Labour Disputes
Texto da decisão
REF FPSD-7318
Decision of the
Dispute Resolution Chamber
passed on 24 October 2022
regarding an employment-related dispute concerning the player Lucas
Alves de Araujo
BY:
Daan de Jong (the Netherlands)
CLAIMANT:
Lucas Alves de Araujo, Brazil
Represented by Meier Sadiku Law Ltd
RESPONDENT:
Al Tai, Saudi Arabia
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REF FPSD-7318
I. Facts of the case
1.
On 15 July 2021, the Brazilian player, Lucas Alves de Araujo (hereinafter: the Claimant),
and the Saudi Arabian club, Al Tai (hereinafter: the Respondent) signed an employment
contract valid as from the date of signature until 30 June 2023.
2.
On 26 January 2022, the Claimant and the Respondent signed a settlement agreement
(hereinafter: the Agreement) to terminate the aforementioned employment contract by
mutual consent.
3.
In accordance with art. 2 of the Agreement, the Respondent undertook to pay to the
Claimant USD 120,000 as a “down payment” by no later than 31 January 2022.
4.
In accordance with art. 3 of the Agreement, the Respondent undertook to pay the
Claimant USD 120,000 by no later than 15 March 2022.
5.
In accordance with art. 5 of the Agreement, the Respondent undertook to pay the
Claimant a total amount of USD 550,000, in monthly instalments of USD 55,000 between
July 2022 until April 2023. The payment dates for said amounts were on the 30th day of
each respective month, with the exception of February 2023, falling due on the 28 th of
said month.
6.
In accordance with art. 6 of the Agreement, the Respondent undertook to pay the
Claimant a penalty of 5% of any amounts for which payment had not been effected by
the tenth day of the following respective month of the due date.
7.
The Respondent paid the first two instalments of USD 120,000 each on time; these
amounts remained uncontested by the Claimant.
8.
Based on the evidence on file, the Claimant did not put the Respondent in default on any
of the allegedly unpaid amounts.
II. Proceedings before FIFA
9.
On 1 September 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
10. According to the Claimant, the Respondent failed to comply with the financial obligations
under the Agreement by not paying two instalments in the amount of USD 55,000 each,
which fell due on 30 July 2022 and 30 August 2022 respectively.
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11. The Claimant, thus, requested payment of USD 110,000 in accordance with the principle
of pacta sunt servanda.
12. Furthermore, the Claimant requested interest of 5% p.a. as from the respective due dates
until the date of effective payment.
13. The Claimant also requested legal fees to be borne by the Respondent.
b. Position of the Respondent
14. In its short reply to the claim, the Respondent outlined that it refused to pay the amounts
stipulated under the Agreement because the Claimant signed a new contract with
another club and mitigated his damages.
15. The Respondent, therefore, requested a reduction of any payments due under the
Agreement by reference to the salary to which the Claimant is entitled under the new
employment contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 1 September
2022 and submitted for decision on 24 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.
17. 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), he 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 Arabian club.
18. 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 July 2022 edition
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of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
19. 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, he 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
20. Its competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he 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 it considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
non-payment of the two instalments of USD 55,000 each, which fell due on 30 July 2022
and 30 August 2022 respectively.
22. In this context, the Single Judge took note of the fact that the Respondent confirmed not
having paid the amounts claimed as outstanding by the Claimant, i.e. USD 110,000. Thus,
the Single Judge acknowledged that his task was to determine, based on the evidence
presented by the parties, whether the Respondent had a valid justification for not having
complied with its financial obligations under the Agreement.
23. In this respect, the Single Judge took note of the Respondent’s argumentation that the
Claimant had signed a new contract and thus mitigated his damages, thereby
undermining his entitlement to the amounts stipulated under the Contract.
24. Regarding this argumentation, the Single Judge wished to point out that the principle of
mitigation does not apply in cases concerning overdue payables, in accordance with
art. 12bis of the Regulations, and could therefore not be used in the present case to
detract from the obligation to honour the terms freely entered into under the Agreement.
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25. Furthermore, the Single Judge noted that the Agreement contained no provision
stipulating that the amounts agreed thereunder could be set off against any amounts to
which the Claimant may be entitled under another employment contract subsequently
entered into.
26. Therefore, the Single Judge concluded that, in the absence of a valid justification for
defaulting on the payments stipulated under the Agreement, the Respondent was held
liable to pay the Claimant the outstanding amount of USD 110,000, in line with the general
legal principle of pacta sunt servanda.
27. Lastly, and for the sake of completeness, the Single Judge wished to point out that the
Claimant would have been entitled to a penalty of 5% applicable on the amounts which
were established as having remained unpaid more than 10 days, i.e. the instalment of
USD 55,000 which fell due on 30 July 2022, in accordance with art. 6 of the Agreement;
however, as the Claimant did not request the application of said penalty clause in his
claim, in line with the general legal principle of ne ultra petita, the Single Judge decided
not to award said amount.
ii. Consequences
28. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
29. The Single Judge recalled that the amount claimed by the Claimant, i.e. two instalments
of USD 55,000 falling due on 30 July 2022 and 30 August 2022 respectively, totalling
USD 110,000, was confirmed by the Respondent as having remained unpaid.
30. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay the Claimant
USD 110,000 as an outstanding amount.
31. In addition, taking into account into account the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from the following dates:
-
On the amount of USD 55,000 as from 31 July 2022 until the date of effective
payment;
On the amount of USD 55,000, as from 31 August 2022 until the date of effective
payment.
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iii. Compliance with monetary decisions
32. 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 his 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.
33. 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.
34. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days
of notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
35. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
36. 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
37. 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.
38. 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.
39. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lucas Alves de Araujo, is partially accepted.
2.
The Respondent, Al Tai, has to pay to the Claimant the following amount(s):
- USD 55,000 as outstanding amount plus 5% interest p.a. as from 31 July 2022
until the date of effective payment;
- USD 55,000 as outstanding amount plus 5% interest p.a. as from 31 August 2022
until the date of effective payment.
▪
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
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.
6. 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.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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