Dispute Resolution Chamber
Texto da decisão
REF 20-01741 / FPSD-429
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Bruno Uvini Bortolança
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
Bruno Uvini Bortolança, Brazil
Represented by Bento Pereira Neto
RESPONDENT:
Al Ittihad, Saudi Arabia
Represented by Jan Kleiner & Vanessa Plavjanikova
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I.
FACTS OF THE CASE
1. On 8 January 2020, the Brazilian player, Bruno Uvini Bortolança (hereinafter: Claimant), and
the Saudi club, Al Ittihad (hereinafter: Respondent) signed an employment contract valid as
from 8 January 2020 until 30 June 2022.
2. In accordance with clause 4 of the employment contract, the Respondent undertook to pay to
the Claimant inter alia:
A fixed monthly salary of USD 183.333 (United States Dollars) for the sporting
seasons 2019/2020 and 2020/2021.
A fixed monthly salary of USD 191.666 for the sporting season 2021/2022
3. By correspondence dated 10 November 2020, the Claimant put the Respondent in default of
payment of USD 366,666 as outstanding remuneration for the months of September and
October 2020, setting a time limit expiring on 25 November 2020 in order to remedy the
default.
4. On 26 November 2020, the Claimant notified the Respondent of the unilateral termination of
the employment contract for just cause, namely due to the consistency of the outstanding
salaries.
II.
PROCEEDINGS BEFORE FIFA
5. On 27 November 2020, the Claimant lodged a claim before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
6. According to the Claimant, the Respondent failed to comply with its financial obligations
towards the Player.
7. In this context, the Claimant alleged that the Respondent failed to pay an amount
corresponding to 2 (two) monthly salaries, namely those ones that the latter should have paid
in relation to the months of September 2020 and October 2020.
8. Moreover, the Claimant pointed out that the Respondent was put in default of said amounts
by means of letter dated 10 November 2020 and granted with a deadline of at least 15 days
in order to fully comply with its financial obligations, but to no avail.
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9. Consequently, the Claimant invoked his right to terminate the employment contract with just
cause, namely as the requirements for the application of art. 14 bis of FIFA Regulations on the
Status and Transfer of Players would have been met.
10. The requests for relief of the Claimant, accordingly, were the following:
To condemn the Respondent to pay to the Claimant the amount equal to USD
366.666 as outstanding salaries;
To condemn the Respondent to pay to the Claimant a compensation in the amount
of USD 3.766.656,00, equivalent to the residual value of the employment contract
as of the date of termination (i.e. 26 November 2020) until 30 June 2022.
b.
Position of the Respondent
11. In its reply to the claim, the Respondent did not contest the factual existence of overdue
payables towards the Claimant, nor that the latter would be entitled to receive a compensation
due to a breach of contract by the same club.
12. According to the Respondent, however, the claim shall be primarily rejected, while the
compensation to be paid to the Claimant, if any, shall be mitigated in its amount due to the
relevant change of circumstances following the Covid-19 pandemic.
13. In this context, the Respondent pointed out that the governmental lockdown led to the
suspension of the Saudi Professional League and, as a consequence, the Respondent had no
means to generate any significant income and to provide work for its staff.
14. Moreover, the Respondent stressed how the funding of the sports clubs was suspended by
the Government as the budget was transferred to the health sector.
15. In the Respondent’s opinion, since the COVID-19 pandemic modified the factual and legal
framework under which the Contract had been originally signed and it became no longer
possible for Al Ittihad to meet the payment conditions initially agreed, the FIFA DRC should
apply the principle “Rebus Sic Stantibus” in order to adapt the contract to the new
circumstances and conditions, hence acknowledging a partial frustration of the same contract.
16. In consideration of the above, the Respondent concluded that “under the current economic
circumstances, the Respondent would never be in a position to offer the Claimant a three
years’ contract in the value of USD 6,415,000 (taking into an account the basic wage only)”…
as this would not “simply correspond to today's economic reality in the world of football and
such large amounts could nowadays also not be expected by a reasonable contractual partner,
even less so in a claim for compensation, which essentially refers to a hypothetical remaining
value of a contract for the future”
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17. Therefore, the Respondent requested that in case of non-rejection of the claim by the DRC,
the questioned amounts shall be amended, reflecting the current economic situation, and that
no sporting sanctions shall be imposed on the club.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
18. 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 27 November 2020 and submitted for
decision on 6 May 2021. Taking into account the wording of art. 21 of the January 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
19. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b)
of the Regulations on the Status and Transfer of Players (edition February 2021), 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 club.
20. 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 Player (edition February 2021) and
considering that the present claim was lodged on 27 November 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as
to the substance.
b.
Burden of proof
21. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art.
12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties.
22. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to
the application of the Regulations, any documentation or evidence generated or contained in
TMS.
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c.
Merits of the dispute
23. The competence of the DRC and the applicable regulations having been established, the DRC
entered into the merits of the dispute. In this respect, the DRC started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file. However,
the DRC 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.
i. Main legal discussion and considerations
24. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the outstanding remuneration as well as the breach of contract
by the Club remained uncontested.
25. In this context, the Chamber recalled how the same Respondent acknowledged that “in
principle a certain financial compensation is due to the Player and that the threshold of Art.
14bis RSTP was, from a strictly formal perspective, met”.
26. Nevertheless, the Chamber noted that the Respondent is of the opinion that the employment
contract was frustrated by the unexpectable and unavoidable change of conditions
subsequent to the Covid-19 disruption, which would have therefore led to a factual
impossibility for the Respondent to fully comply with its financial obligations toward the
Claimant.
27. In this regard, the Chamber wishes to observe that the thesis presented by the Respondent
cannot be upheld.
28. In particular, the Chamber would like to remark that although the Covid-19 pandemic
disruption occurred in March 2020, the Respondent did not even attempt to negotiate an
amendment of the contractual conditions and terms with the Claimant, nor it provided any of
the argumentations illustrated above until the latter lodged a claim in November 2020, namely
8 months after.
29. Moreover, the DRC noted that the Respondent did not reply to the Claimant’s letter of default
dated 10 November 2020, and on the contrary it reacted solely in front of the evident treat
represented by a potential adverse decision from this Chamber.
30. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020,
FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
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clarification about the most relevant questions in connection with the regulatory consequences
of the COVID-19 outbreak and identifies solutions for new regulatory matters.
31. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the
FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
32. In this context, the DRC considered that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the Claimant, in other
words, the reasons brought forward by the Respondent in its defence do not exempt the
Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
33. Consequently, considering that the Respondent had thus repeatedly and for a significant
period of time been in breach of its contractual obligations towards the Claimant, the
Chamber decided that the Claimant had just cause to unilaterally terminate the employment
contract on 26 November 2020 and that, as a result, the Respondent is to be held liable for
the early termination of the employment contact with just cause by the Claimant.
ii. Consequences
34. Having stated the above, and before entering the analysis of the consequences of the
unjust termination of contract on the part of the Respondent, the Chamber deemed it
appropriate to first quantify the outstanding remuneration still due by the Respondent to the
Claimant.
35. In this regard, the Chamber recalled that the Claimant in his request for relief has claimed the
amount of USD 366,666 as corresponding to the monthly salaries of September and October
2020.
36. Notwithstanding the above, the Chamber deemed appropriate to include in the category of
amounts due as outstanding remuneration also the salary related to the month of November
2020 (i.e. additional USD 183,333), as the termination of the contract by the Claimant
occurred only on 26 November 2020 and he provided his services until that moment.
37. Bearing in mind the considerations above, and in accordance with the general legal principle
of pacta sunt servanda, the Chamber established that the Claimant is entitled to USD 549,999
as outstanding remuneration.
38. Having stated the above, the members of the Chamber turned their attention to the
consequences of the unjustified breach of contract committed by the Respondent.
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39. In this respect, the Chamber underlined the absence of any compensation clause included in
the contract. Consequently, the DRC held that no compensation clause being applicable to
the case at hand, the compensation can be assessed on the basis of the residual value of the
contract in line with the jurisprudence of the Dispute Resolution Chamber.
40. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the employment contract as from the date of
termination without just cause by the Respondent until its natural expiration. Bearing this in
mind, the Chamber deemed that the Claimant would have received in total USD 3,583,323 as
remuneration for the period as from December 2020 until June 2022.
41. However, the Chamber noted that as of 1 February 2021 the Claimant stipulated an
employment contract with the Japanese club FC Tokyo, valid from said date until 1 January
2023.
42. In this respect, the Chamber observed that the Claimant was able to mitigate the loss
ascribable to the termination occurred on 26 November 2020 for a total amount of USD
782,727.
43. In light of the above, said amount shall be deducted from the residual value of the employment
contract as previously quantified.
44. Furthermore, the Chamber recalled that the termination of the employment contract by hand
of the Claimant has been effectively justified by the existence of overdue payables as per the
terms and conditions set by art. 14 bis of the FIFA RSTP.
45. Therefore, in accordance with art. 17 par.1 lit. ii) of the FIFA RSTP, the Claimant shall be
entitled to an additional compensation corresponding to three monthly salaries (i.e. USD
549,999).
46. In light of the above, the Chamber calculated that the total compensation to which the
Claimant shall be entitled amounts to USD 3,350,595.
iii. Compliance with monetary decisions
47. Finally, the Chamber 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.
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 and for the maximum duration
of three entire and consecutive registration periods.
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49. 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, communicates the relevant bank details to the Respondent, provided that the
decision is final and binding, 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.
50. The DRC recalled that the above-mentioned bans 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
d.
Costs
52. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and
a player are free of charge”. 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. 18 par.
4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Bruno Uvini Bortolança, is accepted.
2.
The Respondent, Al Ittihad, has to pay to the Claimant, the following amount:
USD 549,999 as outstanding remuneration.
USD 3,350,595 as compensation.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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) 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 20 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
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