Labour Disputes
Texto da decisão
REF FPSD-6220
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning the player
Everton Ferreira Guimaraes
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovakia), member
Jerome Perlemuter (France), member
CLAIMANT / COUNTER-RESPONDENT 1:
Everton Ferreira Guimaraes, Brazil
Represented by Almeida, Dias & Associados
RESPONDENT / COUNTER-CLAIMANT:
Club Arar, Saudi Arabia
Represented by Ahmad Alamir
INTERVENING PARTY / COUNTER-RESPONDENT 2:
Club Gokulam Kerala, India
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I. Facts of the case
1.
On 30 July 2021, the Brazilian player Everton Ferreira Guimaraes (hereinafter: the player
or Claimant/Counter-Respondent 1) and the Saudi club Arar (hereinafter: the club or
Respondent/Counter-Claimant) concluded an employment contract (hereinafter: the
Contract) valid as 1 August 2021 until 30 June 2023.
2.
According to article 5.1 of the Contract, the club undertook to pay the player a monthly
salary of USD 6,000, thus amounting to a total of USD 144,000 for the entire contractual
duration.
3.
Furthermore, the player was entitled to receive from the club a signing-on fee in the
amount of USD 6,000, corresponding to an advance of the last monthly salary of the first
year of contract (i.e., July 2022).
4.
In addition to the above, pursuant to article 5.4 of the Contract, the club undertook to
grant further benefits to the player, namely two round-trip flight tickets per year from
Saudi Arabia to Portugal.
5.
Pursuant to article 5.5 of the Contract, the parties stipulated that the player’s annual leave
shall be agreed in advance and shall be taken only when no matches were to be played
by the club.
6.
In continuation, article 7.13 of the Contract states that the player shall “(..)refrain from any
act, statement, publication or utterance that is harmful or may reasonably be considered to
be harmful the image, standing or reputation of the Club and/ or its partners/ sponsors".
7.
Finally, article 12.2 of the Contract provided that:
“The Parties shall have the right to terminate the contract any time during the Term without
cause upon written notice to the other Party.
The decision to terminate the Contract without cause is subject to the following rules:
a) Termination during first 6 months from the Contract Start Date CSD: The Party
terminating the agreement shall pay the other Party a Separation Payment equal to 4
months of Salary;
b) Termination after 6 months from the starting date: The Party terminating the agreement
shall pay the other Party a Separation Payment equal to a salary of two months.”
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8.
By correspondence dated 7 December 2021, the player put the club in default of payment
of USD 18,000 corresponding to the monthly salaries of September, October and
November 2021, and contextually set a time limit expiring on 22 December 2021 in order
to remedy the default.
9.
On 22 December 2021, the player sent a final warning to the club intimating the payment
of his outstanding remuneration by no later than 30 December 2021.
10. On 31 March 2022, the relevant sporting season in Saudi Arabia ended.
11. On 18 April 2022, the player placed the club in default once again, this time for the
monthly salaries of December 2021, January, February, and March 2022.
12. On 21 April 2022 the player sent a letter to the Saudi Arabia Football Federation and ProLeague accusing the club of having refused to renew the visas of the player and his family,
thus preventing them from leaving the country.
13. On 2 May 2022, the player acknowledged the payment by the club of USD 24,000 as
outstanding salaries claimed on 18 April 2022, but contextually requested a further
payment of USD 6,000 as sign-on fee due as advance of July 2022 salary.
14. On 4 May 2022, the player travelled back to Portugal.
15. On 5 May 2022, the player put the club in default for the third time and requested
payment of USD 14,676.50 as outstanding remuneration for April 2022 plus July 2022 (i.e.,
the sign-on fee) and reimbursement of the relevant flight tickets, contextually granting
the club a term of 15 days to remedy the breach, i.e., until 20 May 2022.
16. On 8 May 2022, the club sent a letter to the player, stating that the latter had failed to
comply with the obligations established under Art. 7.13 of the Contract, namely by
publishing two posts on the social media in order to request the Saudi Arabian Sports
Minister for help.
17. Furthermore, in the same letter, the club informed the player that he might be subject to
disciplinary sanctions also for having not informed the club about his intention of
travelling abroad.
18. On 13 May 2022, the player replied to the club objecting to the existence of any legal
ground for the latter’s disciplinary charges and conversely accusing the club of having
kept the player’s family as hostage in Saudi Arabia by preventing them from exiting the
country.
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19. On 23 May 2022, the player notified the club the unilateral termination of the Contract
due to the breach of the club.
20. On 29 June 2022, the player signed an employment contract with the Indian club Gokulam
Kerala (hereinafter: the Intervening Party or Counter-Respondent 2), to be valid as from 1
August 2022 until 31 May 2023.
II. Proceedings before FIFA
21. On 31 May 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
22. According to the player, the club failed to comply with its obligations since the beginning
of the labour relationship, thus forcing the player to issue several default notices during
the previous months, and eventually leading to the premature termination of the
Contract.
23. In this context, the player argued having just cause to terminate the Contract on 23 May
2022, namely due to the existence of overdue payables by the club amounting to at least
two monthly salaries in addition to the reimbursement of the flight tickets bought by the
player to travel back to his country fo residence, Portugal.
24. Furthermore, the player lamented about the misconduct of the club who allegedly
blackmailed and ignored the player in order to make him waive his outstanding
remuneration.
25. In particular, player referred of having been kept hostage by the club while attempting to
travel abroad with his family, namely by being refused the renewal and restitution of the
relevant VISA permits.
26. The requests for relief of the Claimant, accordingly, were the following:
•
•
•
USD 12,000 as outstanding salaries (April 2022 and July 2022-sign on fee) plus 5% from
the relevant due dates
USD 2,676.50 as reimbursement of flight tickets ex Article 5.4 of the Contract
USD 84,000 as compensation for breach of contract by the club, corresponding to the
residual value of the Contract.
b. Counterclaim by the club
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27. In its reply, the club accused the player of having terminated the Contract without just
cause, namely because only one month salary was due at the moment of the termination.
28. In this context, the club argued that the sign-on fee claimed by the player as outstanding
had in fact already been paid by the same club on 2 September 2021.
29. Furthermore, the club argued that no flight tickets should be reimbursed in the case at
stake as the player travelled to Brazil instead of Portugal, which was the only country
indicated in the Contract.
30. In continuation, the club stated that the player (1) publicly put the club in bad light by
posting false accusations on Twitter and (2) travelled abroad without informing the
Respondent first, thus in total disregard of the relevant contractual provisions.
31. As a consequence, the club requested that the player shall be deemed as the party in
breach of the contract, hence he shall pay compensation to the club.
32. In this respect, the club invoked the application of article 12.2 of the Contract, which
foresees a compensatory sum equal to the salary of two months, i.e., USD 12,000.
33. The requests for relief of the club, were accordingly to reject the player’ s claim in its
entirety and to condemn the player to pay the club a compensation of USD 12,000 for the
breach of the contract.
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c. Reply of the player to the counterclaim
34. In his reply to the counterclaim, the player accused the club of having forged some of the
payment receipts submitted during the proceeding in order to deceive the relevant
judging body and escape its contractual liabilities, namely the payment of the due
compensation.
35. In this respect, the player highlighted that the payment slips received by the player at the
time in which they were effectively paid by the club did not contain any handwritten text,
whereas the receipts of payment submitted by the club during the proceeding in front of
FIFA contain handwritten indications which however go into contradiction with the dates
indicated by the same club in its submission.
36. In particular, the player pointed out that “by comparing what is stated in Par. 9 of the Answer
with the handwritten information on Annex 7 of the Answer, one can easily verify that, on one
hand, the Club states having proceeded with the payment of the monthly salary of October on
30 November 2021, but on the other hand, it has effectively proceeded with such payment on
14 January 2022.”
37. In this context, the player argued that what produced by the club as proof of payment of
the sign-on fee allegedly dated 2 September 2021, is in reality just a duplicate of the
payment-slip received for the salary of November 2021, and in fact the said date was
initially indicated in the document submitted by the club, but it was subsequently blacked
out by the latter.
d. Position of the Intervening Party
38. In its submission, the Intervening Party merely refused to have had any influence in the
player’s decision to terminate the Contract prematurely on 23 May 2022.
39. In particular, the Intervening Party argued that the player lodged a claim against the club
on 31 May 2022 whereas the employment contract with the Intervening Party has been
signed only at a later stage, i.e., on 29 June 2022.
40. Accordingly, the Intervening Party requested to be excluded from any form of
responsibility in case of breach of the Contract by the player.
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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 31 May 2022 and submitted
for decision on . 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, with the involvement of an Indian 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 31 May 2022, the March 2022
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
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether the player had
just cause to terminate the Contract prematurely on 23 May 2022.
7.
In this context, the Chamber deemed it appropriate to stress that only a breach or
misconduct which is of a certain severity justifies the termination of a contract. In other
words, only when there are objective criteria which do not reasonably permit to expect
the continuation of the employment relationship between the parties, a contract may be
terminated prematurely. Hence, if there are more lenient measures which can be taken
in order to ensure the fulfilment of the contractual duties by the counterparty, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
8.
In this context, having the player terminated the Contract on the basis of alleged overdue
payables, the Chamber acknowledged that it its task was to verify the existence and
amount (if any) of outstanding sums due by the club at the date of termination.
9.
In this respect, the Chamber observed that it remained undisputed by the parties that at
the time of the termination the salary due to the player in connection with the month of
April 2022 was outstanding.
10. Accordingly, the Chamber decided to turn its attention to the sign-on fee alleged as
outstanding by the player.
11. In this regard, the Chamber noted that on the contrary the club argued having already
paid the abovementioned sum in November 2021 and produced both a digital and a hard
copy of the relevant payment slip to the DRC.
12. In this respect, the Chamber deemed as contrary to the common logic the fact that after
having been put in default by the player on 5 May 2022, the club did not object to the
payment of the mentioned sign-on fee in occasion of its reply dated 8 May 2022.
13. Furthermore, the members of the Chamber were unanimously agreeing that it appears
evident the contradiction in which the club fell by first adducing that the salary of October
2021 had been paid on 30 November 2021 while subsequently submitting a payment
receipt indicating 14 January 2022.
14. Thirdly, the Chamber highlighted that the club has failed to explain the reason why in the
payment receipt submitted by the latter allegedly proving the payment of the sign on fee
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due as advance payment of July 2022 salary, “November” was instead indicated as month
of reference, and why this has been blacked out by the Respondent/Counter-Claimant.
15. With all the above in mind, the Chamber was of the opinion that the payment slip
submitted as Annexe 4 to the counterclaim is of no credibility to demonstrate the position
put forward by the Respondent/Counter-Claimant, which is accordingly rejected.
16. As a consequence, the Chamber concluded that at the time of termination, the sign on
fee corresponding to the salary of July 2022 had remained outstanding.
17. In continuation, the Chamber acknowledged that the player bought a flight ticket to travel
from Arar (Saudi Arabia) to Lisbon (Portugal) on 4 May 2022.
18. In this respect, the Chamber observed that pursuant to article 5.4 of the Contract, the
club undertook to provide the player with two flight tickets per year, namely for the route
Saudi Arabia – Portugal.
19. Accordingly, the Chamber assessed that since the club had not provided the player with
any flight ticket during the year 2022, the payment of the flight ticket dated 4 May 2022
resulted part of its financial obligations towards the player and it remains outstanding to
the current date.
20. As a consequence of the above conclusions, and upon analysis of the documentation at
its disposal, the Chamber established that since the beginning of the employment
relationship the club maintained an abusive conduct against the interest of the player,
which culminated in the club’s failure to comply with its financial obligations and deprived
the player of any reasonable expectation that the said relationship could continue in a
stable manner.
21. Accordingly, the Chamber determined that on 23 May 2022, the player had just cause to
terminate the Contract due to overdue payables and because of the abusive conduct of
the club.
ii. Consequences
22. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
23. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 2 salaries
under the contract, amounting to USD 12,000.
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24. Furthermore, the Chamber noted that at the time of the termination it resulted
outstanding also the reimbursement of the flight ticket bought by the player to travel on
4 May 2022, namely for the total amount of EUR 2,525, which was however converted by
the player to USD 2,676.50 in his default letter dated 5 May 2022.
25. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay to the player the amounts
which were outstanding under the contract at the moment of the termination, i.e., USD
14,676.50.
26. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest at the rate
of 5% p.a. on the outstanding salaries as from the relevant due dates until the date of
effective payment.
27. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including
in particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
28. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of
which the parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract.
29. In In this regard, the Chamber took note of the wording of article 12.2 of the contract,
which established that “(..) Termination after 6 months from the starting date: The Party
terminating the agreement shall pay the other Party a Separation Payment equal to a salary
of two months.”.
30. After analysing the content of the aforementioned clause, the Chamber concluded that it
did not fulfil the criteria of proportionality, in line with the longstanding jurisprudence of
the Football Tribunal, and therefore could not be taken into account for establishing the
amount of compensation payable to the Claimant. In particular, the Chamber noted that
the stipulated compensatory amount appears excessively inferior to the effective residual
value of the contract.
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31. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
32. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 84,000 (i.e., the residual value of the contract) serves
as the basis for the determination of the amount of compensation for breach of contract.
33. In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
34. Indeed, the player found employment with the Intervening Party. In accordance with the
pertinent employment contract, the player was entitled to approximately USD 3,000 per
month. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of USD 30,000, that is, ten times 3,000.
35. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the club, and
therefore decided that the player shall receive additional compensation.
36. In this respect, the DRC decided to award the amount of additional compensation of USD
18,000, i.e., three times the monthly remuneration of the player.
37. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
72,000 to the player (i.e., USD 84,000 minus USD 30,000 plus USD 18,000), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
38. Lastly, the DRC noted that the player did not request interest on the compensation for
breach of contract, and therefore in line with the principle ne ultra petita no amount would
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apply in this regard. The same reasoning applied mutatis mutandis to the reimbursement
of the flight tickets.
iii. Compliance with monetary decisions
39. 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.
40. 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.
41. Therefore, bearing in mind the above, the DRC decided that the Respondent/CounterClaimant must pay the full amount due (including all applicable interest) to the
Claimant/Counter-Respondent 1 within 45 days of notification of the decision, failing
which, at the request of the Claimant/Counter-Respondent 1, 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/Counter-Claimant in accordance with art. 24 par. 2, 4, and 7 of the
Regulations.
42. The Respondent/Counter-Claimant shall make full payment (including all applicable
interest) to the bank account provided by the Claimant/Counter-Respondent 1 in the Bank
Account Registration Form, which is attached to the present decision.
43. 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
44. 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.
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45. 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.
46. 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/Counter-Respondent 1, Everton Ferreira Guimaraes, is
accepted.
2.
The Respondent/Counter-Claimant, Arar, has to pay to the Claimant, the following
amount:
USD 6,000 as outstanding amount plus 5% interest p.a. as from 15 August 2021 until
the date of effective payment;
USD 6,000 as outstanding remuneration plus interest p.a. as from 1 May 2022 until
the date of effective payment;
USD 2,676.50 as reimbursement of flight expenses;
USD 72,000 as compensation for breach of contract without just cause.
3.
Any further claims of the Claimant/Counter-Respondent 1 are rejected.
4.
The counterclaim of the Respondent/Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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.
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7. The consequences shall only be enforced at the request of the Claimant/CounterRespondent 1 in accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on
the Status and Transfer of Players.
8. 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).
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