Labour Disputes
Texto da decisão
REF. FPSD-7928
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player Dankler Luis DE JESUS PEDREIRA
COMPOSITION:
Frans de Weger (the Netherlands), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stefano Sartori (Italy), member
CLAIMANT:
Dankler Luis DE JESUS PEDREIRA, Brazil
Represented by Mr Breno Costa Ramos Tannuri
RESPONDENT:
Club Al Ahli, Saudi Arabia
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REF. FPSD-7928
I. Facts of the case
1.
On 24 June 2021, the Brazilian player, Dankler Luis de Jesus Pedreira (hereinafter: the
player or the club) and the Saudi club, Al-Ahli Saudi FC (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from
1 July 2021 until 30 June 2023.
2.
According to clause 5 of the contract, the Player was entitled to receive a total fixed
remuneration of USD 3,000,000 net during the term of the contract, payable as follows:
-
-
USD 600,000 as sign-on fee, payable in 2 instalments of EUR 300,000 each, as
follows:
-
USD 300,000 on 1 July 2021;
-
USD 300,000 on 1 July 2022.
USD 100,000 as monthly salary (payable as from 1 July 2021 until 30 June 2023, i.e. 24
monthly salaries in total during the whole term of the contract, which equals EUR
2,400,000 in total as salary).
3.
Clause 7.2 of the contract reads as follows: “In case the club decides to terminate the
contract unilaterally and without just cause prior to termination of its duration and before
the end of the season where such termination may take place whether before 30 June 2022
or 30 June 2023, the club shall pay the player the remaining salaries till the end of the
season where termination may take place which means till the 30th of June 2022 or the
30th of June 2023”.
4.
On 27 June 2022, the club played its last match in the Saudi Professional League 2021/2022
sporting season against Al-Shabab which ended in a goalless draw.
5.
As a result of such draw, the club finished the season in penultimate place and as such, it
was relegated from the Saudi Professional Football League to the Saudi Division 1.
6.
On 7 July 2022, the player put the club in default, claiming the payment of the outstanding
remuneration (salaries of March, April, May, June 2022, as well as the second instalment of
the sign-on fee) in the total amount of EUR 1,500,000, thereby granting the club a 15 days’
deadline to remedy the default – however, to no avail.
7.
On 20 July 2022, the club replied thereto and alleged that it had terminated the contract on
29 June 2022 with just cause cf. clause 7 of the contract.
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REF. FPSD-7928
8.
By means of his letter dated 25 July 2022, the player replied to the letter of the club, arguing
that the latter never informed him about any termination of the contract and that,
considering that it was only notified about it on 20 July 2022, the club had -de factoterminated the contract in the 2022/2023 season.
9.
On 28 July 2022, the club paid to the player the amount of SAR 375,000 -equivalent to USD
100,000- corresponding to the salary of March 2022, which is acknowledged by the
Claimant.
II. Proceedings before FIFA
a. Position of the Claimant
10. On 20 October 2022, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the
total amount of USD 1,800,000 net, plus 5% interest p.a., broken down by the Claimant as
follows:
Outstanding remuneration: USD 596,667 net
-
USD 100,000 net corresponding to the salary of April 2022;
USD 100,000 net corresponding to the salary of May 2022;
USD 96,667 net corresponding to the salary (pro-rata calculated) of June 2022,
corresponding to the 29 first days of the said month;
USD 300,000 net corresponding to the second instalment of the sign-on fee.
Compensation for breach of contract: USD 1,203,333 net
- USD 3,333 net corresponding to the salary of the last day of June 2022;
- USD 1,200,000 net corresponding to the residual value of the contract (July 2022 June 2023).
11. In his claim, the player argued that -despite the club arguing via its letter of 20 July 2022
that it had unilaterally terminated the contract on 29 June 2022- the club never notified him
any letter dated 29 June 2022 informing him about the termination of the contract.
12. Furthermore, the player held that -despite the club’s payment of USD 100,000- “the
monthly salaries of the Player for the months of April 2022, May 2022 and the pro-rata
salary for the 29 days of work performed for the month of June 2022 (and the second
instalment due as signing-on fee) still remained unpaid”.
13. In this context, the player argued that the club -which was in default of paymentunilaterally terminated the contract without just cause on the grounds that it was relegated
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REF. FPSD-7928
from the Saudi Professional Football League to the Saudi Division 1 and could no longer
comply with its contractual obligations towards the player. Thus, the player argues that -cf.
art. 17 of the Regulations- he is entitled to receive the outstanding remuneration due to
him by the date of termination of the contract, as well as a compensation for breach of
contract, which shall amount to the residual value of the contract.
14. Moreover, the Claimant referred to clause 7.2 of the contract and stressed that the said
“liquidated damages clause” clearly invalid, since it is discretionary, unreasonable and
disproportionate as will be demonstrated below in the following paragraphs”.
15. As for the compensation for breach of contract requested, the Claimant pointed out that given that the reason that led the club to terminate the contract was the club’s relegation,
which is unacceptable- the club terminated the contract under egregious circumstances
and, thus, he is entitled to receive an additional compensation if the DRC is to mitigate it
due to the player’s new income.
b. Position of the Respondent
16. On its part, the club failed to reply to the claim of the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 20 October 2022 and submitted
for decision on 23 February 2023. Taking into account the wording of art. 34 of the October
2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
18. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Saudi club.
19. 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 (October 2022 edition) and
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REF. FPSD-7928
considering that the present claim was lodged on 20 October 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
20. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
21. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established, the Chamber moved to the substance of the matter
and recalled that the Claimant is requesting to be awarded outstanding remuneration and
compensation for breach of contract in the total amount of USD 1,800,000 net, insofar as
– as alleged by the player – the club unilaterally terminated the contract without just cause
on 29 June 202 following the club’s relegation.
23. Equally, the Chamber noted that, on its part, the club failed to reply to the claim.
24. In view of the club’s lack of reply, the DRC concluded that the allegations of the Claimant
have remained uncontested and will be treated as uncontested facts.
25. In this respect, the Chamber underscored that it has remained uncontested that the club following its relegation to a lower league - unilaterally terminated the player’s contract on
29 June 2022. Thus, considering that such a reason cannot constitute a just cause to
terminate the contract - since it would go in detriment with the principle of contractual
stability and termination as ultima ratio – the Chamber determined that the club
terminated the contract without just cause on the said date. Therefore, established the
Chamber, the player is entitled to both: the outstanding remuneration due to him by the
date of termination, as well as a compensation for breach of contract.
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REF. FPSD-7928
26. The above being said, the DRC highlighted that, whereas it has remained uncontested that
the club owed the player the amount of USD 596,667 net as outstanding remuneration,
corresponding to the salaries of April, May and June 2022, as well as the second instalment
of the sign-on fee (all of which are considered as fixed payment and, hence, shall integrate
the player’s outstanding remuneration in accordance with the legal principle: pacta sunt
servanda), the amount due as compensation needs a more thorough analysis.
27. In this regard, the Chamber pointed out that, although the player requests the salary of
June 2022 to be calculated on a pro-rata basis, taking into account that the player rendered
services for the club until -at least- 29 June 2022, the said monthly salary shall integrate the
outstanding remuneration due to the player, in accordance with the jurisprudence of the
Football Tribunal.
28. In this regard, the DRC observed that clause 7 of the contract contemplates different
amounts payable as compensation by either party depending on the circumstances
surrounding the early termination of the contract. In the case at hand, clause 7.2 thereof is
the one that would be applicable, since it would apply in case the club unilaterally
terminated the contract without just cause. After an analysis of its wording, the Chamber
concluded that the said clause needs to be considered null and void insofar as it is not
proportionate. The reason behind this consideration, explained the DRC, is that – if applied
–, the said clause would allow the club to decide – in a unilateral and discretionary manner
– to shorten the contract’s term by half, which clearly violates the principles of contractual
stability and legal certainty.
29. Therefore, the Chamber reiterated that clause 7 of the contract needs to be disregarded
and that the compensation due to the player needs to be calculated in accordance with the
parameters provided by art. 17 of the Regulations.
ii. Consequences
30. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
31. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 3 salaries and
one of the instalments of the sign-on fee, all due under the contract, amounting to USD
600,000 net.
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. 600,000
net.
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REF. FPSD-7928
33. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
34. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
35. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
36. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
37. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to 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 USD 1,200,000 net (i.e. the salaries due between July 2022
and June 2023) serves as the basis for the determination of the amount of compensation
for breach of contract.
38. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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REF. FPSD-7928
39. However, the Chamber verified that the player remained unemployed following the
termination of the contract and, therefore, the Chamber concluded that the player could
not mitigate his damages.
40. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 1,200,000 net to the player (i.e. the residual value of the contract, insofar as the
player could not mitigate his damages cf. art. 17 para. 1 of the Regulations), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
41. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 29 June 2022, i.e. as from the date of termination
of the contract, until the date of effective payment.
iii. Compliance with monetary decisions
42. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
43. 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.
44. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
45. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
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REF. FPSD-7928
46. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
47. 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.
48. 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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Dankler Luis DE JESUS PEDREIRA, is accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant, the following amounts:
- USD 600,000 net as outstanding remuneration, plus 5% interest p.a. as follows:
-
On the amount of USD 100,000, as from 1 May 2022;
On the amount of USD 100,000, as from 1 June 2022;
On the amount of USD 100,000, as from 1 July 2022;
On the amount of USD 300,000, as from 1 July 2022.
- USD 1,200,000 net as compensation for breach of contract, plus 5% interest p.a. as
from 29 June 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
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REF. FPSD-7928
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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
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