Labour Disputes
Texto da decisão
REF FPSD-5602
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Rafael Da
Silva
BY:
Clifford J. Hendel (USA & France), Chairperson
Gonzalo de Medinilla (Spain), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Rafael Da Silva, Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT:
Wuhan Yangtze FC, China PR
Represented by Ms Lian Huang & Mr Xiaochuan Xiong
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I.
Facts of the case
1.
On 20 January 2020, the Brazilian player, Rafael Da Silva (hereinafter: the Claimant), and
the Chinese club, Wuhan Yangtze FC (hereinafter: the Respondent) signed an employment
contract valid as from 18 January 2020 until 31 December 2020.
2.
On 23 June 2020, the Claimant suffered a hamstring muscle strain and, as a result, missed
the first league match of the 2020-2021 season.
3.
On 3 August 2020, the Claimant suffered another injury during training, tearing his medial
collateral ligament and anterior cruciate ligament, rendering him unable to play for the
remainder of the 2020-2021 season.
4.
On 12 August 2020, the Claimant and the Respondent (hereinafter jointly: the Parties)
mutually agreed that the Claimant shall return to Brazil for treatment of the injury and
rehabilitation; in this respect, at this time, the date of return by the Claimant from Brazil
remained unclear.
5.
On 19 November 2020, the Parties extended the employment relationship by concluding
a second employment contract (hereinafter: the Contract), valid as from 1 January 2021
until 31 December 2022.
6.
In accordance with art. 7 par. 1 of the Contract, the Respondent undertook to pay to the
Claimant inter alia an annual salary of EUR 2,500,000, payable in 12 equal monthly
instalments by no later than the 15th day of the following respective month.
7.
Furthermore, in accordance with art. 7 par. 4 of the Contract, the Parties agreed as
follows: “In case that (the Claimant) cannot participate in training and matches because of
injury and diseases (other than due to work) as well as the contract has not been cancelled,
the salary that (the Respondent) shall pay (the Claimant) shall be no less than 50% of the full
amount, except for those resulted from breach of law, breach of discipline and violation of
social ethics and other misbehaviour.”
8.
Moreover, in accordance with art. 7 par. 5 of the Contract, the Parties agreed as follows:
“Upon termination of the contract, (the Respondent) shall pay (the Claimant) salary on longer.
(The Claimant) give up the right to require compensation.”
9.
Additionally, in accordance with art. 3 par. 4 of the Contract, the Respondent undertook
to provide the Claimant with transportation, accommodation and other related expenses
in connection with training, playing matches and other activities arranged by (the
Respondent).
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10. Furthermore, in accordance with art. 3 par. 6, the Respondent undertook to provide the
Claimant with treatment expenses for non-work-related injuries, provided that the latter
does not result from a breach of law or discipline.
11. On 6 December 2020, the Claimant tore his tibialis anterior muscle as a result of an
accident in his home, and was required to undergo surgical treatment as a result thereof.
In this respect, the Respondent decided not to make the injury of the Claimant public, as
a result of the fact that said injury was classified as “non-work-related”.
12. On 31 December 2020, the Claimant’s Chinese work permit / visa expired.
13. In January 2021, when the return to China of the Respondent’s players was scheduled,
the Claimant was unable to return on account of the travel restrictions in place in Brazil
caused by COVID-19. During this time, the Claimant continued to treat his injury with the
authorisation of the Respondent with a local team, Clube Atlético Paranaense.
14. At the end of May 2021 (date unspecified), the Parties agreed that, in order to facilitate
the Claimant’s return to China, the latter shall travel to Serbia in order to obtain a Chinese
visa more easily.
15. By correspondence dated 5 July 2021, the Claimant put the Respondent in default of
payment of the salary instalments between January 2021 and May 2021, as well as
EUR 50,000 which were incurred by the Claimant as a result of arranging a visa to return
to China, setting a time limit expiring on 20 July 2021 in order to remedy the default.
16. By correspondence dated 14 July 2021, for a second time, the Claimant put the
Respondent in default of payment of EUR 1,091,666, setting a time limit expiring on
29 July 2021 in order to remedy the default.
17. Following the communication of the second default notice, the Claimant stated that the
outstanding salaries for the period between January 2021 and April 2021 have been fully
paid by the Respondent in irregular instalments.
18. On 2 August 2021, the Claimant obtained a “temporary residence visa” for China valid until
2 November 2021, at his own expense, with the explanation that the Respondent was
unable to do so in good time on account of the peculiarities of the Chinese banking system
and the financial difficulties of the Respondent caused by COVID-19.
19. By correspondence dated 23 September 2021, the Respondent confirmed to the Claimant
that it is obligated to pay the latter EUR 50,000 as the expense incurred by himself in
relation to the administration fee for his work permit and the cost of a residents’ permit
in Serbia.
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20. On 24 September 2021, the Claimant returned to China to resume his occupation with
the Respondent.
21. By correspondence dated 15 February 2022, the Claimant put the Respondent in default
of payment of EUR 1,875,000, setting a time limit expiring on 2 March 2022 in order to
remedy the default.
22. By correspondence dated 7 March 2022, the Claimant unilaterally terminated the
Contract with the Respondent.
23. On 16 March 2022, the Claimant and the Brazilian club, Cruzeiro MG (hereinafter: the New
Club) signed an employment contract (hereinafter: the New Contract) valid as from
16 March 2022 until 30 November 2022.
II. Proceedings before FIFA
24. On 29 March 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the Parties is detailed in continuation.
a. Position of the Claimant
25. According to the Claimant, the Contract was terminated with just cause in line with
art. 14bis of the Regulations Governing the Status and Transfer of Players.
26. The Claimant asserted that several salary payments had remained outstanding, as well as
the costs for obtaining a visa, the latter of which was confirmed by the Respondent to be
due to the Claimant in its correspondence dated 23 September 2021. Furthermore, the
Claimant submitted that he put the Respondent in default and granted the requisite
deadline of at least 15 days in order for the latter to comply with its financial obligations,
to no avail.
27. The Claimant requested EUR 2,133,333.33 as outstanding remuneration, corresponding
to unpaid salaries between May 2021 and February 2022, as well as the costs incurred for
the purposes of obtaining the visa.
28. Furthermore, with regards to interest, the Claimant requested 5% p.a. as from the day
following the respective due dates of the requested outstanding amounts until the date
of effective payment.
29. Moreover, the Claimant requested compensation for breach of contract without just
cause by the Respondent in the amount of EUR 2,083,333.33, corresponding to the
residual value of the Contract as from the date of termination.
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30. In this respect, the Claimant also requested interest of 5% p.a. payable on the
compensation awarded as from 8 March 2020 until the date of effective payment.
b. Position of the Respondent
31. The Respondent partially rejected the claim, arguing as follows:
32. According to the Respondent, the Claimant terminated the Contract unilaterally in
accordance with art. 7 par. 5 of said Contract, thereby renouncing the right to claim
compensation from the Respondent. In line with the principle of pacta sunt servanda,
therefore, the Claimant shall not be entitled to claim compensation in line with art. 17 of
the Regulations Governing the Status and Transfer of Players.
33. Furthermore, the Respondent argued that, as the Claimant was absent and unavailable
for several months as a result of an injury suffered outside of a working context, the
outstanding remuneration payable to the Claimant shall be reduced to a total amount of
EUR 1,313,884.06.
34. Moreover, the Respondent submitted that, as players cannot purchase flights tickets on
their own, the former helps them purchase tickets, and the tickets are subsequently set
off from their remuneration. As such, given that the Respondent paid for the tickets from
Brazil to Serbia, which subsequently facilitated the Claimant to obtain a visa, the cost of
those tickets in the amount of CNY 97,730 shall be deducted from any compensation
awarded as a result of a decision rendered by FIFA.
35. The Respondent wished to stress that the failure to pay the salaries owed to the Claimant
stems from the financial problems caused by COVID-19. The Respondent also alleged that
it paid three monthly salaries since the return of the Claimant from Brazil, corresponding
to the months of September 2021 – November 2021.
36. Lastly, the Respondent requested that no transfer ban shall be imposed as a result of the
proceedings at hand, and that a milder sanction, if at all, shall prevail.
c. Response of the Claimant / Replica
37. The Claimant rejected the argument that, pursuant to art. 7 par. 5 of the Contract, he is
no longer entitled to compensation after unilaterally terminating the employment
relationship. In this respect, he argued that the respective provision in the Contract
related to the entitlement of salaries as opposed to compensation arising out of a claim
for breach of contract without just cause, and in any case, such provision, if construed to
this effect, would be contrary to the jurisprudence of the Football Tribunal.
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38. Furthermore, the Claimant argued that art. 7 par. 4 of the Contract was drafted in bad
faith and should, therefore, not be applicable. In this respect, the Claimant asserted that,
as he was recovering from an injury in Brazil, with the Respondent’s authorisation, and
the latter failed to organise a visa for his return in good time, the Claimant would have
been unable to attend any training sessions regardless of whether he was injured or not.
39. The Claimant also pointed out that, until the present claim was lodged, the Respondent
never warned the former that his salary would be reduced, and that, in this respect, his
full salary between January 2021 and April 2021 had been paid. As such, the Claimant
argues that the Respondent is using the injury of the former as an excuse to reduce his
salary and, therefore, the amounts payable to him as a result of the claim at hand.
40. The Claimant also submitted that, even if the Respondent was theoretically entitled to
reduce his salary under art. 7 par. 4 of the Contract, said reduction should only apply to
four months, rather than 10, since the Claimant was no longer injured by April 2021 and
beyond said point in time, the reason for his absence was the failure of the Respondent
to procure a visa.
41. The Claimant also rejected the argument that the reduction in salary is justifiable on
account of the consequences of COVID-19, as this has been proven to be insufficient to
justify a breach of financial obligations under a contract or a unilateral amendment to the
terms thereof, in line with the jurisprudence of the Football Tribunal in this respect, as
well as the FIFA COVID-19 Guidelines.
42. In this respect, the Claimant argued that, in line with the principle of contra venire factum
proprium, as the Respondent had paid his salary for the months of January 2021 to
April 2021 in full, he had a legitimate expectation that the latter should act in good faith
and continue to pay on such a basis.
43. Moreover, the Claimant pointed out that the Respondent told him to “travel to Serbia since
it (is) easier to obtain the visa through local authorities” and expressly undertook “to
reimburse the (Claimant) of all expenses afforded by (him) during the process of obtaining the
Chinese visa, in an amount of EUR 50,000”.
44. Lastly, the Claimant asserted that the Respondent is obliged by way of DRC jurisprudence
to reimburse him for flight tickets because the Respondent is not entitled to directly offset
the remuneration of a player with alleged debts which hold no labour nature (the price of
several flight tickets were unilaterally reduced from the aforementioned monthly
salaries). Pursuant to this, the Claimant further denied the argumentation submitted by
the Respondent which suggests that any compensation awarded to the Player via a
decision rendered by FIFA should have a reduction of CNY 97,730 based on the purchase
of flight tickets.
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d. Response of the Respondent / Duplica
45. The Respondent largely reiterated its position as outlined in its response to the claim
itself, but presented additional comments as follows:
46. With regards to the application of the provisions regarding the reduction of salary due to
absence caused by a non-work related injury, as well as the non-entitlement of the Player
to compensation due to unilaterally terminating the Contract (cf. Art. 7 par. 4 & 5), the
Respondent argued that in line with the principle of pacta sunt servanda, the clause should
be enforced and if the Player had any objection as to its application, this should have been
raised before signing the Contract.
47. The Respondent also submitted that there was no contractual basis for the Claimant to
request he payment of airplane tickets, and that as a result, any award made in favour of
the Claimant should be reduced accordingly.
48. Lastly, the Respondent wished to stress once again that the non-payment of salaries due
to financial difficulties is far from a “malicious fabrication”, and that it is trying to overcome
with its best efforts, putting the benefit of the players in first place.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
49. 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 29 March 2022 and submitted
for decision on 23 June 2022. Taking into account the wording of art. 34 of the June 2022
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.
50. 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 Regulations on the Status and Transfer of Players (August 2021 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 Chinese club.
51. 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 (June 2022 edition),
and considering that the present claim was lodged on 29 March 2022, the March 2022
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edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
52. 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
53. 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
54. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Parties strongly disputed the amount of
outstanding remuneration payable to the Claimant, as well as the justice of the early
termination of the Contract by the Claimant based on the alleged non-payment of certain
financial obligations by the Respondent as per the Contract, in accordance with art. 14bis
of the Regulations.
55. To begin with, the Chamber took note of the wording of art. 7 par. 4 of the Contract, which
established that “In case that (the Claimant) cannot participate in training and matches
because of injury and diseases (other than due to work) as well as the contract has not been
cancelled, the salary that (the Respondent) shall pay (the Claimant) shall be no less than 50%
of the full amount, except for those resulted from breach of law, breach of discipline and
violation of social ethics and other misbehaviour.”
56. After analysing the content of the aforementioned clause, as a preliminary matter, the
Chamber concluded that it fulfilled the criteria of reciprocity and proportionality on
account of the fact that it applied in case of an injury arising out of a non-work related
incident. Therefore, said clause was to be applied in the case at hand, in line with the
principle of pacta sunt servanda, to determine the amount of compensation payable by
the Respondent.
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57. In this respect, the Chamber concluded that the clause should apply partially,
corresponding to the amount of time for which the Claimant was away from the
Respondent as a result of the non-work-related injury suffered by the former on
6 December 2020. In this respect, the Chamber established that the application of the
aforementioned clause should not extend beyond said timeframe on account of the
Respondent’s failure to obtain a visa for the Claimant after he fully recovered from his
injury.
58. In this context, the time during which the Claimant had been away from the Respondent
as a result of the non-work related injury was between January 2021 and April 2021,
amounting to four months. As a result, the Chamber held that the overall outstanding
remuneration due to the Claimant should be reduced by four half-monthly salaries, in
line with art. 7 par. 4 of the Contract, i.e., EUR 416,666.66 (4 times EUR 104,166.66).
59. Furthermore, the Chamber took note of the fact that the Parties dispute the obligation to
pay the costs incurred by the Claimant in relation to obtaining a Chinese visa in the
amount of EUR 50,000.
60. In this respect, the Chamber recalled its long-standing jurisprudence, according to which
the costs of obtaining a visa or a work permit shall be borne by the employer – i.e., the
Respondent. Additionally, the Chamber noted that the Respondent acknowledged in its
correspondence to the Claimant dated 23 September 2021 that it was obligated to bear
the costs linked to obtaining said permit.
61. Bearing in mind the above, the Chamber decided that the Respondent is liable to pay the
Claimant the amount of EUR 50,000, in connection with the procurement of the Claimant’s
visa to enter China.
62. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
63. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to the period between May 2021 and February 2022, as well as the costs
incurred as a result of obtaining a visa to return to China following recovery of the
Claimant’s injury. Furthermore, the Chamber took note of the fact that the Claimant has
provided written evidence of having put the Respondent in default on 15 February 2022,
i.e., at least 15 days before unilaterally terminating the Contract on 7 March 2022.
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64. In this respect, the Chamber took note of the Respondent’s assertion that it had paid
three monthly salaries to the Claimant since the return of the latter to China after he had
recovered from his injury. However, the Chamber observed that the Respondent failed to
provide any evidence to substantiate said claim. As a consequence, it was concluded that
the Respondent failed to meet the burden of proving that the alleged payments had been
effected.
65. Having established that the claimed amounts had indeed remained unpaid by the
Respondent, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had justifiably remained
unpaid by the Respondent, and if so, whether the formal pre-requisites of art. 14bis had
in fact been fulfilled.
66. Bearing in mind the aforementioned, the Chamber considered the argumentation
submitted by the Respondent that the failure to comply with the financial obligations
under the Contract being attributable to the effects of COVID-19.
67. In this context, the Chamber wished to highlight that 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 clarifications on
the most relevant questions in connection with the regulatory consequences of the
COVID-19 outbreak and identifies solutions for new regulatory matters.
68. The Chamber also wished to refer to the fact that said guidelines – as per the explicit
wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only
applicable to “unilateral variations to existing employment agreements”. Therefore,
except where a termination of a contract occurred following a unilateral variation made
as a result of COVID-19 (in which case the validity of the variation must first be assessed
under the guidelines), said guidelines do not apply to assess unilateral terminations of
existing employment agreements. The Chamber further noted that for the assessment of
disputes that are presented before the FIFA judicial bodies concerning the unilateral
termination of a contract, the FIFA Regulations as well as the established jurisprudence
of the Chamber shall apply.
69. As to the concept of a situation of force majeure, the Chamber also noted that, based on
the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not
declare that the COVID-19 outbreak was a force majeure situation in any specific country
or territory, or that any specific employment or transfer agreement was impacted by the
concept of force majeure. In other words, in any given dispute, it is for a party invoking
force majeure to establish the existence of said event under the applicable law/rules as
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well as the consequences that derive in connection thereto. The analysis of whether a
situation of force majeure existed has to be considered on a case-by-case basis, taking
into account all the relevant circumstances.
70. Following these general observations, the Chamber noted that, in the case at stake, no
unilateral variation was made to the contract prior to the termination and the latter shall
be analysed in accordance with the Regulations and the regular jurisprudence of FIFA in
this respect.
71. As to the argumentation of force majeure based on the effects of COVID-19 on the
financial liquidity of the Respondent as the reason for failing to comply with the financial
obligations under the Contract, the Chamber concluded that no situation of force majeure
could be established and that the COVID-19 outbreak shall not be used as an excuse not
to comply with contractually agreed payments which fell due already at an earlier stage.
72. Bearing in mind the foregoing, the Chamber concluded that the Respondent had not
provided any valid justification for the non-payment of the amounts that were
outstanding at the time of the premature termination of the contract. Therefore, the
Chamber concluded that the Claimant had a just cause to terminate the Contract.
73. Lastly, with regards to the Claimant’s request of compensation, the Chamber took note
of the Respondent’s argumentation that, in line with the principle of pacta sunt servanda,
the provision in art. 7 par. 5 of the Contract shall apply, and that, as a result, the Claimant
shall not be entitled to claim any amounts arising out of the Contract forming the basis of
the dispute at hand.
74. In this respect, the Chamber concluded that said provision indeed only referred to the
right to claim the payment of salaries falling due after the conclusion of the employment
relationship, and that, regardless of its interpretation, in line with its long-standing
jurisprudence, the ability to claim compensation as a result of an unlawful breach of
contract cannot be contractually excluded by the Parties to said contract.
75. Therefore, the Chamber held that art. 7 par. 5 shall not be applicable in the case at hand,
and that any compensation due to the Claimant by the Respondent shall be assessed in
line with the principles laid down in art. 17 par. 1 of the Regulations.
ii. Consequences
76. 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.
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77. Firstly, the Chamber established that the basis for calculating the overall outstanding
amounts due to the Claimant under the Contract is EUR 2,083,333.33, corresponding to
ten unpaid salaries of EUR 208,333.33 each between May 2021 and February 2022.
78. In this respect, the Chamber recalled that the Respondent was liable to pay the Claimant
outstanding remuneration, which had been reduced by EUR 416,666.66 by virtue of
art. 7 par. 4 of the Contract.
79. Furthermore, the Chamber recalled that the Respondent was also liable to pay the
Claimant an amount of EUR 50,000 corresponding to the costs related to obtaining a
Chinese visa.
80. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay the Claimant the
amounts which were outstanding at the moment of the termination, i.e., EUR 1,716,666.66
(ten times EUR 2,083,333.33 minus EUR 416,666.66 plus EUR 50,000).
81. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
on the outstanding amounts as follows:
- On the amount of EUR 104,166.66, 5% interest p.a. as from 16 June 2021 until the date
of effective payment;
- On the amount of EUR 104,166.66, 5% interest p.a. as from 16 July 2021 until the date
of effective payment;
- On the amount of EUR 104,166.66, 5% interest p.a. as from 16 August 2021 until the
date of effective payment;
- On the amount of EUR 104,166.66, 5% interest p.a. as from 16 September 2021 until
the date of effective payment;
- On the amount of EUR 208,333.33, 5% interest p.a. as from 16 October 2021 until the
date of effective payment;
- On the amount of EUR 208,333.33, 5% interest p.a. as from 16 November 2021 until
the date of effective payment;
- On the amount of EUR 208,333.33 5% interest p.a. as from 16 December 2021 until the
date of effective payment;
- On the amount of EUR 208,333.33, 5% interest p.a. as from 16 January 2022 until the
date of effective payment;
- On the amount of EUR 208,333.33, 5% interest p.a. as from 16 February 2022 until the
date of effective payment;
- On the amount of EUR 208,333.33, 5% interest p.a. as from 16 March 2022 until the
date of effective payment;
- On the amount of EUR 2,083,333.33, 5% p.a. as from 29 March 2022 until the date of
effective payment.
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82. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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.
83. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained a provision by means of which the
Parties had beforehand agreed upon an amount of compensation payable in the event of
breach of contract.
84. 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.
85. As a consequence, the Chamber determined that the amount of compensation payable
by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
86. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms of
the Contract until its term. Consequently, the Chamber concluded that the amount of
EUR 2,083,333.33 serves as the basis for the determination of the overall compensation
due to the Claimant for breach of contract.
87. In continuation, the Chamber verified whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
Chamber as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
88. Indeed, the Claimant found new employment with the Brazilian club, Cruzeiro MG. In
accordance with the New Contract, the Claimant was entitled to approximately BRL 6,000
per month. Therefore, the Chamber concluded that the Claimant mitigated his damages
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in the total amount of BRL 51,096.77 (EUR 9,943), that is, 8 times BRL 6,000 for the period
as from April 2022 until November 2022, plus BRL 3,096.77 corresponding to the pro-rata
value of March 2022.
89. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii. of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contractual
termination took place due to said reason, i.e., overdue payables by the club, and
therefore decided that the Claimant shall receive additional compensation.
90. In this respect, the Chamber decided to award the amount of additional compensation of
BRL 51,096.77 (EUR 9,943), i.e., the full amount due to the Claimant under the New
Contract.
91. The Chamber reminded the Parties that, as per the last sentence of art. 17 par. 1 lit. ii. of
the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
92. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent must pay the amount of
EUR 2,083.333.33 (i.e., EUR 2,083,333.33 minus EUR 9,943 plus EUR 625,000, limited to a
maximum of EUR 9,943), which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
93. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as from 29 March 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
94. 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.
95. 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.
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96. 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.
97. 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.
98. 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
99. 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.
100. 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.
101. 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, Rafael Da Silva, is partially accepted.
2.
The Respondent, Wuhan Yangtze FC, has to pay to the Claimant, the following amount(s):
- EUR 104,166.66 as outstanding remuneration plus 5% interest p.a. as from
16 June 2021 until the date of effective payment;
- EUR 104,166.66 as outstanding remuneration plus 5% interest p.a. as from
16 July 2021 until the date of effective payment;
- EUR 104,166.66 as outstanding remuneration plus 5% interest p.a. as from
16 August 2021 until the date of effective payment;
- EUR 104,166.66 as outstanding remuneration plus 5% interest p.a. as from
16 September 2021 until the date of effective payment;
- EUR 208,333.33 as outstanding remuneration plus 5% interest p.a. as from
16 October 2021 until the date of effective payment;
- EUR 208,333.33 as outstanding remuneration plus 5% interest p.a. as from
16 November 2021 until the date of effective payment;
- EUR 208,333.33 as outstanding remuneration plus 5% interest p.a. as from
16 December 2021 until the date of effective payment;
- EUR 208,333.33 as outstanding remuneration plus 5% interest p.a. as from
16 January 2022 until the date of effective payment;
- EUR 208,333.33 as outstanding remuneration plus 5% interest p.a. as from
16 February 2022 until the date of effective payment;
- EUR 208,333.33 as outstanding remuneration plus 5% interest p.a. as from
16 March 2022 until the date of effective payment;
- EUR 50,000 as outstanding amount;
- EUR 2,083,333.33 as compensation for breach of contract plus 5% interest p.a. as from
29 March 2022 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.
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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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REF FPSD-5602
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).
CONTACT INFORMATION
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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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