FIFA - Decisión disputa Moura 14092023

REF. FPSD-9573

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Emanuel Leone Moura BY: Martín AULETTA (Argentina), Deputy Chairperson Mario FLORES CHEMOR (Mexico), member Stella MARIS JUNCOS (Argentina), member

CLAIMANT:

Emanuel Leone Moura, Brazil Represented by Franco Montoro e Peixoto

RESPONDENT:

Futbolen Klub Spartak 1918, Bulgaria Represented by Mr Georgi Gradev & Mr Marton Kiss (SILA) pg. 2

REF. FPSD-9573

I. Facts of the case

1. On 18 June 2022, the player Emanuel Leone Moura and Futbolen Klub Spartak 1918 concluded an employment contract valid as from “issuing a single residence and work permit on the territory of the Republic of Bulgaria” until 30 June 2025.

2. According to clause III.2 of the contract, the player was entitled to the following net monthly salary: EUR 2,650 until 30 June 2023; EUR 3,150 until 30 June 2024 if the player participates in more than 70% of the matches during the season 2022/2023; EUR 3,650 until 30 June 2025 if the player participates in more than 70% of the matches during the season 2023/2024.

3. Following clause III. 3 of the contract, salaries are payable until the 25th days of the following month.

4. In accordance with clause III. 8 of the contract, the player was entitled to 2 round-trip flights from Varna to Sao Paulo, per year.

5. Clause III. 9 of the contract entitled the player “to receive from the CLUB an entire fulish apartment”.

6. Clause IV. of the contract stipulated the following “rights and obligations” for the club and

player : “(…) OF THE CLUB (…) IV.I. I.11 To notify by written the FOOTBALL PLAYER about eventual changes in the training plan and the internal regulations (…)

OF THE FOOTBALLER (…)

IV. 2.2. To take part in matches and events of the Club, in all trainings – general team or individual, in all activities that are preparation for matches or competition. The above shall also refer to the cases when the FOOTBALL PLAYER is not included in the team for a given match as a starter or a reserve.”

7. On 16 September 2022, the player played his first match with the club.

8. On 30 November 2022, according to the player, “a random employee” of the club explained him “inside the locker-room” that the club’s recently appointed coach did not want him to resume his duties.

9. According to the player, the club provided him a one-way ticket to Sao Paulo, Brazil.

10. On 1 December 2022, the player sent a first default notice to the club

(spartak1918_new@abv.bg, office@spartakvarna.bg), requesting, in particular, the following: pg. 3 REF. FPSD-9573 a) Confirmation about the continuation of the contract; b) His return flight-ticket to Varna; c) The payment of BGN 5.600 as overdue payables.

11. On 16 December 2022, the player sent a second default notice and granted a deadline of 10 days.

12. On 2 January 2023, the player returned to Varna, Bulgaria.

13. According to the player, the club subsequently forced him to train alone and asked him to resign without any kind of compensation.

14. On 9 February 2023, the player sent a third default notice, requesting to be reintegrated with the group and to list him in the upcoming matches, and granted 15 days to remedy the default before terminating the contract with just cause.

15. On 24 February 2023, the clue sent a message to the player, inviting him to train with the team. However, according to the player, when he arrived, he was only allowed to run around the pitch for 20 minutes before being sent home. The player defined this as “a complete humiliation”.

16. On 24 February 2023, the player, via his lawyer, sent a termination notice with the following contents: “your Club has been excluding the Player from all the official and not official activities, including but not limited to the team training sessions, trips, medical exams, matches, public events and appearances on social media. The repeated practice of this behavior is a clear demonstration that the Club is aiming to force the Player to terminate the contract (…) It’s been over than 50 (fifty) days that the Club is excluding the Player from all the activities.

Also, the Player suspects that he has probably been de-registered (…). As you may know the above-mentioned situations constitute serious infringements of the Player’s personality rights. (…) (…) the current behavior of the Club constitutes just cause for the early termination of the Contract by the Player, based on Article 14, paragraph 2 of the FIFA RSTP. Considering the facts above, we hereby inform that the Player and the Club have no longer any contractual relationship of any kind due to the unilateral breach of the Employment Agreement made exclusively by the Club.”

17. On 21 July 2023, the player informed FIFA that he remained unemployed, but wished to stress that he “is trying the hard as he can to find a new Club”. pg. 4

REF. FPSD-9573

II. Proceedings before FIFA

18. On 10 March 2023, the player lodged a claim before the FIFA Football Tribunal for outstanding remuneration and breach of contract without just cause and requested

the payment of the following amounts:

Outstanding remuneration: Months/Years Nature Value July 2022 Part of the Salary EUR 102,00

July 2022 Return Flight Ticket EUR 672,50 August 2022 Part of the Salary EUR 103,00 January 2023 Part of the Salary EUR 136,00 February 2023 Salary EUR 2.650,00 January 2023 Rent EUR 255,00 February 2023 Rent EUR 255,00 March 2023 Rent EUR 255,00

Total: EUR 4.428,50

Compensation: Residual value of the contract calculated with increased salaries (Cl. III.2 of contract) Months/Years 2023 2024 2025

January Outstanding EUR 3,150 EUR 3,650 February Outstanding EUR 3,150 EUR 3,650

March EUR 2,650 EUR 3,150 EUR 3,650

April EUR 2,650 EUR 3,150 EUR 3,650

May EUR 2,650 EUR 3,150 EUR 3,650

June EUR 2,650 EUR 3,150 EUR 3,650

July EUR 3,150 EUR 3,650 EURAugust EUR 3,150 EUR 3,650 EURSeptember EUR 3,150 EUR 3,650 EUROctober EUR 3,150 EUR 3,650 EURNovember EUR 3,150 EUR 3,650 EURDecember EUR 3,150 EUR 3,650 EURTotal EUR 92,200

19. In the alternative, the player requested a total amount of EUR 74,200, should his basic salary of EUR 2,650 is considered for the calculation of the residual value of the contract.

20. In addition, the player requested the payment of his rental fees on the basis of art. III.9 of the contract.

21. In this respect, the player explained that after he arrived to Varna (Bulgaria), the Club advised him that he could choose an apartment of his preference, but it will only pay

pg. 5 REF. FPSD-9573 up to BGN 500 (equivalent to EUR 255) per month for the rental. The player attached a copy of a WhatsApp Conversation in support of this request.

22. Hence, the player requested the total amount of EUR 6,885 for rental fees. In this respect, the player provided a copy of a rental agreement concluded on 7 July 2022, for a monthly rent of BGN 500 per month.

23. In the opinion of the player, his just cause for termination in this case is unquestionable, as the present case comprises all the requisite conditions, namely: - severity of the breach: Spartak’s non-performance of the contract for months, failing to include him in all Club activities and forced him to be out of action for more than 50-days; - warning prior to termination: the Player sent three (3) extrajudicial notices to Spartak before terminating the Employment Agreement (respecting the ultima ratio principle), always expressing his desire to perform the contract and join the squad; - loss of trust: the Player completely lost his trust in Spartak after so many days subject to the Club’s gross misconduct (non-performance of the contract, contradictory conduct and lack of good faith).

24. In support of his allegations, the player provided a “written testimony” from the Player Liandro Rudwendry Filipe Martis, who declared that he and the Claimant “were both separated from the rest of the players on 4th January 2023, after the return from the winter break.”

25. In support of his allegations of training alone, the player provided a report from his

“Apple Watch”, as well as the following videos: https://www.youtube.com/shorts/crg-utjcQ3g https://www.youtube.com/shorts/J4ygXhTwydQ

26. The player also argued that the club removed the hot water from the locker room and

provided the following video: https://www.youtube.com/shorts/tsXaoJSuWRw

27. In relation to the air tickets, the player explained that the club bought him a ticket to Sao Paulo without a returning one, which was “a clear demonstration that the Club did not want the player to resume his duties.”

28. In this respect, the player provided an estimate from Google Travel, for a price of EUR 1,348 (round trip).

29. Nevertheless, the player acknowledged that, on 20 December 2022 , the club issued a return flight ticket for him to return to Varna.

30. On 4 May 2023, the club replied to the claim and simultaneously lodged a counterclaim.

31. The club considered that the player terminated the contract without just cause, and pg. 6

REF. FPSD-9573 requested the payment of EUR 76,850 as compensation, plus 5% interest p.a. as from 24 February 2023.

32. In the alternative, the club requested to limit the compensation to EUR 13,250, corresponding to the salaries from February to June 2023 (i.e. EUR 2,6505).

33. The club argued that the player's termination of the contract was premature and not justified based on the grounds cited in the termination notice.

34. The club considered that “the present case is similar to the case Decision 20-00933, FC Kairat

1. Ramazan Orazov and FC Daugavpils, recently confirmed by CAS 2021/A/7733 Ramazan Sarlybekuly Orazov v. FC Kairat, where the relevant employment contract provided for the club’s right to assign the player to individual training to regain his fitness, which the club did.”

35. According to the Respondent, above, the Football Tribunal should consider only the reasons invoked in the Termination Notice, i.e., (i) the alleged exclusion “from all the activities” as of 4 January 2023, and (ii) the alleged deregistration from the national championship in 2023. The club insisted that “any other argument invoked ex post facto by

the Claimant in the Claim should not be heard by the Football Tribunal.”

36. The club refuted the player's claims that their decision to assign him to individual training was abusive and aimed at forcing him to terminate the contract without compensation.

In particular, the club argued that that the player's evidence, including press articles, social media posts, text messages, photos, and a YouTube video, is unconvincing and does not support his claims.

37. In addition, the club asserted that the player was duly registered at the time of contract termination. In this respect, the club provided a copy of a letter issued by the Bulgarian Football Union on 31 March 2023, indicating, inter alia, the following: “the player has received competition rights on behalf of FC "Spartak 1918" Varna as of the date of entry into force of the unified work and residence permit 15.9.2022 with validity until

30.6.2025”

38. The club highlighted that the player's conduct from December 2022 to February 2023, suggests that he was not genuinely interested in continuing with the club and was seeking opportunities with other teams.

39. The club further stated that the player's prolonged silence during a 37-day period, along with his failure to object to the individual training plan, indicates his acceptance of the situation and waives his right to terminate the contract on just cause grounds. In the opinion of the club, there is no evidence adduced by the Claimant that the Claimant ever objected to his assignment to a temporary individual training plan before 9 February

2023.

40. The club concluded that the player's termination was a clear abuse of right and unjustified. pg. 7

REF. FPSD-9573

41. As to the outstanding salaries, the club underlined that the January and February 2023 salaries were not yet due at the date of termination, and noted that it the Claimant a partial amount for the January 2023 salary, leaving a small outstanding balance.

42. The club explained that the balance of the salaries for July 2022, August 2022 and January 2023 were outstanding, as well as the apartment rent for January and February 2023

(BGN 5002 = BGN 1,000 or EUR 510).

43. The club provided a transfer receipt for the amount of EUR 851 to the player’s bank account in Brazil, as well as a “cash receipt” for the amount of BGN 2,300 for “apartment – 2 deposits”.

44. In relation to the flight tickets, the club underlined that the claimant “admitted having “received 3 (three) of 12 (twelve) tickets – One in June [2022] (Sao Paulo to Varna).” and that “no such air ticket has ever been issued or used by the Claimant.”

45. The Respondent considered that the sequence of the facts shows that the Claimant’s unilateral termination of the Contract was premature and that the decision to breach the Contract was, most likely, already taken.

46. In relation to the outstanding payments, the club explained that no outstanding amounts were due as of 24 February 2023. In relation to the air ticket, the club considered the player’s request to be unsubstantiated and groundless, since he did not fly or from Varna in July 2022.

47. As to the payable compensation, the club considered that, in any case, the Claimant showed no genuine interest in the contract's performance, sought to terminate the contract earlier, and failed to mitigate damages by actively seeking new employment.

The Respondent argued that the player could have been registered with a Brazilian club until 3 April 2023.

48. As a result, the club considered that if the Claimant remains unemployed after 3 July 2023, any possible loss of salary would no longer be in direct correlation with the alleged breach of the contract. In the opinion of the club, granting the Claimant’s claim in full at

this stage would be equivalent to unjust enrichment, giving the considerable remaining time on the Contract (i.e., 28 months).

49. In his replica, the Claimant explained that he started to send default notices to the Club after being informed that the new coach did not want him.

50. In the opinion of the player, “the Club's lack of interest in [his] services was crystal clear since the Club has never replied to any of the Notices”

51. In addition, the player argued that the Club's imposed training lacked a proper pg. 8

REF. FPSD-9573 development plan, monitoring, and technical instruction.

52. The player insisted that the Club's actions, including preventing him from playing, not communicating, and reassigning his jersey number, shows a lack of interest in his services.

53. The player further argued that even if the club can demonstrate that he was registered before the Bulgarian Football Union, this is a different issue from being listed to play tournaments.

54. As to the outstanding payments, the player denied having received the amounts mentioned in the club’s reply.

55. The player further insisted that he only received one round-trip ticket, and therefore he should receive another one.

56. Therefore, the player insisted that he had a just cause to terminate the contract and underlined that it was an ultima ratio measure.

57. After being provided with an invitation to provide its duplica, the Respondent stated the following: “ The Claimant already knows our position in this proceeding. It will not change if we submit another brief to FIFA. (…) Besides, the Rebuttal contains no new facts or evidence but only unsubstantiated allegations”. pg. 9

REF. FPSD-9573

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 15 February 2023 and submitted for decision on 14 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.

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 (October 2022 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 Bulgarian 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 (October 2022 edition), and considering that the present claim was lodged on 15 February 2023, the October 2022 edition 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. 10

REF. FPSD-9573

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, on 18 June 2022, the parties concluded an employment contract valid until 30 June 2025 (cf. point I. 1).

7. The Chamber then noted that the player lodged a claim against the player for breach of contract without just cause, and particularly with reference to Art. 14, par. 2 of the Regulations, which stipulates that "Any abusive conduct of a party aiming at forcing the counterparty to terminate or change the terms of the contract shall entitle the counterparty (a player or a club) to terminate the contract with just cause."

8. Within this context, the Chamber observed that that the player unilaterally terminated the contract on 24 February 2023 after serving three default notices since 1 December 2022

9. In this respect, the Chamber noted that, according to the player, the termination of the contract occurred, fundamentally, after the club allegedly forced him to train alone since January 2023. The Chamber observed in this regard that, on 9 February 2023, the player sent a default notice, requesting reintegration into the group and inclusion in upcoming matches, granting a 15-day period for remedying the default before terminating the contract with just cause.

10. On the other hand, the Chamber acknowledged the club’s argument, according to which the player's extended silence over a 37-day period, coupled with his failure to object to the

individual training plan, implied acceptance of the situation.

11. However, on this note, the Chamber found that the argument of the club cannot be followed, since the player provided evidence that he previously communicated with the club and expressed his doubts about the latter’s commitment to honour the contract.

12. The Chamber further examined that the club contended that individual training was in line with Article IV, Section 2.2 of the contract.

13. However, the Chamber also observed that this exact same clause entitles a player to participate in club matches and events (.i.e. “rights and obligations of the footballer” (…) To take part in matches and events of the Club, in all trainings – general team or individual, in all activities that are preparation for matches or competition.”)

14. Therefore, the Chamber understood that the central question at stake pertains to determine whether the individual training plan was legitimately aimed at aiding the player's fitness recovery or was imposed abusively, thus preventing the player from participating in team activities.

15. In this regard, the Chamber acknowledged that the player had sent multiple default notices to the club regarding various issues, including exclusion from team activities and requests for clarification on the contract's continuation. However, the Chamber noted that the club pg. 11

REF. FPSD-9573 never provided official responses to these notices despite proper communication channels being available.

16. Furthermore, the Chamber observed that the club and its officials did not provide any explanation for the player's exclusion from group training. The Chamber understood that this behaviour raises significant concerns about the club's real intentions.

17. The Chamber also noted the player further argued that the club did not register him in competitions. In this regard, the Chamber did not have evidence at its disposal about his status in competitions, but observed that it would appear (as provided by the club) that he was registered before the Bulgarian Football Union.

18. In its analysis, the Chamber recalled, as mentioned before, that in accordance with the

terms of the employment contract, the player possessed the entitlement to participate in team events and matches, rendering the club's unilateral decision to exclude him without proper justification, per se, a significant breach of contract.

19. In light of these circumstances, the Chamber decided the player had a just cause to terminate the contract. Indeed, the termination happened after several default notices and after the player had given the club a reasonable opportunity to remedy the situation, which demonstrates that he exhausted all available options before resorting to termination

(ultima ratio).

20. The Chamber thus confirmed that the club's conduct may be construed as a breach of contract and an attempt to coerce the player into terminating the contract without just cause, aligning with the definition of abusive conduct as per Art. 14, par. 22 of the

Regulations. ii. Consequences

21. 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.

22. Before entering into the calculation of the payable compensation, the Chamber first confirmed that, in addition to said compensation, the player is entitled to receive his outstanding dues up until the date of termination of the contract, i.e. until the end of

February 2023.

23. In doing so, the Chamber examined the evidence provided by the Club as to the payment of potential outstanding amounts. In particular, the Chamber noted that the club provided two receipts (which the player denied having received), as follows: - EUR 851 from a Bulgarian bank to a bank in Brazil. In relation to said document, the Chamber understood that, although this receipt may well reflect a transfer, it is pg. 12

REF. FPSD-9573 undated. Therefore, in the opinion of the Chamber, it is not sufficient evidence, since it cannot be established to which contractual payment it correlates. - BGN 2,300 in cash. The Chamber noted that the club provided a receipt was provided in Bulgarian language along a translation. Yet, after duly examining this document,

the Chamber observed that it does not reflect a transfer of money. Therefore, the Chamber considered this document to be insufficient to meet the club’s burden of proof.

24. In view of the above, and given that the club did not provide any additional document or evidence as to the outstanding sums, the Chamber established that the player is entitled to the claimed amounts, as follows: July 2022 Part of the Salary EUR 102

August 2022 Part of the Salary EUR 103 January 2023 Part of the Salary EUR 136 February 2023 Salary EUR 2.650

Total: EUR 2,991

25. Therefore, as established above and in application of the principle of pacta sunt servanda, the Chamber decided that the club shall pay to the player, the outstanding amount of EUR

2,991.

26. In addition, and after taking into account the request of the player as well as the longstanding jurisprudence of the Football Tribunal, the Chamber decided to award 5% interest p.a. over said amount as from the due dates (i.e. after the 25th day of the following month)

27. The Chamber also noted the player also requested the payment of rent.

28. In this regard, the Chamber noted that the contract stipulated the provision of an apartment as an in-kind benefit, but the observed that player requested EUR 255 per month. In addition, the Chamber also acknowledged that the player provided a copy of a rental agreement stipulating a rent of BGN 500, and also confirmed that the club acknowledged in its reply that the rent corresponds to BGN 500, which corresponds to approx. EUR 255.

29. Therefore, the Chamber decided that, on the basis of the evidence on file, player’s rent can

be granted, as follows: January 2023 Rent BGN 500 February 2023 Rent BGN 500 BGN 1,000

30. Consequently, as established above and in application of the principle of pacta sunt

servanda, the Chamber decided that the club shall pay to the player, the outstanding amount of BGN 1,000. pg. 13

REF. FPSD-9573

31. In addition, and after taking into account the request of the player as well as the longstanding jurisprudence of the Football Tribunal, the Chamber decided to award 5% interest p.a. over said amount as from the due dates (i.e. after the end of the relevant month)

32. The Chamber further noted that the player claimed a flight ticket refund. After duly examining the information on file, the Chamber observed that it would appear that this ticket was related to his return from holidays to Brazil in December 2022/January 2023.

However, the Chamber also paid attention to the fact that player acknowledged that the club ultimately provided him with a ticket for the journey Sao Paulo-Varna, and thus decided that this refund cannot be granted. Moreover, the Chamber wished to underline that, in accordance with its longstanding jurisprudence, air tickets (if contractually stipulated) may be awarded for a return to the player’s home country, but not for a return to the club’s country, particularly when a contract was terminated.

33. 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.

34. 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.

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

36. 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. In this respect, the Chamber understood that, in principle, as per clause III.2 of the contract, the player could legitimately expect to earn at least EUR 2,650 per month. Given the contingent nature of the salaries pg. 14

REF. FPSD-9573 stipulated for the following seasons, the Chamber decided that only the base amount of EUR 2,650 could be used for the calculation of the residual value of the contract.

37. Consequently, the Chamber concluded that the amount of EUR 74,200 (i.e. EUR 2,650 from March 2023 until June 2025, i.e. EUR 2,65028) serves as the basis for the determination of the amount of compensation for breach of contract.

38. 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