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 18 June 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 18 June 2020,

regarding an employment-related dispute concerning the player Jessica DE SOUSA

COMPOSITION:

Geoff Thompson (England), Chairman Mohamed Muzammil (Singapore), member Stefano Sartori (Italy), member

CLAIMANT:

JESSICA DE SOUSA, Brazil

Represented by Mr. Miguel Otí Solares

RESPONDENT:

AD SALA ZARAGOZA, Spain

Represented by Mr. Noé Fau Guinda

I. FACTS OF THE CASE

1. On 20 August 2018, the Brazilian player, Jessica de Souza (hereinafter: the player or the Claimant) and the Spanish futsal club, AD Sala Zaragoza (hereinafter: the club or the Respondent) signed an employment contract valid until 30 June 2021.

2. In accordance with Clause 3 of the contract, the Respondent committed itself to pay to the Claimant a monthly salary of EUR 400 for the “months September and October”, a monthly salary of EUR 450 for the period of “November until April”, as well as a monthly salary of EUR 600 for “May and June”.

3. Clause 3 of the contract further stipulated that the player would receive the minimum guaranteed wage, in accordance with the current collective bargaining agreement.

4. As per clause 6 of the contract, “that which is not provided for in the present contract, will be arranged in the Royal Decree 1006/1985 of 26 June, which regulates the special labour relation of Professional Athletes […]”.

5. On 12 August 2019, the parties signed a mutual termination of the employment contract (hereinafter: the termination agreement), according to which the parties “express their mutual agreement for the termination of the contract that bound both parties up to the date (sic) and that would expire on 30 June 2021. Likewise, the parties declare that there is no amount pending payment and that the contract is totally settled.”

6. On 1 November 2019, the Claimant lodged a claim against the Respondent for breach of contract requesting the amount of EUR 36,560.

7. Concretely, the Claimant requested EUR 31,560 corresponding to the difference between the total salary that should have been paid minus what was effectively paid to her by the Respondent (i.e. EUR 35,010 minus EUR 3,450), plus EUR 5,000 as “moral and sportive damages”.

8. In this context, the Claimant firstly held that the minimum wages amounted to EUR 735 for 2018 and EUR 900 for 2019, as defined in art. 1 of the Royal Decree 1077/2017 of 29 December 2017, and in the Resolution of 18 February 2019 from the General Direction for Employment (“Dirección General de Trabajo”).

9. In continuation, the Claimant argued that her salary was partially paid from September 2018 until May 2019, but that that the Respondent failed to pay her any remuneration as from June 2019.

10. With regard to the termination agreement, the Claimant maintained that she had no alternative but to sign the termination agreement. In this light, the Claimant argued that the termination agreement is to be considered null and void, since she was allegedly intimidated and induced to, mistakenly, sign the document.

11. Thus, the Claimant sustained that she is entitled to request from the Respondent all the outstanding salaries, as well as compensation for breach of contract corresponding to the residual value of the contract.

12. In reply to the Claimant’s claim, the Respondent held that the Claimant had received all salaries according to the contract and the applicable law, i.e. income tax deduction and social security contribution.

13. Furthermore, the Respondent referred to the termination agreement dated 12 August 2019, and affirmed that the Claimant was neither intimidated nor induced to, mistakenly, sign said termination agreement.

14. As such, the Respondent concluded that the Claimant’s claim is to be rejected in its entirety.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

15. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 1 November 2019. Taking into account the wording of art. 21 of the June 2020 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.

16. 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2020), 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 Spanish club.

17. Furthermore, 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 Player, and considering that the present claim was lodged on 1 November 2019, the October 2019 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

18. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

19. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well as the documentation on file, bearing in mind 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.

20. First of all, the DRC acknowledged that the parties had signed an employment contract, valid as from 20 August 2018 until 30 June 2021.

21. Moreover, the DRC noted that on 1 November 2019, the Claimant lodged a claim against the Respondent claiming outstanding remuneration and compensation for breach of contract in the total amount of EUR 36,560.

22. In continuation, the Chamber noted that, for its part, the Respondent argued that no amounts were outstanding to the Claimant, as per the termination agreement of 12 August 2019. However, the Chamber recalled that the Claimant contested the validity of said termination agreement, arguing that she was intimidated and induced to sign the document.

23. Given the above, the Chamber established that the primary issue at stake is to determine as to whether the matter was indeed a valid termination agreement concluded between the parties and thus, whether the Claimant had consequently waived her right to claim outstanding remuneration and compensation vis-à-vis the Respondent.

24. In this regard, the DRC firstly elucidated that the termination agreement contained both the Respondent’s and the Claimant’s signature. Moreover, the DRC wished to emphasize that the Claimant never denied having signed said agreement.

25. Notwithstanding the above, the Chamber took into consideration the Claimant’s comments regarding the termination agreement, arguing that that she was intimidated and induced to sign the document.

26. In this respect, and in relation to the argument of the Claimant that she was intimidated and induced to sign the termination agreement, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).

27. In this context, the DRC was of the opinion that no convincing documentation, or any form of evidence, was provided by the Claimant, which could support her allegation that that she was intimidated and induced to sign the termination agreement.

28. As such, the members of the Chamber concluded that the Claimant did not prove that she was intimidated and induced to sign the termination agreement. Consequently, the DRC decided that the Claimant’s allegations in this regard cannot be accepted.

29. Therefore, the DRC unanimously agreed that it saw no reason to question the validity of the termination agreement.

30. In light of all of the above, and in particular bearing in mind the fact that the DRC concluded that the termination agreement was valid, the Dispute Resolution Chamber decided that in light of the unequivocal contents of such agreement, the Claimant had waived her rights to claim any financial benefits and that, as a result, it must reject the claim put forward by the Claimant in its entirety.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, JESSICA DE SOUZA, is rejected.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED 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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

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