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 12 February 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Omar Ongaro (Italy), Deputy Chairman
José Luis Andrade (Portugal), member
Johan van Gaalen (South Africa), member
on the claim presented by the player,
Cassio Francisco de Jesus, Brazil
represented by Mr Mohd Zhafri Bin Aminurashid
as Claimant
against the club,
Kelantan Football Association, Malaysia
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 15 December 2017, the Brazilian player, Cassio Francisco de Jesus (hereinafter:
the Claimant or the player), and the Malaysian club, Kelantan Football Association
(hereinafter: the Respondent or the club), signed an employment contract
(hereinafter: the contract) valid as from 17 December 2017 until 30 November 2019.
2. In accordance with Article 2.1 and Schedule A of the contract, the Claimant was
entitled inter alia to a monthly salary in the amount of USD 10,000 to be paid “no
later than the 7th of the following month”.
3. Moreover, according to Schedule B of the contract, the Claimant was, inter alia,
entitled to receive a signing-on fee in the amount of USD 5,000 and one return
flight ticket per season. With regard to the flight ticket, the contract stipulated the
following:
“b. If he Player is married, his wife and children (if any) below the age of 12
shall also be entitled to one (1) return flight ticket;
c. Flight ticket shall be from and to Player’s country of origin or any destination
agreed by the Member”.
4. On 31 January 2019, the parties allegedly signed a new employment contract
(hereinafter: the second contract), valid as from 4 January 2019 until 30 October
2019. In this context, the Claimant provided an unsigned copy of the second
contract.
5. Pursuant to Article 2.1 and Schedule A of the second contract, the Claimant was
entitled inter alia to a monthly salary in the amount of USD 12,000 to be paid “no
later than the 7th of the following month”.
6. Furthermore, in accordance with Schedule B of the second contract, the player was
entitled to receive one return flight ticket per season (cf. under the same conditions
as point I.3. above).
7. According to the Claimant, on 31 January 2019, he requested the club to provide
him with a signed copy of the second contract.
8. Due to the fact that the Respondent allegedly failed to provide a signed copy of the
second contract, the Claimant stated that, on 6 August 2019, he requested, once
again, a copy of the second contract duly signed. Additionally, the Claimant further
requested the Football Association of Malaysia to confirm whether the second
contract had been filed by the Respondent.
9. As per the Claimant, the club did not pay him the monthly salaries for September,
October, November and December 2018.
10. Moreover, the Claimant held that, on 4 February 2019, he received a payment in the
amount of USD 12,000 from the Respondent, corresponding to the monthly salary for January 2019. In this context, the player sustained that “it is clearly showing that
the new salary of USD12,000.00 has been agreed by the Club and the Player for new
season of 2019 […]” (cf. point I.3. above).
11. Subsequently, after having received the above-mentioned payment, the Claimant
pointed out that the Respondent failed to comply with its financial obligations as
“from February 2019 until May 2019”. Furthermore, the player indicated that the
club also failed to pay the signing-on fee in the amount of USD 5,000.
12. Additionally, the player sustained that, pursuant to Schedule B of the contract(s), he
was also entitled to receive the amount of USD 2,944.60, corresponding to the flight
tickets.
13. On 8 May 2019, the Claimant put the club in default for the payment of USD 88,000,
granting a 7 days’ deadline to remedy the default.
14. Subsequently, on 16 May 2019, the Claimant addressed the Respondent with a
further correspondence, requesting the payment of USD 88,000 within the following
10 days.
15. On 27 May 2019, the player terminated the contract with immediate effect, in
writing that he had just cause to terminate due to the fact that the Respondent
failed to pay him the amounts requested previously.
16. On 1 July 2019, subsequently amended on 14 August 2019, the Claimant lodged a
claim against the Respondent before FIFA, requesting the total amount of USD
142,944.60, broken down as follows:
- USD 88,000 as outstanding remuneration, plus interest of 5% p.a. as from the
relevant due dates;
- USD 60,000 as compensation for the breach of the contract, plus interest of
5% p.a. as of the date of the claim;
- USD 2,944.60 corresponding to the reimbursement of the Claimant’s flight
tickets.
17. With regard to his claim, the Claimant acknowledged having received USD 5,000 as
partial remuneration for the salary of September 2018. However, the Claimant
stated that, on the date of termination of the contract, i.e. 27 May 2019, the
Respondent owed him USD 88,000, corresponding to the following: (i) signing-on
fee in the amount of USD 5,000; (ii) USD 5,000 corresponding to half the salary of
September 2019; (iii) the monthly salaries as from October 2018 until and including
May 2019.
18. Furthermore, notwithstanding the Claimant’s default letters sent on 8 May 2019 and
16 May 2019 respectively, the Respondent failed to pay to the Claimant the
outstanding amounts. Consequently, according to the Claimant he had just cause to
terminate the contract.
19. On 25 October 2019, the FIFA Administration notified the claim of the Claimant to
the Respondent and granted the latter a deadline to submit its reply until 14
November 2019.
20. On 26 November 2019, the Respondent filed its answer to the claim.
21. On 13 January 2020, the FIFA Administration informed the Respondent that its reply
had been filed after the deadline set in FIFA’s letter of 25 October 2019 and thus
reminded the Respondent of the content of art. 9 par. 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.
22. After being requested by FIFA, the Claimant confirmed that on 30 August 2019, he
signed an employment contract with the Indonesian club, P.S. Barito Putera, valid as
from 1 September 2019 until 31 December 2019 “and/or end of season”, according
to which he was entitled to receive a monthly salary of Indonesian Rupiah (IDR)
130,200,000.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analyzed 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 July 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 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 2020), the DRC 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
Malaysian 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, and
considering that the present claim was lodged on 1 July 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 DRC and the applicable regulations having been
established, the members of 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 members of the Chamber emphasized 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 of all, the DRC noted that the parties entered into an employment contract
valid as from 17 December 2017 until 30 November 2019, according to which the
Respondent undertook to pay the Claimant USD 10,000 per month for the 2018 and
2019 seasons. Furthermore, pursuant to Schedule B. f) of the contract, it was further
agreed that the Claimant would be entitled to receive the following: a) USD 5,000
upon signing the contract; b) one return flight ticket for every contractual season,
including “his wife and children”.
6. The DRC took note that the Claimant provided an unsigned copy of the second
contract, allegedly concluded between the parties and valid as from 4 January 2019
until 30 October 2019, according to which the Respondent undertook to pay the
Claimant USD 12,000 per month for the season 2019. Furthermore, pursuant to
Schedule B. f) of the contract, the club committed itself to provide the Claimant
with one return flight ticket for every contractual season, including “his wife and
children”.
7. Moreover, the DRC acknowledged that it was undisputed that the Claimant put the
Respondent in default on two occasions, i.e. on 8 May 2019 and 16 May 2019, and
thereafter terminated the contract on 27 May 2019.
8. In continuation, the members of the Chamber noted that the Claimant, on 1 July
2019, lodged a claim against the Respondent maintaining that he had terminated
the employment contract with just cause, after previously having put the club in
default. In this respect, the Chamber wished to emphasize that, according to the
Claimant, at the time of termination of the contract, the total amount of USD
88,000 was yet to be paid by the Respondent. Consequently, the Claimant asks to be
awarded his outstanding dues as well as the payment of compensation for breach
of the employment contract.
9. At this point, the members of the Chamber recalled that the Respondent had filed
its reply to the claim of the Claimant on 26 November 2019 only. This is, after the
deadline set by the FIFA Administration, i.e. 14 November 2019. In this respect, the
DRC referred to art. 9 par. 3 of the Procedural Rules which provides, inter alia, that
“submissions received outside the time limit shall not be taken into account”
(emphasis added).
10. Consequently, the members of the Chamber unanimously concluded that the reply
of the club, filed after the expiration of the deadline, cannot be admitted to the
file. As such, the DRC held that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the admissible documents. In
other words, upon the statements and documents presented by the Claimant.
11. In continuation, the DRC highlighted that the first issue in the matter at stake is to
determine as to whether the second contract of employment had to be considered
as valid and binding.
12. In this regard, the Chamber wished to emphasize that, according to the Claimant,
on 31 January 2019 and 6 August 2019, he requested the club to provide him with a
signed copy of the second contract. In spite of the Claimant’s requests, the
Respondent allegedly failed to provide a signed copy of the second contract.
13. In this context, in respect of the basic question as to whether or not a second
employment contract between them had been concluded, the members of the
Chamber firstly referred to 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. The application of the said principle in the present matter led the
members of the Dispute Resolution Chamber to conclude that it was for to the
Claimant to prove that the second employment contract, on the basis of which he
claims compensation for breach of contract from the Respondent, indeed existed.
14. First of all, having stated the above, the DRC recalled that the Claimant maintained
that he never received a copy duly signed by both parties of the employment
contract he asserts having signed with the Respondent. However, the Claimant had
submitted a document in support of his allegations which was in continuation
examined by the members of the Chamber.
15. Secondly, the DRC noted that the Respondent failed to present its response to the
claim of the Claimant within the stipulated deadline. Consequently, by not
presenting its position to the claim, the DRC was of the opinion that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
16. In view of all the aforementioned, the Chamber considered that the second
contract had been validly concluded between the parties and, therefore, was
binding. Consequently, the DRC further concluded that, as from 4 January 2019, the
second contract replaced the first contract. Therefore, as per the DRC, as from
January 2019, the Claimant was to obtain, inter alia, a monthly salary of USD
12,000.
17. Having established the above, the members of the Chamber proceeded to
determine the primary issue in the matter at stake, namely to determine as to
whether the Claimant had just cause to terminate the contract on 27 May 2019.
18. The DRC duly noted that on 27 May 2019 the Claimant terminated the contractual
relationship, based on the Respondent’s alleged failure to pay his outstanding
remuneration. In addition, the DRC noted that the Claimant sustained having sent
two default letters to the Respondent, which according to the Claimant, remained
unanswered. The Respondent, for its part, did not contest having received these
requests and that they remained unanswered.
19. In this context, the Chamber also noted that, at the time of the termination of the
contract, eight monthly salaries were outstanding to the player, i.e. half of the
salary of September 2018, three monthly instalments of USD 10,000 each,
corresponding to the months of October, November and December 2018, as well as
four monthly instalments of USD 12,000 each, corresponding to the months of
February, March, April and May 2019.
20. On account of the aforementioned, and considering that the Respondent did not
invoke any reason to justify the non-payment of the Claimant’s salaries, the
Chamber deemed that the Respondent, on the date of termination of the contract
by the Claimant, i.e. 27 May 2017, failed to pay the amount of USD 83,000 to the
player. Moreover the members of the Chamber pointed out that such amount is
equivalent to eight monthly salaries and concluded that, as the Respondent failed
to pay said remuneration without any valid reason, it could be established that the
Respondent had seriously neglected its contractual obligations towards the
Claimant in a continuous manner and for a significant period of time.
21. In view of the above, and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause
to unilaterally terminate the employment contract on 27 May 2019 and that, as a
result thereof, the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
22. In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant, the
Chamber focused its attention on the consequences of such termination. In this
regard, in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent would be, in principle, liable to pay to the
Claimant the amounts which were outstanding under the contract at the moment
of the termination, i.e. USD 83,000
23. In addition, considering the Claimant’s claim for interest and also taking into
account the Chamber’s longstanding jurisprudence, the Chamber ruled that the
Respondent must pay 5% interest p.a. on the amounts of USD 5,000 as from 8
October 2018, USD 10,000 as from 8 November 2018, USD 10,000 as from 8
December 2018, USD 10,000 as from 8 January 2019, USD 12,000 as from 8 March 2019, USD 12,000 as from 8 April 2019, USD 12,000 as from 8 May 2019 and 12,000
as from 8 June 2019.
24. Furthermore, with regard to the Claimant’s claim pertaining to the flight tickets,
the members of the DRC observed that in accordance with Schedule B of both
contracts, the Claimant was indeed entitled to receive flight tickets from the
Respondent.
25. In this regard, the Chamber observed that the Claimant alleged that he had to bear
the relevant ticket costs to return to his home country for the amount of USD
2,944.60 and that, in accordance with art. 12 par. 3 of the Procedural Rules, the
Claimant supported said allegation with documentary evidence.
26. Consequently, the DRC decided that the Respondent must pay, in accordance with
the general principle of pacta sunt servanda, the amount of USD 2,944.60 to the
Claimant, corresponding to the flight ticket costs incurred by the latter.
27. Subsequently, the Chamber decided that, taking into consideration art. 17 par. 1 of
the Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract, in addition to any outstanding salaries on the
basis of the relevant employment contract.
28. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the respondent in the case at stake. In
doing so, the members of the Chamber firstly recapitulated that, in accordance with
art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including in particular, the remuneration and
other benefits due to the Claimant under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five
years, and depending on whether the contractual breach falls within the protected
period.
29. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of contract.
In this regard, the Chamber established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
30. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of
compensation payable.
31. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from
the date of termination with just cause by the Claimant, i.e. 27 May 2019, until the
original date of expiry of the second contract, i.e. 30 October 2019, and concluded
that the Claimant would have received remuneration in the total amount of USD
60,000 had the contract been executed until its ordinary expiry date. Consequently,
the Chamber concluded that the amount of USD 60,000 serves as the basis for the
final determination of the amount of compensation for breach of contract in the
case at hand.
32. Hence, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been enabled to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount
of compensation for breach of contract in connection with the Claimant’s general
obligation to mitigate his damages.
33. In this respect, the Chamber recalled that the Claimant had found new employment
with the club of Indonesia, PS Barito Putera, as from 1 September 2019 until 31
December 2019, which remuneration during the overlapping period shall be
deducted, leading to a mitigated compensation in the amount of USD 19,022.
34. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the
Regulations, according to which a player is entitled to an additional compensation
of three monthly salaries, subject to the early termination of the contract being due
to overdue payables. In case of egregious circumstances, the additional
compensation may be increased up to a maximum of six monthly salaries, whereby
the overall compensation may never exceed the rest value of the prematurely
terminated contract.
35. With the above in mind, the Chamber decided to award the Claimant additional
compensation corresponding to three monthly salaries, i.e. USD 36,000, in
accordance with the above-mentioned provision.
36. Consequently, on account of the above-mentioned considerations, and considering
that the player had limited his request for compensation to USD 60,000, the
Chamber decided that the Respondent must pay the amount of USD 60,000 to the
Claimant, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
37. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date on which the claim was lodged, i.e. 1 July 2019, until
the date of effective payment.
38. In continuation, the Chamber focused its attention on the further consequences of
the breach of contract in question and, in this respect, addressed the question of
sporting sanctions in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates inter alia that, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on a club found to be in breach
of contract during the protected period.
39. Subsequently, the members of the Chamber referred to item 7 of the “Definitions”
section of the Regulations, which stipulates, inter alia, that the protected period
shall last “for three entire seasons or three years, whichever comes first, following
the entry into force of a contract, where such contract is concluded prior to the 28th
birthday of the professional, or two entire seasons or two years, whichever comes
first, following the entry into force of a contract, where such contract is concluded
after the 28th birthday of the professional”. In this respect, the Chamber took note
that the breach of the employment contract by the Respondent, and the
termination of the contract by the Claimant, had occurred on 27 May 2019.
Therefore, the Chamber concluded that, irrespective of the Claimant’s age, such
breach of contract by the Respondent had occurred within the protected period.
40. As a result, by virtue of art. 17 par. 4 of the Regulations and considering that the
Claimant terminated the contract with the Respondent with just cause and,
consequently, the Respondent was to be held liable for the early termination of the
employment contract, the Chamber decided that the Respondent shall be banned
from registering any new players, either nationally or internationally, for the two
next entire and consecutive registration periods following the notification of the
present decision. In this regard, the Chamber emphasised that apart from the
Respondent having clearly acted in breach of the contract within the protected
period in the present matter, the Respondent had also on several occasions in the
recent past been held liable by the Chamber for the early termination of the
employment contracts with the coach González (case. ref. nr. 17-01594; decided on
5 June 2018) and the players Gomis (case ref. nr. 18-01123; decided on 11 April
2019) and Ghaddar (case ref. nr. 18-02677; decided on 22 November 2019).
41. The DRC concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
*****
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Cassio Francisco de Jesus, is partially accepted.
2. The Respondent, Kelantan Football Association, has to pay to the Claimant, within
30 days as from the date of notification of this decision, the amount of USD 83,000
plus interest as follows:
- 5% p.a. on the amount of USD 5,000 as from 8 October 2018 until the date of
effective payment;
- 5% p.a. on the amount of USD 10,000 as from 8 November 2018 until the
date of effective payment;
- 5% p.a. on the amount of USD 10,000 as from 8 December 2018 until the
date of effective payment;
- 5% p.a. on the amount of USD 10,000 as from 8 January 2019 until the date
of effective payment;
- 5% p.a. on the amount of USD 12,000 as from 8 March 2019 until the date of
effective payment;
- 5% p.a. on the amount of USD 12,000 as from 8 April 2019 until the date of
effective payment;
- 5% p.a. on the amount of USD 12,000 as from 8 May 2019 until the date of
effective payment;
- 5% p.a. on the amount of USD 12,000 as from 8 June 2019 until the date of
effective payment.
3. The Respondent has to pay to the Claimant within 30 days as from the date of
notification of this decision, the amount of USD 2,944.60.
4. The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of
USD 60,000, plus 5% interest p.a. on said amount as from 1 July 2019 until the date
of effective payment.
5. In the event that the amounts plus interest due to the Claimant in accordance with
the above-mentioned points III.2., III.3. and III.4. are not paid by the Respondent
within the stated time limits, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
6. Any further claim lodged by the Claimant is rejected.
7. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
8. The Respondent shall be banned from registering any new players, either nationally
or internationally, for the two next entire and consecutive registration periods
following the notification of the present decision.
*****
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.
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