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 10 December 2020

Decision of the

Dispute Resolution Chamber

passed on 10 December 2020,

regarding an employment-related dispute concerning the player Francisco Manuel Geraldo Rosa

COMPOSITION:

Geoff Thompson (England), Chairman Angela Collins (Australia), member Aby Nayeem Shohag (Bangladesh), member

CLAIMANT:

Doxa KatokopiasFC, Cyprus

Represented by Ms Kiara Schiavetto

FIRST RESPONDENT:

Francisco Manuel Geraldo Rosa, Portugal

SECOND RESPONDENT:

Futebol Clube Arouca, Portugal

Represented by Mr Emanuel Corceiro Calcada

I. FACTS

1. On 1 June 2018, the Claimant and the player concluded an employment contract (hereinafter: the contract), valid as from 1 July 2018 until 31 May 2020. According to the contract, the Claimant was entitled to the following remuneration and benefits:

“1.3 The Player´s gross remuneration shall be as follows:

1.3.1. From 31.8.2018 until 31.5.2019, a monthly gross salary of EUR 5,425 (EUR 5,000 net). (10 instalments).

1.3.2 From 31.8.2019 until 31.5.2020, a monthly gross salary of EUR 5,968 (EUR 5,000 net). (10 instalments).

All taxes payable to the Tax Department, as per the applicable legislation, shall bepaid by the Club.

1.4 It is agreed that the salaries of the Player will be paid with 30 days grace period at the end of each month.

1.5 Any other gross payments and bonuses shall be payable as follows:

1.5.1 The Player will receive the amount of EUR 5,000 (Five Thousand Euro) each season accordingly if the team qualifies in the positions 1-6 of the phase A of the championship.

1.5.2 The Player will receive the amount of EUR 5,000 (Five Thousand Euro) each season accordingly if the team qualifies in the cup final.

1.6 Any other benefits and/or allowances:

1.6.1 The Club will provide to the player 1 (one) family round plane ticket per season.

1.6.2 The Club will provide to the Player a car provided that the Player has a valid driving license.

1.6.3. The Club for the season 2019/20 will provide to the Player the amount of EUR 300 (Three Hundred Euro) per month, for a period of ten months for accommodation in an apartment/house”.

2. On 6 June 2018, the Claimant asked the player’s former club, Academico de Viseu Futebol Clube, to issue the Third Party Ownership (TPO) certificate and proof of the last contract end date documents. On the same date, the former club provided the requested documentation.

3. On the same date, the Claimant informed the player that “the preparation session for the period 2018/19 will start officially on the 2nd of July 2018”. Furthermore, the Claimant communicated to the player the following: “you have to be present in Cyprus until 28th of June 2018, in order to pass all the medical examinations and all the other tests”.

4. On an unspecified date, the player and the Portuguese club, FC Arouca (hereinafter also referred to as: the Second Respondent) concluded an employment contract (hereinafter: the new contract), valid as from 1 July 2018 until 30 June 2020. In accordance with the new contract, FC Arouca undertook to pay to the player a total fixed remuneration of EUR 65,000 during the whole term of the contract.

5. Clause 24 para. 2 lit b) and c) of the new contract state the following:

“More the PLAYER declares that: […] b) That all issues / disputes arising from previous contractual relations with third clubs or sports companies are definitively resolved, which do not jeopardize the validity and granting of this contract, as acknowledged and confirmed; and c) “His sports registration rights and economic rights cannot effect the holder of any foreign sports club or society in this context, which is an essential condition for the granting of this contract, as approved and confirmed” […]”.

6. On 17 June 2018, the Claimant was informed about the signing of the player with FC Arouca through the Portuguese media and the Second Respondent’s Facebook site.

7. In light of the above, by means of an email to the player dated 20 June 2018, the Claimant expressed its concerns regarding “the surprising news concerning an employment contract allegedly signed by you with FC Arouca”.

8. In addition, the Claimant –via email– requested the player to confirm his presence “in our club headquarters on June, 28 2018” considering the fact that “we’ve signed a contract with you on 1 June 2018 we truly believe that you’ve perfectly aware of the consequences of your acts”.

9. Furthermore, in a separate email dated 20 June 2018, the Claimant informed the player that “due to your absence from the medical examinations and training sessions, we considered that you definitely breach the employment contract signed with our club on 1 June 2018, without just cause”.

10. On 27 May 2020, the Claimant lodged a claim before FIFA, requesting to be awarded compensation for breach of contract from the player and/or FC Arouca (jointly liable) in the amount of EUR 145,000, plus 5% interest p.a. on the said amount as from their respective due dates, broken down by the Claimant as follows:

- EUR 105,000 corresponding to the value of the contract concluded between the Claimant and the player;

- EUR 40,000 corresponding to the value of the contract concluded between the player and FC Arouca (In this regard, the Claimant asked FC Arouca to provide a copy of said contract).

11. In addition to the above, the Claimant requested sporting sanctions to be imposed on the player and a registration ban to be imposed on FC Arouca; as well as the player to borne all procedural costs in connection with the present dispute.

12. In its claim, the Claimant held that the player never replied to any of its correspondence and stated that it was clear that the player had signed an employment contract with FC Arouca (the Claimant provided press articles confirming that the player joined FC Arouca as well as public announcements of the latter on Facebook).

13. Moreover, the Claimant referred to Swiss law and held that, in accordance thereto, an agreement must contain the following elements to be valid: a work to be performed, the service of an employer and a remuneration to be paid for the services provided. The Claimant considered that the contract concluded between the Claimant and the player contains all the essentialia negotii, meaning that a binding contractual relationship existed between the Claimant and the player.

14. The Claimant further argued that the player signed a contract with a new club and failed to fulfil his duties, which constitutes a clear breach of contract. In this context, the Claimant emphasized that it had granted the player many opportunities to comply with his obligations and, despite the foregoing, the player never replied to the Claimant’s correspondence.

15. Therefore, the Claimant considered that the player terminated the contract without just cause and that FC Arouca should be held jointly liable. Referring to jurisprudence of the DRC, the Claimant requested compensation taking into account the value of the contract signed with the player as well as the value of the player’s new contract with FC Arouca.

16. In his reply to the claim, the player acknowledged having entered into an employment agreement with the Claimant, as well as that FC Arouca approached to him to conclude the new contract.

17. However, the player claimed that he informed FC Arouca about his contractual situation with Doxa FC 19 and that FC Arouca promised him to contact FC Doxa to solve his contractual situation.

18. Finally, the player concluded that FC Arouca induced him “to breach the contract” with Doxa FC. In this regard, the player stated the following: “Since the first minute Arouca FC approach me I’ve told them that I had a contract signed with DOXA. Nevertheless Arouca FC clearly induce me to breach the contract once I was told, when they offered me the contract with them, that they will talk with DOXA and solve the question of my previous contract in a expedite and friendly way, without any consequence and, even there is a financial consequence, they will assume it integrally”.

19. Furthermore, the player stressed the following “I feel myself a victim with moral damages and attack to my name for sure because of my inexperience and extremely bad legal advice that I had from Arouca F.C.”

20. In its reply to the claim, FC Arouca argued that it was completely unaware of the existence of any other employment related to the player. In this context, the Second Respondent held that the player himself declared that there was no impediment to sign with the club.

21. Furthermore, FC Arouca referred to clause 24 para. 2 points b) and c) of the new contract, in accordance with which the player declared to be solely responsible before the claimant.

22. In light of the above, the Second Respondent requested to “be absolved of this claim, as it does not have any responsibility for the omission of the truth regarding the conclusion of the employment contract with the player Francisco Manuel Geraldo Rosa”.

23. Finally, the Second Respondent pointed out that on 24 June 2019 the new contract was terminated by mutual agreement.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the Chamber or the DRC) analyzed whether it was competent to deal with the case at hand. 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasized 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, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves a Cypriot club, a Portuguese player and a Portuguese club.

3. In continuation, the Dispute Resolution Chamber analyzed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber 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 claim was lodged on 27 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber referred to the abovementioned facts and highlighted that it remained undisputed that the player firstly concluded an employment agreement with the Claimant, on 1 June 2018, and that –thereafter– the player entered into another employment relationship with FC Arouca, holding both contracts an overlapping term.

6. In addition, the DRC carefully analyzed the contents of the contract concluded between the Claimant and the player and reached the conclusion that it concluded all the essentialia negotii of a contract to be considered validly concluded and, hence, it was binding upon the Claimant and the player.

7. The above being established, the Chamber turned its attention to the employment relationship entered into between the player and FC Arouca. In this regard, the DRC observed that it was acknowledged by both, the player and FC Arouca, that they concluded an employment which was valid as from 1 July 2018 until 30 June 2020, i.e. almost during the exact term of the contract concluded between the player and the now Claimant, the only difference regarding their duration being that the contract signed between the player and the Claimant would have ended one month before, i.e. on 31 May 2020.

8. After analyzing the allegations brought forward by all the parties to the present proceedings, the DRC wished to emphasize that, if –during the term of a validly concluded employment contract– a third club signs a contract with a player that is still under contract with another club, it is to be considered that the said third club induced the player to breach his first contract and, therefore, the third club shall be considered jointly and severally liable for the breach committed.

9. In this context, the DRC referred to the allegations of the Second Respondent –which referred to clause 24 of the new contract– and held that despite the fact that the First Respondent and the Second Respondent inserted a clause in the new contract by means of which the First Respondent represented and warranted that all disputes regarding contractual relationships entered into prior to the conclusion of the new contract were resolved, the said disclaimer could not affect the degree of liability that corresponds to the Second Respondent, which –de facto– signed the player after the player and the Claimant had signed a valid contract starting on the same date. In this respect, the DRC pointed out that it is part of the due diligence of the new club to corroborate that the player it is intending to sign is in a position to be lawfully engaged.

10. In view of all of the above, the DRC determined that, when concluding the new contract with the Second Respondent, the player breached the contract concluded with the Claimant and, therefore, terminated the said contract without just cause ex. art. 17 of the Regulations and shall be condemned to pay compensation for breach of contract to the Claimant.

11. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the player.

12. As a consequence of the aforementioned conclusion, the DRC established that, in accordance with art. 17 par. 1 of the Regulations, the player is liable to pay compensation to the Claimant. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the new club, i.e. FC Arouca, shall be jointly and severally liable for the payment of such compensation. In this respect, the Chamber was nonetheless eager to point out that the joint liability of the new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the CAS.

13. Notwithstanding the aforementioned, the Chamber recalled that according to art. 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach.

14. In this context, the Chamber focused on the primacy of the principle of the maintenance of contractual stability, which represents a central element of the Regulations.

15. Above all, the Chamber was eager to point out that the measures provided for by the above Regulations concerning in particular compensation for breach of contract without just cause serve as a deterrent aimed at discouraging the early termination of employment contracts by either contractual party and that a lack of a firm response by the competent deciding authorities would represent an inappropriate example towards all the football actors.

16. In this respect, to award compensation in favor of the damaged party has proven to be an efficient means and has always found a widespread acceptance since it guarantees that the fundamental principle of the respect of the contracts is duly accounted for.

17. Moreover, it was emphasized that the criteria contained in art. 17 of the Regulations are applied with the principle of reciprocity for clubs and players, signifying that clubs and professional players who are deemed to have committed a breach of contract will in all cases be compelled to pay compensation and, under specific circumstances, will be subject to the imposition of sporting sanctions.

18. Having stated the above, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly pointed out 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 player under the existing contract and/or the new contract(s), the time remaining on the existing contract up to a maximum of five years as well as the fees and other expenses paid or incurred by the former club (amortized over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party.

19. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable 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.

20. As a consequence thereof, the members of the Chamber determined that the amount of compensation payable in the case at stake had to be assessed in application of art. 17 par. 1 of the Regulations. In this regard, the Dispute Resolution Chamber stated beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

21. According to the documentation provided by the Claimant, it appears that in accordance with the documentation on file, the total value of the employment contract entered into between the player and the Claimant amounts to EUR 105,000 net, being the duration of the said contract as from 1 July 2018 until 31 May 2020.

22. On the other hand, the total value of the new employment contract, concluded between the player and the Second Respondent, amounts to EUR 65,000, being its duration as from 1 July 2018 until 30 June 2020.

23. Accordingly, under the aforementioned employment contracts with said clubs, the player was to receive the approximate average income of EUR 85,000 [(105,000 + 65,000) / 2 = 85,000].

24. In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of the Regulations, after having duly taken into account the specificities of the present case, the compensation that must be paid by the Respondents (considered jointly and severally liable to its payment) to the Claimant amounts to EUR 85,000, which is the average of the amounts that the player was entitled to receive under both, the contract and the new contract, a sum that the Chamber found to be fair and proportionate.

25. On account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the player must pay to the Claimant the amount of EUR 85,000 as compensation for breach of contract; and that the Second Respondent, FC Arouca, is jointly and severally liable for the payment of the relevant compensation.

26. 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 player and / or FC Arouca 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 by the Claimant, i.e. 27 May 2020, until the date of effective payment.

27. In this point, the DRC referred to art. 17 paras. 3 and 4 of the Regulations and decided that –after analyzing all the elements pertaining to the present case– no sporting sanctions should be imposed on neither the player nor the Second Respondent, insofar between the date on which the breach occurred, i.e. 1 July 2018 and the date on which the present claim was lodged, i.e. 27 May 2020, almost 2 years had elapsed. In this regard, the DRC wished to emphasize that the imposition of sporting sanctions being discretionary, it was more inclined to determine that the imposition of sporting sanctions almost 2 years after the occurrence of the event giving rise to the present dispute was not reasonable enough and would go in detriment of parties not involved in the present dispute. In this respect, the DRC pointed out that to impose sporting sanctions on the player –who is at the moment of the issuance of the present decision engaged with another club, different from the Claimant and the Second Respondent– would not be in confluence with the spirit of art. 17 of the Regulations.

28. Subsequently, taking into account the previous considerations, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

29. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods. Against players, the consequence of the failure to pay the relevant amounts in due time shall consist of a restriction on playing in official matches up until the due amounts are paid. The overall maximum duration of the aforementioned restriction, including possible sporting sanctions, shall be of six months on playing in official matches.

30. Bearing in mind the above, the Chamber decided that, in the event that neither the player nor FC Arouca paid the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the player and FC Arouca, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on FC Arouca and a restriction on playing in official matches up to a maximum of six months shall be effective on the player, in accordance with art. 24bis par. 2 and 4 of the Regulations.

31. Moreover, the DRC recalled that the above-mentioned bans will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

32. The DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

33. In conclusion, the DRC decided to partially accept the Claimant’s claim.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Doxa Katokopias FC, is partially accepted.

2. The First Respondent, Francisco Manuel Geraldo Rosa, has to pay to the Claimant, the following amount:

- Euro (EUR) 85,000 as compensation for breach without just cause plus interest of 5% p.a. as from 27 May 2020 until the date of effective payment.

3. The Second Respondent, Futebol Clube Arouca, is jointly and severally liable of the payment of the compensation mentioned under point 2 above.

4. Any further claims of the Claimant are rejected.

5. The Claimant is directed to immediately and directly inform the Respondents of the relevant bank account to which the Respondents must pay the due amount.

6. The Respondent(s) shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due, plus interest as established above is not paid by the First Respondent or the Second Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondents, the following consequences shall arise to the Firs Respondent:

1.

The First Respondent shall be restricted on playing in official matches up until the due amount is paid and for the maximum duration of six months. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by the end of the restriction period, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

8. In the event that the amount due, plus interest as established above is not paid by the First Respondent or the Second Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondents, the following consequences shall arise to the Second Respondent:

 1.

The Second Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

9. The present decision is rendered free of 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).

CONTACT INFORMATION:

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