Labour Disputes
Texto da decisão
REF. FPSD-15616
Decision of the
Dispute Resolution Chamber
passed on 12 November 2024
regarding an employment-related dispute concerning the player Fabricio dos
Santos Messias
BY:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), Member
Johan VAN GAALEN (South Africa), Member
CLAIMANT:
Fabricio dos Santos Messias, Brazil
Represented by André Oliveira Teodoro Lopes
RESPONDENT:
Guangxi Pingguo Haliao Football Club, China PR
pg. 2
REF. FPSD-15616
I. Facts of the case
1.
On 1 March 2023, the Brazilian player, Fabricio dos Santos Messias (hereinafter: the Player
or the Claimant), and the Chinese club, Guangxi Pingguo Haliao (hereinafter: the Club or the
Respondent) entered into an employment contract (hereinafter: the Contract) valid as from
1 March 2023 until 31 December 2023.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia a monthly salary of USD 50,000.
3.
The Contract provided the following jurisdiction clause:
“2. If the dispute between the Parties cannot be resolved by negotiation within the abovementioned time limit, the Parties expressly waive the right to bring the dispute before the
domestic courts of any country and agree to submit the dispute to the competent dispute
resolution body of FIFA. Any party dissatisfied with a decision made by the competent dispute
resolution body of FIFA has the right to appeal to the Court of Arbitration for Sport (CAS) in
Lausanne, Switzerland.”
4.
On 1 March 2023, the Claimant, the Respondent, and a company named “TOP SPORTS
AGENCY ERIELI” (hereinafter: the Company) concluded an image rights agreement
(hereinafter, the Image Rights Agreement) valid as from 1 March 2023 until 31 December
2023.
5.
According to the Image Rights Agreement the Company “is the exclusive owner of the image
rights of Party C – the Claimant – in all over the world.”
6.
In accordance with the Image Rights Agreement, the Respondent undertook to pay the
Company a license fee of USD 211,750 payable as follows:
-
7.
USD 105,870 on 31 August 2023
USD 105,870 on 20 November 2023.
In accordance with clause 4 of the Image Rights Agreement:
“The Parties understand that the value of the Image Rights of Party C owes primarily to Party C’s
work at Party A, and thus agree that this Agreement shall automatically be terminated if the
Employment Contract between Party A and Party C terminates for whatever reason. Party A shall
pay the license fee in proportion until the termination date of the present Agreement, if Party B
has no default.”
8.
The Image Rights Agreement provided the following jurisdiction clause:
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REF. FPSD-15616
“Any dispute arising from or in connection with this Contract shall be submitted to Court of
Arbitration for Sport – CAS or Shanghai International Economic and Trade Arbitration
Commission/Shanghai International Arbitration Center for arbitration.”
9.
On 20 February 2024, the Claimant, the Respondent and the Company concluded a
supplementary agreement (hereinafter: the Supplementary Agreement) to address the
payments pending under the Image Rights Agreement license fee.
10. The Supplementary Agreement provides the following:
“Whereas, the Parties signed an Image Rights License Agreement (hereinafter the Main
Agreement) on March 1, 2023, and it’s term shall end on December 31, 2023. However, since
Party A has not paid off part of the license fee in the Main Agreement, the Parties hereby have
reached this supplementary agreement.
1. The deadline for payment of the Main Contract was extended to April 30, 2024, by which time
Party A will complete the payment of the outstanding amount of USD 211,750 (two hundred and
eleven thousand, seven hundred and fifty US dollars) under the Main Agreement. Before
February 28, Party A should pay USD 105,875. Before April 30, Party A will pay USD 105,875,
under penalty of a fine of 5% (five percent), interest of 1% per month, calculated until the date
of payment. The payment date shall be based on the payment voucher of Party A”.
11. On an unknow date before the deadline of 30 April 2024, the Respondent paid USD 77,500
toward the Company out of the USD 211,750 set out in the Supplementary Agreement.
12. By correspondence dated 25 July 2024, the Claimant put the Respondent in default of
payment of USD 148,881.98, setting a 10 days’ time limit in order to remedy the default.
13. The USD 148,881.98 claimed as outstanding is detailed as follows by the Claimant:
Overdue payables
5 % penalty
Initial amount
USD 134,250.00
USD 10,587.50
Amount after interest
USD 3,751.72
USD 292.76
TOTAL:
Full amount
USD 138,001.72
USD 10,880.26
USD 148,8881.98
II. Proceedings before FIFA
14. On 16 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
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REF. FPSD-15616
15. According to the Claimant, the Contract and the Image Rights Agreement were both part
of the employment relationship of the parties.
16. In this respect, the Claimant referred to DRC’s jurisprudence establishing that, when image
rights agreements are closely tied to employment agreements - such as through shared
terms, bonuses, and linked durations - they are treated as part of the employment
relationship.
17. The Claimant argued that the Respondent failed to meet its financial obligations, leading
to the Supplementary Agreement.
18. According to the Claimant, the Supplementary Agreement set payments of USD 211,750 in
two instalments, but only USD 77,500 was paid, leaving USD 28,375 due by 29 February
2024, and USD 105,875 overdue since 1 May 2024.
19. In addition, the Claimant claimed a 5% penalty on the full amount and a 1% monthly
interest rate for overdue payments, as per the Supplementary Agreement.
20. The requests for relief of the Claimant, were the following:
“For all the above, the Claimant requests that the DRC:
a) Deems the present claim admissible, and confirms that the Football Tribunal’s DRC has
jurisdiction over the present matter;
b) Orders the Respondent to pay the Claimant USD 28,375 (twenty-eight thousand, three
hundred and seventy-five US Dollars) as the remainder of the first instalment due, plus interests
at a rate of 1% per month as from 29 February 2024 until the date of effective payment;
c) Orders the Respondent to pay the Claimant USD 105,875 (one hundred and five thousand,
eight hundred and seventy-five US Dollars) as the second instalment due, plus interests at a rate
of 1% per month as from 01 May 2024 until the date of effective payment; and
d) Orders the Respondent to pay the Claimant USD 10,587.50 (ten thousand, five hundred and
eighty-seven US Dollars and fifty cents) as penalty for failing to pay the amounts due, plus
interests at a rate of 1% per month as from 01 May 2024 until the date of effective payment.”
b. Position of the Respondent
21. According to the Respondent, FIFA is not competent to hear this dispute since the Image
Rights Agreement is an independent agreement about the use of image rights belonging
to a third-party company.
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REF. FPSD-15616
22. In addition, the Respondent alleged the license fee is due to the Company, not the
Claimant.
23. On another note, the Respondent alleged that the parties and the Company agreed on a
valid arbitration clause in par. 3, clause 5 of the Image Rights Agreement.
24. In conclusion, the Respondent argued this dispute shall not be governed by FIFA since it is
not an employment-related dispute between a club and a player.
25. The requests for relief of the Respondent, were the following:
“In light of the foregoing, the Respondent respectfully request the honorable Football
Tribunal:
1) To admit the Answer filed by GUANGXI PINGGUO HALIAO FOOTBALL CLUB.
2) To deem the claim of the Player inadmissible and confirm that the Football Tribunal’s
DRC has no jurisdiction on the present case.
3) To dismiss in full the statement of the claim filed by the Claimant”.
c. Final comments of the Claimant
26. On 18 October 2024, and at request of the FIFA general secretariat, the Claimant submitted
additional comments concerning the admissibility issues raised by the Respondent with its
reply to the claim.
27. In doing so, the Claimant argued that the Image Rights Agreement is part of the Contract,
governed by FIFA regulations and Swiss law. Consequently, the Claimant alleged image
rights, as a subset of personality rights, are non-transferable in accordance with Swiss law.
28. In view of the foregoing, the Claimant requested the FIFA Football Tribunal to confirm its
competence to hear the case.
pg. 6
REF. FPSD-15616
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. First of all, the Dispute Resolution Chamber (hereinafter: the 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 2024 and submitted for decision
on 12 November 2024. Taking into account the wording of art. 34 of the March 2023 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.
30. The Chamber further observed that the Respondent contested the jurisdiction of FIFA’s
deciding body, arguing that the present matter does not constitute an employment-related
dispute. Therefore, the Chamber considered that it had to verify whether, for formal
reasons, it was competent to deal with this case.
31. In this context, the Chamber took note that the Claimant claimed being entitled to some
amounts which had been initially agreed with the Respondent in the Image Rights
Agreement. In particular, the Chamber emphasized that the Supplementary Agreement
merely constituted an accessory agreement to the Image Rights Agreement.
32. With regard to the Image Rights Agreement, the Chamber recalled that, in principle, FIFA is
not competent to decide on agreements concerning the licensing of image rights, as these
are not employment-related agreements and possess a commercial nature instead.
However, in accordance with the longstanding jurisprudence of the Football Tribunal, a
different conclusion may be reached if specific elements of the separate agreement
suggest that it was in fact intended to be part of the actual employment relationship.
Therefore, image rights agreements must be assessed on a case-by-case basis, taking into
account the particularities and specific circumstances of each individual dispute (cf.,
Commentary on the Regulations on the Status and Transfer of Players, 2023 ed. – pages
460-2).
33. In view of the above considerations, the Chamber proceeded to analyse the content of the
Image Rights Agreement. Following its examination, the Chamber concluded that the
Image Rights Agreement did not contain sufficient elements to indicate that it was intended
to constitute part of the employment relationship between the parties.
34. In particular, the Chamber observed that two factors were often highlighted by the
Claimant: first, the fact that the duration of the Image Rights Agreement coincided with the
term of the Contract; and second, the provision in Clause 4 of the Image Rights Agreement
which conditioned the validity of the agreement on the subsistence of the Contract. While
these factors were noted by the Chamber as relevant, they were not considered sufficient,
either individually or collectively, to establish that the Image Rights Agreement constituted
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REF. FPSD-15616
an integral part of the employment relationship with the Claimant, such that it would fall
under the jurisdiction of the Chamber.
35. As a result, the Chamber determined that the present Image Rights Agreement constituted
a genuine image rights agreement and was therefore separate from the employment
relationship.
36. In view of all the above, the Chamber concluded that it was not competent to hear the
dispute between the Claimant and the Respondent.
b. Costs
37. 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.
38. 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.
39. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-15616
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the claimant, Fabricio
dos Santos Messias.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15616
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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