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 13 January 2021

Decision of the

DRC Judge

passed on 13 January 2021,

regarding an employment-related dispute concerning the player Jefferson Reis de Jesus

COMPOSITION:

Jon Newman (USA), DRC Judge

CLAIMANT:

MR JEFFERSON REIS DE JESUS, Brazil represented by Mr. Evandro Luis Rezende Forte

RESPONDENT:

ALASHKERT FOOTBALL CLUB, Armenia

represented by Mr. Ashot Kyureghyan

I. FACTS OF THE CASE

1. According to TMS, on 26 June 2018, the parties signed an employment contract (hereinafter: “the contract”) valid as of its signature until 1st August 2019.

2. Art.6 of the contract contains the following clauses:

6.1: “The player shall receive monthly salary and rewards according to the annex 1, which is attached to the contract and considered an integral part of it”

6.2: “The payment term and order of salary, as well as the payment order of rewards are also defined by the above mentioned annex”.

3. According to TMS, annex 1 of the contract states as follows:

1.1 “According to the 6th article of the concluded contract the” Football player” receives the monthly salary which makes 150.000 Armenian Dollars (hereinafter AMD) (approximately: USD 311) “net” after the deduction of all taxes

1.2 The monthly salary is given out during five bank days of next month.

1.3 For every one win in official games the “football player” is rewarded by internal rules like the rest of the “club” players (…)”

4. On 12 April 2019, the parties concluded a mutual termination agreement effective as from 19 April 2019 which stated as follows:

-“(…)The parties broke the employment contract signed between the Club and the Football Player on 26.06.2018 and agreed a mutual and pre-term agreement that as from 19.04.2019 and the Football player will be free (…)

-The Football player here by assures that the Club has no obligations towards him (including financial), stipulated by the contract (…)

-The Club hereby assures that the Football player has no obligations towards him (including financial), stipulated by the contract (…)”

5. In addition to signing the above mentioned termination agreement, the Claimant also signed two other documents needed for mandatory financial auditing within the scope of UEFA club licensing and financial fair play regulations confirming that the Respondent does not have overdue payables towards him as of 31 December 2018 and as of 19 April 2019

6. On 26 June 2020, the Claimant put the Respondent in default of payment for non-compliance with payment of salaries relating to January 2019, February 2019 and March 2019.

7. The deadline to make payment was, apparently, not respected by the Respondent and no response was received in this regard.

8. On 14 September 2020, the Claimant lodged a claim against the Respondent before FIFA.

9. In his request for relief, the Claimant requested to be awarded outstanding remuneration for January February and March 2019 in the total amount of USD 6,000, plus 5% interest p.a. as from 31 January 2019, 28 February 2019 and 31 March 2019 respectively until the date of effective payment.

10. The Claimant also requested that the Respondent be sanctioned under art. 24bis of the FIFA RSTP.

11. In support of his claim, the Claimant stated that on 26 June 2018, the parties signed the contract valid as of its signature until 1st August 2019.

12. The Claimant also submitted an unsigned copy of a document labelled”agreement” dated 22 June 2018, which states that his monthly salary is USD 3,000.

13. The Claimant added that in the month of January 2019, during the pre-season of the Armenian First League, he suffered an injury in a training-match and consequently underwent medical treatments for rehabilitation for approximately I5 days. The Claimant alleged that from that moment on, the Respondent began to mistreat him due to the injury he suffered.

14. According to the Claimant, the Respondent allegedly stopped making the regular salary payments agreed under the Contract and motu proprio decreased his monthly salary to USD 1,000.

15. The Claimant added that without effective progress in medical treatment, on 18 February 2019, he underwent further medical examinations where he was found to be suffering from a serious injury and as a result, underwent medical treatments for rehabilitation again. Due to the seriousness of the injury the player allegedly could no longer participate in any games or training sessions of the club until 30 March 2019.

16. The Claimant alleged that in addition to not providing him with assistance, the Respondent asked him to pay for his own medical examination performed.

17. Furthermore, the Claimant alleged that the Respondent refused to provide him with the signed version of the employment contract and did not provide the Claimant with all pages of the annex 1 to the contract, which prevented the player from having access to the possible bonuses that he might have been entitled to.

18. In continuation, the Claimant stated that the Respondent did not make the full payment of salaries due in January, February and March 2019 with no valid reason and without considering that the serious injury that he suffered occurred during one of the training/matches.

19. The Claimant added that the Respondent did not provide an explanation for this non-compliance with its contractual obligations, failed to respond and remedy the breach.

20. Finally, the Claimant stated that as a result, he had terminated his contract with the Respondent on 19 April 2019.

21. In its reply, the Respondent rejected the Claimant´s claim stating that it is fully groundless and should be rejected by the DRC.

22. The Respondent submitted that on evaluation of the evidence provided, it is evident that it acted bono fide and has never avoided any fulfilment of its obligations.

23. In response to the Claimant’s allegation that the parties had agreed a monthly salary of USD 3,000, the Respondent submitted that in accordance with the general rule of “onus probando”, the Claimant’s allegations should be found to be invalid for failure to provide a valid, signed and binding document to prove his alleged salary of USD 3,000.

24. The Respondent further stated that it considers that the information contained in FIFA TMS should prevail over any conflicting information and added that as FIFA is empowered to use evidence generated or contained in TMS, the FIFA DRC should use the information contained in TMS which confirms that the player’s monthly salary as AMD 150,000 net.

25. In continuation, the Respondent argued that the contract with its annex 1 are the only signed and therefore binding and legally existing agreements concluded by the parties and that a copy of this valid and binding Contract was uploaded to TMS in good faith.

26. In conclusion, the Respondent refuted the Claimant’s allegation that his monthly salary was USD 3,000 and insisted that the agreed salary was always the contractually agreed amount of AMD 150,000.

27. Furthermore, the Respondent submitted that the contract was mutually terminated on 19 April 2019 without any obligations left and that the Claimant was fully aware of this as he signed the contract termination document before lodging a claim with FIFA.

28. The Respondent added that the contract was mutually terminated in accordance with art. 13 RSTP and that the termination agreement fully expresses the:

a. The final and ultimate will of the parties;

b. The mutual consent of the parties;

c. The intention of the parties;

d. Essential terms of having no obligations towards each other;

e. Validation of the agreement by signatures of the parties.

29. According to the Respondent, in addition to signing the termination agreement, the Claimant also signed two other documents needed for mandatory financial auditing within the scope of UEFA club licensing and financial fair play regulations, confirming that the Respondent does not have overdue payables towards the Claimant.

30. Therefore, in the Respondent’s opinion, it is clear that by 19 April 2019, the parties had not only terminated the labour relations mutually, but also assured the absence of any type of due obligations towards each other and as a result there is no overdue payable salary in amount of AMD 150,000 or other possible obligations left within the scope of the contractual relations of the parties and the Respondent cannot be considered as debtor in the light of art. 12bis of FIFA RSTP.

31. In regards to the Claimant’s medical treatment claim, the Respondent stated that the Claimant has never applied to the Respondent for medical treatment nor did he refer to the presence for such overdue obligation in the Termination Agreement.

32. In response to the Claimant’s allegation that he was injured in January 2019, the Respondent argued that no evidence of such injury was provided by the Claimant and added that in the same month on 22 January 2019, the Claimant had undergone the annual mandatory medical examination, by which he was permitted to trainings.

33. In regards to the Claimant’s allegation that the Respondent "never provided a reason or explanation for this non-compliance with said contractual obligations, as well as failed to respond and remedy the breaches", the Respondent stated that on 27th of June 2020, the Claimant sent a "notice of default" and the Respondent responded in writing to the notice in good faith on 02 July 2020, explaining the absence of overdue payables and providing evidences of it.

34. In conclusion, the Respondent argued that the Claimant is not acting in good faith and his claim should be disregarded.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (DRC) Judge (hereinafter also referred to as “the DRC Judge”) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the player’s claim was lodged on 14 September 2020. 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.

2. Subsequently, the DRC judge referred to art.3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art.22 lit. b of the Regulations on the Status and Transfer of Players (edition August 2020) 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 an Armenian club.

3. Furthermore, the DRC judge analyzed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition August 2020), and considering that the present claim was lodged on 14 September 2020, the August 2020 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge emphasized that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. To start with, the DRC judge acknowledged that the parties to the dispute had signed an employment contract valid from 26 June 2018 until 1 August 2019, pursuant to which the Respondent undertook to pay the Claimant AMD 150,000 per month.

6. Moreover, the DRC Judge took note of the fact that on 12 April 2019, the parties concluded a mutual termination agreement effective as from 19 April 2019 where both parties confirmed they had no further obligations (including financial) towards each other. The DRC Judge further noted that both parties in their submissions do not contest the existence of the termination agreement.

7. Having recalled the above, the DRC Judge observed that on 26 June 2020, the Claimant put the Respondent in default of payment for non-compliance with payment of salaries relating to January 2019, February 2019 and March 2019.

8. In continuation, the DRC Judge noted that in support of his claim, the Claimant in his claim stated that the Respondent had only paid USD 1,000 for the months of January to March 2019 and as a result, he was requesting outstanding remuneration of USD 6,000 at USD 2,000 per month.

9. The DRC Judge turned his attention to the Respondent’s reply in which it rejected the claim of the Claimant as fully groundless and stated that the contract was mutually terminated in accordance with art. 13 RSTP and that the termination agreement fully expresses the final and ultimate will of the parties, the mutual consent of the parties, the intention of the parties, essential terms of having no obligations towards each other and the validation of the agreement by signatures of the parties.

10. Furthermore, the DRC Judge noted the Respondent’s submission that in addition to signing the termination agreement, the Claimant also signed two other documents needed for mandatory financial auditing within the scope of UEFA club licensing and financial fair play regulations confirming that the Respondent does not have overdue payables towards him as of 31 December 2018 and as of 19 April 2019.

11. In continuation, the DRC Judge noted the Respondent’s submission that there is no binding and valid agreement with a monthly salary of USD 3,000 net payable to the Claimant and that in the absence of a signed and valid document to prove the Claimant’s alleged salary of USD 3,000.

12. Having taken note of the parties’ submissions, the DRC Judge noted that – in line with jurisprudence of CAS as well as Swiss law, a player, under certain circumstances, cannot validly waive his right to receive remuneration for work already performed.

13. However, the DRC Judge noted that in the matter at hand, the document which is submitted by the Claimant, labelled “the agreement”, in order to prove his entitlement to a monthly salary of USD 3,000 is unsigned. As a result the DRC judge was of the opinion that said document should therefore be disregarded.

14. Moreover, the DRC judge noted that the Claimant further failed to provide documentary evidence that the contractually agreed amount as per the contract in the amount of AMD 150,000 remained unpaid.

15. As a result, taking into account the fact that the Claimant’s request for outstanding remuneration is based on an unsigned document that is disregarded and the fact that the Claimant failed to provide evidence that the Respondent failed to fulfil its other contractual obligations, the DRC Judge decided to reject the claim of the Claimant.

16. In conclusion, the DRC judge decided to reject the claim of the Claimant.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Jefferson Reis de Jesus, 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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