FIFA - Decisión disputa Felisberto 30052023

REF. FPSD-9349

Decision of the Dispute Resolution Chamber passed on 30 May 2023 regarding an employment-related dispute concerning the player Murilo de Souza Felisberto BY: Iñigo Riestra (Mexico)

CLAIMANT:

Murilo de Souza Felisberto, Brazil Represented by Pedro Macieirinha

RESPONDENT:

Budaiya Sports Club, Bahrain pg. 2

REF. FPSD-9349

I. Facts of the case

1. On 7 July 2022, the Brazilian player Murilo de Souza Felisberto (hereinafter: the Claimant) and the Bahraini club Budaiya (hereinafter: the Respondent) concluded a Professional Football Player Contract (hereinafter: the Contract) valid “until the end of the 2023/2024 season”.

2. According to the art. 2 of the Contract, the Claimant had monthly salary of USD 2,000.

3. On 4 February 2023, the Claimant sent a default notice stating that the Respondent had terminated the contract without just cause and requested compensation.

4. On 21 February 2023, the Claimant signed a contract with the Ukrainian club Lviv valid until 30

June 2025. The Claimant is entitled to a monthly salary of UAH 20,000.

II. Proceedings before FIFA

5. On 21 February 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

6. According to the Claimant, between 16 and 23 January 2023 the Claimant trained separated from the team and “sent back to Brazil”. Thus, the Claimant deems that this constituted a breach of contract without just cause by the Respondent,

7. The Claimant sustains that for January, he was solely paid USD 1,530 and therefore USD 470

remained outstanding.

8. The Claimant filed the following requests for relief: condemn the Respondent Club BUDAYIA CLUB Sports & Cultural to pay to the Claimant the amounts of: i) The outstanding payables of 470,00 USD for the January's monthly salary; ii) The compensation in the total amount of 32 000,00 USD net (2 000,00 USD as monthly salary x 16 months at least until the end of 2023/2024 season in BFA), equal to residual value of the contract that was prematurely terminated; iii) Plus 5% interest rate since the overdue dates until effective payment and free of taxes and other administrative incomes that are responsibility of the Respondent club. pg. 3

REF. FPSD-9349

b. Position of the Respondent

9. Despite being invited to file its position, the Respondent failed to reply to FIFA in a timely manner.

10. After the closure of the submission phase on 22 March 2023 by FIFA general secretariat, the Respondent filed a submission stating that the claim had been incorrectly notified.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

11. 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 21 February 2023 and submitted for decision on 30 May 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.

12. 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 (October 2022), he 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 Bahraini club.

13. 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 (October 2022 edition), and considering that the present claim was lodged on 21 February 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

14. 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 Transfer Matching

System (TMS). c. Merits of the dispute

15. 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 pg. 4

REF. FPSD-9349 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

16. On a preliminary basis, the Single Judge noted the contents of the correspondence from the Respondent received after the closure of the investigation phase and he underscored that the claim was sent to the email address from the Respondent as available on TMS. Thus, the Single

Judge concluded that based on art. 10 par. 4 of the Procedural Rules, the claim had been duly notified.

17. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact the case consists of the alleged early termination of the contract by the Respondent. Furthermore, the Single Judge underlined that the claim remains uncontested by the

Respondent.

18. In this context, the Single Judge acknowledged that its task was to determine, based on the evidence on file, whether the Respondent terminated the Contract and if that terminated was with or without just cause.

19. In this regard, the Single Judge underscored that the Claimant has provided no supporting evidence of his allegations regarding the alleged separation from the team or the alleged termination. However, his argumentation remains uncontested since the Respondent had failed to reply to the claim.

20. The Single Judge observed that based on the information available on TMS, the Claimant signed for the Ukrainian club Lviv and the said transfer was recorded as “out of contract” and the Respondent uploaded a document stating that the contract between the Claimant and the Respondent was “invalid”.

21. The Single Judge emphasised that in the case at hand the Respondent bore the burden of proving that the Contract was terminated for a legitimate reason, and it has failed to do so.

22. Thus, the Single Judge concluded that the Respondent terminated the Contract without just cause. ii. Consequences

23. 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 Respondent.

24. The Single Judge observed that the outstanding remuneration at the time of termination, is a partial monthly salary, amounting to USD 470.

25. 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 amount which were pg. 5

REF. FPSD-9349 outstanding under the contract at the moment of the termination, i.e. USD 470.

26. 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 amounts as from 22 January 2023 until the date of effective payment.

27. 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.

28. 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.

29. 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.

30. 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 USD 30,000 (i.e. USD 2,000 (15 months) February 2023 – May 24) serves as the basis for the determination of the amount of compensation for breach of contract.

31. 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.

32. Indeed, the player found employment with the Ukrainian club Lviv. In accordance with the pertinent employment contract, the player mitigated his damages in the total amount of UAH 300,000, equal on the date of signature (i.e. 21 Feb 2023) to USD 8,095.

33. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the club must pay the amount of USD 21,905 to the player (i.e. USD 30,000 minus USD 8,095), which was to be considered a reasonable and pg. 6

REF. FPSD-9349 justified amount of compensation for breach of contract in the present matter.

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 22 January 2023 until the date of effective payment.

1. Compliance with monetary decisions

35. 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.

36. 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.

37. 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.

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 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. d. Costs

40. 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.

41. 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.

42. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 7

REF. FPSD-9349

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Murilo de Souza Felisberto, is accepted.

2. The Respondent, Budaiya Sports Club, must pay to the Claimant the following amount(s): - USD 470 as outstanding remuneration plus 5% interest p.a. as from 22 January 2023 until the date of effective payment; - USD 21,905 as compensation for breach of contract without just cause plus 5% interest p.a. as from 22 January 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. 8

REF. FPSD-9349

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. 9