Labour Disputes
Texto da decisão
REF FPSD-4563
Decision of the
Dispute Resolution Chamber
passed on 10 March 2022
regarding an employment-related dispute concerning the player Paulo
Sérgio Correa Marques
BY:
DE WEGER, Frans (The Netherlands), Chairperson
ANDRADE, José Luis (Portugal), Member
VERMEER, Roy (The Netherlands), Member
CLAIMANT:
Paulo Sérgio Correa Marques, Brazil
Represented by Brocchi e Souza Sociedade de Advogados
RESPONDENT:
Alsahil FC, Saudi Arabia
Represented by Ali Abbes and Mohamed Rokbani
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I.
Facts of the case
1.
On 22 July 2021, the Saudi club, Alsahil FC (hereinafter: the club or the Respondent) sent the
Brazilian player, Mr Paulo Sérgio Correa Marques (hereinafter: the player or the Claimant), an
employment offer with the following conditions (hereinafter: the employment offer):
a. Duration: 10 months, from 1 August 2021 until 31 May 2022;
b. Remuneration: total of USD 100,000, payable in 10 monthly instalments of USD
10,000 each; and
c. Benefit: car and suitable accommodation.
2.
At the bottom, the employment offer read as follows: “this offer is valid for (3) days. The
parties shall sign a professional contract after you pass the medical test”. The employment
offer was signed by the club and countersigned by the player.
3.
On 26 July 2021, the player and the club concluded an employment contract valid as from 1
August 2021 until 31 May 2022 (hereinafter: the employment contract).
4.
In accordance with article 5 of the employment contract, the club undertook to pay the player
a monthly remuneration of USD 10,000.
5.
Article 3 of the employment contract read as follows:
“Article 3. Intention to Contract.
The Club wishes to enter into a legally binding contractual relationship with the Player to
engage his services as a Professional football player and the Player wished to enter into a
legally binding contractual relationship with the Club to provide his services as a
Professional football player. The Parties hereby agree to enter into a legally binding
contractual by way of, and according to the terms and conditions of, this Contract. The
validity of the Contract may not be made subject to a successful medial examination and/or
the grant of a work permit”.
6.
Additionally, article 12 of the employment contract stipulated the following:
“Article 12. Termination
1. In the case of the Club unlawfully failing to pay the Player at least two monthly salaries
on their due dates, the Player will be deemed to have a just cause to terminate this
Contract, provided that he has put the Club in default in writing and has granted a
deadline of at least 15 days for the Club to fully comply with its financial obligation(s).
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2. If either Party terminated the Contract with just cause, following amount will have to
be paid: (10000 USD). If there is no agreement on the amount, compensation for
breach of contract is payable in accordance with Art. 17 of the FIFA Regulations.
3. The Club shall not terminate the contract due to the Player’s sustaining an injury during
play or training.
4. The validity of the Contract may not be made subject to a successful medial
examination and/or the grant of a work permit.
5. The Club shall not suspend, interrupt or delay the Player’s remuneration due to the
Player sustaining an injury during player or training. The Contract may not be
terminated by either party during the sporting season in any circumstances, with the
exception of cases where: (a) there is just cause; and/or (b) the Parties have agreed to
terminate the Contract before the date of its expiry by mutual consent.
6. The Player shall not, under any circumstances, waive salaries for work already
performed.
7. The Club shall notify the Committee in writing of any termination of this Contract
without delay and within three (3) working days at the latest. The Club shall also notify
the League Organizer wherever so required under the relevant League Organizer
regulations”.
7.
Between 7 and 9 August 2021, the player flew from São Luis (Brazil) to Dammam (Saudi
Arabia), with two stopovers in São Paulo (Brazil) and Frankfurt (Germany). The plane tickets
were issued by the club, and the return flight was scheduled to 2 June 2021.
8.
On 15 August 2021, the player underwent medical examinations at the club’s premises and
was diagnosed with an injury in his left knee.
9.
On 25 August 2021, the parties signed an agreement entitled “endorsement”. Accordingly,
the player declared that “he consensually agrees with [the club] to withdraw the contract due
to the presence of an injury according to what appeared in the X-ray (MRI) scan, and that
each party releases its responsibility towards the other and there is no longer any claim
between them whatsoever” (hereinafter: the endorsement).
10. On an unspecified date, the parties also signed a financial clearance with the following
wording: “I hereby declare that all of my financial rights in the club have been liquidated
settled and received [from] the provider of a contract, monthly salaries, bonuses and all
financial benefits for my contract which started on 01/08/2021 and ends 31/05/2022. I have
no other rights or financial claim The Club, which ended its responsibility towards me to pay
all my rights and this is a confirmation of receipt of all my financial dues in the club as of
09/01/1442H, corresponding to 17/08/2021” (hereinafter: the financial clearance).
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11. On 21 September 2021, the player signed an employment agreement with the Brazilian club,
Sampaio Correa Football Club (hereinafter: Sampaio Correa) valid as from 21 September 2021
until 21 December 2021. Accordingly, the player would be entitled to a monthly salary of BRL
3,000.
12. On 6 October 2021, the player sent the club a notice by means of which he: (i) acknowledged
that the club had terminated the employment contract due to an injury and without paying
compensation; and (ii) requested payment of USD 100,000 within the following 10 days,
corresponding to compensation for breach of contract in line with art. 17 of the FIFA
Regulations on the Status and Transfer of Players (RSTP).
13. On an unspecified date, the player signed an employment agreement with the Brazilian club,
Manaus Futebol Clube (hereinafter: Manaus FC) valid as from 22 December 2021 until 30
October 2022. Accordingly, the player would be entitled to a monthly salary of BRL 2,500.
II. Proceedings before FIFA
14. On 15 December 2021, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Claim of the player
15. In his claim, the player referred to art. 3 and 12 of the employment contract and claimed that
the club terminated their employment relationship without just cause due to his injury. What
is more, the player argued that the club did not give him any proof of termination but forced
him to sign some documents attesting that the termination was reached by mutual consent.
16. In particular, the player maintained that he was evicted from his hotel and was forced to sign
a financial clearance – once again being deprived from his copy. Moreover, the player referred
to the Swiss Law and pointed out that he acted under duress.
17. Having established the above, the player alleged that he should be entitled to compensation
for breach of contract in line with art. 17 of the FIFA RSTP, amounting to the residual value
of the employment contract (i.e. USD 100,000) plus interest as from 27 August 2021.
Additionally, the player requested sporting sanctions to be imposed on the club.
b. Reply of the club
18. In its reply, the club filed a copy of the endorsement and the financial clearance and stated
that the employment contract “was amicably and clearly terminated and signed by both
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parties and not unilaterally by the club”. Likewise, the club stressed that it has never used any
abusive conduct to push the player to sign any document.
19. Finally, the club concluded that “it’s clear from the evidences presented by the Respondent
that the relationship between the parties was terminated amicably and that the Respondent
is clear from any obligation toward the Claimant”.
c. Rejoinder of the player
20. In his rejoinder, the player clarified that he indeed signed the endorsement and the financial
clearance however reiterated that he was forced to do so. He moreover highlighted that the
club confirmed that the employment contract was only terminated because of his injury,
which could not be valid as a valid reason.
21. In addition, the player outlined that the financial clearance is pre-dated in relation to the
endorsement, meaning that it “has nothing to do with a termination by mutual agreement
and even less a discharge in the moment of the termination, which occurred on 25 August
2021”.
22. Subsequently, the player informed that he signed with Sampaio Correa and Manaus FC after
the termination of the employment contract and suggested that his remuneration should be
considered for the calculation of the mitigated compensation due by the club (i.e. total of
BRL 16,166.67 or USD 4,160.09).
d. Final comments of the club
23. In its final comments, the club pointed out that the player confirmed that he signed the
endorsement and financial clearance, and could not prove that it was made under duress.
Moreover, the club clarified that it issued the player flight tickets to return to Brazil, showing
that the parties’ intention was truly to terminate their relationship.
24. In continuation, the club held that “any person or party signing a document of a legal
importance with or without knowledge of its precise content, as a general rule, does so on
its own responsibility”.
25. Lastly, the club requested the player’s claim to be entirely dismissed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
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26. 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 15 December 2021 and submitted for
decision on 10 March 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.
27. 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 (March 2022 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.
28. 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 (March 2022 edition) and
considering that the present claim was lodged on 15 December 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
29. 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
30. 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
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31. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the case at hand pertains to a claim for breach of contract
submitted by the player against the club.
32. On one hand, the Chamber noted that it remained undisputed between the parties that the
employment contract was terminated following the diagnosis of the player’s injury. On the
other hand, the DRC was also observant parties dispute whether this termination was made
by mutual consent and the consequences that follow.
33. In this context, the Chamber acknowledged that it was its task to determine the following:
(i) Was the employment contract terminated by mutual consent between the parties?
(ii) What are the consequences that follow?
34. The DRC proceeded then to analyse each matter.
(i)
Was the employment contract terminated by mutual
consent between the parties?
35. The club claimed that the parties entered into a mutual termination agreement (i.e. the
endorsement and the financial clearance), hence that it was released from any and all
obligations arising from the employment contract. The player acknowledged having signed
the endorsement and the financial clearance but stated that neither of the documents
constituted a mutual termination of the employment relationship, and – in any event – they
were signed under duress.
36. In view of this dissent between the parties, the DRC first of all recalled that a contract between
a professional and a club may only be terminated upon expiry of a term of the contract or by
mutual agreement (cf. art. 13 of the Regulations). In addition, a contract may be terminated
by either party without consequences of any kind (either payment of compensation or
imposition of sporting sanctions) where there is just cause (cf. art. 14 of the Regulations).
37. In connection to the above and based on the jurisprudence of the Court of Arbitration for
Sport (CAS), to which the Chamber adheres: “an employment contract can be terminated
according to the parties’ will, expressed through the setting of a term or by entering into a
contract terminating the employment: only in the presence of a ‘just cause’ is a unilateral
termination (without further consequences) allowed. This feature is just one aspect of the
fundamental principle ‘pacta sunt servanda’ underlying the RSTP: in the same way as the
parties are free to enter into a contract, they are free to terminate it, and only exceptionally
a possibility of unilateral termination is granted. It is however clear to the Panel that for a
‘mutual agreement’ to effectively terminate an existing contract, it must constitute a valid
expression of consent” (cf. CAS 2016/A/4885).
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38. Based on the abovementioned considerations, the DRC turned its attention to the
documentation on file in order to establish whether there was indeed a mutual termination
between the parties. In this respect, the Chamber carefully analysed the content of the
endorsement and the financial clearance submitted by the club in support of its allegations.
39. In doing so, the members of the DRC concurred that the abovementioned documents
constitute a clear and valid expression of consent of the player to the termination of the
employment contract. Moreover, the Chamber found it essential that the player did not
advance any convincing evidence in support of his allegations that such documents were
signed under duress. On the contrary, the Chamber gave particular weight to the fact that
the player: (i) did not bring forward any evidence that the club forced the termination of the
employment contract following his injury; as well as (ii) did not challenge or complain about
the duress for a period of 2 months – during which he was even able to initiate a new
employment relationship with Sampaio Correa, in Brazil.
40. Therefore, by recalling the content of art. 13, par. 5 of the Procedural Rules, the DRC was
firm to determine that the player could not establish to a comfortable satisfaction degree that
the endorsement and the financial clearance were signed under duress, which entailed that
he had freely and voluntarily agreed to the termination of the employment contract.
41. Consequently, the Chamber concluded that the player’s allegations in this regard should be
rejected, and the employment contract should be considered validly terminated by mutual
agreement on 25 August 2021.
(ii)
What are the consequences that follow?
42. Having established the above, the Chamber decided that the endorsement and the financial
clearance should be deemed valid and enforceable between the parties, in line with the
general legal principle of pacta sunt servanda.
43. Notwithstanding the above, the DRC acknowledged that – by signing the abovementioned
documents – the player waived a part of his remuneration. As such, the DRC found that the
underlying question in dispute was whether the endorsement and the financial clearance are
to be considered a valid waiver for the player’s remuneration.
44. In this regard, the DRC highlighted that the first conclusion that follows from the recent CAS’
jurisprudence (CAS award involving the player Acheampong – CAS 2020/A/6727, as well as
the award in the matter CAS 2016/A/4582) is that waiving of salary for work already
performed cannot be validly made under Swiss law. In the view of the Chamber, this derives
from the following reasoning:
• Art. 341 of the Swiss Code of Obligations (SCO) prevents the employee to
waive, during the duration of the contract and within a month following the (effective)
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end of the contractual relationship, claims arising from mandatory provisions of the law
or of a collective agreement;
• Art. 361 of the SCO lists the absolutely mandatory provisions (i.e. cannot be derogated
from neither to the detriment of the employer or employee);
• Art. 362 of the SCO lists the relative mandatory provisions (i.e. protects the employee
only as the provisions listed therein cannot be derogated from to the detriment of the
latter);
• Art. 20 par. 1 of the SCO rules that a contract (or clause) is null and void if its terms
are unlawful (i.e. a contract that contravenes art. 361/362);
• For waivers, parties may agree on the reduction in pay for the future; but not for work
already done for the period established under art. 341;
• Receipts in full settlement also contravene art. 341 of the of the SCO if it contains a
unilateral waiver by the employee of a claim laid down in a mandatory provision (art.
361/362), and that this claim has not been compensated through a transaction;
• In other words: if the player "indirectly" waives payment of wages for work already
done / outstanding salaries by way of a remission of debt (“I acknowledge having
received everything”, whereas this is not true), this waiver is null and void unless it is
part of a genuine transaction involving concessions of comparable importance on the
part of each party.
45. Based on the foregoing and guided by the recent CAS jurisprudence on the matter to which
it adheres, the DRC concluded that the player could not have validly waived his outstanding
salaries. As such, the Chamber decided that – even with the signature of the endorsement
and the financial clearance – the club should still be liable to pay the player his remuneration
for the work already performed. The DRC did not fail to notice either that this conclusion is
also in line with art. 12, par. 6 of the employment contract.
46. Based on the above, the DRC concurred that the endorsement and the financial clearance
should be rendered partially null and void, insofar as it referred to the player’s partial salary
of August 2021. In particular, the members of the Chamber unanimously decided that the
player should be awarded the pro rata salary for the 25 days in August during which the
employment contract remain valid (i.e. USD 8,333.33).
47. In addition, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest at the rate of 5%
p.a. on the outstanding amounts as from 25 August 2021 until the date of effective payment.
48. In continuation and for the sake of completeness, the Chamber took due consideration of
the fact that the player did also contest the validity of the termination vis-à-vis a possible
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compensation for breach of contract due by the club (i.e. the residual value of the
employment contract).
49. In this context, the DRC once again referred to the CAS jurisprudence which establishes that,
in concrete terms, to assess whether a transaction is permissible under art. 341 of the SCO,
the court/deciding body is required to conduct a balancing of interests, checking whether the
mutual claims waived by each party are of comparable value. Put in another way, whether
there is an appropriate equivalence between the parties' reciprocal concessions.
50. To this end and conversely to the player’s position, the DRC was not convinced that the
endorsement and the financial clearance resulted in a manifested disadvantage for either
party. On one hand, the Chamber acknowledged that by singing the documentation, both
of the parties waived a potential compensation that could arise from the breach of contract.
What is more, while the club was released from the payment of the player’s salaries, it also
lost its right to field him during the season, as well as to earn a potential transfer fee to a
third party, such as Sampaio Correa.
51. Along the same lines, the Chamber considered that the residual remuneration per se is not
sufficient alone to evidence the disproportionality of the agreement. This is because, in the
DRC’s view, the equivalence of the transaction shall also take into consideration immaterial
satisfactions, such as for example, the intention to return home, medical preferences in case
of injuries, family or personal interests, etc. With this is mind, the DRC also found it essential
to recall again that the documents were executed by the player at his own will; and the player
waited almost two months to put the club in default and challenge the validity of the
endorsement and the financial clearance – suggesting that he was, at least in principle,
satisfied with the solution reached. The DRC equally noted that the player returned to his
home country and continued his career there.
52. Based on the abovementioned considerations together with the wording of art. 13, par. 5 of
the Procedural Rules, the DRC unanimously decided that the player could not demonstrate
that the endorsement and the financial clearance were unbalanced and unlawful. Therefore,
the Chamber recalled its understanding that the employment contract was terminated by
mutual consent and concluded that no compensation should be awarded. This part of the
player’s claim was consequently rejected.
ii. Compliance with monetary decisions
53. 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.
54. 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,
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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.
55. 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.
56. 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.
57. 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
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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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Paulo Sérgio Correa Marques, is partially accepted.
2.
The Respondent, Alsahil FC, has to pay to the Claimant, the following amount:
-
USD 8,333.33 as outstanding remuneration plus 5% interest p.a. as from 25 August 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 Officer
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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).
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