FIFA - Decisión disputa Dos Santos Nascimento 28092023

REF. FPSD-10836

Decision of the Dispute Resolution Chamber passed on 28 September 2023 regarding an employment-related dispute concerning the player Ricardo dos Santos Nascimento

COMPOSITION: Lívia Silva Kägi (Brazil), Deputy Chairperson Laurel Vaurasi (Fiji), member Khadija Timera (Senegal), member

CLAIMANT: Ricardo dos Santos Nascimento, Brazil Represented by Pedro Felipe Gomes da Silva

RESPONDENT:

Royal AM Football Club , South Africa pg. 2

REF. FPSD-10836

I. Facts of the case

1. On 4 February 2023, the Brazilian player, Ricardo dos Santos Nascimento (hereinafter: Claimant or player) and the Respondent, Royal AM Football Club (hereinafter: Respondent or club) concluded an employment contract (hereinafter: contract) valid as from 1 February 2022 until 30 June 2023. Indicted as such: “DURATION: (Years or months) 17 MONTHS + 1 YEAR OPTION COMMENCMENT DATE : (Exact Date) 05 FEB 2022

TERMINATION DATE : (Exact Date) 30.06.2023"

2. In accordance with the employment contract, the Respondent undertook to pay to the following remuneration: “( c) Basic Salary R 300,000 gross per month from 1 FEB 2022 to 30.06.2023

R 320,000 gross per month from 1 JULY 2023 to 30.06.2024 R 340,000 gross per month from 1 JULY 2024 to 30.06.2025

(d ) Any other provisions: BONUSES AS PER THE TEAM STRUCTURE AND WILL HAVE 1 RETURN

TICKET”

3. On 12 May 2023, the agreement was unilaterally terminated by the Respondent, stipulating

the following:

“EARLY TERMINATION OF CONTRACT SERVICE

ROYAL AM FOOTBALL CLUB management has decided to terminate the contract between the club and RICARDO DOS SANTOS DO NASCIMENTO with Passport number YC921976 with immediate effect. The reasons for termination are confidential between the two parties. The May and June 2023 salaries will be paid as normal on the last day of each month. The team thank you for your contribution and wishes you well in your future endeavours.”

4. The player confirmed that he remained unemployed.

II. Proceedings before FIFA

5. On 7 July 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation. pg. 3

REF. FPSD-10836

a. Position of the Claimant

6. According to the Claimant, the club terminated his contract without just cause.

7. The requests for relief of the Claimant, were the following: a. “That the Club fully complies with the payment of the defaulted bonuses, in the amount of ZAR 120,000, accrued each of 5% (five per cent) per year interests as of each win;

b. It is acknowledged the unilateral termination of the labor agreement without just cause, by the Club, before the Player, having the Club to immediately indemnify the Player in the Agreement’s total amount. The Player, in light of the contra preferenda and in dubio pro operario rule, requests to be indemnified in the projection of salaries until 30 June 2025. The amount shall be accrued with interest rate as of the date of the notice sent to the Player, i.e. 12 May 2023.” b. Position of the Respondent

8. Notwithstanding being invited to do so, the Respondent failed to reply to the claim. pg. 4

REF. FPSD-10836

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

9. 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 28 September 2023. Taking into account the wording of art. 34 of May 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.

10. 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 employment-related dispute with an international dimension between a Brazilian player and a South African club.

11. 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

12. 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

13. 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. 5

REF. FPSD-10836

1. Main legal discussion and considerations

14. The foregoing having been established; the Chamber moved to the substance of the matter and took note of the fact that the Claimant assert that the Respondent as per its notice, dated 12 May 2023 terminated his contract without just cause.

15. In this context, the Chamber acknowledged that its task was to determine, whether the contract was terminated by the Respondent with or without just cause and to decide on the consequences thereof.

16. 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.

17. 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.

18. In this context, the Chamber acknowledged that he had to examine if any reasons were put forward by the club in its termination notice of 12 May 2023 as to the purpose for the termination, and whether such reasons could justify the termination of the contract in the present matter.

19. The Chamber noted that the Claimant highlighted that the Respondent did not provide reasons for his dismissal, it merely indicated that such reasons are confidential.

20. In this respect, the Chamber referred to its well-established jurisprudence and emphasised that, as a general rule, only a breach or misconduct which is of a certain severity justifies a premature termination. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

21. In view of the aforementioned, the Chamber held that club failed to provide a justifiable reason for terminating the contract, hence it was of the firm opinion that the club had unilaterally terminated the contract without just cause on 12 May 2023 and should therefore be held liable for the consequences of such termination. pg. 6

REF. FPSD-10836

22. Moreover, the Chamber highlighted that in the case at hand the Respondent bore the burden of proving that it indeed complied with the financial terms of the contract i.e., May and June 2023 salary, however it failed to do so. ii. Consequences

23. 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.

24. The Chamber considered the player’s request to be awarded performance bonus for matches played, in this regard the Chamber concluded that the player failed to provide corroborating evidence that such amount was determined at EUR 10,000 per match, moreover the contract indicated that the bonus will be awarded as per the “bonuses as per the team structure”, in light of the aforesaid the Chamber decided to reject this part of the Claimant’s claim.

25. The Chamber noted that the player argued that the contract was valid until June 2025, on

the basis of the contradictory dates established in the agreement. In this regard the Chamber indicated that the agreement clearly established that the duration thereof would be for a period of 17 months with an option of 1 year and that the salaries indicated in the schedule will only be triggered once such option is exercised.

26. Having stated the above, the Chamber 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 Chamber 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.

27. In application of the relevant provision, the Chamber 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

28. As a consequence, the members of the Chamber 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 Chamber recalled that pg. 7

REF. FPSD-10836 said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

29. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber concluded that the amount of ZAR 600,000 (i.e., the May and June 2023 salary of ZAR 300,000 each) serves as the basis for the determination of the amount of compensation for breach of contract.

30. In continuation, the Chamber 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.

31. In this respect, the Chamber noted that the player remained unemployed since the unilateral termination of the contract.

32. The Chamber 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.

33. In this respect, the Chamber decided to award the player compensation for breach of contract in the amount of ZAR 600,000, i.e. ZAR 300,000 times 2, as the residual value of the contract.

34. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 12 May 2023 until the date of effective payment. iii. Compliance with monetary decisions

35. 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.

36. 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 pg. 8

REF. FPSD-10836 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.

37. 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.

38. 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.

39. 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

40. 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.

41. 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.

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

REF. FPSD-10836

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Ricardo dos Santos Nascimento , is partially accepted.

2. The Respondent, Royal AM Football Club , must pay to the Claimant the following amount(s): - ZAR 600,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 12 May 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. 10

REF. FPSD-10836

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).

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