DRC Overdue Payables
Texto da decisão
REF FPSD-7315
Decision of the
Dispute Resolution Chamber
passed on 26 October 2022
regarding an employment-related dispute concerning the player Lazaro
Vinicius Alves Martins
BY:
Alejandro Atilio Taraborelli, Argentina
CLAIMANT:
Lazaro Vinicius Alves Martins, Brazil
Represented by Mariju Maciel e Marina Maciel Advogados & Associados
RESPONDENT:
Hajer Club, Saudi Arabia
Represented by R&A Sports Law
Page 2
REF FPSD-7315
I. Facts of the case
1.
On 8 October 2020, the Brazilian player, Mr Lazaro Vinicius Alves Martins (hereinafter: the
player or the Claimant), and the Saudi club, Hajer Club (hereinafter: the club or the
Respondent), concluded an employment contract valid as from 10 October 2020 until 2
July 2021 (hereinafter: the first employment contract).
2.
Pursuant to Item 4 of the first employment contract, the club undertook to pay the player
inter alia an advanced payment of USD 10,000 on 15 October 2020; and a monthly salary
of USD 8,000.
3.
Item 5, par. 18 of the first employment contract set out as obligation of the player: “comply
with the sanctions and rewards international regulations of the club which the club is entitled
to imposed according to the regulation named ‘Typical List of Penalties and Sanction to the
Clubs that apply Professionalism’ issued by SAFF (SAFF TLPS), a copy of which is shown and
provided to the player, being his signature of this contract a sign of its receipt, and at the
player’s disposal in electronic format upon his request”.
4.
Item 8 of the first employment contract read as follows: “[the club] may take decisions and
issue sanctions against [the player] in case of violating his obligations stipulated in the
contract without prejudice to regulations, provided that he shall inform [the player] in writing,
and the latter may object according to the SAFF TLPS or any other applicable regulations and
rules”.
5.
On 1 July 2021, the parties entered into a second employment contract, valid from 3 July
2021 until 2 June 2022 (hereinafter: the second employment contract).
6.
Article 5 of the second employment contract established inter alia that the player would
be entitled to the following amounts / benefits:
a.
b.
c.
d.
e.
7.
a lump sum of USD 15,000 by 1 August 2021;
a monthly salary of USD 6,365;
transportation and suitable accommodation;
a round-trip flight ticket from Brazil to Saudi Arabia for the player and his family;
a paid annual leave of 28 days per 12-month period.
In addition, article 8 of the second employment contract read as follows, quoted verbatim:
“1. In the event that the player commits a violation of any of his obligations under this
contract or the applicable regulations, the club may impose disciplinary sanctions against
the player. The club shall dully charge the player and shall notify him in writing of the
details of such charges. The player shall be provided with an opportunity to respond to the
charges. In particular, the player declares that he is aware of the application SAFF
Page 3
REF FPSD-7315
regulations, including the Players’ Status Regulations and Disciplinary and Ethics
Regulations (which are freely available on the official SAFF website).
2. In the event that the player fails to fulfil his obligations under this contract, the club may
impose one or more of the following sanctions against the player in accordance with the
club’s disciplinary rules:
(a)
(b)
(c)
(d)
a written warning;
a reprimand;
a fine; and/or
community football service.
3. Fines for minor offences which are imposed by the club on the same day as the offence
may not exceed the amount corresponding to one (1) day of the fixed monthly
remuneration payable to the player (the amount to be calculated by dividing the monthly
salary by 30) under the terms of Article 5.1 of this contract.
4. Under no circumstances shall the club sanction the player for the poor performance of
the team and/or alleged poor play.
5. In choosing and levying a sanction, the club shall take into account all circumstances of
the case. The club shall notify the player in writing at least 7 days prior to the hearing. The
player may be represented in disciplinary proceedings by a person (of any nationality)
authorised by the player for that purpose.
6. The club recognises that if the sanction consists of a fine, and such fine is deducted by
the club from the player’s salary, the player is entitled to file a claim at the FIFA DRC to
assess the legitimacy of the fine”.
8.
On 3 August 2021, the player flew from Belo Horizonte (Brazil) to São Paulo (Brazil),
together with his family.
9.
On 26 May 2022, the club’s team (the player included) attended a training session in
preparation for its match against Al Shoala.
10. On 5 June 2022, the club issued a letter to its squad (the player included), with the
following content:
“With reference to the reports submitted by the technical and administrative bodies to the
club’s chairman regarding the reluctance of the first football team players in Hajar to train
with the ball and incitement among themselves not to go to training according to the
program set by the technical director on Wednesday 25/05/2022, which negatively affected
the performance of the team as a whole and the defeat in the last match against Al Shoala
Page 4
REF FPSD-7315
Club, so we hope for a response, as a maximum of 48 hours, from time Monday,
06/06/2022 as of 12:00 noon, Saudi Arabia”.
11. On 8 June 2022, the club sent the player a letter with the following content:
“Regarding the reports submitted by the technical and administrative bodies about your
refusal to train with the ball for training on Wednesday 25/05/2022 and your failure to
attend the summons sent to you by e-mail.
Therefore, according to the list of violations and penalties within the model list of violations
and penalties for clubs that apply professionalism, issued by the Saudi Arabian Football
Federation, specifically in the paragraph on violations and penalties related to player
behavior, 40% of the salary for the month of May 2022 will be deducted for your
committing this violation. We hope that you will review the articles No. 21, 22 and 23 of
the Model Regulations for Violations and Penalties for Clubs Applicable for
Professionalism” (emphasis added).
12. On 15 June 2022, the player replied to the club’s previous correspondences. Accordingly,
he inter alia challenged the narrative of the club and highlighted his own professionalism.
What is more, the player rejected the reduction of his salary and stressed that he was
willing to find an amicable solution with the club.
13. On 22 July 2022, the player put the club in default and requested payment of USD
19,679.75, corresponding to the balance of the first employment contract (USD 327.22),
the salaries from April until June 2022 (USD 13,145.33), flight tickets from Belo Horizonte
to Sao Paulo (USD 524.17), and proportional annual leave (USD 5,683.03). The player
granted the club a 10 days’ deadline to remedy the breach.
14. On 4 August 2022, the player sent the club a second default notice and granted it 10
additional days to comply with its financial duties and avoid litigation.
II. Proceedings before FIFA
15. On 1 September 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
16. According to the player, the club failed to pay him part of his remuneration, broken down
as follows:
a.
USD 327.22 as the balance of his remuneration under the first employment
contract, insofar as the club only delivered a total amount of USD 79,866.33 out of
USD 80,000;
Page 5
REF FPSD-7315
b.
USD 524.17 (BRL 2,641.83) as reimbursement of his and his family’s flight tickets
from Belo Horizonte to Sao Paulo;
c.
USD 13,145.33 as his salaries from April until June 2022; and
d.
USD 5,683.03 as the proportional annual leave (i.e. 25 days for a 11-month
contract).
17. Furthermore, the player argued that the penalty imposed by the club over his salary of
May 2022 should be considered illegitimate and invalid. In this respect, the player
explained the timeline of the case and argued the club acted in bad faith – especially
considering that 4 monthly salaries were already outstanding at the time the disciplinary
sanction was imposed.
18. In view of the foregoing, the player requested to be awarded the total of USD 19,679.75
net “cumulated with the relevant interests”. Furthermore, the player referred to art. 12bis,
par. 4 of the FIFA Regulations on the Status and Transfer of Players (RSTP) and requested
sporting sanctions to be imposed on the club.
b. Position of the club
19. On 16 September 2022, the club filed its reply to the player’s claim.
20. In its reply, the club acknowledged its default regarding part of the player’s entitlements
and stressed that it had already requested its players to “be patient” due to “financial
precarious situation”.
21. Notwithstanding the above, the club also challenged the player’s claims as follows:
•
the balance of the 2020/2021 season: the player’s request is not specified,
therefore cannot be properly addressed. Moreover, all the financial duties arising
from previous season were already complied with;
•
the salary of May 2022 and the disciplinary fine: by refusing himself to join a
specific training, the player committed a “very harmful act towards the club”
reported by the coach, which resulted in the team’s loss and consequent failure to
promote to the professional league. In addition, the player failed to timely reply to
the letters issued by the club on time (thus, refused to exercise its right to be
heard). Consequently, the club is of the opinion that the sanction imposed on the
player, besides from being contractually based, also became final and binding,
hence could not be rejected by the player;
•
the flight tickets: the player’s request lacks contractual basis insofar as he would only
Page 6
REF FPSD-7315
be entitled to a flight ticket from Brazil to Saudi Arabia and not internal flights in Brazil
for himself and his family; and
•
the annual leave: the club concurred with the player that he should be entitled to an
annual leave of 25 days. Nevertheless, it argued that he had already taken 55 days
throughout their employment relationship.
22. In light of the above, the club concluded that it owed the player the total amount of USD
10,608.33, corresponding to the player’s salary of April 2022 (USD 6365), May 2022 (USD
3819), and June 2022 (424.33). What is more, subject to the acceptance of the player, the
club argued that such amount would be wired until 25 November 2022.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Single Judge of the Dispute Resolution Chamber (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 01 September
2022 and submitted for decision on 26 October 2022. Taking into account the wording of
art. 34 of the June 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.
24. 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 (July 2022 edition), the Dispute
Resolution Chamber (DRC) 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 Saudi club.
25. 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 (July 2022 edition), and
considering that the present claim was lodged on 1 September 2022, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
26. 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
Page 7
REF FPSD-7315
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
27. 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.
i. Main legal discussion and considerations
28. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim for outstanding remuneration only
comprising salaries, compensation for annual leave, and reimbursement of flight tickets.
29. In this context and having carefully analysed the parties’ submissions, the Single Judge
considered that his task was to determine the following:
a.
b.
c.
d.
e.
Is the player entitled to outstanding salaries for the 2020/2021 season?
Is the player entitled to outstanding salaries for the 2021/2022 season?
Is the player entitled to the compensation for the annual leave for the 2021/2022
season?
Is the player entitled to the reimbursement of flight tickets?
In conclusion, what is the outcome of the case?
30. The Single Judge moved then to the analysis of each topic in turn.
A. Is the player entitled to outstanding salaries for the 2020/2021 season?
31. The player claimed to be entitled to a balance of USD 327.22 net for the 2020/2021
season. The club, on the other hand, stated that its obligations had been fulfilled.
32. In light of the above, the Single Judge pointed out that the club bore the burden of proving
that it indeed complied with the financial terms of the first employment contract
concluded between the parties. Nevertheless, it failed to advance any evidence in support
of its argumentation.
33. It followed from the above, in the Single Judge’s view, that the club did not meet its burden
of proof in line with art. 13, par. 5 of the Procedural Rules. Therefore, he decided that the
Page 8
REF FPSD-7315
player shall be entitled to remuneration sought based on the general legal principle of
pacta sunt servanda.
B. Is the player entitled to outstanding salaries for the 2021/2022 season?
34. At this point, the Single Judge highlighted that it remained undisputed between the
parties that the player’s salaries from April until June 2022 were not paid by the club.
35. Notwithstanding the above, the club stresses that the player’s salary of May 2022 was
validly reduced by 40% due to a disciplinary fine (i.e. a penalty for refusing to join the
training session that took place on 25 May 2022).
36. Against this background, the Single Judge turned his attention to the documentation on
file and took note of the following:
•
the only evidence demonstrating that the player had misbehaved is a report
unilaterally issued by the club, without further specifications. Likewise, such
report included the name of 28 players (i.e. almost the entire team),
suggesting that the offense allegedly incurred by the player was – to say the
least – controversial;
•
the club’s argumentation that the player’s failure to attend the specific
training session was directly linked to the loss on the following match is of
speculative nature only. What is more, the mere defeat in a specific match
cannot be deemed as a valid reason to retain 40% of a player’s salary in line
with the well-established jurisprudence of the DRC;
•
in spite of the alleged offense taking place on 25 May 2022, the player was
only informed about the disciplinary proceedings on 5 June 2022, as well as
granted a short deadline of 48 hours to reply. Moreover, said notification
was generically addressed to the team and was not accompanied by any
documentary evidence in connection with the offense;
•
the fine was imposed retroactively: it was only notified to the player on 15
June 2022 being nonetheless deduced from his salary of May 2022;
•
the club did only file a copy of its disciplinary regulations in Arabic, which
could not be deemed as valid evidence in line with art. 13, par. 1 of the
Procedural Rules. What is more, the club could not establish that such
regulations were ever forwarded to the player; and
•
in accordance with article 8 of the second employment contract, there were
more lenient measures to be taken before the imposition of a fine (e.g. a
warning and a reprimand). In parallel, the club did not demonstrate that the
Page 9
REF FPSD-7315
player was a repeat offender, let alone that his alleged misbehaviour was
severe enough to justify a direct fine amounting to 40% of his salary.
Consequently, the club could not even demonstrate that it complied with the
procedure established in the relevant employment contract.
37. Taking all the above into consideration, the Single Judge was satisfied with the conclusion
that the fine imposed by the club on the player should be rendered null and void, as well
as the club’s position in this regard should be entirely set aside.
38. As a consequence, the Single Judge determined that the player was entitled to receive his
salaries from April 2022, May 2022, and pro rata June 2022, totalling USD 13,145.33 net.
C. Is the player entitled to the annual leave for the 2021/2022 season?
39. In continuation, the Single Judge turned to the analysis of the compensation for the
annual leave claimed by the player. He noted, in this respect, that it remained undisputed
between the parties that the player should be entitled to an annual leave of 25 days.
40. Alike with the salaries, the Single Judge considered that the club bore the burden of
proving that the annual leave had already been granted in full. Nevertheless, the club
could not substantiate its argumentation and did only provide a unilateral document
signed by its team manager and without any proof of consent by the player. Furthermore,
the club filed untranslated evidence and one unspecified invoice without any explanation.
41. Therefore, the Single Judge decided that the club did not meet its burden of proof, hence
the player shall be entitled to additional 25-days’ remuneration totalling USD 5,304.16 net
(i.e. USD 6,365 * 25 / 30).
D. Is the player entitled to the reimbursement of his flight tickets?
42. Finally, the Single Judge observed that the player also claimed reimbursement of his and
his family’s flight tickets from Belo Horizonte to São Paulo, amounting to USD 524.17.
43. On this topic and as opposed to the position of the player, the Single Judge concurred
with the club’s argumentation that the player’s request lacks contractual basis (i.e. the
player was only entitled to have the tickets between Brazil and Saudi Arabia reimbursed).
Furthermore, the Single Judge outlined that there is no clear nexus between the flight
tickets on file and the player’s employment with the club, let alone with the tickets issued
on behalf of his family.
44. In view of the foregoing, the Single Judge deemed that this specific part of the player’s
claim should be rejected.
Page 10
REF FPSD-7315
E. In conclusion, what is the outcome of the dispute?
45. Based on the foregoing considerations, the Single Judge decided that the player should
be entitled to a total of USD 18,776.71 net as outstanding remuneration.
46. Taking into consideration the constant practice of the DRC and bearing in mind that the
player’s request for relief with regards to interests is not specified, the Single Judge
decided that he should be also entitled to default interest of 5% p.a. over the
abovementioned sum as from the date of the claim (i.e. 1 September 2022) until the date
of effective payment.
47. In parallel, the Single Judge referred to art.12bis par. 2 of the Regulations, which stipulates
that any club found to have delayed a due payment for more than 30 days without a prima
facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
48. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due for more than 30 days, and granted the club
with 10 days to cure such breach of contract.
49. Accordingly, the Single Judge also confirmed that the club had delayed a due payment
without a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations were met in the case at hand.
50. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the club. On account of the above and
bearing in mind that this is the first offense by the club within the last two years, the Single
Judge decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a)
of the Regulations.
51. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
ii. Compliance with monetary decisions
52. 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.
Page 11
REF FPSD-7315
53. 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.
54. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of
notification of the decision, failing which, at the request of the player, 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations
55. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
56. 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
57. 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.
58. 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.
59. Lastly, the Single Judge rejected any other requests for relief made by any of the parties.
Page 12
REF FPSD-7315
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lazaro Vinicius Alves Martins, is partially accepted.
2.
The Respondent, Hajer Club, has to pay to the Claimant, the following amount:
- USD 18,776.71 net as outstanding remuneration plus 5% interest p.a. as from 1
September 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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 the ban
shall be of 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.
7. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 13
REF FPSD-7315
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).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 14