FIFA - Decisión disputa Leite Rodrigues 13092023

REF. FPSD-11161

Decision of the Dispute Resolution Chamber passed on 13 September 2023 regarding an employment-related dispute concerning the player Alan Calbergue Leite Rodrigues BY: Andre DOS SANTOS MEGALE (Brazil), Single Judge

CLAIMANT:

Alan Calbergue Leite Rodrigues, Brazil Represented by Vilaca Advogados

RESPONDENT:

KF Erzeni, Albania pg. 2

REF. FPSD-11161

I. Facts of the case

1. On 9 August 2022, the Brazilian player Alan Calbergue Leite Rodrigues (hereinafter: the Claimant or the player) and the Albanian club KF Erzeni (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the Contract) valid as from the same date until the end of the season 2024/2025 (3 seasons).

2. In accordance with the Contract, the Respondent undertook to pay to the Claimant a monthly salary of ALL 35,000 “on the 5th day of each month”, for the entire duration of the contractual period.

3. By correspondence dated 14 July 2023, the Claimant put the Respondent in default of payment of EUR 4,500 setting a time limit expiring on 29 July 2023 in order to remedy the default.

4. On 29 July 2023, the Claimant notified the unilateral termination of the Contract to the

Respondent.

II. Proceedings before FIFA

5. On 1 August 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, the Respondent failed to comply with its financial obligations regarding the period between March 2023 and July 2023.

7. In this respect, the Claimant stated having had just cause to terminate the contract on 29

July 2023 as the Respondent’s debt at the time would amount to more than 2 monthsalaries.

8. In this context, the Claimant also argued having not been provided with a copy of the Contract by the Respondent, hence he declared having been not able to calculate the relevant contractual value properly.

9. Nonetheless, the Claimant presented the following requests for relief: - EUR 7,500 as outstanding remuneration + 5% interest p.a. as from the respective due dates; pg. 3

REF. FPSD-11161 - EUR 45,000 as compensation for breach of contract by the Respondent without just cause + 5% interest p.a. as from the date of the claim. b. Position of the Respondent

10. Despite being invited to do so, the Respondent did not reply to the claim.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the 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 1 August 2023 and submitted for decision on 13 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.

12. Subsequently, the Single Judge 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, the Single Judge of 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 an Albanian 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 (May 2023 edition), and considering that the present claim was lodged on 1 August 2023, the aforementioned 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 pg. 4

REF. FPSD-11161 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. The 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 he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

16. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that on 9 August 2022, the Claimant and the Respondent stipulated an employment agreement valid until the end of the season 2024/2025.

17. In this context, the Single Judge observed that on 29 July 2023 the Claimant unilaterally

terminated the Contract, allegedly because of the Respondent’s failure to comply with the financial obligations set under the said agreement.

18. In this this respect, the Single Judge noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the Single Judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant. As such, the Single Judge confirmed that per art. 21 of the Procedural Rules, he shall make a determination on the basis of the arguments and documentation filed by the Claimant.

19. Accordingly, the Single Judge acknowledged that his task was to determine, based on the evidence presented by the Claimant, whether the claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had in fact been fulfilled.

20. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s). pg. 5

REF. FPSD-11161

21. In this context, the Single Judge noted that the Claimant argues not having received his remuneration corresponding to the period between March 2023 and July 2023.

Furthermore, the Single Judge noted that the Claimant has provided written evidence of having put the Respondent in default on 14 July 2023, i.e. at least 15 days before unilaterally terminating the contract on 29 July 2023.

22. In this respect, the Single Judge observed that, in spite of the fact that under the Contract

the Parties stipulated the Claimant’s remuneration to be paid in Albanian Lek (ALL), the Claimant requested the relevant sums to be paid in Euros in the aforementioned default notice as well as in his claim.

23. In this context, the Single Judge wished to remark that the currency indicated in the Contract shall be instead preserved as further manifestation of the Parties’ will, namely as it reflects the effective financial value of the contractual consideration established thereto in line with the principle pacta sunt servanda. Accordingly, the Single Judge emphasized that all the sums he will award, if any, shall be consistent with the currency and amounts fixed under the Contract only.

24. With the above in mind, the Single Judge calculated the pro-rata value of the outstanding remuneration at the time of the termination and concluded that the claimed amount of EUR 7,500 as detailed by the player would correspond approximately to ALL 175,000, which results of more than two monthly salaries under the Contract. Hence, the Single Judge established that the criteria set under art. 14bis of the Regulations were met, because more than 2 salaries were outstanding and the Respondent was placed in default by the Claimant at least 15 days before the termination of the Contract by the latter.

25. In this context, the Single Judge wished to emphasize that he did not ignore the wording of art. 13 of the Contract, pursuant to which, the Respondent shall be granted a further period of time (i.e. 30 days from the written notice) in order to remedy the relevant default. In this respect, the Single Judge remarked however that, in line with art. 18 par. 6 of the Regulations as well as the jurisprudence of the Dispute Resolution Chamber, contractual clauses granting a club additional time to pay to their professionals amounts that have fallen due under the terms of the contract (so-called “grace periods”) shall not be recognised.

26. With all the foregoing in mind, the Single Judge concluded that the Claimant had a just

cause to unilaterally terminate the contract on 29 July 2023, based on art. 14bis of the Tegulations. ii. Consequences

27. 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. pg. 6

REF. FPSD-11161

28. The Single Judge observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to 5 salaries under the contract, amounting to ALL 175,000.

29. 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., ALL 175,000 (i.e., 5 times ALL 35,000).

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

31. 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.

32. In application of the relevant provision, the Single Judge held that he 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.

33. 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.

34. As a consequence, 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.

35. 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 pg. 7

REF. FPSD-11161 concluded that the amount of ALL 700,000 (i.e., the residual value of the Contract) serves as the basis for the determination of the amount of compensation for breach of contract.

36. 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 Dispute Resolution Chamber 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.

37. In this respect, the Single Judge observed that the player did not sign any employment contract after the relevant termination occurred, and as such confirmed that no additional

compensation could be granted.

38. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the club must pay the amount of ALL 700,000 to the player (i.e., the residual value of the Contract), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

39. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the player interest on said compensation at the rate of 5% p.a. as of 1 August 2023 until the date of effective payment, since the player expressly requested so in his claim. The Single Judge remarked that the player could have requested interest as of the date of termination, however because he did not do so the Single Judge could not rule ultra petita. iii. Compliance with monetary decisions

40. 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.

41. 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. pg. 8

REF. FPSD-11161

42. 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.

43. 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.

44. 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

45. 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.

46. 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.

47. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-11161

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Alan Calbergue Leite Rodrigues, is partially accepted.

2. The Respondent, KF Erzeni, must pay to the Claimant the following amount(s):  ALL 35,000 as outstanding remuneration plus 5% interest p.a.as from 6 March 2023 until the date of effective payment;   ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 April 2023

until the date of effective payment;   ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 May 2023 until the date of effective payment;   ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 June 2023 until the date of effective payment;   ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 July 2023 until the date of effective payment;   ALL 700,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 1 August 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: pg. 10

REF. FPSD-11161

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-11161

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