Labour Disputes
Texto da decisão
REF. FPSD-15487
Decision of the
Dispute Resolution Chamber
passed on 11 December 2024
regarding an employment-related dispute concerning the player
Kaua Fernando Amorim Dos Santos
BY:
Jorge GUTIÉRREZ (Costa Rica)
CLAIMANT:
Kaua Fernando Amorim Dos Santos, Brazil
Represented by Leonardo Welter Winck
RESPONDENT:
Al Rams, United Arab Emirates
pg. 2
REF. FPSD-15487
I. Facts of the case
1.
On 16 August 2023, the Brazilian player Kaua Fernando Amorim Dos Santos (hereinafter:
the Claimant, the Player or the Second Party) and the club Al Rams from the United Arab
Emirates (hereinafter: the Respondent, the Club or the First Party) concluded an employment
contract (hereinafter: the Contract) valid as from 12 August 2023 until 31 May 2024.
2.
In accordance with the Contract, the Respondent undertook to pay the Claimant a monthly
salary amounting to AED 5,000 and to provide him with a furnished house for a single
person, as well as one airline ticket in economy class to his country back and forth.
3.
In addition, articles 7.3 and 7.4 of the Contract read as follows:
“Article 7.3: The second party authorize and grant first party (the club) the right to early
terminate of the contract, before its expiring term, during summer transfer period or winter
transfer period or during its validity period, in this case the club shall pay to the player
compensation amount of termination Only [sic] one month's salary in such case the player shall
have no claim for damages or any of compensation under any name.
Article 7.4: In the event the contract is terminated by the second party, the second party pays an
amount of (100,000)-Hundred thousand UAE dirhams Only [sic] to the first party.”
4.
By correspondence dated 23 January 2024, the Respondent terminated the Contract with
the Claimant as follows:
“[…] Subject: Notice of termination of a contract
With reference to the above topic, and based on the decision of the technical committee of the
first football team, we inform you that it has been decided to terminate the contract with you as
of 23/01/2024.
Accordingly, you will be notified by the club’s financial affairs regarding the receipt of financial
dues according to the contract concluded between us. […]”
5.
On 30 January 2024, the Claimant and the Respondent concluded an agreement to
terminate the Contract (hereinafter: the Termination Agreement), which stipulated the
following:
“[…] To end the contract between the parties and signed on 16/08/2023 which expires on
31/05/2024 consensual. The second party also acknowledges that he has received all financial
dues to the contract in question is not entitled to claim the first party in any financial or other
benefits. […]”
pg. 3
REF. FPSD-15487
6.
Furthermore, on the same day, i.e. 30 January 2024, the Player signed a declaration
(hereinafter: the Financial Declaration) stipulating that he has received all his financial dues
until 23 January 2024 and that the Club is totally acquitted from any financial obligations
related to him in accordance with the Contract. The Financial Declaration also stated that
it is issued by the Player without any pressure or coercion from anyone.
7.
On 13 June 2024, the Claimant sent a default notice to the Respondent and requested
payment within 10 days of AED 30,000, corresponding to outstanding remuneration of AED
10,000, i.e. the monthly salaries of November-December 2023, as well as compensation
amounting to AED 20,000 for the early termination of the Contract without just cause.
8.
On 21 June 2024, the Respondent answered the Claimant’s default notice as follows:
“[…] 1- The agreement to terminate the aforementioned player's contract was signed by mutual
consent according to the agreement of the two parties in the attached agreement, and the player
received all his financial dues until the date of 23/01/2024 without any pressure or coercion
from anyone, and therefore the club is completely innocent of any financial obligations related
to the player. According to the contract signed between us, the player acknowledged that he has
received all the financial entitlements resulting from the contract in question and is not entitled
to claim any financial or other benefits from the club.
2- All contract termination dues and salaries for the months of November and December 2023
were paid to the player, and accordingly, the player signed the financial clearance and
agreement and acknowledged this.”
II. Proceedings before FIFA
9.
On 7 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
10. According to the Claimant, the Club terminated the Contract without just cause and he is
therefore entitled to his outstanding remuneration, as well as compensation.
11. The requests for relief of the Claimant were the following:
“[…] ordering the defendant club to pay the compensation provided for in article 17 of the RSTP
(Regulations on the Status and Transfer of Players) to the claimant athlete, in the amount of
20,000 Dirhams, for the early and unjustified termination of the employment contract agreed
between the parties, in addition to the amount of 10,000 (ten thousand) dirhams, corresponding
to the unpaid salaries of November and December 2023. which corresponds to 10,000 (ten
thousand) dirhams in unpaid remuneration. Everything amounts to 30,000 (thirty thousand)
pg. 4
REF. FPSD-15487
dirhams, under penalty of application of applicable sanctions, especially those provided for
in article 17.4 of the RSTP (Regulations on the Status and Transfer of Players).”
b. Position of the Respondent
12. According to the Respondent, it terminated the Contract in accordance with its article 7.3,
paying the Claimant one month’s salary as compensation.
13. In addition, the Respondent argued that the Contract was terminated mutually according
to the Termination Agreement and the Financial Declaration, where the Player has
acknowledged having received all his financial dues without any pressure or coercion from
anyone. In this regard, the Club noted that there is no outstanding remuneration for the
months of November-December 2023.
c. Replica of the Claimant
14. In his replica, the Claimant argued that article 7.3 of the Contract must be considered
abusive and the Club must therefore pay the residual value of the Contract as
compensation.
15. In addition, the Claimant argued that signing the Termination Agreement and the Financial
Declaration was the only option he had to return to his country and sign a new employment
contract with another club.
16. Lastly, the Claimant noted that the Respondent did not demonstrate proof of payment of
the amounts it requested. Therefore, the Claimant reiterated his initial request.
d. Duplica of the Respondent
17. Despite being invited to do so, the Respondent failed to provide its duplica.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the 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 7 August 2024 and submitted for
decision on 11 December 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.
pg. 5
REF. FPSD-15487
19. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (October 2024 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 club from the United Arab Emirates.
20. 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 (October 2024 edition),
and considering that the present claim was lodged on 7 August 2024, the June 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
21. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
22. Having established the competence and the applicable regulations, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
23. The Single Judge then moved to the substance of the matter, and took note that this is a
claim of the Player against the Club for outstanding remuneration of AED 10,000 and
compensation of AED 20,000 for the breach of the Contract without just cause.
24. In addition, the Single Judge noted the position of the Respondent, i.e. that it had
terminated the employment relationship with the Claimant in accordance with article 7.3
of the Contract.
pg. 6
REF. FPSD-15487
25. In this context, the Single Judge acknowledged that his task was to first determine, based
on the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the latter had a valid justification
for not having complied with its financial obligations.
26. The Single Judge stressed that, in the case at hand, the Respondent bore the burden of
proving that it indeed complied with the financial terms of the Contract concluded between
the parties. Nonetheless, the evidence provided by the Respondent, namely the tables with
the salaries of the first team players in November 2023, does not prove the payment of the
amounts claimed as outstanding by the Claimant. In particular, the documents in question
are not fully translated and merely indicate the salaries of the players of the Club in
November 2023 and the scheduled payment dates.
27. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the Contract concluded between the parties.
28. In continuation, the Single Judge acknowledged that he must then determine whether the
Club had just cause for terminating the Contract, and to decide the consequences thereof.
29. In this context, the Single Judge recalled the well-established jurisprudence of the Football
Tribunal, according to which only a breach or misconduct which is of a certain severity
justifies the termination of a contract. In other words, only when there are objective criteria
which do not reasonably permit the expectation that the continuation of the employment
relationship between the parties can continue, a contract may be terminated prematurely.
Hence, if there are more lenient measures which can be taken in order for an employer to
ensure the employee’s fulfilment of his contractual duties, such measures must be taken
before terminating an employment contract. A premature termination of an employment
contract can only ever be an ultima ratio measure.
30. With the above in mind, the Single Judge turned his attention to the documentation on file,
notably the correspondence from the Club dated 23 January 2024 by which it terminated
the Contract based on the decision of the technical committee, and noted that the Club
failed to demonstrate that the premature terminate of the Contract took place as an ultima
ratio measure. Therefore, the Single Judge concluded that the Club terminated the Contract
without just cause.
31. In continuation, the Single Judge assessed the content of the Termination Agreement and
the Financial Declaration. In this regard, the Single Judge outlined that the mere signature
of the said documents is not sufficient to ensure their enforceability.
32. In this respect, the Single Judge recalled that the Termination Agreement stated the
following:
pg. 7
REF. FPSD-15487
“[…] The second party also acknowledges that he has received all financial dues to the contract
in question is not entitled to claim the first party in any financial or other benefits. […]”
33. Notwithstanding the above, based on the Player’s allegations, the Single Judge determined
that the outstanding salaries corresponded to the months of November 2023, December
2023 and January 2024, for a total amount of AED 15,000. The Single Judge also took note
of the fact that the Club provided a proof of payment of AED 5,000, which corresponds to
one monthly salary, and two untranslated documents, contradicting the wording of the
Termination Agreement.
34. In this regard, the Single Judge concluded that the Respondent did not meet its burden of
proof of demonstrating that the outstanding salaries of the months of November 2023,
December 2023 and January 2024 have been paid, as no supporting documentation was
provided. In fact, the Single Judge reiterated that the Respondent only proved the payment
of one monthly salary instead of three as alleged by the Player.
35. Consequently, the Single Judge concluded that, despite the content of the Termination
Agreement and the Financial Declaration, the monthly salaries of December 2023 and
January 2024 remained outstanding.
ii. Consequences
36. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the Contract committed by the Respondent.
37. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are equivalent to the monthly
salaries of December 2023 and January 2024 under the Contract, i.e. AED 10,000. In fact,
the Single Judge took note that the Club remitted AED 5,000 to the Player as the
consequence of the triggering of article 7.3 of the Contract and considered that the said
amount corresponded to the monthly salary of November 2023.
38. 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 to the Claimant the amounts
which were outstanding under the Contract at the moment of its termination, i.e. AED
10,000 (i.e. AED 5,000 times 2 for the months of December 2023 and January 2024).
39. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Player by the Club in the case at stake. In doing so, the Single
Judge 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
pg. 8
REF. FPSD-15487
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.
40. In application of the relevant provision, the Single Judge held that he first of all had to clarify
as to whether the pertinent employment 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. In this regard, the Single Judge took
note of the wording of articles 7.3 and 7.4 of the Contract, which established that:
“Article 7.3: The second party authorize and grant first party (the club) the right to early
terminate of the contract, before its expiring term, during summer transfer period or winter
transfer period or during its validity period, in this case the club shall pay to the player
compensation amount of termination Only one month's salary in such case the player shall have
no claim for damages or any of compensation under any name.
Article 7.4: In the event the contract is terminated by the second party, the second party pays an
amount of (100,000)-Hundred thousand UAE dirhams Only to the first party.”
41. After analysing the content of the aforementioned articles, the Single Judge concluded that
they did not fulfil the criteria of reciprocity and proportionality, in line with the longstanding
jurisprudence of the Football Tribunal, and therefore could not be taken into account for
establishing the amount of compensation payable to the Claimant. In particular, the Single
Judge noted that articles 7.3 and 7.4 of the Contract are not reciprocal as they do not trigger
the same consequences for either party and that article 7.3 of the Contract is not
proportionate considering the residual value of the Contract and the principle of
contractual stability.
42. In addition, the Single Judge considered that, although the Player had agreed to the
liquidated damages clause, and there was no proof that he was subject to any undue
pressure to sign the Contract, article 7.3 of the Contract involved a structure that
disproportionately favoured the Club and gave it an easy way of terminating the Contract
at any moment. Therefore, the Single Judge concluded that there was not a balance of
bargaining power between the Club and the Player and that articles 7.3 and 7.4 of the
Contract should be considered null and void.
43. As a consequence, the Single Judge determined that the amount of compensation payable
by the Club to the Player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
44. Bearing in mind the foregoing as well as the claim of the Player, the Single Judge proceeded
with the calculation of the monies payable to the Player under the terms of the Contract
pg. 9
REF. FPSD-15487
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of AED 20,000 (i.e. the monthly salaries from February 2024 to
May 2024) serves as the basis for the determination of the amount of compensation for
breach of the Contract.
45. In continuation, the Single Judge verified as to whether the Player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the constant
practice of the DRC as well as art. 17 par. 1 lit. ii) 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 in connection with the player’s general
obligation to mitigate his damages.
46. In this respect, the Single Judge noted that the Player remained unemployed since the
unilateral termination of the Contract.
47. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables and in case there was mitigation. Since the foregoing
circumstances were not met in this case, the Single Judge decided that the Player is not
entitled to receive additional compensation.
48. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Club must pay the
amount of AED 20,000 to the Player, which was to be considered a reasonable and justified
amount of compensation for breach of the Contract in the present matter.
iii. Compliance with monetary decisions
49. 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.
50. 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.
51. 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
pg. 10
REF. FPSD-15487
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.
52. 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.
53. 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
54. 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.
55. 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.
56. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 11
REF. FPSD-15487
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kaua Fernando Amorim Dos Santos, is accepted.
2.
The Respondent, Al Rams, must pay to the Claimant the following amounts:
- AED 10,000 as outstanding remuneration.
- AED 20,000 as compensation for breach of contract.
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 of the ban shall
be of up to 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 art. 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
pg. 12
REF. FPSD-15487
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13