Labour Disputes
Texto da decisão
REF FPSD-3981
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding an employment-related dispute concerning the player Luis
Gustavo Melere Da Silva
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Khadija Timera (Senegal), member
Khalid Awad Al-Thebity (Saudi Arabia), member
CLAIMANT / COUNTER-RESPONDENT:
Al-Wehda Sport Club, Saudi Arabia
RESPONDENT / COUNTER-CLAIMANT:
Luis Gustavo Melere Da Silva, Brazil
Represented by Bichara & Motta Advogados
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REF FPSD-3981
I.
Facts of the case
1.
On 16 December 2020, the Saudi Arabian club, Al Wehda Sport Club (hereinafter: the
Claimant/Counter-Respondent or Club ), and the Brazilian player, Luis Gustavo Melere Da
Silva (hereinafter: the Respondent/Counter-Claimant or Player ) concluded an employment
contract (hereinafter. the contract) valid from 1 January 2020 until 30 December 2021.
2.
Pursuant to item 4 of the contract, the Club undertook to pay to the Player, the following
remuneration:
“According to the content of Article 15 of Professionalism Regulations, the total amount for
the contract is {3,200,000 Euro) Three Million Two Hundred Thousand Euro Net, the first
party shall comply with the following:
1- Payment of a monthly salary of {133,334 Euro) One Hundred Thirty-Three Thousand Three
Hundred Thirty-Four Euro Net To the second party at the end of every Gregorian.
2- The Club shall provide the Second Party with 7 return Business Class airplane tickets for
him from Brazil to Jeddah per season.
3- Housing allowance: The club provides housing (Compound) for the player of his choice.
4- Transportation: The club provides luxury car 4X4 for the player of his choice.
5- Annual vacation as agreed by the two parties.
6- The club shall provide an insurance policy from a legally licensed insurance company
covering the required medical treatment, mandatory regular medical checkup for the
player.
7- Allow the player chosen within the national team to join playing or training immediately
when requested by the association concerned in accordance with the regulations.”
3.
The Club has indicated that at the end of the 2020/2021 football season, it was relegated to
the first league and on the basis hereof, the Player indicated that he did not want to play in
a lower division, which the Club understood and in light hereof proposed numerous options
to the Player.
4.
The Club mentioned that the Player refused all proposals presented to him and failed to return
to Saudi Arabia to resume his work. Furthermore, the Player indicated to the Club that he
was entitled to all his “cash financial compensation”, which was not acceptable by the Club.
5.
According to the Club it failed to amicable settle matters with the Player, therefore “due to
the imminence of the end of the registration window the Club was obliged to terminate the
contract unilaterally for just cause on the last day of the registration period i.e., 8 September
2021.”
6.
The Club mentioned the following in its notification issued to the Player on 8 September
2021:
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“It is established the following:
1.On 16-12-2020 we have signed an employment contract for 2 years ending on 30
December 2021.
2.At the end of the season 2020/2021 you have expressed your desire to terminate the
contract due to the relegation of the club to the first division.
3.We have agreed with your desire and hence entered into negotiation to settle all
financial aspects.
4.Due to our irreversible will (for both parties ) to terminate the contract during this
registration window and with your knowledge that the club has to reduce the number of
foreign players to 4 according to the regulation in force in SAFF.
5.During that period, several proposals have been made to you in order to reach a financial
agreement with a scheduled payment.
6.You didn't accept any proposal and you have pressed the club to pay you the full
amount cash for fiscal reasons which cannot be accepted by the club.
7.Your lack of cooperation has put the club in a difficult situation with the imminence of
the end of the registration period. (8 September).
8.Therefore, we consider that your continual refusal to accept a scheduled payment or a
free loan (at you convenience) constitute a just cause to terminate the contract unilaterally
by the club.
9.Consequently, we inform you that the employment contract concluded on 16 December
2020 is unilaterally terminated by the club with immediate effect according to article 14
RSTP.
10.We remain at your disposal to discuss a financial arrangement which would avoid for
both parties a long procedure before FIFA and CAS.”
7.
On 1 February 2022, the Player informed FIFA that he is currently unemployed.
II. Proceedings before FIFA
8.
On 14 October 2021, the Club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
Position of the Club
9.
According to the Club, it terminated the contract with just cause in accordance with article
14 RSTP, considering:
“• the continual absence of the player and his refusal to resume his activities during more
than 3 months constitutes a just cause for the club to terminate the contract.
• the lack of cooperation and the bad behaviour of the player constitute an additional
cause to terminate the contract”
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10. Moreover, the Club indicated that the Player was in breach of the employment contract
during the protected period.
11. The requests for relief of the Club, were the following:
(a) order the Player to pay a compensation equal to the amount of EUR 534,000 or any
amount the FIFA DRC will consider proportionate and appropriate in the decision of the
case at stake, in accordance with the provision of article 17 of the FIFA RSTP;
(b) plus 5% interest on the amount due to the Club, calculated from the date of the
termination of the contract;
(c) sanction the Player with a ban on playing in official matches for four (4) months pursuant
to article 17, paragraph 3, of FIFA RSTP;
(d) to apply any other measure, it considers necessary in the decision of the case at stake.
b.
Position of the Player and Counterclaim
12. In his reply, the Player confirmed that that the Club sent him a letter on 8 September 2021,
terminating the contract, however he argued that the Club had no just cause to prematurely
terminate the contract and it is, in fact, “the Player who has a claim against the Club due to
the unjustified and repeated breaches of contract committed by Al-Wehda during the course
of the contract.”
13. In this context, the Player indicated that on 28 April 2020, the Club sent a letter to all players
informing them that due to financial impacts caused by the COVID-19 pandemic, the Club
would apply a reduction of salaries from 15 March 2020.
14. The Player indicated that it did not agree with the said salary reduction, however despite the
aforesaid, the following salaries of the Player were reduced:
• March 2020 salary suffered a 25% (twenty-five per cent) reduction;
• April 2020 salary suffered a 50% (fifty per cent) reduction;
• May 2020 salary suffered a 50% (fifty per cent) reduction; and
• June 2020 salary suffered a 50% (fifty per cent) reduction.
15. The Player mentioned that during the suspension period, the Player requested the Club to
return to Brazil, “but the Club failed to provide him with the flights tickets stipulated in the
Employment Contract. Consequently, the Player had to buy the relevant tickets for him and
his family, in the total amount of SAR 63,200.”
16. As from January 2021, according to the Player, the Club completely stopped paying his
salaries, consequently he has not received a single salary payment from the Club since January
2021 until the date of termination i.e. 8 September 2021.
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17. The Player confirmed that the Club presented to the Player a proposal for the early
termination of the employment contract, as follows:
payment of a compensation in the amount of EUR 933,338, payable in 7 monthly
instalments of EUR 133,334 each as from 15 October 2021 until 15 July 2022
18. On the same day, the Player mentioned to the Club that he would only accept to terminate
the contract if the following amounts were paid to him;
outstanding salaries from January 2021 until August 2021, in the amount of EUR
1,066,672 is paid in a single payment upon termination.
compensation equal to the remaining value he was entitled to receive through the contract,
in the amount of EUR 533,360, which could be paid in four instalments as from October
2021 until January 2022;
commission due to his agent in connection with his transfer from Al-Faisaly Football Club
to Al-Wehda in December 2019, in the amount of EUR 120,000, also in a single payment
upon termination.
19. On 14 September 2021, the Player, answered the termination letter of the Club of 8
September 2021, inter alia, “rejecting the allegations made by the club, clarifying that he had
never expressed any desire for the premature termination of the Contract and had always
performed his work with the expected professionalism and efforts”.
20. The requests for relief of the Player were the following:
a)
b)
c)
d)
e)
f)
g)
h)
j)
k)
l)
dismiss all allegations presented by the Club;
reject the Club’s claim in its entirety;
fully accept the Player’s counterclaim;
declare that the contract was terminated without just cause by the Club;
hold the Club liable for breaching articles 12bis and article 17, par. 1 of the FIFA
RSTP in light of its unjustified and repeated breaches of contract;
order the Club to pay the Player outstanding remuneration in the total amount of EUR
1,335,562.23 net;
order the Club to reimburse the Player with the amount in flights tickets bought on 20 April
2020 in the total amount of SAR 63,200;
order the Club to compensate the Player in the total amount of EUR 1,600,008 net as
remuneration for the premature termination of Employment Contract without just
cause;alternatively, order the Club to compensate the Player for the termination of the
contract without just cause in accordance with art. 17.1 of the FIFA RSTP;
order the payment of legal interest at a rate of 5% p.a.;
impose art. 12bis sanctions on the Club;
impose sporting sanctions on the Club banning it from registering any new players, either
nationally or internationally, for two registration periods; and order the Club to bear any and
all administrative and procedural costs.
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c.
Reply of the club to the Counterclaim
21. In its reply to the counterclaim, the Club mentioned that the Player agreed with the salary
reduction imposed by the Club. Moreover, the Club argues that the Player never objected to
same since March 2020.
22. The Club further, inter alia, mentioned the following:
a)
Regarding the outstanding amounts
COVID-19 was declared a force majeure situation in Saudi Arabia.
The Club stated that the majority of its revenues ceased during the entire period of the
cessation of football activity in Saudi Arabia, i.e. from 15 March 2020 until June 2020. In
this regard, it referred and enclosed the following evidence:
1)
Declaration of the Saudi Minister of Finance dated 25 March 2020, according to which
the budget allocated initially to sport will be reduced and reallocated to the efforts made
by the state to the fight against COVID- 19; and
2)
Correspondence notified by the national league to clubs in order to inform them that
after an analysis of the financial situation following the cessation of sporting activities it
appears that the pandemic has considerably affected financial resources which will
necessarily generate a significant reduction in the contribution allocated to the clubs and
which will last throughout the 2020/2021 sports season.
The Club indicated that the Minister of Human Resources and Social Development
amended the labour law providing that during the following 6 months the COVID-19
pandemic, which represents a major force, salaries and financial benefits will be reduced
by 40%.
b) Regarding the premature termination:
According to the Club in its counterclaim, “the player falsely alleged that the club has
rejected him from the sport’s project which is grotesque and false. After the
retrogradation of the club to the lower league at the end of the season 2010/2021, the
player as well as some other players asked to leave the club by any way (transfer, loan or
termination) because they didn’t accept to play in the lower league.”
23. In conclusion, the Club reiterated its request as per the claim and requested to dismiss all
the requests of the Player regarding the compensation and the decreased salaries due to
the COVID-19 pandemic.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 14 October 2021 and submitted for decision
on 5 May 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.
25. 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 Saudi Arabian club
and a Brazilian player.
26. 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 14 October 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
27. 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
28. 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.
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i. Main legal discussion and considerations
29. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the Club could validly
reduce the Player’s remuneration and whether the Club had just cause to terminate the
contract.
30. The Chamber took note that the Player argued that the Club on 8 September 2021
unilaterally terminated the contract without just cause, additionally that the parties failed to
reach an amicable settlement in relation to the matter at hand.
31. The DRC further noted that the Club on its account argued that it had just cause to terminate
the contract, due to the continuous absence of the Player and the lack of cooperation. The
DRC observed that the Club mentioned that on the basis of its relegation, the Player indicated
that he did not want to play in a lower division, which the Club understood and accordingly
proposed numerous options to the Player.
32. Firstly, the Chamber remarked that, the employment contract did not include a termination
clause, which would allow either party to terminate the contract in the event that the Club is
relegated to a lower division.
33. Secondly, the Chamber observed that there were various proposals exchanged between the
parties but that the parties failed to reach a mutual agreement regarding the termination of
the contract. What is more, from the information on file, it does not follow that the Player
unilaterally decided to not play for the Club anymore. However, the Player was able to
demonstrate that the Club, on the other hand, had failed to comply with its financial
obligations for a significant period, and was therefore in breach of the contract.
34. Lastly, in general the members of the Chamber wished to emphasise that, unless contractually
agreed upon, basically, the relegation of a Club that remains operational does not constitute
a just cause for termination.
35. Additionally, the Chamber took due note of the Club’s argument regarding the effects of the
COVID-19 pandemic, in this regard the Chamber remarked that the Club, argued that it was
allowed to reduce the remuneration of the Player between the period March 2020 until 22
June 2020 based on the impact of the COVID-19 pandemic.
36. Having said that, the DRC wished to refer to the fact that, in light of the worldwide COVID19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
appropriate guidance and recommendations to member associations and their stakeholders,
to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any
response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued
an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification
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about the most relevant questions in connection with the regulatory consequences of the
COVID-19 outbreak and identifies solutions for new regulatory matters.
37. In this context, the DRC considered that – based on the above set of documents issued by
FIFA - the DRC held that the Club failed, to submit corroborating evidence proving the
existence of such financial difficulties as a result of the COVID-19 pandemic in other words,
the reasons brought forward by the Club in its defence do not exempt the Club from its
obligation to fulfil its contractual obligations towards the Player.
38. The DRC further observed that on 8 September 2021, the Club unilaterally terminated the
employment contract without prior notice to the Player. In this regard, the Chamber remarked
that in accordance with well-established jurisprudence of the Chamber, only a breach or
misconduct, which is of a certain severity, justifies the termination of a contract without
notice, in casu the reasons provided by the Club is not severe enough to justify the unilateral
termination of the contract as such.
39. Bearing in mind the above considerations, the Chamber decided that the Club could not
validly justify the unilateral variation of the contract and therefore it shall remunerate the
Player as agreed in the contract. Moreover, the members of the Chamber came to the
conclusion that the termination of the contract by the Club was made without just cause and
that the Player is entitled to his outstanding remuneration and compensation for breach of
contract.
40. At this point, the DRC further decided to reject the claim of the Club and to focus on the
Player’s counterclaim.
ii. Consequences
41. Having stated the above, the members of the Chamber concurred that the Club must fulfil
its obligations in accordance with the general legal principle of “pacta sunt servanda”.
42. Consequently, the DRC decided that the Club is liable to pay to the Player his outstanding
remuneration, in the total amount of EUR 1,366,562.23 net, corresponding to the following:
EUR 33,333.50 net relating to the balance of his for salary for March 2020;
EUR 66,667, relating to the balance of his salary for April 2020;
EUR 66,667, relating to the balance of his salary for May 2020;
EUR 66,667, relating to the balance of his salary for June 2020;
EUR 133,334 relating to the balance of his salary for January 2021;
EUR 133,334 relating to the balance of his salary for February 2021;
EUR 133,334 relating to the balance of his salary for March 2021;
EUR 133,334 relating to the balance of his salary for April 2021;
EUR 133,334 relating to the balance of his salary for May 2021;
EUR 133,334 relating to the balance of his salary for June 2021;
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EUR 133,334 relating to the balance of his salary for July 2021;
EUR 133,334 relating to the balance of his salary for August 2021.
43. Furthermore, based on its well-established jurisprudence as well as taking into account the
Player’s request, the Chamber decided to award 5% interest p.a. on the above amounts as
from the respective due dates until the date of effective payment.
44. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Player is entitled to receive from the Club compensation for breach of
contract in addition to any outstanding salaries on the basis of the relevant employment
contract.
45. In this context, the Chamber outlined that, in accordance with the 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 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.
46. In application of the relevant provision, the Chamber held that it first 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.
47. In this regard, the Chamber took note of the wording of item 10 par.4 of the contract, which
established that:
“If either party decides to prematurely terminate the contract without just cause, or if a breach
of either party gives the other party just cause to terminate the contract, the party in breach
has to pay the other party liquidated damages equal to one yearly salary No further damage
shall be due in such a scenario and the parties further acknowledge that article 17.1 (ii) of
the FIFA Regulations on the Status and Transfer of Players will not apply in the sense that no
additional compensation will be due to the Player and no deduction from the agreed amount
will apply.”
48. After analysing the content of the aforementioned clause, the Chamber concluded that it
fulfilled the criteria of reciprocity and proportionality, in line with the Chamber’s longstanding
jurisprudence, and therefore was to be applied in the case at hand to determine the amount
of compensation payable by the Club to the Player.
49. Consequently, the Chamber decided that the amount of EUR 1,600,008 as per the
compensation clause agreed between the parties in the contract, is due to the Player by the
Club.
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50. Lastly, 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 on said compensation
at the rate of 5% p.a. as of 14 October 2021 until the date of effective payment.
51. Furthermore, with respect to the reimbursement of the flight tickets as claimed by the Player,
the DRC established that in addition to the documentary evidence submitted by the Player,
the Player is contractually entitled to the reimbursement of the said flight expenses, on this
basis the amount of SAR 63,200 is to be awarded to the Player.
iii. Compliance with monetary decisions
52. 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.
53. 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.
54. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
55. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
56. 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
57. 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.
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58. 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.
59. 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/Counter-Respondent, Al-Wehda Sport Club, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, Luis Gustavo Melere Da Silva, is
partially accepted.
3.
The Claimant/Counter-Respondent, has to pay to the Respondent/Counter-Claimant Luis
Gustavo Melere Da Silva, the following amount(s):
(a)
EUR 1,335,562.23 as outstanding remuneration plus 5% interest p.a. as from the
respective due dates until the date of effective payment as follows:
-
On the amount of EUR 33,333.50 as from 1 April 2020
On the amount of EUR 66,667 as from 1 May 2020
On the amount of EUR 66,667 as from 1 June 2020
On the amount of EUR 66,667, as from 1 July 2020
On the amount of EUR 133,334 as from 1 February 2021
On the amount of EUR 133,334 as from 1 March 2021
On the amount of EUR 133,334 as from 1 April 2021
On the amount of EUR 133,334 as from 1 May 2021
On the amount of EUR 133,334 as from 1 June 2021
On the amount of EUR 133,334 as from 1 July 2021
On the amount of EUR 133,334 as from 1 August 2021
On the amount of EUR 133,334 as from 1 September 2021
On the amount of EUR 35,555.73 as from 9 September 2021
(b)
EUR 1,600,008 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 14 October 2021 until the date of effective payment.
(c)
SAR 63,200 as flight tickets plus 5% interest p.a. as from 14 October 2021 until the
date of effective payment.
4.
Any further claims of the Respondent/Counter-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:
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▪
1. The Claimant/Counter-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.
7. 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.
8. 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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