FIFA - Decisión disputa Celin 14092023

REF. FPSD-10848

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Leandro Padovani Celin BY: Martín AULETTA (Argentina), Deputy Chairperson Mario FLORES CHEMOR (Mexico), member Stella MARIS JUNCOS (Argentina), member

CLAIMANT:

Leandro Padovani Celin, Brazil Represented by Mr Edison Soares

RESPONDENT:

Esteghlal FC, IR Iran pg. 2

REF. FPSD-10848

I. Facts of the case

1. On 22 June 2017, the Brazilian player, Leandro Padovani Celin (hereinafter: the player or the Claimant) and the Iranian club, Esteghlal FC (hereinafter: the club or the Respondent) concluded an employment contract, valid as from the date of signature until the end of the 2017/2018 season.

2. On 24 February 2018, during a match against the club Foolad FC, the Claimant suffered a serious injury, hitting his head and neck to the field, making him unconscious. He was taken by ambulance to the hospital

3. On 17 September 2019, the Claimant lodged a claim against the Respondent in front of FIFA, by means of which, inter alia, he requested the payment of USD 500,000 as provisional measures which “Fifa determines that the Club, since now, regardless of sentence delivery, already largely proved the offenses to the health of the plaintiff, and his right to the indemnification, cautionary deposit, which shall be deposited on the name and power of FIFA, in the amount of U$500,000.00 (five hundred thousand American dollars), partly releasing it, for his medical treatment and family expenses, such as food, clothing, for he does not have conditions to survive without the support of the Club, due to the serious sequels. This amount will be discounted, in the future, from the full indemnification.”

4. In particular, the Claimant emphasized that the Respondent did not have an insurance covering accidents and underlined that the payment of compensation by the Respondent is justified.

5. On 23 April 2020, the Dispute Resolution Chamber (19-01624) partially accepted the claim of the player and ordered that “The Respondent, Esteghlal FC, has to pay to the Claimant outstanding remuneration in the amount of USD 100,000, plus interest (…)”.

6. In this respect, the Chamber considered the following: “despite the tragic circumstances of the present matter as well as the civil developments it may possibly trigger, the deciding body of FIFA is only competent to deal with contractual disputes between players and clubs, and not with disputes relating to a tort. In other words, the Chamber may not assess any claim which relates to a potential civil liability of the club with regard to the player’s handling of his injury. Furthermore, the regulatory framework at the Chamber’s disposal does not set out the possibility to award damages, which do not rely on any contractual or regulatory basis. In this regard, the Chamber also referred to the constant jurisprudence of the Dispute Resolution Chamber, according to which damages may not be awarded as compensation in the sense of art. 17 of the Regulations.” pg. 3

REF. FPSD-10848

7. Following an appeal lodged by the player, on 18 October 2022, the Sole Arbitrator of the Court of Arbitration for Sport (CAS 2020/A/7312) decided upon the following: “1. The appeal filed on 31 July 2020 by Leandro Padovani Celin against the decision rendered by the FIFA Dispute Resolution Chamber on 23 April 2020 is dismissed.

2. The decision rendered by the FIFA Dispute Resolution Chamber on 23 April 2020 is confirmed.

3. The costs of the arbitration, to be determined and served to the Parties by the CAS Court

Office, shall be borne entirely by Mr Leandro Padovani Celin.

4. Mr Leandro Padovani Celin shall pay to Esteghlal FC an amount of CHF 3,000 (three thousand Swiss francs) as legal contribution towards its legal costs and other expenses incurred in connection with these arbitration proceedings.

5. All other motions or prayers for relief are dismissed.”

8. The Sole Arbitrator made the following considerations: 128 (…) the FIFA DRC was correct in not entertaining the Player's claim, firstly because extracontractual civil liability claims do not fall within the competence ratione materiae of the FIFA legal bodies and cannot be considered as an "employment-related'' dispute under Article 22

(b) of the RSTP and, secondly, since the contractual situation between the Parties had already been solved by means of the Settlement Agreement. (…)

139. As such, it is considered undisputed that Swiss law imposes a contractual duty on a football club as an employer to take all reasonable steps to ensure the health and safety of a football player as an employee in the player's conduct of his or her duties, specifying that any breach of such a duty will be actionable in damages if loss is caused.

(…)

145. As such, the Sole Arbitrator finds that the Player's claim for damages based on the Club's alleged breach of its duties as an employer to take all reasonable steps to ensure the health and safety of the Player during his conduct of his contractual duties, is to be considered as an employment-related dispute within the meaning of Artcle 22 (b) of the RSTP, which gives the FIFA DRC the jurisdiction to adjudicate on this claim.

(…)

147. Based on the above, the Sole Arbitrator finds that the FIFA DRC did in fact have jurisdiction to adjudicate on this part of the Player's claim for compensatory damages as appealed under these proceeding, and the CAS has therefore jurisdiction to do the same.

(…) 159. (…) the Sole Arbitrator initially notes that it is not disputed between the Parties that liability may arise, and can be relied on, concurrently under Swiss contract law and Swiss tort law (…)

162. Save for questions of requirement of fault in the context of contractual liability and in respect of vicarious liability in tort, the Parties agree that the burden of proof lies with the Player in order to prove his claim. (…) pg. 4

REF. FPSD-10848

192. In order to decide on the issue of causation, the Sole Arbitrator initially finds (…) that it is up to the Player to discharge the burden of proof to establish the causation between the act/omission of the Club and the damage suffered.

193. However, the Sole Arbitrator finds that the Player has not adequately discharged this burden of proof, neither to the Sole Arbitrators comfortable satisfaction nor even on the balance of probabilities.

(…)

200. Finally, and for the sake of good order, the Sole Arbitrator notes that he sees no reason, or possibility, to deviate from the Appealed Decision concerning the Club's obligation to pay to the Player the amount of USD 100,000 plus interest.”

II. Proceedings before FIFA

9. On 7 July 2023, the player lodged a new claim before FIFA and requested “the Club to pay him indemnification for the moral and material harm he endured in face of the serious physical offenses, by the second hypothesis not examined by FIFA and CAS (Objective liability without fault) corresponding to the physical irreversible incapacity the he endured, plus 5% of interest, which took into consideration that his incapacity is close to 50%

(possibly more) and a presumable death would happen at eight-five (85), taking into account the average aged of the European man, increasing it by the indemnification, in case the incapacity for the civil life is above 50%, to be verified by medical inspection determined by the Court.”

10. The player argued that the previous claim before FIFA concerned “two versions”, namely: - Subjective liability with fault (the failure to use the cervical collar, precarious stretcher, etc .., - Objective liability without fault (the fact of being in his working hours in an official match, at disposal of the club.

11. The player considered that CAS “only judged the liability with fault (that is, the failure to use the cervical collar during transport, precarious stretcher etc ... , omitting itself from expression in regard to the liability without fault (being in working hours, at disposal of the contracting club)”

12. Therefore, the player considered that “therefore, FIFA, since it is now competent in accordance with CAS, has a procedural and legal obligation to judge this omitted legal aspect”

13. The player further considered that the legal concept of labour accident is applicable. pg. 5

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14. Hence, the player requested to be compensated with “the expenses of all treatment in Brazil, physiotherapy, hydrotherapy, medicines, including one caregiver (home care), also on the lost profits until the age of forty ( 40 ), for the offense makes him incapable of doing his job, until the age that; presumably, he would play professional soccer”.

15. The player also considered that “the Club, consequently, should also be convicted and have to pay him a pension for life (until 85 year of age, presumable age of his death . - average lifetime of an European male) corresponding to 50% (fifty percent), or more, for the work that made him incapable or de depreciation he went through.”

16. The player further provided a copy of the Judgment of the European Union General Court (Appeal Chamber) of 7 December 2017 “Stefano Missir Mamachi di Lusignano and Others v European Commission” in which the Court condemned the Commission to indemnify, albeit independently of fault, the family of the political adviser and

diplomat of the delegation of the Commission of the European Communities and his wife, both murdered in 2006 in Rabat, Morocco, as it is the Commission's obligation to ensure the protection of its officials.

17. The club failed to provide a reply within the granted deadline. pg. 6

REF. FPSD-10848

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

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 case at hand. In this respect, it took note that the present matter was presented to FIFA on 7 July 2023 and submitted for decision on 14 September 2023. Taking into account the wording of art. 34 of the October 2022 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.

2. Subsequently, the members of the Chamber 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 lit. b) of the Regulations on the Status and Transfer of Players (October 2022 edition), the Dispute Resolution Chamber is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Brazilian player and an Iranian club.

3. Subsequently, 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 (May 2023 edition), and considering that the present claim was lodged on 7 July 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the

substance. b. Burden of proof

4. The Chamber 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 Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Admissibility

5. The Chamber first noted that the matter at stake is a claim related to compensation due to a serious injury suffered by the player on 24 February 2018. The player was subsequently diagnosed with tetraplegia. pg. 7

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6. On this note, the Chamber deemed fundamental to acknowledge and express its empathy with the tragic circumstances surrounding the injury suffered by the player, which underscores the significance of addressing the player's new claim for compensation.

However, even in the face of such tragic circumstance, the FIFA Football Tribunal emphasized that it first needs to assess the admissibility of the claim on the grounds of its own regulatory basis.

7. In this respect, the DRC first noted that already rendered a decision concerning the same facts (19-01624), which was confirmed by CAS (CAS 2020/A/7312).

8. The Chamber then acknowledged that, in the present matter, the Claimant understands that the previous decision was related to the club’s subjective liability with fault, but understands that the matter can be evaluated on the basis of objective liability, i.e. as a labour accident.

9. In other words, the Chamber understood that the Claimant is basing his request in a new legal theory (objective liability without fault), which was not considered in the previous cases.

10. In view of the above, the Chamber considered that it should first find a reply to certain legal

considerations. a) What is objective liability and how does it differ from subjective liability?

11. As a first remark, the Chamber noted that objective liability is a subtype of extra-contractual liability, altogether with subjective liability. However, these two subtypes serve the common purpose of addressing the consequences and responsibilities that arise when damages occur during an employment relationship. In other words, the Chamber considered that the introduction of objective liability, in this case, signifies a new legal argument rather than fundamentally changing the nature of the responsibility itself. It does not establish a different type of responsibility but rather presents an alternative legal path to establish liability. b) If objective liability does not change the responsibility, what does it imply in the context of res iudicata?

12. In its previous decision, the DRC considered that it can only deal with contractual disputes between players and clubs, and not with disputes relating to a tort. Since objective and subjective liability are deemed subtypes of extra-contractual liability, it can be said that the DRC already addressed the player’s petition for the extra-contractual consequences of the player’s injury.

13. In this respect, the Chamber noted that in the previous award, although confirming the decision of the DRC, the Sole Arbitrator argued that “the Player's claim for damages based pg. 8

REF. FPSD-10848 on the Club's alleged breach of its duties as an employer to take all reasonable steps to ensure the health and safety of the Player during his conduct of his contractual duties, is to be considered as an employment-related dispute within the meaning of Article 22 (b) of the RSTP”.

14. In relation to this remark, the Chamber noted that the reasoning of the DRC implied an argument as to the substance, and although using the word “competent”, it did state that “the regulatory framework at the Chamber’s disposal does not set out the possibility to award damages, which do not rely on any contractual or regulatory basis”.

15. In other words, the previous argument of the DRC primarily concerned the substance of the matter.

16. Consequently, in the view of the Chamber it can be inferred that the DRC had already made a decision, which was subsequently upheld by CAS, regarding the extracontractual liability of the club. This determination stems from the fact that the regulatory framework available to the DRC does not provide a provision for awarding damages that are not tied to a contract or the governing regulations. This lack of specific provisions governing compensation beyond contractual or regulatory frameworks means that the DRC cannot adjudicate on claims for extracontractual damages based on general principles that may or not exist in certain jurisdictions, but are not explicitly part of the football regulatory framework.

17. The Chamber also considered that the player could have introduced objective liability in his original claim as an additional argument, but this should not serve as a criteria to reengage the club’s liability. In the opinion of the Chamber, introducing a new legal argument or theory after a previous decision in relation to the same facts would be detrimental to the principle of legal certainty.

18. As a result, the Chamber could only concluded that the claim is inadmissible since it is res iudicata.

d. Costs

19. The Chamber 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 Chamber decided that no procedural costs were to be imposed on the parties.

20. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

21. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-10848

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Leandro Padovani Celin, is inadmissible.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-10848

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. 11