FIFA - Decisión disputa da Silva Junior 31082023

REF. FPSD-10065

Decision of the Dispute Resolution Chamber passed on 31 August 2023 regarding an employment-related dispute concerning the player Dario Frederico da Silva Junior

COMPOSITION: Lívia Silva Kägi (Brazil), Deputy Chairperson Stijn Boeykens (Belgium), member Calum Beattie (Scotland), member

CLAIMANT:

Dario Frederico da Silva Junior, Brazil Represented by Victor De Sordi

RESPONDENT:

Singida Big Stars FC, Tanzania pg. 2

REF. FPSD-10065

I. Facts of the case

1. On 7 July 2022, the Brazilian player, Dario Frederico da Silva Junior (hereinafter: the Claimant or player) and the Tanzanian club (hereinafter: the Respondent or club) concluded an employment contract (hereinafter: the first contract) valid for a period of 2 (two) years from 7 July 2022.

2. Pursuant to article 1 par.1 of the first contract, the Claimant was entitled to a signing fee of USD 35,000 net per year.

3. Pursuant to article 1 par.2 of the first contract, the Claimant was entitled to a monthly net salary of USD 2,800.

4. Article 1 par.3 of the first contract, stipulated the following: “there shall be six months of evaluation of performance of which the said gross salary (in Art.1(2) above) can be reduced to lower amount if upon the finish of six months of evaluation of performance from the day of signing this contract it shall be found that the performance of the player has dropped.”

5. On 11 August 2022, the Clamant and the Respondent concluded a second employment contract (hereinafter: the second contract) valid for a period of 3 (three) years from date of signing of contract.

6. Pursuant to article 1 par.1 of the second contract, the Claimant was entitled to a signing

fee bonus of USD 78,000 net per year.

7. Pursuant to article 1 par.2 of the second contract, the Claimant was entitled to a monthly salary of USD 3,500.

8. On 17 November 2022 the Claimant suffered an injury during a match, according to which the player received treatment from the physical trainer for a period of three weeks.

9. On 25 January 2023, the Respondent and the Claimant mutually agreed that the latter should treat his injury in Brazil, by the conclusion of an authorisation agreement, which stipulated the following: “Singida Big Stars Football club has accepted your request to go for treatment and recover your injury in Brazil also in your request you agreed that you will not be entitled to be paid monthly salary for the enter period you will be in treatment.

To whom you can confirm that club authorizes the player to go for treatment and to recover the injury in Brazil and return Tanzania when he will be ok, and he has recovered his injuries this authorization will expire at the end of February 2023 or in the first days of March 2023 when the pg. 3 REF. FPSD-10065 club have to issue the back ticket. The club will issue go and return ticket for the player and his wife also will receive $10,000 from the club for travelling and treatment uses at the time of signing this agreement. For the time player will be in Brazil for treatment as requested, the club will not be responsible for paying the players monthly salary and the player may not sue the club for not paying him his salary while he was in Brazil for treatment as he requested.”

10. On 31 January 2023, the Claimant arrived in Brazil, and started the treatment of his injury.

11. On 10 March 2023, the Claimant’s doctor provided a medical report which, inter alia, mentioned that “he is in 70% of his physical conditions, and it is not recommended that he practice high-performance sports activities in this phase of gradual return until a subsequent

clinical examination, in order to minimize the chance of a recurrence of the lesion.”

12. Based on the aforesaid, the Claimant communicated to the Respondent that he was not 100% ready to play and suggested the following two alternatives: - “remain in Brazil treating his injury until he made a full recovery, but with the payment of his monthly wages; or - return to the Club along with the payment of his monthly wages, but without playing official matches until he made a full recovery.”

13. On 28 March 2023, the Claimant sent a notice to the Respondent, inter alia, stating that “the salary waiver of the authorization agreement was null and void under the relevant legislation, and also requesting that the Respondent”: a) “provide a copy of his new employment agreement (2nd contract) , signed by the Club’s representatives b) respect the medical decision to prevent him from participating in official matches until he is 100% recovered c) issue the returning flight ticket (from Brazil to Tanzania) for the Player and his wife, as provided on the authorization agreement; and d) payment of USD 10,500 which formed the overdue salaries from January, February and

March 2023”

14. On 1 April 2023, the Respondent replied to the notice of the Claimant, stipulating the following: “That our club admits the content of Paragraph 1 is so far as the same is descriptive of the relationship between your client and our club that on 07thJuly 2022 at Dar es salaam FQ Hotel, in front of six eye witnesses; one from federation and one member from Tanzania Soccer Players Union, DARIO FREDERICO DA SILVA JUNIOUR signed a contract for two years which is valid till today (copy of contract is attached and marked as A11nex 'A'). pg. 4

REF. FPSD-10065

The contents of paragraph 2 of the notice is disputed and your client is put into strict proof

thereto. The club management prepared a proposal for a new contract which was expected to be signed at the beginning of the football season of 2023/2024, the said proposal was sent to the player's agent to satisfy himself if it is correct, but by surprise the player and his agent have already signed it and they are using it as official contract contrary to the agreement between the two parties tell your client to refer Article 27 and article 28(3&4) of his contract. regarding the bonus that the player was given by the club, it is not a salary increment but the club had the goal of raising the player's spirit and morale as we all know that the bonus added to the player is not part of the existing contract, the club will remove it and the player will be left with his full salary of USD 2800$ per month when he returns to the camp after full recovery from injury, we remind his agent if he is true agent and qualified to respect FIFA Football Agent Regulations Article 16 (2)(b)(C) (3)(g) (4)(b) on the rights and Obligations of agents. That, the contents of paragraph 5 of your client notice are disputed and your client reiterates whatever has been stated in paragraph 5 of the notice. It is not true that the club does not have enough facilities to treat our players, if the club fails to treat the player we refer them to our specialist who resides in Dar es Salaam for further treatment. Please tell your client to refer Article 16 and 17 of his contract. This player requested to return to Brazil where he knew how he can get treatment, but claiming that the club has no facility to treat its player is a kind of an insult to our club. That he requested the club to pay flight tickets for him and his wife, also the club to give him 10000$ which is not in the contract, but for the reasons we respect our player we saw no reason for us to deny his humble proposal. The player basically asked for money that he will use when

he is in Brazil and both parties agreed that no salary will be paid at the time the player will not be in Tanzania. That, this statement stated that "the player didn't receive any legal advice regarding the signing of the authorization" is disputed for the reasons that the said document was prepared by the player's agent and submitted to the club for the parties to sign. With that statement the club is starting to worry about the behavior of the player for not being honest with the aim of cheating the club for his own benefit. That by quoting your statement that "After receiving the proper legal advice the player use this opportunity to conclude that the part of Authorization where the player waive his salary is null and void. Just to remind you and your client, the third party in a contract does not have power to nullify the agreement between the two parties which entered into agreement without undue influence and with free consent. This will be perceived as some kind of fraud; so dear counsel you must respect our agreement entered on the 25th January 2023copy of agent messages is attached and marked as Annex 'B'. That the player's claim that the club owes him 100005 and the money he received is for that debt is not true. The player's claim that he is demanding three months wages is not true either. He should respect his agreement with his employer and evaluate himself with that statement. pg. 5

REF. FPSD-10065

Also being honest is very important than being a liar. copy of 25th January 2023 is attached and marked as Annex 'C' In sum up we remind your client that the negotiation of new contract was postponed due to his absence and injuries, always the club respects the medical decision by complying with Article 18 of the player's contract. From the date the player traveled up to-date no report from his doctor in Brazil has been sent to our club's doctor rather than receiving a message stating that your player has recovered 85% so he can't play but think the way you can pay him while we have

agreed when is in treatment no salary will be paid. Singida Big Stars FC reminds DARIO FREDERICO DA SILVA JUNIOUR that the club will not tolerate any kind of dishonest from him to the club. He must respect the agreement he signed on his hand and not try to blackmail us. As a club we didn't expect to see this kind of behavior from an international Player like DARIO FREDERICO DA SILVA JUNIOUR. We still hope he will come back to his sense and behave.”

15. On 8 April 2023, the Claimant sent a further notice to the Respondent “to rebut every single point brought by the Club in the Notice Reply. The Player stressed that the nonfulfilment of the items requested by the Player would lead to the Player’s early termination of the New Agreement with just cause.”

16. On 12 April 2023, the Respondent replied to the aforesaid notice of the Claimant, indicating that its prior letter already addressed all the matters.

17. On 13 April 2023, the Claimant sent a final notice to the Respondent terminating the employment contract.

18. According to the information available in TMS, the player concluded an employment contract with the Indian club, RAJASTHAN UNITED FOOTBALL CLUB valid as from 1 July 2023 until 31 May 2024, entitling him to a monthly salary of USD 4,500 from 1 October 2023 until 31 March 2023.

II. Proceedings before FIFA

19. On 2 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

20. In his claim, the Claimant argued that his wish to continue playing for the club, “but the club didn’t remedy the contract violations in order to maintain the Employment Agreement in force. “ pg. 6

REF. FPSD-10065

21. Additionally, the Claimant highlighted that the authorisation agreement was signed

“without any independent legal advise from a third party lawyer who could provide him a legal opinion. Also, the document was drafted in English without a Portuguese translation, which given the Player’s native Portuguese language, made it very difficult for the Player understand the intricacies of the legal terms being agreed on.”

22. The requests for relief of the Claimant, were the following: “To enforce FIFA’s Football Tribunal jurisdiction as competent to rule on the matter;

(ii) To rule that the New Employment Agreement is a valid contract; (iii) To rule that the Player had just cause to terminate the employment relationship; (iv) To rule that the Club shall pay to the Player a compensation calculated from the residual value of the New Employment Agreement in the amount of USD 258.616 (two hundred and fiftyeight thousand and six hundred and sixteen dollars) - for having just cause to the early termination of the New Employment Agreement; (v) Alternatively, to the above request, to rule that the Club shall pay to the Player a compensation calculated from the residual value of the First Employment Agreement in the amount of USD 79.800 (seventy thousand dollars) - for having just cause to the early termination of the first Employment Agreement; (vi) To additionally include to the Compensation of the Player the amount of USD 10.500 (ten thousand and five hundred dollars), corresponding to the overdue payments that were due when the New Employment Contract was in force; (vii) Alternatively, to the above request, to additionally include to the Compensation of the Player the amount of USD 8.400 (eight thousand and four hundred dollars), corresponding to the overdue payments that were due when the First Employment Contract was in force; (viii) To order the Respondent to pay interest on the said amounts of 5% p.a, calculated pro rata; (ix) To impose a sporting sanction on the Club pursuant to Article 17, par. 3 of the FIFA RSTP; (x) To order the Club to cover all costs of the proceedings and to bear all the legal fees and costs incurred by the Player in connection with the present matter.”

b. Position of the Respondent

23. Notwithstanding the fact that the Respondent was invited to provide its position to the Claimant’s claim it failed to do so. pg. 7

REF. FPSD-10065

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 2 May 2023 and submitted for decision on 31 August 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.

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 May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Brazilian player and a Tanzanian 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 15 February 2023, the March 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. Merits of the dispute

5. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber 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. pg. 8

REF. FPSD-10065

1. Main legal discussion and considerations

6. The foregoing having been established; the Chamber moved to the substance of the matter and took note of the fact that the Claimant asserted that the Respondent is in breach of contract, on the basis that the latter failed to comply with its contractual financial obligations.

7. The Chamber noted that – after having been provided with the claim of the Claimant – the Respondent failed to present its response. By not presenting its position to the claim, the Chamber was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the Chamber expressed that it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

9. From the documentation on file, the Chamber established that following the injury of the Claimant, the parties signed an authorisation agreement, which the Claimant acknowledged having signed but argued that the suspension of his salaries agreed to per

se is invalid and that he signed the document without any independent legal advice and without a Portuguese translation, which made it very difficult for him to understand the intricacies of the legal terms being agreed on.

10. The Chamber therefore deemed that the first issue to consider in the matter at hand is whether the authorisation agreement signed by the Claimant are to be considered as validly signed, moreover if the suspension of his salary for the period while his in Brazil for treatment of his injury can be considered as valid.

11. The Chamber observed that both parties signed the authorisation agreement, mutually agreeing to the treatment of the Claimant’s injury in Brazil, additionally that the Claimant did not contest having signed the document, he only indicated that he did not understand it as it was not in his native language, in light of the aforesaid, the Chamber was of the opinion that the Claimant should not have signed a document he did not completely understand and should have perhaps insisted on a translation prior to signing it.

12. On account of the above, the Chamber therefore considered that the authorisation agreement was validly concluded between the parties.

13. Upon analysis of the content of the authorisation agreement, the Chamber noted the

following: (i) The club accepted the player’s request to go for treatment and recover from his injury in Brazil (ii) The player will not be entitled to his monthly salary for the period of his in treatment in Brazil and the player may not sue the club for same pg. 9

REF. FPSD-10065

(iii) The Authorization will expire at the end of February 2023 or early March (iv) That the club have to issue a return ticket to player

14. Considering the above and if the suspension of the Claimant’s salary was validly agreed upon, the Chamber remarked that the authorisation was granted upon the request of the Claimant, upon which he reached a mutual agreement with the Respondent whereby he agreed to the suspension of his salaries while he is in Brazil for treatment, therefore the

Chamber confirmed that he was not entitled to the payment of his salary for the period of his authorised absence as per the authorisation agreement.

15. The Chamber made reference to the fact that the authorisation agreement was due to expire at the latest in early March 2023, but that the Claimant failed to return to the club on the basis that he was not 100% ready to provide his playing services, following a report from his doctor, however on analysis of the medical report, the Chamber remarked that the Claimant was not prohibited from returning to Tanzania.

16. Furthermore, the Chamber considered that in his claim, the Claimant mentioned that he made a proposal to the Respondent whereby he suggested to (i) remain in Brazil treating his injury until he made a full recovery, but with the payment of his monthly wages or (ii) return to the Club along with the payment of his monthly wages, but without playing official matches until he made a full recovery”, however the parties failed to reach an agreement and the player failed to return to the club.

17. The Chamber noted that the Respondent on its account failed to call the Claimant back to continue to provide his services Tanzania.

18. Considering the aforesaid actions of the parties, the Chamber decided that it seems that both parties were no longer interested to continue their employment relationship, seemingly they mutually departed from the employment relationship by the expiration of the authorisation agreement. ii. Consequences

19. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the

Respondent.

20. In this respect the Chamber noted that the Claimant argued that he is entitled to the remuneration established in the second contract.

21. The Chamber recalled the content of 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. With this in mind, the Chamber deemed that it was up to the Claimant to

prove that the second contract was validly concluded between the parties. pg. 10

REF. FPSD-10065

22. In this context, the Chamber turned its attention to the documentation brought forward by the Claimant and acknowledged that he provided sufficient and corroborating evidence i.e., (bank statements stating that since August 2022 he was being paid an amount of USD 3,500, which is the new salary as per the second contract.), hence the Chamber decided that the second contract shall be taken into account in assessment of this matter and established that the Respondent’s financial obligations arose from the terms and conditions agreed to in the second contract.

23. The Chamber observed that the outstanding remuneration at the time of expiration of the authorisation agreement, are equivalent to the January salary amounting to EUR 3,500 due prior to the authorisation agreement and on account that the Respondent failed to provide proof of payment thereof, therefore in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the said amount.

24. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount as from 1 February 2023 until the date of effective payment.

25. Lastly the Chamber confirmed that there is no entitlement to the Claimant to any further compensation. iii. Compliance with monetary decisions

26. Finally, taking into account the applicable Regulations, the Chamber 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.

27. In this regard, the DRC 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.

28. Therefore, bearing in mind the above, the DRC 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. pg. 11

REF. FPSD-10065

29. 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.

30. The DRC 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.

d. Costs

31. 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.

32. 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.

33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 12

REF. FPSD-10065

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Dario Frederico da Silva Junior, is partially accepted.

2. The Respondent, Singida Big Stars FC, must pay to the Claimant the following amount(s): - EUR 3,500 as outstanding remuneration plus 5% interest p.a. as from 1 February 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. 13

REF. FPSD-10065

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. 14