Labour Disputes
Texto da decisão
REF. FPSD-13508
Decision of the
Players’ Status Chamber
passed on 20 June 2024
regarding a contractual dispute concerning the player Adriano Luis Amorim
Santos
COMPOSITION:
Javier VIJANDE PENAS (Argentina), Chairperson
Jesús ARROYO (Spain), Member
Christina LABRIE (USA), Member
CLAIMANT / COUNTER-RESPONDENT:
Leixões SC, SAD, Portugal
Represented by Tannuri Ribeiro Advogados
RESPONDENT / COUNTERCLAIMANT:
Coimbra Esporte Clube Ltda, Brazil
Represented by Luiz Fernando Pimenta Ribeiro
pg. 2
REF. FPSD-13508
I.
Facts of the case
Parties to the dispute
1.
2.
The parties to this dispute are:
•
the Portuguese club Leixões SC, SAD (hereinafter: Leixões or Claimant / CounterRespondent), affiliated to the Portuguese Football Federation (hereinafter: FPF);
and
•
the Brazilian club Coimbra Esporte Clube Ltda (hereinafter: Coimbra or
Respondent / Counterclaimant), affiliated to the Brazilian Football Confederation
(hereinafter: CBF).
Leixões and Coimbra are hereinafter jointly referred to as the Parties.
First loan from Coimbra to Leixões
3.
On 5 August 2022, the Parties entered into a first loan agreement (hereinafter: First Loan
Agreement) concerning the services of the Brazilian player Adriano Luis Amorim Santos
(hereinafter: Player).
4.
According to clause 1.1 of the First Loan Agreement, the Player’s services were loaned by
Coimbra to Leixões free of charge from 1 August 2022 until 30 June 2023.
5.
Clause 1.4 of the First Loan Agreement reads as follows (freely translated into English by
Leixões):
“1.4 During the period of temporary assignment, [Leixões] is obliged to enter into a
sports employment contract with the PLAYER, whose annual remuneration (gross) in the
amount of EUR 12.169,98 (twelve thousand hundred sixty-nine euros and ninety-eight
cents), which corresponds to the amount of R$ 64.824,41 (sixty-four, eight hundred
twenty-four reais and forty-one cents), plus the charges levied on the salary amounts in
Portugal to be paid by [Coimbra], via bank transfer.
1.4.1. As of 01/10/2021, [Leixões] undertakes to pay the PLAYER as a subsistence
allowance in the amount corresponding to EUR 300.00 (three hundred euros) per
month”.
6.
Clause 2 of the First Loan Agreement reads inter alia as follows (freely translated into
English by Leixões):
“2.1 During the period of the temporary transfer, [Leixões] will hold the right of first
refusal to cover offers from third-party clubs, which [Coimbra], with the PLAYER’s
pg. 3
REF. FPSD-13508
consent, may wish to accept, for the definitive transfer of the federative registration right
and financial rights related to the Player.
2.2. Regarding the right of first refusal, and without prejudice to the provisions of the
third clause, the following shall be observed:
(i) [Coimbra] will send a letter (by email) to [Leixões], informing them of its intention to
accept a proposal submitted by a third-party club, attaching the said proposal.
(ii) [Leixões] will have a period of 48 (forty-eight) hours, from the date of receipt of the
letter from [Coimbra], to respond in writing to [Coimbra] with its unequivocal intention
to exercise the right of first refusal and match the third-party club’s offer, under identical
conditions.
(iii) If [Leixões] responds to [Coimbra] with its unequivocal intention to exercise the right
of first refusal and match the third-party club’s offer, under identical conditions,
[Leixões] is obliged to fulfil all the conditions expressed in the offer to [Coimbra] and
the Player.
(iv) In case [Leixões] expresses its unequivocal intention to exercise the right of first
refusal and match the third-party club’s offer, under identical conditions, the Player
hereby expresses his consent to continue being bound to [Leixões], this time definitively,
committing to renew the said sports employment contract, which shall be valid for the
following two Portuguese sports seasons, namely, the 2024/2025 and 2025/2026 sports
seasons, under the precise terms and conditions stipulated therein, so that the right of
first refusal exercised by [Leixões] may take effect.
(v) If [Leixões] responds to [Coimbra] that it does not exercise the right of first refusal
or if the 48 (forty-eight) hour period referred to in ‘2.2.(ii)‘ above elapses without response
from [Leixões], it is obliged to [Coimbra] and the Player to: (a) immediately terminate
the employment contract maintained with the Player, without any burden, as soon as
requested; and (b) issue all necessary documentation for the release of the Player and
his federative registration.
(vi) If the situation described in ‘2.2.(v)’ above occurs and the obligations “(a)” and “(b)”
(previously and anticipatorily assumed by [Leixões] in this Agreement) are not fulfilled,
[Leixões] shall indemnify [Coimbra] and the PLAYER for any losses and damages
possibly sustained. […]”.
7.
On 8 August 2022, Leixões and the Player entered into an employment contract valid from
1 August 2022 until 30 June 2023 (hereinafter: Employment Contract).
8.
According to clause 3 of the Employment Contract, Leixões undertook to pay the Player a
gross monthly remuneration of EUR 705, payable by the 5th day of each subsequent month.
pg. 4
REF. FPSD-13508
Second loan from Coimbra to Leixões
9.
On 13 July 2023, the Parties entered into a second loan agreement, this time for the period
from 14 July 2023 to 30 June 2024 (hereinafter: Second Loan Agreement).
10. The terms of the First and the Second Loan Agreement are identical.
Option agreement between Coimbra and Leixões
11. On 19 July 2023, the Parties entered into an agreement entitled “Option Agreement for
Acquisition and Other Covenants” (hereinafter: Option Agreement).
12. The recitals section of the Option Agreement reads as follows (freely translated into English
by Coimbra):
“a) The Parties entered into the [Second Loan Agreement];
b) Through this Agreement, the Parties intend to define: (i) the option for acquisition by
[Leixões] from [Coimbra] of the federative rights and 50% (fifty percent) of the economic
rights related to the PLAYER, for the total, net, certain, and payable amount of EUR
400,000.00 (four hundred thousand euros), as defined in this Agreement; and (ii) the
maintenance of [Coimbra]'s participation in 50% (fifty percent) of the economic rights
related to the PLAYER, in the event that [Leixões] exercises the acquisition option
referred to in this Agreement.
c) For the purposes of the obligations agreed in this Agreement, ‘economic rights’ include
all pecuniary or other compensations (such as, for example, fixed transfer value, values
conditioned on the verification of any condition, sell-on fees, capital gains, values set in
exchange for players, friendly matches, payment of the penalty clause by the PLAYER
himself, by a third club, federation, or league, etc), whether present, future, and/or
conditional, effectively received by [Leixões], after deduction of any amount to be borne
or charged to [Leixões] as solidarity mechanism (including the retention of the solidarity
mechanism performed by the third acquirer) or training compensation, as well as the
amounts borne by [Leixões] as intermediation, are also included in the concept of
economic rights for the purposes of this Agreement”.
13. The main provisions of the Option Agreement are as follows (freely translated into English
by Coimbra):
“1. OPTION FOR ACQUISITION OF THE FEDERATIVE RIGHTS AND 50% OF THE ECONOMIC
RIGHTS RELATED TO THE PLAYER
1.1 Until 30/08/2024, [Leixões] will have the option to acquire the federative rights and
pg. 5
REF. FPSD-13508
50% (fifty percent) of the economic rights related to the PLAYER from [Coimbra], upon
immediate payment of the NET amount of EUR 400,000.00 (four hundred thousand
euros) to [Coimbra].
1.2 In the event of delay in the payment referred to above, regardless of notification or
formal demand, a penalty of 10% (ten percent) will be applied to the amount due, plus
interest of 1% (one percent) per month until full payment is made.
[...]
5. GENERAL PROVISIONS
5.1. It is expressly agreed that the abstention by any of the Parties from exercising any
right or faculty ensured by this Contract, or the eventual tolerance of delay in the
fulfilment of any obligations by any of the Parties, will not prevent the other Party, at its
sole discretion, from exercising such rights or faculties at any time, which are cumulative
and not exclusive.
5.2. This Contract replaces any other contracts, representations, warranties, and
understandings, written or verbal, previously existing between the Parties and contains
the complete agreement of these and complements what was agreed in the Transfer
Agreement. No amendment, change, termination, or waiver of any clause of this contract
or consent to the waiver of this instrument will be effective, except if in writing and signed
by authorized representatives of all the contracting Parties hereof, and in such case, such
waiver or consent will be effective only in the specific part and for the specific purpose
for which it will be given.
5.3. The Parties expressly declare that there is no previously signed contract that affects,
diminishes, or prevents the Parties from fulfilling their obligations contracted in this
Contract. The Parties agree that in the case of conflicts between any law, regulation,
provision, or norm and the provisions of this Contract, the latter will prevail.
5.4. The Parties declare that they have powers for the signature of this Contract and
ensure that all acts required by contract or corporate statute, law, or judicial order for
the signature and fulfilment of this, as well as the practice of the acts contained therein,
have been duly executed and obtained”.
Exercise of the buy-out option by Leixões
14. On 22 December 2023, Leixões informed Coimbra of its decision to exercise the buy-out
option to acquire the Player’s federative rights in accordance with the Option Agreement.
It requested Coimbra to take the necessary actions in the FIFA Transfer Matching System
(hereinafter: TMS).
pg. 6
REF. FPSD-13508
15. On 26 December 2023, Coimbra put Leixões in default of the payment of the transfer fee
under the Option Agreement in the amount of EUR 400,000. Coimbra demanded that the
default be remedied within the following 5 days.
16. On 22 January 2024, the Parties and their respective associations (i.e., FPF and CBF) took
the necessary steps in TMS to convert the Player’s loan into a permanent transfer.
17. On 24 January 2024, Coimbra reiterated its request for payment of EUR 400,000 within the
next 10 days.
II. Proceedings before FIFA
18. On 26 January 2024, Leixões filed a claim with FIFA against Coimbra (hereinafter: Leixões
Claim). A brief summary of the Parties’ position and its aftermath is set out below.
a. Leixões Claim
19. In its claim, Leixões stated that the main purpose of the First Loan Agreement was to “to
provide the Player the chance to play in Europe and, eventually, attract the attention of other
European clubs interested into hire him in the future and on permanent basis”.
20. In this context, Leixões confirmed that it had entered into the First Loan Agreement and
the Employment Contract, which stipulated that it would be responsible for the payment
of the Player’s remuneration and any applicable taxes, but that these would ultimately be
reimbursed by Coimbra.
21. According to Leixões, it fulfilled its part of the agreement, but never received its share in
return. In particular, Leixões claimed that it was entitled to EUR 14,725.67, corresponding
to the Player’s salary of EUR 12,169.98 and the Portuguese taxes of EUR 2,555.69.
22. Regarding the taxes, Leixões explained that “under Portuguese law, employers (clubs) are
generally required to cover the payment of a specific tax when disbursing salaries to employees
(players). This tax, amounting to 21%, corresponds to the personal income tax as outlined in the
Código do Imposto sobre o Rendimento das Pessoas Singulares”. In support of its argument,
Leixões submitted integral copies of the Portuguese tax laws, but without proof of payment
of any amounts to the competent authorities.
23. In conclusion, Leixões requested to be awarded the amount of EUR 14,725.67 plus 5% p.a.
interest as from 1 July 2023 until the date of the effective payment.
24. Leixões’ requests for relief were as follows, quoted verbatim:
pg. 7
REF. FPSD-13508
“50. In light of the above, [Leixões] respectfully submits to the attention of the FIFA PSC
the following requests for relief:
FIRST – To uphold the claim filed by the [Leixões];
SECOND – To confirm that [Coimbra] failed to comply with its contractual obligations
established in the Loan Agreement without any reason or legal basis whatsoever;
THIRD – To order [Coimbra] to pay to [Leixões] EUR 14,725.67, plus default interest at
the rate of 5% annually as from1 July 2023 until the date of effective payment;
FOURTH - To open proceedings regarding the present dispute and notify [Coimbra]
immediately; and
FIFTH – To order [Coimbra] to pay all administrative and procedural costs related to this
procedure”.
b. Coimbra’s Reply
25. On 5 March 2024, Coimbra filed its reply to the Leixões Claim and rebutted its position as
follows.
Financial obligations undertaken by Coimbra
26. Coimbra first argued that “despite the inclusion of salary payments in the [Employment
Contract], it was mutually agreed among Coimbra, Leixões, and the Player that no salary
payments would be made in Portugal, as Coimbra would continue to compensate the Player in
Brazil”. In other words, Coimbra claimed that no salary was ever paid by Leixões to the
Player in Portugal.
27. Consequently, Coimbra contended that it was liable for the payment of the Player’s
remuneration in Brazil, and that any additional liability (such as the Portuguese taxes)
would only be assumed if (i) Leixões claimed it; and (ii) supported by documentary
evidence.
Failure of Leixões to meet its burden of proof
28. In light of the foregoing, Coimbra argued that Leixões did not provide any evidence that it
paid any amounts to the Player or to the tax authorities and that its argument was flawed.
In addition, Coimbra alleged that Leixões failed to meet its burden of proof in seeking
reimbursement of amounts that were not actually paid.
29. Coimbra also submitted a written statement from the Player confirming that the only sums
received in Portugal were the allowances mentioned in clause 1.4.1 of the First Loan
pg. 8
REF. FPSD-13508
Agreement thus supporting its narrative that the Player’s remuneration was actually paid
in Brazil.
Lack of enforceability of the claimed debt
30. Coimbra insisted that the Leixões had failed to provide sufficient evidence of its
entitlement. Furthermore, it highlighted that the Claimant had never put it in default or
engaged in any kind of conversation, by any means. As such, any amount awarded in the
present case would amount to unjust enrichment.
31. By the same token, Coimbra alleged that the requirements of art. 12bis of the FIFA
Regulations on the Status and Transfer of Players (hereinafter: RSTP or Regulations) were
not met in the case at hand.
Requests for relief
32. Coimbra’s requests for relief were as follows, quoted verbatim:
“51. In light of the foregoing, [Coimbra] respectfully requests the following relief from the
Players' Status Committee (PSC):
i. To declare the Statement of Claim submitted by Leixões as inadmissible.
ii. Alternatively, in the event the claim is deemed admissible, to direct [Coimbra] to remit
only the amounts that Leixões has conclusively demonstrated it paid as levies on the
Player's registered salary in Portugal.
iii. In case the claim is not dismissed, to refrain from imposing sanctions on Coimbra,
given the [Leixões]' failure to appropriately place [Coimbra] in default in compliance
with Article 12bis, para. 3, of the FIFA RSTP;
iv. To order that [Leixões] cover all costs related to these proceedings”.
c. Parallel claim filed by Coimbra (FPSD-14025)
33. On 6 March 2024, the FIFA general secretariat acknowledged receipt of Coimbra’s reply to
the Leixões Claim and informed the Parties that: (i) the submission phase of this case was
closed (cf., art. 23 of the Procedural Rules Governing the Football Tribunal; hereinafter:
Procedural Rules); and (ii) the matter would be submitted to the Single Judge of the Players’
Status Chamber, Natalia Chiriac (Moldova), for a formal decision on 19 March 2024.
34. On 12 March 2024, Coimbra filed a parallel claim against Leixões, which was registered
under ref. no. FPSD-14025 (hereinafter: Coimbra Claim). Accordingly, Coimbra referred to
the Option Agreement and requested to be awarded “the outstanding amount of EUR
pg. 9
REF. FPSD-13508
400.000,00, added with a penalty of 10% (ten percent) calculated over the due amount, also
accruing interest of 1% (one percent) per month as from 01 January 2024 until effective
payment”.
35. Coimbra’s requests for relief per the Coimbra Claim were as follows, quoted verbatim:
“In view of the foregoing, [Coimbra] requests the following relief:
(i) That FIFA accepts and upholds the present claim;
(ii) That Leixões is ordered to pay Coimbra the outstanding amount of EUR400.000,00,
added with a penalty of 10% (ten percent) calculated over the due amount, also accruing
the interest of 1% (one percent) per month as from 01 January 2024 until effective
payment; and
(iii) Leixões is ordered to bear all costs associated with the present proceedings”.
36. On 15 March 2024, the FIFA general secretariat acknowledged receipt of the Coimbra Claim
and the supporting documents, which were considered to be related to the Leixões Claim.
Consequently, and on the basis of art. 21, par. 3 of the Procedural Rules, the Parties were
informed that: “(a) case FPSD-14025 has been closed; (b) a copy of [the] documents has been
uploaded into this case file for information purposes only; and (c) it will be up to the Single Judge
of the Players’ Status Chamber to decide on the admissibility of the counterclaim by [Coimbra],
as well as on the consequences that follow”.
37. On 18 March 2024, Coimbra responded to the above letter and disputed the nexus between
the two claims. Contextually, Coimbra argued that the two matters related to different
concepts and had a different contractual basis, so that the Coimbra Claim was not a
counterclaim. In Coimbra’s view:
DIFFERENCES
Execution date
Period
FPSD-13508
ACORDO DE CEDÊNCIA
TEMPORÁRIA DE DIREITOS DE
INSCRIÇÃO FEDERATIVA DE
JOGADOR
5 August 2022
1 August 2022 to 30 June 2023
Option Agreement
No Option Agreement
Execution Date
Period
Buy-out option
No Option Agreement
No Option Agreement
No Option Agreement
Loan Agreement
FPSD-14025
ACORDO DE CEDÊNCIA
TEMPORÁRIA DE DIREITOS DE
INSCRIÇÃO FEDERATIVA DE
JOGADOR
13 July 2023
14 July 2023 to 30 June 2024
TERMO DE OPÇÃO DE
AQUISIÇÃO E OUTRAS AVENÇAS
("OPTION AGREEMENT")
19 July 2023
19 July 2023 to 30 August 2024
26 December 2023
pg. 10
REF. FPSD-13508
Nature of the
Dispute
Claim from Leixões for the
reimbursement of salaries and
levies related to the Player's
payments along the contract term
of the Loan Agreement dated 5
June 2022. The Loan Agreement
reached an end on 30 June 2023.
No Option Agreement for the
Player's Buy-Out has set out by
the Parties.
Claim from [Coimbra] for the
outstanding payment of
EUR400,000.00 pursuant to the
Option Agreement dated 19 July
2023 and exercise of the buy-out
option on 26 December 2023 by
Leixões.
38. As a result, Coimbra challenged, inter alia, FIFA’s decision to close the Coimbra Claim,
claiming that its procedural rights had been violated.
39. Also on 18 March 2024, the FIFA general secretariat acknowledged receipt of Coimbra’s
letter. They also reiterated to the Parties that the entire case file would be referred to Ms.
Chiriac for a decision – including the nature / admissibility of the Coimbra Claim.
40. On 21 March 2024, the FIFA general secretariat informed the parties that, after careful
consideration, Ms Chiriac had decided that the matter was legally complex and should be
referred to a panel of three judges (cf. art. 24, par. 2 of the Procedural Rules). Furthermore,
the same letter read as follows: “In parallel and for the sake of good procedural order, we
hereby invite [Leixões] to provide us with its position on the new claim lodged by [Coimbra],
along with any documentary evidence useful in its support, by no later than 10 April 2024 (cf.
art. 23, par. 2 of the Procedural Rules).”
d. Leixões’ Position on the Coimbra Claim
41. On 17 April 2024, Leixões filed additional comments regarding, inter alia, the Coimbra
Claim.
42. In doing so, Leixões recalled all the agreements signed by and between the parties,
including the First Loan Agreement, the Second Loan Agreement, and the Option
Agreement.
Admissibility
43. As a preliminary matter, Leixões contended that the Coimbra Claim should have been filed
together with Coimbra’s statement of reply and was therefore inadmissible.
Substance
44. Alternatively, Leixões stressed that awarding the transfer fee claimed by Coimbra in
addition to the interest and the penalty would amount to bis in idem. In particular: “it is
pg. 11
REF. FPSD-13508
undisputed that the penalty of 10% over the outstanding amount plus 1% interest per annum is
disproportional and shall be immediately and in full set aside”.
45. In addition, Leixões recalled its arguments in the Leixões Claim and insisted on its right to
recover the salary / taxes paid on behalf of Coimbra and never reimbursed (i.e., EUR
14,725.67). It should be noted that Leixões, despite having been requested to comment
exclusively on the Coimbra Claim, also filed additional documentation relating to the
Leixões Claim (akin rejoinder).
46. Leixões’ requests for relief were as follows, quoted verbatim:
“50. In light of the above, [Leixões] respectfully submits to the attention of the FIFA PSC
the following requests for relief:
FIRST - To uphold the claim filed by [Leixões];
SECOND - To confirm that [Coimbra] failed to comply with its contractual obligations
established in the [First Loan Agreement] without any reason or legal basis whatsoever;
THIRD - To order [Coimbra] to pay to [Leixões] EUR 14.725.67, plus default interest at
the rate of 5% annually as from 1 July 2023 until the date of effective payment;
FOURTH - To open proceedings regarding the present dispute and notify [Coimbra]
immediately; and
FIFTH - To order [Coimbra] to pay all administrative and procedural costs related to this
procedure”.
III. Considerations of the Players’ Status Chamber
a. Competence and applicable legal framework
47. First of all, the Players’ Status Chamber (hereinafter: Chamber or PSC) 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 26 January 2024 and submitted for decision on 20 June
2024. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural
Rules, the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
48. In addition, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that
in accordance with art. 23 par. 2 in combination with art. 22 par. 1 lit. g) of the RSTP (June
2024 edition), the PSC is competent to deal with the matter at stake, which concerns a
pg. 12
REF. FPSD-13508
contractual dispute between clubs affiliated to different associations, i.e., a Portuguese club
and a Brazilian club.
49. 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 RSTP (June 2024 edition) and considering that the present claim was lodged
on 26 January 2024, the May 2023 edition of said Regulations is applicable to the matter at
hand as to the substance.
b. Admissibility of Coimbra Claim
50. At this point, the Chamber recognized that the present case(s) raise(s) an issue of
admissibility that needs to be analysed in advance by the PSC. In particular, the Chamber
recalled that:
•
On 26 January 2024, Leixões filed the original claim against Coimbra (i.e., Leixões
Claim), seeking reimbursement of salary and taxes in connection with the First
Loan Agreement;
•
On 5 March 2024, Coimbra submitted its response to the Leixões Claim. No
counterclaim was filed at that time;
•
On 12 March 2024 and after the closure of the submission phase, Coimbra filed
a parallel claim (i.e., Coimbra Claim), seeking the outstanding transfer fee under
the Option Agreement;
•
On 15 March 2024, the two proceedings were consolidated pursuant to art. 21 of
the Procedural Rules;
•
On 21 March 2024, on the instructions of Ms Chiriac, the FIFA general secretariat
inter alia invited Leixões to comment exclusively on the Coimbra Claim; and
•
On 17 April 2024, Leixões filed its position on the Coimbra Claim and unsolicited
comments / documentation on the Leixões Claim.
51. With the above in mind, the PSC emphasized that art. 21, par. 3 of the Procedural Rules
reads as follows (emphasis added by the Chamber):
“If a party submits a new claim which is related to an existing case in which it is a
respondent, the new claim shall be joined with the existing case and treated as a
counterclaim in the existing case. Where the party has already been notified of the
existing case, the new claim must have been submitted within the same time limit
as that for the response to the claim in the existing case in order to be considered”.
pg. 13
REF. FPSD-13508
52. In light of the foregoing, the PSC had to determine whether the Leixões Claim and the
Coimbra Claim were indeed “related” within the meaning of the Procedural Rules and, if so,
what the consequences were for the admissibility of the Coimbra Claim.
53. In this respect, the Chamber first noted that both the Leixões Claim and the Coimbra Claim
are directed against the same clubs and concern the same contractual relationship (i.e., the
transfer of the Player between the Parties and its nuances). Therefore, the Chamber
confirmed that both disputes contribute to the assessment of the mutual obligations
between the Parties and shall be assessed together in accordance with art. 23, par. 1 of the
Procedural Rules.
54. Notwithstanding the above, the PSC also gave due consideration to the facts that:
•
the objects of the Leixões Claim and the Coimbra Claim have a significant
independence: as explained by Coimbra, they refer to credits arising from
different contracts that were not even mentioned in the Leixões Claim (i.e., the
First Loan Agreement versus the Option Agreement);
•
each dispute is triggered by a different event (i.e., the Leixões Claim by Coimbra’s
alleged non-payment of the taxes during the loan period in the 2022/2023
season; whereas the Coimbra Claim by the non-payment of the transfer fee
under the Option Agreement); and
•
even if the Option Agreement superseded the prior arrangements between the
Parties, it did not constitute an unambiguous waiver of any of the amounts
referred to in the Loan Agreements. In particular, the First Loan Agreement had
expired and was therefore not per se superseded.
55. Consequently, and although the PSC disapproved of the procedural strategy adopted by
Coimbra in dealing with the matters at hand, it was of the opinion that the nexus between
Leixões Claim and the Coimbra Claim did not meet the threshold of connection required
by art. 21, par. 3 of the Procedural Rules to constitute related claims.
56. Therefore, the PSC decided that the Coimbra Claim is admissible.
57. In addition to the foregoing, the Chamber also wished to emphasize that, despite having
been asked to comment exclusively on the Coimbra Claim, Leixões submitted additional
arguments and documents concerning the subject matter of the Leixões Claim.
58. In view of the fact that the submission phase had already been closed and pursuant to the
unambiguous wording of art. 23, par. 1 of the Procedural Rules,the Parties were not
allowed to supplement or amend their submissions or requests for relief or produce new
evidence. As a result, and for the sake of good procedural order, the PSC decided that any
consideration to this extent was inadmissible.
pg. 14
REF. FPSD-13508
c. Burden of proof
59. 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 TMS.
d. Merits of the dispute
60. The Chamber then 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 assessing of the matter at hand.
i. Main legal discussion and considerations
61. For the sake of clarity, the Chamber decided to assess each claim in turn, starting with the
Leixões Claim and then moving to the Coimbra Claim.
Leixões Claim
62. First, the PSC noted that this was a claim for reimbursement of remuneration and taxes
that Leixões had filed against Coimbra in connection with the First Loan Agreement.
63. Leixões claimed that it paid the Player’s remuneration and the applicable taxes during the
2022/2023 season, which were never reimbursed by Coimbra despite their agreement in
clause 1.4 of the First Loan Agreement.
64. Coimbra, on the other hand, challenged such a request, stating that no amount was ever
paid by Leixões because (i) all the Player’s remuneration was paid in Brazil; and (ii) Leixões
did not provide any proof of payment of any taxes in Portugal.
65. Therefore, the PSC determined that its task was to determine whether there was an
outstanding obligation between the Parties and what the consequences, if any, would be.
66. Against this background, the Chamber turned its attention to the wording of First Loan
Agreement, in particular to clause 1.4 of the Loan Agreement, quoted verbatim (with
emphasis added by the Chamber):
pg. 15
REF. FPSD-13508
“1.4 During the period of temporary assignment, [Leixões] is obliged to enter into a
sports employment contract with the PLAYER, whose annual remuneration (gross) in the
amount of EUR 12.169,98 (twelve thousand hundred sixty-nine euros and ninety-eight
cents), which corresponds to the amount of R$ 64.824,41 (sixty-four, eight hundred
twenty-four reais and forty-one cents), plus the charges levied on the salary amounts
in Portugal to be paid by [Coimbra], via bank transfer.
1.4.1. As of 01/10/2021, [Leixões] undertakes to pay the PLAYER as a subsistence
allowance in the amount corresponding to EUR 300.00 (three hundred euros) per
month”.
67. In the Chamber’s view, such a provision was not entirely clear in establishing where and
how the payments would be made. In other words, and taking into account the Parties’
submissions, the PSC considered that the wording of the clause only asserted that “any
extra charges levied on the salary amounts of Portugal” (i.e., taxes) would be payable by
Coimbra. However, there was no mention of the fact that the Player’s global remuneration
would be paid in Portugal, let alone that such amounts would be reimbursed by the
Coimbra at any moment in time.
68. In the Chamber’s opinion, this supported Coimbra’s representation that the amounts were
ultimately paid in Brazil. Had the case been otherwise, it would have been incumbent upon
the Parties to establish in the First Loan Agreement when and how the reimbursements
would be made, which the PSC did not find in their agreement.
69. In parallel, the Chamber considered it essential that Leixões, despite filing the claim for
reimbursement, did not present any evidence that it paid any amount to the Player or to
the competent tax authorities. On the contrary, Leixões limited itself to basing its claim on
the Employment Contract and Portuguese Law, without demonstrating that it had ever
incurred in any costs related to the loan.
70. The PSC considered it equally important that Leixões had also failed to prove that it had
ever contacted Coimbra regarding the First Loan Agreement and, in particular, regarding
any residual claim. Indeed, the Chamber concurred with the latter to the extent that
Leixões’ behaviour in the present case cast doubt over its entitlement to the sums sought.
71. Contrario sensu, the Chamber considered that the written statement signed by the Player
tipped the scales in Coimbra’s favour. Most importantly, the evidence of payments on file
confirmed that the amounts were ultimately received in Brazil.
72. Based on all of these considerations, the PSC concluded that Leixões did not meet its
burden of proof in accordance with art. 13, par. 5 of the Procedural Rules.
73. The Leixões Claim was therefore dismissed.
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REF. FPSD-13508
Coimbra Claim
74. The Chamber went on to acknowledge that this was a claim for the outstanding transfer
fee under the Option Agreement.
75. In particular, the PSC highlighted that the Parties did not dispute that the EUR 400,000 had
not been paid and should therefore be awarded on the basis of the general legal principle
of pacta sunt servanda.
76. In addition and for ease of reference, the Chamber recalled that clause 1.2 reads as follows
on the consequences of default:
“1.2 In the event of delay in the payment referred to above, regardless of notification or
formal demand, a penalty of 10% (ten percent) will be applied to the amount due, plus
interest of 1% (one percent) per month until full payment is made”.
77. Contrary to the position of Leixões, the PSC decided that both the fine and the interest rate
established by the Parties were reasonable and proportionate in accordance with the
jurisprudence of the Football Tribunal.
78. Therefore, the PSC established that Coimbra should be awarded (i) interest at 12% p.a. from
22 January 2024 (i.e., the date when the loan was converted into a permanent transfer in
TMS); and (ii) EUR 40,000 as a contractual penalty.
79. In conclusion, the Chamber found that the Coimbra Claim was admissible and partially
accepted.
ii. Compliance with monetary decisions
80. 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.
81. In this regard, the PSC 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.
82. Therefore, bearing in mind the above, the PSC decided that the Leixões must pay the full
amount due (including all applicable interest) to the Coimbra within 45 days of notification
of the decision, failing which, at the request of the Coimbra, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
pg. 17
REF. FPSD-13508
consecutive registration periods shall become immediately effective on the Leixões in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
83. The Leixões shall make full payment (including all applicable interest) to the bank account
provided by Coimbra in the Bank Account Registration Form, which is attached to the
present decision.
84. The PSC 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.
e. Costs
85. The Chamber referred to art. 25 par. 2 of the Procedural Rules, according to which costs in
proceedings before the Players' Status Chamber shall be assessed at a maximum amount
of USD 25,000 and shall be borne by the unsuccessful party, taking into account the degree
of success of the parties in the proceedings.
86. In view of the fact that the Leixões Claim was rejected and the Coimbra Claim was partially
accepted, the Chamber decided that the costs of the current proceedings before FIFA
should be shared between the Parties.
87. According to Annexe 1 to the Procedural Rules, the costs of the proceedings shall be
assessed on the basis of the amount in dispute. Therefore, the Chamber has determined
that the amount of the costs of the proceeding shall be USD 20,000 and shall be paid as
follows: (i) USD 15,000 by Leixões; and (ii) USD 5,000 by Coimbra.
88. Subsequently, the Chamber referred to in art. 25 par. 3 and 6 of the Procedural Rules and
found that the advance of costs paid by a party should be duly taken into account in the
decision on costs. Therefore, the PSC decided that the amount of the advance of costs paid
by both Leixões and Coimbra at the beginning of the proceedings should be refunded or
partially offset against their respective amount of procedural costs.
89. Lastly, the Chamber concluded the deliberations by rejecting any other requests for relief
made by any of the Parties.
pg. 18
REF. FPSD-13508
IV. Decision of the Players’ Status Chamber
1.
The claim of the Claimant / Counter-Respondent, Leixões SC, SAD, is rejected.
2.
The counterclaim of the Respondent / Counterclaimant, Coimbra Esporte Clube Ltda, is
admissible and partially accepted.
3.
The Claimant / Counter-Respondent must pay to the Respondent / Counterclaimant the
following amount(s):
- EUR 400,000 as outstanding remuneration plus 12% interest p.a. from 22 January 2024
until the date of effective payment; and
- EUR 40,000 as contractual penalty.
4.
Any further claims of the Respondent / Counterclaimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Claimant / Counter-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.
7.
The consequences shall only be enforced at the request of the Respondent /
Counterclaimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on
the Status and Transfer of Players.
8.
The final costs of the proceedings in the amount of USD 20,000 are split between the
parties and shall be paid to FIFA in the following manner (cf., note relating to the payment
of the procedural costs below):
a) USD 15,000 by the Claimant/Counter-Respondent. As the Claimant/Counter-Respondent
already paid the amount of USD 1,000 to FIFA as advance of costs at the start of the
proceedings, the residual amount of USD 14,000 is still to be paid as procedural costs.
pg. 19
REF. FPSD-13508
b) USD 5,000 by the Respondent/Counterclaimant. As the Respondent / Counterclaimant
already paid the amount of USD 5,000 to FIFA as advance of costs at the start of the
proceedings, the procedural costs will be offset in case the grounds are requested.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13508
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 21