DRC Overdue Payables
Texto da decisão
REF. FPSD-14684
Decision of the
Dispute Resolution Chamber
passed on 29 August 2024
regarding an employment-related dispute concerning the player
Fabián Cornelio Balbuena González
COMPOSITION:
Lívia SILVA KÄGI (Brazil / Switzerland), Deputy Chairwoman
Dana MOHAMED AL-NOAIMI (Qatar), Member
Michele COLUCCI (Italy), Member
CLAIMANT:
Fabián Cornelio Balbuena González, Paraguay
Represented by Breno Costa Ramos Tannuri
RESPONDENT:
Sport Club Corinthians Paulista, Brazil
pg. 2
REF. FPSD-14684
I. Facts of the case
1.
On 18 July 2022, the Paraguayan player Fabián Cornelio Balbuena González (hereinafter, the
Claimant or the Player) and the Brazilian club Sport Club Corinthians Paulista (hereinafter, the
Respondent or the Club) concluded an employment contract (hereinafter, the Contract), valid as from
16 July 2022 until 30 June 2023.
2.
According to the Contract, the Club undertook to pay to the Player (hereinafter, jointly referred to
as the Parties) a monthly salary of BRL 500,000.
3.
As per Clause 12 of the Contract:
“The parties elect the judicial bodies of FIFA, in particular the Dispute Resolution Chamber of the FIFA
Football Tribunal, the National Dispute Resolution Chamber of the CBF, as competent to settle disputes
that may arise from this contract, without, however, excluding the competence and preventing the access
of any of the parties to the Common Justice, under the terms of art. 5, item XXXV, of the Federal
Constitution, in which case the Court of the District of Sao Paulo/SP is hereby elected as competent”
4.
Also on 18 July 2022, the Parties concluded the so-called “Sublicense agreement for the use of the
personality rights of a professional football athlete and other agreements” (hereinafter, the Image Rights
Agreement).
5.
Pursuant to the Image Rights Agreement,
“WHEREAS [the Player] is the owner of the use of his personality rights, and will set up a company in Brazil
or license his personality rights to a legally constituted company, to commercially exploit his image
(“Company”), according to the parties’ declaration of good faith”.
6.
As per Clause 2 of the Image Rights Agreement,
“This contract will begin on July 18, 2022 and end on June 30, 2023. This term may be extended at the
express will of all parties, expressed in a written instrument for this purpose”.
7.
In accordance with Clause 4 of the Image Rights Agreement,
“4. For the license for commercial exploitation of the personality rights of the Consenting Athlete, the
Company will receive, with the express consent of the Consenting Athlete, the gross monthly amount of
BRL 300,000 (three hundred thousand reais) due on the 20th (twenty) day of the following month,
calculated pro rata.
4.1. In addition, Corinthians will pay the Company the gross amount, equivalent in reais, to USD
150,000.00 (one hundred and fifty thousand US dollars) in 12 (twelve) monthly and consecutive
instalments of USD 12,500.00 with the first due date on 20/08/2022 and the last on 20/07/2023.
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REF. FPSD-14684
4.2. Also, as long as this contract is in force, if Corinthians wins the Brazilian Championship, Copa do
Brasil or Copa Libertadores of the year 2022, the Company will be entitled to receive the gross amount,
equivalent in reais, to USD 40,000 (forty thousand US dollars) per championship won, which will be due
within 30 (thirty) days of the occurrence of the achievement, in view of the greater exposure of the
Consenting Athlete, thus increasing the commercial value of his image”.
8.
As per Clause 8 lit. d) of the Image Rights Agreement,
“This instrument is terminated by: (…) d) termination of the Special Sports Employment Contract
maintained between Corinthians and the Consenting Athlete due to any form, professional disability or
death of the Consenting Athlete”.
9.
According to Clause 18 of the Image Rights Agreement,
“The parties elect the jurisdiction of FIFA, in particular the Dispute Resolution Chamber of the FIFA Football
Tribunal and the National Dispute Resolution Chamber of the CBF, as competent to settle disputes that
may arise from this contract, without excluding jurisdiction and preventing the access of any of the Parties
to the Common Justice, under the terms of article 5, item XXXV, of the Federal Constitution, in which case
the Court of the District of São Paulo/SP is hereby elected as competent”.
10. On 2 December 2022, the Player sent a letter to the Club informing about the constitution of the
company “The General Sports LTDA” (hereinafter, the Company), “which will receive the amounts set
out in item 4 of the [Image Rights Agreement]”.
11. On 6 May 2024, the Player put the Club in default requesting the payment of BRL 3,600,000 and USD
150,000 as per the Image Rights Agreement. The Player granted a 10-day deadline to the Club to
comply with its financial obligations.
II. Proceedings before FIFA
12. On 21 May 2024, the Claimant filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the Claimant
13. According to the Player, based on the well-established jurisprudence of FIFA and the Court of
Arbitration for Sport (CAS), the Football Tribunal is competent to hear the present dispute, as “claims
arising out of, or in connection with, an image rights agreement falls within the jurisdiction of FIFA to the
extent that they are employment-related”.
14. The Player argued that the Image Rights Agreement was meant to be part of the employment
relationship between the Parties. In this respect, for the Player the Image Rights Agreement satisfies
the criterion set out in the FIFA Commentary, considering that the Parties are the same, that both
pg. 4
REF. FPSD-14684
contracts involve similar remuneration, that the Image Rights Agreement provided for the payment
of performance bonuses, that the length in both contracts is almost the same, and that the
termination of the Contract would lead to the automatic termination of the Image Rights Agreement.
15. Based on the above considerations, the Player sustained that the present dispute qualifies as
employment-related in the sense of art. 22 par. 1 lit. b) of the Regulations.
16. As to the substance of the dispute, and based on the legal principle of pacta sunt servanda, the Player
claimed being entitled to BRL 3,600,000 and USD 150,000 as per Clause 4 and Clause 4.1 of the
Image Rights Agreement).
17. The Player requested the following relief:
“FIRST - To uphold in full the claim herein filed by the Player;
SECOND - To declare that the FIFA DRC has jurisdiction to hear the present dispute;
THIRD - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 3 December 2022 until the date
of effective payment;
FOURTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 3 December 2022 until the date
of effective payment;
FIFTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 3 December 2022 until the date
of effective payment;
SIXTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 3 December 2022 until the date
of effective payment;
SEVENTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 21 December 2022 until the date
of effective payment;
EIGHTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 21 January 2023 until the date of
effective payment;
NINETH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 21 February 2023 until the date
of effective payment;
TENTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 21 March 2023 until the date of
pg. 5
REF. FPSD-14684
effective payment;
ELEVENTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 21 April 2023 until the date of
effective payment;
TWELFTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand reais)
plus default interest at the date of 5% (five per cent) per annum as from 21 May 2023 until the date of
effective payment;
THIRTEENTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand
reais) plus default interest at the date of 5% (five per cent) per annum as from 21 June 2023 until the date
of effective payment;
FOURTEENTH - To order the Club to pay the Player the amount of BRL 300,000 (three hundred thousand
reais) plus default interest at the date of 5% (five per cent) per annum as from 21 July 2023 until the date
of effective payment;
FIFTEENTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five hundred
US dollars) plus default interest at the date of 5% (five per cent) per annum as from 3 December 2022 until
the date of effective payment;
SIXTEENTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five hundred
US dollars) plus default interest at the date of 5% (five per cent) per annum as from 3 December 2022 until
the date of effective payment;
SEVENTEENTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five
hundred US dollars) plus default interest at the date of 5% (five per cent) per annum as from 3 December
2022 until the date of effective payment;
EIGHTEENTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five hundred
US dollars) plus default interest at the date of 5% (five per cent) per annum as from 3 December 2022 until
the date of effective payment;
NINETENTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five hundred
US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 December 2022
until the date of effective payment;
TWENTY - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five hundred
US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 January 2023 until
the date of effective payment;
TWENTY-FIRST - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five
hundred US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 February
2023 until the date of effective payment;
TWENTY-SECOND - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five
hundred US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 March
pg. 6
REF. FPSD-14684
2023 until the date of effective payment;
TWENTY-THIRD - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five
hundred US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 April 2023
until the date of effective payment;
TWENTY-FOURTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five
hundred US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 May 2023
until the date of effective payment;
TWENTY-FIFTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five
hundred US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 June 2023
until the date of effective payment;
TWENTY-SIXTH - To order the Club to pay the Player the amount of USD 12,500 (twelve thousand five
hundred US dollars) plus default interest at the date of 5% (five per cent) per annum as from 21 July 2023
until the date of effective payment; and
TWENTY-SEVENTH - To open proceedings regarding the present dispute and notify the Club immediately
(cf. Art. 21, par. 1 of the FIFA Procedural Rules)”.
b. Position of the Respondent
18. Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Dispute Resolution Chamber (hereinafter, the 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 21 May 2024 and submitted for decision on 29 August 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.
20. Furthermore, 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 par. 1 lit. b) of the Regulations on the
Status and Transfer of Players (June 2024 edition), the Dispute Resolution Chamber is competent to
deal with employment-related disputes with an international dimension.
21. The Chamber further noted that the present matter involves the Image Rights Agreement, dated 18
July 2022.
pg. 7
REF. FPSD-14684
22. In this regard, the DRC recalled that, in principle, FIFA is not competent to decide on agreements
concerning the licencing of image rights, as these are not employment-related agreements.
However, in line with the long-standing jurisprudence of the Football Tribunal, such conclusion
might be different if specific elements of the separate agreement suggests that it was in fact
intended to be part of the actual employment relationship. Therefore, image rights agreements
must be assessed on a case-by-case basis, taking into account the particularities and specific
circumstances of each individual dispute (cf. Commentary on the Regulations, p. 460 et seq.).
23. The DRC determined that, in casu, such elements appear to exist. In particular, the Parties in both
the Contract and the Image Rights Agreement are the same, both contracts involve similar
remuneration in favour of the Player, the Image Rights Agreement provided a bonus in case the Club
won the national championship, both contracts were valid until 30 June 2023 and, according to the
Image Rights Agreement, the termination of the Contract would lead to the automatic termination
of the Image Rights Agreement.
24. Furthermore, the Chamber also observed that even though the payments under the Image Rights
Agreement had to be made to the Company, based on the evidence submitted by the Player, such
Company not only appeared to have the Player as its only shareholder, but also that it was
constituted by the latter per the Club’s instruction.
25. In light with the foregoing, the DRC established that the Image Rights Agreement could not be
considered as a separate agreement, but rather as an accessory / additional agreement directly
connected to the Contract. Consequently, the DRC determined that it was competent to entertain
the dispute at stake, which concerns an employment-related dispute with an international
dimension between a Paraguayan player and a Brazilian club.
26. Finally, the Chamber analysed which regulations should be applicable as to the substance of the
matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations
on the Status and Transfer of Players (June 2024 edition), and considering that the present claim
was lodged on 21 May 2024, the February 2024 edition of said regulations (hereinafter, the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
27. 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).
pg. 8
REF. FPSD-14684
c.
Merits of the dispute
28. Having established the competence and the applicable regulations, the Chamber entered into the
merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned 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 the matter at hand.
i. Main legal discussion and considerations
29. The Chamber then moved to the substance of the matter, and took note of the fact that the Player
claimed being entitled to BRL 3,600,000 and USD 150,000 under Clauses 4 and 4.1 of the Image
Rights Agreement. The Chamber also observed that the claim remained uncontested by the
Respondent.
30. In this context, the Chamber acknowledged that its task was to 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.
31. The Chamber first noted 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 Club did not dispute the claim of the Player.
32. In view of the foregoing, and bearing in mind the legal principle of pacta 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 Image Rights Agreement
concluded between the Parties, namely, BRL 3,600,000 and USD 150,000.
33. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% per annum
on the outstanding amounts as from their due dates until the date of effective payment.
34. In continuation, the Chamber 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.
35. To this end, the Chamber confirmed that the Player put the Club in default of payment of the
amounts sought, which had fallen due more than 30 days before, and granted the Club a 10-day
deadline to cure such breach of contract.
36. Accordingly, the Chamber 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.
pg. 9
REF. FPSD-14684
37. 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 and bearing in mind that
this is the first offense by the Club within the last two years, the Chamber decided to impose a
warning on the Club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
ii. Compliance with monetary decisions
38. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2
of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also
rule on the consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
39. 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.
40. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full
amount due (including all applicable interest) to the Claimant within 45 days of notification of the
decision, failing which, at the request of the Claimant, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive registration
periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4,
and 7 of the Regulations.
41. 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.
42. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete
serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations.
d. Costs
43. 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.
44. 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.
pg. 10
REF. FPSD-14684
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Fabián Cornelio Balbuena
González.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Sport Club Corinthians Paulista, must pay to the Claimant the following amount(s):
BRL 3,600,000 as outstanding remuneration plus 5% interest per annum as follows:
- 5% interest p.a. over the amount of BRL 1,200,000 as from 3 December 2022 until the effective
payment;
- 5% interest p.a. over the amount of BRL 300,000 as from 21 December 2022 until the effective
payment;
- 5% interest p.a. over the amount of BRL 300,000 as from 21 January 2023 until the effective
payment;
- 5% interest p.a. over the amount of BRL 300,000 as from 21 February 2023 until the effective
payment;
- 5% interest p.a. over the amount of BRL 300,000 as from 21 March 2023 until the effective
payment;
- 5% interest p.a. over the amount of BRL 300,000 as from 21 April 2023 until the effective
payment;
- 5% interest p.a. over the amount of BRL 300,000 as from 21 May 2023 until the effective
payment;
- 5% interest p.a. over the amount of BRL 300,000 as from 21 June 2023 until the effective
payment; and
- 5% interest p.a. over the amount of BRL 300,000 as from 21 July 2023 until the effective
payment.
USD 150,000 as outstanding remuneration plus 5% interest per annum as follows:
- 5% interest p.a. over the amount of USD 50,000 as from 3 December 2022 until the effective
payment;
- 5% interest p.a. over the amount of USD 12,500 as from 21 December 2022 until the effective
payment;
- 5% interest p.a. over the amount of USD 12,500 as from 21 January 2023 until the effective
payment;
- 5% interest p.a. over the amount of USD 12,500 as from 21 February 2023 until the effective
payment;
- 5% interest p.a. over the amount of USD 12,500 as from 21 March 2023 until the effective
payment;
- 5% interest p.a. over the amount of USD 12,500 as from 21 April 2023 until the effective
payment;
- 5% interest p.a. over the amount of USD 12,500 as from 21 May 2023 until the effective
payment;
pg. 11
REF. FPSD-14684
- 5% interest p.a. over the amount of USD 12,500 as from 21 June 2023 the effective payment;
and
- 5% interest p.a. over the amount of USD 12,500 as from 21 July 2023 the effective payment.
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. 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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14684
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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