Labour Disputes
Texto da decisão
REF FPSD-3520
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Daniel
Carriço
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Daniel Carriço, Portugal
Represented by Mr. Mario Resino Sastre and Mr. David Sanz García
RESPONDENT:
Wuhan Zall, China PR
Represented by Mr. Zhaoyi Dong and Mr. Huihuang Li
Page 2
REF FPSD-3520
I.
Facts of the case
1.
On 18 February 2020, the Portuguese player, Daniel Carriço (hereinafter: the Claimant), and
the Chinese club, Wuhan Zall (hereinafter: the Respondent) signed an employment contract
valid as from 18 February 2020 until 31 December 2021.
2.
Pursuant to article 7.1 of the contract, the Claimant was entitled to the following
remuneration:
“Party B' s ..[Claimant] 2020 year salary in contract is 2,750,000 Euro Net ( Two million
seven hundred fifty thousand Euro net. Party A [Respondent] will pay Party B..[Claimant]
250,000 Euro net in advance, payable within a maximum period of 3 months from the
signing of the present employment contract. The rest of the salary ( 2,500,000 Euro net (
Two million five hundred thousand Euro Net) will be paid in 12 times at a monthly basis
averagely.”
3.
Article 10 par.3.2 of the contract stipulated the following:
“3.The contract may be canceled by Party B [ Claimant] by notifying Party A [Respondent]:
(2) IF Party A [Respondent] breaches the obligation of paying the salary to Party B [Claimant]
for a period of three months”
4.
Article 13 of the contract provided for the following:
“Either party shall undertake the compensation or remedy to the other party according to
losses and responsibilities caused by the party's breach of the contract and therefore causing
economic losses to the other party.
In case any party breaches this contract without just cause, the party in breach shall pay to
the aggrieved party a net penalty calculated according to the remaining salaries of the
contract at the moment of the breach, taking into consideration the tax residency of the
aggrieved party at the moment of the payment and without applying any mitigation.”
5.
According to the Claimant, the Respondent has repeatedly failed to comply with its financial
contractual obligations. In this context the Claimant provided the below table to illustrate the
said delay in payment throughout the employment relationship
Due Date
Amount payable
Amount Paid
Payment Date
15/03/2020
€208,333.00
€208,333.00
15/06/2020
15/04/2020
€208,333.00
€208,333.00
24/07/2020
€104,000.00
28/07/2020
€104,000.00
30/07/2020
15/05/2020
€208,333.00
Page 3
REF FPSD-3520
15/06/2020
€208,333.00
€208,020.00
31/07/2020
15/07/2020
€208,333.00
€208,332.00
11/09/2020
15/08/2020
€208,333.00
€208,334.00
28/09/2020
15/09/2020
€208,333.00
€208,308.00
17/11/2020
€99,950.00
02/12/2020
€208,333.00
€108,283.00
11/12/2020
15/11/2020
€208,333.00
€207,950.00
27/01/2021
15/12/2020
€208,333.00
€200,283.00
02/02/2021
31/12/2020*2
€208,333.00
€208,283.00
02/02/2021
€99,975.00
01/03/2021
€99,975.00
02/03/2021
€15,985.00
03/03/2021
€89,975.00
21/04/2021
€89,975.00
23/04/2021
€19,985.00
26/04/2021
€99,975.00
13/05/2021
€86,641.00
14/05/2021
€29,975.00
17/05/2021
€99,975.00
20/07/2021
€99,975.00
29/07/2021
€99,975.00
04/08/2021
€15,985.00
05/08/2021
€69,975.00
11/08/2021
€29,975.00
12/08/2021
15/10/2020
15/01/2021
15/02/2021
15/03/2021
€208,333.00
€208,333.00
€208,333.00
15/04/2021
€208,333.00
15/05/2021
€208,333.00
6.
On 20 May 2020, the Claimant sent a default notice to the Respondent requesting payment
of his outstanding remuneration corresponding to the months of February, March and April
2020, plus the signing-on fee in the total amount of EUR 875,000, granting it a 30 days’
deadline to comply, however to no avail.
7.
On 22 July 2020, the Claimant sent a second notice of default to the Respondent requesting
payment of his outstanding remuneration corresponding to the months of February, March
and April 2020, plus the signing-on fee in the total amount of EUR 875,000.
8.
On 22 July 2020, the Claimant sent a third notice of default to the Respondent requesting
payment of his outstanding remuneration corresponding to 8 months of his salary for 2020,
plus the signing-on fee in the total amount of EUR 875,000.
9.
On 16 April 2021, the Claimant sent a fourth notice of default to the Respondent requesting
payment of his outstanding remuneration corresponding to January, February and March
2021, in the total amount of EUR 625,000, granting it a 15 days’ deadline to comply.
Page 4
REF FPSD-3520
10. On 16 June 2021, the Claimant sent his final default notice to the Respondent requesting
payment of his outstanding remuneration corresponding to March, April and May 2021, in
the total amount of EUR 625,000, granting it a 15 days’ deadline to comply, however to no
avail.
11. On 16 August 2021, the Claimant due to the persistent contractual breaches by the
Respondent terminated the employment contract with the Respondent, with just cause, in
accordance with both Article 10 of the Employment Contract and Article 14BIS RSTP.
12. On 28 August 2021, the Claimant signed an employment contract with the Spanish football
club Almeria Union Deportiva S.A.D.
II. Proceedings before FIFA
13. On 1 September 2021, the Claimant filed the claim at hand before FIFA.
a.
Position of the Claimant
14. The requests for relief of the Claimant, were that the Respondent pay to the Claimant:
(a) outstanding remuneration in the total amount of EUR 736,388.33 net, corresponding to
the following:
- EUR 208,333.33 net, corresponding to the monthly salary of May 2021, payable by 15
June 2021;
- EUR 208,333.33 net, corresponding to the monthly salary of June 2021, payable by 15 July
2021;
- EUR 208,333.33 net, corresponding to the monthly salary of July 2021, payable by 15
August 2021;
- EUR 2,277.20 net, which remains unpaid, without being possible to find out to which
month such outstanding remuneration correspond to; and
- EUR 111,111.11 net corresponding to partial monthly salary of August 2021 (16 days).
(b) compensation for breach of contract pursuant to article 13 of the contract equivalent to
the residual value of the contract without any mitigation, in the amount of EUR 937,500
net, plus 5% interest p.a. corresponding to:
- EUR 104,166.67 net, salary for remaining 15 days of August 2021; and
- EUR 833,333.32 net, salaries for the period during September, October, November and
December 2021.
(c) additional compensation of three (3) months of salary, in the amount of EUR 625,000 net
(d) any and all costs related to the present proceedings, if any.
Page 5
REF FPSD-3520
b.
Position of the Respondent
15. According to the Respondent, it was not its intention to breach the terms of the contract.
16. According to the Respondent, the city of Wuhan was badly affected by the COVID-19
pandemic and was in lockdown for a period of three months and during the said time, the
club suffered immense financial losses.
17. Moreover, the Respondent mentioned that the impact of the COVID-19 pandemic on the
Respondent is an “unpredictable, unavoidable and insurmountable situation, which could be
considered as a force majeure in accordance with Article 117 of Chinese Contract Law. If the
force majeure prevents the club from fulfilling the Contract properly, the club shall be
exempted from liabilities according to the influence of force majeure.”
18. The Respondent concluded by, inter alia, mentioning that it should not be banned from
registering new players.
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 1 September 2021 and submitted for
decision on 24 February 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 (August 2021 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 Portuguese player
and a Chinese 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 (August 2021 edition), and
considering that the present claim was lodged on 01 September 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
Page 6
REF FPSD-3520
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
above-mentioned 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.
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 Claimant argued that on 16 August 2021 he had just cause
to terminate the contract in accordance with art.14bis of the Regulations on the basis of the
persistent contractual breaches of the Respondent and prior default notices issued to the
Respondent.
25. On the other hand, the Chamber noted the position of the Respondent, who did not contest
the position of the Claimant it merely argued that it was financially impacted by the COVID19 pandemic, which could be considered a force majeure event under Chinese law.
26. Having said that, the DRC first of all 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
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
27. With this framework in mind, the Chamber noted that, based on the contents of the FIFA
COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that, the COVID-19
outbreak as a force majeure situation in any specific country or territory, or that any specific
employment or transfer agreement was impacted by the concept of force majeure. In other
words, in any given dispute, it is for a party invoking force majeure to establish the existence
Page 7
REF FPSD-3520
of said event under the applicable law/rules as well as the consequences that derive in
connection thereto. The analysis of whether a situation of force majeure existed has to be
considered on a case by-case basis, taking into account all the relevant circumstances.
28. In this context, the Chamber considered that – based on the above set of documents issued
by FIFA - 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.
29. In addition, the DRC indicated that even though the Claimant had by the termination date of
the contract, i.e. 16 August 2021, failed to send a prior default notice to the Respondent in
respect of his outstanding remuneration for the months of June and July 2021, it can be
established - by taking into account the documentation presented by the Claimant - that he
had substantiated its claim with sufficient documentary evidence and that he had just cause
to terminate the contract in accordance with art. 14 of the Regulations, as at the date of
termination an amount of EUR 627,277.19 net in salaries had remained outstanding.
ii. Consequences
30. 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.
31. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the members of the Chamber decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the termination,
i.e., EUR 627,277.19 net.
32. Moreover, the DRC decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration, in the total amount of of EUR 627,277.19 net, plus 5% interest
p.a. from the respective due dates until date of effective payment, corresponding to the
following:
-
EUR 208,333.33 net, salary of May 2021;
EUR 208,333.33 net, salary of June 2021;
EUR 208,333.33 net, salary of July 2021;
EUR 2,277.20 net, salary which remains unpaid.
33. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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
Page 8
REF FPSD-3520
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.
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 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.
35. In this respect, the members of the Chamber referred to the wording of article 13 of the
contract, which establishes the following:
“Either party shall undertake the compensation or remedy to the other party according
to losses and responsibilities caused by the party's breach of the contract and therefore
causing economic losses to the other party.
In case any party breaches this contract without just cause, the party in breach shall pay to
the aggrieved party a net penalty calculated according to the remaining salaries of the
contract at the moment of the breach, taking into consideration the tax residency of the
aggrieved party at the moment of the payment and without applying any mitigation.”
36. After analysing the content of the aforementioned clause, the Chamber concluded that it
fulfilled the criteria of reciprocity and proportionality, in line with the Chamber’s longstanding
jurisprudence, and therefore was to be applied in the case at hand, to determine the amount
of compensation for breach of contract, payable by the Respondent to the Claimant.
37. Consequently, the Chamber decided that the Claimant should be awarded the remaining
salaries due as per the contract (August to December 2021), in the amount of EUR
1,041,666.65 net, consisting of five monthly salaries of EUR 208,333.33 each.
38. 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 he amount of
EUR 1,041,666.65 net, at the rate of 5% p.a. as of 1 September 2021 until the date of
effective payment.
39. Finally, since the liquidated damages clause of article 13 of the contract is applied, the DRC
decided to reject the Claimant’s request for additional compensation.
iii. Compliance with monetary decisions
40. 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.
Page 9
REF FPSD-3520
41. 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.
42. 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.
43. 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.
44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 10
REF FPSD-3520
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Daniel Carriço, is partially accepted.
2.
The Respondent, Wuhan Zall, has to pay to the Claimant, the following amount(s):
(a) EUR 627,277.19 net as outstanding remuneration plus 5% interest p.a. as from the
respective due dates until the date of effective payment as follows:
-
on the amount of EUR 208,333.33 net as from 16 June 2021;
on the amount of EUR 208,333.33 net as from 16 July 2021;
on the amount of EUR 208,333.33 net as from 16 August 2021; and
on the amount of EUR 2,277.20 net as from 1 September 2021
(b) EUR 1,041,666.65 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 1 September 2021 until the date of effective payment.
▪
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
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.
6. 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.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Office
Page 11
REF FPSD-3520
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