Dispute Resolution Chamber
Texto da decisão
REF FPSD-706
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021
regarding an employment-related dispute concerning the player Carlos Eduardo De
Oliveira Alves
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Philippe Diallo (France), member
CLAIMANT:
Carlos Eduardo De Oliveira Alves, Brazil
Represented by Breno Costa Ramos Tannuri
RESPONDENT:
Al-Hilal Saudi Club, Saudi Arabia
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I.
FACTS OF THE CASE
1.
On 7 July 2017, the Brazilian player, Carlos Eduardo de Oliveira Alves (hereinafter:
Claimant), and the Saudi club, Al-Hilal Saudi Club (hereinafter: Respondent) concluded an
employment contract valid as from 1 July 2017 until 30 June 2020.
2.
On 10 October 2018, the Parties added an Annexe to the Employment Contract for NonLocal Football Player (hereinafter referred to as the “First Annexe”).
3.
By signing the First Annexe, the Respondent undertook to pay the Claimant specific
individual bonuses in addition to the terms and conditions previously stipulated in the
employment contract.
4.
Accordingly, the First Annexe, under article 2, established as follows:
I.
“The Player will be entitled to the following bonuses per contract year as of 10
October 2018:
a. the amount of EUR 150,000 (one hundred fifty thousand
Euros) if the Club wins the National League – Cup Winner;
b. the amount of EUR 100,000 (one hundred thousand Euros) if
the Club wins the King’s Cup – Cup Winner;
c. the amount of EUR 300,000 (three hundred thousand Euros) if
the Club wins the AFC Champions League – Cup Winner.
II.
The Player agrees that any bonus under Article 2/1 will be awarded only if the Player is
still employed by the Club at the time when such objective is achieved.
III.
The Player agrees that the bonuses under Article 2/1 will be awarded only if the Player
is still employed by the Club and registered at the AFC at the time when AFC
Champions League is achieved.
IV.
The Player accepts that in case of early termination of the Employment Contract, by
whatever reason, there will be no pro rata payment of any bonus pertaining to an
objective achieved after the date of termination of the Employment Contract.
V.
The Player expressly agrees that by being entitled to the bonuses under Article 2/1, he
shall not receive any additional rewards under the Internal Regulation of the Club.
VI.
The date of payment of each of the bonce(s) achieved shall be (60) sixty days after
achieving the objective.”
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5.
On 28 June 2020, the Respondent approached the Claimant and proposed the latter a short
extension of the Employment Contract in reaction to the COVID-19 outbreak.
6.
Contextually, the Claimant agreed with the Respondent an extension of the Employment
Contract until the end of the season, signing a document here referred as the “Second
Annexe”.
7.
According to article 2 of the Second Annexe, the Parties agreed to extend the length of the
Employment Contract from 30 June 2020 until 5 October 2020.
8.
Moreover, referring to the same bonuses stipulated under the First Annexe, the Second
Annexe provided for their payment in case of fulfilment of the conditions descripted thereto
in relation with the sporting season 2019/20020, namely:
a) the amount of EUR 150,000 (one hundred thousand Euros) in case of victory
of the Saudi Pro League 2019/2020; and
b) the amount of EUR 100,000 (one hundred thousand Euros) in case of
achievement of the King’s Cup 2019/2020.
9.
On 2 August 2020, the Parties decided to replace the contents of the Second Annexe with
a further document (hereinafter the “Third Annexe”).
10.
According to the Third Annexe, the Parties agreed to reduce the period of extension of the
Employment Contract, fixing the new end date on 9 September 2020 in lieu of 5 October
2020 as previously set out in the Second Annexe.
11.
Furthermore, the Third Annexe as well provided for the same bonuses previously agreed in
the First and Second Annexe.
12.
On 15 August 2020, the Claimant was subject to a serious injury during the match against
Al Adalah Club in the Saudi Pro League, which subsequent diagnosis revealed that the
Player would have been unable to participate in the remaining 3 games of the season.
13.
On 16 August 2020, the Claimant and the Respondent entered a free transfer agreement
with a third party (Emirati Club Al Shabab), according to which it was stipulated that the
Respondent would have authorized the Player to move on a permanent basis to the third
club as of 26 August 2020, namely before the latter’s employment contract with the
Respondent had finished (i.e. 9 September 2020).
14.
On 9 September 2020, the Respondent officially won the Saudi Pro League title with a
margin of 8 points from the second ranked team in the season.
15.
On 24 September 2020, the Claimant contacted the Respondent Club’s manager on
WhatsApp demanding that the bonus due for the victory of the Saudi Pro League got paid
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in accordance with the terms stipulated in the Third Annexe, namely in the amount of EUR
150,000.
16.
By email dated 21 October 2020, the Respondent proposed by a “Financial Settlement” to
the Claimant. According to the Settlement, the Claimant would have had to acknowledge
the receipt of all the remuneration due by the Club – including but not limited to – the 2
(two) outstanding monthly salaries for the months of July/August 2020 plus bonuses.
17.
On 22 October 2020, the Respondent paid the Claimant the outstanding salaries related to
the months of July and August 2020.
18.
On the same date, the Claimant communicated his refusal to sign the above Financial
Settlement as the Respondent was allegedly still in debt of the bonus related to the victory
of the Saudi Pro League.
19.
Still on the very same date, the Respondent replied to the Claimant’s request arguing that
based on article 2.2 of the First Annexe the payment of the aforementioned bonus was no
longer due as the Player was not under contract when the Respondent won the
competition, namely on 29 August 2020.
20.
On 23 October 2020, the Claimant put in default the Respondent of EUR 150,000 as due
bonus for the victory of the Saudi Pro League and granted the Club a term of 10 days to
comply with its financial obligation toward the Player.
21.
On 28 November 2020, the Respondent won the 2019-2020 King´s Cup.
VII.
PROCEEDINGS BEFORE FIFA
22.
On 1 February 2021, the Claimant 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 Claimant
23.
According to the Claimant, the Player shall be entitled to receive the bonuses due for the
Club’s victory in both the competitions held during the season 2019/2020.
24.
In particular, the Claimant is of the opinion that the condition prescribed under article 2.2
of the First Annexe, namely imposing the registration of the Player with the Club at the
moment of the achievement as condicio sine qua non of the same Player’s entitlement to
the respective bonuses, shall not be deemed to be recalled by the Third Annex as already
the Second Annexe and the Third Annexe afterwards as well established that the terms and
conditions stipulated under the Employment Contract only would have remained valid,
without however including the provisions contained in the First Annexe.
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25.
What above stated, according to the Claimant, clearly means that the intention of the
Parties was, on one hand, to keep into force the provisions set out in the Employment
Contract as not modified by the Second Annexe and, on the other hand, to set aside in full
the provisions included in the First Annexe.
26.
In other words, considering that the First Annexe had expired, the Claimant argued that the
Second Annexe replaced the First Annexe in its entirety and the Parties had mutually agreed
to set aside Article 2, par. 2 as this was present in the First Annexe only.
27.
Otherwise, according to the Claimant, the Parties would have expressly mentioned in the
Second and Third Annexes the all the terms the First Annexe had to be considered valid and
not those provided by the Employment Contract only.
28.
In light of the above, the Claimant is of the opinion that after the conclusion of the Second
Annexe, the only provision of the First Annexe which had remained valid and binding was
the obligation of the Club to pay the aforementioned bonuses to the Player, depending
exclusively on whether the Club had reached the goals indicated at the end of the season
and not on whether the Player had been still registered with the Respondent.
29.
In support of the above, the Claimant referred to the wording of article 2 in the First Annexe
and put it in comparison with the correspondent articles under the Second and Third
Annexe, observing that the provisions stipulated under article 2.2 of the First Annex and
below were simply removed from the other mentioned annexes.
30.
Furthermore, the Claimant stated that the original expiry date of the employment contract
was 30 June 2020 but he decided to extend his relationship with the Club in absolute good
faith, just for the purpose of contributing to the achievement of the abovementioned titles.
31.
In this context, the Claimant observed how there was no absolute need for him to sign a
transfer agreement before the natural expiry of the amended contract (i.e. 9 September
2020) as he could have simply and freely joined the third club afterward.
32.
Therefore, the Claimant pointed out that he would have never anticipated his transfer to
the third club if he had known that the Respondent would have neglected the
aforementioned bonuses.
33.
In other words, according to the Claimant, the fact that the Player had consented with the
Transfer Agreement did not mean that he was going to waive the receipt of the 2-month
salaries outstanding (that ultimately were paid in October 2020) and bonus of EUR 150,000
for winning the 2019-2020 Saudi Pro League, otherwise he would have waited just few
days more.
34.
Additionally, the Claimant declared to have relied also on the words of the same manager
he contacted on date 22 September 2020, Mr. Fahed Al Mofariji, who allegedly confirmed
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by audio message the will of the Club’s President to pay the Claimant’s due bonus related
to the victory of the Saudi Pro League.
35.
Moreover, in reference to the bonus claimed for the victory of the King’s Cup, the Claimant
highlighted that, although, the Player could not participate in the final and semi-final, he
had played all four of the earlier matches and even ended scoring two goals for the Club.
As such, the Player played four out of the six matches played by the Club in the 2019-2020
King´s Cup.
36.
Therefore, the requests for relief of the Claimant, were the following:
EUR 150,000 as outstanding bonus for the victory of the Saudi Pro League
2019/2020
EUR 100,000 as outstanding bonus for the victory of the Saudi King’s Cup
2019/2020
5% per annum interest over the claimed amounts as of the relevant due dates.
b.
Position of the Respondent
37.
Despite having been invited to do so, the Respondent did not reply to the claim.
VIII.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
38.
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 01 February 2021 and
submitted for decision on 17 June 2021. Taking into account the wording of art. 21 of the
January 2021 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.
39.
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) and
b) of the Regulations on the Status and Transfer of Players (February 2021 edition), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between an Brazilian player
and a Saudi club.
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40.
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 1 February, the aforementioned edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
41.
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.
42.
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.
43.
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
44.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent did not responded to the Player’s claim,
hence the above mentioned facts and allegations submitted by the Claimant shall be
deemed as uncontested.
45.
Accordingly, assumed as granted that certain bonuses have been agreed by the Parties in
connection with the Respondent’s team’ sporting results during the season 2019/2020, the
Chamber acknowledged that its task was to establish whether or not the conditions
required for the award of said bonuses as claimed by the Player were fulfilled.
46.
In order to do so, the Chamber turned its attention to the Third Annexe to the Employment
Contract, being it considered the last valid agreement signed by the Parties.
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47.
In this respect, the Chamber took note that the Respondent did not contest the validity of
said document, but only the interpretation given by the Claimant, hence in the Club’s view
the Player would not be entitled to receive the aforementioned bonuses because he was no
longer registered at the date in which the conditions for said bonuses were met.
48.
On the contrary, according to the Claimant, the Player’s registration with the Club as
mandatory condition for being awarded the bonuses shall be disregarded in consideration
of the wording of the Second Annexe (first) and Third Annex afterwards, as these
agreement had clearly removed said condition, subjecting the payment of said bonuses to
the mere condition of winning the related titles, without however referring to the terms
and limitations contained in the First Annexe.
49.
In this regard, the Chamber is of the opinion that either the literal interpretation of the
different Annexes as well as the scrutiny of the parties’ intention would lead to the
conclusion that each of the mentioned Annexes had been signed with the primary purpose
of amending the temporal terms fixed by the original employment contract and to
contextually maintain the financial rewards previously agreed in case of achievement by the
Respondent’s team of certain sporting results.
50.
In this perspective, it appears quite evident in the Chamber’s view that, according to the
First Annexe, the award of such bonuses had the scope of encouraging the Player to
maximize his efforts during the competition in order to fulfil the conditions requested for
the bonuses to be triggered and that, consequently, the Player would have been entitled to
receive the aforementioned bonuses only in case he had been still registered with the
Respondent’s team by the date of achievement of the relevant titles.
51.
Similarly, in the Chamber’s view, the Second and Third Annexes had the purpose of
reproducing the content of the Employment Contract and of the First Annexe as well.
52.
In particular, in the Chamber’s view, this conclusion would result clearly coherent with what
expressed in the last line of article 5 under the Third Annexe, as it expressly states:
“For the avoidance of any doubt, the aforementioned bonuses under this Article are the
same bonuses agreed in the First Annexe”
53.
Accordingly, it is opinion of the Chamber that such an expression does not leave space to
different interpretation but the one which shall include also the exact conditions requested
in the previous agreements for the fulfilment of the aforementioned bonuses.
54.
Moreover, the Chamber stressed that this conclusion would appear in line with the longstanding DRC’s jurisprudence according to which a player is only entitled to a bonus for
achieving a certain result if he has contributed to that result.
55.
Therefore, according to the Chamber, pursuant to the Third Annexe the Player should have
been registered with the Club in order to be entitled to the aforementioned bonuses.
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56.
This being said, in regard to the bonus connected with the victory of the Saudi Pro League
2019/2020 (namely in the amount of EUR 150,000) the Chamber wishes to draw the
Parties’ attention to the fact that the Player was injured in August 2020, i.e. quite shortly
before the end of the season, event that rendered the latter unable to play the remaining
3 matches of the season.
57.
In this context, the Chamber acknowledged that said event has certainly determined the
Claimant’s decision to push for the three-party transfer agreement dated 16 August 2020,
so as to be able to successfully register for the AFC Champions League 2020/2021 with his
new club. Otherwise, in the Chamber’s view, it appears evident that the same Player would
have had no interest in moving two weeks earlier (26 August 2020) than what agreed under
the Third Annexe, i.e. 9 September 2020.
58.
In consideration of the above, the Chamber remarked that, in casu, it would result overformalistic to conclude that the Claimant is not entitled to the bonus related to the victory
of the Saudi Pro League solely because 3 days before the end of the season the contract
was terminated.
59.
In conclusion, the Chamber agreed that nevertheless the Claimant has certainly contributed
to the achievement of the Respondent’s team’ sporting result, hence he shall be entitled to
the related bonus.
60.
Conversely, for what pertains to the second bonus claimed by the Player, namely the one
under article 5 b) of the Third Annexe, the Chamber is of the opinion that the Claimant has
not effectively contributed to the victory of the tournament as the final was played only in
the end of November 2020.
61.
Therefore, the Chamber decided to reject the Player’s request of EUR 100,000 as
outstanding bonus for the victory of the Saudi King’s Cup 2019/2020.
ii. Consequences
62.
Having stated the above, the Chamber decided that, in such specific scenario, the condition
stipulated under article 2.1 i) of the First Annexe, as subsequently recalled by the Second
and Third Annexes, shall be considered as met, hence the Claimant shall be awarded the
amount of EUR 150,000 as bonus for winning the Saudi Pro League.
63.
Lastly, as per Claimant’s request and in line with the long-standing DRC’s and PSC’s
jurisprudence, the Chamber decided to award the Claimant a 5% per annum interest over
the amount of EUR 150,000 as of 30 August 2020.
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iii. Compliance with monetary decisions
64.
Finally, the Chamber referred to par. 1 lit. 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.
65.
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.
66.
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. 24bis par. 2, 4, and 7 of the Regulations.
67.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
68.
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. 24bis par. 8
of the Regulations.
d.
Costs
69.
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.
70.
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.
71.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IX.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Carlos Eduardo De Olivera Alves, is partially accepted.
2.
The Respondent, Al-Hilal Saudi Club, has to pay to the Claimant, the following amount:
- EUR 150,000 as outstanding remuneration plus 5% interest p.a. as from 30 August 2020
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid within 45 days of notification of this decision, the
following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of 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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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