Labour Disputes
Texto da decisão
REF. FPSD-10320
Decision of the
Dispute Resolution Chamber
passed on 15 May 2024
regarding an employment-related dispute concerning
the player Daniel Alves da Silva
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Mario Flores Chemor (Mexico), Member
Dana Mohamed Al-Noaimi (Qatar), Member
Roy Vermeer (the Netherlands), Member
Alexandra Gómez Bruinewoud (Uruguay & the Netherlands), Member
CLAIMANT:
Club Universidad Nacional (Pumas), Mexico
Represented by Luis Torres-Septién Warren and José María Zayas Prado
RESPONDENT:
Daniel Alves da Silva, Brazil
Represented by Maurício Junior da Hora and Eduardo Diamante de Sousa
pg. 2
REF. FPSD-10320
I. Facts of the case
The Parties
1.
The relevant persons to this dispute are the following:
A.) the Mexican club, Club Universidad Nacional (Pumas) (hereinafter: the Club, Pumas,
or the Claimant), affiliated to the Mexican Football Federation (FMF);
B.) the Brazilian player, Daniel Alves da Silva (hereinafter: the Player or the Respondent);
C.) the legal entity / company named “Flash Forward Esportes e Eventos LTDA”
(hereinafter: the Company), which holds a license of the Player’s image rights.
2.
Notwithstanding the above, only the Club and the Player are parties to the case at hand,
hence hereinafter jointly referred to as the Parties.
The Employment Contract concluded between the Parties
3.
On 23 July 2022, the Parties entered into an Employment Contract whereby the Player was
hired by the Club as a professional footballer of the Club’s A-Team (hereinafter: the
Employment Contract).
4.
According to clause 2 of the Employment Contract, the latter was valid between 18 July
2022 and 31 July 2023, therein referred to as the “term that corresponds to the Tournaments
Apertura 2022 and Clausura 2023” (freely translated from Spanish to English).
5.
Under clauses 5 and 5bis of the Employment Contract, the Club undertook to pay the Player
the following:
•
USD 300,000 net divided into 12 monthly salaries of USD 25,000 net each, payable
on the last day of each month (i.e., from August 2022 to July 2023);
•
Four flight return tickets Mexico – Barcelona – Mexico; and
•
A car and a driver / security agent.
6.
Under clause 9 of the Employment Contract, the Player authorized the Club to make use
of, inter alia, his image rights and acknowledged that such assignment would not entitle
him to any additional remuneration under the Employment Contract.
7.
Under clause 14 par. 2 of the Employment Contract, the Parties agreed that should the
Player be directly involved in any sort of “public scandal” and provided that the legal
principle of ultima ratio was respected, the Club would be entitled to (i) terminate their
pg. 3
REF. FPSD-10320
employment relationship without paying any compensation; and (ii) claim compensation
as established in clause 15 of the Employment Contract.
8.
9.
The same clause 14 of the Employment Contract listed, inter alia, the following
circumstances as “public scandals” (freely translated from Spanish to English):
•
“Any act considered as a crime in the country where said act is committed, the Player
being condemned for its commission, regardless of whether the crime is committed in
Mexico, the United States of America or in any other country”.
•
“Any activity or conduct that causes any press note in a negative sense in connection with
the Player”.
Clause 15 of the Contract reads as follows (freely translated from Spanish to English):
“During the entire term of this Contract, in the event that the Player decides, without just
cause, to prematurely terminate it, he shall be obliged to pay the Club the amount of USD
5,000,000.00 (Five Million U.S. Dollars) net as compensation, free of any tax or
withholding.
The amount of the compensation set forth in this clause is the result of the free will
expressed by both parties and shall prevail, in any case and regardless of the time at
which the termination of the Contract occurs, over any compensation that may be
applicable to the early termination of this Contract at the Player's initiative, as applicable,
in accordance with the criteria set forth in article 17 of the Regulations on the Status and
Transfer of Players of FIFA in force at any given time, or international or sporting rule
that may replace it in the future, or national federative regulation. Consequently, the
agreed compensation is not amortizable by the course of the Contract and is due in its
entirety, having been justly agreed within the framework of this Contract and of the future
possibilities based on the age and conditions of the Player.
This clause shall also apply in the event that the Player is temporarily transferred to a
third club during the term of this Contract, regardless of the agreements that the Player
may reach with that third club.
In the event of non-payment of the full amount by the Player, the new contracting club
shall be jointly and severally liable under the terms of article 17.2 of the FIFA Regulations
on the Status and Transfer of Players.
The parties agree that, for all purposes, in the event that the Player or any third party
(club or otherwise) pays to the Club the amount of the compensation stipulated in clause
15 (1) above, the Player shall automatically and immediately be free to enter into a new
employment contract with a new club in Mexico or abroad (“buy-out clause”).
pg. 4
REF. FPSD-10320
In the event that the Club, during the term of the Contract, decides, to prematurely
terminate it without just cause, the Club undertakes to pay the Player all the salaries that
should be paid in the future, that is to say, as of the date of termination of the Contract
until the date of expiry (cf. clause 2, supra), without any discount”.
10. Under clause 16 lit. d) of the Employment Contract, the Parties agreed that the Club would
also be entitled to terminate the employment relationship with the Player should the latter
committed (i) any act of serious undiscipline while performing his professional duties; or
(ii) any crime while not performing his professional duties but that would damage the Club’s
public image, to be determined by its board of directors.
11. Under clause 22 of the Employment Contract, the Parties established that any dispute
arising thereto should be resolved through amicable composition and ultimately directed
to FIFA in the first instance, and the Court of Arbitration for Sport (CAS) in case of appeal.
The Image Rights Agreement concluded between the Parties and the Company
12. In parallel, and by document dated 18 July 2022, the Parties and the Company entered into
an Image Rights Agreement whereby the Player and the Company assigned image rights to
the Club (hereinafter: the IR Agreement).
13. According to clause 3 of the IR Agreement, the Club undertook to pay the Company the
following amounts (hereinafter: the IR Fees):
•
USD 1,125,000 net payable within 5 days from the signature of the Employment
Contract (i.e., by 28 July 2022);
•
USD 1,125,000 net payable by 15 January 2023; and
•
USD 200,000 net as bonus should the Club be the winner of “Torneo Apertura 2022”
and / or “Torneo Clausura 2023”, payable within 30 days following the end of the
relevant tournament.
14. Clause 4 of the IR Agreement reads as follows (freely translated from Spanish to English):
“The term of this Contract shall be from the date of signature until the last of the
payments specified in Clause 3 of this Contract is made”.
15. Clause 8 of the IR Agreement reads as follows (freely translated from Spanish to English):
“In the event of a conflict or disagreement in the interpretation and fulfilment of the
clauses of this Contract, the parties shall exhaust amicable solutions; the parties agree
and confirm that this Contract is related to [the Employment Contract] signed
concomitantly between Pumas and the Player. Therefore, in the event of a dispute in
pg. 5
REF. FPSD-10320
connection with this Contract, the Player may sue Pumas before the FIFA Football
Tribunal since such dispute in the end also constitutes a dispute regarding the
employment relationship between a club and a player (cf. Art. 22. let. b) of the FIFA
Regulations on the Status and Transfer of Players) and/or the Court of Arbitration for
Sport (TAS-CAS) located in Lausanna [sic], Switzerland. The proceedings shall be
conducted in English/Spanish with a Sole Arbitrator”.
The criminal proceedings involving the Player and its aftermath
16. On 20 January 2023, the Criminal Court no. 15 of Barcelona (Spain) issued a pre-trial
detention order against the Player for allegedly committing a crime of sexual aggression in
the city of Barcelona on 30 December 2022. The Player was arrested without bail on the
same day.
17. On the same day and the subsequent ones, the press – at both national and international
level – echoed the news of the Player's pre-trial detention.
18. On 20 January 2023, the Club unilaterally terminated its employment relationship with the
Player due to the breach of several clauses included in the Employment Contract, as well
as Mexican labor law.
19. On 10 April 2023, the Club put the Player in default and requested payment of (i) USD
5,000,000 net as compensation in line with clause 14 of the Employment Contract; and (ii)
USD 1,125,000 net as reimbursement of the second instalment of the IR Fees paid on 13
January 2023. The Club granted the Player a 10 days’ deadline to remedy the breach.
II. Proceedings before FIFA
20. On 24 May 2023, the Club lodged a claim against the Player. The following is a brief
summary of the Parties’ respective positions.
a. Claim of the Club
21.
In its claim, the Club requested compensation for damages based on clauses 14 and 15
of the Employment Contract in the amount of USD 5,000,000 net and the reimbursement
of the second instalment of the IR Fees in the amount of USD 1,125,000 net.
22.
The Club explained that the Player was imprisoned due to the alleged perpetration of a
crime of sexual aggression in Spain, which not only prevented him from fulfilling his
contractual obligations – insofar as he could no longer provide his sporting services to
the Club – but also resulted in a public scandal within the meaning of clause 14 of the
Employment Contract.
pg. 6
REF. FPSD-10320
23.
Consequently, the Club considered that USD 5,000,000 net was a fair amount of
compensation for the damages suffered. In particular, the Club stressed that the Parties,
acting freely and within their sphere of autonomy of will, decided that such amount
would be payable in scenarios such as the present one, where the Club was jeopardized
due to the unlawful behaviour of the Player.
24.
The Club further argued that it was not able to profit from the Player’s image rights after
his imprisonment on 20 January 2023. Therefore, it claimed that the Player should be
ordered to reimburse the second instalment of the IR Fees in the amount of USD
1,125,000 net, which fell due on 15 January 2023, i.e. only 5 days prior to the issuance of
his pre-trial detention order by the Court no. 15 of Barcelona.
b. Reply of the Player
25. On 12 February 2024, the Player filed his reply to the claim.
Jurisdiction
26. Preliminarily, the Player held that FIFA does not have jurisdiction to hear any dispute arising
in connection with the IR Agreement, insofar as:
A.) The IR Agreement is not related to the employment of the Player as a footballer but
to the commercial exploitation of his image rights. Therefore, any dispute in
connection therewith cannot be considered as an “employment-related dispute”
within the scope of art. 22 par. 1 lit. b) of the FIFA Regulations on the Status and
Transfer of Players (RSTP);
B.) The beneficiary of the payments agreed under the IR Agreement was not the Player
but the Company, which is not solely owned by the Player, but also by a third person
named Dinorah Santa Ana Bastos;
C.) The duration of the Employment Contract and the IR Agreement is different;
D.) The IR Agreement does not contain any clause providing for its termination in case
the Employment Contract was terminated;
E.) When the Club notified the Player of the termination of the Employment Contract,
no mention was made to the termination of the IR Agreement;
F.) Under clause 9 of the Employment Contract, the Parties already agreed that no
additional amount would be paid by the Club to the Player as a result of the
assignment of his image rights, reason why the object of the IR Agreement was
different to that agreed under the Employment Contract.
pg. 7
REF. FPSD-10320
27. The Player concluded that, in view of all the abovementioned arguments, the Employment
Contract and the IR Agreement should be considered as two independent agreements. FIFA
not being competent to hear disputes based on the latter.
Substance
28. As to the substance of the dispute, the Player maintained that the payment of a
compensation of USD 5,000,000 – which he regarded as a contractual penalty – was
“abusive and disproportionate”. In this respect, the Player claimed that clause 15, which
foresees his obligation to pay such amount in the event the Club terminated the
Employment Contract due to the commission of an act considered as “public scandal” is
clearly excessive, since the amount of USD 5,000,000 is higher than his remuneration for
the entire period. As such, the Player stressed that clause 15 should be considered null and
void.
29. Regarding the Club’s entitlement to receive a compensation for breach of contract per art.
17 of the RSTP, the Player asserted that the Club did not suffer any financial loss because
of the Player’s imprisonment, insofar as:
•
the Player was hired by the Club as a free agent, i.e. no transfer fee was paid to his
previous club and, therefore, no unamortized portion of the transfer fee paid can
be included in the potential compensation to the Club;
•
“[t]he club did not spend any amount to replace the Respondent”;
•
the Employment Contract was due to expire at the end of July 2023 and the Club
could not reasonably expect to transfer the Player against payment fee as he was
already 39 years old and had been signed as a free agent.
30. What is more, the Player stressed that the Club should not be awarded the remainder of
his salaries as compensation for breach of contract, since it did not have to pay him
between February and July 2023, which was therefore “an expense saved by the Player’s club”.
On this particular note, the Player argued that the Club saved the amount of USD 1,800,000
(the Player maintained at this point that his salary was USD 300,000 per month and not per
year).
31. The requests for relief of the Player were as follows, quoted verbatim:
“a. Declaring the lack of FIFA’s competence to analyze the [Image Rights Agreement];
b. Declaring the nullity of the penalty clause inserted in the [Contract];
c. Confirming that there is no compensation to be paid by the player to the Club;
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REF. FPSD-10320
[e.] Alternatively, reduce an eventual compensation to be paid taking in consideration all
the arguments and mitigation factors herein presented, especially considering that the
Club saved USD 1.800.000,00 with the early termination of the contract.”
c. Rejoinder of the Club
32. On 20 February 2024, the Club submitted its rejoinder on this matter.
Jurisdiction
33. As to the competence of FIFA, the Club argued that the IR Agreement and the Employment
Contract were linked in that:
A.) they were concluded by and between the same parties – in this respect, the Club
maintained that the Company has only one stakeholder (i.e., the Player), who signed
on its behalf, and is the sole beneficiary of the IR Fees;
B.) the parties expressly agreed that the IR Agreement and the Employment Contract
were linked (cf., clause no. 8 of the IR Agreement) and that, on this basis, FIFA would
be competent to decide on any dispute arising in connection with the IR Agreement;
C.) the IR Agreement refers to the Employment Contract up to 4 times;
D.) the Player’s argument that the duration of the two contracts is different is misleading
in that the final payment foreseen in the IR Agreement is dependent on the Club’s
potential victory in the Torneo Clausura 2023. The same date would also be the
potential expiry date of the Employment Contract, had that occurred beyond 31 July
2023;
E.) the remuneration due under the IR Agreement is clearly higher than the
remuneration due under the Employment Contract, which confirms that both
contracts represent the quantum payable to the Player for his services (including the
assignment of image rights).
34. Thus, the Club insisted that the IR Agreement and the Employment Contract should be
jointly considered, with FIFA having jurisdiction over disputes arising in connection with
both agreements.
Substance
35. As to the substance, the Club reiterated its argumentation as follows:
•
the Player’s remuneration under the Employment Contract amounted to USD
25,000 per month and not of USD 300,000;
pg. 9
REF. FPSD-10320
•
as a result of the Player’s imprisonment, he was no longer able to fulfill his
contractual obligations and therefore should be liable to pay the Club
compensation for breach of contract;
•
the Parties freely entered into clause 14 of the Employment Contract and it was a
fact that the Player was prosecuted for committing a crime in Spain, reason why he
was imprisoned. Said scenario fell completely within the hypothesis foreseen by
the Parties, hence triggering the payment of USD 5,000,000 (cf. clauses 14 and 15
of the Employment Contract).
36. In view of the foregoing, the Club reiterated its previous request for relief.
d. Final comments of the Player
37. On 6 March 2024, the Player filed his final comments on this matter.
Jurisdiction
38. The Player again rejected the Club’s allegations as to the jurisdiction of the Football Tribunal
over the IR Agreement and highlighted the following in addition to his previous arguments:
•
the term of the IR Agreement and the Employment Contract are different in that
the IR Agreement expired on 15 January 2023 whereas the Employment Contract
was to expire on 31 July 2023. Therefore, they could not be considered together as
one single agreement.
•
there is no clause in either the IR Agreement or the Employment Contract which
provides that the premature termination of one of them would lead to the end of
the other.
39. Therefore, the Respondent reiterated that FIFA does not have jurisdiction over any claim in
connection with the IR Agreement.
Substance
40. As to the substance, the Player reiterated his previous arguments and requests for relief,
with the exception of his previous statement that the amount of USD 1,800,000 allegedly
“saved” by the Club due to the non-payment of salaries as a result of his imprisonment
should be deducted. This argument was no longer wielded by the Player, who simply
requested – on a subsidiary basis and should FIFA find him liable to the payment of
compensation – to “reduce an eventual compensation to be paid taking in consideration all the
arguments and mitigation factors presented.”
pg. 10
REF. FPSD-10320
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
41. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or
the 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 24 May 2023 and submitted
for decision on 15 May 2024. 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.
42. Subsequently, 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 par. 1 lit. b) of the RSTP
(February 2024 edition), the Dispute Resolution Chamber is, in principle, competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Mexican club and a Brazilian player.
43. Notwithstanding the above, the Chamber noted that the Player challenged the jurisdiction
of the Football Tribunal to hear the Club’s claim in connection with the IR Agreement. In
particular, the Player stated that (i) the IR Agreement was concluded with a third-party alien
to the employment relationship (i.e., the Company); (ii) there was no connection between
the contractual provisions of the two contracts (i.e., different durations and remunerations,
and unlinked terminations); and (iii) the IR Agreement was not of an employment nature
but of a commercial one. The Player therefore concluded that the IR Agreement should
therefore be regarded as a separate agreement from the Employment Contract.
44. In contrast, the DRC acknowledged that the Club, for its part, insisted on the jurisdiction of
the Football Tribunal to entertain the entirety of its claim. The Chamber gave due
consideration to its position with regard to the allegedly unbalanced form of payment of
the Player’s remuneration, the overlapping terms and the clear wording of clause 8 of the
IR Agreement, which allegedly indicated the mutual agreement of the Parties that FIFA has
jurisdiction to hear any dispute arising in connection therewith.
45. In view of the dissent between the Parties, the DRC recalled that, in principle, FIFA is not
competent to decide on agreements concerning the licensing of image rights, as these are
not employment-related agreements. However, in line with the long-standing
jurisprudence of the Football Tribunal, such conclusion might be different if specific
elements of the separate agreement suggest that it was in fact intended to be part of the
actual employment relationship. Therefore, image rights agreements must be assessed on
a case-by-case basis, taking into account the particularities and specific circumstances of
each individual dispute (cf. Commentary on the RSTP – p. 460 et seq.).
pg. 11
REF. FPSD-10320
46. On this note and after carefully analysing the arguments of the Parties together with the
evidence put forward by them in the course of these proceedings, the Chamber first
addressed the Player’s argument that the Football Tribunal lacked jurisdiction to rule on
the IR Agreement due to the fact that it was concluded between the Parties and the
Company, the latter being owned not only by the Player but also by another individual.
47. In this respect, the Chamber determined that, contrary to the Player’s allegations and from
the commercial information provided by him, the Company appeared to have a single
shareholder: the Player. As for the person of Dinorah Santa Ana Bastos, it seemed to the
Chamber that she was in fact an administrator of the Company, but not a shareholder.
48. On these grounds, the Chamber concluded that the IR Agreement was ultimately
concluded between the Player (through himself as a natural person and through the
Company) and the Club, albeit under a different legal regime. The DRC was further
reassured in this conclusion by recalling that the jurisprudence of the Football Tribunal and
CAS is also solid to establish that the fact that a company is included as a party to the image
rights agreement does not prevent FIFA from entering into the merits of the case, as the
contractual set-up between the parties is mostly related to tax / financial arrangements,
yet within the boundaries of the employment relationship (cf. Commentary on the RSTP –
p. 462).
49. The Chamber then turned to the analysis of the contractual terms of both the Employment
Contract and the IR Agreement. In doing so, the DRC considered that the analysis of the
duration of each contract could enlighten the circumstances in which they were concluded
and could be of relevance in determining whether the Player’s image rights were assigned
to the Club within their labour relationship.
50. In this regard, the DRC found it crucial that both agreements entered into force in July 2022,
with a difference of only 10 days. In fact, the Chamber observed that clause 8 of the IR
Agreement suggested that it was signed “concomitantly” with the Employment Contract.
The Chamber also highlighted that the IR Agreement had a variable duration, which could
have lasted until the end of the Torneo Clausura 2023 or, mutatis mutandis, could have
expired at the same time as the Employment Contract had the Club won that tournament.
In this respect, the Chamber found equally important to underline that the IR Agreement
contains a championship bonus in case Pumas would win the Torneo Apertura 2023, bonus
which evidently further denotes the connection between the IR Agreement and the
employment relationship between the Parties.
51. In the Chamber’s opinion, the above foregoing served as an indication that the IR
Agreement was concluded by the Parties on the basis of their employment relationship, as
they foresaw a scenario in which the duration of the two agreements overlapped almost
completely.
pg. 12
REF. FPSD-10320
52. In continuation, the Chamber established that the Parties’ intention should also be
analysed in order to establish a possible link. In this respect, the Chamber found decisive
that the Parties expressly agreed in clause 8 of the IR Agreement that the two contracts
were connected and were entered into jointly.
53. At this stage, the Chamber recalled that the jurisdiction of the Football Tribunal derives
from the FIFA regulations and therefore cannot simply be disposed of by the parties
through a contractual reference (i.e., jurisdiction clauses). Nevertheless, in casu the DRC
considered that the fact that the Parties agreed that FIFA would have jurisdiction over any
claims that might arise in connection with the IR Agreement further supported the
conclusion that their true intention was to link the two contracts as complementary parts
of their employment relationship.
54. In light of all the foregoing, the Chamber was convinced that the IR Agreement is sufficiently
connected to the employment relationship as described by the jurisprudence of the
Football Tribunal. As such, it could not be considered as a separate independent
agreement, but rather as an accessory/additional agreement directly connected to the
Employment Contract, which then falls within the jurisdiction ratione materiae of the
Chamber (cf. art. 22, par. 1, lit. b of the RSTP).
55. In conclusion, the DRC decided that the Football Tribunal has jurisdiction to hear the
dispute at stake in its entirety.
56. Lastly, 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 RSTP (February 2024 edition) and considering that the present claim was lodged on 24
May 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
57. 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
58. Having established its competence and the applicable regulations, 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
pg. 13
REF. FPSD-10320
the facts, arguments, and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
59. The Chamber then moved to the substance of the case and acknowledged that it concerns
a claim by the Club against the Player for (i) compensation for breach of contract in the
amount of USD 5,000,000 based on clause 15 of the Employment Contract; and (ii)
reimbursement of a portion of the IR Fees paid by the Club to the Player under the IR
Agreement.
60. Before entering into the discussion of the Club’s entitlement to any of the above, the
Chamber remarked that the Parties did not dispute the circumstances of the termination
of their employment relationship and, in particular, the existence of just cause on the part
of the Club. In other words, the Chamber underlined that the Player never disputed that
the termination of the Employment Contract by Pumas had been with just cause, and
instead simply addressed in his submissions the quantum of such termination. Therefore,
the DRC determined that its task was limited to establishing financial consequences arising
therefrom. For the avoidance of doubt, the DRC remarked that this conclusion should not
be understood as a confirmation that, in similar circumstances and where there is a dispute
about the justification of the termination of a contract because of potential criminal liability
on the part of the player, the same conclusion would be reached.
61. The DRC proceeded to analyse each of the Club’s requests in turn.
A.
Compensation for breach of contract per the Employment Contract
62. First and foremost, the Chamber turned to the calculation of the amount of compensation
payable by the Player to 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.
63. In application of the relevant provision, the Chamber held that it first had to clarify as to
whether the pertinent 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.
64. In this respect, the Chamber observed that the Employment Contract in fact included a
liquidated damages clause i.e., clause 15. For ease of reference, the DRC outlined that such
pg. 14
REF. FPSD-10320
clause reads, inter alia, as follows (freely translated from Spanish to English; and with
emphasis added by the DRC):
“During the entire term of this Contract, in the event that the Player decides,
without just cause, to prematurely terminate it, he shall be obliged to pay the Club
the amount of USD 5,000,000.00 (Five Million U.S. Dollars) net as compensation,
free of any tax or withholding.
The amount of the compensation set forth in this clause is the result of the free will
expressed by both parties and shall prevail, in any case and regardless of the time at
which the termination of the Contract occurs, over any compensation that may be
applicable to the early termination of this Contract at the Player's initiative, as applicable,
in accordance with the criteria set forth in article 17 of the Regulations on the Status and
Transfer of Players of FIFA in force at any given time, or international or sporting rule
that may replace it in the future, or national federative regulation. Consequently, the
agreed compensation is not amortizable by the course of the Contract and is due in its
entirety, having been justly agreed within the framework of this Contract and of the future
possibilities based on the age and conditions of the Player.
This clause shall also apply in the event that the Player is temporarily transferred to a
third club during the term of this Contract, regardless of the agreements that the Player
may reach with that third club.
In the event of non-payment of the full amount by the Player, the new contracting club
shall be jointly and severally liable under the terms of article 17.2 of the FIFA Regulations
on the Status and Transfer of Players.
The parties agree that, for all purposes, in the event that the Player or any third party
(club or otherwise) pays to the Club the amount of the compensation stipulated in clause
15 (1) above, the Player shall automatically and immediately be free to enter into a new
employment contract with a new club in Mexico or abroad (“buy-out clause”).
In the event that the Club, during the term of the Contract, decides, to prematurely
terminate it without just cause, the Club undertakes to pay the Player all the
salaries that should be paid in the future, that is to say, as of the date of
termination of the Contract until the date of expiry (cf. clause 2, supra), without
any discount”.
65. In analysing the abovementioned provision, the DRC first noted that it provides for the
compensation to be paid (i) by the Player to the Club in the event of a termination by the
former without just cause; and (ii) by the Club to the Player in the event of a termination by
the former without just cause. It followed, in the Chamber’s opinion, that none of the
hypothesis applied to the facts of the present case: the Club terminated the Employment
Contract with just cause (which was not contested by the Player).
pg. 15
REF. FPSD-10320
66. In addition, the Chamber was also not convinced that the abovementioned provision met
the requirements of reasonableness and proportionality as required by the jurisprudence
of the Football Tribunal. In particular, the Chamber highlighted that (i) the amount of
compensation payable by the Player was significantly higher than that owed by the Club;
and (ii) the amount of compensation sought by the Club far exceeded the Player’s
remuneration for the entire contractual relationship.
67. As a consequence, the Chamber determined that the liquidated damages clause should be
disregarded and the amount of compensation payable by the Player to the Club 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.
68. Initially, the Chamber proceeded with the calculation of the monies payable to the Player
under the Employment Contract until its term. Consequently, the DRC concluded that the
amount of USD 159,677 net serves as the basis for the determination of the amount of
compensation for breach of contract, to be calculated as follows:
•
USD 9,677 as pro rata salary for the month of January 2023 (i.e., 12 days);
•
USD 150,000 as the salaries payable between February and July 2023 (i.e., 6 monthly
salaries and 12 days).
69. In continuation, the Chamber verified whether the Player had signed an employment
contract with another club during the relevant period of time. According to the constant
practice of the Chamber as well as art. 17 par. 1 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 due by a Player to his former club. In
particular, the Chamber explained that its standard practice is to calculate the average
between the player’s remuneration with his former club and his remuneration with the
new club, for the exact same period of time comprised between the early termination of
the employment contract with the old club and the original expiry date of such contract.
70. Notwithstanding, the Chamber noted that the Player remained unemployed following the
termination – reason why it decided that the residual value of the Employment Contract
should serve alone as the basis for the calculation of the compensation.
71. In parallel, the DRC recalled its jurisprudence according to which if the relevant club
provided substantiated evidence, it could additionally award the unamortised transfer fee
paid for the player in breach and/or the like. However, the Chamber noted that the Club
limited itself to claiming compensation in accordance with the liquidated damages clause
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REF. FPSD-10320
and failed to advance any documentation regarding additional costs, reason why no such
criteria was considered.
72. For the sake of completeness, the Chamber was also mindful of the Player’s position with
respect to the Club saving money by not paying salaries as a result of his imprisonment
and consequent termination of the Employment Contract. Although the DRC found it true
that the Club would be relieved of certain financial obligations, the DRC was of the opinion
that the sum of USD 159,677 net was to be considered a reasonable and justified amount
of compensation for breach of contract vis-à-vis the particularities of the case.
73. Lastly, taking into consideration the Club’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Club interest on said compensation
at the rate of 5% p.a. as from 10 April 2023 (i.e., as requested and in order not to go ultra
petita) until the date of effective payment.
B.
Reimbursement of the second instalment of the IR Fees per the IR
Agreement
74. Subsequently, the Chamber turned to the Club’s argument concerning the reimbursement
of the second instalment of the IR Agreement. In this respect, the DRC observed that the
Club claimed entitlement to USD 1,125,000 net because it was unable to benefit from the
assignment of the Player’s image rights as a result of his imprisonment on 20 January 2023.
75. In this respect, the majority of the Chamber first underlined that the IR Agreement was
valid between 28 July 2022 and 15 January 2023. Irrespective of the contractual window in
this effect, the duration of the IR agreement was not extended until the end of “Torneo
Clausura 2023”, as the Club did not win said competition.
76. As a consequence, the majority of the DRC was of the opinion that the first and the second
instalments of the IR Fees payable under the IR Agreement pertained to the Club’s
entitlement to benefit from the Player’s image rights during aforementioned period. As the
timeframe remained unchanged and the IR Agreement was not extended, the majority of
the DRC concluded that the execution of said contract was not affected by any
circumstance, hence that it was organically executed.
77. Having established that the IR Agreement naturally expired on 15 January 2023, the
majority of the Chamber decided that Club’s request for reimbursement of the second
instalment of the IR Fees should therefore be rejected.
iii. Compliance with monetary decisions
78. Finally, taking into account the applicable Regulations, the Chamber 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
pg. 17
REF. FPSD-10320
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
79. In this regard, the Chamber highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months.
80. Therefore, bearing in mind the above, the Chamber decided that the Player must pay the
full amount due (including all applicable interest) to the Club within 45 days of notification
of the decision, failing which, at the request of the Club, a restriction on playing in official
matches for the maximum duration of six months shall become immediately effective on
the Player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
81. The Player shall make full payment (including all applicable interest) to the bank account
provided by the Club in the Bank Account Registration Form, which is attached to the
present decision.
82. The Chamber 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
83. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
84. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
85. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 18
REF. FPSD-10320
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Club Universidad
Nacional (Pumas).
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Daniel Alves Da Silva, must pay to the Claimant the following amount:
- USD 159,677 as compensation for breach of contract, plus 5% interest p.a. as from 10
April 2024 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
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 restricted on any football-related activity up until the due
amounts are paid. The overall maximum duration of the restriction shall be of up to six
months.
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 art. 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
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REF. FPSD-10320
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 | [email protected] | T: +41 (0)43 222 7777
pg. 20