Labour Disputes
Texto da decisão
REF. FPSD-9693
Decision of the
Dispute Resolution Chamber
passed on 7 July 2023
regarding an employment-related dispute concerning the player Jose Correia
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), Member
Khadija TIMERA (Senegal), Member
CLAIMANT:
Gangwon Football Club, Republic of Korea
RESPONDENT:
Jose Correia, Portugal
Represented by José Miguel Sampaio e Nora
INTERVENING PARTY:
Al-Markhiya SC, Qatar
pg. 2
REF. FPSD-9693
I. Facts of the case
1.
The relevant parties to this dispute are:
a. the club from Republic of Korea, Gangwon Football Club (hereinafter: the Claimant
or Gangwon);
b. the Portuguese player, Jose Correia (hereinafter: the Respondent or the player),
popularly known as “Ze Turbo”; and
c. the Qatari club, Al-Markhiya SC (hereinafter: the intervening party or Al-Markhiya).
2.
3.
On 2 February 2023, Gangwon and the player concluded a Provisional Contract
(hereinafter: the Contract), containing inter alia the following conditions:
•
Term: from 1 February 2023 until 31 January 2024;
•
Salary: USD 300,000 net;
•
Performance bonuses, flight tickets, car and accommodation allowances;
•
Extension option for another year to be exercised by the parties by 15 December
2023.
Furthermore, clauses 6 and 7 of the Contract read as follows, quoted verbatim:
“6. Validity
1. This Contract, in part or whole, shall constitute the basis of the employment
contract to be submitted to the K-League and/or the Korea Football Association
and shall be conditional upon:
-
This Contract shall become effective subject to the Player’s successful
completion of medical examination performed by the Club. The Player shall be
registered successfully with the Club after passing the medical examination to
be carried our by the Club.
2. It is undertaken by the Parties that the monetary provisions stipulated in this
Contract shall be final and irrevocable.
7. Penalty for breach of contract
In the case that one party breaches this contract, the other party shall have the right to
receive USD 300,000 as a penalty within 30 days after the breach hereof occurs”.
pg. 3
REF. FPSD-9693
4.
On 3 February 2023, Gangwon received confirmation of the “Approval for Electronic Travel
Authorization”, valid as from the date of issuance until 1 February 2025.
5.
On 6 February 2023, Gangwon signed a leasing for an apartment for the period of 24
months. According to Gangwon, the agreement was concluded on behalf of the player.
6.
According to Gangwon, on 9 February 2023, it received the following message from the
player’s agent, which was however not corroborated by any evidence:
“In the process of coordinating the itinerary with the Player, another agent contacted
Qatar club, Al-Markhiya SC(hereinafter: Al-Markhiya). Al-Markhiya offered much better
conditions to the Player than Gangwon, therefore, the Player is likely to sign with Al
Markhiya”.
7.
On 9 February 2023, Gangwon addressed Al-Markhiya a notice by means of which it (i)
recalled that existence of the Contract; and (ii) warned it against the consequences of
signing a new agreement with the player in light of the FIFA regulations.
8.
On 13 February 2023, Gangwon put the player in default. In doing so, it (i) urged the player
to avail himself at the club’s premises for medical examinations on 16 February 2023; (ii)
provided the player with flight tickets from Doha to Seoul dated 15 February 2023; and (iii)
stated that the player’s absence would amount to breach of contract.
9.
On 16 February 2023, Gangwon acknowledged that the player failed to board his flight on
the previous day. As such, Gangwon requested him to “confirm the new itinerary” and the
“new boarding date within a week” under penalty of proceeding “with the related legal claim”.
10. Also on 16 February 2023, Al-Markhiya announced the hiring of the player in its official
Instagram account, as well as in its official website.
11. On 8 March 2023, Gangwon issued an invoice against the player for an amount of USD
300,000 in line with clause 7 of the Contract.
12. In parallel and on unspecified date, the player entered into an employment agreement with
Al-Markhiya valid as from 7 February 2023 until 30 June 2023. Accordingly, the player would
be entitled to the following monies:
a. QAR 121,666.66 as salary for February 2023; and
b. QAR 152,083.33 as monthly salary from March 2023 until June 2023.
pg. 4
REF. FPSD-9693
II. Proceedings before FIFA
13. On 21 March 2023, Gangwon filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of Gangwon
14. In his claim, Gangwon explained that it entered into a valid and binding contract with the
player, including all the essentialia negotii, but which was subsequently breached by the
player due to his decision to sign with Al-Markhiya.
15. Consequently, Gangwon requested to be entitled to the following amounts:
a. USD 300,000 net as penalty for breaching the Contract as provided in its clause 7;
b. USD 658 net (KRW 861,500) as reimbursement of the air fare paid by Gangwon on
behalf of the player due to his failure to board on 15 February 2023.
b. Position of the player
16. On 5 May 2023, the player filed his reply to the claim of Gangwon.
17. First and foremost, he argued that he was “the weak part” of the relationship and was not
provided with any explanation regarding the “legal value” of the Contract.
18. Furthermore, the player pointed out that pre-contracts are not regulated in the FIFA
regulations, therefore “cannot have any other value than a simple ‘Letter of intent’”. In the
player’s view, such provisional nature of the Contract was clear for that it provided for the
signature of an official employment contract in the future, as well as was conditioned to
the result of successful medical examinations. Likewise, the Contract was also not
registered.
19. Therefore, the player argued that the Contract lacked legal effect. Alternatively, he stressed
that the penalty clause therein included is excessive and should be reduced.
20. The requests for relief of the player were as follows, quoted verbatim:
“A) the claim filed by FC Gangwon is dismissed.
B) In case of the FIFA Football Tribunal should consider the document like a typical
contract the respondent ask that the penalty be reduced equitably.
C) FC Gangwon is ordered to reimburse all the legal and costs incurred in connection with
this procedure”.
pg. 5
REF. FPSD-9693
c. Position of Al-Markhiya
21.
On 16 May 2023 and due to the possibility of being deemed jointly liable for the payment
of the compensation in accordance with art. 17, par. 4 of the FIFA Regulations on the
Status and Transfer of Players (RSTP), Al-Markhiya was called as a party to the proceedings
and was invited by the FIFA general secretariat to submit its position to the file (cf. art. 9
par. 4 of the Procedural Rules Governing the Football Tribunal).
22. Notwithstanding the above, Al-Markhiya failed to submit its position within the deadline
granted by the FIFA general secretariat.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 21 March 2023 and submitted
for decision on 7 July 2023. 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.
24. 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 par. 1 lit. b)
of the RSTP (May 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 player from Portugal and a club from the Republic of Korea, with the
intervention of a Qatari club.
25. 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 RSTP (May 2023 edition), and considering that the present claim was lodged
on 21 March 2023, the October 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
26. 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
pg. 6
REF. FPSD-9693
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
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for breach of contract lodged
by Gangwon against the player, with the intervention of Al-Markhiya.
29. In particular, the DRC noted that it remained undisputed between the parties that,
following the conclusion of the Contract, the player departed from its execution and
decided to pursue a new employment relationship with Al-Markhiya. Nevertheless, the
parties dispute: (i) whether such Contract was indeed valid and binding to the parties; (ii) if
affirmative, if it was terminated with just cause; and (ii) the consequences that follow.
30. Consequently, the Chamber moved to the analysis of each topic in turn.
A. Was the Contract valid and binding to the parties?
31. As a departure point, the DRC recalled that the Football Tribunal’s well-established
jurisprudence dictates that, in order for a contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it shall contain the
essentialia negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship, the remuneration payable by the
employer to the employee, and the signatures. Such analysis is, moreover, irrespective of
the title of an agreement (cf. Commentary to the Regulations on the Status and Transfer of
Players, p. 199).
32. While considering the above vis-à-vis the documentation on file, the Chamber was satisfied
with the conclusion that all essential elements are indeed included in the Contract. In other
words, the document provides for the duration of the employment relationship and the
payable remuneration to the player, as well as it relates to the player as being employed
as a footballer with Gangwon and contains their proper identification. The Contract is also
pg. 7
REF. FPSD-9693
signed by both parties, which corroborates that they unequivocally consented to the terms
and conditions therein established.
33. In parallel and moreover in line with its long-standing jurisprudence, the DRC highlighted
that:
•
parties’ are responsible for documents they sign, hence the player could not
claim that he was not aware of its contents and/or that he did not understand its
consequences;
•
there was not any evidence on file suggesting that such document was signed
under duress; and
•
the fact that the Contract refers to medical examinations and the subsequent
signing of an employment contract does not prevent the Contract from coming
into effect – especially because the player did not even avail himself at Gangwon’s
premises in order to undergo exams, despite being requested to do so.
Furthermore, he was provided with the corresponding visa and flight tickets but
failed to abide by the directions of the club.
34. In light of the above, the Chamber determined that the parties validly accepted to enter
into an employment relationship valid as from 1 February 2023 until 31 January 2024. Put
differently: the Contract was indeed valid and binding to the parties.
B. Was the Contract terminated with just cause?
35. It followed from the above, in the Chamber’s view, that the parties entered into a valid
Contract that was subsequently breached by the player in the beginning of February 2023.
Further, the DRC was convinced that such breach (i.e., termination) occurred without just
cause, insofar as the player failed to advance any evidence capable of suggesting
otherwise.
36. Contrario sensu, the documentation on file led the DRC to believe that the player found
another (more attractive) employment, and simply decided to depart from his contractual
arrangement with Gangwon.
37. Therefore, the Chamber decided that the player terminated the Contract without just
cause. Specifically, the DRC deemed that 7 February 2023 should be considered as the date
of termination, being that the day when the new employment of the player with AlMarkhiya was set to start.
C. What are the consequences that follow?
pg. 8
REF. FPSD-9693
38. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the player.
39. At this stage, the Chamber firstly observed that Gangwon requested to be awarded a
reimbursement of the air commission for the unused flight tickets issued to the player.
However, it was the DRC’s view that such request lacked contractual and regulatory basis,
hence should be rejected.
40. In continuation, it turned to the calculation of the amount of compensation payable by the
player to Gangwon in the case at stake. In doing so, the Chamber firstly recapitulated that,
in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of
the dispute, with due consideration for the law of the country concerned, the specificity of
sport and further objective criteria, including in particular, the remuneration and other
benefits due to the player under the existing contract and/or the new contract, the time
remaining on the existing contract up to a maximum of five years, and depending on
whether the contractual breach falls within the protected period.
41. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent contract contained a provision by means of which the parties had
beforehand agreed upon an amount of compensation payable by the contractual parties
in the event of breach of contract.
42. In this regard, the Chamber took due consideration that the Contract in fact included a
compensation clause i.e., clause 7. For ease of reference, the DRC recalled that such
provision read as follows, quoted verbatim:
“In the case that one party breaches this contract, the other party shall have the right to
receive USD 300,000 as a penalty within 30 days after the breach hereof occurs”.
43. While analysing the abovementioned clause, the Chamber firstly outlined that it fulfills the
criteria of reciprocity. Nevertheless, it noted that the player challenged its proportionality,
who claimed that the amount of compensation should be reduced.
44. Accordingly, the DRC acknowledged that USD 300,000 corresponded to one monthly salary
per the Contract (i.e., 1/12 of the residual value). Consequently, and as opposed to the
argumentation of the player, the DRC was firm to determine that such amount was neither
unreasonable nor excessive in accordance with the jurisprudence of the Football Tribunal.
On the contrary, in the DRC’s view, it could even be argued that such amount was far lower
than the one due to Gangwon when considering the average between the Contract and the
new employment with Al-Markiya (cf. art. 17 of the Regulations).
pg. 9
REF. FPSD-9693
45. Consequently, and bearing in mind (i) the particularities of the case; and (ii) Gangwon’s clear
position and petitum; the Chamber decided that it should be entitled to USD 300,000 as
compensation for breach of contract.
46. The DRC also established that Gangwon would in principle be entitled to interest over the
awarded compensation. Nevertheless, as such concept was not request, the Chamber was
prevented to make any ruling to this extent (ne ultra petita).
47. Lastly, in accordance with the unambiguous contents of article 17 paragraph 2 of the
Regulations, the Chamber established that Al-Markiya should be jointly and severally liable
for the payment of compensation.
ii. Compliance with monetary decisions
48. 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.
49. In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official
matches up until the due amounts are paid and for the maximum duration of six months.
50. Therefore, bearing in mind the above, the DRC decided that, in the event that the player
does not pay the amounts due to Gangwon within 45 days as from the moment in which
Gangwon communicates its relevant bank details, provided that the decision is final and
binding, a restriction on playing in official matches, for the maximum duration of six
months shall become effective on the player in accordance with article 24 paragraphs 2
and 4 of the Regulations.
51. In parallel, 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.
52. Therefore, bearing in mind the above, the DRC decided that the player and Al-Markiya must
pay the full amount due (including all applicable interest) to the respective creditor within
45 days of notification of the decision, failing which, at the request of the respective
creditor, 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 both the respondents in accordance with art. 24 par. 2, 4, and 7
of the Regulations.
pg. 10
REF. FPSD-9693
53. The parties shall make full payment (including all applicable interest) to the bank account
provided in the Bank Account Registration Form, which are attached to the present
decision.
54. The DRC recalled that the above-mentioned restrictions 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
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-9693
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Gangwon Football Club, is partially accepted.
2.
The Respondent, Jose Correia, must pay to the Claimant USD 300,000 as compensation
for breach of contract without just cause.
3.
The Intervening Party, Al-Markhiya SC, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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:
Against the Respondent:
1. The Respondent shall be restricted on any football-related activity up until the due
amounts are paid. The overall maximum duration of the restriction shall be of up to six
months.
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 six months.
Against the Intervening Party:
1. The Intervening Party shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to 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.
pg. 12
REF. FPSD-9693
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-9693
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
pg. 14