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International Arbitration Forum

Club Africain v. Gilmerson dos Santos Mota

Case summary

At a glance

Parties
Club Africain (Tunisia) v. Gilmerson dos Santos Mota (Brazilian professional football player)
Case no.
CAS 2021/A/8367
Forum and rules
Court of Arbitration for Sport, appeal procedure under the CAS Code; FIFA regulations (RSTP, February 2021 edition) apply, with Swiss law as subsidiary law
Treaty
None. Employment agreement; CAS jurisdiction based on Article 58.1 of the FIFA Statutes
Tribunal
Rui Botica Santos (Sole Arbitrator)
Sector
Professional football; player employment contract
Outcome
Appeal partially upheld (10 October 2022). The award confirms FIFA's jurisdiction and the player's just cause for termination, but reduces the compensation to reflect his earnings under a later contract.
Amount
FIFA DRC awarded USD 20,000 in outstanding salaries and USD 171,000 in compensation. CAS confirmed the USD 20,000 and reduced the compensation to USD 147,488.07 (USD 132,488.07 plus USD 15,000 additional compensation), each with 5% interest p.a. The Club is to bear the costs of the appeal (¶ 217).

The dispute

Club Africain, a Tunisian football club, employed the Brazilian player Gilmerson dos Santos Mota from 1 July 2020 at a monthly salary of USD 5,000, rising to USD 6,000 and then USD 7,000. The Club never registered him with the Tunisian Football Federation (TFF), because it was serving a transfer ban. It stopped paying him from December 2020. The player served default notices on 9 and 26 March 2021 and terminated the contract on 7 April 2021, invoking just cause under Articles 14 and 14bis of the FIFA RSTP. The Club did not take part in the FIFA proceedings. The FIFA DRC awarded the player USD 20,000 in outstanding salaries and USD 171,000 in compensation. On appeal the Club argued four points: FIFA lacked jurisdiction because the contract sent disputes exclusively to the TFF bodies after a mandatory conciliation phase; the player had abandoned the Club and had not given his bank details; the third contract season was only an option; and the compensation had to be reduced by the player's earnings under a new contract with US Ben Guerdane.

Key holdings

  1. Clause 14 of the contract only asked the parties to give priority to an amicable settlement. It did not make conciliation a mandatory step before a claim. In any case, the parties had negotiated, and the Club had made a settlement proposal. ¶¶ 146–154
  2. FIFA had jurisdiction. The Club was summoned before the FIFA DRC on 7 May 2021 and filed no defence, so it tacitly accepted FIFA's jurisdiction and cannot object for the first time before CAS. The Club also bore the burden of proving that the TFF bodies met the Article 22(b) RSTP requirements for an independent national tribunal. ¶¶ 157–163
  3. The player had just cause under Article 14bis RSTP. The salaries for December 2020 to March 2021 were unpaid, and the 9 March 2021 notice gave a 15-day deadline. The missing bank details were no excuse, because keeping employees' bank details is an elementary duty of an employer. The Club's evidence of the player's absence was vague, and the Club had tolerated that absence. ¶¶ 166–176
  4. The contract runs for three seasons, until 30 June 2023. Clause 3 is unclear about the Club's option. The Club set no terms or notice for exercising it. Under interpretatio contra stipulatorem and good faith, that lack of clarity cannot work against the player. ¶¶ 185–190
  5. Mitigation under Article 17.1(ii) RSTP looks at all income the player earns during the remaining term, not only the first new contract. The relevant moment is the communication of the FIFA decision. The US Ben Guerdane contract was signed on 12 August 2021, before the decision, so it counts. Only its fixed monthly salary of TND 5,000 counts, because payment of the conditional bonuses was not proved. ¶¶ 203–226
  6. Compensation is calculated as follows. The residual value of the contract is USD 171,000. From this are deducted USD 1,041.30 earned under the Camaçariense contract and about USD 37,470 in salary under the Second Contract, leaving USD 132,488.07. Three months' salary (USD 15,000) is added as additional compensation. The total is USD 147,488.07 plus 5% interest p.a. from 3 May 2021, together with USD 20,000 in outstanding salaries. ¶¶ 223–232; operative part
  7. The Club pays the costs of the appeal. By not taking part before the FIFA DRC, it was the main driver of these proceedings. ¶¶ 216–217

Procedural history

  1. 7 April 2021The player terminates the employment agreement, citing just cause.
  2. 3 May 2021The player files a claim against the Club with FIFA.
  3. 18 August 2021The FIFA DRC partially accepts the claim and awards USD 20,000 plus USD 171,000. The award records that the grounds were notified on 8 September 2021 (¶ 4 says 9 September).
  4. 28 September 2021Club Africain files its statement of appeal with CAS. The operative part gives the date as 27 September 2021.
  5. 22 November 2021Rui Botica Santos is appointed sole arbitrator and the Panel is constituted.
  6. 4 January 2022Order No. 1 admits the Club's unsolicited filing of the player's contract with US Ben Guerdane.
  7. 8 February 2022Hearing held by videoconference.
  8. 10 October 2022Award: the appeal is partially upheld and the compensation is reduced to USD 147,488.07.

Tribunal, counsel and experts

Decided by
  • Rui Botica Santos Sole arbitrator, Court of Arbitration for Sport — appointed by the institution
For the claimant
Alaimi Tarek · Dorra Mghirbi
For the respondent
Victor Eleuterio · Udo Seckelmann · Rafael Fiuza · Karel Nobre

Run a conflict check on these names →

Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
CAS 2021/A/8367
Claimant
Club Africain
Respondent
Gilmerson dos Santos Mota
Documents

Procedure: Appeal
Sport: Football
Matter: Contractual litigations (except transfer)
Outcome: Partially Upheld
Panel: Rui Botica Santos
Source: Court of Arbitration for Sport case database.