Labour Disputes
Texto da decisão
REF. FPSD-12890
Decision of the
Dispute Resolution Chamber
passed on 7 March 2024
regarding an employment-related dispute concerning
the player Filipe Augusto Carvalho Souza
BY:
Lívia SILVA KÄGI (Brazil/Switzerland), Deputy Chairwoman
Roy VERMEER (The Netherlands), member
Mario FLORES CHEMOR (Mexico), member
CLAIMANT/COUNTER-RESPONDENT:
Filipe Augusto Carvalho Souza, Brazil
Represented by Debora Trombeta de Mattos Cesario
RESPONDENT/COUNTERCLAIMANT:
Club Damak, Saudi Arabia
Represented by Islam Hisham
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REF. FPSD-12890
I. Facts of the case
1.
On 31 August 2021, the Brazilian player Filipe Augusto Carvalho Souza (hereinafter: the
Player or Claimant/Counter-Respondent) and the Saudi club Damak (hereinafter: the Club or
Respondent/Counterclaimant) concluded an employment agreement (hereinafter: the
Contract) valid as from the same date until 30 August 2022.
2.
In accordance with the Contract, the Club undertook to pay to the Player inter alia a
monthly net salary of USD 79,167.
3.
Furthermore, under art. 12 par. 2 of the Contract, the Player and the Club (hereinafter
jointly referred to as: the parties) agreed that in case of termination with just cause by any
of the parties, the other party shall be entitled to a compensation of USD 237,501. However,
the same provision adds that “if there is no agreement on the amount, compensation for
breach of contract is payable in accordance with art. 17 of the FIFA Regulations”.
4.
Lastly, art. 12 par. 3 establishes that “the Club shall not terminate the contract due to the
Player sustaining an injury during play or training”.
5.
On 8 January 2022, the Player suffered an injury to his left thigh as a consequence of an
accident occurred during an official match of the Saudi Pro League.
6.
On 13 January 2022, the parties signed a “Termination Agreement” under which the Club
undertook to pay the Player a total of USD 237,501 net broken down as follows:
-
“An amount of USD 79,167 to be paid on 30 February 2022;
An amount of USD 79,167 to be paid on 30 March 2022;
An amount of USD 79,167 to be paid on 30 April 2022”.
7.
On 21 January 2022, while the Player’s family was still residing in Saudi Arabia, the Player’s
son was born.
8.
On 20 February 2022, the Player sent a letter to the Club, requesting, inter alia, to pay his
salary due for the month of January 2022.
9.
On 7 March 2022 the Club executed the payment of the first instalment stipulated under
the Termination Agreement.
10. On 12 April 2022 and 28 April 2022, the Club proceeded with the payment of respectively
the second and third instalments due to the Player.
11. On 6 June 2022, the Club made a further payment of USD 34,473 in favour of the Player.
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REF. FPSD-12890
12. By correspondence dated 10 January 2023, the Player put the Club in default of USD 79,167
as outstanding salary for January 2022, and granted 7 days to remedy the alleged breach.
13. On 11 January 2023, the Club replied to the Player, enclosing the relevant receipts of
payment of the sum stipulated under the Termination Agreement and rejecting any further
request by the Player.
14. On 12 January 2023 the Player wrote a second letter to the Club acknowledging receipt of
all payments due by the latter under the Termination Agreement. However, the Player
argued that the Club had undertaken to pay part of the Player’ salary due for January 2022
until the date of the termination.
15. On 18 January 2023, the Club sent a further email to the Player confirm that all the amounts
due to the latter had already been paid, hence the Club argued having been released from
any contractual obligation towards the Player.
II. Proceedings before FIFA
16. On 30 November 2023, the Player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Player
17. According to the Player, the Club decided to terminate the Contract after realizing that the
Player would have been unable to play for several months after the injury occurred in
January 2022.
18. In this context the Player argued having signed the Termination Agreement under duress,
and alleged that, being aware that he would have not been able to play until the end of the
season and that his family wouldn’t be able to leave Saudi Arabia due to the recent birth of
the son, he would have never willingly chosen to remain unemployed and without
adequate infrastructure for his rehabilitation without being threatened by the Club.
19. Accordingly, the Player accused the Club of having taken advantage of his vulnerable
situation to coercively alter the agreed-upon duration of the Contract.
20. In this respect, the Player argued that the Termination Agreement shall therefore be set
aside as null and void, and the Club shall pay compensation for breach of contract without
just cause in January 2022.
21. In this regard, the Player quantified his request for reliefs as follows:
-
USD 79,167 corresponding to the outstanding salary for January 2022;
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REF. FPSD-12890
-
USD 316,668 as compensation for breach of the contract (i.e. 79,167 x 7 months minus USD
237,501 paid under the Termination Agreement);
5% interest per annum as from 13 January 2022.
b. Position of the Club and counterclaim
22. In its reply, the Club objected to the Player’s allegations of duress, rebutting that the
Termination Agreement had been freely entered by both parties.
23. Accordingly, the Club argued that having the Player acknowledged receipt of the relevant
payment stipulated under the Termination Agreement, no further sums would be due by
the Club.
24. Furthermore, the Club confirmed having also paid part of the Player’s salary pro-rated until
the date of termination on 13 January 2022.
25. In continuation, the Club pointed out that, in spite of having passed more than one year
since the premature conclusion of their employment relationship, the Player has never
raised any objection to the validity of the Termination Agreement until the date of the
claim.
26. Notwithstanding the above, the Club asserted that even if the Termination Agreement had
been deemed null and void, the relevant amount paid to the Player would nonetheless
correspond to the compensation stipulated under art. 12 of the Contract in case of early
termination.
27. In this context, the Club accused the Player of attempting to gain an unjust enrichment by
requesting sums that he clearly had no entitlement to receive, namely the salary of January
2022, a part of which the Club acknowledged having paid on 6 June 2022.
28. Accordingly, the Club lodged a counterclaim arguing that the Player had obtained an
additional and unlawful benefit, which he shall therefore return in addition to the relevant
interest as from the date of payment.
29. The Club therefore concluded by pleading to reject the Player’s claim in its entirety and
requesting the latter to pay a total of USD 34,373 plus 5% interest p.a. as from 6 June 2022.
c. Player’s reply to the counterclaim
30. In response to the counterclaim the Player insisted on the nullity of the Termination
Agreement based on the abusive conduct held by the Club since after the Player’s injury
occurred on 8 January 2022.
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REF. FPSD-12890
31. In this respect, the Player held that the Club did not have just cause to terminate the
Contract as the parties had clearly stipulated under art. 12 par.3 of the said agreement that
no injury would have justified a premature end of the employment relationship by the Club.
32. Accordingly, in the Player’s view, the relevant contractual provision related to the payment
of a fixed limited amount as compensation for breach with just cause would be inapplicable
to the case at stake, and the Club shall instead pay the entire residual value of the Contract
as compensation, in accordance with FIFA regulations.
33. Furthermore, the Player declared having been unaware of the payment amde by the Club
in June 2022 but referred to it as a clear acknowledgement by the latter of its debt towards
the Player.
34. In conclusion, the Player upheld his original claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
35. 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 30 November 2023 and
submitted for decision on 7 March 2024. Taking into account the wording of art. 34 of the
March 2023 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.
36. 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 (February 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Saudi club.
37. 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 (February 2024 edition), and
considering that the present claim was lodged on 30 November 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
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REF. FPSD-12890
38. 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
39. 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
40. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that on 31 August 2021, the Player and the Club entered
into an employment agreement valid until 30 August 2022. The Chamber equally noted
that on 13 January 2022 the Parties signed a “Termination Agreement” by means of which
they prematurely ended the employment relationship.
41. Notwithstanding the above, the Chamber observed that the Player challenged the validity
of the Termination Agreement based on an alleged duress by the Club, hence he claimed
compensation for breach of the relevant employment contract by the latter.
42. Conversely, the Chamber noted that the Club defended the validity of the Termination
Agreement as voluntarily signed by both parties, thus superseding the Contract in totum,
hence he argued that all the amounts thereto stipulated in favour of the Player have
already been paid.
43. In this context, the Chamber observed that according to the said agreement, the Club
undertook to pay the Player a total of USD 237,501, broken down into three instalments of
USD 79,167 each. Equally, the Chamber recalled that in his letter dated 12 January 2023,
the Player acknowledged having received payment by the Club of all the three instalments
abovementioned.
44. In this respect, given that it stands undisputed from a factual perspective that the Club paid
all the relevant instalments stipulated under the Termination Agreement, the Chamber
acknowledged that it its task was to establish whether the referred document would indeed
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REF. FPSD-12890
constitute the sole source of obligations between the parties after the premature end of
their employment relationship.
45. As a starting point, the Chamber remarked that in the case at hand the Player bore the
burden of proving that the Termination Agreement had indeed been signed in duress.
Nonetheless, the Chamber noted that the Player failed to provide any evidence in this
regard and rather acknowledged the Club’s compliance with the said agreement in its
previous correspondence with the latter.
46. Accordingly, the Chamber determined that the Player failed to meet his burden of proof
and concluded that the Termination Agreement signed by the parties was the only valid
and binding source of obligations between the parties after the premature end of their
employment relationship.
47. With the above in mind, the Chamber established that the Club fully complied with its
contractual obligations to the Player under the Termination Agreement.
48. In continuation, the Chamber took note of the request advanced by the Player to the Club
after terminating the Contract on 13 January 2022, which was related to the payment of his
salary for the month of January 2022, namely in the amount of USD 79,167.
49. In this regard, the Chamber wished to emphasize that, based on the wording of the
Termination Agreement, the Club would have no obligation to pay the Player’ salary after
the premature end of the employment contract, hence in the Chamber’s view, it appears
congruent with the will manifested by the parties that the Club paid the Player’s
remuneration only until the relevant date of termination.
50. In this respect, the Chamber observed that on 6 June 2022 the Club made a payment to the
Player in the amount of USD 34,473 corresponding to part of the abovementioned salary
pro-rated until the date of termination of the Contract, on 13 January 2022.
51. Accordingly, and in the absence of any further complaint by the Player, the Chamber
assessed that the Club complied also with his financial obligations under the employment
contract.
52. With all the foregoing in mind, the Chamber concluded that the Club held no further
obligations to the Player, hence the latter’s claim shall be rejected.
53. In continuation, the members of the DRC moved their attention to the counterclaim lodged
by the Club alleging unjust enrichment by the Player.
54. In this context the Chamber wished to remark that although, in principle, the Club had not
expressly acknowledged the existence of outstanding salaries, neither in part, at the
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REF. FPSD-12890
moment of signing the Termination Agreement, it nonetheless failed to claim back the
relevant amount until the moment of the Player’s claim, i.e. almost 2 years after.
55. Furthermore, from the relevant receipt of payment submitted by the Club, the Chamber
noted the statement “Settlement of Bills” as description of the respective purpose of
remittance, thus clearly alluding to a prior financial obligation by the Club.
56. On account of the above, the Chamber determined that the Club’s actions and conduct had
evidently generated in the Player the belief that he was indeed legitimate to receive the
amount paid by the Club, hence now the latter shall not be entitled to claim back the
relevant sum as this would constitute a clear violation of the principle “nemo venire contra
factum proprium potest” which is largely recognized by doctrine and jurisprudence.
57. Accordingly, the Chamber decided that the club cannot now depart from its previous
posture. It confirmed thus that the club’s counterclaim is rejected.
d. Costs
58. 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.
59. 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.
60. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12890
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Filipe Augusto Carvalho Souza, is rejected.
2.
The counterclaim of the Respondent/Counterclaimant, Damak Club, is rejected.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12890
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 Governing the Football
Tribunal).
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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