Labour Disputes
Texto da decisão
REF FPSD-4557
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Getterson
Alves dos Santos
BY:
DE WEGER, Frans (The Netherlands), Chairperson
AWAD ALTHEBITY, Khalid (Saudi Arabia), Member
SARTORI, Stefano (Italy), Member
CLAIMANT:
Getterson Alves dos Santos, Brazil
Represented by Henrique Richter Caron
RESPONDENT:
Al Ain FC, Saudi Arabia
Represented by Ali Abbes and Mohammed Rokbani
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I.
Facts of the case
1.
On 29 August 2021, the Brazilian player, Mr Getterson Alves dos Santos (hereinafter: the
player or the Claimant) and the Saudi club, Al Ain FC (hereinafter: the club or the Respondent)
concluded a termination agreement in connection to the employment relationship previously
maintained between them (hereinafter: the termination agreement).
2.
In accordance with article 4 of the termination agreement, the club undertook to pay the
player the total amount of USD 480,000 net, as follows:
a. USD 180,000 on 15 October 2021;
b. USD 150,000 on 31 October 2021; and
c. USD 150,000 on 30 November 2021.
3.
Additionally, article 4.1 of the termination agreement read as follows: “in case of nonpayment of any instalment mentioned in Article 4, the Club shall pay to the Player a penalty
equal to 20% of the overdue instalment, as well [as] interest of 5% per year”.
4.
By means of letter dated 1 December 2021 but sent on 3 December 2021, the player put the
club in default and granted it with a 10 days’ deadline to: (i) pay the total amount of USD
578,361.96, corresponding to the total remuneration under the termination agreement plus
the penalty and interest mentioned in article 4.1; and (ii) formally inform the Saudi Arabian
Football Federation (SAFF) of the termination of the employment relationship between them.
II. Proceedings before FIFA
5.
On 14 December 2021, 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
6.
In his claim, the player explained that the club had not paid him any of the instalments set
out in the termination agreement. Consequently, he requested to be awarded a total amount
of USD 578,361.96 “with interests”, broken down as follows:
a.
USD 180,000 as the first instalment of the termination agreement, plus USD 1,207.80 as
interest and USD 36,241.56 as penalty (i.e. subtotal of USD 217,449.36);
b.
USD 150,000 as the second instalment of the termination agreement, plus USD 699 as
interest and USD 30,139.80 as penalty (i.e. total of USD 180,838.80); and
c.
USD 150,000 as the third instalment of the termination agreement, plus USD 61,50 as
interest and USD 30,012.30 as penalty (i.e. total of USD 180,073.80).
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7.
Moreover, the player also claimed that the club should be ordered to: (i) “update the TMS
with the information related to the termination of the employment contract on 29 August
2021, not preventing him to be signed for a third club”; and (ii) “pay all the costs and fees,
as well as pay compensation to cover the player’s legal costs during this procedure in the
amount corresponding to 10%”.
8.
Finally, the player requested sporting sanctions to be imposed on the club as per article 12bis
of the FIFA Regulations on the Status and Transfer of Players (RSTP).
b. Position of the club
9.
In its reply, the club mentioned that its failure to pay the outstanding remuneration to the
player was due to “the financial crisis that occurred the Respondent since its relegation to the
second division and the impact of Covid-19 in its incomes”. Consequently, it argued that the
non-compliance is “due to a case of force majeure”.
10. In addition, the club held that the penalty claimed by the player is excessive and unfair,
especially when analysed together with the interest.
11. Based on the above, the club concluded that the player’s request for penalty should be
rejected, as well as his claim for legal costs.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 presented to FIFA on 14 December 2021 and submitted for
decision on 16 February 2022. Taking into account the wording of art. 34 of the October
2021 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.
13. Subsequently, the members of 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 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber 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.
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14. Subsequently, 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 Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 14 December 2021, the aforementioned
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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
16. Its competence and the applicable regulations having been established, 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 the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
17. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that the case at hand pertains to a claim for overdue payables in connection
to a termination agreement signed between the parties on 29 August 2021.
18. In this context, the Chamber acknowledged that It remained undisputed between the parties
that the amounts sought by the player were due by the club and remained outstanding. On
the other hand, the DRC observed that the club referred to the COVID-19 pandemic and the
consequent financial crisis in order to justify its default, as well as contested the
proportionality of the penalty clause.
19. Having established the above, the DRC firstly turned its attention to the club’s allegations as
to the COVID-19 pandemic. In doing so, it highlighted that FIFA issued a set of guidelines,
the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the
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most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
20. To this extent, the Chamber outlined that the FIFA COVID FAQ, in its question no. 1,
establishes that the Bureau of the FIFA Council did not determine that the COVID-19 outbreak
was a force majeure situation in any specific country or territory, or that any specific
employment or transfer agreement was impacted by the concept of force majeure; rather, it
provides that whether or not a force majeure situation (or its equivalent) exists in the country
or territory is a matter of law and fact, which must be addressed on a case-by-case basis vis
à vis the relevant laws that are applicable to any specific employment or transfer agreement.
21. Accordingly, the DRC observed that the club did not file together with its reply any
documentation pertaining to the question of the COVID-19 pandemic and the concept of
force majeure. Therefore, the Chamber determined that it failed to meet its burden of proof
in accordance with art. 13 par. 5 of the Procedural Rules.
22. Consequently, the DRC decided that the club’s argumentation in this regard could not be
upheld. Likewise, the Chamber found it noteworthy that the financial difficulties faced by the
club could not be considered per se as a valid reason not to perform contractual obligations.
Lastly, the Chamber noted that the termination agreement was executed between the parties
after the COVID-19 pandemic had already started and, as such, the DRC could not concur
with the club’s position that the economic effects of the pandemic prevented the club from
complying with its financial obligations.
23. On account of the abovementioned considerations and in line with the general legal principle
of pacta sunt servanda, the members of the Chamber unanimously decided that the club
should be liable to pay the player the outstanding remuneration sought.
24. Moreover, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award him interest at the rate of 5% p.a.
on the outstanding amounts as follows:
a. USD 180,000 as outstanding remuneration plus 5% interest per annum as from 16
October 2021 until the date of effective payment;
b. USD 150,000 as outstanding remuneration plus 5% interest per annum as from 1
November 2021 until the date of effective payment; and
c. USD 150,000 as outstanding remuneration plus 5% interest per annum as from 1
December 2021 until the date of effective payment.
25. In continuation, the DRC went on analysing the club’s position as to the penalty clause. In
this respect and after having carefully analysed the wording of clause 4.1 of the termination
agreement, the Chamber determined that the fixed penalty of 20% over the overdue amount
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is both reasonable and proportionate in accordance with the jurisprudence of the Football
Tribunal.
26. Therefore, the DRC decided that said penalty shall also be awarded to the player, in the total
amount of USD 96,000 (i.e. 20% of USD 480,000). The Chamber further confirmed that no
interest shall be calculated over the penalty in line with the general legal principle of ne bis in
idem.
27. Finally, the Chamber wished to outline that – in accordance with the information available in
the Transfer Matching System (TMS) – the player is already registered with a different club.
Consequently, it established that the player’s request for the club to update the TMS is moot.
28. By way of conclusion, the DRC concurred that the claim of the player should be partially
accepted.
ii. Art. 12bis of the Regulations
29. Subsequently, the DRC 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.
30. To this end, the Chamber confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due more than 30 days before, and granted the club a 10day deadline to cure such breach of contract.
31. Accordingly, the DRC 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
was met in the case at hand.
32. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above, the DRC decided to
impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
33. In this connection, the DRC highlighted that a repeated offence will be considered as an
aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
34. 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 concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
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35. In this regard, the DRC 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.
36. Therefore, bearing in mind the above, the DRC 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.
37. 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.
38. The DRC 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
39. 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.
40. 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.
41. Lastly, the DRC 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, Getterson Alves dos Santos, is partially accepted.
2.
The Respondent, Al Ain FC, has to pay to the Claimant, the following amounts:
- USD 180,000 as outstanding remuneration plus 5% interest p.a. as from 16 October 2021
until the date of effective payment;
- USD 150,000 as outstanding remuneration plus 5% interest p.a. as from 1 November
2021 until the date of effective payment;
- USD 150,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
- USD 96,000 as contractual penalty.
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
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