Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Om ar Ongaro (Italy), Deputy Chairman
Johan v an Gaalen (South Africa), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Jonathan Boareto dos Reis , Brazil
represented by Ms Christiane Munster Oliveira
as Claimant
against the club,
Al Gharafa S C, Qatar
represented by Mr Nilo Effori
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 10 August 2017, the Brazilian player Jonathan Boareto dos Reis (hereinafter:
the Claimant or the player) and the Qatari club, Al Gharafa SC (hereinafter: the
Respondent or the club) concluded an employment contract (hereinafter:
contract1 ), valid as from 10 August 2017 until 30 June 2019.
2.
According to contract 1, the Respondent undertook to pay to the Claimant the
following amounts:
- EUR 1,143,750 on 1 September 2017;
- EUR 1,143,750 on 1 January 2018;
- EUR 55,000 as monthly salary for the months August 2017 until May 2018 (10x);
- EUR 50,000 as monthly salary for the month June 2018;
- EUR 1,093,750 on 1 August 2018;
- EUR 1,093,750 on 1 January 2018;
- EUR 60,000 as monthly salary for the months July 2018 until April 2019 (10x);
- EUR 55,000 as monthly salary for the months May and June 2019.
3.
Art. IX par. 3 of contract 1 reads as follows: “The validity of this Contract is subject
to the specific approval of the QFA and the confirmation that the Player is eligible
to play (ratification of the Contract)”.
4.
On 12 September 2017, the parties signed a termination agreement (hereinafter:
termination agreement), which, inter alia, reads as follows: “The employment
contract between the club and the player, signed on 10 August 2017, is terminated
from 12 September 2017, as according to the Article X.2 of such contract. By
signing this termination agreement, the player confirms and agrees that the club
does not have any debts towards him. The player agrees and confirms that there
is no salary, sign on fee, outstanding amounts or any present or future payment
to be made by the club to him in connection to the employment contract signed
on 10 August 2017.”
5.
On 14 September 2017, the parties signed a new employment contract
(hereinafter: contract 2) valid as from 14 September 2017 until 30 June 2019.
According to contract 2, the Respondent undertook to pay to the Claimant the
following amounts:
- EUR 45,000 as monthly salary between September 2017 and June 2018 (10x);
- EUR 37,500 as monthly salary between July 2018 and June 2019 (12x).
6.
Art. 10.6 of contract 2 reads as follows: “The player shall be entitled to terminate
this contract by fifteen days’ notice in writing to the club if the club:
a) Shall be guilty of serious or persistent breach of the terms and conditions of
this contract; or
b) Fails to pay any remuneration or other payments or bonuses due to the player,
after a notice of thirty days, for more than four consecutive months, even the
FIFA Dispute Resolution Chamber’s and the Court of Arbitration for Sport’s
Jurisprudence considers three months overdue as a reason to breach the
contract, the player agrees to be four consecutive months the reason to breach
reach regarding outstanding payments;
c) The Player need to give an official notice to the club with a period of 30 days
to cure the default in clause 10.6.b.”
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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7.
Art. 10.7 of contract 2 reads as follows: “In case the player has just cause to
terminate the contract based on 10.6 above, he shall receive 70% (seventy per
cent) of the remaining amount of the contract as compensation, reduced by any
outstanding amount from the club according to this contract. The principle of
mitigation of damages must also be applied, where the new contract(s) signed by
the player will reduce the amount of compensation to eventually be paid by the
club.”
8.
On 24 December 2017, the parties concluded a settlement agreement (hereinafter:
settlement agreement) in order to terminate the existing employment
relationship. In accordance with the agreement, the Respondent was obliged to
pay the player Qatari Riyals (QAR) 215,000 and EUR 50,000 “within 10 days”.
9.
Said settlement agreement, inter alia, read as follows: “The parties hereby ratify
their relationship is terminated in relation to the employment contract granting
each other a full, general and irrevocable release of any and all obligations arising
under the employment contract. Upon the full accomplishment of the obligations
as stated in clauses 2 and 3 below [above-mentioned payments], the parties will
irrevocably waive and renounce any rights, and/or claims they may have against
each other to pursue any legal action and/or initiate any judicial or extrajudicial
proceeding against each other whether concerning fees, salaries, wages, bonus etc
based on the employment contract.”
10.
On 18 January 2018, the player signed an employment contract with the South
Korean club, Busan Ipark FC, valid as from 18 January 2018 until 17 January 2018,
including a monthly salary of USD 33,333 as well as a sign-on fee of USD 150,000.
11.
On 28 June 2018, the contract between the Claimant and Busan Ipark FC was
mutually terminated.
12.
On 15 August 2018, the player signed an employment contract with the Iranian
club, Sanat Naft Abadan FC, valid as from 15 August 2018 until 15 June 2019,
including a total salary of USD 200,000.
13.
On 1 March 2019, the player lodged a claim in front of FIFA for breach of contract
against the club requesting requested payment of the following amounts due to
the club’s termination of contract 1 without just cause on 14 September 2017:
- EUR 1,149,250 as outstanding remuneration corresponding to the payment due
on 1 September 2017 and the salary of August 2017.
- EUR 2,397,000 as compensation corresponding to the residual value of the
contract.
14.
Alternatively, the player requested payment of the following amounts based the
club’s alleged breach of contract 2:
- EUR 135,000 as outstanding remuneration corresponding salaries of September
2017 until November 2017;
- EUR 630,000 as compensation corresponding to 70% of the residual value of
the contract, in accordance with art. 10.7 of contract 2.
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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15.
In his claim, the Claimant held that the club “forced” him under duress to sign
contract 2 with a significant lower salary than contract 1 and even after said
contract 2 was signed, the player’s salary remained unpaid for 3 months, which led
the player to “unilaterally terminate the contract” with just cause.
16.
Furthermore, the player alleged that his wife and him were stopped at the airport
and prevented from leaving the country in December 2017 due to the lack of a
“clearance certificate” issued by the club. According to the player, he had to sign
the settlement agreement dated 24 December 2017 in order to receive such
document and to be able to leave the country.
17.
In this framework, and under the assumption that contract 2 as well as the
settlement agreement dated 24 December 2017 were concluded under duress and
are therefore null and void, the player requested outstanding remuneration and
compensation for breach of contract based on contract 1. Alternatively, he
requested outstanding remuneration as well as compensation for breach of
contract based on his alleged termination of contract 2 with just cause.
18.
In its reply, the club rejected the player’s claim, but acknowledged its debt of EUR
50,000 to the player, resulting from the settlement agreement dated 24 December
2017, which would be submitted as soon as the club receives the player’s bank
details.
19.
Moreover, the club maintained that after contract 1 was signed, the player could
not be registered due to a dispute with his former club about the transfer fee and
the rejection of the ITC.
20.
In this regard, the club enclosed a decision of the Single Judge of the PSC, dated
19 September 2018, according to which the former club’s claim for a transfer fee
against the club was rejected.
21.
According to information contained in the Transfer Matching System (TMS), the
transfer instruction of the transfer in question was uploaded in the System on 17
August 2017, subsequently the former club failed to upload the counter
instruction, which led the club on 26 December 2017, to cancel the transfer with
the remark: “FK Vardar refused to enter the counter instruction before the first
registration Window so that we terminated the contract with the player.”
22.
The club further argued that since the player could not be registered and due to
Art. IX par. 3 of contract 1, there was a “concrete risk that the first contract was
not valid”, which led to discussions about the continuance of the employment
relationship between the parties. The club rejected any assertions about duress
and held that already two days before the conclusion of contract 2, contract 1 was
mutually terminated with an agreement, signed by the player with his free will.
23.
In addition, even though the player could not yet be registered and got injured in
the meantime, the club maintained that both parties intended to continue the
employment relationship, which led to the conclusion of contract 2 without a
clause like art. IX from contract 1.
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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24.
The club further argued that the settlement agreement was concluded without
any duress. In fact, the club held that the player approached the club in order to
terminate the contract. In this regard, the club submitted a WhatsApp
conversation dated 21 December 2017 between the player and the club’s team
coordinator in which such approach is confirmed.
25.
Furthermore, the club submitted another WhatsApp conversation dated 5 March
2018, in which the player requested payment of the remaining amount of EUR
50,000. In the club’s view he therefore confirmed the settlement agreements’
validity.
26.
In his replica, the player reiterated his position and held that the club’s allegations
were not based on evidence. The player confirmed having tried to find an amicable
solution, but that a settlement in the total amount of EUR 200,000 was offered by
the club. In the player’s view that confirms duress since he would not have settled
for an amount significantly lower than that.
27.
In its duplica, the club reiterated its position and insisted that the settlement
agreement is valid.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analyzed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 1 March
2019. Consequently, the 2018 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the DRC noted that, in accordance with art. 24 par. 1 and 2. in
combination with art. 22 lit. b) of the aforementioned Regulations on the Status
and Transfer of Players (edition January 2020), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Brazilian player and a
Qatari club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition
January 2020), and considering that the present claim was lodged on 1 March
2019, the June 2018 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching
System (TMS).
5.
First, the DRC started by acknowledging that, according to the Claimant, he was
“forced” under duress to sign contract 2 as well as the settlement agreement on
24 December 2017. Under the assumption that those documents were null and
void, the Claimant requested outstanding remuneration and compensation for
breach of contract based on contract 1. Alternatively, he requested outstanding
remuneration as well as compensation for breach of contract based on his alleged
termination of contract 2 with just cause.
6.
The Dispute Resolution Chamber furthermore took due note of the fact that the
Respondent, on its part, had categorically denied any duress and held that the
contracts as well as the settlement agreement are valid.
7.
In view of this dissent between the parties in respect of the basic question as to
whether or not the employment contracts and the settlement agreement were
valid, the members of the Chamber firstly referred to art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. Due to the fact that the
conclusion of contract 2 and the settlement agreement as such were not contested,
the application of the said principle in the present matter led the members of the
Dispute Resolution Chamber to conclude that it was up to the Claimant to prove
that contract 2 and the settlement agreement were signed under duress.
8.
On account of the above, the members of the Chamber turned their attention to
the Claimant’s arguments having been forced to sign contract 2 and the settlement
agreement and noted that he failed to submit any corroborating evidence in order
to proof his allegations.
9.
On the other hand, the Chamber duly noted the Respondent’s explanation
regarding the termination of contract 1 and the conclusion of contract 2 as well
as the approach of the player via WhatsApp on 21 December 2017 in which he
requested the termination of contract 2.
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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10.
Moreover, the Chamber took note of the player’s approach in 5 March 2018,
whereby he requested payment of the outstanding EUR 50,000 from the club,
resulting from the settlement agreement. In the opinion of the DRC, the player
appears to have been assessing the settlement agreement as valid at this point.
11.
What is more, the Chamber noticed that the Claimant lodged his claim more than
one year after the alleged occurrence of duress without having sent any
notification to the club disputing the validity of such document.
12.
On account of the above, and due to the lack of corroborating evidence regarding
any duress in connection with the documents in question, the Chamber had to
reject the player’s arguments and declared the settlement agreement dated 24
December 2017 valid.
13.
From the documentation on file, it appears that the amount of QAR 215,000 has
been remitted to the player by the club.
14.
Furthermore, it remained undisputed that the amount of EUR 50,000 resulting
from the settlement agreement remained unpaid.
15.
In view of the above, the DRC established that the Respondent had failed to pay
to the Claimant the amount of EUR 50,000 as agreed upon between the parties in
the settlement agreement. As a consequence, and in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfil its contractual
obligations towards the Claimant and is to be held liable to pay the Claimant the
amount of EUR 50,000.
16.
Finally, the members of the Chamber established that any further claim lodged by
the Claimant is rejected.
17.
Furthermore, taking into account the consideration under number II./3. above, the
DRC referred to par. 1 and 2 of art. 24bis 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.
18.
In this regard, the Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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19.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
20.
Finally, the Chamber recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Jonathan Boareto dos Reis, is partially accepted.
2.
The Respondent, Al Gharafa SC, has to pay to the Claimant the amount of EUR
50,000.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision of the relevant bank account to which the Respondent must pay the
amount mentioned under point 2. above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected],
duly translated, if need be, into one of the official FIFA languages (English,
French, German, Spanish).
6.
In the event that the amounts due plus interest in accordance with point 2.
above is not paid by the Respondent w ithin 45 day s as from the notification
by the Claimant of the relevant bank details to the Respondent, the Respondent
shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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8.
In the event that the aforementioned sum is still not paid by the end of the ban
of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration and
a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Jonathan Boareto dos Reis, Brazil / Club Al Gharafa SC, Qatar
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