Labour Disputes
Texto da decisão
REF FPSD-671
Decision of the
Dispute Resolution Chamber
passed on 12 August 2021
regarding an employment-related dispute concerning the player Sandro Cesar Cordovil
de Lima
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislave Kasalo (Croatia), member
MD Abu Nayeem Shohag (Bangladesh), member
CLAIMANT / COUNTER-RESPONDENT:
Sandro Cesar Cordovil de Lima, Brazil
Represented by Carlezzo Advogados Associados
RESPONDENT / COUNTER-CLAIMANT:
Tianjin TEDA FC, China PR
Represented by Mr Daniel Muñoz Sierra
INTERVENING PARTY:
Genclerbirligi SK, Turkey
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I.
FACTS OF THE CASE
1.
The Brazilian player, Mr Sandro César Cordovil de Lima (hereinafter: the player or the
Claimant) and the Chinese club, Tianjin TEDA FC (hereinafter: the club or the Respondent)
concluded an employment contract, valid as from 1 August 2020 until 31 December 2021
(hereinafter: the contract).
2.
In accordance with clause 7.2 of the contract, the club undertook to pay to the player, inter
alia, the following fixed remuneration:
During the year 2020: EUR 861,376 gross, divided into 5 monthly salaries of EUR
172,275 gross each;
During the year 2021: EUR 2,134,103 gross, divided into 12 monthly salaries of
EUR 177,841 gross each.
3.
Clause 7.7 of the contract provides that each salary is due on the 25th day of each month.
4.
According to clause 7.3 of the contract, the club undertook to pay to the player the
following bonuses, regarding matches played within the Chinese Football Association Super
League or the China Football Association Cup:
Minimum wining bonus: CNY 37,090 gross;
Minimum draw bonus: CNY 12,360 gross.
5.
As per clause 7.8 of the contract, the bonuses were payable “within 40 days upon
completion of each match”.
6.
Clause 10.3.2 of the contract states that the player could unilaterally terminate the contract,
should more than 3 monthly salaries be overdue.
7.
Clause 10.3.3 of the contract reads as follows. “Cancellation of the contract: If [the player]
requests to resign the job for unavoidable reasons, [the player] shall give notice to [the club]
in written form 30 days in advance and gent consent / affirmation of [the club]”.
8.
Clause 12 of the contract reads as follows: “Liabilities for Breach of Contract: 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”.
9.
Clause 13 of the contract provides the following: “The disputes arising from the fulfilment
of, or in connection with the contract shall be settled through friendly consultations
between both parties. In case no settlement can be reached through consultation, the
dispute shall be submitted to the Commission of CFA, with the possibility of submitting it
to the decision-making bodies of FIFA”.
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10.
Clause 14.4 of the contract reads as follows: “When the clauses of the contract are
contradictory to the regulations of the CFA, FIFA prevails. When the clauses of the contract
are contradictory to the state laws, regulations and policies, the latter shall prevail”.
11.
On 30 December 2020, the Claimant put the Respondent in default of payment concerning
the salaries of September, October and November 2020, thereby granting the club a 15
days´ deadline to remedy the default; however, to no avail.
12.
By means of its email dated 15 January 2021, the player unilaterally terminated the contract.
13.
On 1 February 2021, the player signed a new contract with the Turkish club, Gençlerbirliği
S.K., valid as from the date of its signature until 31 May 2022, whereby the player is entitled
to receive a total fixed remuneration of EUR 625,000. What is more, in accordance with the
information contained in the Transfer Matching System (TMS), during the overlapping
period, i.e. as from February until December 2021, the player was entitled to receive a total
fixed amount of EUR 370,000.
II.
PROCEEDINGS BEFORE FIFA
14.
On 20 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the positions of the parties is detailed in continuation.
a.
15.
The claim of the Claimant/Counter-Respondent
On 20 January 2021, amended by means of his statement of replica, the player lodged a
claim against the club, requesting to be awarded outstanding remuneration and
compensation for breach of contract in the total amount of EUR 3,184,451 and CNY
160,710, plus 5% interest as from the respective due dates, broken down by the player as
follows:
Outstanding remuneration: EUR 602,877 and CNY 160,710 (broken down as follows)
EUR 172,275 as salary of October 2020;
EUR 172,275 as salary of November 2020;
EUR 172,275 as salary of December 2020;
EUR 86,052 corresponding to the 15 days worked in January 2021 ((177,841 /
31)*5 = 86,052);
CNY 160,710 corresponding to match bonuses (cf. point 16 below).
Compensation for breach of contract: EUR 2,048,051 (broken down as follows)
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EUR 2,048,051, corresponding to the residual value of the contract, calculating by
the Claimant by deducting, from the full amount payable to the Claimant for the
year 2021, i.e. EUR 2,134,103, the amount due to him for that year as outstanding
remuneration, i.e. EUR 86,052 ( 2,134,103 – 86,052 = 2,048,051.
Additional compensation: EUR 533,523 (broken down as follows)
EUR 533,523, corresponding to 3 salaries of EUR 177,841 each (177,841*3 =
533,523).
16.
In his claim, the player explained that the club only complied with the payment of the
salaries of August and September 2020 and then the Respondent stopped paying the
Claimant’s salaries “without any kind of explanation whatsoever and never paid the match
bonuses as established in the contract”.
17.
In particular, as to the bonuses due, the player argued that, during the term of the contract,
the Claimant participated in a total of 14 matches, “among Chinese Super League and 3
Chinese Cup matches, being 3 wins, 4 draws and 7 losses”.
18.
As to the unilateral termination of the contract, the player argued that he complied with
the requirements of art. 14bis of the RSTP, insofar he put the club in default of payment
regarding 3 monthly salaries that were outstanding (salaries of October, November and
December 2020 – considering that all of them were payable by the 25th of each month)
and granted the club a 15 days´ deadline to remedy the default, without the club complying
with its financial obligations.
19.
In connection with the additional compensation requested, the Claimant held that, in
addition to the obligation of the club to pay compensation for breach of contract, “article
17 also dictates that if the termination is due to overdue payables, the player shall also be
entitled to an additional compensation corresponding to three monthly salaries, which, in
the present case, corresponds to EUR 533,523”
b.
Reply and counter-claim of the Respondent/Counter-Claimant
20.
Firstly, concerning the salaries of the player, the Respondent wished to stress that, contrary
to the allegations of the Claimant, it did not only pay the salary of August 2020 to the
player, but also the salary of September 2020, which was paid by the club on 27 November
2020.
21.
Concerning the bonuses due to the player, the Respondent/Counter-Claimant stressed that,
during the period where the Claimant provided his services to the club, i.e. as from 1 August
2020 until 15 January 2021, the Club participated in 17 matches in the China Football
Association Super League and in the China Football Association Cup.
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22.
In this context, the club held that, in accordance with clause 7.3 of the of the contract, it
proceeded with the payment of the due bonuses to the player in the total amount of CNY
431,564 gross.
23.
In this context, the club argued that it only owes the amount of EUR 602,877 gross to the
player, amount broken down by the club as follows:
EUR 172,275 gross as salary of October 2020;
EUR 172,275 gross as salary of November 2020;
EUR 172,275 gross as salary of December 2020;
EUR 86,052 corresponding to the 15 days during which the player provided his
services for the club in the month of January 2021.
24.
The above being explained, the Respondent/Counter-Claimant alleged that the club
”started facing severe financial problems due to various factors such as the Covid-19 impact
and the administrative problems between the owners of the club”. The club further argued
that, in the said context of financial distress, it could not proceed with the timely payment
of the player´s financial entitlements.
25.
In connection with the default notice sent by the player to the club on 30 December 2020,
the latter held that it had already paid the salary of September 2020 and that, despite the
content of clause 10.3.3 of the contract, which states that that, should the club be in default
of payment, the shall put the club in default of payment and grant the latter a 30 days´
deadline to remedy the default, the player only granted the club a period of 15 days to
comply with the payment of the alleged outstanding amounts.
26.
As to the unilateral termination of the contract made by the player, the club held that, on
the date of termination, i.e. 15 January 2021, the club having paid the salaries of August
2020 and September 2020, the Respondent was only liable to pay to the player the salaries
of October 2020, November 2020 and December 2020. Therefore, explained the
Respondent, at the time of termination of the contract, the club was not in breach of the
contract, since the club was not behind in the payment of salary and bonuses over three
months, as required clauses 10.3.2 of the contract for the player to terminate the contract.
27.
In connection with the above, the Respondent/Counter-Claimant argued that, despite the
content of art. 14bis of the RSTP, in accordance with the general principle of law, pacta
sunt servanda, parties are free to freely draft the terms that will define their employment
relationship and that the parties, in art. 10.3.2 and 10.3.3 defined the steps to follow in
order for the player to terminate the contract with just cause. In this context, the
Respondent reiterated that, insofar the player: 1.) failed to grant the club a 30 days´ deadline
to remedy the default by means of his default notice; 2.) and since no more than 3 monthly
salaries were outstanding at the date of termination, the player did not terminate the
contract with just cause.
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28.
In view of the above, the club deemed that the player terminated the contract without just
cause on 15 January 2021.
29.
In this context, on 4 March 2021, the club lodged a counter-claim against the player and
his new club, Gençlerbirliği S.K (the latter ex. art. 17.2 of the RSTP – joint liability) before
FIFA, requesting to be awarded compensation for breach of contract in an amount to be
determined by FIFA, based on the following considerations: 1.) the average between the
remuneration due until the expiry of the former contract with the club and the
remuneration due under the new contract with Gençlerbirliği S.K. for the same period; 2.)
the non-amortised transfer fee paid by the club to the player´s former club; 3.) a
compensation under the specificity for sports; plus 5% interest p.a. as from 28 January
2021, broken down by the club, as follows:
1) Compensation for breach of contract in an amount to be calculated by FIFA;
2) The non-amortised transfer fee in the amount of EUR 678,431.37;
3) Compensation for the specificity of sports in the amount of EUR 1,067,046.
30.
In addition to the compensation for breach of contract requested, the Respondent/CounterClaimant held that the non-amortized transfer compensation shall also be included in the
calculation of the compensation due by the player to the club as a result of the breach, in
accordance with Article 17 para. 1 of the RSTP. In this respect, the club argued that, on 25
July 2020,”the club paid a transfer fees of EUR 1,000,000 (One million Euros) to acquire
the federative rights of the Player from Gremio Esportivo Anapolis. Whereas the Player
signed an Employment Contract with the Club valid for 17 months as from 1 August 2020
until 31 December 2021. The Player unilaterally terminated the Employment Contract with
the Club on 15 January 2021, therefore 11 months and 15 days before the original expiry
of the Employment Contract”.
31.
In view of the above, the club continued with its argumentation as to its entitlement to
receive the non-amortised part of the transfer fee paid to Gremio Esportivo Anapolis, as
follows: “the monthly fees of the amount EUR 1,000,000 (One million Euros) corresponding
to the period of 17 months would be EUR 58,823.53 (1,000,000/17). In this sense, since
11 months were remaining under the Employment Contract, the non-amortised fee for 11
months i.e. February 2021 till would be EUR 647,058.82 (EUR 58,823.53 x11). Additionally,
since the Employment Contract was terminated on 15 January 2021, the remaining 16 days
of January 2021 should also be added to determine the compensation. Hence, the nonamortised fee for the remaining days of January i.e. 16 January 2021 to 31 January 2021
would amount to EUR 31,372.55, thereby amounting to a total of EUR 678,431.37 (EUR
647,058.82 + EUR 31,372.55). Consequently, under Article 17 para 1 of the FIFA RSTP and
the well-established jurisprudence of FIFA and CAS, the Player is liable to pay the total
amount of non-amortised of EUR 678,431.37 (Six hundred seventy eight thousand four
hundred thirty one Euro with thirty seven cents)”.
32.
What is more, the club requested to be awarded compensation under specificity of sports
in the amount of EUR 1,067,046, corresponding to an amount equal to 6 salaries of the
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player during the year 2020 (177,841*6 = 1,067,046). In this respect, the club referred to
different aspects:
The sporting implications of the time remaining on the contract: the club argued
that the player terminated the contract in the middle of the 2021 season,
abandoning the club even though the player was “very highly regarded by the club”
and was “one of the team´s leaders and he held a pivotal role in the team featuring
in the majority of the matches of the club”.
The termination came within the protected period: the club argued that the player
terminated the contract within the protected period and referred to art. 17 RSTP
and held that it “provides for sporting sanctions to be applied on players that
terminate their contracts during the protected period to have a deterrent effect
against such conduct”;
The status and behaviour of the player: The club maintained that the player, at the
time of termination of the contract, had received all of the bonuses stipulated under
the contract and the club did not have outstanding salaries over 3 months to be
paid to the player. In this context, the club argued that, the player, despite having
agreed to all the above-mentioned contractual provisions relating to minimum
overdue amounts, notice period and receiving an affirmation from the club, acted
in bad faith by terminating the contract without just cause and signing with a new
club only 15 days later. Additionally, continued the club, “the player, in order to
receive unjust enrichment at the detriment of the club, even proceeded with a claim
before FIFA, claiming compensation for the termination caused allegedly due to the
breach of the contract by the club”.
33.
Subsidiary to the above, the club argued that, should the DRC consider that the player
terminated the contract with just cause on 15 January 2021, the DRC should note that the
parties, by virtue of clause 12 of the contract, expressly agreed to the compensation payable
to the party in case of breach of a contract, which shall be considered proportional and
reciprocal. Therefore, continued the club, considering the fact that the player was
unemployed for 15 days after terminating the contract due to the breach of the contract
by the club, the Respondent, apart from the outstanding salary and bonus under the
aforementioned points, is liable to pay a compensation corresponding to the losses caused
and therefore the Club is liable to pay EUR 91,788. as compensation to the Player, i.e. the
remuneration for the 16 days that the player remained unemployed, as from 16 January
until 31 January 2021 ((177,841/31)*16 = 91,788).
34.
In the alternative to the point above, continued the club, in case the Chamber did not agree
that the compensation should be calculated according to article 12 of the contract, then
the compensation must be calculated according to article 17 of the contract. In this respect,
the club argued that, upon the contract´s termination, the player signed a new contract
with the Turkish club, Gençlerbirliği S.K., “a first-tier club competing in the Süper-Lig” and,
thereby, the player effectively mitigated his damages.
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35.
Therefore, held the club, “in accordance with Article 17 para 1(ii) and well established
jurisprudence of FIFA, the income to be earned by the Player at his new club Gençlerbirliği
S.K. , must be deducted from the residual value of the contract with the old club i.e. Club
Tianjin TEDA FC”.
36.
As to the additional compensation, the club held that, in view of Article 12 of the
Employment Contract, no additional compensation apart from the one mentioned above,
can be payable to the player.
37.
As to the default interests, the club argued that the Parties “did not agree on any amount
of interest to be payable in case of a breach”. Moreover, continued the Respondent, the
RSTP does not provide any provision for imposition of the default interests. In light of the
above, stressed the club, “no default interests can be imposed on any amount payable by
the Player to the Respondent”.
c.
Claimant/Counter-Respondent´s reply to the counter-claim
38.
As to the default interests, the club argued that the Parties “did not agree on any amount
of interest to be payable in case of a breach”. Moreover, continued the Respondent, the
RSTP does not provide any provision for imposition of the default interests. In light of the
above, stressed the club, “no default interests can be imposed on any amount payable by
the Player to the Respondent”.
39.
In his reply to the counter-claim, the player reiterated his previous argumentation.
40.
The player further acknowledged having received the salary of September 2020, as
indicated by the Respondent.
41.
Moreover, the player contested the validity of clause 10.3.2 of the contract, which he
considered null and void, insofar it contravenes what is stated in art. 14bis of the RSTP. In
this context, the player argued that the contract was signed on 1 August 2020, i.e. “more
than 2 years after the introduction of article 14bis in FIFA´s RSTP, which entered into force
on 1 June 2018 through the circular letter no. 1625”. The Claimant further argued that, as
stated in article 14bis RSTP, “alternative provisions in contracts may be considered only if
existing at the time of art. 14bis comes in force, which means that alternative provisions in
contracts concluded after the entry in force of article 14bis (as the case at hand) shall not
be considered. […] Thus, the first possibility for the clause 10.3 to be valid is that the
contract was signed until 31 May 2018. However, as we know, it did not happen”.
42.
As to the content of clause 10.3.3 of the contract, the player referred to art. 18.6 of the
RSPT (edition February 2021), which provides, inter alia, that: “Contractual clauses granting
the club additional time to pay to the professional amounts that have fallen due under the
terms of the contract (so-called “grace periods”) shall not be recognised […]”.
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43.
Furthermore, the player referred to clause 14.4 of the contract and held that it expressly
provides “that FIFA regulations shall prevail in case of any contradictory provision”. In this
context, the player alleged that “it is crystal clear that the provision of article 10, paragraph
3 of the employment contract shall not be considered by this honourable Chamber and
could never prevail over the provisions of article 14bis”.
44.
The above being said, the player wished to stress that, the termination having been made
in accordance with art. 14bis of the RSTP, it is to be determined that the player terminated
the contract with just cause on 15 January 2021. What is more, the Claimant stressed that
the Respondent itself acknowledged owing the Claimant not only 2 salaries (as required by
art. 14bis), but 3 salaries, i.e. the salaries of October, November and December 2020.
45.
The above being said and the player having reiterated that he terminated the contract with
just cause on 15 January 2021, the latter also wished to stress that the compensation for
breach of contract due to him shall be calculated in accordance with art. 17 of the RSTP
and not in accordance with art. 12 of the contract, which the Claimant did not consider as
a valid liquidated damages clause, insofar “it does not make clear mention of the amounts
due in case of early termination of the employment contract”.
46.
In its request for relief, the player made subsidiary petitions, should the DRC consider that
he terminated the contract without just cause:
“Alternatively, and in the remote hypothesis this Chamber finds that the Claimant
terminated the contract without just cause, we kindly ask you to consider that both
parties gave cause to the breach and, therefore, no compensation would be due by
any of them, based on the circumstances of the case at hand (degree of the
Respondent’s fault), but the outstanding salaries shall be paid to the Claimant;
Alternatively, and only in the event the request [above] is rejected, we kindly ask you
to confirm the Respondent is not entitled to any compensation, since the amount
the club was exempted to pay to the player as salaries until the end of the
employment contract clearly overpass the non-amortized fee and the compensation
under the concept of specificity of sport requested by the Respondent;
Alternatively, and only in the event the requests [above] are rejected, we kindly ask
this Chamber to consider the calculation of compensation presented in paragraph
75, amounting to EUR 67,426.37”.
d.
47.
Comments of the intervening party
On its part, the player´s new club, Gençlerbirliği S.K., maintained the following:
That it signed the player on 1 February 2021 and that, at that moment in time, “the
profile page of the Player on a football database (i.e. traısfermarkt,com) was
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showing that the Player's previous Jmployment contract, being the one with Tianjin
was no longer in force”. What is more, the new club argued that the player “was
inquired regarding the expiration and/or termination of his previous contract and
the player, as well his agent and legal representatives, declared that the employment
contract was terminated on 15 January 202I,with just cause”.
III.
That on 5 February 2021, the CFA rejected the request for the ITC, on the following
grounds: "There has been no mutual agreement regarding early termination of the
employment contract between the former club and the professional player". The
new club further stressed that the CFA uploaded a letter from the Respondent,
which confirmed the non-payment of the Player's salaries.
That, despite having allegedly paid the salaries of August and September 2020, the
Respondent even failed to provide sufficient evidence in support of its allegations
that it paid the full salaries of the player for the said months, considering that the
documentary evidence provided by the club is rather confusing.
That, in any case, the club acknowledged being in default of payment of 3 monthly
salaries (October, November and December 2020).
That art. 14bis of RSTP came into force on 1 June 2018, and the contract was
concluded more than two years after the relevant provision coming into force, i.e.
on 1 August 2020. Hence, the new club held that “the relevant contractual provision
carınot prevail over the regulatory provision and art. 14bis of the RSTP is applicable”.
That, “as the contract between the player and [the club] was concluded on 1 August
2020, being almost 10 months after the surfacing of the pandemic in November
2019, it cannot be argued that Tianjin was not able to or could not be expected to
anticipate the effects of it”.
That the new club and the player concluded a contract already 17 days after the
player´s termination of the contract with the Respondent, which shows –alleges the
new club– that it had no influence on the player´s termination of the contract with
the Respondent.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
48.
Competence and applicable legal framework
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 20 January 2021 and submitted
for decision on 12 August 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
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the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
49.
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,
a Chinese club and a Turkish club.
50.
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 20 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
51.
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.
52.
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.
c.
53.
Merits of the dispute
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
54.
The foregoing having been established, the Chamber moved to the substance of the matter,
and wished to briefly recall the main requests of the Claimant/Counter-Respondent and the
Respondent-Counter/Claimant. In doing so, the Chamber firstly recalled that the player is
requesting to be awarded outstanding remuneration and compensation for breach of
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contract in the total amount of EUR 3,184,451 and CNY 160,710, plus 5% interest as from
the respective due dates.
55.
In his claim, continued the DRC, the player argued that he terminated the contract with just
cause on 15 January 2021, since –at that moment in time– the club was in default of
payment of 3 monthly salaries (October, November and December 2020), and insofar, the
player had put the club in default by means of his letter dated 30 December 2020, thereby
granting the club a 15 days´ deadline to remedy the default; however, to no avail.
56.
Moreover, the DRC acknowledged that the player alleged that he terminated the contract
with just cause ex. art. 14bis of the RSTP.
57.
On its part, noted the DRC, the Respondent/Counter-Claimant held that the player did not
terminate the contract with just cause. In this regard, the club referred to clauses 10.3.2
and 10.3.3, in accordance with which the player: should have granted the club a 30 days´
deadline to remedy the default and would only have just cause to terminate the contract,
should more than 3 salaries be outstanding.
58.
In this context, maintained the Respondent/Counter-Claimant, given that only 3 salaries
were outstanding at the date of termination –provided also that all bonuses were duly paid–
and that the Claimant only granted the Respondent a 15 days´ deadline to remedy the
default, the requirements of the aforementioned clauses were not met and the player
terminated the contract without just cause on 15 January 2021.
59.
The above being stated, the Chamber wished to address the following question: did the
player terminate the contract with just cause on 15 January 2021?
60.
In order to reply to the aforementioned question, the Chamber considered it vital to refer
to art 18.6 of the RSTP, which reads as follows: “Contractual clauses granting the club
additional time to pay to the professional amounts that have fallen due under the terms of
the contract (so-called “grace periods”) shall not be recognised. Grace periods contained in
collective bargaining agreements validly negotiated by employers’ and employees’
representatives at domestic level in accordance with national law shall, however, be legally
binding and recognised. Contracts existing at the time of this provision coming into force
shall not be affected by this prohibition”.
61.
In accordance with the above-quoted article, pointed out the DRC, parties to a contract are
not allowed to grant the club a grace period for the payment of due payables towards
players, unless explicitly allowed under a CBA, with the said prohibition not affecting those
contracts which were concluded prior to the entry into force of the provision in question.
Hence, as brought up by the Claimant/Counter-Respondent and his new club in their
statements of reply to the counterclaim, insofar the contract was concluded on 1 August
2020, i.e. more than 2 years after the entrance into force of art. 18.6 of the RSTP, which
occurred in June 2018, clauses 10.3.2 and 10.3.3 are to be considered null and void, since
they directly contravene what is stated in art. 18.6 of the RSTP. Thus, the DRC wished to
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emphasize that, insofar 3 monthly salaries were outstanding at the date of termination and
given that the player had put the club in default of payment on 30 December 2020 –which
was also acknowledged by the Respondent/Counter-Claimant– regarding the said salaries,
thereby granting the Respondent a 15 days´ deadline to remedy the default without the
club doing so, the player did terminate the contract with just cause on 15 January 2021 ex.
art. 14bis of the RSTP.
62.
As to the argument of the Respondent/Counter-Claimant that the parties to a contract are
free to enter into agreements which content differs from the provisions of the RSTP, on the
grounds that the general principle of law, pacta sunt servanda, allows the parties to do so
within the scope of their autonomy of will, the Chamber wished to underscore that,
notwithstanding the wide scope of autonomy of the parties to contractually engage in an
independent manner, clubs and players which contractual relationship is subject the RSTP,
i.e. contractual relationships entered into between clubs and players with an international
dimension, shall comply with the regulatory provisions of the RSTP and any clause found to
be contravening the RSTP may be considered null and void.
63.
Thus, the DRC determined that the player is entitled to receive both, outstanding
remuneration and compensation for breach of contract. At this point, pointed out the DRC,
it is relevant to mention that –as per the contract– all amounts due to the player are gross.
Hence, the DRC was of the unanimous opinion that all amounts to which the player shall
be entitled are to be awarded gross.
64.
As to the entitlement of the player to the match bonuses, the latter held not having received
any amount for those considerations. However, the Respondent/Counter-Claimant did
provide documentary evidence of having proceeded with partial payments regarding the
said bonuses. In this respect, the DRC decided that the amounts paid by the Respondent
shall be deducted from the player´s financial entitlement thereto, as follows:
Day of the match and result
Minimum amount due
Amount paid
Amount overdue
(due minus paid)
16.09.2020 – DRAW
CNY 12,360
CNY 21,000
CNY 0
19.09.2020 - VICTORY
CNY 37,090
CNY 1,600
CNY 35,490
28.09.2020 – DRAW
CNY 12,360
CNY 2,00
CNY 10,360
16.10.2020 – VICTORY
CNY 37,090
CNY 30,900
CNY 6,190
21.10.2020 - DRAW
CNY 12,360
CNY 130,000
CNY 0
26.10.2020 – VICTORY
CNY 37,090
CNY 73,365
CNY 0
06.11.2020 – DRAW
CNY 12,360
CNY 47,800
CNY 0
27.11.2020 – VICTORY
CNY 37,090
CNY 36,800
CNY 290
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01.12.2020 – VICTORY
CNY 37,090
CNY 44,000
CNY 0
05.12.2020 – DRAW
CNY 12,360
CNY 43,500
CNY 0
TOTAL OVERDUE AS MATCH BONUSES:
CNY 52,330
ii. Consequences
65.
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/Counter-Claimant.
66.
Bearing in mind the previous considerations, the DRC went on to deal with the
consequences of the early termination of the employment contract. First of all, the Chamber
concurred that the Respondent/Counter-Claimant must fulfil its obligations as per
employment contract up until the date of termination of the contract in accordance with
the general legal principle of “pacta sunt servanda”.
67.
On account of the above considerations and the documentation on file, the DRC decided
that the Respondent/Counter-Claimant is liable to pay to the Claimant the remuneration
that was outstanding at the time of the termination of the contract with just cause by the
Claimant/Counter-Respondent, i.e. EUR 602,877 gross corresponding to the salaries of
October, November and December 2020 in the amount of EUR 172,275 each and EUR
86,052 corresponding to the 15 days worked in January 2021; as well as CNY 52,330 gross
corresponding to the outstanding match bonuses (approx.: CHF 7,420).
68.
In addition, taking into account the player´s claim, as well as the DRC’s longstanding
jurisprudence in this respect, the DRC decided to award the Claimant-Counter/Respondent
interest of 5% p.a. as of the respective due dates. As to the interest granted on the amounts
due as outstanding match bonuses, the DRC decided to award it as from the date on which
the claim of the player was lodged before FIFA.
69.
In continuation, the DRC decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant/Counter-Respondent is entitled to receive from the RespondentCounter/Claimant compensation for breach of contract in addition to any outstanding
remuneration on the basis of the relevant employment contract. In this context, the
Chamber outlined that, in accordance with said provision, 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 Claimant/Counter-Respondent 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.
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REF FPSD-671
70.
In application of the relevant provision, the DRC held that it, first of all, had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
71.
Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC
took into account the remuneration due to the player in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional
situation of the player after the early termination occurred.
72.
In this respect, the DRC pointed out that, despite the contract´s premature termination on
15 January 2021, if organically continued, the contract would have run until 31 December
2021.
73.
Consequently, taking into account the financial terms of the contract, the DRC concluded
that the remaining value of the contract as from its early termination by the player until the
natural expiry of the contract amounts to EUR 2,048,051;
74.
In continuation, the DRC remarked that, following the early termination of the employment
contract at the basis of the present dispute, the player signed a new contract with the
Turkish club, Gençlerbirliği S.K., valid as from the date of its signature until 31 May 2022,
whereby the player is entitled to receive a total fixed remuneration of EUR 625,000. What
is more, in accordance with the information contained in TMS, during the overlapping
period, i.e. as from February until December 2021, the player was entitled to receive a total
fixed amount of EUR 370,000.
75.
Hence, noted the DRC, the player would –in principle– be entitled to a mitigated
compensation in the amount of EUR 1,678,051 (2,048,051 – 370,000 = 1,678,051).
76.
Nevertheless, continued the DRC, since the player terminated the contract, inter alia, due
to overdue payables, the player shall be awarded an additional compensation in accordance
with art. 17.1 (ii) of the Regulations. In this respect, the Chamber wished to refer to the
content of the said regulatory provision, which reads as follows: “in case the player signed
a new contract by the time of the decision, the value of the new contract for the period
corresponding to the time remaining on the prematurely terminated contract shall be
deducted from the residual value of the contract that was terminated early(the “Mitigated
Compensation”). Furthermore, and subject to the early termination of the contract being
due to overdue payables, in addition to the Mitigated Compensation, the player shall be
entitled to an amount corresponding to three monthly salaries (the “Additional
Compensation”). In case of egregious circumstances, the Additional Compensation may be
increased up to a maximum of six monthly salaries. The overall compensation may never
exceed the rest value of the prematurely terminated contract”.
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REF FPSD-671
77.
In this context, and considering the circumstances of the present case the DRC decided that
the club should pay to the player an additional compensation of 3 monthly salaries to the
player.
78.
In this regard, the DRC noted that, insofar the fixed monthly income of the player on the
date on which he terminated the contract with just cause amounted to EUR 177,841, the
player shall be awarded an additional compensation of EUR 533,523 (177,841*3 =
533,523).
79.
In this context the Chamber concluded that, in view of all of the above, the player is entitled
to an overall compensation that amounts to EUR 2,048,051, i.e. the residual value of the
contract; given that, if the additional compensation is summed up to the mitigated
compensation, the residual value of the contract is exceeded (1,678,051 + 533,523 =
2,211,574). Hence, while referring to art. 17 para. 1 lit ii.) of the Regulations (last sentence),
the DRC determined that the residual value of the contract, EUR 2,048,051 gross, operates
as limit of the overall compensation to which the Claimant-Counter/Respondent is entitled.
80.
In addition, taking into account the player’s claim, as well as the DRC’s longstanding
jurisprudence in this respect, the Chamber decided to award the player interest of 5% p.a.
on the amount granted as compensation for breach of contract, EUR 2,048,051 gross, as
from 20 January 2021, i.e. the date on which the claim was lodged by the player before
FIFA, until the date of effective payment.
iii. Compliance with monetary decisions
81.
Finally, taking into account the consideration under number 48. above, the Chamber
referred to par. 1 lit. 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.
82.
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.
83.
Therefore, bearing in mind the above, the DRC decided that the Respondent/CounterClaimant must pay the full amount due (including all applicable interest) to the
Claimant/Counter-Respondent 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. 24bis
par. 2, 4, and 7 of the Regulations.
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REF FPSD-671
84.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant/Counter-Respondent in the Bank Registration Form,
which is attached to the present decision.
85.
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. 8
of the Regulations.
d.
Costs
86.
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.
87.
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.
88.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant / Counter-Respondent, Sandro Cesar Cordovil de Lima, is partially
accepted.
2.
The Respondent / Counter-Claimant, Tianjin TEDA FC, has to pay to the Claimant / CounterRespondent, the following amounts:
EUR 602,877 gross as outstanding remuneration, plus 5% interest p.a., as follows:
On the amount of EUR 172,275, as from 26 October 2020 until the date of
effective payment;
On the amount of EUR 172,275, as from 26 November 2020 until the date of
effective payment;
On the amount of EUR 172,275, as from 26 December 2020 until the date of
effective payment;
On the amount of EUR 86,052, as from 15 January 2021 until the date of
effective payment.
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REF FPSD-671
CNY 52,330 gross as outstanding remuneration, plus 5% interest p.a. as from 20
January 2021 until the date of effective payment;
EUR 2,048,051 gross as overall compensation for breach of contract, plus 5% interest
p.a. as from 20 January 2021 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counter-claim of the Respondent / Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
6.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent / Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid. The maximum
duration 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
paid by the end of the of the three entire and consecutive registration periods.
7. The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with article 24bis paragraphs 7 and 8 and article 24ter of the
Regulations on the Status and Transfer of Players.
8. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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.
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REF FPSD-671
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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