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 February 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 February 2020,

in the following composition:

Clifford Hendel (USA), Deputy Chairman (did not take part in the deliberations)

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), member

on the claim presented by the club,

Sport Club Corinthians Paulista, Brazil

as Claimant

and the player,

Caio Emerson Pereira Marques da Silva, Brazil

represented by Mr Rafael Botelho

as First Respondent

and the club,

Granada CF, Spain

represented by Mr Iñigo de Lacalle and Mr Álvaro Garcia Barrosa

as Second Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case 1. On 26 February 2014, the Brazilian club, Sport Club Corinthians Paulista (hereinafter: the Claimant or Corinthians) and the Brazilian player, Caio Emerson Pereira Marques da Silva (hereinafter: the Respondent I or the player), born on 19 February 1999, entered into a “Sports Training Contract with Apprentice Scholarship” (hereinafter: the contract). Clause 1.1. of the contract provides “a minimum duration of one year, valid for three years, from 26 February 2014 to 26 February 2017”.

2. Clause 4.1. of the contract provides that the Claimant shall pay the player, “per month, as a financial support, in the form of apprenticeship scholarship, the amount of Brazilian Real (BRL) 5,000”.

3. Clause 5.1. provides as follows:

4. Clause 6.1. provides as follows:

5. On 3 October 2018, Corinthians lodged a claim against the player for breach of contract. In this respect, the Claimant held that, despite being registered as an amateur by the CBF, the Claimant considered the player to be a professional in light of the remuneration provided for in 4.1. of the contract.

6. The Claimant explained that, in accordance with the Brazilian regulations as well as Clause 5.1. of the contract, it had offered the player a three year employment contract prior to the end of the contract. The Claimant sustained that the essential terms of said employment contract were detailed in the contract, therefore the contract could also be qualified as a pre-contract.

7. The Claimant sustained that the player had refused its offer, left the club and failed to report for training until the end of the contract. Thereafter, the Claimant discovered that the player had signed his first professional contract with the Spanish club Granada CF (hereinafter: the Respondent II or Granada) on 6 April 2017.

8. On 29 June 2017, the Claimant warned Respondent II and its national association that said registration of the player would lead the Claimant to seek compensation, for breach of contract without just cause against the player and the Respondent II. Equally, the Claimant highlighted that the Respondent II should be held liable for having induced the player to breach his contract. According to the Claimant, said correspondence remained unanswered. Ultimately, the player’s International Transfer Certificate (ITC) was duly delivered by the CBF to the RFEF.

9. The Claimant made the following requests:

10. In reply to the claim, the player explained that, as of 26 February 2017, that the contract had either expired on its term or become invalid as the provision related to its extension, clause 5.1, was in his opinion invalid. In this respect, the player referred to art. 18.2 RSTP underlining that at the date of signature of the contract, i.e. 26 February 2014, he was 15 years old and could not have signed for a period exceeding three years. Consequently, as there was no valid employment contract binding the parties as from 27 February 2017, the player held that he did not breach any contract with the Claimant when joining Respondent II.

11. In the alternative, the player explained that, even assuming the extension of the contract would be deemed valid, the Claimant itself had been in breach of the contract by having failed to pay the player his monthly support of BRL 5,000 as from August 2016 until February 2017, i.e. seven monthly payments. According to the player, said breach would have justified a termination of the contract with just cause, considering that, as per the Claimant’s claim, the player should be considered a professional.

12. In reaction to the claim, the Respondent 2 first held that in its opinion, the contract was clearly not that of a professional if one looks at the wording of the various clauses as well as the respective legal basis under Brazilian law. In addition, the Respondent 2 referred to the player’s passport, which categorized the player as an amateur while registered with the Claimant.

13. Furthermore, the Respondent 2 affirmed that the contract had clearly expired and considered that the Claimant had not provided proof that an offer had been made to the Respondent I. Indeed, the player was a free agent when joining its team; proof of this being the fact that the CBF duly de-registered the player without any further conditions. In addition, the Respondent 2 held that in accordance with clause 7.1 of the contract, no compensation was due considering that the termination occurred after the first year of validity of the contract.

14. Finally, the Respondent 2 also raised the fact that since the player was registered as an amateur with the Claimant, should he be considered responsible of having breached the contract, the consequences arising from such breach under art 17 RSTP could not apply, said consequences being conditioned to a professional player being considered, not an amateur. In addition, the Respondent 2 raised the issue of article 18.2 RSTP as well and sustained that no contractual period exceeding 3 years could be considered in the present matter, in accordance with the contract and the player’s age upon signature. Finally, the Respondent 2 rejected any application of Brazilian national law to it and underlined that should any compensation be awarded, said amount should be lowered to a maximum amount of BRL 180,000.

15. In its replica, the Claimant rejected the player’s and Respondent 2’s allegations, both in full. The Claimant alleged that it unsuccessfully submitted its offer as to the employment contract as well its request for the player to return to training and practice, via telegrams and Facebook, however to no avail. The Claimant submitted said documents and reiterated its initial claim in full.

16. In its duplica, the Respondent 2 reiterated its previous position entirely. Additionally, the Respondent 2 held that the Claimant expressly recognized the fact that the player held the amateur status by lodging another claim against the Respondent 2, through TMS, and requesting the payment of training compensation. Consequently, the Respondent 2 deemed that by acting in such way, the Claimant considered his player to be an amateur and that he had been registered as a professional for the first time with the Respondent 2. Finally, the Respondent 2 strongly contested the seriousness of the evidence provided by the Claimant in its replica with regard to some alleged efforts to reach the player.

17. In parallel, in his duplica, the player reaffirmed as well the content of his reply to the claim. Additionally, he underlined that Clause 3.2 g) of the contract was unilateral as it obliged only the player to sign the subsequent employment contract, not the Claimant, and to bear the consequences of such refusal. Thus, said clause should be deemed as invalid. Finally, the player contested the validity of the evidence provided by the Claimant in its replica arguing mainly that said evidence is irrelevant to the present case.

18. Finally, in an unsolicited correspondence submitted after the closure of the investigation, the Respondent 2 submitted the decision of the Single Judge of the sub-committee of the Dispute Resolution Chamber rendered on 18 September 2019, by means of which it had been decided that the Respondent 2 was liable for the payment of training compensation to the Claimant. In this respect, the Claimant submitted as well the Claimant’s payment request, invoice and the Respondent 2’s proof of payment. Consequently, in the Respondent 2’s opinion, the player having been considered as an amateur in the aforementioned decision, said argument should be added to its previous submissions.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 3 October 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are 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. a) of the Regulations on the Status and Transfer of Players (edition 2020) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute between a Brazilian club, a Brazilian player and a Spanish club, where an ITC was issued.

3. 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 Players (edition 2020) and considering that the present claim was lodged on 3 October 2018, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. 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.

5. The DRC first of all recalled that, on 26 February 2014, the Claimant and the Respondent I had entered into a “Sports Training Contract with Apprentice Scholarship”. The player, whose date of birth is 19 February 1999, was 15 years old at the time, and therefore a minor. Such contract was concluded for a duration of three years, i.e. until 26 February 2017, and provided for a monthly financial retribution of BRL 5,000 to be paid to the player.

19. The Chamber then took due note of the Claimant’s arguments, according to which, prior to the expiry of the contract, it had offered the player a new contract. The Claimant refers in this context to Brazilian law as well as to Clause 5.1. of the contract, which, in essence, provides that the player shall be bound to sign a 3 year contract when he turns 16 or when the contract comes to an end. The Claimant contends that the contract already contained the essential terms of the new contractual relationship and as such should be considered a pre-contract.

20. The Claimant thus concludes that, by signing a contract with Granada, the player had breached their contractual relationship and is liable for compensation for breach of contract in the amount of BRL 29,000,000, the payment of which Granada shall be jointly and severally responsible for. Furthermore, Corinthians requests disciplinary sanctions against Granada for having allegedly violated art. 18 par. 3 of the Regulations, since Granada failed to contact Corinthians prior to signing a contract with the player.

21. The player denied Corinthian’s claim and maintained that the contract had expired on 26 February 2017 and that Clause 5.1. is not valid. The player held that when signing the contract on 26 February 2014 he was a minor and he could therefore not have signed a contract valid more than three years, in accordance with art. 18 par. 2 of the Regulations. The Respondent I therefore deems that he was no longer bound by an employment contract with the Claimant when he signed with the Respondent II, and that he shall not be held liable for any breach of contract.

22. Finally, Granada deems that the player should not be considered as having been bound by a professional contract with Corinthians and that, consequently, the provisions regarding the maintenance of contractual stability contained in the Regulations should not be applicable. Granada deems that in any case, the contract with Corinthians had clearly expired when the player signed a contract with them; in other words, the player was a free agent and in that sense, Granada bears no responsibility for any breach of contract.

23. Having recalled the parties’ respective positions in the present matter, the DRC first noted that the parties are in disagreement as to the nature of the contract the player had signed with Corinthians, i.e. as to whether it was to be considered as an amateur or a professional contract, and the player’s status while registered with Corinthians. In this regard, the Chamber held that the issue as to whether the player held the amateur or professional status with Corinthians is in fact irrelevant. Corinthians and the player did sign a contract when the player was 15 years old; as such, art. 18 par. 2 of the Regulations applies. Indeed, this implies that the player could not have been bound by a contract of a duration of more than three years. In this regard, the Chamber was eager to emphasise that according to art. 1 par. 3a) of the Regulations, art. 18 of the Regulations is binding at national level.

24. With regard to Clause 5.1. of the contract, which in essence implies that the player shall commit to sign a new contract with the Claimant once the player reaches the age of 16 or upon expiry of the initial contract’s term, the Chamber deemed that such clause equals to an automatic extension of the initial contract beyond the three initial years of contract. Therefore, the DRC concludes that the said clause violates art. 18 par. 2 of the Regulations and is invalid.

25. In continuation and as to the Claimant’s allegations that it had attempted to offer the player a new contract, the Chamber, referring to art. 12 par. 3 of the Procedural Rules, established that there was no conclusive evidence that a concrete offer had been extended to the player. In any case, such offer should have required the player’s acceptance, which evidently did not occur.

26. In conclusion, the Chamber found that the player was no longer bound by a contract as of 26 February 2017 as the contract originally concluded with the Claimant on 26 February 2014 had arrived at its term. Moreover, the contract could not have been extended to a longer duration than the three years originally agreed upon as the player was a minor at the time of signing the contract with Corinthians. The Respondent I thus did not act in breach of contract when signing a contract with the Respondent II on 6 April 2017.

27. In light of all the above considerations, the Chamber decided that the Claimant’s is rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Sport Club Corinthians Paulista, is rejected.

*****

Note related to the publication:

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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). 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 (cf. point 4 of the directives).

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For the Dispute Resolution Chamber:

____________________

Emilio García Silvero

Chief Legal & Compliance Officer