Labour Disputes
Texto da decisão
REF FPSD-4339
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Murilo Rangel
Barbosa
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Murilo Rangel Barbosa, Brazil
Represented by Mr Breno Costa Ramos Tannuri
RESPONDENT:
Al Dhafra FC, United Arab Emirates
Page 2
REF FPSD-4339
I. Facts of the case
1.
Allegedly, on 11 August 2021, the Saudi Arabian club, Al Dhafra (hereinafter: the Respondent) sent
to the Brazilian player, Murilo Rangel Barbosa (hereinafter: the Claimant) an offer (hereinafter: the
offer).
2.
The offer was signed by Mr. Khamis Al Mazrouei, the Respondent’s “Chief Executive Officer”, and
stipulated the following conditions:
“With reference to the above subject matter, Al Dhafra Football Club L.L.C. (hereinafter referred as Al
Dhafra FC"), offers to your client, the player. Murilo Rangel Barbosa, Brazil Citizen, born in 01/08/1991
to joining Al Dhafra FC Club during the summer transfer window for the sport season of 21-22 on a basis
according to the following terms and conditions:
A. The acquiring of the player's Federative rights on a permanent basis for the season
B. The full amount of the agreement and the employment agreement for the sport season
2021/2022 will be equal to: 230,000$ (Two hundred and thirty thousand US Dollars).
C. The player shall be provided economy flight tickets for the player and his family.
D. The player shall be provided a furnished accommodation.
E. Provide the Player with a suitable means of transport for his use during the contract
validity. (Car).
F. The player shall be provided medical treatment to the player inside the U.A.E. in
accordance with the Ministry of Health rules and regulations and for his family.
Kindly be informed that this offer shall not cause any contractual liability on Al Dhafra FC at any stage
unless the player successfully passes all the required medical tests, sign the Agreement and the
Employment Agreement in respect of the aforementioned terms and conditions, and Al Dhafra FC
receives the ITC from his Club.
Finally, this letter is confidential and strictly addressed to the person meant to and its content shall not
be disclosed to any third party except for the player.
This offer is just valid for 48 hours.”
3.
On 11 August 2021, the Claimant mutually terminated his contract with the Brazilian club, Cuiabá
E.C., paying a total compensation of BRL 52,360 to the aforesaid club.
4.
On the same date, the Claimant signed the offer within the provided deadline and sent it to the
Respondent’s Chief Executive Officer via his intermediary/agent by means of WhatsApp
correspondence.
5.
On 19 August 2021, the Respondent issued flight tickets to both the Claimant and his agent, to
travel from São Paulo to Dubai.
Page 3
REF FPSD-4339
6.
On 23 August 2021 and entry permit was issued to the Claimant for the purpose of employment
with the Respondent.
7.
On 25 August 2021, the Claimant underwent a medical examination in Dubai.
8.
According to the Claimant hereafter, between the period 30 August – 1 September 2021, he
attended his first training session at the Respondent’s facilities, played a friendly match and stayed
at the hotel provided by the Respondent.
9.
On 3 September 2021, upon arrival his arrival at the training centre, the Respondent “verbally
communicated to the Player that his services as a professional football player were no longer required,
without providing any reason. In addition, the Club informed the Player that it had issued the tickets for
the latter to return to Brazil.”
10. On 9 September 2021, the Claimant sent a letter to the Respondent, requesting payment of the
amount of USD 230,000 corresponding to the full value of the offer as compensation of breach of
contract, granting the Respondent a deadline of 10 days to comply with the payment of the
pertinent compensation, however to no avail.
11. On 1 December 2021, the Claimant signed a contract with the Brazilian club, Ferroviária Futebol
for a monthly salary of BRL 3,000, valid from 1 December 2021 until 5 April 2022.
II. Proceedings before FIFA
12. On 18 November 2021, 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. The requests for relief of the Claimant, were the following:
(a)
That the Respondent to pay to the Claimant the amount of USD 230,000 due as compensation for
breach of contract, plus default interest at the rate of 5% per annum as from 4 September 2021
until the effective date of payment
Alternatively, and only in the event the above is rejected:
(a)
That the Respondent to pay compensation and take into account the mitigated and additional
compensation, shall not be less than the total amount that the Claimant was entitled to receive if
the Respondent did not breach the contract, i.e., USD 230,000 plus default interest at the rate of
5% per annum as from 4 September 2021 until the effective date of payment.
Page 4
REF FPSD-4339
Alternatively, and only in the event the above is rejected:
(a)
to confirm that by breaching the contract, the Respondent violated the principle of culpa in
contrahendo and as such, shall pay a compensation to the Claimant amounting to USD 230,000
plus default interest at the rate of 5% per annum as from 4 September 2021 until the effective date
of payment
b. Position of the Respondent
14. In its reply to the claim, the Respondent indicated that “during the summer transfer window of the
2020/2021 season, the Respondent was interested in signing the Player and, therefore, started
negotiations with his agent.”
15. However, it was always the intention of the Respondent “to evaluate the health conditions of the
Claimant before moving forward with the negotiations with him and his agent, that the financial offer
submitted to the Claimant explicitly made reference to the Claimant passing the medical examinations
as a condition precedent for the parties to enter into an employment agreement.”
16. The Respondent mentioned that the offer submitted to the Claimant was a non-binding offer,
“hence, the Player acknowledged and agreed that the Club did not want to take any commitment about
signing him and that the Club reserved the right to take a decision after checking on his fitness and
health conditions.”
17. Moreover, the Respondent referred to the recently published FIFA Commentary on the RSTP
mentioning that “the situation of a club wanting to evaluate the health situation of the footballer in
light of the principles governing employment-related transactions set forth in the RSTP was analysed as
follows:
"A medical is crucial for a club trying to decide whether to sign a player. Hence it would appear perfectly
justified to oblige clubs to perform the required medical examinations before signing a contract with a
player' (see page 198 of the November 2021 edition of the Commentary);
it would appear legitimate to invite a player for medical tests first, and only then to decide whether to
conclude a contract with them" (see page 199);
good practice requires from the parties to expressly mention that the document is- not the final contract
and that it does not represent the definitive agreement between the parties (see page 199).”
18. In conclusion, the Respondent indicated that it never entered into a binding contract with the
Claimant that could have been breached, consequently, the claim of the Claimant must be
rejected.
Page 5
REF FPSD-4339
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 18 November 2021 and submitted for decision on
9 June 2022. Taking into account the wording of art. 34 of the October 2021 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
20. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (March 2022 edition), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between a Brazilian player and a Saudi Arabian club.
21. Subsequently, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (March 2022 edition) and considering that the
present claim was lodged on 18 November 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
22. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4
of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
c.
Merits of the dispute
23. Its competence and the applicable regulations having been established; the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the 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 the assessment of the matter at hand.
Page 6
REF FPSD-4339
i. Main legal discussion and considerations
24. The foregoing having been established, the Chamber noted that the parties’ first fundamental
disagreement relates to whether the offer concluded between the parties on 11 August 2021 can
be considered a valid and binding employment contract.
25. The DRC noted that the Claimant considered the said offer to be valid and binding, additionally
highlighting that a work permit was issued to him by the authorities in the United Arab Emirates
(UAE) referencing the Respondent as his employer, whereafter he started training with the
Respondent and eventually playing a match on or about 1 September 2021.
26. The Chamber further noted that Respondent, as opposed to the Claimant, indicated that a binding
employment contract had not come into effect between the parties, as the offer submitted to the
Claimant on 11 August 2021, was subject to a condition precedent, i.e., the passing of a medical
examination.
27. In this context, the Chamber acknowledged that its task was to determine whether the alleged
offer concluded between the Claimant and Respondent established a valid and binding
employment contract and if so whether the Respondent was in breach of the terms of the offer.
28. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence which
dictates that, in order for an employment contract to be considered as valid and binding, apart
from the signature of both the employer and the employee, it should contain the essentialia negotii
of an employment contract, such as the parties to the contract and their role, the duration of the
employment relationship and the remuneration payable by the employer to the employee.
29. In casu, after a thorough analysis of the documentation on file, the Chamber concluded that all
such elements were included in the document filed by the Claimant. In other words, the Chamber
understood that the legal document concluded by the parties (i.e., the offer) indeed included all
the relevant information at the basis of which an employment relationship could be established
between the parties. Specifically, the document contains the signature of both parties, provides
for the duration of the employment relationship and the remuneration payable to the Claimant.
Moreover, it clearly stipulates that the Claimant is employed as a footballer with the Respondent.
Additionally, the Chamber remarked that it remained undisputed that Claimant travelled to the
UAE upon which a work permit was issued to him for purposes of being employed by the
Respondent and soon thereafter commenced with his employment services by participating in
training and playing a match for the Respondent club.
30. On account of the above, the Chamber concluded that the offer is in fact a valid and binding
employment contract and shall be considered in the case at stake, as the contractual basis of the
present dispute.
31. The Chamber also noted that the Respondent disputed the validity of the employment contract, in
particular, referring to the terms and conditions of the offer, which, inter alia, stipulated that, this
Page 7
REF FPSD-4339
offer shall not cause any contractual liability on Al Dhafra FC at any stage unless the player successfully
passes all the required medical tests.
32. In this context, the Chamber first reminded the parties of the clear and explicit wording of art. 18
par. 4 of the Regulations, according to which the validity of an employment contract cannot be
made subject to a successful medical examination and/or the granting of a work permit. Referring
also to the obligation of the parties to maintain contractual stability, the Chamber underlined that
a club willing to engage a specific player should perform any medical examination prior to
concluding any employment contract with the player. Any contractual provision contrary to art. 18
par. 4 of the Regulations shall be considered as invalid. However, this does not affect the validity
of the entire contract. The duties of the parties towards each other under the employment contract
remain valid and binding.
33. Based on the foregoing, the Chamber rejected the Respondent’s objection to the validity of the
employment contract subject to the passing of a medical examination.
34. Following the foregoing circumstances, the DRC concluded that the Claimant and the Respondent,
on 11 August 2021, entered into a valid and binding employment agreement, which came into
force on 19 August 2021.
35. Lastly, the DRC deemed that the contract was de facto terminated by the Respondent on
3 September 2021 (the day the Claimant was informed that his services are no longer required and the
issuing of flight tickets by the Respondent for the Claimant to return to Brazil), accordingly, it concluded
that such termination of the contract occurred without just cause.
ii. Consequences
36. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, and
in particular that no salaries were yet paid by the Respondent to the Claimant, the DRC decided
that Respondent shall be held liable to pay compensation to the Claimant.
38. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the Claimant by the Respondent in the case at stake. In doing so, the Chamber 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 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.
Page 8
REF FPSD-4339
39. In application of the relevant provision, the Chamber held that it 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 Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
40. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
41. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with
the calculation of the monies payable to the Claimant under the terms of the contract from the
date of its unilateral termination until its end date. Consequently, the Chamber concluded that the
amount of USD 230,000 (i.e., residual value of the contract – 19 August 2021 until 30 June 2022)
serves as the basis for the determination of the amount of compensation for breach of contract.
42. In continuation, the Chamber verified as to whether the Claimant 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 Claimant’s general obligation to mitigate his damages.
43. Indeed, the Claimant found employment with the Brazilian club, Ferroviária Futebol. In accordance
with the pertinent employment contract, the Claimant was entitled to BRL 3,000 per month, valid
from 1 December 2021 until 5 April 2022. Therefore, the Chamber concluded that the Claimant
mitigated his damages in the total amount of BRL 15,000 (approximately USD 3,031.28), that is,
BRL 3,000 times five.
44. Subsequently, the Chamber 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. In the case at hand, the Chamber confirmed that the contract termination did not take
place due to said reason i.e., overdue payables by the club – the contract was indeed terminated
by the Respondent, hence it decided that the Claimant shall not be entitled to receive additional
compensation.
45. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the Respondent must pay the amount of USD 226,968.72
to the Claimant (i.e., USD 230,000 minus USD 3,031.28), which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter.
Page 9
REF FPSD-4339
46. Lastly, 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 on said compensation at
the rate of 5% p.a. as of 18 November 2021 i.e., date of claim until the date of effective payment.
iii. Compliance with monetary decisions
47. 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.
48. 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.
49. 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.
50. 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.
51. 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
52. 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.
53. 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.
54. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
Page 10
REF FPSD-4339
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Murilo Rangel Barbosa, is accepted.
2.
The Respondent, Al Dhafra FC, has to pay to the Claimant, the following amount:
USD 226,968.72 as compensation for breach of contract without just cause plus 5% interest
-
p.a. as from 18 November 2021 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision, the
following consequences shall apply:
▪
1.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall be of
three entire and consecutive registration periods.
2.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
5. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 11
REF FPSD-4339
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 12