Dispute Resolution Chamber
Texto da decisão
REF 20-01300
Decision of the
Dispute Resolution Chamber
passed on 11 March 2021
regarding an employment-related dispute concerning the player Josef DE SOUZA DIAS
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Tomislav Kasalo (Croatia), member
CLAIMANT:
Josef DE SOUZA DIAS, Brazil
Represented by Mr Gustavo Koch Pinheiro
RESPONDENT:
Al Ahli FC, Saudi Arabia
Represented by Squire Patton Boggs (UK) LLP
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I.
FACTS OF THE CASE
1.
On 23 August 2018, the player, Josef DE SOUZA DIAS (hereinafter: Claimant/CounterRespondent 1 or player), and the Saudi club, Al Ahli FC (hereinafter: Respondent/CounterClaimant or Al Ahli) entered into an employment contract (hereinafter: contract) valid for 3
seasons, until 30 June 2021.
2.
According to art. 5 of the contract, the player was entitled to a remuneration of EUR 12,000,000
for the whole contractual period, payable as follows:
“Advance payments
The amount of € 6.000.000.00 (six million EUR) net payable into three instalments shall be paid
as follows:
€ 2.000.000 (two million EUR) shall be paid on September 15th 2018
€ 2.000.000 (two million EUR) shall be paid on August 31st 2019
€ 2.000.000 (two million EUR) shall be paid on August 31st 2020The advance payments shall be deemed as earned pro-rata.
Annual wage, and monthly salary:
1) The basic annual wage for season 2018/2019 shall be € 2.000.000. (two million EUR), net
of any fee or taxes, which shall be paid in eleven monthly and equal instalments of € 181.818
each month, from 01.08.2018 to 30.06.2019 net of any fee or taxes.
2) The basic annual wage for season 2018/2019 shall be € 2.000.000. (two million EUR), net
of any fee or taxes, which shall be paid in eleven monthly and equal instalments of € 181.818
each month, from 01.07.2019 to 30.06.2020 net of any fee or taxes.
3) The basic annual wage for season 2018/2019 shall be € 2.000.000. (two million EUR), net
of any fee or taxes, which shall be paid in eleven monthly and equal instalments of € 181.818
each month, from 01.07.2020 to 30.06.2021 net of any fee or taxes.
General
1. All the total wages shall be net of any fees or taxes.
2. A delay of a maximum of 15 days shall not be considered a delay for the purpose of this
contract.
3. All and any payments made by the Club to the Player shall be wired bank-to-bank to the
Player’s designated and specified account.
(…)
Accommodation:
The Club shall provide the Player with a suitable and fully furnished accommodation free of
charge”.
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3.
Art. 9 of the contract, which concerns termination, provides the following:
“9.1 Termination by the Club without Cause:
Pursuant to article 17 Regulations on the Status and Transfer of Players of the FIFA, if the club
decides to terminate the contract unilaterally and without a just cause reason before the
termination of its duration. 30/6/2019 or 30/6/2020 or 30/6/2021 or 30/6/2022 the will have to
pay the player all the salaries and bonus pending at the date of termination until 30/6/2019 or
30/6/2020 or 30/6/2021 or 30/6/2022 which the case. The amount to be paid resulting from the
anticipated termination shall be taken into consideration the tax residence of the player at the
moment of termination.
9.2 Breach of Contract:
The Player will be entitled to terminate the contract if the Club is in default of the payment in
more than ninety (90) days. Should this occur, and pursuant to Article 17 of Regulations on the
Status and Transfer of Players of the FIFA, the player will be entitled to terminate the contract
with a just cause reason and consequently the Club shall pay the Player all salaries and bonuses
pending at the date of termination until the 30/6/2019 or 30/6/2020 or 30/6/2021 or 30/6/2022.
The amount to be paid resulting from the anticipated termination shall be paid taken into
consideration the tax residence of the Player at the moment of termination.
9.3 Termination by the Player without Cause:
In the event that under the duration of this contract the Player decides to terminate the contract
without just cause, the player or the third party shall pay the penalty equivalent to transfer
agreement amount paid by Al Ahli to Fenerbahce SK. plus the compensation due to player at the
date of anticipated termination”.
4.
On 26 June 2020, the player and Al Ahli signed a settlement agreement with the following
terms:
“1. The Club commits to make payment to the Player, and the Player will accept the following
sums on the respective dates:
1. Payment of the sum of € 300,000 in reduction of the advance payment due under the
Employment Contract outstanding since August 2019 on the execution of this Settlement
Agreement;
2. On the same date, payment of the outstanding salaries of € 458,334, due under the
Employment Contract at the following rates:
a. February 2020 (100%) € 166,667,
b. March 2020, (15 days at 100% and 16 Days at 50%) € 125,000,
c. April 2020 (50%) € 83,333, and
d. May (50%) € 83,333.
3. Payment of the sum of €250,000 in reduction of the advance payment outstanding since
August 2019 on August 15 2020;
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4. On August 15 2020, payment of June and July 2020 salaries.
5. Payment of the balance of €450,000 in reduction of the advance payment outstanding
since August 2019, together with the €2,000,000 advance payment payable in August
2020 together by seven equal monthly instalments of € 350,000 payable from November
30 2020.
6. Full payment € 2,000,000 of the Player’s salary for the coming season divided on a
monthly basis from the commencement of the new season.
2. If the Club fails, precisely on time, to pay the respective sums referred to in sub paragraphs 1,
2, 3, 4 and 5 of Paragraph 1, the Player shall be at liberty to terminate the Employment Contract
with just cause, without prior warning or notice as per FIFA RSTP art. 14bis.1. and will be entitled
to receive in full, all sums then outstanding under the terms of the Settlement Agreement.”
5.
On 12 August 2020, following the conclusion of the settlement agreement, the player reminded
the club that salaries of June and July 2020 were due on 15 August 2020 and that failure to
pay these in a timely manner would entitle him to terminate the contract.
6.
On 25 August 2020, the player granted 48 hours to comply with the payment of EUR 250,000
representing the salaries for half of June 2020 and July 2020, which was due on 15 August
2020 in accordance with the settlement agreement.
7.
On 30 August 2020, the player sent a letter to Al Ahli terminating the employment contract
between the parties with reference to art. 14 and 14bis of the Regulations on the Status and
Transfer of Players.
8.
On 15 September 2020, the player and the Turkish club, Beşiktaş Futbol Yatirimlari Sanayi ve
Ticaret A.S. (hereinafter: Beşiktaş) entered into an employment contract valid as from the date
of signature until 31 May 2021. Furthermore, the parties agreed that the contract would be
automatically extended until 31 May 2022 in case the player starts as first 11 or substitutes in
afterwards and stays on the field for at least 45 minutes in at least 25 or more official matches
(Turkish Cup matches excluded) during the 2020/2021 season.
9.
The player’s remuneration with Beşiktaş was as follows:
EUR 300,000 net for the whole 2020/2021 season (same salary in case the contract is
extended to the 2021/2022 season),
an attendance bonus of EUR 10,000 per match in which the player starts as first 11 or
substitutes in afterwards and stays on the field for at least 45 minutes, with a maximum
of EUR 300,000 due over the course of the season (same attendance bonus in case the
contract is extended to the 2021/2022 season),
additional bonus of EUR 1,200,000 in case the club is ranked in the first two spots of
the championship at the end of the 2020/2021 season (same bonus in case the contract
is extended to the 2021/2022 season).
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II.
PROCEEDINGS BEFORE FIFA
10.
On 13 September 2020, the Claimant/Counter-Respondent 1 filed a claim before FIFA for
outstanding remuneration and compensation for breach of contract. The Respondent/CounterClaimant filed a counter-claim against the player and his new club, Beşiktaş. A summary of the
position of the parties is detailed below.
a.
The claim of the Claimant/Counter-Respondent 1
11.
According to the Claimant/Counter-Respondent 1, from an early stage in the employment
relationship, Al Ahli had been in default of payment of his remuneration. Following two default
notice letters sent on 5 April 2019 and 16 October 2019, Al Ahli only made some partial
payments.
12.
After all football activities in Saudi Arabia were suspended due to the Covid-19 pandemic, on
5 May 2020, the player once again addressed a default notice to Al Ahli. Following this default
notice, Al Ahli paid the salary of January 2020.
13.
On 26 June 2020, the player and Al Ahli concluded the settlement agreement. Al Ahli paid the
amounts established in clauses 1.1, 1.2 and 1.3 of the settlement agreement, although it did
so with a few days delay.
14.
On 20 August 2020, Al Ahli only paid half of the month of June 2020, with five days delay.
15.
Finally, on 25 August 2020, the player gave Al Ahli an ultimate deadline of 48 hours to comply
with the payment of EUR 250,000. Since no payment occurred within the granted deadline, the
player terminated the contract on 30 August 2020.
16.
The player deems having terminated the contract with just cause in light of Al Ahli’s constant
failure to honour its financial obligations towards him and in accordance with art. 14bis of the
Regulations on the Status and Transfer of Players. In this respect, he stressed that a fundamental
condition for the conclusion of the settlement agreement entered into on 26 June 2020 was
that Al Ahli pays all outstanding amounts “precisely on time”.
17.
Hence, the Claimant/Counter-Respondent 1 made the following requests:
“a) Declare that the termination of the Employment Contract with just cause and that the
Respondent is responsible, based on art. 14 and 14bis.1 RSTP.
b) Establish that the Respondent is liable to pay the Claimant EUR 4.700.000 (four million, seven
hundred thousand Euros):
1. EUR 250.000 (two hundred and fifty thousand Euros), regarding the outstanding salaries of June
and July 2020, i.e. EUR 83.333,50 for June 2020 and EUR 166.667 for July 2020, pursuant clause
1.4 of the [settlement] Agreement;
2. EUR 2.450.000 (two million, four hundred and fifty thousand Euros), established in clause 1.5 of
the [settlement] Agreement;
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3. EUR 2.000.000 (two million Euros), regarding the salaries for the 2020/2021 season, as established
in clause 1.6 of the [settlement] Agreement;
c) Establish that the Respondent is liable to pay to the Claimant default interests at the rate of 5%
p.a., from each August 30, 2020, until paid in full.
d) Apply disciplinary sanction to the Respondent, as defined in art. 12bis of FIFA’s RSTP”.
b.
Position of the Respondent/Counter-Claimant
18.
In summary, Al Ahli primarily contended that the player’s termination of the contract was not
made in accordance with art. 14bis of the Regulations on the Status and Transfer of Players
since, at the time of termination, less than 2 months’ salary was overdue.
19.
With respect to the impact of Covid-19, Al Ahli first referred to the FIFA Covid-19 Guidelines,
according to which players and clubs were encouraged to “work together to find appropriate
collective agreements on a club or league basis regarding employment conditions for any
period where the competition is suspended due to the COVID-19 outbreak”.
20.
In this context, Al Ahli pointed out that following the suspension of football activities, its income
fell to zero. The only recourse to Al Ahli was to seek the financial support of the national
government of the Kingdom, which was not immediately forthcoming due to the economic
crisis it was going through.
21.
On or about 20 March 2020, following consultation with the Saudi Arabian Football Federation
and the Saudi Professional League, Al Ahli sent a circular to all of its players and staff in the
following terms:
“(…)
2) Financial Impact: The COVID-19 has affected all clubs financially including Al Ahli FC. The
suspension of sport activities as described earlier adversely impacted the club resulting in losses
of revenue streams such as the tickets sales, payments from sponsors, TV rights and many
others. As such, the club is currently unable to continue the payments of the monthly salaries
and other payments as expected. One-to-one emails or phone call may be communicated with
you to explain more on basis of individual employment contracts”.
22.
On 20 April 2020, Al Ahli emailed a Pandemic Agreement, which put forward cost reduction
proposals applicable to the entire squad, as follows : “Decrease monthly salary by 50% of the
amount over 20,000 SAR (the player will receive 20,000 SAR + 50% of the rest of the salary
which exceeds SAR 20,000). This amount will be paid since the suspended date of activities on
15/03/2020 until the start of the activities. No deduction or detention will be applied on the
part of salary received by the player (…) When the activities and competitions restart, player will
be entitled to receive his full salary and scheduled prime”. The player was asked to sign the
agreement within the next 48 hours.
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23.
The player responded to Al Ahli’s proposal with its letter dated 5 May 2020, demanding
payment of EUR 1,501,000. Al Ahli responded on 18 May 2020 and contended, inter alia, that:
(a) the Player’s January 2020 salary had already been paid; (b) Al Ahli could only pay salaries in
accordance with the cost reduction proposals; and (c) the Player had entered into a verbal
agreement in September 2019 to postpone the payment of EUR 1,000,000 of the advance until
the end of the 2019/20 season (which was why there had not been a demand for this money
until this date), but that Al Ahli would endeavour to make a payment in respect of this sum
before the effective end of the 2019/20 season.
24.
Al Ahli believes that it was highly inappropriate of the player to make such financial demands
at a time of global instability. According to Al Ahli, the player took advantage of the situation
“to engineer his exit from the Kingdom of Saudi Arabia”.
25.
After Al Ahli requested all players to return to Saudi Arabia for preparations to resume the
season, on 26 June 2020 it concluded the settlement agreement with the player. According to
Al Ahli, with such agreement, the player agreed to the cost reduction measures of 20 April
2020. The cost reduction measures provided that the reduction would be in place until “the
activities and competitions restart”. In this regard, Al Ahli pointed out that, at the time the
parties entered into the settlement agreement, it was not yet clear when the Saudi Professional
League would resume. Al Ahli contended that the settlement agreement does not specify a
percentage with regard to the salaries of June and July 2020, in contrast with February 2020
(100%) or May (50%). According to Al Ahli, “the parties failed to deal with this explicitly in the
Settlement Agreement and it is therefore Al Ahli’s submission that the honourable Chamber
should imply wording into the Settlement Agreement to the effect that the amounts due in
respect of June and July were contingent on the return of the Saudi Professional League”.
26.
Furthermore, with respect to clause 2. of the settlement agreement, Al Ahli held that it granted
the player the right to make an immediate demand with respect to art. 14bis of the Regulations
on the Status and Transfer of Players, however it did not amend the essence of art. 14bis of the
RSTP, which is that for an art. 14bis RSTP notification to be effective, at least two monthly
salaries must be outstanding.
27.
With respect to the amount outstanding as at 30 August 2020, Al Ahli maintains that while the
Saudi Professional League remained suspended, the player had agreed to receive a reduced
salary in line with the cost reduction measures. Thus, the entirety of the layer’s June 2020 salary
had been paid and it was only July 2020’s salary payment that was outstanding as at the date
of termination.
28.
Equally, Al Ahli remarked that the player terminated the contract on 30 August 2020 while the
July 2020 salary was due on 15 August 2020 in accordance with the settlement agreement.
Since the employment contract still remained effective, it follows that, taking into consideration
the “grace period” of 15 days allowed by art. 5 of the contract, Al Ahli was not in delay of
payment at the time of termination. Along these lines, Al Ahli pointed out that the player did
not respect the deadline of 90 days allowed under art. 9.2 prior to terminating the employment
contract.
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29.
Finally, Al Ahli alleged that on 13 August 2020, it paid the instalment of the advance payment
due for the 2019/20 season in accordance with the settlement agreement, in the sum of EUR
250,000.
30.
With respect to the quantum of the player’s claim, Al Ahli made the following statements:
the calculation is fundamentally wrong, since it takes no account of the cost reduction
measures, and does not consider the changes in dates to the season,
the player’s claim does not account, as it should do, for the mitigation that he has
received by way of his new contract with Beşiktaş. The total value of the Beşiktaş
employment contract (including guaranteed and conditional payments) is EUR
3,600,000 and thus the player’s maximum entitlement should be limited to the residual
value of his contract (the correct sum being EUR 4,366,670) less EUR 3,600,000.
This leaves a total of EUR 766,670.
31.
In conclusion, Al Ahli deems that the player terminated the contract without just cause.
Furthermore, according to Al Ahli, the player engineered his exit from Saudi Arabia and signed
a contract with Beşiktaş 16 days after terminating the contract with Al Ahli.
32.
With respect to the amount of compensation claimed by Al Ahli, the latter club refers to art.
9.3 of the contract, which entitles them to receive the amount of the transfer compensation
paid to Fenerbahce plus the compensation due to the player at the time of termination.
Therefore, the club makes the following calculation: EUR 12,000,000 (amount of the transfer
fee paid to Fenerbahce) + EUR 4,366,670 (i.e. EUR 83,333 for the July 2020 salary + EUR
1,833,333 for the remainder of the season 2020/2021 + EUR 2,450,000 for the remainder of
the advance payments pursuant to clause 1.5 of the settlement agreement).
33.
Should the Chamber decide that such a clause is null and void or inoperative for any reason,
alternatively Al Ahli makes the following calculation and remarks (with reference to the theory
of positive interest): an amount of not less than EUR 8,388,884, representing the residual value
of the player’s contract, the amortised transfer fee and the flights paid for by Al Ahli just
prior to the player’s contractual termination.
34.
In summary, the Respondent/Counter-Claimant made the following requests:
a)
“dismiss the Player’s claim in its entirety;
b)
order that the Player and Beşiktaş are jointly and severally liable to Al Ahli for the sum
of EUR 16,366,670, or alternatively
c)
order that the Player and Beşiktaş are jointly and severally liable to Al Ahli for the sum
of EUR 8,388,884, or alternatively
d)
order such damages as it sees fit pursuant to Art. 17 RSTP”.
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c.
Player’s reply to Al Ahli’s counterclaim
35.
In reply to Al Ahli’s counterclaim, the player refuted Al Ahli’s allegations that he engineered an
exit. Indeed, the player stated that, in view of the multiple occasions on which Al Ahli found
itself in delay of payment, he could have terminated the contract earlier, but that in good faith
he had decided not to.
36.
Furthermore, the player showed a last effort to maintain the employment relationship with the
conclusion of the settlement agreement. The Player, on this occasion, once again showed his
good faith and understanding by agreeing to reduce his March, April and May 2020 salaries by
half.
37.
According to the player, the terms of the settlement agreement were clear as to the fact that
the maintenance of the Employment Contract was subjected to the fulfilment of all its terms,
especially its clause 2.
38.
Subsequently, although entitled to terminate the contract immediately in light of Al Ahli’s failure
to pay the salaries of June and July 2020 on the agreed date of 15 August 2020, once more
the player chose in good faith to warn Al Ahli by e-mail dated 21 August 2020, requesting the
prompt payment of the remaining amount.
39.
Finally, on 25 August 2020, as a last gesture of goodwill, a final warning was sent to Al Ahli,
which mentioned that if it fails to pay all outstanding payment within 48 hours the employment
contract would be terminated. Even so, the player waited for five days before terminating the
contract.
40.
With respect to the amounts due for June and July 2020 under the settlement agreement, the
player stated that an explicit reduction was established in paragraph 1.2, regarding the March,
April and May 2020 salaries; however, there is no special provision regarding the amounts due
for the June and July salaries. It follows that there is no agreement to reduce these salaries.
Furthermore, the player pointed out that in its exchanges with him following the default notice
of 15 August 2020, Al Ahli never objected to the amounts the player claimed.
41.
With respect to the grace period of 15 days and the 90 days’ notice prior to terminating the
contract, the player underlined that “both clauses were subject to modification by the
Settlement Agreement, establishing a new condition for termination with just cause under
clause 2 and 3”. Moreover, the player held that, according to art. 18.6 of the Regulations on
the Status and Transfer of Players, grace periods are invalid, whereas the 90 days’ notice prior
to terminating the contract is contrary to art. 14bis par. 1 of the Regulations on the Status and
Transfer of Players.
42.
In addition, the player held that, irrespective of the provisions of art. 14bis of the Regulations
on the Status and Transfer of Players, the parties had explicitly agreed in the settlement
agreement that failure to pay any of the outstanding amounts would entitled the player to
terminate the contract without prior notice. The player points out that such clause has been
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recognised by the Court of Arbitration for Sport (CAS) in CAS 2019/A/6502 Rizespor Futbol
Yatirimlari San. Ve Tic. A.Ş. v. Jakob Jantscher.
43.
In conclusion, the player deems that, in any event, he had just cause to terminate the contract
in accordance with art. 14 of the Regulations on the Status and Transfer of Players.
Notwithstanding, the player held that he met the criteria of art. 14bis, since on 15 August 2020
two monthly salaries were still outstanding. The fact that a partial payment intervened on 20
August 2020 prior to him terminating the contract has no incidence as the club did not fully
cure the default.
44.
With respect to the quantum of Al Ahli’s claim for compensation, the player emphasised that
“Article 9.3 of the Employment Contract must be examined in contrast with its equivalent clause
in case of breach by the Club, established on articles 9.1 and 9.2. While the Club should receive
a compensation of 16,366,670 EUR, the Player is entitled to a quarter of this amount. Given
the evident disproportion, clause 9.3 should be considered void”.
45.
For these reasons, the player asks the DRC to dismiss Al Ahli’s counter-claim.
d. Player’s reply to Al Ahli’s counterclaim
46.
In reply to Al Ahli’s claim, Beşiktaş (full name: Beşiktaş Futbol Yatırımları Sanayi ve Ticaret A.Ş.)
first alleged that it has no standing to be sued since Al Ahli’s claim was directed against
“Beşiktaş Jimnastik Kulübü Dernegi”, a club which is not affiliated to the Turkish Football
Federation. For this reason, Beşiktaş requests the DRC to dismiss Al Ahli’s claim against them.
47.
As to the facts of the dispute, Beşiktaş explained that on 9 September 2020, it was contacted
by intermediaries about the possibility of signing of an employment contract with the player,
who was at the time a free agent.
48.
Beşiktaş alleged in this regard that, until 9 September 2020, it was not aware of any contractual
dispute between the player and Al Ahli, nor that the player had terminated their contract
unilaterally.
49.
Following the negotiations between Beşiktaş and the player, on 15 September 2020 the parties
entered into an employment contract.
50.
Subsequently, Beşiktaş started the administrative formalities to register the player. In this
context, Al Ahli refused to sign the No Third Party Ownership declaration for the player and
alleged on this occasion that the player was still under contract with Al Ahli.
51.
Equally, the Saudi Arabian Football Federation refused to issue the player’s International Transfer
Certificate (ITC), which led to a decision of the Single Judge of the Players’ Status Committee
to authorise the player’s provisional registration.
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52.
As to the issue of inducement to breach the employment contract with Al Ahli, Beşiktaş
explained that, after it was contacted and provided with documentation by the player, which
showed his termination process of his employment contract with Al Ahli, Beşiktaş decided to
sign an employment contract with the player, taking into consideration that the player more
than enough just reasons to terminate his contract with Al Ahli.
53.
As to the issue of the player’s breach of contract, Beşiktaş mainly relied on the player’s
arguments.
54.
As to the issue of the validity of art. 5 (grace period) and art. 9.2 (90 days’ notice), Beşiktaş
underlined that the employment agreement between Al Ahli and the player was signed on 23
August 2018 (after the entering into force of art. 18.6 of the FIFA Regulations on the Status
and Transfer of Players, June 2018 edition), thus art. 5 of the employment agreement should
not be recognised by the Dispute Resolution Chamber.
55.
Equally, Beşiktaş underlined the fact that art. 14bis par. 1 of the employment contract provides
that “alternative provisions in contracts existing at the time of this provision coming into force
may be considered”; however, since the employment contract was signed after the entry into
force of art. 14bis of the Regulations on the Status and Transfer of Players, June 2018 edition,
art. 9.2 should not be recognised by the Dispute Resolution Chamber.
56.
With respect to the quantum of Al Ahli’s claim, Beşiktaş raised the issue of the disproportionality
of the compensation clauses mentioned in art. 9.1., 9.2. and 9.3 of the contract. Consequently,
according to Beşiktaş, art. 9.3. of the contract should be considered void.
57.
Finally, Beşiktaş made the following statement: “Notwithstanding the fact that the termination
of the employment agreement by the Player was with just cause and Al Ahli should not be
entitled to any compensation as a result of this termination, in case the respectable Chamber
decides otherwise, Besiktas request the Chamber to take into consideration that through the
lawful termination of the Player, Al Ahli was also released from paying the advance payment
and salaries of the Player for the 2020/2021 season which is a mitigating factor for the
damages of club”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
58.
Competence and applicable legal framework
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 13 September 2020 and submitted for
decision on 11 March 2021. Taking into account the wording of art. 21 of the February 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.
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59.
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 (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 an nationality player and
a nationality club.
60.
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 player’s claim was lodged on 13 September 2020 while Al Ahli’s counter-claim was lodged
on 21 October 2020, the August 2020 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
b.
Burden of proof
61.
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.
62.
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
the Transfer Matching System (TMS).
c.
63.
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
64.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of a first issue raised by the Counter-Respondent’s 2, this is, the latter club’s
standing to be sued in light of the fact that the Counter-Claimant lodged its counter-claim
against “Beşiktaş Jimnastik Kulübü Dernegi”, while the Counter-Respondent 2’s name is
“Beşiktaş Futbol Yatırımları Sanayi ve Ticaret A.Ş.”.
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65.
In order to determine the Counter-Respondent 2’s standing to be sued, the Chamber examined
the evidence available in TMS on the one hand, and in other publicly available sources, such as
the Counter-Respondent 2’s website. Such sources are considered valid to establish the
Counter-Respondent’s exact name.
66.
In TMS, the Counter-Respondent 2 is referred to as “Beşiktaş Futbol”. Its TMS profile also
contains a reference to its official website, which is www.bjk.com, which evidently stands for
“Beşiktaş Jimnastik Kulübü”. The Chamber also remarked that the club’s logo bears the letters
“bjk”. Furthemore, when searching for the club “Beşiktaş” on the internet, the name “Beşiktaş
Jimnastik Kulübü” or “Beşiktaş JK” appear, as well as Beşiktaş Futbol.
67.
In view of the above, the DRC concluded that “Beşiktaş Jimnastik Kulübü” appears to be the
Counter-Respondent 2’s popular or historical name, which continues to be in use, whereas
Beşiktaş Futbol or its full name, “Beşiktaş Futbol Yatırımları Sanayi ve Ticaret A.Ş.”, was adopted
at a later stage.
68.
In conclusion, the Chamber unanimously decided that “Beşiktaş Jimnastik Kulübü” and
“Beşiktaş Futbol” are evidently one and the same club and therefore the Counter-Respondent
2 has standing to be sued.
69.
Moving on to the main issue of the present dispute, the Chamber established that it shall
determine whether the player had just cause to terminate the contract between the parties on
30 August 2020 and which are the consequences of such unilateral termination of the contract.
70.
In this regard, the Chamber held that it must look closely at the chronology of events in the
present matter.
71.
It is undisputed that the player had put Al Ahli in default on several occasions with respect to
outstanding remuneration, starting in April 2019 with respect to part of the advance payment
due on 15 September 2018 as well as the salaries of February and March 2019. In September
2019, the player again put Al Ahli in default with respect to his salaries of July and August 2019.
The Chamber noted that these delays in payment, which were ultimately remedied, occurred
prior to the Covid-19 pandemic.
72.
Following the outbreak of the Covid-19 pandemic, Al Ahli found itself again in default of
payment, hence why the player put the latter club in default on 5 May 2020 regarding the
salaries of January, February and March 2020. As these salaries continued to remain
outstanding, the parties held negotiations culminating in the conclusion of the settlement
agreement dated 26 June 2020.
73.
At this stage, the DRC found that the settlement agreement is to be considered a decisive factor
in the assessment of this matter. Such document expresses precisely the parties’ respective
obligations moving forward. Thus, it is of utmost importance that the Chamber closely examines
its contents.
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74.
First, the Chamber observed that, by way of the settlement agreement, Al Ahli had recognised
that there were outstanding salaries due to the player at the time of its conclusion, this is, part
of the advance payment due in August 2019, February, March, April and May 2020.
75.
Furthermore, the parties agreed that, regarding half of March 2020 as well as April and May
2020, the player would receive a reduced salary corresponding to 50% of the salary initially due
in accordance with the employment contract.
76.
In addition, Al Ahli committed to pay another EUR 250,000 as part of the advance payment due
in August 2019, as well as the salaries of June and July 2020 on 15 August 2020.
77.
Finally, Al Ahli committed to pay another EUR 450,000 as part of the advance payment due in
August 2019, plus EUR 2,000,000 as advance payment due in August 2020, in seven
instalments of EUR 350,000 each “from November 2020”.
78.
In continuation, the DRC paid particular attention to clause 2. Of the settlement agreement,
which stipulates the following: “2. If the Club fails, precisely on time, to pay the respective sums
referred to in sub paragraphs 1, 2, 3, 4 and 5 of Paragraph 1, the Player shall be at liberty to
terminate the Employment Contract with just cause, without prior warning or notice as per FIFA
RSTP art. 14bis.1. and will be entitled to receive in full, all sums then outstanding under the
terms of the Settlement Agreement.”
79.
Having recalled the contents of the settlement agreement, the DRC expressed the view that the
parties had laid out the consequences of Al Ahli not complying with the payment schedule
indicated in the settlement agreement. Nevertheless, the Chamber must determine whether the
player’s termination was in fact with just cause in light of the Regulations and the existing
jurisprudence of the DRC.
80.
In this regard, the Chamber acknowledged Al Ahli’s arguments as to the fact that the player’s
termination was not made in accordance with art. 14bis of the Regulations in the sense that
less than two months’ salary were outstanding at the time of the termination. In fact, it is Al
Ahli’s contention that, i. only half a salary was outstanding at the time of termination, and; ii.
upon termination on 30 August 2020 since the salaries of June and July 2020 were reduced to
50%, and; ii. that outstanding salary was not yet due given the fact that, according to the
employment contract, the parties had agreed upon a grace period of 15 days for the payment
of salaries.
81.
Addressing these two contentions individually, the Chamber made the following remarks.
82.
With respect to the amount outstanding on the date of termination of the contract, the DRC
found that it could not uphold Al Ahli’s position. Indeed, the settlement agreement does not
specify that the months of June and July 2020 are reduced, in contrast with half of March, April
and May 2020. Should the reduction have also applied to June and July 2020, the parties should
have expressly indicated it in the settlement agreement. In the absence of such indication, the
DRC can only conclude that the salaries of June and July 2020 were due in full.
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83.
It follows that, since Al Ahli made a payment of EUR 83,333 on 20 August 2020, which only
corresponded to half of the month of June 2020, the amount of EUR 250,000 corresponding
to 1.5 months, i.e. half of June and the full salary of July 2020 remained outstanding.
84.
With the foregoing established, the Chamber reverted to the question as to whether a grace
period was to be applied to the outstanding amount of EUR 250,000 considering art. 5 of the
employment contract, which stipulates that “A delay of a maximum of 15 days shall not be
considered a delay for the purpose of this contract”.
85.
In this regard, the DRC emphasised that so-called grace periods are no longer recognised under
the Regulations (cf. art. 18 par. 6 of the Regulations). Therefore, art. 5 is invalid with respect to
the grace period. This implies that the amount of EUR 250,000 shall indeed to considered on
30 August 2020 when the Claimant/Counter-Respondent 1 terminated the contract.
86.
At this point, the Chamber turned its attention to the question as to whether the termination
was made in compliance with art. 14bis of the Regulations. The said article provides that, iIn
the case of a club unlawfully failing to pay a player at least two monthly salaries on their due
dates, the player will be deemed to have a just cause to terminate his contract, provided that
he has put the debtor club in default in writing and has granted a deadline of at least 15 days
for the debtor club to fully comply with its financial obligation(s).
87.
The DRC concluded that the Claimant/Counter-Respondent 1 had in fact not terminated the
contract in compliance with art. 14bis of the Regulations, since, at the time of termination, only
1.5 months were outstanding. Equally, the player did not grant Al Ahli 15 days to remedy the
default as he terminated the contract only 5 days after putting the club in default on 25 August
2020.
88.
Notwithstanding the above consideration, the Chamber unanimously decided that it must look
at the overall circumstances of the present matter. It remains undisputed that, already prior to
the outbreak of the Covid-19 pandemic and subsequent suspension of the League, Al Ahli had,
paid the player’s salary with delay on several occasions. On 26 June 2020, the parties concluded
a settlement agreement whereby the player agreed to the reduction of part of his salaries of
half of March 2020, April and May 2020 as well as to the postponement of the salaries of June,
July and the advance payments due in August 2019 as well as August 2020. Finally, the
settlement agreement was clear in its wording that any failure to pay any of these amounts
would entitle the player to terminate the employment contract with immediate effect.
89.
The foregoing considerations led the DRC to decide that the player terminated the contract with
just cause on 30 August 2020 in accordance with art. 14 of the Regulations. Indeed, in the
Chamber’s view, given Al Ahli’s repeated and substantial breach of its contractual obligations,
the player’s confidence in the continuation of the employment relationship could legitimately
have been lost. Such finding is consistent the Chamber’s its well-established jurisprudence in
similar matters.
90.
Consequently, Al Ahli shall be held liable for the early termination of the employment contract.
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91.
In continuation, the DRC moved to the consequences of such unilateral termination of the
contract by the player with just cause.
92.
First, the Chamber determined that, given the fact that the player is found to have terminated
the contract with just cause, the counter-claim of the Respondent/Counter-Claimant must be
rejected.
93.
Furthermore, Al Ahli must pay the amounts outstanding at the time of the termination in
accordance with the legal principle of pacta sunt servanda. As previously established, these
amount of EUR 250,000, i.e. half of the salary of June 2020 as well as the full salary of July
2020. Furthermore and considering the player’s claim as well as the practice of the DRC, 5%
interest p.a. shall apply on this amount as from 30 August 2020 until the date of effective
payment.
94.
With respect to the Claimant/Counter-Respondent 1’s request for compensation for breach
of contract, the Chamber reiterated that the Respondent/Counter-Claimant is to be held
liable for the early termination of the employment contract. Taking into consideration art.
17 par. 1 of the Regulations, the Chamber decided that the Claimant/Counter-Respondent
1 is entitled to receive an amount of money from the Respondent/Counter-Claimant as
compensation for the termination of the contract with just cause.
95.
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 Claimant 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.
96.
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 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, indeed, the parties
had agreed by way of clause 2. of the settlement agreement upon the fact that the player would
receive all sums due under the settlement agreement, which corresponds to all amounts due
until the original expiry of the contract.
97.
In this regard, the Chamber deemed that such clause finds application in the present matter.
Indeed, it is established that the player terminated the contract with just cause, in light of
Al Ahli’s failure to pay the amounts agreed upon in the settlement agreement. Furthermore,
the clause in question grants the player compensation in the amount corresponding to the
residual value of the contract. The Chamber, referring to its jurisprudence in such cases,
held that such clause is fair, reasonable and proportionate considering the overall
circumstances of the present matter.
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98.
As a consequence and considering the player’s claim for compensation for breach of
contract, together with the wording of clause 2 of the settlement agreement, the Chamber
decided that Al Ahli shall pay compensation corresponding to the amounts due under clause
1.5 and 1.6 of the settlement agreement. For the sake of clarity, the Chamber emphasised
that, considering the parties had agreed upon the compensation beforehand, no mitigation
of the compensation shall be applied.
99.
In conclusion, Al Ahli is liable to pay the player compensation for breach of contract in the
amount of EUR 4,450,000. Furthermore, considering the player’s respective claim as well
as the constant practice of this Chamber, 5% interest p.a. shall apply on the said amount
as from 13 September 2020, i.e. the date of the claim, until the date of effective payment.
ii. Compliance with monetary decisions
100. Finally, taking into account the consideration under number 60. above, 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.
101. 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.
102. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amounts due to the Claimant within 45 days as from the moment in which
the Claimant, communicates the relevant bank details to the Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
103. 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.
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IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent 1, Mr Josef de Souza Dias, is accepted.
2.
The Respondent/Counter-Claimant, Al Ahli Football Club, has to pay to the Claimant/CounterRespondent 1, the following amounts:
- EUR 250,000 as outstanding remuneration plus 5% interest p.a. as from 30 August 2020
until the date of effective payment,
- EUR 4,450,000 as compensation for breach of contract plus 5% interest p.a. as from 13
September 2020 until the date of effective payment.
3.
The counter-claim of the Respondent/Counter-Claimant, Al Ahli Football Club, is rejected.
4.
The Claimant/Counter-Respondent 1 is directed to immediately and directly inform the
Respondent/Counter-Claimant of the relevant bank account to which the latter party must pay
the due amount.
5.
The Respondent/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).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant/Counter-Respondent 1 of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent/Counter-Claimant 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 amount payable in accordance with 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.
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:
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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