Acórdão do FIFA, processo ALVES Guilherme_2020-04-23

Data

23/04/2020

Fonte

inside.fifa.com

Labour Disputes

Texto da decisão

Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 23 April 2020,

in the following composition:

Geoff Thom pson (England), Chairman
Jos é Luis Andrade (Portugal), member
S tijn Boey kens (Belgium ), member

on the claim presented by the player,

Guilherm e Augus to Alv es Dellatorre, Brazil,
represented by Mr Rafael Queiroz Botelho

as Claimant
against the club,

S uphanburi FC, Thailand,
represented by Messrs. Menno Teunissen and Thomas Spee

as Respondent

regarding an employment-related dispute
between the parties

Facts of the case

On 17 July 2019, the Brazilian player, Guilherme Augusto Alves Dellatorre (hereinafter: the
Claimant or player) and the Thai club, Suphanburi FC (hereinafter: the Respondent or club)
signed an employment contract valid as of 17 July 2019 until 30 November 2019.

The financial conditions of the contract were as follows (cf. art. 3 of the employment
contract):






A total of USD 180,000 net for the year 2019, paid as follows:
i. One lump sum as “settlement fee” of USD 30,000 to be paid in Thai Baht to
be paid on 31 July 2019,
ii. The remaining value of USD 150,000 to be paid in monthly instalments, i.e.
5 monthly instalments of USD 30,000 each to be paid in Thai Baht each
month on the last business day,
A bonus scheme mutually agreed upon based on the achievements of the club and
club policies,
One lump sum of Thai Baht 300,000 for the use of a car, accommodation expenses
and an air ticket to be paid on 31 July 2019,
Should the club remain competing in the Thai League 1 in 2020, the player shall
receive a special bonus of USD 15,000.

The employment contract the following relegation clause (art. 16 of the contract):
“This Contract will terminate without any liability for either party if the Club’s senior men’s
first team is relegated from the Thai League 1 for ordinary sports reasons. On such
relegation, this Contract shall terminate with effect from the end of the month in which the
Club’s senior men’s played its last match”.

Furthermore, the employment contract included the following clause regarding its
extension:
“The club agreed that contract extension clause starting from 1st December 2019 and ending
on 30th November 2020 can be trigger should the Club remain competing in the Thai League
1 for the Season 2020. Terms and conditions shall be as follows:
a) Guarantee total USD 400,000 (US Dollars Four Hundred Thousand) net after tax annual
income for the year 2020.
b) The Club shall pay one lump sum amount that is USD 70,000 (US Dollars Seventy
Thousand) as a settlement fee to be paid in Thai Baht on 2nd December 2019.
c) The remaining value of USD 330,000 (US Dollars Three Hundred Thirty Thousand) will
be paid in monthly instalments by way of salary, adding up to 12 (Twelve) monthly
salaries of USD 27,500 (US Dollars Twenty Seven Thousand Five Hundred) to be paid in
Thai Baht due each month on the last business day.
d) Bonus Scheme will be mutually agreed by the Club and the Player based on the
achievement of the Club and the Club’s policies. The Player is permitted to receive
bonus payments from the Club in accordance with its policies.

________________________________________________________________________________________________________________________
Player Guilherme Augusto Alves Dellatorre, Brazil / Club Suphanburi FC, Thailand
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e) The Club will provide one lump sum amount that is Baht 600,000 (Baht Six Hundred
Thousand) to be use for car, accommodation expenses and air ticket to be paid on 31st
July 2020.”
5.

The employment contract also contains a clause in the event of a unilateral termination of
the employment contract:
“In the event that either Club or Player want to unilaterally terminate the contract
extension clause starting from 1st December 2019 and ending on 30th November 2020
without just cause before the expiration, it shall pay 3 (Three) months’ worth of salary to
the other party.”

On 27 October 2019, the Claimant received a termination letter from the Respondent. The
Respondent based the termination on the club’s relegation from the Thai League 1.

On 4 November 2019, the Claimant objected to the termination, in particular “due to the
fact that the Club was not relegated from Thai League 1”.

On 12 November 2019, the Respondent confirmed the termination based on the relegation.

On 25 November 2019, the Claimant sent a letter to the Respondent, referring to the
alleged non-relegation of the club and requesting the salary of November 2019, as well as
three additional salaries as foreseen in the termination clause (cf. par. I.5. above), granting
the Respondent ten days to remedy the default, to no avail.

10.

On the same day, the Thai FA issued a statement confirming that the Respondent was
eligible to play in the Thai League 1 for the season 2020 on the grounds that one of the
teams had withdrawn from participation.

11.

On 3 January 2020, the Claimant sent another letter to the Respondent, informing the latter
that the extension of the employment contract had been triggered and the Respondent
should therefore comply with its contractual obligations. In particular, the Claimant
requested the payment of USD 127,500, corresponding to the salaries of November 2019
(USD 30,000), December 2019 (USD 27,500) and the advance payment of USD 70,000,
granting the Respondent 15 days in order to remedy the default, to no avail.

12.

On 21 January 2020, the Claimant lodged a claim against the Respondent for outstanding
remuneration and compensation for breach of contract. In his claim, the Claimant
maintained that the Respondent had unilaterally terminated the Contract without just
cause by (1) “defaulting the Player’s salary of November 2019” and (2) “denying the
automatic extension for the 2020 season”.

13.

The player made the following requests:





“overdue salaries” amounting to USD 127,500,
Compensation for breach of contract amounting to USD 302,500, corresponding to
the balance of the player’s earnings for the season 2020, or at least USD 100,000
corresponding to the compensation clause,
5% interest p.a. “counted from each event of default”,




All procedural costs imposed on the Respondent,
Sanctions imposed on the Respondent in accordance with art. 14bis and 17 of the
Regulations on the Status and Transfer of Players.

14.

The club, for its part, rejected the player’s claim entirely and maintained that it merely
triggered the application of art. 16 of the employment contract (cf. par. I.3. above) and that
the said clause allowed both parties to terminate the contract upon sporting relegation. In
this context, the Respondent underlined that, in accordance with the Thai 1 league rules, it
was undoubtedly one of the three teams relegated at the end of the 2019 season.

15.

The Respondent deems that it has fulfilled its obligations towards the Claimant by having
paid him until the end of October 2019.

16.

Furthermore, the Respondent held the view that the employment contract only contained
an option for its extension upon the condition that the club would remain in the Thai
League 1. Thus, the Respondent denied the Claimant’s allegation that the extension of the
contract would be automatic.

17.

The Respondent referred to the jurisprudence of the Dispute Resolution Chamber, which
has found relegation clauses to be valid insofar as they were reciprocal, i.e. they are to
benefit of both the player and the club, and that they are not viewed as potestative.

18.

The Respondent, therefore, concluded that the relegation clause cannot be seen as null and
void.

19.

In continuation and whilst once again referring to national regulations, the Respondent
asserted that, at the date of termination of the employment contract, i.e. on 27 October
2019, the team had indeed been relegated for sporting reasons. The club thus concludes
that there was no further obligation on its part to pay the salary of November 2019.

20.

As to the fact that another team, PTT Rayong, withdrew from the Thai League 1 for the
season 2020, and the subsequent decision of the national football authorities to allow the
Respondent to compete in the Thai League 1 in the season 2020, the Respondent affirmed
that such decision is of an administrative nature and does not have an impact on the terms
of art. 16 of the employment contract.

21.

Finally, the Respondent stated that a revocation of the termination dated 27 October 2019
is not possible and that the decision to reinstate the Respondent in the Thai League 1 was
made on 25 November 2019, this is, after it had terminated the player’s contract.

22.

In view of the foregoing, the Respondent requested the Dispute Resolution Chamber:





To dismiss the Claimant’s claim and requests for sporting sanctions,
Alternatively, to condemn the Respondent to pay a maximum of two monthly
salaries as compensation, bearing in mind it has already paid the salary of October
2019,
To order the Claimant to bear the legal fees and costs in this matter.

23.

Upon the FIFA administration’s request, the player confirmed that on 5 February 2020, he
signed an employment contract with the Brazilian club Mirassol FC, which was valid as from
the same date of signature until 6 May 2020. According to such contract, the Player was
entitled to a monthly gross salary of BRL 5,000.

II.

Cons iderations of the Dis pute Resolution Chamber

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 submitted to FIFA on 21 January 2020. Taking into
account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.

Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that,
in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations (edition
January 2020), it is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Thai club.

Furthermore, the DRC analysed which edition of the Regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that, in accordance with
art. 26 par. 1 and 2 of the Regulations (edition March 2020) and considering that the
present matter was submitted to FIFA on 21 January 2020, the January 2020 edition of said
Regulations is applicable to the present matter as to the substance.

The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, it started to acknowledge
the facts of the case as well as the documents contained in the 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.

In this regard, Chamber recalled that the parties had concluded an employment contract
valid as of 17 July 2019 until 30 November 2019. The said contract included an extension
clause and a relegation clause as described in par. I.3. and I.4. above.

The Chamber further acknowledged that the dispute between the parties arose when the
Respondent made use of the relegation clause in order to terminate the contract. Indeed,
on 27 October 2019, the Respondent notified the Claimant of the unilateral termination of
the contract, referring to art. 16 of the employment contract, this is, the relegation clause.

The Claimant contested the triggering of the relegation clause in view of the fact that the
team, although initially relegated, was thereafter reinstated in the Thai League 1 as another
team dropped out. The Claimant refers in this context to the extension clause, according to
which the contract could be extended by one season if the team would remain in the Thai
League 1. The Claimant therefore concludes that the Respondent did not have a just cause

to terminate the employment contract, and claims outstanding remuneration and
compensation for breach of contract.

In view of the parties’ divergent positions in this matter, the Chamber established that the
main issue to be addressed is whether the Respondent had a just cause to terminate the
employment contract on 27 October 2019 by making use of the relegation clause.
Furthermore, the Chamber would have to draw the consequences of such termination.

The Chamber, therefore, started to analyse the validity and applicability of the relegation
clause as provided for in art. 16 of the employment contract.

10.

Art. 16 of the employment contract indeed provides as follows:
“This Contract will terminate without any liability for either party if the Club’s senior men’s
first team is relegated from the Thai League 1 for ordinary sports reasons. On such
relegation, this Contract shall terminate with effect from the end of the month in which the
Club’s senior men’s played its last match”.

11.

The Chamber, referring to its own jurisprudence, held that such clauses may, as a matter of
principle, be seen as valid as long as they are not potestative in nature and that it is
reciprocal, i.e. it provides for equal rights of the parties to terminate the employment
relationship due to the team’s relegation.

12.

The Chamber underlined that a relegation clause is in essence not potestative as it depends
on an occurrence of an event which is not in one of the parties’ control, but it solely
depends on other circumstances, i.e. the relegation of the team. Therefore, the parties are,
as a general rule, entitled to stipulate a clause according to which the contract will
terminate if the team is relegated.

13.

As to the reciprocity, the Chamber, looking at the exact wording of the clause, held that it
must be seen as reciprocal as it clearly mentions that the contract will terminate “without
any liability for either party”.

14.

In light of the above, the Chamber concluded that the relegation clause contained in the
employment contract is valid and freely concluded between the parties.

15.

As to its applicability, the Chamber paid particular attention to the fact that the clause in
question explicitly mentioned that the relegation must be for sporting reasons. In this
context, the Chamber had to side with the Respondent and established that, indeed, it
remained uncontested that the team had indeed been relegated for sporting reasons after
the last match of the season 2019. According to the relevant Thai 1 League regulations, the
team was relegated as it finished in 14th place of the championship, this is, being one of the
bottom three teams in the ranking.

16.

The circumstance that the team was, thereafter, reinstated within the Thai League 1 was a
decision of an administrative nature, which, in any case, took place after the Respondent
had already terminated the contract.

17.

In this context, the Chamber was eager to emphasise that it can only analyse whether the
club had a just cause to terminate the contract at the moment in time when such

termination occurred, and not base its analysis on events that may have occurred after the
termination.

18.

The Chamber, in view of the specific circumstances of the present matter, concluded that
the relegation clause had indeed been triggered due to the team’s relegation for sporting
reasons, and that the Claimant was indeed entitled to proceed to the termination of the
contract on 27 October 2019.

19.

The latter having been established, the DRC continued its analysis of the present matter by
focusing on the issue as to whether the extension clause was to be deemed as applying
automatically. In this regard, the Chamber again referred to the wording of the relevant
clause:
“The club agreed that contract extension clause starting from 1st December 2019 and ending
on 30th November 2020 can be trigger should the Club remain competing in the Thai League
1 for the Season 2020 (…)”

20.

In this regard, the Chamber was unanimous in its conclusion that the aforementioned clause
undoubtedly contained a condition, this is, that the Respondent would remain in the Thai
League 1. As a consequence, the extension of the contract for one more season was not
automatic.

21.

Although, once again, the club ended up remaining in the Thai League 1 for the season
2020, one must look at the chronology of events in the present matter. The club had validly
already made use of the relegation clause at the end of the season 2019. Therefore,
logically, the contract could not be extended.

22.

In light of all the aforementioned considerations, the Chamber unanimously came to the
conclusion that the Respondent terminated the employment contract on 27 October 2019
with just cause. In fact, it shall be deemed that the contract came to a natural expiry at the
end of the season 2019, without the Respondent being in need to formally proceed to the
termination of the contract.

23.

As a consequence, the Claimant’s claim for compensation for breach of contract must be
rejected.

24.

This being established, the Chamber turned its attention to the Claimant’s claim for
outstanding remuneration, in particular the fact that the Respondent failed to pay the
salary of November 2019. In this regard, the DRC reiterated that the Respondent did not,
formally speaking, have to terminate the contract on 27 October 2019, since, according to
the relegation clause, the contract would expire at the end the season 2019 should the team
be relegated. Thus, the Chamber established that it would be fair and proportionate to
award the player the salary of November 2019, corresponding to the final month of the
contract.

25.

In view of the foregoing, the Chamber decided that, in accordance with the principle of
pacta sunt servanda, the Respondent must pay the Claimant the amount of USD 30,000
corresponding to the salary of November 2019, as well as 5% interest p.a. as from 30
November 2019 until the date of effective payment.

26.

The DRC concluded its deliberations by establishing that any further claims of the Claimant
are rejected.

27.

Finally, taking into account the consideration under number II.3. above, the Chamber
referred to par. 1 and 2 of art. 24bis 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.

28.

In this regard, the Chamber established that, in virtue of the aforementioned provision, it
has competence to impose a sanction on the club. More in particular, the DRC pointed out
that, against clubs, the sanction shall consist in a ban from registering any new players,
either nationally or internationally, up until the due amount is paid and for the maximum
duration of three entire and consecutive registration periods.

29.

Therefore, bearing in mind the above, the DRC decided that, in the event that the club does
not pay the amount due to the player within 45 days as from the moment in which the
player, following the notification of the present decision, communicates the relevant bank
details to the club, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration
periods shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the
Regulations.

30.

The Chamber recalled that the above-mentioned sanction will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with art.
24bis par. 3 of the Regulations.

III.

Decis ion of the Dispute Resolution Cham ber

The claim of the Claimant, Guilherme Augusto Alves Dellatorre, is partially accepted.

The Respondent, Suphanburi FC, has to pay the Claimant USD 30,000 plus interest at the rate
of 5% p.a. as from 30 November 2019 until the date of effective payment.

Any other requests for relief are rejected.

The Claimant is directed to inform the Respondent, immediately and directly, preferably to
the e-mail address as indicated on the cover letter of the present decision, of the relevant
bank account to which the Respondent must pay the amount mentioned under point 2.
above.

The Respondent shall provide evidence of payment of the due amount in accordance with
point 2. above to FIFA to the e-mail address [email protected], duly translated into one of the
official FIFA languages (English, French, German, Spanish).

In the event that the amount plus interest due in accordance with point 2. above is not paid
by the Respondent w ithin 45 day s as from the notification by the Claimant of the relevant

bank details to the Respondent, the Respondent shall be banned from registering any new
players, either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
7.

The ban mentioned in point 6. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.

In the event that the aforementioned sum plus interest is still not paid by the end of the ban
of three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
*****

Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating
the facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:

_____________________________________
Emilio García Silvero
Chief Legal & Compliance Officer
________________________________________________________________________________________________________________________
Player Guilherme Augusto Alves Dellatorre, Brazil / Club Suphanburi FC, Thailand
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