DRC Overdue Payables
Texto da decisão
REF FPSD-3305
Decision of the
Dispute Resolution Chamber
passed on 16 December 2021
regarding an employment-related dispute concerning the player Jonatan
Alvez
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
COLLINS, Angela (Australia), Member
DE JONG, Daan (The Netherlands), Member
CLAIMANT:
Jonatan Alvez, Uruguay
Represented by Horacio González Mullin
RESPONDENT:
SC Internacional, Brazil
Represented by CPB Associated Attorneys
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I.
Facts of the case
1.
On 10 July 2018, the Uruguayan player, Mr Jonatan Alvez (hereinafter: the player or the
Claimant), and the Brazilian club, SC Internacional (hereinafter: the club or the Respondent),
signed an agreement stipulating the essential terms of a future employment relationship
between them, to be valid from 11 July 2018 until 30 June 2019 (hereinafter: the first
preliminary agreement).
2.
In accordance with the “recitals” section of the first preliminary agreement, the player was
under contract with the Colombian club, Club Deportivo Popular Junior FC SA (hereinafter:
CD Junior), and was to be loaned to the club between 11 July 2018 and 30 June 2019.
3.
Additionally, pursuant to clause 1.1 of the first preliminary agreement, the club undertook to
pay the player a total remuneration of USD 750,000 net, payable in accordance with Brazilian
law and including eventual payments for the image rights of the player.
4.
The first preliminary agreement contains a jurisdiction clause referring to FIFA and the Court
of Arbitration for Sport (CAS) as competent courts, as well as the ordinary courts of the city
of Porto Alegre, Brazil.
5.
On 14 July 2018, the player and the club signed a second agreement in order to amend the
contractual terms of their future employment relationship (hereinafter: the second preliminary
agreement).
6.
The recitals of the second preliminary agreement established, inter alia, the following:
a. the player was under contract with CD Junior and was to be loaned to the club for the
period between 15 July 2018 and 30 June 2019;
b. the parties (i.e. the player, the club and CD Junior) were finalizing the negotiations for
the loan of the player, and wished to rectify the terms of the employment previously
detailed in the first preliminary agreement;
c. apart from the employment relationship, the club wished to explore the player’s image
rights in line with Brazilian law, entailing that the parties would conclude an image
rights agreement with a company to be indicated by the player.
7.
In accordance with clause 1 of the second preliminary agreement, the parties agreed to sign
an employment agreement for the aforementioned period and in line with the national law.
8.
Furthermore, pursuant to clause 1.3 of the second preliminary agreement, the club undertook
to pay the player USD 525,000 as salary under the aforementioned employment agreement,
payable in local currency, in equal and monthly instalments.
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9.
Additionally, pursuant to clause 5 of the second preliminary agreement, the parties also
agreed to execute an image rights agreement valid as from 15 July 2018 until 30 June 2019.
Alike in the recitals’ section, said provision also stipulated that the image rights would be paid
to a company indicated by the player, in the total amount of USD 225,000 (cf. clause 5.1 of
the preliminary agreement).
10. Clause 9 of the second preliminary agreement established that any amount due to the player
would be paid in local currency and taking into consideration the exchange rate provided by
the Brazilian National Bank for the day before the start of the loan of the player from CD
Junior to the club.
11. The second preliminary agreement also contains a jurisdiction clause referring to FIFA and
CAS as competent courts, as well as the ordinary courts of the city of Porto Alegre, Brazil.
12. On 24 July 2018, the player and the club concluded a federative contract valid as from 15
July 2021 until 30 June 2019 in the standard form of the Confederação Brasileira de Futebol
(CBF) (hereinafter: the federative contract).
13. According to the federative contract, the club undertook to pay the player a monthly salary
of BRL 193,675.82.
14. The federative contract bears no jurisdiction clause.
15. On 14 November 2018, the player, the club and the company “Jonatan Alvez Agenciamento
de Publicidade Eireli” (hereinafter: the company) concluded a “Private Instrument of Licensing
to Use Image, Voice, Professional Name and Sporting Nickname of Professional Soccer Player”
valid as from the date of signature until 30 June 2019 (hereinafter: the image rights
agreement).
16. The image rights agreement, in its recitals’ session, stated inter alia that the company was
indicated by the player as the holder of the rights over his image, voice, professional name
and sporting nickname.
17. According to clause 2 of the image rights agreement, the club undertook to pay to the
company a total net amount of BRL 870,750, “for the license to use the rights of image,
voice, professional name and/or sporting nickname”.
18. Clause 8 of the image rights agreement read as follows (freely translated to English by the
club):
“Through the execution of this agreement, the obligations assumed in the form of [the
second preliminary agreement] that are related to the license herein agreed in relation to the
period between 15/07/2018 and 30/06/2019, since all the conditions herein provided,
transacted or consolidated portray the full content of what was agreed regarding the rights
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to the image, voice, professional name and sporting nickname of [the player] in the
contractual period”.
19. According to clause 9 of the image rights agreement, the jurisdiction for resolving disputes
refers to the courts on the city of Porto Alegre, Brazil on an exclusive basis.
20. For the sake of completeness, the relevant clause reads as follows (freely translated to
English):
”The parties elect the local court of the city Porto Alegre – RS as competent to hear any
eventual dispute or controversy arising from this contract, expressly waiving any other
however privileged it may be”.
21. On 30 June 2019, the player and the club signed a settlement agreement in order to establish
the outstanding amounts due by the club to the player under the federative contract
(hereinafter: the first settlement agreement).
22. In accordance with clause 2 of the first settlement agreement, the club undertook to pay the
player the total amount of BRL 211,534.08, payable in 20 monthly instalments of BRL
10,576.70 each due by the 25th day of each month starting on 25 July 2019 and finishing on
25 February 2021.
23. Additionally, clause 2.1 of the first settlement agreement stipulated the player’s banking data
for the pertinent payments.
24. According to clause 9 of the first settlement agreement, the jurisdiction for resolving disputes
refers to the courts on the city of Porto Alegre. Said clause read as follows (freely translated
to English): ”The parties elect as competent to hear the disputes arising from this contract,
the labour courts of the city Porto Alegre – RS”.
25. Also on 30 June 2019, the player, the club and the company signed a second settlement
agreement in order to establish the outstanding amounts due by the club to the player under
the image rights agreement (hereinafter: the second settlement agreement).
26. In accordance with clause 2 of the second settlement agreement, the club undertook to pay
the company the total amount of BRL 379,581.25, payable in 20 monthly instalments of BRL
18,979,06 each due by the 25th day of each month starting on 25 July 2019 and finishing on
25 February 2021.
27. Additionally, clause 2.1 of the second settlement agreement stipulated that the payments
therein established should be conditioned upon the issuance of the pertinent invoices by the
company containing the relevant banking data for payment.
28. The second settlement agreement bears no jurisdiction clause.
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29. On 8, 19 March and 27 April 2020, the regional government of the state of Rio Grande do
Sul, Brazil issued directives addressing the consequences of the state of public calamity and
establishing sanitary measures in order to prevent and fight the COVID-19 outbreak.
30. On 15 and 18 March 2020, the CBF and the Confederación Sudamericana de Fútbol
(CONMEBOL), respectively, decided to suspend the national and continental competitions
until further notice.
31. On 20 March 2020, the Brazilian federal government issued the Legislative Decree no. 6/2020
recognizing the “the occurrence of a state of public calamity effective until December 31,
2020”.
32. On 26 February 2021, the player put the club in default and granted it with a 10 days’
deadline in order to proceed the payment of 19 out of the 20 the instalments due under both
the first and the second settlement agreements. In accordance with the player, the
outstanding amount totalled BRL 561,545.
33. On 17 March 2021, the player sent the club a second default notice and requested payment
of additional BRL 29,570.33 within the following 10 days, corresponding to the last
instalments that fell due under the first and the second settlement agreements – which were
not addressed by the previous correspondence of 26 February 2021.
34. On 9 August 2021, the regional government of the state of Rio Grande do Sul, Brazil issued
a new decree inter alia authorizing sporting activities to resume.
II. Proceedings before FIFA
35. On 13 August 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
36. In his claim, the player referred to the settlement agreements signed between the parties and
maintained that the club failed to pay the full amount therein established. Consequently, the
player requested to be awarded his outstanding remuneration, amounting to BRL 591,115.33
plus 5% interest p.a. as from the due dates until the date of effective payment.
37. Additionally, the player also claimed that sporting sanctions should be imposed on the club
in line with art. 12bis of the FIFA Regulations on the Status and Transfer of Players (RSTP).
b. Reply of the club
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38. First and foremost, the club referred to the content of the image rights agreement in
combination with the second settlement agreement. Accordingly, the club held that: (i) the
player has no standing to sue to make requests on behalf of the company; and (ii) the Football
Tribunal is not competent to hear this part of the claim, related to the image rights owned
by the company.
39. Consequently, the club stressed that the player’s claim should be ruled partially inadmissible.
40. As to the substance, the club provided proof of payments of: (i) 5 instalments of the first
settlement agreement, paid respectively on 25 July 2019, 26 August 2019, 25 September
2019, 1 November 2019 and 02 December 2019; and (ii) 2 instalments of the second
settlement agreement, paid respectively on 25 July 2019 and 26 August 2019.
41. Subsequently, the club informed that it faced a force majeure situation in Brazil due to the
pandemic, which was classified as a state of public calamity by the national authorities. In this
regard, the club claimed that the national law should be taken into consideration to address
the matter. Moreover, the club made reference to the devaluation of the national currency
and to the financial crisis suffered; concluding that it has always acted in good faith towards
the player.
42. In light of the above, the club requested the recognition of a situation of force majeure in
order “to not condemn the Respondent to pay the relevant interests on the amounts claimed
by the Claimant, taking into account article 103, paragraph 2 of the Swiss Code of
Obligations”. Alternatively, the club requested the payments to be made to a player’s bank
account in Brazil to avoid “the Respondent’s excessive onerosity to remit amount to abroad”
(cf. clause 2.1 of the first settlement agreement).
43. In addition, the club referred to clause 2.1 of the second settlement agreement and pointed
out that the company did only provide the invoices regarding the first 4 instalments of the
second settlement agreement. Consequently, the club argued that – in any scenario – it
should not be liable to proceed the payment of any outstanding amount due to company’s
breach of contract (i.e. venire contra factum proprium situation).
44. The club’s requests for relief were as follows:
a) to receive the present Response and its Annexes, once they are being timely filed;
b) to recognize that it has no jurisdiction and competence to a analyze part of the
Claimant’s claim regarding the Settlement Agreement of Image Rights owned by the
Company;
c) to recognize that it is not in position to analyze whether or not the amount of BRL
379.581,25 is due to the Company;
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d) regarding the applicable law, to consider the Brazilian law in the present case;
e) alternatively, in the event that the FIFA DRC understands that the Brazilian law is not
applicable, to accept the relevant Brazilian law mentioned by the Respondent as proof
of the existence of State of Public Calamity in Brazil and in Rio Grande do Sul (state
where the Respondent has its headquarters) and, as consequence, existence of force
majeure situation;
f) to recognize the existence of a situation of force majeure in the present case;
g) to not condemn the Respondent to pay any interests on the amounts due to the
Claimant, taking into account the article 103, paragraph 2, of Swiss Code of
Obligations;
h) in the event that the preceding requests are not granted by FIFA, FIFA shall consider
the amounts eventually due to the Claimant shall be paid according to clause 2.1 of
the Settlement Agreement of the Employment Relationship in the Claimant’s bank
account in Brazil, as follows: Banco Banrisul (041), Branch 0100, Bank Account n.
3540760909. Additionally, in eventual case that the Respondent is condemned to pay
any amount to the Claimant regarding the Settlement Agreement of Image Rights, it
shall be paid in the bank account of the Player (or of the Company) in Brazil, avoiding
them the Respondent’s excessive onerosity to remit amount to abroad”.
i)
in the event that FIFA understand that any value in connection to the Settlement
Agreement of Employment Relationship shall be paid by the Respondent to the
Claimant, FIFA must consider and deduct the amounts already paid by the Respondent
to the Claimant, as demonstrated in Annex 02;
j)
in the event that FIFA understand that any value in connection to the Settlement
Agreement of Image Rights shall be paid by the Respondent to the Claimant, FIFA must
consider and deduct the amounts already paid by the Respondent to the Claimant, as
demonstrated in Annex 03;
k) to recognize the existence of a venire contra factum proprium situation, reason why
neither the player nor the company has the right to charge any of the instalments that
the Company did not send to the Respondent the relevant invoice;
l)
to dismiss the Claimant’s claim regarding the instalments (regarding the 5th to 20th
instalments) in which the Company did not send the relevant invoice;
m) alternatively, in the event that FIFA understand that the Player is entitled to receive the
instalments that the Company did not send the relevant invoices, to the consider that
these amounts shall only be paid after the Respondent receive the invoices, reason why
Internacional shall not be condemned to pay any interests regarding these headings
until it does not receive the correspondent invoices.
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c. Rejoinder of the player
45. In its rejoinder, the player opposed the club’s allegations as to the partial inadmissibility of
the claim. In this respect, the player pointed out, inter alia, the following:
a. the signature of the image rights agreement was a strategy adopted by the club in
order to pay less taxes, but it was indeed intrinsically related to the employment
relationship;
b. the financial conditions of the employment relationship initiated between the parties
were established in the first preliminary agreement, which established that the total
remuneration due to the player amounted to USD 750,000;
c. the company bears the same name of the player and was exclusively created for the
payment of the image rights by the club, with the clear intention to pay less taxes.
Moreover, the company has its seat in Brazil and shares the same address of the player;
d. the image rights agreement has the same term as the federative contract, and the
description of the services provided by the player is generic. Likewise, the player is a
foreigner and its low public notoriety does not justify the quantum paid by the club.
46. With due consideration of the above, the player concluded that the claim is entirely
admissible.
47. As to the substance, the player acknowledged receipt of the first 5 instalments of the first
settlement agreement and the 2 first instalments of the second settlement agreement.
Therefore, the player amended his claim in order to request the total amount of BRL
500,273.53 plus the relevant interest, broken down as follows:
a. BRL 105,767, corresponding to 15 instalments of the first settlement agreement; and
b. BRL 341,623.08, corresponding to 18 instalments of the second settlement agreement.
48. In continuation, the player challenged the club’s allegations as to the force majeure situation.
In particular, the player highlighted that: (i) both the settlement agreements were signed in
June 2019, therefore the club was already in default approximately nine months before the
COVID-19 outbreak; (ii) the club did not provide any proof of its impossibility to proceed the
relevant payments to the player; and (iii) notwithstanding the club’s breach of contract, the
player had honoured his contractual duties and should be duly remunerated.
49. Finally, the player reiterated his requests for relief.
d. Final comments of the club
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50. In its final comments, the club clarified that the national law expressly authorizes payments
up to 40% of a player’s remuneration to be made as image rights to a company (such as it
was made in the case at stake).
51. Moreover, the club pointed out that the player was never forced nor compelled to create a
company and/or to sign any supervening document i.e. the image rights agreement. What is
more, the club informed that the first preliminary agreement was signed in the end of the
transfer window and was subsequently cancelled and rectified by the second preliminary
agreement. In continuation, the club submitted examples of the use of the player’s image
rights in its official channels and social media.
52. Based on the above, the club reiterated its argumentation as to the Football Tribunal’s lack
of jurisdiction to adjudicate over the image rights agreement, hence over the second
settlement agreement.
53. Having established the above, the club entered into the substance of the matter, repeated
and complemented its allegations as to the force majeure situation faced in the context of
the COVID-19 pandemic. In this respect, the club provided further evidence of the economic
impacts faced by the club against this background.
54. Subsequently, the club acknowledged that the player did not contest its argumentation as to
the payment to a Brazilian account. Likewise, the club outlined that the player did not provide
evidence that the relevant invoices under the second settlement agreement were properly
issued and delivered.
55. Lastly, the club reiterated its requests for relief.
III. Considerations of the Dispute Resolution Chamber
a. Competence
56. 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 13 August 2021 and submitted for decision
on 16 December 2021. 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.
57. 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 – in principle – competent to deal with the matter at stake, which
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concerns an employment-related dispute with an international dimension between an
Uruguayan player and a Brazilian club.
58. At this point and after a thorough analysis of the documentation on file, the DRC highlighted
that its competence to adjudicate over the first settlement agreement (i.e. in connection with
the federative contract) was not opposed by the club, hence was tacitly accepted.
59. Nevertheless, the Chamber noted that the club challenged its competence to hear the dispute
at stake insofar as the claim refers to the second settlement agreement (i.e. in connection
with the image rights agreement). In particular, the Chamber observed that the club argued
that the image rights agreement – and consequently the second settlement agreement – has
a civil nature and was concluded in compliance with the requirements set out in Brazilian law.
Accordingly, the club argued that: (i) the Football Tribunal does not have jurisdiction to
entertain this part of the matter; and (ii) the player does not have standing to sue on behalf
of the company.
60. On the other hand, the Chamber was also observant of the player’s argumentation as to the
admissibility of the claim, especially regarding the content of the first preliminary agreement
and the alleged employment-related nature of the image rights agreement. Furthermore, the
DRC also took due consideration of the player’s allegations as to the tax liability and the
inconsistency between the player’s public notoriety and the amounts paid as image rights.
61. In view of this dissent between the parties, the DRC first of all emphasised that in accordance
with art. 22 caput of the Regulations, FIFA is competent to hear employment-related disputes
between a player and a club with an international dimension “without prejudice to the right
of any player (…) or club to seek redress before a civil court for employment related disputes”.
62. The Chamber also recalled that parties may freely agree to give jurisdiction to a civil court,
and that such choice shall always prevail. In fact, the Chamber, recalling its jurisprudence as
well as the CAS’ jurisprudence in this regard, highlighted that even if the choice of law does
not specify which courts are competent (e.g. a generic reference is made to a region/city),
FIFA is not competent when the parties have exclusively agreed upon the jurisdiction of a civil
court. In addition, the Chamber emphasized that art. 22 caput of the Regulations, in
comparison to the wording of lit. b) and c) of the same article, provides for a clearer hierarchy
in favour of contractual autonomy.
63. The DRC moreover found it noteworthy that, in accordance with its solid jurisprudence, the
interpretation of contracts shall be made with consideration of the parties’ common intention
and in line with the requirements of good faith.
64. With the above in mind, the Chamber turned its attention to the documentation on file and,
specifically, to the wording of the image rights agreement and the second settlement
agreement. In doing so, the DRC duly noted that, as per clause 9 of the image rights
agreement, the player and the club had unambiguously and exclusively decided that any
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dispute arising from said contract would be submitted to the ordinary courts of the city of
Porto Alegre, Brazil.
65. In continuation, the Chamber went on analysing the content of the second settlement
agreement and was of the opinion that it shared an umbilical connection with the image
rights agreement, since it was concluded between the parties in order to settle the
outstanding image rights due by the club to the player. In this respect, the DRC outlined that
the second settlement agreement was also signed between the club, the player and the
company, as well as it confirmed the main obligations previously agreed between them as to
the use of the player’s image rights.
66. In particular, the DRC founded it crucial that in second settlement agreement the parties: (i)
expressly ratified the obligations undertaken under the image rights agreement; (ii) did not
include any provision establishing that such contract superseded their previous understanding
or constituted the entire agreement between them; and, especially, (iii) did not expressly
deviate from the jurisdiction clause added to the image rights agreement.
67. In view of all the above and by considering the specific circumstances of the case sub judice,
the DRC concluded that the jurisdiction clause included in the image rights agreement should
also be considered for the analysis of the second settlement agreement insofar as it was not
contradicted nor revoked. In other words, the members of the Chamber concurred that, by
not deviating from its previous choice of forum, the parties confirmed their intention to
submit any potential dispute arising in connection with the player’s image rights to the
ordinary courts of the city of Porto Alegre, Brazil – on an exclusive basis.
68. Therefore, the Chamber was satisfied with the conclusion that it lacked jurisdiction to decide
upon both the image rights agreement and the second settlement agreement. Put differently,
the DRC unanimously decided that the player’s claim is partially inadmissible insofar as it
refers to the second settlement agreement.
69. For the sake of completeness, the Chamber clarified that the abovementioned conclusion
rendered moot any discussion that could arise as regards to: (i) the employment-related
nature of the second settlement agreement (and the Football Tribunal’s jurisprudence on the
matter); and (ii) the player’s standing the sue on behalf of the company. As such, the Chamber
did not enter into that analysis and makes no finding on it.
b. Applicable legal framework
70. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 13 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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c. Burden of proof
71. 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).
d. Merits of the dispute
72. 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
73. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that – apart from the requests for relief in connection with the
second settlement agreement – the player further requested outstanding remuneration
amounting to BRL 105,767, corresponding to 15 instalments of the first settlement
agreement.
74. On the other hand, the Chamber observed that the club acknowledged the debt but referred
to the COVID-19 pandemic to justify its default. In doing so, the club claimed that no interest
should be awarded in the case at hand.
75. To this extent, the DRC firstly wished to highlight 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 most relevant questions in
connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
76. Analysing the concept of force majeure situation, based on the content of the FIFA COVID19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that COVID-19 was a
situation of force majeure in a country or territory specific, or that any specific employment
or transfer agreement was affected by the concept of force majeure. In other words, in a
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given dispute, it is up to the party invoking force majeure to establish the existence of said
event under the applicable law / regulations, as well as the consequences deriving from it.
The analysis of whether a force majeure situation existed must be considered on a case-bycase basis, taking into account all relevant circumstances.
77. Against this background, the Chamber highlighted that the amounts claimed by the player
were already outstanding before the COVID-19 outbreak. What is more, the DRC outlined
that the parties had already engaged in good faith negotiations, which resulted in the
conclusion of the first settlement agreement.
78. In light of the above, the DRC deemed that any further unilateral variation of the contracts
would not only be unreasonable and disproportionate, but also lacked legal and regulatory
basis. Consequently, the members of the Chamber unanimously decided that the club’s
argumentation in this regard should be entirely rejected.
79. It follows, in the Chamber’s opinion, that the player shall be awarded the outstanding
remuneration sought in line with the general legal principle of pacta sunt servanda.
80. Taking into consideration the player’s request as well as the constant practice of the Chamber
in this regard, the latter also decided to award him interest at the rate of 5% p.a. on the
outstanding amounts as from the day in which each instalment fell due until the date of
effective payment.
81. Finally and for the sake of completeness, the Chamber wished to outline that the
arrangement involving the payment of the amounts due by the club – and specifically the
player’s bank account to be used for this purpose – is to be considered as a matter of
execution of the decision. Therefore, the DRC stressed that said adjustment is up to a consent
between the parties, provided that the club’s liability under the first settlement agreement
(and the compliance with the decision) are dully met.
ii. Art. 12bis of the Regulations
82. Having established the above, 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.
83. To this end, the Chamber 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.
84. Accordingly, the DRC confirmed that the club had delayed a due payment without a prima
facia contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations
was met in the case at hand.
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85. 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.
86. In this connection, the DRC 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.
iii. Compliance with monetary decisions
87. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
88. 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.
89. 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.
24bis par. 2, 4, and 7 of the Regulations.
90. 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.
91. 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. 24bis par. 8 of
the Regulations.
e. Costs
92. 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.
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REF FPSD-3305
93. 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.
94. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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REF FPSD-3305
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jonatan Alvez, is partially accepted insofar it is admissible.
2.
The Respondent, SC Internacional, has to pay to the Claimant, the following amounts:
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26
December 2019 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 January
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 February
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 March
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 April
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 May
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 June
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 July 2020
until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 August
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26
September 2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 October
2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26
November 2020 until the date of effective payment;
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26
December 2020 until the date of effective payment;
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REF FPSD-3305
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 January
2021 until the date of effective payment; and
- BRL 10,576.70 net as outstanding remuneration plus 5% interest p.a. as from 26 February
2021 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. 24bis 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 art. 24bis par. 7 and 8 and art. 24ter 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-3305
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
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