FIFA - Decisión disputa Carvalho Nonato 13092023

REF. FPSD-10743

Decision of the Dispute Resolution Chamber passed on 13 September 2023 regarding an employment-related dispute concerning the player Patrick Carvalho Nonato BY: Andre DOS SANTOS MEGALE, Brazil

CLAIMANT:

Patrick Carvalho Nonato, Brazil Represented by Vilaça Advogados

RESPONDENT:

KF Erzeni, Albania pg. 2

REF. FPSD-10743

I. Facts of the case

1. The relevant parties to this dispute are the Brazilian player, Patrick Carvalho Nonato

(hereinafter: the player or the Claimant), and the Albanian club, KF Erzeni (hereinafter: the club or the Respondent).

2. On 22 August 2022, the club sent the player an employment offer (hereinafter: the Offer) with the following terms and conditions: • Term: two football seasons until June 2024 with the possibility of renewing for another season upon agreement between the parties; • Remuneration: First year: total of EUR 20,000 net, payable in 10 instalments of EUR 2,000 each; o Second year: total of EUR 30,000 net, payable in 10 instalments of EUR 3,000 each; o Accommodation; o Flight ticket. o

3. The Offer was only signed by the club and no field was included for countersignature by the player.

4. On 27 August 2022, the player flew from Paris, France to Tirana, Albania.

5. According to the information available in the FIFA Transfer Matching System (TMS), on 27

August 2022, the parties also entered into an employment contract valid until the end of the season 2024 (hereinafter: the Employment Contract). The specimen of the Employment Contract uploaded in TMS is signed by both the player and the club.

6. Pursuant to clause 4 of the Employment Contract, the club undertook to pay the player a

monthly remuneration of ALL 35,000, payable every 5th day of each month.

7. Clause 13 of the Employment Contract reads as follows: “Article 13. Termination of the Contract by the player

1. The player will be considered to terminate the contract with this club with a legal reason by notifying the club 30 (thirty) days in advance in the event that the club: a) Is found guilty of serious and continuous violation of the terms of this contract for more than 90 (ninety) consecutive days, from the deadline when the respective obligations were to be fulfilled. pg. 3

REF. FPSD-10743 b) If the club fulfills its obligations within the period of 30 days from the player’s written notification, then the player cannot terminate this contract unilaterally”.

8. Clause 15, par. 3 of the Employment Contract reads as follows: “3. This contract replaces all previous agreements between the parties, verbal or in writing. Any changes to it will be made in writing”.

9. On 29 August 2022, the player’s International Transfer Certificate (ITC) was issued, and he was registered with the club.

10. In February 2023, the player allegedly exchanged messages with a club representative via the electronic application WhatsApp regarding his outstanding remuneration. It has to be noted that the player submitted screenshots of such messages, however without identification of the parties concerned.

11. On 13 June 2023, the player put the club in default for overdue payables via email and requested the breach to be cured within the following 15 days.

12. On 28 June 2023, the player notified the club of the termination of the Employment Contract due to overdue payables. Likewise, he confirmed having returned to Brazil at his own expenses due to the failure of the club to arrange his visa.

13. On 20 July 2023, the player entered into a new employment relationship with the Montenegrin club, Fudbalski Klub Dečić valid as from the date of signature until 31 July

2024. Contextually, the player would be entitled to a monthly remuneration of EUR 4,166

(EUR 3,710 plus EUR 456).

14. According to the information available in the TMS, the football seasons in Albania ran as follows: • Season 2022/2023: from 1 July 2022 until 30 June 2023; and • Season 2023/2024: from 1 July 2022 until 30 June 2024. pg. 4

REF. FPSD-10743

II. Proceedings before FIFA

15. On 1 July 2023, the player filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the player

16. In his claim, the player stressed that the club failed to honour its financial duties and defaulted a significant part of his payments. Consequently, he submitted the following relief before FIFA, quoted verbatim: “18. The granting of the request for the granting of the Provisional International Transfer Certificate) ITC is required, since [the player] followed all the requirements set out in art. 14bis of the FIFA RSTP and the subsequent communication to the competent authorities;

19. Acknowledgment by FIFA-DRC to resolve this employment contract with an injunction request for delay in salary, as [the player] chooses to choose and understand that FIFA, through its Court, is the body/chamber with the greater efficiency, speed, applicability, independent and respecting the principle of equal representation of players and clubs;

20. Requests for payment of overdue instalments, since the amounts due as salary are undisputed, that is, the delay in March, April, May and June is recognized, thus, as shown in the proposal for work attached, the current debt is 8,000 euros;

21. The granting of compensatory indemnity for termination with just cause, equivalent to the sum of 45,000 thousand euros for the remaining 15 months of the contract, plus

interest of 5% pa on the aforementioned amount from the date of the claim to the date sanitation, that is, the payment”.

17. On 4 July 2023, the FIFA general secretariat inter alia acknowledged receipt of the player’s claim and informed him the following, quoted verbatim: • based on art. 14 of the FIFA Regulations on the Status and Transfer of Players

(hereinafter: the Regulations), either party to an employment contract between a professional player and a club may terminate the contract if they deem to have a just cause for such a termination. In case of a dispute, it is up to the competent decisionmaking body to establish whether a contractual breach occurred, with or without just cause, who is to be deemed responsible and what the consequences of such a breach would be (cf. art. 17 of the Regulations). Equally, we kindly inform you that jurisprudence of the Dispute Resolution Chamber (DRC) regarding the foregoing is available via legal.fifa.com. pg. 5

REF. FPSD-10743

In other words, said declaration of termination is not to be issued by the competent decision-making body of FIFA but solely by the parties themselves. Thus, we do not seem to be able to entertain your request as such and you shall amend your petition. • the Football Tribunal also does not have competence to grant interim measures, hence your request in this regard lacks regulatory basis; • additionally, should you envisage to sign a new employment contract with another club, affiliated to another association, we would like to refer you to the provisions of Annexe 3 of the Regulations, which concerns inter alia the administrative procedure governing the transfer of players between associations. In this regard, according to art. 10 of said Annexe, all data allowing the new association to request an ITC shall be entered into the Transfer Matching System (TMS), confirmed and matched by the club wishing to register a player during one of the registration periods established by that association. When

entering the relevant data, the new club shall upload into the TMS, amongst other documents, a copy of the employment contract signed between it and the professional player. Thereupon, the new association shall immediately request the former association through the TMS to deliver an ITC for the player (“ITC request”; cf. art. 11, par 1 of the Annexe 3 of the Regulations). In case the former association rejects the ITC request, and if the new association asks our services for assistance in obtaining the relevant ITC, our services would, provided the necessary conditions are fulfilled, be in a position to intervene with regard to the international clearance.

18. In light of the above and should the player envisaged to pursue his claim against the club, he was invited by the FIFA general secretariat to amend his petition and provide additional documentation in order to comply in the mandatory requirements set out in art. 18, par. 1 of the Procedural Rules Governing the Football Tribunal.

19. On 7 July 2023, the player provided the documentation requested by the FIFA general secretariat and, inter alia, argued the employment relationship had been terminated on 26

June 2023, at the club’s fault, and in line with inter alia art. 14bis of the FIFA Regulations on the Status and Transfer of Players (RSTP).

20. Consequently, the player amended his claim and requested to be awarded the following amounts: • EUR 9,450 as outstanding remuneration, corresponding to his outstanding salaries from March until June 2023 “plus 5% interest”; pg. 6

REF. FPSD-10743 • EUR 34,650 as compensation for breach of contract per art. 17 of the FIFA RSTP, corresponding to the salaries from July 2023 until May 2024 “plus 5% interest”; • additional 5% interest over the abovementioned amounts as from the date of the claim until the date of the payment. b. Position of the club

21. The club failed to reply to the claim of the player despite being invited to do so. pg. 7

REF. FPSD-10743

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

22. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single 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 1 July 2023 and submitted for decision on 13 September 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal

(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

23. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1, lit. b) of the FIFA RSTP (May 2023 edition), the Dispute Resolution Chamber 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 Albanian club.

24. Subsequently, the Single Judge analysed 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 2 of the FIFA RSTP (May 2023 edition) and considering that the present claim was lodged on 1 July 2023, the cited May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

25. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13

par. 5 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, the Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties, including without limitation the evidence generated by or within the TMS. c. Merits of the dispute

26. The competence and the applicable regulations having been established; the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised 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. pg. 8

REF. FPSD-10743

1. Main legal discussion and considerations

27. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that it pertains to a claim for breach of contract lodged by the player against the club.

28. In particular, the Single Judge observed that the player terminated his employment relationship with the club on 28 June 2023 claiming to have just cause due to overdue payables (i.e., his salaries from March until June 2023).

29. On the other hand, the Single Judge acknowledged that the club, for its part, failed to present its response to the claim of the player, in spite of having been invited to do so. In this way, the Single Judge considered that the club renounced its right to defence and thus accepted the allegations of the player. He equally confirmed that he should make its decision on the basis of the evidence and argumentation presented by the player in line with art. 14 par. 1 of the Procedural Rules.

30. In this context, the Single Judge highlighted that the club bore the burden of proving that

it complied with its financial duties and/or that it had a valid reason not to do so. Nevertheless, in the absence of any reply and supporting documentation, the Single Judge considered that such burden could not be met (cf. art. 13, par. 5 of the Procedural Rules). Consequently, he was convinced that at the time of the termination at least two of the player’s salaries were outstanding and such default was not cured by the club following the warning given by the player.

31. Thus, the Single Judge was firm to determine that per solid DRC jurisprudence, the persistent and substantial non-compliance of the contractual obligations by the club could justify the unilateral termination of the parties’ employment relationship as well as it could hold the club liable for breach of contract.

32. Based on the factual and contractual situation, the Single Judge decided that the player had terminated his employment relationship with the club with just cause in line with art. 14bis of the Regulations. Equally, the Single Judge underscored that the club should be then liable to the consequences that follow. ii. Consequences

33. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the club.

34. At this point, the Single Judge stressed that, notwithstanding having concurred with the player’s allegations regarding the just cause for the termination of the employment relationship with the club, he was also observant that the latter based his claim for pg. 9

REF. FPSD-10743 outstanding remuneration and compensation for breach of contract on the contents of the Offer – and the amounts therein stipulated.

35. Nevertheless, the Single Judge did not fail to notice that, after the Offer was issued, the parties also concluded the Employment Contract by means of which they (i) agreed upon a different remuneration for the duration of their contractual relationship; and (ii) expressly established that any previous agreement was superseded. In parallel, the player limited himself to ignore the existence of the Employment Contract and did not explain and/or file

any complementary documentation capable of supporting his entitlement to the amounts previously included in the Offer.

36. In this specific constellation, the Single Judge deemed that the player could not establish to a comfortable satisfaction degree that he should be entitled to any amount different the ones included in the Employment Contract. As such, the Single Judge was of the opinion that the employment relationship and the financial consequences of the unlawful termination caused by the club shall be assessed vis-à-vis the contents of the Employment Contract (and not the Offer, as claimed by the player), since the former textually and specifically replaced the latter, as agreed by the parties.

37. On this note and in line with the principle of pacta sunt servanda, the Single Judge decided that the player should be entitled to his salaries from March until June 2023, totalling ALL 140,000 (i.e., 4 months à ALL 35,000 each).

38. In addition, taking into consideration the player’s request as well as the constant practice of the Football Tribunal in this regard, the Single Judge decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates (i.e., the 6th day of each month) until the date of effective payment.

39. Having stated the above, the Single Judge turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Single Judge 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 player 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.

40. In application of the relevant provision, the Single Judge held that he 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 Single Judge pg. 10 REF. FPSD-10743 established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

41. As a consequence, the Single Judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

42. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with the calculation of the monies payable to the player under the terms of the Employment Contract only from the date of its unilateral termination until its end date.

Consequently, the Single Judge concluded that the amount of ALL 420,000 (i.e., the salaries from July 2023 until June 2024 à ALL 35,000 each) serves as the basis for the determination of the amount of compensation for breach of contract.

43. In continuation, the Single Judge verified as to whether the player 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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 player’s general obligation to mitigate his damages.

44. Indeed, the player found employment with FK Dečić. In accordance with the pertinent employment contract, the player was entitled to a total of EUR 4,166 per month. Therefore, while considering the exchange rate for the date of signature of such contract, the Single

Judge concluded that the player fully mitigated his damages during the overlapping period because under his new labour contract with FK Dečić he was entitled to the total amount of ALL 4,723,202, broken down as follows: • ALL 147,600 as the pro rata for the month of July 2023; and • ALL 4,575,602 as the salaries from August until June 2024.

45. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Single Judge confirmed that the contract termination took place due to said reason i.e., overdue payables by the club, and therefore decided that the player shall receive additional compensation.

46. In this respect, the Single Judge decided to award the amount of additional compensation of ALL 105,000, i.e., three times the monthly remuneration of the player à ALL 35,000. pg. 11

REF. FPSD-10743

47. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the club must pay the amount of ALL 105,000 to the player (i.e., the additional remuneration only), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

48. Lastly, taking into consideration the player’s request as well as the constant practice of the Football Tribunal in this regard, the Single Judge decided to award the player interest on said compensation at the rate of 5% p.a. as of 28 June 2023 until the date of effective payment. iii. Compliance with monetary decisions

49. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1 and 2 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.

50. In this regard, the Single Judge highlighted 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

51. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the full amount due (including all applicable interest) to the player within 45 days of notification of the decision, failing which, at the request of the player, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

52. The club shall make full payment (including all applicable interest) to the bank account provided by the player in the Bank Account Registration Form, which is attached to the present decision.

53. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations. pg. 12

REF. FPSD-10743

d. Costs

54. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

55. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be

awarded in these proceedings.

56. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-10743

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Patrick Carvalho Nonato, is partially accepted.

2. The Respondent, KF Erzeni, must pay to the Claimant the following amount(s): - ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 March 2023 until the date of effective payment; - ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 April 2023 until the date of effective payment; - ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 May 2023 until the date of effective payment; - ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 June 2023 until the date of effective payment; and - ALL 105,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 28 June 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee

in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods. pg. 14

REF. FPSD-10743

6. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 15

REF. FPSD-10743

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 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 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 16