F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 25 February 2021

Decision of the

Dispute Resolution Chamber (DRC) Judge

passed on 25 February 2021

regarding an employment-related dispute concerning the player Gustavo Santos Costa

BY:

Philippe Diallo (France), DRC Judge

CLAIMANT:

Gustavo Santos Costa, Brazil

Represented by Pedro Macieirinha

RESPONDENT:

Apollon Larisas FC, Greece

I.

I. FACTS OF THE CASEFACTS OF THE CASE

1. On an unspecified date, the Brazilian player, Gustavo Santos Costa (hereinafter: the player or the Claimant) and the Greek club, Apollon Larisas FC (hereinafter: the club or the Respondent) signed an employment contract valid as from 31 August 2019 until 30 June 2020 (hereinafter: the contract).

2. According to the contract, the player was entitled to a monthly salary of EUR 726, plus net bonuses, as follows:

a. EUR 2,500 in case the player scored at least 12 goals in the season;

b. EUR 1,000 in case the club was promoted;

c. EUR 1,000 in case the player played in more than 70% of the matches;

d. EUR 17,000 “for signing with the team (the player will receive EUR 1,700 for 10 months)”.

3. On 13 October 2020, the player put in the club in default of payment of EUR 9,000, granting it with a deadline of 10 days to cure the breach.

II.

II. PROCEEDINGS BEFORE FPROCEEDINGS BEFORE FIFAIFA

4. On 23 November 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a.

a. The claim of The claim of the the ClaimantClaimant

5. The player filed the claim at hand seeking payment of EUR 9,000, plus 5% interest as from the date of default until effective payment. The player did not specify a breakdown of the amount sought.

b.

b. The The reply reply of the of the RRespondentespondent

6. The club did not reply to the claim in spite having being invite to do so.

c.

c. RRequest for additional informationequest for additional information

7. Upon express request from FIFA to inform the breakdown of the amounts sought, the Claimant explained that the parties had reached a “mutual agreement” by means of which the employment contract was terminated and the club undertook to pay EUR 10,000 “as a compensation for the monthly payments in debt”. The player further explained that the club only paid EUR 9,000. No evidence of said “mutual agreement” was filed by the player.

8. After a request from FIFA for the club to provide its comments on the “mutual agreement” and with a copy of said contract, the club did not reply.

III.

III. CCOONSIDERATIONSNSIDERATIONS OF THE DISPUTE RESOLOF THE DISPUTE RESOLUTION CHAMBER JUDGEUTION CHAMBER JUDGE

a.

a. Competence and applicable legal frameworkCompetence and applicable legal framework

9. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 23 November 2020 and submitted for decision on 25 February 2021. Taking into account the wording of art. 21 of the January 2021 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.

10. Subsequently, DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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 February 2021), he 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 Greek club.

11. Subsequently, 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 Player (edition February 2021), and considering that the present claim was lodged on 23 November 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b.

b. Burden of proofBurden of proof

12. The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

13. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c.

c. Merits of the disputeMerits of the dispute

14. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single 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.

15. The DRC Judge moved to the substance of the matter and noted that the player is claiming EUR 9,000 arising from the “mutual agreement” allegedly signed with the club.

16. To this end, the DRC Judge observed that there is no evidence on file of the said “mutual agreement” at the basis of the claim, its date of execution, or any other information in that respect. In order words, the DRC Judge highlighted that the player did not file any evidence in support of his allegation that said agreement had been executed.

17. In this respect, the DRC noted that that according to the information available in TMS, the player executed an employment agreement with the Brazilian club, EC Jacuipense, valid as from 20 October 2020 until 30 June 2022. The DRC Judge further observed that the “proof of last contract date” entered in the system in connection with the release of the player’s International Transfer Certificate from the Hellenic Football Federation (HFF) to the Confederação Brasileira de Futebol is the contract executed with the Respondent.

18. Furthermore, the DRC Judge observed that an e-mail from the HFF can be found in such TMS instruction, and such e-mail confirmed that the player’s contract with the Respondent ended on 30 June 2020.

19. It followed in the DRC Judge’s opinion that the player has failed to meet his burden of proof, insofar as it could not be established that the “mutual agreement” at the basis of his claim had been executed.

20. The DRC Judge consequently decided that the claim shall be rejected entirely.

d.

d. CostsCosts

21. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, he decided that no procedural costs were to be imposed on the parties.

22. Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV.

IV. DECISIONDECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGEOF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Gustavo Santos Costa, is rejected.

2. This decision is rendered without costs.

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).

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