Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Vice-Chairman
S téphane Burchkalter (France), member
Jerôm e Perlem uter (France), member
on the claim presented by the club,
Des portiv o 1° Agos to, Angola,
represented by Mr Domingos Silva Alves
as Claimant
against the player,
Os v aldo Pedro Capem ba, Angola
represented by Mr Breno Costa Ramos Tannuri
as Respondent 1
and the club,
CD Trofens e, Portugal
as Respondent 2
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 6 February 2018, the Angolan player, Osvaldo Pedro Capemba (hereinafter: the player or
the Respondent 1) and the Angolan club, Primeiro de Agosto (hereinafter: Primeiro de Agosto
or the Claimant) and the legal guardian of the player signed a “Contrato de Aprendizagem
Desportiva de Futebol” (“Sporting Leaning Agreement”) contract (hereinafter: the
agreement or the contract), for the following duration “This Agreement is of a fixed duration
and its commencement, for all legal purposes, will begin on February 6, 2018 and will be in
effect for four (4) sporting seasons, ending on 31st of January 2022, and may be renewed if
it is in the interest of the parties”.
2.
Art. 1 of the agreement defined the object of the contract as follows:
“1. The CLUB as a trainer undertakes to carry out the sports training of the TRAINEE,
integrating in its training levels, having for the purpose the human structural and needed
technical resources for the provision of sports training, appropriate to human
development, technical and professional development of the TRAINEE.
2. The TRAINEE undertakes to provide, with regularity and punctuality, the training tasks
of football with zeal and diligence, in representation and under the authority and
direction of the CLUB, observing the instructions of the people in charge of his training
and as well as to regularly perform the football activity of the CLUB, integrating the teams
of the age group corresponding to his age.
3. The TRAINEE declares to have proven to have completed sixteen (16) years of age and is
therefore able to be a party to this contractual learning relationship, under the CLUB
guidance and authorization of his legal guardian who declares his express authorization
in signature in this contract.”.
3.
In accordance with art. 2 of the agreement, the player was entitled to the following:
“Retribution:
1. For the exercise of its activity, the CLUB undertakes to pay the TRAINEE, the monthly
amount corresponding to its category, in the year of entry or for which he was registered at
the beginning of the season. In addition to subsidies or support that are timely fixed.
2. For the category of insiders, the CLUB will pay the TRAINEE the amount corresponding to
Twenty Five Thousand Kwanzas (25,000.00 AKZ) per month (note: approx. EUR 97);
3. For the youth category the CLUB will pay the TRAINEE the amount corresponding to Thirty
Five Thousand Kwanzas (35,000.00 AKZ) per month (note: approx. EUR 135);
4. For the junior category the CLUB will pay the TRAINEE the amount corresponding to Fifty
Thousand Kwanzas (50,000.00 AKZ) per month (note: approx. EUR 193)”.
4.
Art. 6 of the agreement further provided that “The tax obligations provided for in the Law
(IRT - Income Tax and Social Security) will be paid by the TRAINEE, and the CLUB shall deduct
from his remuneration as established by law.”.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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5.
Art. 3 of the agreement further entitled the player to “medical and pharmaceutical
assistance”.
6.
In accordance with art. 4.1.b) of the agreement, the Primeiro de Agosto had to pay the player
“in due time the agreed amount”.
7.
Art. 4.2.f) of the agreement provided that the player should “not engage in any other
professional of business activity without authorization from [Primeiro de Agosto]”.
8.
In accordance with art.8 of the agreement:
“The contract may be terminated under the following conditions:
(a) Revocation at any time by agreement of the parties;
b) Final transfer upon payment of the termination clause;
c) Dismissal with just cause promoted by the Club;
d) Termination for cause at the initiative of TRAINEE;
e) It is considered just cause the breach of the obligations by the Club or the duties of
conduct,
or others, which is obliged to the TRAINEE under this contract.”
9.
Article 10 of the agreement provided the following:
“1. If any national or foreign club wishes to acquire the trainee's final pass under this
contract, he/she must pay the transfer clause of Two hundred million Kwanzas
(200,000,000.00 AKZ). (note: approx. EUR 775,810)
2. The TRAINEE and any other club with whom he wishes to sign a contract shall be
subject to
the obligation under the Rules of Procedure and Transfer of the FIFA player to pay
compensation for training to the CLUB when he signs the his first professional contract
and whenever he is transferred between clubs of different associations, either during or
at the end of his contract, until he is twenty-three (23) years old.”
10. Art. 14 of the agreement provided the following:
“1. The Parties shall seek dialogue through the settlement of all disputes arising from the
interpretation and performance of this Agreement in accordance with the principles of
good
faith.
2. If there is no understanding hereby, the parties shall refer the dispute to arbitration in
accordance with the FIFA Statutes;
3. Arbitration shall be subject to the procedures set forth by Law 16/03 of 25 July - Law on
voluntary arbitration, whereas the Arbitral Tribunal composed of three arbitral choosing
the
parties a single arbitral that will choose a third to preside;
4. The arbitration shall be chosen from persons with a minimum of five years of sports
management experience, preferably licensed in law;
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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5. The Arbitral Tribunal shall function in Luanda and its decisions shall be final and binding,
and the parties shall hereby waive any appeal.”
11. The player was born on 10 January 2002.
12. On 6 February 2018, the player and Primeiro de Agosto signed the contract.
13. On 4 September 2019, the Portuguese club, CD Trofense (hereinafter: Trofense or the
Respondent 2) contacted Primeiro de Agosto via letter, informing Primeiro de Agosto that it
was “ready to pay the buy-out clause stipulated in the Football Sports learning Contract
(“contract”) between the player and the club in the amount of AOA 200,000,000”. The letter
further provided that in case no banking details were received from Primeiro de Agosto to
Trofense, Trofense would “be required to transfer the amount to the Angolan Football
Federation” and added that it would be waiting for the reply of Primeiro de Agosto.
14. On 9 September 2019, Primeiro de Agosto lodged a claim against the player and Trofense in
front of FIFA for breach of contract.
15. Allegedly on 4 October 2019, Trofense announced a pre-agreement with the player on its
Facebook page.
16. On 28 January 2020, Trofense entered a transfer instruction in TMS to engage the player
permanently (out of contract).
17. On 9 September 2019, Primeiro de Agosto lodged a claim in front of FIFA against the player
and Trofense club for breach of contract, requesting the following Angolan Kwanza (AOA)
200,000,000 and EUR 800,000 corresponding to:
a) From the player:
AOA 200,000,000 (approx. EUR 775,810) corresponding to “the amount of the
termination clause stipulated in article 10” of the contract;
Sporting sanctions to be imposed on the player.
b) From Trofense:
EUR 800,000 “for sports, financial and image losses”;
Sporting sanctions to be imposed on both the player and Trofense
Legal costs and fees at the expense of the player and Trofense.
18. According to Primeiro de Agosto, as of August 2019, the player was absent from trainings
and left the club’s premises without authorization.
19. Primeiro de Agosto held that it tried to contact the player and his parents but to no avail.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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20. Primeiro de Agosto argued that the player had breached the contract by leaving the club and
had been induced by Trofense to do so. In this regard, Primeiro de Agosto held that following
the offer of Trofense, to which it did not reply, the player was nevertheless announced on
Trofense’s facebook page as a new player.
21. Primeiro de Agosto underlined that Trofense did not pay any of the amounts provided in art.
10 of the agreement.
22. According to Primeiro de Agosto, the player was a minor when the alleged breach occurred,
and consequently no transfer could have occurred.
23. In conclusion, Primeiro de Agosto held that both Trofense and the player should be held liable
for the payment of compensation for breach of contract.
24. In reply to the claim of Primeiro de Agosto, the player and Trofense (hereinafter collectively
called the Respondents) contested the competence of FIFA arguing that art. 14 of the
agreement specified that in case of dispute, only an arbitral tribunal located in the city of
Luanda would be competent. The player and Trofense argued that such arbitral tribunal
would then follow the Angolan law and as such would be “compliant with the fundamental
premises of the due process and principles of law”.
25. The player and Trofense held that in application of art. 22 of the FIFA RSTP “without prejudice
to the right of any player or club to seek redress before a civil court for employment-related
dispute”, the parties to the agreement specifically choose an arbitral tribunal located in
Luanda to be competent.
26. The player and Trofense considered that “It is thus undisputed that the parties by choosing
the referenced national arbitration tribunal, it will act as a local ordinary court and,
consequently, fulfils within one of those pre-conditions, which automatically set aside the
competence of the decision-making bodies of FIFA.”
27. On the substance, the Respondents held that the object of the contract was not for it to be
an employment contract of a professional football player, but only for the player to be
trained. They held that “the aim of the parties was to establish the minimum elements
regarding the training and education” of the player by Primeiro de Agosto.
28. In this regard, the Respondents held that “it is necessary to have a proper employment
(written) contract with a view to fulfil within the pre-conditions of the aforementioned
quoted FIFA rules. It will be only within this context that a status of a player will change, i.e.
from amateur to professional”.
29. The Respondents further held that the player never played any professional match with
Primeiro de Agosto.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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30. Trofense held that the player could not be considered a professional player since his salary in
Primeiro de Agosto was equivalent to EUR 46 per month and that such compensation “is less
than the bare minimum required to survive and sustain himself and his family in Angola”.
31. The player argued that he stopped attending trainings since he knew that Trofense was trying
to pay the amount provided in art. 10 of the agreement (which both Respondents considered
to be a buyout), and as such considered that by paying the buyout, he was automatically
released from the original contract.
32. On any eventual compensation, the player argued that only training compensation could be
due to Primeiro de Agosto, but no compensation for breach of the contract, since the parties
were not tied by a professional contract. In this regard, the player considered that the training
compensation that could be claimed by Primeiro de Agosto against the new club should be
EUR 15,833.
33. The Respondents argued that the amount provided in art. 10 of the agreement is potestative
and that art. 10 is a buyout clause and as such cannot be used for the calculation of
compensation for breach of contract. In this regard, the player underlined that Primeiro de
Agosto failed to provide its banking details to Trofense and that consequently it should be
able to claim that amount as well as an additional compensation of EUR 800,000 which
according to the player, is not even substantiated.
34. If the player and the new club were to be considered in breach of the contract, then the
player considered that the reasonable compensation due to Primeiro de Agosto would be
AOA 750,000 (approx. EUR 1,840) as it represents the residual value of the contract (from
September 2019 to February 2022 – AOA 25,000 x 30) and that should the DRC decide to take
into account the new contract of the player as well, then the mitigation could not be higher
than EUR 28,590.
35. According to the information currently available on the Transfer Matching System (TMS), on
28 January 2020, Trofense entered into TMS the transfer instruction to permanently transfer
the player (out of contract free of payment) and on the same day the Portuguese Football
Association requested the ITC of the player.
36. On 30 January 2020 the Angola Football Association rejected the ITC request arguing that
“there has been no mutual agreement regarding early termination of the employment
contract between the former club and the professional player”.
37. On the same day, the Portuguese FA disputed the rejection of the ITC. On 14 February 2020,
the Single Judge of the Players’ Status Committee authorized the provisional registration of
the player and on the same day, the player was registered by the Portuguese FA.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA on 9 September 2019. Consequently,
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) of the
Regulations on the Status and Transfer of Players (edition 2020) the Dispute Resolution
Chamber would, in principle, be competent to deal with the matter at stake, which concerns
a dispute between an Angolan club, an Angolan player and a Portuguese club in relation to
the maintenance of contractual stability where there has been an ITC request.
3.
However, the Chamber acknowledged that the Respondents contested the competence of
FIFA’s deciding bodies stating that civil court should be competent in application of art 14
of the agreement which stated that :
“1. The Parties shall seek dialogue through the settlement of all disputes arising from the
interpretation and performance of this Agreement in accordance with the principles of good
faith.
2. If there is no understanding hereby, the parties shall refer the dispute to arbitration in
accordance with the FIFA Statutes;
3. Arbitration shall be subject to the procedures set forth by Law 16/03 of 25 July - Law on
voluntary arbitration, whereas the Arbitral Tribunal composed of three arbitral choosing
the
parties a single arbitral that will choose a third to preside;
4. The arbitration shall be chosen from persons with a minimum of five years of sports
management experience, preferably licensed in law;
5. The Arbitral Tribunal shall function in Luanda and its decisions shall be final and binding,
and the parties shall hereby waive any appeal.”
4.
On the basis thereof, the Respondents argued an arbitral tribunal in Luanda was competent.
5.
In this regard, the Chamber noted that the Claimant rejected such position and insisted that
FIFA has jurisdiction to deal with the present matter.
6.
While analysing whether it was competent to hear the present matter, the Chamber recalled
that the Respondents made reference to civil court and to art. 22 of the Regulations which
states in that matter that “Without prejudice to the right of any player or club to seek
redress before a civil court for employment-related disputes […]”.
7.
In relation to the above, the Chamber also deemed it vital to outline that one of the basic
conditions that needs to be met in order to establish that another organ than the DRC is
competent to settle an employment-related dispute between a club and a player of an
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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international dimension, is that the jurisdiction of the relevant national arbitration tribunal
or national court derives from a clear reference in the employment contract.
8.
Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute contained a clear jurisdiction
clause.
9.
Having examined the relevant provision, the Chamber came to the unanimous
conclusion that art. 14 does not constitute a clear and specific jurisdiction clause in
favour of an arbitral tribunal in Luanda, since it only referred to the arbitration and not
civil court. What is more, the DRC was of the unanimous opinion that said art. 14 was
not specific enough in the sense that it mentioned FIFA.
10.
On account of all the above, the Chamber did not consider art. 14 to be a clear and
specific jurisdiction clause and as such, it established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected, and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. a) of the
Regulations on the Status and Transfer of Players, to consider the present matter as to
the substance.
11.
Subsequently, the Chamber analysed which edition of the Regulations on the Status and
Transfer of Players should be applicable as to the substance of the matter. In this respect,
the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (editions 2020) and, on the other hand, to the fact that the
present claim was lodged on 9 September 2019. The Dispute Resolution Chamber concluded
that the June 2019 version of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
12.
The competence of the Chamber and the applicable regulations having been established,
and entering into the substance of the matter, the Chamber started by acknowledging the
above-mentioned facts as well as the documentation contained in the 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.
13.
From the outset, the DRC noted that the Claimant and the Respondent 1 signed an the
agreement on 6 February 2018, valid as from the date of signature until 21 January 2022,
but the Respondent 1 and 2 contested that the agreement was an employment contract for
a professional football player but was mainly an agreement for the Claimant to train the
Respondent 1. The Chamber further noted that according to the Respondents, the player
was not a professional as he never played an official match and was not paid enough to be
considered a professional player and that in any case, at the date of signature of said
agreement, the player was a minor.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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14.
In this context, the DRC deemed that the main issue at stake in this current matter was to
determine if a valid employment contract had been signed by the parties and in that case,
by which party had it been breached and the consequence of said eventual breach.
15.
Firstly, the Chamber recalled 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, the
remuneration and the signature of both parties.
16.
In this regard, the Chamber noted that the Respondents held that the name of the
agreement prevented it to be an employment contract as it was named “sporting
Learning agreement”. In this matter, the DRC highlighted that the name of the
document was irrelevant as long as it contained the essentialia negotii of an
employment contract. In this sense, the DRC attached importance in thoroughly
analyzing the agreement in question. The Chamber noted that said document was
signed by the relevant parties and even the legal guardian of the player, but also
contained the duration of the agreement and a remuneration of the player subject to
local taxes.
17.
Not only that, but the DRC also observed that said agreement contained in its art. 8 and 10
clauses by means of which the future transfer of the player was to be regulated. The
Chamber further noted that the Respondent 2 had intended to acquire the services of the
player by paying to the Claimant the amount provided in art, 10 of the agreement,
contradicting its stance in these proceedings. Indeed, the Chamber remarked that since the
Respondent 2 was willing to pay an amount to acquire the services of the player, then it
meant that the Respondent 2 was also of the opinion that the player was bound to the
Claimant via an employment contract.
18.
After a careful study of the contract presented by the Claimant, the DRC concluded that
in principle, said contract contained all such essential elements.
19.
Secondly, the Chamber focused its attention to the second argumentation of the
Respondents with regard to the validity of the agreement as an employment contract. In
this respect the Chamber observed that the Respondents were of the opinion that no legally
binding employment contract could have signed because the player was a minor at the time
of the signature.
20.
In this regard, the DRC took note that the contract had been signed on 6 February 2018 and
that it was undisputed that at that time, taking into account the date of birth of the player
(10 January 2002), the player was 16 years old.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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21.
In this respect, the DRC found it of the outmost importance to recall art 18 par. 2 of the
Regulation provided inter alia “[…] Players under the age of 18 may not sign a professional
contract for a term longer than three years. Any clause referring to a longer period shall not
be recognized”. The DRC further recalled that the duration provided in the contract was
for 4 sporting season, as from 6 February 2018 until 31 January 2022.
22.
With this in mind, the DRC found that the contract provided for a duration longer than the
one authorized by the Regulations was of the opinion that the length of the contract should
therefore, and since the player was a minor when signing it, be reduce to the maximum of
3 years, meaning until 6 February 2021.
23.
With regard to the argumentation of both Respondents, the DRC recalled that with regard
to its Regulations, the fact that the player was a minor when signing the contract did not
render said contract to be invalid. Moreover, the DRC underlined that said contract had not
only been signed by the player but also by his legal representative, as he was a minor.
24.
Taking into account all of the above, the Chamber was unanimously of the opinion that the
Claimant and the Respondent were validly tied by an employment contract containing all
the essentialia negotii, signed on 6 February 2018 and valid as 6 February 2018 until 6
February and with a progressive remuneration of minimum AOA 25,000 to AOA 50,000.
25.
Having established that a valid and legally binding employment contract had been in force
between the Claimant and the Respondent, the Chamber went on to analyse whether such
contract had been breached and, in the affirmative, which party is to be held liable for
breach of contract.
26.
At this point, the Chamber recalled the claim of the Claimant according to which, the
Respondent 1 had left the Claimant and joined the Respondent 2 without any authorization
and that the Respondent 2 had intended to lift, what it considered to be, the buy out cause
contained in art. 10 of the contract but had not performed the payment. The DRC noted
that the Claimant deemed that the player had breached the contract and that Trofense had
induced him to do so and requested compensation to the player in the amount of AOA
200,000,000 and EUR 800,000 from Trofense.
27.
On the other end, the Chamber noted that the Respondent 2 acknowledged having made
an offer in writing to the Claimant to acquire the player and had informed the Claimant
that it was willing to pay the amount provided in art. 10 of the contract and that should the
Claimant not provide its banking details, the Respondent 2 would proceed to the payment
via the Angolan Football Federation.
28.
The Respondent 1 for its part held that it was aware that the Respondent 2 was willing to
pay the amount provided in art. 10 of the contract and stopped attending trainings with
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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the Claimant as he considered that the Respondent 2 by paying this amount, automatically
released him from the original contract.
29.
The Chamber highlighted that it remained uncontested that the player left the Claimant
prior to the end of the contract during August 2019. At the same time, it remained
uncontested that the Respondent 2 did not pay the amount provided in art. 10 of the
contract.
30.
From the chronology of the events as recalled by the parties and the submissions on file, the
DRC formed the belief that all the parties considered art. 10 of the contract to be a clause
by means of which, pending the payment of AOA 200,000,000 to the Claimant, the
Respondent 2 could acquire the services of the Respondent 1. This is even more clear from
the argumentation of both Respondents as recalled previously.
31.
With this in mind, the DRC was of the firm opinion that pending the payment of the amount
provided in art. 10, the player should have remained with the Claimant as he was bound by
the employment contract. Saying that, the DRC deemed that the contract had been
unilaterally terminated by the player leaving the Claimant.
32.
As a consequence of the aforementioned conclusion, the DRC established that, in
accordance with art. 17 par. 1 of the Regulations, the player is liable to pay compensation
to Primeiro de Agosto. Furthermore, in accordance with the unambiguous contents of art.
17 par. 2 of the Regulations, the Chamber established that the new club shall be jointly and
severally liable for the payment of compensation.
33.
The members of 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 as well as the fees and expenses paid or incurred by the former
club (amortised over the term of the contract) and whether the contractual breach falls
within a protected period.
34.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contains a provision by which the parties
had beforehand agreed upon an amount of compensation payable by either contractual
party in the event of breach of contract. Upon careful examination of said contract, the
members of the Chamber assured themselves that this was not the case in the matter at
stake.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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35.
As a consequence, the members of the Chamber determined that the amount of
compensation payable in the case at stake had to be assessed in application of 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. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body. In this regard, the Dispute Resolution Chamber stated
beforehand that each request for compensation for contractual breach has to be assessed
by the Chamber on a case-by-case basis taking into account all specific circumstances of the
respective matter
36.
In this regard, the Chamber recalled that the contract contained art. 10 par.1 in accordance
with which “If any national or foreign club wishes to acquire the trainee's final pass under
this contract, he/she must pay the transfer clause of Two hundred million Kwanzas
(200,000,000.00 AKZ)” , and that from the wording of said article, the Claimant was willing
to let go of the player for AOA 200,000,000. At the same time, the Chamber further recalled
that on 4 September 2019, the Respondent 2 had informed the Claimant that it was willing
to pay AOA 200,000,000 to acquire the player and that at the same time, the player
considered that by intending to pay that amount, the Respondent 2 was acquiring his
services, and that he was no longer bound by the contract with the Claimant.
37.
Consequently, the Chamber was of the firm opinion that the amount of AOA 200,000,000
contained in art. 10 par.1 of the contract could be taken as an objective criteria of the
amount on which all the parties agreed that the player’s services could be retained by
another club.
38.
Taking into account this objective criteria and the specific facts of the matter at hand, the
Dispute Resolution Chamber decided that the total amount of AOA 200,000,000 was to be
considered a reasonable and justified compensation for breach of contract in the case at
hand.
39.
As a consequence, on account of all of the above-mentioned considerations, the Chamber
decided that the player must pay the amount of AOA 200,000,000 to the Claimant as
compensation for breach of contract. Furthermore, in accordance with art. 17 par. 2 of the
Regulations, the Respondent 2 is jointly and severally liable for the payment of the relevant
compensation.
40.
Furthermore, taking into account the consideration under number II./11. above, the DRC
judge 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.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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41.
In this regard, the DRC 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.
42.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent 1 and Respondent 2 do 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 1 and 2, 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 2 and a restriction from playing in official matches up until the due amount is
paid and for a maximum duration of six months shall be imposed on the Respondent 1, in
accordance with art. 24bis par. 2 and 4 of the Regulations.
43.
Finally, 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. 24bis par.
3 of the Regulations.
44.
Finally, the Chamber concluded its deliberations by rejecting any further claim lodged by
the Claimant.
III.
Decision of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Desportivo 1° Agosto, is partially accepted.
2. The Respondent 1, Osvaldo Pedro Capemba, has to pay to the Claimant compensation for
breach of the contract in the amount of AOA 200,000,000.
3. The Respondent 2, CD Trofense, is jointly and severally liable for the payment of the
aforementioned compensation.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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4. Any further claim lodged by the Claimant is rejected.
5. The Claimant is directed to inform the Respondent 1 and the Respondent 2, 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 1 and the Respondent 2 must
pay the amount mentioned under point 2 above.
6. The Respondent 1 and the Respondent 2 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).
7. In the event that the amount due in accordance with point 2. above is not paid by the
Respondent 1 and/or the Respondent 2 w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent 1 and the Respondent 2:
a.
The Respondent 1 shall be restricted from playing in official matches up until the due
amount is paid and for a maximum duration of six months (cf. art. 24bis of the Regulations
on the Status and Transfer of Players).
b. The Respondent 2 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).
8. The restriction and ban mentioned in point 7. above will be lifted immediately and prior its
complete serving, once the due amount is paid.
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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9. In the event that the aforementioned sum is still not paid by the end of the restriction from
playing of six months of the Respondent 1 or the ban of three entire and consecutive
registration periods of the Respondent 2, 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 Garcia Silvero
Chief Legal & Compliance Officer
Club Desportivo 1° Agosto, Angola / Player Osvaldo Pedro Capemba, Angola / Club CD Trofense, Portugal
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