Dispute Resolution Chamber
Texto da decisão
REF FPSD-1237
Decision of the
Dispute Resolution Chamber
passed on 15 July 2021
regarding an employment-related dispute concerning the player Bismark de Araujo
Ferreira
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stéphane Burchkalter (France), member
MD Abu Nayeem Shohag (Bangladesh), member
CLAIMANT / COUNTER-RESPONDENT:
Al Qadsiah, Saudi Arabia
Represented by R&A Sports Law Firm
RESPONDENT / COUNTER-CLAIMANT:
Bismark de Araujo Ferreira, Brazil
Represented by Messrs Diogo Souza, Igor Ferreira and Felipe de Macedo
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I.
FACTS OF THE CASE
1.
On 23 May 2017, the Brazilian club, SC Santa Rita, and the Saudi club, Al Qadsiah
(hereinafter: the club or the Claimant / Counter-Respondent) agreed on the permanent
transfer of the Brazilian player, Bismark de Araujo Ferreira (hereinafter: the player or the
Respondent / Counter-Claimant) against payment of the sum of USD 900,000.
2.
On 14 July 2018, the player and the club signed an employment agreement valid as from
15 July 2018 until 17 July 2023 (hereinafter: the contract).
3.
In accordance with clause 4 of the contract, “the total value of the contract” amounted to
USD 4,250,000, broken down as follows:
a. A monthly salary of USD 50,000, payable at the end of each calendar month;
b. Accommodation;
c. A 4x4 car;
d. 3 business class air tickets for the player and his family for each season (route Sao
Paulo, BRA to Dammam, KSA);
e. “Any other benefits: worth [the player] filling the contract during the contract period
and the amount of power” of USD 1,250,000, payable as follows:
i. USD 250,000 on 30 August 2018;
ii. USD 250,000 on 30 August 2019;
iii. USD 250,000 on 30 August 2020;
iv. USD 250,000 on 30 August 2021; and
v. USD 250,000 on 30 August 2022.
f. Bonuses, provided the following conditions were met: “1) the Player is registered with
the Club on a definitive basis and with the express exclusion of any period spent by the
Player on loan to a third club. Such periods shall thus not be taken into account for the
purpose of the calculation of the bonuses; 2) the Player has been inserted in the official
report of the games in at least 50% of the official matches played by the Club in the
relevant sporting season. The bonuses shall be paid proportionally according to the
percentage of matches in which the Player has been called and inserted in the official
report of the games (50% of matches = 1% of Bonuses; 100% of matches = 100% of
Bonuses).”
g.
Four weeks paid vacation per year.
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REF FPSD-1237
4.
According to the information available in the Transfer Matching System (TMS), on 12 July
2019, the player, the club and the Emirati club, Khorfakkan SCC, signed a loan agreement,
according to which the services of the player were loaned from the club to the latter as
from 15 July 2019 until 14 July 2020 (hereinafter: the first loan agreement). The club
received a loan transfer fee of USD 200,000 for such transfer.
5.
On 3 January 2020, the first loan agreement was terminated by mutual agreement.
6.
On 4 January 2020, the player, the club and the Kuwaiti club, Al Kuwait Club (hereinafter:
Al Kuwait), signed a loan agreement, according to which the services of the player were
loaned from the club to the latter as from the same date until 31 July 2020 (hereinafter:
the second loan agreement). Subsequently, the player signed an employment agreement
with Al Kuwait.
7.
On 16 February 2020, the player and Al Kuwait terminated their employment relationship
by mutual consent.
8.
On 23 July 2020, the club sent a letter to the player informing that he should avail himself
at the club to prepare for the season 2020/2021 by 1 August 2020. To this end, the club
informed that it had made the necessary visa arrangements and additionally provided the
player with a flight ticket, as follows: Recife (Brazil) - Sao Paulo (Brazil) – Dubai (UAE) –
Bahrain (Bahrein), departing on 3 August 2020 and arriving on 5 August 2020.
9.
On 26 July 2020, the player wrote to the club and stated as follows: “I’d like to inform that
is not possible to travel back to Saudi. I need to stay for one more month in Brazil to solve
a family problem. Thanks for all support!!!”.
10.
On 27 July 2020, the club wrote to the player accepting his request, and stating as follows:
“We acknowledge receipt of your email and we take note that you request to extend your
holiday for one month.
The club will operate in good faith, and thus you will be able to extend your return in the
Kingdom of Saudi Arabia to 1.9.2020.
According to your request, we will send you in due course the future date of your return.
For the sake of clarity, you will not be entitled to any salary during your absence according
to the principle of non-working without salary stipulated in CAS jurisprudence”
11.
On 24 August 2020, the club sent a letter to the player informing that he should avail
himself at the club to prepare for the season 2020/2021 by 7 September 2020. To this end,
the club informed that it had made the necessary visa arrangements and additionally
provided the player with a flight ticket, as follows: Recife (Brazil) – Rio de Janeiro (Brazil) –
Dubai (UAE) – Bahrain (Bahrein), departing on 4 September 2020 and arriving on 6
September 2020.
12.
On 3 September 2020, the club sent a reminder to the player.
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REF FPSD-1237
13.
On 4 September 2020, the player wrote to the club and stated as follows: “I’d like to say
thanks for all support that Qadisiyah is giving for me, I just need ask one more time patience
about my travel back to Khobar because I need fix something about my personal life. Please
fix my ticket for begin of October”.
14.
By letter dated 4 September 2020, the club informed the player that his flight was scheduled
to 4 September 2020 and that a breach in his obligation to avail himself at the club by 7
September 2020 would incur in disciplinary proceedings against him.
15.
On 17 September 2020, the club wrote to the player taking note of his absence between 7
September and 17 September 2020, and granting him until 20 September 2020 to clarify
his absence.
16.
On 4 October 2020 (Brazilian time) / 5 October 2020 (Saudi time), the player wrote to the
club and stated as follows:
“I write further to your email ref: Absence from Daily training for Al Qadsiah team.
As you aware I experienced family problems in Brazil and requested to Mr Mussad (former
chairman of Al Qadsiah Club) a period of (unpaid) extension of my holidays. This request
was attended and granted by the club.
I write to request to you to re-schedule my travel ticket for the next available flight, as the
ticket can only be exchanged through the travel agent who purchased and not directly at
the airlines.
I am ready and wish to return to work for Al Qadsiah Club immediately, in order to comply
with my contract obligations.
I also want to thank you for respect my personal problem and granted my additional period
in Brazil. I trust the club will not take any disciplinary measures due to the nature of my
circumstance.
Please let me know as soon as possible the date of my travel. Kindly also confirm if my visa
still valid”.
17.
Later on 5 October 2020, the club terminated the contract in writing, and inter alia stated
as follows:
“On 04.09.2020, before little hours for flight time, Al Qadsiah received your message you
thanking the club for the support provided to you and requesting to amendment the flight
ticket to October 2020.
Al Qadsiah club Answer you by Refuse and requiring you to attend by flight ticket was sent
to you to go in training with the team.
Indeed, despite all procedures to facilitate your entry into the Saudi Arabia and Preparations
to you, but you did not comply to time attend to joining the team's training to preparation
for the new sports season.
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REF FPSD-1237
On 17.09.2020, Qadsiah Club sent you a letter to Asking about your absence for the
previous period, and they give you sufficient time to clarify Your attitude, and we did not
have any answer from you.
Given the absence of any communication from you, the club informed your agent by phone
call of your prejudicial disinterest in the club and of the club's decision to notify you of the
unilateral termination of your contract for just cause and to submit a request to the FIFA
DRC to claim compensation and sportive sanctions.
Your email dated today has no impact on the current situation for which you assume full
responsibility since your unjustified absence has lasted for 35 days.
it is therefore established that:
you have been absent for no valid reason since 01/09/2020.
you gave no positive reaction to the multiple sum mons.
you have neglected your contractual obligations as a professional player and you have
prejudiced the club since the championship will start in 17/10/ 2020 days and the
registration period will close in 25/10/2020.
All of the foregoing constitutes just cause for termination of the contract on the basis of
Article 14 FIFA RSTP and entitles the club to file a request to claim compensation equal to
the rest of the value of your contract and to claim damages, disciplinary sanctions against
you on the basis of article 17 RSTP”.
18.
The player was unemployed by the time this decision was passed.
II.
PROCEEDINGS BEFORE FIFA
19.
On 9 December 2020, the club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the club
20.
According to the club, it had just cause to terminate the contract on account of the player’s
“refusal to resume his activities during 35 days”.
21.
The club was of the position that the player “By refusing to take the flight of 4 September
and being absent from that date in all training session without giving any clarification
further to the letter sent by the club on 22 September 2020, the player has showed an
aberrant lake of interest towards the club”.
22.
The club furthermore argued that the player “unilaterally and prematurely terminated the
employment contract with the club without just cause when he refused to honor his
contract by being absent during a long time without any acceptable reasons”.
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REF FPSD-1237
23.
The club requested compensation for breach of contract broken down as follows:
a. USD 3,050,000 as residual value of the contract (monthly salary of USD 50,000 plus
bonus of USD 1,250,000;
b. USD 54,000 as 2/5 of the unamortized transfer fee of USD 900,000;
c. “Loss of a chance” of a transfer fee of USD 1,211,000.
24.
The club further requested the imposition of sporting sanctions on the player and
application of interest of 5% p.a. as from the date of termination, i.e. “the final departure
of the player from the club without any reason (i.e. 01 September 2020)”.
b.
The response and counterclaim of the player
25.
On 19 April 2021, the player rejected the club’s claim and filed a counterclaim against it.
26.
The player explained that the flight tickets issued by the club regarding his return in
September were false. To this end, he noted that because of the COVID-19 pandemic, no
flights to Dubai were departing from Rio de Janeiro. He filed excerpts from the Brazilian
National Aviation Agency in support of this allegation. The player highlighted that he
requested on 4 September 2020 that the club “fixed” his ticket to October in light of his
family situation. The player went on to affirm that “Only on 17 September 2020, 13
(thirteen) days after their last exchange of email, the Club sent a Notification Letter to the
Player requesting him to clarify his absence from the training session since 04 September
2020 It is amazing this notification of the Club considering that Al Qadisiah sent a fake
flight ticket to the Player, so how could the Claimant in good faith demand explanation
from the Player for his absence in these trainings? This notification and affirmation of the
Club only shows its disloyalty towards the Player”.
27.
In continuation, the player argued that the club did not have just cause to terminate the
contract; nor that he terminated the contract without just cause. In this respect, the player
argued that the club had overdue payables towards him by the time of termination
amounting to USD 350,000, consisting of the missed payment of USD 250,000 due by 30
August 2020, as well as his salaries of August and September 2020.
28.
In this context, the player highlighted that the club agreed to his absence in August 2020
and that there was no reason for the club to withhold payment. The player argued as
follows “the Club must be ordered by the honorable FIFA DRC to make the payment of the
overdue amount of USD 350.000 (three hundred fifty thousand dollars), to the Player that
was outstanding at the moment the Club unilaterally and illegally terminated the Contract
on 05 October”
29.
The player additionally submitted that “by the Club taking 13 (thirteen) days to send other
notification to the Player in September 2020 after the previous one (the Club sent a letter
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REF FPSD-1237
on 17/09/21, and the previous was on 04/09/21), and as in this letter the Claimant did not
provide to the Player other flight ticket for September 2020, neither requested his return in
September 2020, it is clear that the Club was not really interested to have the Player back
in September. In this context, we note that the Club indeed allowed the Player to be absent
from the team trainings in September too, or at least tacitly permitted it”.
30.
The player also adduced that “just cause” constitutes an exceptional and inevitable
measure, which was not the case as the club terminated the contract 11 hours after the
player informed it on 4 October 2020 that he was ready to resume his activities with the
club. The player underlined that the club had never sanctioned him for the alleged “breach
of the contract”, and that the termination was not made as “ultima ratio”.
31.
Accordingly, the player requested that the club is ordered to pay compensation for breach
of contract, equivalent to the residual value of the contract of USD 2,220,000, broken down
as follows:
“- USD 500.000 (five hundred thousand dollars), for the 2020/2021 season, i.e.,10 monthly
salaries from October 2020 until July 2021, being USD 50.000 (fifty thousand dollars) per
month;
- USD 850.000(eight hundred fifty thousand dollars), for the 2021/2022 season, i.e.,the
fourth yearly installment in the amount of USD 250.000 (two hundred fifty thousand
dollars) that would be due on 30 August 2021, plus 600.000 (sixty thousand dollars) as 12
monthly salaries from August 2021 until July 2022, being USD 50.000 (fifty thousand
dollars) per month;
-USD 850.000 (eight hundred fifty thousand dollars), for the 2022/2023 season, i.e.,the
fifth yearly installment in the amount of USD 250.000 (two hundred fifty thousand dollars)
that would be due on 30 August 20222, plus 600.000 (sixty thousand dollars) as 12
monthly salaries from August 2022 until July 2023, being USD 50.000 (fifty thousand
dollars) per month.”
32.
The player also challenged the amount sought as compensation by the club, stressing that,
by terminating the contract, the club saved USD 2,200,000. The player also pointed out
that “considering the amount of USD 800.000 already amortized by the Club in the transfer
fee paid by the Player in the amount of USD 900.000, plus the percentage of 20% (900.000
x 20% = 180.000)that must be decreased on it, we realized that the Club has really nothing
to receive from the Player as compensation for the “allege” breach of contract. Indeed,
considering the amount of USD 900.000 of the transfer fee with the amortized amount of
USD 980.000, we discover that the Club had a profit of USD 80.000 with the Player. Thus,
we demonstrated another reason why the Player cannot be ordered to pay any
compensation amount to the Club”.
33.
The player further asked that sporting sanctions are imposed on the club, and none be
imposed on him.
34.
The requests for relief of the player were as follows:
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REF FPSD-1237
“A) Accept this response against the claim issued by the Claimant;
B) Dismiss all claims of Club in the merits for the reasons exposed in this Answer &
Counterclaim;
C) In such case, admit the present Counterclaim and order that the Club pays the Player an
amount of USD 350.000 (three hundred fifty thousand dollars) as overdue payables, plus
an amount of USD 2,200,000 (two million, two hundred thousand dollars) as
compensation for breach of contract;
D) As an alternative, consider that the Player has nothing to pay to the Club for the
“alleged” breach of contract requested by the Claimant, and eventually, if the Player has
to pay any amount to the Club, that this amount must be reduced by the FIFA DRC in
accordance with our considerations;
E) Order the payment of legal interest at a rate of 5% p.a. to the values due by the Club
to the Player, starting to count on the date when each of them became due until effective
payment;
F) impose sporting sanctions on the Club banning it from registering any new players for
two entire consecutive registration periods;
G) reject the request of the Club that the Player is restricted on playing in official matches;
H) order the Club to pay any legal expenses or costs faced by the Player in an amount
prudently estimated in the excess of USD 50,000.00 (fifty thousand dollars);
I) order the Club to bear any and all administrative and procedural costs, which have already
been incurred or may eventually be incurred in connection with these or future
proceedings”.
c.
The reply to the counterclaim by the club
35.
In its reply to the counterclaim, the club denied that it had issued fake plane tickets to the
player. It argued that the flight tickets were legitimate and that the player had never raised
this issue in his previous communications. Additionally, the club adduced as follows: “it
should be remembered that during the flight period the airlines companies operated by
repatriation flights which are not regular flights and therefore do not have the same place
of departure as regular flights. Additionally, the club bought and paid the first fly ticket
35,458.00 SAR (see invoice attached exhibit E-Q-16) and further to the postponement of
the player’s return the club paid a penalty equal to 923.00 SAR to change the flight ticket
to the new date (4 September) (see invoice attached exhibit E-Q-17) and spent all the
amount since the player missed the flight”.
36.
The club also argued that the modus operandi for the flight tickets was identical in previous
years. Moreover, the club mentioned that the player was a repeat offender, having being
sanctioned before for failing to perform his duties in 2018.
37.
The club then rejected the position of the player that he had salaries overdue as his absence
was unpaid in accordance with his email of 4 October 2020.
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REF FPSD-1237
38.
Lastly, the club reiterated its position that the player’s failure to join the team amounts to
just cause as per the FIFA jurisprudence. The club highlighted that the player only informed
that he was ready to re-join the club after the club warned his agent that they would
terminate the contract.
d.
Final comments by the player
39.
The player reiterated his position as to the just cause and highlighted that no matches were
played while he was absent.
40.
More in particular, the player insisted that the flight tickets were fake and outlined that the
invoices provided by the club read “travel order pending”, which denote that the tickets
were not, or could not, be properly issued – unlike in 2018 when the flick tickets were
correctly ordered by the club. The player also filed an interview from an airline company
(Emirates) confirming that it was not operation out of Rio de Janeiro during the pandemic.
41.
Finally, the player objected to the club’s position that he was a repeat offender since the
facts have no connection to the unilateral termination of the contract.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
42.
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 09 December 2020 and
submitted for decision on 15 July 2021. Taking into account the wording of art. 21 of the
January 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 at hand.
43.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) of the
Regulations on the Status and Transfer of Players (edition February 2021), 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 Saudi club.
44.
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 Player (edition February 2021), and
considering that the present claim was lodged on 09 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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REF FPSD-1237
b.
Burden of proof
45.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
46.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
47.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
48.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the club had just cause
to terminate the contract.
49.
In this context, the Chamber acknowledged that its task was to determine if the player’s
prolonged absence consisted just cause for the club to terminate the contract, and the
consequences that followed.
50.
In doing so, the Chamber clarified that the club argued that the player breached the
contract without just cause hence giving rise to the termination; however, the only party
that effectively terminated the contract was the club by its letter dated 5 October 2020. As
such, the DRC determined that the issue at stake is whether the club terminated the
contract with or without just cause, and any other line of reasoning was set aside.
51.
In the present case, the club claims to have issued the flight tickets to the player and warned
him on 4 September 2020 that he should fly back to Saudi Arabia and resume his activities
with the team by 7 September 2020. At the same time, the player claims that the flight
tickets are fake.
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52.
In view of this dissent between the parties, the DRC was observant of the fact that the
player never challenged the veracity/validity of the flight tickets until the claim was filed by
the club. What is more, the Chamber noted that in his correspondences of September and
October 2020, the player never raised the issue of his inability to board the flights provided
by the club on account of the fact that these did not exist, but only referred to the matter
of his family/personal issues not to travel (or, more accurately, to ask for a deferred arrival).
53.
Therefore, the members of the DRC deemed that whether the flight tickets were fake or
not has no bearing on the outcome of the case since this very reason was never invoked by
the player to justify his absence from the club.
54.
In continuation, in light of the player’s absence in September 2020, the DRC recalled that
on 17 September 2020 the club started disciplinary proceedings against him – to which
they received no reply within the granted period.
55.
Subsequently to that, the DRC also noted that the club terminated the contract on 5
October 2020, shortly after the player informed them that he was ready to resume his duties
(and in line with his e-mail of 4 September 2020 requesting the club to re-schedule the
plane tickets to October).
56.
To this extent, the Chamber highlighted that only a breach or misconduct which is of a
certain severity justifies the termination of a contract. In other words, only when there are
objective criteria, which do not reasonably permit to expect a continuation of the
employment relationship between the parties, a contract may be terminated prematurely.
Hence, if there are more lenient measures which can be taken in order for an employer to
ensure the employee’s fulfilment of his contractual duties, such measures must be taken
before terminating an employment contract. A premature termination of an employment
contract can only ever be an ultima ratio measure.
57.
Bearing in mind the foregoing, the Chamber was comfortable to establish that the club
took several steps in order to ensure that the player complied with his contractual
obligations, to no avail. At the same time, the Chamber found that the reasons brought
forward by the player could not reasonably justify his absence, in spite of the repeated
requests from the club.
58.
The Chamber was furthermore comforted in its consideration on the basis that it seemed
that the player had had sufficient time following the (early) termination of the second loan
agreement in February to solve his personal issues. The DRC also pointed out that no
explanation was given by the player of what these issues consisted – neither to the club nor
in these proceedings.
59.
All the above led the Chamber to conclude that the club could not reasonably expect the
player to resume his duties nor that the employment relationship of the parties would
continue. The DRC found thus that the club had just cause to terminate the contract. The
player accordingly must bear the consequences that follow.
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ii. Consequences
60.
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
player.
61.
In doing so, the DRC first of all established that the player was employed by the club until
5 October 2020, i.e. up until the contract was terminated. This means, in principle, that the
player (in line with this petition) would be entitled to his pro-rata salary for the
corresponding period following the (original) expiry of the second loan agreement, as no
evidence on file suggests that the club concurred to the early termination of said loan. The
DRC clarified in this respect that the contract was suspended during the term of the second
loan agreement (and also the first loan agreement for that matter); and that such
suspension was lifted as of 1 August 2020.
62.
However, the DRC was mindful of the player’s admission that his absence requests were
made on the basis of an unpaid leave as per his correspondence of 4 October 2020. This
fact, combined with the already established unlawful absence of the player in the month of
September 2020, led the Chamber to conclude that no salary is owed to the player for the
months of August and September 2020. The Chamber consequently rejected the player’s
counterclaim in this respect.
63.
Notwithstanding the above, the Chamber addressed the issue of the unpaid USD 250,000
annual fee which fell due on 31 August 2020, which the club does not dispute having failed
to pay.
64.
The Chamber then turned to the contract and observed that it was established therein that
its total value was USD 4,250,000, comprising of the several concepts payable to the player,
including his salary of USD 50,000 and “any other benefits”. To this end, the Chamber was
eager to clarify that the wording of the contract is poor to elucidate why, or under what
concept, the USD 250,000 annual fee was payable. The Chamber did not fail to notice that
the relevant clause reads “Any other benefits: worth [the player] filling the contract during
the contract period and the amount of power”.
65.
The DRC determined that it was hence necessary to interpret the cited contractual clause,
especially in light of the dissent of the parties: the player argues that these amounts
corresponded to a part of his remuneration, and the club states that these amounts were
bonuses, the condition of which was not met, entailing that no amounts were due. In
carrying out such task, the DRC highlighted that in line with FIFA and CAS jurisprudence
the interpretation must give respect to the behaviour of the parties, their respective interest
in the contract and its goal can also be taken into account as complementary means of
interpretation. The DRC also pointed out that it is of the responsibility of the author of the
contract to choose its formulation with adequate precision bearing in mind the principle in
dubio contra stipulatorem.
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REF FPSD-1237
66.
The DRC analysed the clause at stake and confirmed that the amounts established therein
cannot be deemed bonuses as argued by the club, as the clause in which the latter relied
on in support of this line of reasoning was in fact not the one at stake, but the one which
follows such provision. In other words, the argumentation raised by the club gave respect
to the clause which reads “the following bonuses” under the contract, and not to “any
other benefits”.
67.
This also was a strong indication to the Chamber that the yearly fees were not bonuses but
in fact a benefit comprising of the player’s remuneration. Additionally, the DRC was mindful
of the fact that the amounts were established as a whole (i.e. USD 1,250,000) with a
deferred payment in five annual quotas.
68.
It followed in the DRC’s eyes that the annual fees were deferred payments of a benefit akin
to a sign-on fee, which reflects a payment obligation by the club to the player for the
execution of the contract, thus not subject to any other conditions other than the execution
of the contract itself. This was further confirmed by the total contract amount stipulated
therein (i.e. USD 4,250,000), which is equivalent to 60 months’ worth of salaries of USD
50,000 plus USD 1,250,000 as sign-on fee.
69.
As a consequence of the above, the DRC confirmed that such benefit should have been
paid by the club insofar as its nexus pertained not to the compensation for work performed
(i.e. salary) but to the execution of the contract itself.
70.
As such, the Chamber decided to partially accept the player’s counterclaim and that the
club must pay, in accordance with the general legal principle of pacta sunt servanda, the
amount of USD 250,000 as outstanding remuneration in the case at hand.
71.
In addition, taking into account the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided that the club must pay to
the player interest of 5% p.a. on the said amount as of one day after its due date until the
date of effective payment.
72.
In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations,
according to which the player is liable to pay compensation to the club. The members of
the Chamber 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 as well as the fees and expenses paid or incurred by the former club (amortised
over the term of the contract) and whether the contractual breach falls within a protected
period.
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73.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contains a provision by which the parties
had beforehand agreed upon an amount of compensation payable by either contractual
party in the event of breach of contract. Upon careful examination of said contract, the
members of the Chamber assured themselves that this was not the case in the matter at
stake.
74.
The Chamber then turned its attention to the remuneration and other benefits due to the
player under the existing contract and/or any new contract(s), a criterion which was
considered by the Chamber to be essential. The members of the Chamber deemed it
important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and any new contract(s) in the
calculation of the amount of compensation.
75.
According to the documentation provided by the parties, it appears that in accordance with
the contract, which was to run until 17 July 2023, the player was to receive a total
remuneration of USD 2,177,149. This amount includes the remainder of the player’s salaries
and benefits of from 5 October 2020 until 17 July 2023.
76.
In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of
the Regulations, after having duly taken into account the specificities of the present case,
the compensation considering the player’s both existing contract and any new contract(s)
amounts to USD 2,177,149, a sum the Chamber found to be fair and proportionate.
77.
The members of the Chamber then turned to the essential criterion relating to the fees and
expenses paid by the club for the acquisition of the player’s services insofar as these have
not yet been amortised over the term of the relevant contract. The Chamber recalled that
a transfer compensation of USD 900,000 had been paid by the club to the Brazilian club
SC Santa Rita for the player‘s transfer, documentation of which has been presented by the
club.
78.
According to article 17 par.1 of the Regulations, this amount shall be amortised over the
term of the relevant employment contract. As stated above, the player was bound by the
club for a period of 60 months, and the club terminated the contract after the 22nd month
had elapsed. As a result of the player’s breach of contract, the club has thus been prevented
from amortising the amount of USD 330,000, i.e. 22/60 of the USD 900,000, relating to
the transfer compensation that it paid in order to acquire the player’s services, which, at
that time, the club counted to be able to make use of during five entire years.
79.
In spite of the above, the Chamber noted that the amount of USD 200,000 was paid to the
club in connection with the first loan agreement, an amount which shall be duly considered
and offset against the other two cited figures.
80.
In sum, the Chamber concluded that the amount of compensation for breach of contract
without just cause to be paid by the player to the club consists of USD 330,000 related to
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REF FPSD-1237
non-amortised expenses incurred by the club when engaging the services of the player and
USD 2,177,149 being the reflection of the remuneration and other benefits due to the
player under the contract, minus USD 200,000 regarding the loan transfer fee received by
the club.
81.
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 USD 2,307,419 to
the club as compensation for breach of contract.
82.
In addition, taking into account the club’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided that the player must pay
to the club interest of 5% p.a. on the amount of compensation as of the date of claim, i.e.
9 December 2020, until the date of effective payment.
iii. Compliance with monetary decisions
83.
Finally, taking into account the consideration the applicable Regulations, the Chamber
referred to par. 1 and 2 of art. 24bis 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.
84.
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 and for the maximum
duration of three entire and consecutive registration periods.
85.
Equally, the DRC confirmed 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
six months on playing in official matches.
86.
Therefore, bearing in mind the above, the DRC decided that, in the event that the player
does not pay the amounts due to the club within 45 days as from the moment in which the
club communicates the relevant bank details to the player, provided that the decision is final
and binding, a restriction on playing in official matches shall become effective on the player
in accordance with art. 24bis par. 2 and 4 of the Regulations.
87.
Likewise, the DRC decided that, in the event that the club does not pay the amounts due
to the player within 45 days as from the moment in which the player communicates the
relevant bank details to the club, provided that the decision is final and binding, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become effective on the club in
accordance with art. 24bis par. 2 and 4 of the Regulations.
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REF FPSD-1237
88.
The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
89.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
90.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
91.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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REF FPSD-1237
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant/Counter-Respondent, Al Qadsiah, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Bismark de Araujo Ferreira, is partially
accepted.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the
following amount:
- USD 2,307,419 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 9 December 2020 until the date of effective payment.
4.
The Claimant/Counter-Respondent has to pay to the Respondent/Counter-Claimant the
following amount:
- USD 250,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2020
until the date of effective payment.
5.
Any further claims of any of the parties are rejected.
6.
The Claimant/Counter-Respondent is directed to immediately and directly inform the
Respondent/Counter-Claimant of the relevant bank account to which the latter must pay the
due amount.
7.
The Respondent/Counter-Claimant is directed to immediately and directly inform the
Claimant/Counter-Respondent of the relevant bank account to which the latter must pay the
due amount.
8.
The Respondent/Counter Claimant and the Claimant/Counter-Respondent shall provide
evidence of payment of the due amount in accordance with this decision to
[email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
9.
In the event that the amount due, plus interest as established above is not paid by the
Respondent/Counter-Claimant within 45 days, as from the notification by the
Claimant/Counter-Respondent of the relevant bank details to the Respondent/CounterClaimant, the following consequences shall arise:
1.
The Respondent/Counter-Claimant shall be banned from playing in official matches
upuntil the due amounts are paid. The overall maximum duration of the restriction
shall be of a maximum of six months. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
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REF FPSD-1237
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
10. In the event that the amount due, plus interest as established above is not paid by the
Claimant/Counter-Respondent within 45 days, as from the notification by the
Respondent/Counter-Claimant of the relevant bank details to the Claimant/CounterRespondent, the following consequences shall arise:
1. The Claimant/Counter-Respondent shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods. The
aforementioned ban mentioned will be lifted immediately and prior to its complete
serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
11. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-1237
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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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