FIFA - Decisión disputa Costa Tenorio 07092023

REF. FPSD-10321

Decision of the Dispute Resolution Chamber passed on 7 September 2023 regarding an employment-related dispute concerning the player Guttiner Heider Fernando Costa Tenorio BY: Elvis Chetty (Seychelles), Single Judge of the DRC

CLAIMANT:

Guttiner Heider Fernando Costa Tenorio, Brazil Represented by Cleiton Bernardes

RESPONDENT:

Naft Al Wasat SC, Iraq pg. 2

REF. FPSD-10321

I. Facts of the case

1. On 30 January 2023, the Brazilian player, Guttiner Heider Fernando Costa Tenorio

(hereinafter: Claimant or player) and the Iraqi club, Naft Al Wasat SC (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) valid as from 1 February 2023 until 1 July 2023.

2. According to the contract, the Respondent undertook to pay the Claimant a monthly salary of Iraqi Dinar (IQD) 5,500,000 (approx. USD 4,100) as well as “accommodation and food”.

3. On 4 April 2023, the Claimant put the Respondent in default and requested payment of IQD 11,000,000, corresponding to his salaries for February and March 2023, within 10 days.

Further, the player requested the club to return his passport.

4. On 17 April 2023, the player terminated the contract for the following reasons: - Outstanding remuneration of two monthly salaries; - Unpaid accommodation costs; - Since the club retained his passport; - Since the club failed to organize a working VISA for the player.

5. On 27 April 2023, the player paid his invoice of IQD 920,000 in the hotel the player stayed in and got his passport back from the hotel, which seized it due to the outstanding

amounts.

6. On 28 April 2023, the player was about to leave the country but could not board the plane as the Iraqi border control noted that he did not have any VISA to enter Iraq.

7. On 2 May 2023, with the help of the Brazilian Embassy, the player obtained the “immigration stamp” from the Iraqi Immigration services, which allowed him to leave the country again.

This process cost him the following monies: - IQD 500,000 as fine for the missing VISA; - IQD 100,000 as administration fee for the immigration department; - IQD 100,000 (approx. USD 80) as costs for the immigration stamp; - IQD 100,000 (approx. USD 80) as costs for a missing blood test.

8. On 4 May 2023, the player was able to leave Iraq when he flew to Kazakhstan.

9. According to the information contained in the Transfer Matching System (TMS), the player remained unemployed during the relevant period. pg. 3

REF. FPSD-10321

II. Proceedings before FIFA

10. On 24 May 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

11. In his claim, the Claimant requested payment of the following monies: - IQD 33,000,000 as total contractual value (6 salaries); - IQD 11,000,000 as additional compensation; - IQD 809,600 as fees paid to the immigration office (note: confirmation of the Brazilian embassy) - IQD 655,000 as reimbursement for the flight tickets dated 28 April and 4 May 2023; - IQD 1,000,000 as accommodation costs (hotel).

The player requested payment of 5% interest p.a. as of 1 March 2023.

12. In this regard, the player argued that he had just cause to terminate the contract after his

default notice.

13. On top of the outstanding remuneration, the player alleged that he was not given a copy of the actual signed employment contract until 28 April 2023.

14. According to the player, due to the fact that he has not received any money from the club, he had to organise a loan from a friend in order to buy a flight ticket out of the country to Kazakhstan, where his friend lives.

15. Moreover, the player pointed out that the club failed to organise a working VISA for him, which delayed his departure and created costs for the player.

b. Position of the Respondent

16. In its reply, the Respondent rejected the claim.

17. The club argued that the player left the club without justification.

18. Further, the Respondent rejected the allegations that it withheld his passport. According to the club, the passport was “under the control of the tourist security in the Republic of Iraq” and that the club had “no role in that”. pg. 4

REF. FPSD-10321

19. Moreover, the club held that the player was sent off in match and subsequently did not train well. After alleged disciplinary proceedings were initiated, a termination notice was issued on 7 April 2023 stating that: “the player was not at the required level during his presence with us during this period and was lazy to perform training, so we decided to remove him from the team and not need him anymore”.

c. Replica of the Claimant

20. In his replica, the Claimant reiterated his position.

21. He pointed out that he never received any notification and that the alleged termination notice was never delivered to him.

d. Duplica of the Respondent

22. In its duplica, the Respondent acknowledged a debt of two monthly salaries.

23. The club maintained that it appears that the passport of the player was seized by the hotel he stayed in since he failed to pay the costs of accommodation. In this sense, the club held that it was not in possession of the passport.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

24. First of all, the Single Judge (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 24 May 2023 and submitted for decision on 7

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.

25. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 Regulations on the Status and Transfer of Players (May 2023), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player and a club. pg. 5

REF. FPSD-10321

26. 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 Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the present claim was lodged on 24 May 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

27. 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 it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS). c. Merits of the dispute

28. His 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 it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

29. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the parties dispute that the player had just cause to terminate the contract on 17 April 2023.

30. In this context, the Single Judge acknowledged that his task was to decide if the player indeed had just cause to terminate the contract and to decide on the consequences thereof.

31. The Single Judge noted that according to the Claimant, he terminated the contract with just cause due to outstanding remuneration as well as administrative issues regarding the VISA and his passport.

32. On the other hand, the Single Judge took notice that the Respondent acknowledged outstanding remuneration of two monthly salaries, but denied having retained the passport. It argued that it terminated the contract itself after a disciplinary proceeding against the player. pg. 6

REF. FPSD-10321

33. Taking into account the documentation on file, the Single Judge concluded that the player terminated the contract on 17 April 2023 and that the termination notice allegedly sent by the club was never delivered to the player.

34. In this framework, the Single Judge noted that the Claimant held not having received his

remuneration corresponding to more than two monthly salaries. Furthermore, the Claimant has provided written evidence of having put the Respondent in default before unilaterally terminating the contract.

35. The Single Judge wished to emphasize that in the case at hand the Respondent bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties. Nonetheless, in the case at hand the Respondent acknowledged the outstanding salaries.

36. Consequently, on account of the above, considering that the Respondent had thus repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Single Judge decided that the Claimant had just cause to unilaterally terminate the employment contract on 17 April 2023 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant. ii. Consequences

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

Respondent.

38. The Single Judge observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, amount to: - IQD 16,500,000 as salaries for February until April 2023; - IQD 800,000 as fees in connection with the VISA; - IQD 920,000 as accommodation costs.

39. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. IQD 18,220,000 (cf. point 38. above).

40. The Single Judge rejected the reimbursement of flight costs as no flight tickets due to the lack of a contractual basis. pg. 7

REF. FPSD-10321

41. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of effective payment.

42. 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.

43. In application of the relevant provision, the Single Judge held that it 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 established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

44. As a consequence, the members of 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.

45. 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 contract from the date of its unilateral termination until its end date. Consequently, the Single Judge concluded that the amount of IQD 11,000,000 (i.e. Salaries of May and June 2023) serves as the basis for the determination of the amount of compensation for breach of contract.

46. 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 Football Tribunal 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. pg. 8

REF. FPSD-10321

47. In this respect, the Single Judge noted that the player remained unemployed since the unilateral termination of the contract.

48. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

49. In this respect, the Single Judge decided to award the player compensation for breach of contract in the amount of IQD 11,000,000 as the residual value of the contract.

50. Lastly, taking into consideration the player’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 17 April 2023 until the date of effective payment. iii. Compliance with monetary decisions

51. 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.

52. 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.

53. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

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

55. 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. 9

REF. FPSD-10321

d. Costs

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

57. 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.

58. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-10321

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Guttiner Heider Fernando Costa Tenorio, is partially accepted.

2. The Respondent, Naft Al Wasat SC, must pay to the Claimant the following amount(s): - Iraqi Dinar (IQD) 5,500,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2023 until the date of effective payment; - IQD 5,500,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 until the date of effective payment; - IQD 1,720,000 plus 5% interest p.a. as from 28 April 2023 until the date of effective payment; - IQD 5,500,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 until the date of effective payment; - IQD 11,000,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 17 April 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.

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. 11

REF. FPSD-10321

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. 12