, in the Respondent’s opinion, the validity of said document.

23. Finally, the Respondent held that the Claimant had been duly paid what he was due until the mutual termination, i.e. 18 May 2019.

24. Upon being requested to provide an original version of the alleged termination agreement, the Respondent sent said document on 18 March 2020. In addition, the Respondent also provided “original versions of the salary vouchers acknowledged by the player”.

25. In light of the above, the Respondent considered that the termination agreement is valid and as a result, the Claimant’s claim should be rejected. Finally, the Respondent requested that the Claimant pays its legal costs in the amount of USD 5,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was first submitted to FIFA on 6 December 2019. Consequently, the November 2019 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 members of 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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2020 edition), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Brazilian player and a Bahraini club.

3. Furthermore, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (March 2020 edition) and considering that the present matter was submitted to FIFA on 6 December 2019, the October 2019 edition of said Regulations is applicable to the present matter as to the substance.

4. With the above having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber firstly acknowledged that it was undisputed that the Claimant and the Respondent had signed an employment contract on 22 November 2018, valid as from 1 January 2019 until 15 May 2022 or the end of the 2021/2022 season, whichever occurred later, and that the Claimant was entitled to the remuneration as set out at points I./2. and 3. above.

6. This being said, the Chamber noted that the Claimant and the Respondent disputed the validity of the termination agreement allegedly concluded between the parties on 18 May 2019.

7. In this regard, the Chamber took note of the extensive argumentation of all parties and noted, in particular, that while the Claimant stated that the termination agreement was forged, as he had never signed it and that he was only presented with a copy on 29 August 2019, the Respondent held that the termination agreement was valid as it had been signed by the parties in good faith.

8. In view of the foregoing, the Chamber established that the main issue to be resolved in the present dispute was to determine whether the parties were indeed bound by a valid termination agreement or not.

9. At this point, the Chamber deemed it necessary to recall the content of art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

10. Bearing in mind the foregoing, the Chamber recalled that the Claimant argued not to have signed the termination agreement and accused the Respondent of having forged his signature on the aforementioned termination agreement.

11. At this stage, the Chamber considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon, nor do they have sufficient power and authority to fully investigate and address, matters of criminal law, such as the ones of alleged falsified signature or documents. Furthermore, the Chamber indicated that it is not part of its usual practice to appoint handwriting experts and that such questions of allegedly falsified documents generally must fall into the jurisdiction and expertise of the competent national criminal authority.

12. The Chamber then recalled that all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the termination agreement of 18 May 2019 as well as on other documents containing the Claimant’s signature provided by the parties in the context of the present dispute. In this regard, the Chamber pointed out that the original version of the termination agreement was in fact provided by the Respondent, following a request of FIFA.

13. In this respect, the Chamber noted the Claimant’s position that he always used his name written in full as a signature on official documents and that he never used an abbreviated signature. On the other hand, the Chamber pointed out that the Respondent referred to other documents “of major importance”, signed by the Claimant with his abbreviated signature.

14. On the basis of its appreciation of the aforementioned documents, in particular, comparing the relevant signatures of the Claimant in the various documents provided in the present case, the DRC was obliged to conclude that, at least from a layman’s perspective, the signatures on such documents appear on a prima facie basis to be the same.

15. In view of all of the above, i.e., the burden of proof on the Claimant to prove the alleged forgery of his signature, the inherent limitations of the Chamber’s investigative powers, and its review of the documentation at its disposal, the Chamber concluded that it was constrained to deem the termination agreement as a valid contractual document concluded between the Claimant and the Respondent on 18 May 2019.

16. In this context, the Chamber pointed out that with regard to the burden of proof set out at art. 12 par. 3 of the Procedural Rules, it could have been expected that the Claimant provides expert statements or further examples of his signature.

17. In continuation, the Chamber observed that pursuant to the termination agreement, the Respondent undertook to pay the Claimant the amount of 272 Bahraini Dinars (BHD) and that the Claimant confirmed having received said amount. Furthermore, the Chamber referred to the final part of the termination agreement, according to which “both parties confirm that neither of them has any financial obligations on each other.”

18. In light of all of the aforementioned considerations, the DRC came to the conclusion that the conditions set out in the termination agreement had been fulfilled and as a result, the request of the Claimant for the payment of outstanding remuneration and compensation for breach of contract had to be rejected.

19. Consequently, the DRC 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, Júlio Cesar Vaz de Andrade, is rejected.

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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 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

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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