Labour Disputes
Texto da decisão
REF. FPSD-9544
Decision of the
Dispute Resolution Chamber
passed on 24 August 2023
regarding an employment-related dispute concerning
the player Sana Dafa Gomes
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
FC Alverca, Portugal
Represented by 14 Sports Law
RESPONDENT 1:
Sana Dafa Gomes, Guinea-Bissau
Represented by JMPM Advogados
RESPONDENT 2:
Al Wasl, United Arab Emirates
Represented by JMPM Advogados
pg. 2
REF. FPSD-9544
I. Facts of the case
1.
On 2 June 2021, the Portuguese club Futebol Clube de Alverca (hereinafter: Claimant or
Alverca) and the Guinea-Bissauan player Sana Dafa Gomes (hereinafter: Respondent 1 or
player) concluded an employment contract (hereinafter: the Contract) valid as from
1 July 2021 until 30 June 2023.
2.
According to the Contract, Alverca undertook to pay the player a monthly salary of
EUR 916.20 gross.
3.
Furthermore, in accordance with clause 10 of the Contract, the player and Alverca agreed
as follows:
“Under the terms and for the purposes of Article 125 of the General Regulations of the
Portuguese Professional Football League, as well as Article 46 of the Collective Bargaining
Agreement concluded between the Union of Professional Football Players and the Portuguese
Professional Football League, which approves the legal regime of the employment contract of
sportsmen, the parties agree, expressly and irrevocably, that the inscription and registration
of the Federative Rights of the Player in favor of a club, association or third company depends,
in the case of a club, association or third company, on the payment of the amount of
€10.000.000,00 (ten million Euros), made by way of termination clause, value that the Parties
determine it corresponds to the valuation of the rights of sports participation of the Player,
not being able to FC Alverca, upon effective payment of the termination clause, plus VAT at
the legal rate if applicable, oppose to the transfer of the Player, endeavoring to celebrate all
documents and fulfill all necessary actions to the immediate registration of the Player in favor
of a third party.”
4.
On 5 July 2021, Alverca and the Portuguese club Portimonense Futebol (hereinafter:
Portimonense) signed an agreement for the loan transfer of the player to Portimonense as
from the date of signature until 30 June 2022 (hereinafter: the Loan Agreement).
5.
On 19 July 2021, the player and Portimonense signed an employment contract (hereinafter:
the Loan Employment Contract) valid as from the date of signature until 30 June 2022.
6.
In accordance with clause 5 of the Loan Employment Contract, the player and
Portimonense agreed as follows:
“The present contract has a certain term and duration, starting as from 5 July 2021 and
ending on 30 June 2022.
pg. 3
REF. FPSD-9544
The Club is entitled to buy the player at the end of the present sporting season, and in case it
exercises such option to buy, it shall celebrate an employment contract with the player to be
in force for the next 5 sporting seasons with the following salary:
123457.
Season 2022/2023: gross EUR 1,200;
Season 2023/2024: gross EUR 1,500;
Season 2024/2025: gross EUR 1,800;
Season 2025/2026: gross EUR 2,000;
Season 2026/2027: gross EUR 2,500.
On 16 September 2021, Alverca, the player and Portimonense signed an agreement for the
definitive transfer of the player to Portimonense (hereinafter: the Transfer Agreement), in
accordance with which the following was agreed:
“By the present contract, [Alverca] agrees to transfer from now and on a definitive basis and
with effect as of (including) 1 January [2022] the registration and economic rights of the player
of which is the sole and exclusive owner to the second party (i.e. Portimonense) who accepts
them.”
8.
In accordance with the Transfer Agreement, Alverca and Portimonense agreed on a free
transfer but with a 50% sell on clause in favour of Alverca on any future transfer (temporary
or permanent) from Portimonense to a third club.
9.
Furthermore, in accordance with clause 2 of the Transfer Agreement, it was agreed as
follows:
“the player declares that he freely accepts and agrees with the present transfer and
undertakes to continue executing his professional football activity at the services of
[Portimonense].”
10. Additionally, the object of the Transfer Agreement was defined as follows:
“The present transfer agreement of the player’s rights from the first party to the second party
Alverca SAD’s player to of Portimonense SAD is hereby celebrated, in the following terms and
conditions.”
11. Moreover, in accordance with clause 10 of the Transfer Agreement, it was stated as follows:
“The present contract expresses the integrity of the agreement between the parties, and
revokes all the previous agreements, verbal or written, express or tacit, related, even partially,
to the object of the present contract.
Any modification or annexes to the present contract must be exclusively made by written
means.”
pg. 4
REF. FPSD-9544
12. On 4 May 2022, a meeting between the representatives of Portimonense and the player’s
agent took place, in which it was explained to the latter that the player was under the
obligation to sign a new employment contract, per the transfer agreement, otherwise the
player would have to return to Alverca. The agent, on the other hand, purported that there
was no obligation to sign a new contract, that the player would become a free agent if no
agreement was signed (as opposed to returning to Alverca “from loan”), and that the terms
previously agreed to would have to be renegotiated if any contract would be signed.
13. No new employment contract was ever concluded between Portimonense and the player.
14. On 8 June 2022, the Emirati club Al Wasl (hereinafter: Respondent 2 or Al Wasl) made Alverca
an offer for the permanent transfer of the player to Al Wasl.
15. On 13 June 2022, Alverca rejected the proposal of Al Wasl.
16. On 6 July 2022, the player and Al Wasl entered into an employment contract valid as from
1 July 2022 until 30 June 2025 (hereinafter: the New Contract).
17. In accordance with the New Contract, the player is entitled to receive the following
remuneration:
-
One-time advance payment of EUR 100,000;
Monthly salary of EUR 8,333 between July 2022 and June 2023;
Monthly salary of EUR 10,000 between July 2023 and June 2025.
18. On 11 July 2022, Alverca allegedly requested the player via the messaging service WhatsApp
to return to its premises for training.
19. On 12 July 2022, Alverca officially requested the player to return to its premises in order to
resume his activity under the Contract.
20. On 14 July 2022, Al Wasl entered a transfer instruction to engage the player permanently
from Alverca.
21. On 15 July 2022, the United Arab Emirates Football Association (UAEFA) requested the
International transfer certificate (ITC) from the Portuguese Football Federation (FPF).
22. On 19 July 2022, FPF rejected the ITC request, stating that the player still has a valid contract
with Alverca.
23. On 22 July 2022, Alverca sent Al Wasl a “cease and desist letter”, informing the latter that
the player still had a valid contract with Alverca, and requesting any contractual relation
pg. 5
REF. FPSD-9544
between Al Wasl and the player to be ceased so that the latter could return to Alverca and
resume his services there.
24. On 23 July 2022, Al Wasl informed Alverca that the Contract was allegedly terminated when
the player signed the Transfer Agreement.
25. On the same day, UAEFA disputed the rejection of the ITC request, stating that the player
signed a valid and binding employment contract with Al Wasl, and requested FIFA’s
intervention.
26. On 26 July 2022, FIFA requested clarification which is the player’s former club – Alverca or
Portimonense.
27. On 27 July 2022, UAEFA submitted a statement from Al Wasl explaining that the Contract
between the player and Alverca was terminated when the Transfer Agreement was signed,
and that, following 30 June 2022, the player was a free agent.
28. On 29 July 2022, the PSC Single Judge passed a decision granting the request of UAEFA to
register the player.
pg. 6
REF. FPSD-9544
II. Proceedings before FIFA
28. A brief summary of the parties’ submissions is outlined below.
a. Position of Alverca
29. On 9 March 2023, Alverca lodged a claim against the player and Al Wasl in front of FIFA.
30. Alverca requested payment of compensation of EUR 10,000,000 for an unlawful breach
of contract by the player and inducement thereto by Al Wasl.
31. In its claim, Alverca argued that the player, after having been loaned out to
Portimonense, and having failed to sign an employment contract after the Transfer
Agreement was concluded, retained his status as a loan player by virtue of the Transfer
Agreement never being executed.
32. With this in mind, after the loan expired, Alverca asserted that the player refused to
return and instead signed the New Contract with Al Wasl, thereby de facto terminating
the Contract with Alverca without just cause.
33. Alverca corroborated the allegation that the player refused to return with a witness
statement by a Board Member of Portimonense, stating that the player had refused to
sign a new contract. The witness statement further outlined that the player was
conscious of his stronger bargaining position and attempted to either force better
financial terms than those agreed in the Transfer Agreement, or make use of his
purported status as a free agent to move elsewhere for a more lucrative contract.
34. Alverca emphasised that the invalidity of the Transfer Agreement is manifestly evident
through the signature of the Annexe, which demonstrated that Portimonense was of the
opinion that the player was still a loan player. Equally, Alverca stressed that the offer sent
on 8 June 2022 clearly demonstrated that Al Wasl was aware of the player’s active
Contract with Alverca, further substantiating the line of argument for inducement to
breach of contract.
35. Alverca also pointed out that, in accordance with the regulations of the Portuguese
Football Federation (FPF) concerning domestic transfers, in order for a player to be
registered with any club in Portugal, two documents must be submitted to FPF – the
relevant transfer agreement (or proof of termination of the previous contract), and the
employment contract with the new club. Alverca emphasised that these requirements
are cumulative in order to avoid that a player is transferred to a club, but subsequently
arrives there without a valid employment contract.
36. With this in mind, Alverca stressed that the player was never registered with the FPF as
a permanent player, as no employment contract was signed and thus the Transfer
pg. 7
REF. FPSD-9544
Agreement never ratified. Furthermore, Alverca argued that this is reflected in the
relevant player passport, which refers to the relationship between the player and
Portimonense as a “Loan”. As a result, according to Alverca, this further substantiates
that the player was not a free agent after the expiry of his term with Portimonense, but
rather under contract with the former.
37. In conclusion, Alverca requested payment of EUR 10,000,000, corresponding to the
release clause contained in clause 10 of the Contract, which should be paid jointly and
severally by the player and Al Wasl. Alverca argued that, since it missed out on such
compensation from the potentially lawful transfer of the player from Alverca to a third
club, it had a legitimate expectation to receive such amount and thus the clause is
entirely proportionate.
38. Alternatively, should the Tribunal not find that the release clause under clause 10 should
be used to calculate the compensation payable to Alverca, the latter argued that it is in
any event entitled to EUR 300,000.
39. Lastly, Alverca requested interest as from the due date of the respective amounts
awarded, and sporting sanctions on both the player and Al Wasl for breach of contract
and inducement thereto during the protected period.
b. Position of the Respondents
40. On 5 April 2023, the player and Al Wasl, (hereinafter jointly: the Respondents), submitted
their position to the claim jointly.
41. The Respondents argued that the Transfer Agreement, by changing the status of the
player from a loanee to a permanent player of Portimonense, effectively terminated the
Contract that previously existed with Alverca.
42. Contrarily to what was alleged by Alverca, the Respondents argued that the player was
under no obligation to sign another contract, and that they were merely negotiating
terms for renewal. The Respondents emphasised that the Loan Employment Contract
was the only valid employment agreement by which the player was bound, and that he
became a free agent once his term with Portimonense expired on 30 June 2022.
43. The Respondents equally remarked that Alverca allegedly never contacted the player to
return or resume his services, and only began to send correspondences when it
discovered that he had signed a new contract with Al Wasl. To this end, according to the
Respondents, Alverca should have sent the player its “sporting plans”.
44. The Respondents equally remarked that Alverca and FPF attempted to block the player’s
transfer to Al Wasl, by stating wrongfully that the player is still under contract with
Alverca. It was also pointed out by the Respondents that FIFA, on 29 July 2022,
pg. 8
REF. FPSD-9544
provisionally registered the player to Al Wasl, thereby strengthening the claim of the
latter that the player was a free agent.
45. The Respondents acknowledged that the transfer of the player from Alverca to
Portimonense should have been registered in the Transfer Matching System (TMS)
pursuant to Annexe 3 of the Regulations on the Status and Transfer of Players, but that
failure to do so should not bear any influence on the contractual and commercial reality
that the player permanently moved to Portimonense by virtue of the Transfer
Agreement.
46. The Respondents equally asserted that Alverca and Portimonense should be sanctioned
by FIFA on account of engaging in a bridge transfer, since the transfer of the player from
Alverca to Portimonense allegedly occurred less than 16 weeks after he joined Alverca.
47. The Respondents further argued, with specific reference to the alleged inducement by
Al Wasl, that, since there was no breach of contract by the player, Al Wasl cannot be held
liable for inducement for breach of contract, and thus no sporting sanctions should be
applied.
48. Furthermore, the Respondents pointed out that Al Wasl was allegedly never informed
about the player’s employment situation, and thus the offer to sign him was misinformed
and incorrect.
49. Lastly, the Respondents argued that the claim for compensation is excessive, based on
the fact that the Transfer Agreement merely envisioned a sell-on clause in case of the
player’s transfer from Portimonense to a third club, no principal transfer fee, and the
residual value of the Contract with Alverca amounted to merely EUR 10,944.40 gross.
Thus, any compensation which may be deemed payable by the Respondents should be
calculated in accordance with art. 17 of the Regulations on the Status and Transfer of
Players.
c. Replica of Alverca
50. In its replica, submitted on 12 May 2023, Alverca argued that the Respondents are
misrepresenting the facts and that the reality of the player still being under contract with
Alverca remains unchanged.
51. It was particularly highlighted that the Loan Employment Contract was purely intended
to govern the relationship between the player and Portimonense during the term of the
Loan Agreement concluded on 5 July 2021, and that no corresponding employment
contract was signed following the signature of the Transfer Agreement, meaning that the
transfer never materialised. Alverca stressed that each of these contractual instruments
is autonomous.
pg. 9
REF. FPSD-9544
52. Alverca equally emphasised that the Contract with itself was never formally terminated
or revoked by the player, and that the Transfer Agreement contained no clause by virtue
of which the Contract would be terminated once the transfer became effective.
53. Alverca also vehemently denied not having contacted the player, and provided several
formal and informal correspondences (including a formal notice sent on 12 July 2022)
sent from itself requesting him to attend training and resume his services.
54. Alverca also reiterated the line of argument pertaining to the player’s registration with
FPF, and argued that the Respondents failed to meaningfully rebut said point.
55. Moreover, Alverca reiterated its line of argument as to the offer dated 8 June 2022 made
by Al Wasl, and contested that they were not aware of his employment situation, as the
player’s agent was included in the chain of correspondence surrounding the offer, with
reference to the witness statement submitted by the Board Member of Portimonense.
56. Alverca pointed out equally that the Respondents’ reference to Annexe 3 is erroneous,
since the purported transfer of the player from Alverca to Portimonense is domestic and
thus not within the scope of said provision.
57. Furthermore, Alverca dismissed the argument as to a bridge transfer and argued that
the Respondents provided no explanation thereto and merely quoted the relevant
provisions verbatim.
58. Lastly, Alverca reiterated its comments as to the compensation payable, emphasising
that clause 10 of the Contract is not a liquidated damages clause, but rather a buyout/release clause, thereby not falling within the scope of FIFA’s jurisprudence.
d. Duplica of the Respondents
59. In their joint duplica submitted on 13 June 2023, the Respondents reiterated all of their
previous comments.
pg. 10
REF. FPSD-9544
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
59. 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 9 March 2023 and submitted
for decision on 24 August 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.
60. 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. a) of the
Regulations on the Status and Transfer of Players October 2022 edition), the DRC is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Guinea-Bissauan player, a Portuguese
club and an Emirati club.
61. 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 (May 2023 edition), and
considering that the present claim was lodged on 9 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
62. 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 TMS.
c. Merits of the dispute
63. 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.
pg. 11
REF. FPSD-9544
i. Main legal discussion and considerations
64. The foregoing having been established, the Chamber moved on to the substance of the
matter, and took note of the fact that the parties strongly dispute the circumstances of the
contractual termination between the player and Alverca.
65. In this context, the Chamber identified the following key points in order to determine
whether or not any liability may arise for either the player or Al Wasl in the case at hand:
-
Was the Contract with Alverca terminated by virtue of the Transfer Agreement?
If not, when was the Contract terminated, and did such termination occur without just
cause?
What are the consequences of such potentially unlawful termination?
66. Having set out the above, the Chamber revisited the parties’ arguments. In this respect, it
noted that, according to Alverca, the player terminated the Contract without just cause,
since he signed the New Contract during the same period with Al Wasl, after the expiry of
his loan with Portimonense.
67. Alverca emphasised that the Contract was neither terminated nor revoked, and that the
Transfer Agreement was never given effect to, since the player and Portimonense failed to
sign an employment contract beyond the Loan Employment Contract.
68. Based on the above, and in light of clause 10 of the Contract, Alverca argued that it is
entitled to EUR 10,000,000 as compensation from the player and Al Wasl.
69. On the other hand, the Chamber recalled that the Respondents vehemently reject this line
of argument. Rather, they asserted that the Contract was de facto terminated when the
Transfer Agreement was signed, and that the player was a free agent when he signed the
New Contract with Al Wasl.
70. The Respondents further emphasised that Alverca never demonstrated any intent to
reintegrate the player and that they never believed that the player would return to render
services after the term with Portimonense expired.
71. Lastly, the Respondents briefly argued that the player was under no further obligation to
sign a new contract with Portimonense, and that the negotiations with the latter were for
a renewal of the Loan Employment Contract under different terms.
pg. 12
REF. FPSD-9544
➢
Was the Contract with Alverca terminated by virtue of the Transfer Agreement?
72. With the above in mind, the Chamber proceeded to firstly consider the effects of the
Transfer Agreement, with particular reference to the Contract between Alverca and the
player.
73. In this respect, some key aspects were recalled by the Chamber. On one hand, the Loan
Employment Contract, based on which the player was temporarily transferred to
Portimonense, stated that the latter is entitled to permanently acquire the services of the
player, and in case such option is exercised, an employment contract shall be concluded
for a period of five seasons, with definitive financial terms.
74. To start with, the Chamber referred to Article 10(1)(c) of the Regulations which provides
that, during the agreed duration of the loan, the contractual obligations between the
professional and the former club shall, as a general rule, remain suspended. This means
that, once the loan spell comes to an end, the contract between the player and his parent
club regains its full effects. The Commentary to the RSTP explains this as follows:
“In the event of a loan being agreed, the player’s parent club will, with the player’s consent,
allow the player to be registered with, and play for, a different club for a predetermined
period. The player will be obliged to return to their parent club following the expiry of the
agreed loan period. This obligation is based on the employment contract concluded between
the parent club and the professional player, the effects of which are suspended for the
duration of the loan, but will become effective again at the end of the loan period.”
75. Keeping this in mind, the Chamber took note of the fact that the player and Portimonense
never reached an agreement as to signing a new contract, or rather, to formalise the terms
set out in the Loan Employment Contract.
76. Indeed, from the evidence on file, especially the witness statement of the Board Member
of Portimonense and the fact that the player did not dispute it, it appeared that the player
refused to sign a new contract, despite the terms of the Loan Employment Contract and
Transfer Agreement jointly stipulating that this was required upon the permanent transfer
of the player. What is more, from the witness statement it also followed that Portimonense
and Alverca were in agreement over the fact that the Transfer Agreement was null and void
as a consequence of the failure of the player to agree to new contractual terms beyond the
loan.
77. Also, the Chamber attached value to the fact that Al Wasl sent an offer to Alverca on
8 June 2022, and subsequently argued that it did not have “all the information” about the
player’s contractual situation.
pg. 13
REF. FPSD-9544
78. Furthermore, it was considered of significance by the Chamber that the player was never
formally registered as a permanent player of Portimonense, and that his player passport
reflected that he had retained his status as a loan player, even after the signature of the
Transfer Agreement.
79. Moreover, the Chamber wished to point to the wording of the Transfer Agreement. In this
respect, although it was acknowledged that the Transfer Agreement contained a provision
under clause 10 that it would “revoke all previous agreements, verbal or written, express or
tacit, related even partially, to the object of the present contract”, the Chamber wished to
specify that the object of the Transfer Agreement was defined as the transfer of the player’s
rights from Alverca to Portimonense.
80. In other words, the Chamber held that the fundamental object of a transfer agreement is
to allow that the player renders his services to the new club, which can only happen once
an employment contract between the player and the new club is concluded. Put differently,
without such new employment contract, the fundamental object of a transfer agreement
cannot be fulfilled. This in turn could lead to situations where players could find themselves
in “limbo” if, for instance, the new club would refuse to sign the new employment contract
while at the same time holding that the player’s contract with the former club was definitely
terminated only by means of a transfer agreement. This is not the case here, given that it
was the player who refused to sign a new contract even though a transfer agreement had
been signed by all parties.
81. Lastly, the Chamber wished to emphasise that the Annexe to the Transfer Agreement as
was submitted by the Claimant and allegedly signed on 9 May 2022 could not be taken into
account for the sake of the present proceedings, as it had only been submitted in its
original language of Portuguese, and not translated into a procedural language, pursuant
to art. 13 par. 3 of the Procedural Rules.
82. All of the above taken into account, the Chamber was of the unanimous opinion that the
Contract between Alverca and the player had not been terminated by virtue of signing the
Transfer Agreement and that thus the player was obliged to return to Alverca once the loan
spell with Portimonense ended. Not only had the player and Portimonense failed to
conclude a new employment contract – which was a condition precedent – but it was
evident from the failure of Portimonense to register the player as “permanent” that the
Transfer Agreement itself never materialised.
83. Given that the Transfer Agreement had, thus, not been executed, and the loan never made
permanent, the Chamber established that the player had still been under contract with
Alverca upon expiry of the loan with Portimonense.
pg. 14
REF. FPSD-9544
➢ When was the Contract between the player and Alverca terminated?
84. With such important clarification having been made, the Chamber moved on to consider
the consequences of the player signing with Al Wasl.
85. It was, in this respect, recalled that the player was bound to Alverca by virtue of the Contract
until 30 June 2023. Equally, the Chamber noted that Alverca had sent a formal notice to the
player to return to training on 12 July 2022, and that the former consistently displayed
belief that the Contract was still in force following the expiry of the loan period with
Portimonense on 30 June 2022.
86. Despite the abovementioned circumstances in place, the Chamber recalled that the player
signed the New Contract with Al Wasl on 6 July 2022.
87. Recalling its longstanding jurisprudence, as well as the wording of art. 18 par. 5 of the
Regulations, the Chamber pointed out that a player is prohibited from signing two
employment contracts with different clubs during the same period.
88. The Chamber was thus able to establish that, by signing the New Contract with Al Wasl, the
player had irreversibly departed from the Contract on 6 June 2022, de facto unilaterally and
prematurely terminating the employment relationship on said date.
➢ Did such contractual termination occur with or without just cause?
89. With this in mind, the Chamber moved on to consider the lawfulness of such contractual
termination revisiting the wording of art. 14 of the Regulations, in accordance with which a
premature termination of an employment contract may only result where a substantial or
consistent breach of contract occurs. Where other measures are available to remedy the
parties’ disagreements, these should be readily used prior to departing from the contract.
Indeed, such premature termination may only ever constitute an ultima ratio measure.
90. In the present case, there was no evidence that Alverca had, in any way, breached the
contract to the extent of permitting the player to depart therefrom, falling far short of the
required threshold of ultima ratio.
91. Consequently, the Chamber concluded that the player, by signing the New Contract with Al
Wasl, terminated the Contract with Alverca without just cause, and proceeded to consider
the consequences of such unlawful behaviour by the player.
ii. Consequences
92. 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
pg. 15
REF. FPSD-9544
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, the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and depending on whether the contractual
breach falls within the protected period.
93. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract between Alverca and the player contained
a provision by means of which they had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of contract.
94. In this regard, the Chamber recalled that clause 10 of the Contract reads as follows:
“Under the terms and for the purposes of Article 125 of the General Regulations of the
Portuguese Professional Football League, as well as Article 46 of the Collective Bargaining
Agreement concluded between the Union of Professional Football Players and the Portuguese
Professional Football League, which approves the legal regime of the employment contract of
sportsmen, the parties agree, expressly and irrevocably, that the inscription and registration
of the Federative Rights of the Player in favor of a club, association or third company depends,
in the case of a club, association or third company, on the payment of the amount of
€10.000.000,00 (ten million Euros), made by way of termination clause, value that the Parties
determine it corresponds to the valuation of the rights of sports participation of the Player,
not being able to FC Alverca, upon effective payment of the termination clause, plus VAT at
the legal rate if applicable, oppose to the transfer of the Player, endeavoring to celebrate all
documents and fulfill all necessary actions to the immediate registration of the Player in favor
of a third party.”
95. After analysing the content of the aforementioned clause, the Chamber concluded that it
could not be taken into consideration for the sake of the present proceedings. In particular,
the Chamber opined that the provision constituted a buy-out clause, as opposed to a
liquidated damages clause which, in accordance with not only its own longstanding
jurisprudence, but also the jurisprudence of the Court of Arbitration for Sport (CAS),
amounts to an entirely different concept. Whereas a buy-out clause relates to the amount
payable to the releasing club whenever there is a mutual departure from the respective
contract, liquidated damages rather act as punitive instruments where a unilateral
termination of a contract without just cause has taken place.
96. As the latter was the case in the present matter, the buy-out clause was deemed
inapplicable, leading the Chamber to proceed with the calculation in accordance with the
parameters set out in art. 17 par. 1 of the Regulations. The members of the Chamber
hereby wished to emphasise that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable to the damaged club.
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REF. FPSD-9544
97. Bearing in mind the foregoing as well as the claim of Alverca, the Chamber proceeded with
the calculation of the monies payable by the player under the terms of the Contract from
the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 10,944.40 (i.e. the residual value of the Contract
between the player and Alverca) serves as the basis for the determination of the amount
of compensation for breach of contract.
98. In continuation, the Chamber verified whether the player had signed an employment
contract with another club during the relevant period of time. According to the constant
practice of the Chamber as well as art. 17 par. 1 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 due by a player to his former club. In
particular, the Chamber explained that its standard practice is to calculate the average
between the player’s remuneration with his former club and his remuneration with the
new club. In case substantial evidence thereof is provided, the Chamber might additionally
grant the damaged club the non-amortised transfer fee paid for the player in breach.
99. Indeed as set out above, the player found employment with Al Wasl, with whom he was
still employed at the time of the present proceedings. In accordance with the New Contract,
the player was entitled to a total remuneration of EUR 449,996, i.e., a one-time payment of
EUR 100,000, twelve instalments of EUR 8,333 each between July 2022 and June 2023, and
25 instalments of EUR 10,000 between July 2023 and June 2025.
100. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the player must pay the amount
of EUR 230,470.20 to Alverca (i.e. the average between EUR 10,944.40 and EUR 449,996),
which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
101. Moreover, taking into consideration Alverca’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 7 July 2022 until the date of effective payment.
102. Therefore, the Chamber decided that, in accordance with art. 17 par. 2 of the Regulations,
Al Wasl shall be jointly and severally liable for the payment of the aforementioned amount
of compensation.
iii. Compliance with monetary decisions
103. 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
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REF. FPSD-9544
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
104. 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.
105. Furthermore, the Chamber outlined 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. The overall maximum duration of the
restriction shall be of up to six months.
106. Therefore, bearing in mind the above, the DRC decided that the Respondents must, jointly
and severally, pay the full amount due (including all applicable interest) to Alverca within
45 days of notification of the decision, failing which, at the request of the latter, the
abovementioned sanctions would come into force.
107. The Respondents shall make full payment (including all applicable interest) to the bank
account provided by Alverca in the Bank Account Registration Form submitted at the
beginning of the proceedings.
108. The DRC recalled that, if applicable, the imposed sanction(s) will be lifted immediately and
prior to their complete serving upon payment of the due amounts, in accordance with
art. 24 par. 8 of the Regulations.
d. Costs
109. 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.
110. 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.
111. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-9544
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, FC Alverca, is partially accepted.
2.
Respondent 1, Sana Dafa Gomes, must pay to the Claimant EUR 230,470.20 as
compensation for breach of contract without just cause plus interest of 5% p.a. as from
7 July 2022 until the date of effective payment.
3.
Respondent 2, Al Wasl, 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:
1. Respondent 1 shall be imposed with a restriction on playing in official matches up
until the due amounts are paid. The overall maximum duration of the restriction shall
be of up to six months on playing in official matches.
2. Respondent 2 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.
3. 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 abovementioned timeframes.
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
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REF. FPSD-9544
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
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