Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 20 February 2020,
in the following composition:
Clifford J. Hendel (US A/France), Deputy Chairman
Roy Verm eer (Netherlands ), member
Daan De Jong (Netherlands ), member
on the claim presented by the club,
Moreirens e FC, Portugal,
represented by Mr Pedro Macieirinha
as Claimant
against the player,
Jhonatan Luiz Da S iqueira, Brazil,
represented by Mr Daniel Rey
as Respondent I
and against the club,
Vitória S port Clube, Portugal,
represented by Mr Bernardo Lobo Xavier
as Respondent II
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 6 July 2017, the Brazilian player, Jhonatan Luiz Da Siqueira (hereinafter: the player
or the Respondent) and the Portuguese club, Moreirense FC (hereinafter: Moreirense FC
or the Claimant), signed an employment contract (hereinafter: the contract) valid as
from 6 July 2017 until 30 June 2019.
2.
According to the contract, the player was entitled to the following fixed remuneration:
(a) For season 2017/18: EUR 56,220;
(b) For season 2018/19: EUR 72,780;
(c) Signing-on fee of EUR 10,000 payable by 7 July 2017.
3.
According to art. 10 of the contract, “All cases and situations not provided for in this
contract shall be governed by the Collective Bargaining Agreement entered into
between the National Union of Professional Football Players and the Portuguese
Professional Football League, and the parties expressly state that the period provided
for in Article 11 of that document applies to this contract.”
4.
Art. 11 of the contract stipulates that “The Parties agree to submit any disputes between
them to the arbitration committee established under Art. 55 of the Employment
Contract for professional footballers.”
5.
Pursuant to art. 12 of the contract, “The Club and Athlete agree that, by 31 May, 2019,
the Club has the right to opt for renewal of the employment contract for another
season, i.e. until 30 June, 2020, thus requiring the athlete to perform his duties as
identified in clause 1, and the Club being required to pay the Player the following gross
amounts, hereby established previously:”
- Season 2019/2020 EUR 99.120,00
6.
In addition, according to art. 13 of the contract, “The Club and Player also agree that in
the course of the respective sporting seasons, if there are national or foreign clubs or
SADs, interested in the player’s sports rights, these Clubs and SAD’s will have to pay the
amount of € 1,500,000.00 (...) to Moreirense Futebol Clube SAD, for the termination of
the contract.”
7.
On 28 February 2019, the Claimant sent a formal letter to the player indicating that it
expressed “its intention to exercise its right to renew the contract until 30/06/2020,
which it does through this letter”. The player received said letter on 4 March 2019 via
recorded delivery.
8.
On 7 March 2019, the player sent a correspondence to the Claimant in which he stated
that he did not intend to renew his contract for the season 2019/2020 and made
reference to Portuguese employment law according to which unilateral extension
Club Moreirense FC, Portugal / Player Jhonatan Luiz Da Siqueira, Brazil / Club Vitória Sport Clube, Portugal
Page 2 of 8
options are “not provided for”. As such, he declared that the Claimant’s extension for
season 2019/2020 was “null and void”.
9.
On 27 March 2019, the Claimant sent a letter to the Portuguese professional league in
which it stated that it had exercised the player’s contract extension option, but the
player had refused to sign the documents in order to extend his contract, and requested
the league to “register the automatic renewal of the contract of the player (…) until
30/06/2020”. In this respect, the Claimant insisted that the player gave his consent to
such clause when signing the contract, that the FIFA Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) do not prevent clubs from having
unilateral extension options, and indicated that the extension foresaw improved
financial conditions for the player, and does not “violate the principles of the player’s
freedom of movement and personality rights, because the extension period is
proportional to the main contract”.
10.
On 15 April 2019, the Portuguese club Vitoria Sport Clube (hereinafter: Vitoria SC or
Respondent II) informed the Claimant that, on 12 April 2019, it entered into an
employment contract with the player valid as from 1 July 2019 until 30 June 2023, and
according to which the player would earn a total remuneration of EUR 600,000 plus
bonus. Vitoria SC further stated that according to Portuguese labour law, unilateral
extension clauses are illegal. In addition, Vitoria SC referred to the Portuguese
professional football league’s and Portuguese FA’s regulations according to which these
bodies “are obligated [to] refuse the registration of the player by a new club if the player
is in contract with another club” and explained that the fact that the player had been
officially registered with it proved that the unilateral extension was indeed considered
null and void by the Portuguese football regulators.
11.
On 5 April 2019 the Claimant lodged a claim against the player, requesting the FIFA
Dispute Resolution Chamber to rule that the claim is admissible, and that the contract it
signed with the player on 6 July 2017 has been validly extended until 30 June 2020, and
as such requested the following:
- The player should be banned for 4 months for having entered into another
contract for season 2019/2020;
- The player should pay the Claimant EUR 1,500,000 as per clause 13 of the
contract.
12.
On 29 July 2019, the Claimant lodged a separate claim against Vitoria SC, the player’s
new club, requesting the DRC:
- To impose sporting sanctions on Vitoria SC;
- To order Vitoria SC to pay compensation in the minimum amount of EUR
1,500,000 as per clause 13 of the employment contract concluded between the
Claimant and the player on 6 July 2017.
13.
In his reply to the claim, the player asserted that the option to extend the contract
required the approval of both parties, and that the Claimant had unlawfully unilaterally
extended the contract, seeking the equivalent of a transfer fee in a situation in which
the player was free to negotiate a new contract with another club .
Club Moreirense FC, Portugal / Player Jhonatan Luiz Da Siqueira, Brazil / Club Vitória Sport Clube, Portugal
Page 3 of 8
14.
In its reply to the claim, Vitoria SC maintained that the claim should be declared
inadmissible, based on art. 11 of the contract and art. 55 of the collective bargaining
agreement concluded between the Union of Portuguese Professional Players and the
Portuguese Professional Football League. Furthermore, as to the substance, it stated that
unilateral extension clauses are not allowed by the Portuguese FA and the Portuguese
Professional Football League and that the player’s registration with it as from 1 July 2019
evidenced that the Claimant’s argumentation is groundless and that its claim should be
rejected.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA on 5 April 2019 and decided
on 20 February 2020. Taking into account the wording of art. 21 of the 2019 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of
the Procedural Rules is applicable to the matter.
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition January 2020), the Dispute
Resolution Chamber is in principle competent to deal with the matter, which concerns
an employment-related dispute with an international dimension between two
Portuguese clubs and a Brazilian player.
3.
The DRC noted that Vitoria SC, the player’s new club, contested the competence of FIFA’s
deciding bodies, alleging that on the basis of art. 22 of the Regulations and on the lack
of international dimension since both clubs are Portuguese “this Chamber is not
competent to hear this dispute”.
4.
The Chamber further noted that both the player and the Claimant agreed to submit the
case to FIFA. In particular, the Chamber noted that the Claimant itself chose to submit
its claim to FIFA and the player did not contest FIFA’s competence to deal with the
present dispute.
5.
Taking into account all the above, the Chamber emphasised that in accordance with art.
22 lit. b) of the Regulations, FIFA is competent to hear ”employment-related disputes
between a club and a player of an international dimension; the aforementioned parties
may, however, explicitly opt in writing for such disputes to be decided by an
independent arbitration tribunal that has been established at national level within the
framework of the association and/or a collective bargaining agreement. Any such
Club Moreirense FC, Portugal / Player Jhonatan Luiz Da Siqueira, Brazil / Club Vitória Sport Clube, Portugal
Page 4 of 8
arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration
tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs;”
6.
For the sake of completeness, the DRC pointed out that neither the Claimant nor the
player had lodged an employment-related claim in front of “an independent arbitration
tribunal that has been established at national level within the framework of the
association and/or a collective bargaining agreement”.
7.
Having said that, the Chamber further observed that although the Claimant and the
Respondent II are both from Portugal and although there is an exclusive jurisdiction
clause (clause 10.) in the contract signed between the Claimant and the Brazilian player,
these two latter parties are not forbidden from submitting their claim to FIFA if they
choose to do so and they in fact accepted FIFA’s competence by respectively lodging the
claim at FIFA and replying to it as to the substance, without objecting to the
competence. The Chamber pointed out that the Claimant and the player are the main
parties to the contractual dispute and that Vitoria SC’s involvement is accessory to any
possible breach committed by the player. Thus, Vitoria SC has no legal standing to
challenge FIFA’s competence, especially considering that it is not a party to the contract
at the basis of this dispute. In view of the foregoing, the Chamber established its
competence to decide on the present dispute.
8.
Having established that it is competent to decide on the merits of the present dispute
on the basis of art. 22 lit. b) of the Regulations, the Chamber analysed which edition of
the regulations should be applicable as to the substance of the matter. In this respect,
the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations
on the Status and Transfer of Players, and considering that the claim was lodged on 5
April 2019, the June 2018 edition of the aforementioned regulations is applicable to the
matter at hand as to the substance.
9.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
10.
First of all, the Chamber acknowledged that, on 6 July 2017, the player and Claimant
had concluded an employment contract valid as from the date of signature until 30 June
2019. According to art. 12 of the contract the Claimant had the unilateral option to
extend the player’s contract until 30 June 2020, by giving him notice of its intentions by
31 May 2019.
Club Moreirense FC, Portugal / Player Jhonatan Luiz Da Siqueira, Brazil / Club Vitória Sport Clube, Portugal
Page 5 of 8
11.
The Chamber further noted on the one hand that the Claimant deems the
aforementioned extension option to be a valid and binding clause on the parties and to
have properly exercised it on 28 February 2019. Thus, the Claimant deems that the
employment contract was validly extended until 30 June 2020. Based on the foregoing,
the Claimant understands that the player was still under contract with it when he signed
a new employment contract with Vitoria SC on 12 April 2019, valid from 1 July 2019 to
30 June 2023. The Claimant thus considers that the player, induced by Vitoria SC,
breached their employment contract without just cause.
12.
The Chamber also noted that on the other hand the player deems the extension option
to be invalid as per Portuguese law and thus on 7 March 2019 he rightfully rejected the
renewal of the contract for one more season. Therefore, when his new contract with
Vitoria SC entered into force on 1 July 2019, he was no longer contractually bound to
the Claimant. The player requests that the Claimant’s claim is rejected.
13.
Lastly, the Chamber noted that Vitoria SC, in its reply as to the substance of the case,
also rejected the claim of the Claimant, alleging that unilateral extension clauses are not
allowed by the Portuguese FA and the Portuguese Professional Football League and that
the player’s registration with Vitoria SC as from 1 July 2019 proved that the Claimant’s
argumentation is groundless and that its claim should be rejected.
14.
In light of the foregoing, the DRC considered that the fundamental issue in the present
dispute was to determine whether the contract was legally extended by the Claimant,
based on art. 12 of the contract.
15.
In this respect, the Chamber first analysed the wording of clause 12 of the employment
contract, according to which “the Club has the right to opt for renewal of the
employment contract for another season, i.e. until 30 June, 2020, thus requiring the
athlete to perform his duties as identified in clause 1, and the Club being required to
pay the Player the following gross amounts, hereby established previously: […]”
15.
In this regard, the Chamber first noted that the aforementioned clause grants the club
only the right to decide on whether the contract will be extended for one more season
or not. The Chamber deemed that, in spite of the fact that such clause is included in an
employment contract signed by both parties, which in principle conveys their agreement
to its terms, this does not imply the automatic validity of all clauses therein included. In
case a contractual clause in a valid employment contract is considered invalid, its content
shall be individually disregarded. With regard to art. 12 of the contract specifically, the
Chamber noted that such clause grants one party only in the contractual relationship
the power to determine whether the contract shall be extended for one more season or
not, regardless of the will of the other party.
16.
At this point, the Chamber recalled that a clause which gives one party only the right to
unilaterally cancel or lengthen the contract, without providing the counter-party the
same rights, is a clause with disputable validity, due to the fact that it can be understood
to deprive one of the parties to the contract of having any influence on its duration,
Club Moreirense FC, Portugal / Player Jhonatan Luiz Da Siqueira, Brazil / Club Vitória Sport Clube, Portugal
Page 6 of 8
while still being directly affected by it. Such options can be considered not based on
reciprocity, since the right to decide upon the duration of a contract is left exclusively at
the discretion of one party.
16.
Furthermore, the Chamber focused its attention on the particular circumstances of the
present case. In this respect, it noted that on 28 February 2019 the Claimant
communicated to the player its intention to exercise the extension clause. This
communication was received by the player on 4 March 2019, who on 7 March 2019
promptly and explicitly informed the Claimant that he did not intend to renew his
contract for the season 2019/2020. In spite of the player’s clear refusal to extend the
contract and sign the necessary documents, the Claimant sent a letter to the Portuguese
Professional League on 27 March 2019, by means of which it requested the registration
of the “automatic renewal of the contract of the player (…) until 30/06/2020”.
17.
In view of the foregoing, the Chamber, by majority, deemed that in light of the terms
of art. 12 of the contract stipulating unbalanced rights for the player and the Claimant
with regard to the duration of the employment, and especially in light of the particular
circumstances of the present case in which one of the parties explicitly expresses his
refusal to extend the contract and the other party deliberately requests the League to
disregard such refusal and carry on with the registration, o the extension is not only
legally questionable but also concretely represents an act of deliberate disrespect of the
player’s will, leading to a fundamental breach of confidence between the employer and
the employee.
18.
Against this background, the Chamber by majority, the Chairman exercising his casting
vote, considered that in view of the particular combination of the contractual and the
factual circumstances of the case at hand, the contract between the Claimant and the
player cannot be considered as validly extended and it is thus no longer binding on the
parties as from 1 July 2019.
19.
As a result, the Chamber by majority decided that as from 30 June 2019 the player
Jhonatan Luiz Da Siqueira was no longer contractually bound to Moreirense FC and
therefore he was free to start executing the new employment contract with Vitoria SC
on 1 July 2019.
20.
The Chamber concluded its deliberations by establishing by majority that the claim of
the Claimant is rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Moreirense, is admissible.
2.
The claim of the Claimant is rejected.
Club Moreirense FC, Portugal / Player Jhonatan Luiz Da Siqueira, Brazil / Club Vitória Sport Clube, Portugal
Page 7 of 8
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
Dispute Resolution Chamber. Where such decisions contain confidential information, FIFA
may decide, at the request of a party within five days of the notification of the motivated
decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the appellant
shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Club Moreirense FC, Portugal / Player Jhonatan Luiz Da Siqueira, Brazil / Club Vitória Sport Clube, Portugal
Page 8 of 8