Labour Disputes
Texto da decisão
REF FPSD-7091
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning
the player Petros Matheus Dos Santos Araujo
BY:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), member
Jérôme PERLEMUTER (France), member
CLAIMANT:
Petros Mahteus dos Santos Araujo, Brazil
Represented by Mr Bruno Morimoto
RESPONDENT:
Al Nassr, Saudi Arabia
Represented by Elite Law SA
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REF FPSD-7091
I. Facts of the case
1. The player Petros Matheus Dos Santos Araujo and Al Nassr concluded an employment
contract valid as from 1 July 2018 until 30 June 2022.
2. On 30 August 2021, the parties concluded a termination agreement with the following
conditions:
“3.1.3 (…)the CLUB shall pay to the PLAYER as compensation for the contractual termination the
amount resulting from deducting from of USD 2,708,329.00
(…)
for the avoidance of any doubt, the final amount to be paid by the CLUB shall be equal to
2,708,329.00 (…) minus the pro-rata net amount that the PLAYER is entitled to receive from his
new club(s) until 30 June 2022. The COMPENSATION shall be paid on 1 July 2022.
(…)
For example, if the PLAYER enters into a new employment contract with a new club under which
the PLAYER is entitled to receive a pro-rata amount of USD 1,000,000 net until 30 June 2022, the
final COMPENSATION to be paid by the CLUB will be USD 1,708,329.00
(…)
For the avoidance of any doubt, in the event that the PLAYER does not sign any new employment
contract with any new club on or before 30 June 2022, then the PLAYER shall be entitled to receive
as COMPENSATION the full amount of USD 2,708,329.00
(…)
The PLAYER undertakes to duly inform to the CLUB of all employment contracts he enters into after
the EFFECTIVE date of the present SETTLEMENT AGREEMENT and to provide the exact copies of the
corresponding documents
in relation with the said employment relationship within the next 10 (ten) days after entering into
the new employment relationship. In this respect, the PARTIES expressly agree that if the PLAYER
fails to comply with his obligation to provide the exact copies of the corresponding documents in
relation with the said employment relationship within the next 10 (ten) days after entering into the
new employment relationship, then it shall be deemed that the PLAYER has breached the present
SETTLEMENT AGREEMENT and as such, it shall not be entitled to receive the COMPENSATION
provided in this provision.”
3. Clause 3.2 of the termination agreement stipulated the following:
"3.2 If the CLUB fails to settle any of the amounts provided in the present clause, the PLAYER must
serve a notice in writing and give the CLUB 10 (ten) days to cover the pending amount within the
granted deadline, default interest at a rate of 10% p.a. shall accrue as from the date of default
until the date of full payment of the pending amount. "
4. On 6 July 2022, the player sent a “notification letter”, requesting the payment of USD
2,533,329 by no later than 10 days.
5. On 11 January 2022, the player sent a default notice requesting the payment of USD
2,533,329 within 10 days in accordance with clause 3.1.3 of the settlement agreement.
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6. On 11 July 2022, the club replied by stating that the calculation of USD 2,533,329 “appears
erroneous”.
7. On 1 January 2022, the player and the Saudi club, Al Fateh, concluded an employment
contract (the first Al Fateh contract).
8. According to art. 5 of said contract, the player was entitled to a monthly salary of USD 25,000
between January 2022 and June 2022, as well as for USD 100,000 per month between July
2022 and June 2023.
9. In addition, the player was entitled to the following amounts:
USD 25,000 on 15 January 2022;
USD 400,000 on 15 July 2022;
USD 250,000 on 1 February 2023.
(note: from January 2022 until June 2022, the player would earn: 25,000*6+25,000 = 175,000)
10. On 30 June 2022, the player and Al Fateh, valid as from 1 July 2022 until 30 June 2024 (the
second Al Fateh contract).
11. According to art. 5 of said contract, the player was entitled to a monthly salary of USD
150,000.
12. In addition, the player was entitled to the following amounts:
USD 400,000 on 1 July 2022;
USD 220,000 on 1 February 2023;
USD 200,000 on 1 February 2024.
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II. Proceedings before FIFA
1. On 16 August 2022, the player Petros Matheus Dos Santos Araujo lodged a claim before
FIFA for outstanding remuneration and requested the payment of USD 2,533,329, plus
10 % interest p.a. as from 1 July 2022, in connection with the last instalment of the
settlement agreement.
2. The Claimant detailed said amount as the basis amount established in the termination
agreement (2,708,329) minus 175,000, which he would receive from the first Al Fateh
contract.
3. In its reply, the Respondent explained that the Claimant did not voluntarily inform Al
Nassr about his Second Al Fateh Contract nor sent a copy of it and that, conversely, on
6 July 2022, the Player simply put the Club on notice to pay him the allegedly due
amount of USD 2,533,329 within 10 days.
4. The Respondent considered that the Claimant did not comply with his obligations as
per clause 3.1.3 of the agreement, since he did not provide the exact copies of the
corresponding employment contract.
5. The Respondent explained that “the ratio of this drafting was exactly to avoid what the
Player is now trying to falsely contend before FIFA: that an employment contract, like the
Second Al Fateh Contract, entered into during the residual duration of the originally
terminate Employment Contract between the Parties could not be taken into account
because had to “enter into force” on a subsequent date.”
6. The club argued that the duty of disclosure was an essential condition for the payment
of the compensation.
7. On a subsidiary basis, and should the DRC deem that compensation is due, the
Respondent considered that it shall be reduced by taking the second Al Fateh Contract
into account.
8. In his replica, the Claimant considered that the Respondent’s arguments “are nothing
more than an attempt to keep itself in default of its obligations towards the Claimant.”
9. In relation to the second contract, the Claimant argued that since it only entered into
force on 01/07/2022 and that all payments therein provided refers to services to be
rendered after 30/06/2022, he concluded that such contract would be irrelevant for the
calculation of the compensation due to him, which is why he reserved his right to not
send it to the Respondent
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10. In its duplica, the Respondent insisted that the Player had the duty to disclose it, but he
voluntarily chose to avoid it to put Al Nassr in a difficult situation and in the impossibility
to use it to duly calculate any possible further debt towards him, with the idea to keep
his compensation much higher than effectively due.
11. Under these conditions, the Respondent considered that there is no doubt that the
Claimant breached the Termination Agreement by not providing the Second Al Fateh
Contract to Al Nassr within a 10 days deadline from its signature, and by keeping it
hidden even after a notice from Al Nassr.
12. On a subsidiary basis, the Respondent requested to reduce the compensation to USD
1,789,327, as per the following table:
CALCULATION OF THE COMPENSATION
Total value of the First Al Fateh Contract from
January to June 2022
USD 175,000
Total value of the Second Al Fateh Contract
USD 4,420,000
Total value of the First & Second Al Fateh Contracts
USD 4,595,000 (4,420,000 +175,000)
Pro-rata net amount
USD 153,167 (4,595,000/30)
Pro-rata net amount for 6 months (Jan - Jun 2022)
USD 919,002 (153,167*6)
FINAL COMPENSATION
USD 1,789,327 (2,708,329 - 919,002)
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REF FPSD-7091
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 16 August 2022 and submitted
for decision on 24 November 2022. 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.
2.
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.
3.
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 considering that the present claim was lodged on 16 August 2022, the October 2022
edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
4.
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
5.
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
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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
6.
The Chamber first observed that the parties concluded an employment contract valid as
from 1 July 2018 until 30 June 2022 and that, on 30 August 2021, they concluded a
termination agreement by means of which they agreed to terminate said contract before
its term in exchange of a payable compensation by the club to the player as established
in art. 3.1.3 of said agreement (cf. point I.2 above).
7.
In particular, the Chamber observed that the amount of payable compensation was
established from a basis amount of USD 2,708,329, from which the value of any contract
with a new club would be deducted, but only for the period from January to June 2022.
8.
Moreover, the Chamber also observed that the contract further included a clause that
mandated the player to disclose any new contract within 10 days, under penalty of not
receiving any compensation (cf. art. 3 par. 2) (i.e. the “nullity clause”).
9.
The Chamber noted that, while the Claimant requested the payment of the
“compensation” due as per art. 3.1.3 of said agreement, the Respondent conversely
invoked the applicability of clause 3 par. 2 of the termination agreement, given that the
Respondent did not disclose the contents of his second contract with Al Fateh (cf. point I.
10 above).
10. In relation to the “nullity clause”, the Chamber deemed to be important to underline that,
in any case, the second contract with Al Fateh was only valid as from 1 July 2022, and
therefore is not relevant in relation to clause 3.1.3 of the agreement, which only covered
contracts which were valid from January to June 2022. In addition, the Chamber also
highlighted that it is undisputed that the player did disclose the value of his first contract
with Al Fateh, which was valid from January to June 2022, thereby confirming that the
player complied with the disclosure terms of the settlement agreement.
11. Regardless of said circumstance, the Chamber was also of the opinion is that the refusal
to pay the amounts stated in the termination agreement solely for not disclosing a new
contract within 10 days appears to be an excessive penalty on the player, which in
principle cannot be accepted.
12. In view of the above, the Chamber proceeded with the calculation of the amounts payable
as per the termination agreement, noting once again that the basis for the calculation is
USD 2,708,329.
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13. From said amount, the Chamber deducted, as mandated by said agreement, the value of
the amounts that the player would receive between January until June 2022. In particular,
the Chamber observed that, as per the first Al Fateh contract, the player would earn,
from January 2022 until June 2022, the amount of USD 175,000 (i.e. 25,000*6+25,000).
14. Therefore, from the basis amount, the Chamber deducted USD 175,000, leading to a final
amount of USD 2,533,329 (i.e. USD 2,708,329-175,000)
15. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the total
amount of USD 2,533,329, as agreed in the termination agreement.
16. The Chamber further decided to grant 10% interest p.a. as established in clause 3.2 of the
termination agreement), which is due as from 10 days following the expiration of the
deadline granted the first default notice sent by the player (i.e. as from 17 July 2022, cf.
point I. 4 above)).
ii. Compliance with monetary decisions
17. 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.
18. 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.
19. 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.
20. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form.
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21. 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
22. 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.
23. 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.
24. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Petros Matheus Dos Santos Araujo, is accepted.
2.
The Respondent, Al Nassr, has to pay to the Claimant, the amount of USD 2,533,329 as
outstanding remuneration plus 5% interest p.a. as from 17 July 2022 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
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1. 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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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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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