Labour Disputes
Texto da decisão
REF. FPSD-13984
Decision of the
Dispute Resolution Chamber
passed on 29 August 2024
regarding an employment-related dispute concerning the player Alessandro
Ferreira Leonardo
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Michele COLUCCI (Italy), Member
Dana MOHAMED AL-NOAIMI (Qatar), Member
CLAIMANT:
Player Alessandro Ferreira Leonardo, Hong Kong (China PR)
Represented by Bichara e Motta
RESPONDENT:
Guangxi Pingguo Haliao Football Club, China PR
Represented by Daniel Muñoz Sirera
pg. 2
REF. FPSD-13984
I. Facts of the case
Parties
1.
2.
The relevant parties to this dispute are:
•
the Chinese player Alessandro Ferreira Leonardo (hereinafter: the Player or the
Claimant) born on 10 March 1987; and
•
the club Guangxi Pingguo Haliao Football Club (hereinafter: the Club or the
Respondent), affiliated to the Chinese Football Association (CFA).
The Player and the Club are hereinafter jointly referred to as the Parties.
Parties’ employment relationship
3.
On 2 February 2022, the Parties entered into an employment contract valid from 1
February 2022 until 31 December 2023 (hereinafter: the Contract).
4.
Pursuant to article 3 of the Contract, the Club undertook to pay to the Player, inter alia, the
following amounts:
5.
•
Chinese Yuan (CNY) 768,000 net (i.e., CNY 1,048,163.60 gross) from 1 February
2022 until 31 December 2022, payable in monthly instalments of RMB 69,818.19
net (CNY 95,287.60 gross);
•
CNY 895,999 net (i.e., CNY 1,249,236.48 gross) from 1 January 2023 until 31
December 2023, payable in monthly instalments of RMB 74,666.67 net (CNY
104,103.04 gross); and
•
CNY 12,800 net (CNY 13,433.33 gross) as winning bonus per game.
The same article 3 reads, inter alia, as follows:
“[...] A house and a round-trip flight ticket for the whole family including quarantinerelated expenses (3 family members, from Chinese mainland to Brazil) should be
included.
2. The annual salaries shall be paid to Party B in equal monthly installments. [The Club]
shall pay the salary (choose one of the following two options) for the □ last month / □
current month on the 20th day of every month. In the event the above-mentioned
payment due date falls on a statutory holiday, the payment due date shall be extended
to the first working day following the holiday.
pg. 3
REF. FPSD-13984
3. In addition to the salary stipulated in the paragraph 1 of this Article, [the Club] has
the right to determine whether to pay bonuses to [the Player] depending on the
circumstance. The amount as well as the payment method of the bonuses shall be
determined according to the relevant bonus distribution plan of [the Club]. [The Club]
shall have the right to make the final decision on the amount and payment method of
the bonuses. At the same time, the total amount of bonuses (before tax) paid by [the
Club] shall not exceed the maximum amount of bonus stipulated by regulations of
Chinese Football Association (‘CFA’) and/or the relevant League Management Council
(hereinafter referred to as: ‘LMC’).
[...]
5. Before-tax amounts under this Contract refer to amounts including all taxes and fees
that [the Player] shall pay arising from the income obtained from [the Club]. Before [the
Club] pays [the Player] each instalment of the amounts agreed under this Contract, [the
Club] shall be responsible for the withholding and payment of income tax due from [the
Player] in Mainland China from the before-tax amount payable to [the Player] in
accordance with the relevant laws and regulations of the People’s Republic of China
(hereinafter referred to as ‘China’). Any taxes, expenses, levies, etc. that might be
originated in any country or region outside of Mainland China shall be exclusively
declared, paid and borne by [the Player].
6. The Parties understand and agree that the after-tax amounts under this Contract refer
to amounts after deducting the taxes to be paid in Mainland China and such amounts
are stipulated just for reference. The after-lax amount that Party B actually receives shall
be the amount net of taxes to be paid in Mainland China”.
6.
Article 4 of the Contract reads, inter alia, as follows:
“5. [The Club] shall provide [the Player] with ( ) round-trip economy class flight tickets
and ( ) round-trip business class flight tickets from China to Brazil and Brazil to China to
[the Player] for each contractual year (every 12 months from the signing date of this
Contract constitutes a contractual year). The above-mentioned flight tickets are provided
on a contractual year basis only and thus will not be cumulative upon the entire duration
of this Contract (i.e. no additional tickets will be provided in the new contractual year in
the event [the Player] does not use all of the airline tickets provided during the previous
contractual year, and the unused tickets shall be deemed automatically void, nor shall
[the Player] be compensated in any form as a substitute compensation for the unused
airline tickets.). The Parties agree that the flight tickets can only be used by [the Player],
[the Player]’s spouse and children”.
7.
It must be noted that the abovementioned article 4 is incomplete in that it does not refer
to the number of tickets that should be paid by the Club to the Player.
pg. 4
REF. FPSD-13984
8.
Article 10 of the Contract reads as follows, quoted verbatim:
“1. Any disputes arising from the fulfilment of, or in connection with this Contract shall
be settled, on a first attempt, through friendly negotiation between the Parties within the
ten (10) days after the dispute arises.
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.
3. This Contract shall be governed by the FIFA Regulations”.
Parties’ exchanges and the termination of the Contract
9.
On 21 July 2022, the Player and the Club’s agent, Mr Shen Bo (hereinafter: Mr Bo),
exchanged messages via the electronic application WeChat. In short, Mr Bo stated that the
Club did not intend to register the Player for the following season.
10. On 22 July 2022, the Player put the Club in default of overdue salaries for May and June
2023 and bonuses, setting a deadline of 15 days to remedy the breach. The Player also
asked to be reinstated in the Club’s first team.
11. On 9 August 2022, the Player notified the Club of the termination of the Contract due to
the overdue payables, deregistration, and separate training.
12. On 15 August 2022, the Player flew from Hong Kong (China PR) to Rio de Janeiro (Brazil),
with stopovers in Istanbul (Türkiye) and Sao Paulo (Brazil). The tickets cost Hong Kong
Dollar (HKD) 35,590 and were purchased by the Player.
13. On 18 August 2022, the Club paid CNY 209,454.54 to the Player.
14. On 7 September 2022, the Club replied to the Player’s letters of 22 July and 9 August 2022
and disputed the reasons invoked for termination. On this occasion, the Club disputed the
quantum claimed by the Player as outstanding remuneration and argued that it was the
Player who left the team without prior notice. The Club also requested that the Player
return to China and resume his services by 10 September 2022.
15. On 9 September 2022, the Player insisted that the Contract had been terminated with just
cause and stated, inter alia, that he would not rejoin the Club.
pg. 5
REF. FPSD-13984
16. On 13 September 2022, the Club also reiterated its position regarding the unlawful
termination, stating that it “is always with good faith to try to settle the current situation”. The
Club once again asked the Player to return to the team as soon as possible.
17. On 16 September 2022, the Player sent a settlement proposal to the Club. He requested
that the Club pay him a total of CNY 1,320,707.94, corresponding to outstanding salaries,
bonuses, and compensation for breach of contract.
18. On 19 September 2022, the Club rejected the Player’s proposal and warned him of the
consequences of his breach of contract.The Club finally asked the Player “to return to fulfil
his contractual obligation instead of starting a fight and bearing a negative consequence”.
Original claim filed by the Player before the FIFA Dispute Resolution Chamber (DRC)
19. On 22 September 2022, the Player submitted a claim for breach of contract to FIFA, which
was filed under ref. no. FPSD-7588.
20. On 26 September 2022, the FIFA general secretariat acknowledged receipt of the Player’s
claim and informed him that the Football Tribunal did not appear to have jurisdiction to
deal with the matter as the dispute appeared to have a national dimension (i.e., the Parties
had the same nationality) (cf., art. 22, par. 1, lit. b) of the Regulations on the Status and
Transfer of Players – RSTP).
21. On 10 October 2022, the Player argued that the Parties to the case belonged to different
associations and were of different sporting nationalities (i.e., Hong Kong as opposed to
China PR). The Player also recalled the wording of the jurisdiction clause contained in the
Contract and concluded that the Parties had also agreed to refer any disputes to FIFA. As a
result, he requested that the Football Tribunal make a formal decision on the matter.
22. On 13 October 2022, the FIFA general secretariat informed the Player that the case would
be submitted to the Chairperson of the DRC for an expedited decision (cf., art. 19 of the
Procedural Governing the Football Tribunal; hereinafter: the Procedural Rules).
23. On 21 October 2022, the DRC issued a preliminary decision confirming that the Football
Tribunal did not have jurisdiction over the Player’s claim due to the lack of an international
dimension (hereinafter: the Preliminary Decision).
Appeal against the Preliminary Decision
24. On 11 November 2022, the Player lodged an appeal before the Court of Arbitration for
Sport (CAS) against the Club and FIFA concerning the Preliminary Decision (hereinafter: the
CAS Appeal).
25. The CAS Appeal was referred to a Sole Arbitrator.
pg. 6
REF. FPSD-13984
26. By Award dated 6 March 2024, CAS partially upheld the CAS Appeal (hereinafter: the CAS
Award) to set aside the Preliminary Decision, ruling as follows:
“1. The appeal filed on 11 November 2022 by [the Player] against the decision rendered
on 22 October 2022 by the Single Judge of the FIFA Dispute Resolution Chamber is upheld.
2. The decision rendered on 22 October 2022 by the Single Judge of the FIFA Dispute
Resolution Chamber is set aside.
3. The FIFA Football Tribunal was competent to hear the claim of [the Player] against
[the Club].
4. The case is referred back to the FIFA Football Tribunal for a decision on the merits.
5. The costs of the arbitration, to be determined and served to the Parties by the CAS
Court Office, shall be borne in equal parts by [the Club] and Fédération Internationale
de Football Association (FIFA).
6. [The Club] and Fédération Internationale de Football Association (FIFA) are ordered
to pay [the Player] a total amount of CHF 3,000 (three thousand Swiss francs) each as
contribution towards his legal fees and other expenses incurred in connection with these
arbitration proceedings.
7. All further or different motions or prayers for relief are dismissed”.
CAS Award
27. The reasoning of the Sole Arbitrator embodied in the CAS Award can be summarized as
follows:
Necessary interpretation of article 22, par. 1, lit. b) of the RSTP
•
The Sole Arbitrator considered that neither the FIFA regulations nor the FIFA
Commentary on the RSTP contain a binding definition of the term
“international dimension”, which must accordingly be interpreted in line with
the applicable methods of interpretation;
•
With regard to the word “dimension”, the Sole Arbitrator stated that “it most
likely that the term was used in a more colloquial manner, being a synonym to
terms like ‘aspect’ or ‘element’”, therefore it should be interpreted to have a
“broad meaning, to the effect that the legal conflict must have an international
aspect of any kind to contain an international dimension”;
pg. 7
REF. FPSD-13984
•
The Sole Arbitrator pointed out that the word “international” played the
decisive role for interpretation. The Sole Arbitration stated that international
“does not refer exclusively to situations in which entities from different states are
affected” and would require further interpretation.
“Correct interpretation” of the term international dimension
Analysis of existing decisions
•
The Sole Arbitrator stated that FIFA’s jurisprudence on cases of shared
nationality was not entirely consistent and, in any event, does not bear “any
considerable coercive value” and should be put in question;
•
In addition, the Sole Arbitrator also stressed that the CAS jurisprudence was
also of no assistance to the analysis, insofar as there were two contrasting
awards dealing with the relevant situation: one assuming jurisdiction and the
other rejecting it. In addition, the Sole Arbitrator considered that these
awards were not supported by “substantial arguments” and therefore could
not be considered as persuasive jurisprudence.
Literal interpretation
•
The Sole Arbitrator outlined that the wording of article 22, par. 1, lit. b) of the
RSTP is not unequivocally clear.
•
In case FIFA wanted to support a narrower interpretation (e.g., linked to the
nationality of the parties concerned) the Sole Arbitrator considered that it
could have used “different nationality” or similar foundations.
•
Therefore, the Sole Arbitrator argued held that the provision “argues for a
wide interpretation according to which in the present case the differing sporting
nationality of the Player would suffice to create an international dimension”.
Systematic interpretation
•
The Sole Arbitrator referred to the definition no. 21 of the RSTP (“international
transfer”) and pointed out that it refers to the movement between different
member associations and not the necessarily different nationalities;
•
The Sole Arbitrator also explored the wording of each lit. of art. 22 of the
RSTP, which he used to support his view that lit. b) should be applicable to
parties affiliated to different associations;
•
While considering a wider regulatory context, the Sole Arbitrator recalled
pg. 8
REF. FPSD-13984
FIFA’s commitment to the equal treatment of all member associations. He
highlighted, for example, that the Hong Kong Football Association (HKFA) is
allowed to participate in FIFA competitions and individual matches, as well
as pointed out that the FIFA Regulations Governing International Matches
defines an international match as “a match between two teams belonging to
different members”;
•
Further, the Sole Arbitrator analysed the concept of sporting nationality and
contended that it cannot be used as a pillar for the narrowed interpretation.
Furthermore, “the degree or nature of the affiliation between a player and the
member association he represents do not have any substantial nexus to the
question whether FIFA should or should not be competent to have jurisdiction on
legal conflicts in which the player is involved”;
•
The Sole Arbitrator then concluded that the systematic interpretation of the
provision “clearly and strongly supports the interpretation that the term
‘international dimension’ shall be understood to include cases of shared
nationality when one party, either by legal membership or sporting nationality,
is affiliated to another member association than its counterparty”.
The teleologic interpretation
•
The Sole Arbitrator stated that he was not provided with any documentation
of FIFA that could demonstrate the legislator’s intention when the rule was
created. Furthermore, he considered that the Commentary on the RSTP
could not fulfil this lacuna because it was “published by FIFA and likely also
authored by FIFA employees, none of them expressed its opinion or interpretation
in the role of the law-maker, but rather within their respective judicial and
administrative duties within the application of the given law”;
•
In light of the above, the Sole Arbitrator concluded that the teleologic
interpretation does not support either way of interpretation.
Residual considerations
•
The Sole Arbitration found it contradictory whether the Player was in fact
registered as a Chinese for the purposes of the China League One. He
considered that there was not sufficient evidence produced by any of the
parties confirming his registration.
•
The Sole Arbitrator also denied having any intention to alter or make law. In
his view, the CAS Award was solely a “diligent interpretation” of the law in line
with the applicable interpretation models and did not reflect his personal
opinion on how the law should be but rather how it is and should be
pg. 9
REF. FPSD-13984
interpreted.
28. Finally, the Sole Arbitrator concluded the following, quoted verbatim:
“164. The Sole Arbitrator concludes that, while various of the applied interpretation
methods did not yield a result which would argue for one of the possible interpretations,
mainly and also strongly the systematic interpretation of Article 22.1 lit. b) of the FIFA
RSTP argues for an interpretation of the term “international dimension” to the effect that
it is sufficient, if the parties of the case belong to different member associations in shared
nationality cases.
165. FIFA was therefore competent to hear the Player’s claim against the Club.
166. Accordingly, the question whether CAS has jurisprudence to adjudicate the case on
the merits due to the forum clause contained in Article 11 of the Employment Contract
has become moot”.
29. In addition, the Sole Arbitrator decided “that the case shall be referred back to the FIFA
Football Tribunal for a decision on the merits”.
II. Current proceedings before FIFA
30. On 11 March 2024, he FIFA general secretariat acknowledged the contents of the CAS
Award and informed the Parties that these proceedings would take place as instructed
therein. Contextually, the FIFA general secretariat equally informed the Parties that the new
file was registered under the reference FPSD-13984.
31. On 25 March 2024, the FIFA general secretariat invited the Club to file its position on the
Player’s claim – as submitted on 22 September 2022 – which it timely did on 24 April 2024
following a deadline extension.
32. A summary of the Parties’ position is detailed in continuation, encompassing the original
allegations of the Player originally in FPSD-7588 and the Club’s reply within these
proceedings (FPSD-13984).
a. Player’s claim
33. The Player referred to the various exchanges of correspondence between the Parties and
argued that he had terminated the Contract with just cause in accordance with art. 14bis
of the RSTP.
34. Consequently, he requested that the following amounts be awarded:
•
CNY 38,400 net as match bonuses “in connection with the Club’s wins in friendly
pg. 10
REF. FPSD-13984
matches against Shaanxi Chang’an Athletic Football Club, Sichuan Jiuniu Football Club
and Zibo Cuju Football Club, played on 9 April 2022, 22 May 2022 and 13 June 2022,
respectively”;
•
CNY 37,217 net as reimbursement of flight tickets; and
•
CNY 1,245,090.94 as compensation for breach of contract in accordance with art.
17 of the RSTP.
35. The Player also claimed to be entitled to 5% interest p.a. on the abovementioned amounts
from the respective due dates until the date of effective payment. Likewise, he requested
that sporting sanctions be imposed on the Club.
36. The Player’s request for relief were as follows, quoted verbatim:
“66. In light of all the above, the Player respectfully requests the FIFA DRC to:
a) Enforce its jurisdiction over the present dispute;
b) Declare that the Employment Contract between the Parties was lawfully terminated
by the Player with just cause on 9 August 2022;
c) Hold the Club liable for breaching articles 12bis and 14bis of the FIFA RSTP;
d) Order the Club to pay the Player the amount of RMB 38,400.00 (thirty-eight
thousand, four hundred Chinese Yuan) net, as outstanding victory bonuses;
e) Order the Club to pay the Player an amount equivalent to HKD 37,217.00 (thirtyseven thousand, two hundred seventeen Hong Kong Dollars) net, as
reimbursement of flight tickets;
f) Order the Club to pay the Player outstanding remuneration and compensation for
the termination of the Employment Contract in accordance with article 17, par. 1,
of the FIFA RSTP, as specified in Sections IV.A), IV.C) and IV.D) above, including
Additional Compensation;
g) Order the payment of legal interest at a rate of 5% (five per cent) per annum over
the amounts due by the Club to the Player, counting from the day after each of
them became due until the date of effective payment;
h) Impose the Club sanctions under articles 12bis and 17, par. 4, of the FIFA RSTP;
and
i) Order the Club to bear all administrative and procedural costs related to this
pg. 11
REF. FPSD-13984
procedure (if any)”.
b. Club’s reply
Jurisdiction
37. Regardless of the findings of the CAS Award, the Club insisted that this dispute only had a
national dimension in that (i) the Player is Chinese; and (ii) he was registered as a national
within the CFA. The Club added that, as new evidence had been submitted confirming the
Player’s registration, there was no need to interpret the meaning of “international
dimension” as defined in the CAS Award.
38. Consequently, the Club reiterated that the Football Tribunal did not have jurisdiction to
hear the Player’s claim.
Substance
39. As to the substance, the Club challenged the Player’s entitlement to the amounts claimed.
In particular, it made the following comments in this regard:
•
Salaries: the Club argued that its financial capabilities were affected by the
COVID-19 pandemic, but stated that the salaries from May to August 2022 were
paid to the Player as follows:
CONCEPT
Salary for May
Salary for June
Salary for July
Salary until 9 August 2022
AMOUNT
RMB 69,618.18
RMB 69,618.18
RMB 69,618.18
RMB 69,618.18
DATE OF PAYMENT
18 August 2022
18 August 2022
18 August 2022
26 September 2022
The Club therefore concluded that there were no outstanding salaries.
•
Match bonuses: the Player did not meet his burden of proof as he did not provide
evidence of that the matches took place and that he participated in them (cf., art.
13, par. 5 of the Procedural Rules).
Alternatively, the Club also referred to Article 3 of the Contract and stated that
the payment of the bonuses was at the discretion of the Club.
•
Reimbursement of flight tickets: the Club contended that the Contract only
provided for its obligation to pay for flight tickets from Mainland China to Brazil.
Therefore, “since the Player did not take any tickets from mainland China to Brazil,
the Club is not obliged to pay him any tickets”.
pg. 12
REF. FPSD-13984
Alternatively, the Club pointed out to the fact that the Player purchased business
class tickets of his own will, as there was no mention of it in the Contract.
Therefore, the Club argued that any liability should be limited to the price of
economy class tickets.
•
Compensation for breach of contract: the amount claimed by the Player was
excessive. The residual value of the Contract amounted to CNY 1,224,820.76 (i.e.,
CNY 328,820.72 + CNY 896,000.04) instead of the CNY 1,314,909.12 requested.
Furthermore, such compensation should be mitigated considering the Player’s
future employment(s) with Madureira Esporte Clube (RJ) and any other clubs.
The Club has asked FIFA to request the Player to provide copies of any/all
contracts signed after the termination of the Contract.
40. The Club also added that no sporting sanctions should be imposed, and that the Player
would have to bear all costs arising from the proceedings.
41. The Club’s requests for relief were as follows, quoted verbatim:
“115. In view of all of the above legal and factual arguments, we hereby request this
Honorable Dispute Resolution Chamber for the following reliefs:
1. To admit the Answer filed by [the Club].
2.To decide that FIFA does not have jurisdiction over the matter and therefore fully
dismiss the claim filed by [the Player].
As an alternative to point 2
23. To decide that [the Player] is not entitled receive any outstanding salaries from
[the Club].
24.To decide that [the Player] is not entitled to receive any match bonuses from [the
Club].
5.To decide that [the Player] is not entitled to receive any amount corresponding to
flight tickets.
6. To decide that the residual value under the Employment Contract amounts to RMB
1.224.820,76.
7. To decide that the compensation [the Club] has to pay to [the Player] should be
mitigated as per the new employment contract with Madureira EC and any other
pg. 13
REF. FPSD-13984
subsequent club(s) in accordance with Article 17 para. 1(ii) and article 337 of the SCO.
8.To decide that no sporting sanctions can be imposed on [the Club]”.
c. Player’s additional comments
42. On 6 May 2024, the FIFA general secretariat, inter alia, requested the Player to confirm his
employment situation from the termination of the Contract until that date, and to provide
a copy of any relevant employment contract(s) and/or private contract(s) along with a
translation into English, French or Spanish, if needed be.
43. On 10 May 2024, the Player informed that he had signed a new contract with the Brazilian
club Madureira Esporte Clube (RJ) on 19 January 2023, with a term from that date until 19
April 2023. According to the copy of the contract provided by the Player, he was entitled to
a monthly salary of BRL 1,350.
44. On 21 June 2024 and at the request of the FIFA general secretariat, the Player also
submitted his comments on the evidence of payments provided by the Club. According to
the Player, quoted verbatim:
“Without prejudice, the Claimant confirms having received the amounts referred to by
the Respondent […].
To this effect, these amounts shall therefore be considered as an amortization to the
outstanding remuneration claimed in the present case. This amortization does not affect
the Player’s just cause to terminate the employment contract between the parties”.
pg. 14
REF. FPSD-13984
III. Considerations of the Dispute Resolution Chamber
a. Preliminary remarks
45. Having carefully examined the CAS Award, the DRC came to the conclusion that the
decision touches upon, and calls into question, certain fundamental elements of the RSTP
concerning the jurisdiction of the Football Tribunal pursuant to art. 22, par. 1, lit. b) and the
related well-established jurisprudence of this Chamber. The DRC therefore felt compelled,
on an exceptional basis, to make some introductory general remarks (i.e., remarks that are
relevant in general to the application of the RSTP, as opposed to specifically about the
present dispute) concerning these fundamental elements of the FIFA regulatory system.
i. The jurisdiction of FIFA in general
46. Article 22 of the RSTP is the backbone of FIFA’s dispute resolution system, and its objectives
are well known and accepted within the football stakeholders. It is predominantly aimed at
providing effective tools for settling contractual and regulatory disputes within the football
community, provided that the nature of the dispute falls within the exhaustive list set out
therein.
47. With regard to employment-related matters involving players, FIFA only assumes
jurisdiction over disputes with an international dimension.
48. Even if argued, quod non, that the wording of the provision (and, therefore, its literal
interpretation) is not crystal clear, the teleological and historical interpretation leaves no
doubt that said international dimension is confirmed unless the parties share the same
nationality, as established, for example, by the following elements:
1
•
the FIFA Commentary on the RSTP – Edition 2023 (hereinafter: the FIFA
Commentary) which provides, inter alia, as follows: “a dispute is deemed to have
an international dimension whenever the player concerned is of a different nationality
from the country where the member association that holds their registration is based,
or, in other words, whenever the player is a foreigner in the country of the member
association where they are registered” 1;
•
the consistent jurisprudence of the Football Tribunal 2; and
•
the jurisprudence of the CAS 3.
Commentary on the RSTP, p. 444-6.
See, for example, FIFA decisions in FPSD- 5705 (decision of 2 June 2022), FPSD-3266 (decision of 3 March 2022),
FPSD-3261 (decision of 3 March 2022), FPSD-3268 (decision of 3 March 2022), FPSD-8366 (decision of 7 March 2022),
FPSD-10562 (decision of 27 July 2023).
2
3
CAS 2009/A/1996 Omer Riza v. Trabzonspor Kulübü Dernegi & TFF, par. 39; CAS 2016/A/4441 Jhonny van Beukering
pg. 15
REF. FPSD-13984
49. The DRC also found it worth clarifying that art. 22, lit. a) of the RSTP extends FIFA’s
jurisdiction in such way that disputes between players and clubs regarding the
maintenance of contractual stability always fall within FIFA’s competence where they
concern a request for an International Transfer Certificate (ITC). In other words, within the
scope of the cited provision, it is the issuance of the ITC and the fact that the new club is
affiliated to another member association that creates the international dimension. This is
particularly important in that the potential new club could be held jointly and severally
liable for the payment of compensation in case a breach of contract without just cause (cf.,
art. 17 par. 4 of the RSTP). Likewise, sporting sanctions may be imposed on the new club in
case of inducement.
50. Nevertheless, if there is no connection between the contractual dispute and the ITC
request, the original contractual dispute does not have an international dimension and the
competent national authority has jurisdiction to deal with it.
51. It follows from the above that the first step in determining whether a dispute has an
international dimension is to analyse whether it falls within the scope of article 22, lit. a) of
the RSTP – i.e., whether it involves request for an ITC. If the answer is in the affirmative, the
dispute has an international element and can therefore be brought before the Football
Tribunal.
52. If, however, the dispute is not linked to the issuance of an ITC, the international dimension
shall be entertained while considering the nationality of the parties involved. The DRC’s
case law also confirms that this assessment must be made from the perspective of public
international law, i.e., taking into account the “formal” nationality of the parties, in
particular, the possession of an international passport.
ii. The jurisdiction of FIFA over employment-related disputes of an
international dimension
53. The Chamber stressed that the rule is clear: if the parties are of the same nationality (even
if they have a second one), the international dimension is only established if the player is
able to prove that they were considered a foreigner in the country concerned4.
54. In other words, if the player is a national of the country in which the club is based, the
dispute is considered to be of a purely national nature and therefore does not fall
within the jurisdiction of the Football Tribunal. The reason for this is inherent to the
mens legis of the rule: the protection of the parties’ access to justice and fair proceedings –
v. Pelita Bandung Raya & FIFA, par. 8.21 – 8.22; CAS 2016/A/4846 Amazulu FC v. Jacob Pinehas Nambandi & FIFA &
National Soccer League South Africa, par. 143.
4
See, for example, CAS 2014/A/3682 Lamontville Golden Arrows Football FC v. Kurt Kowarz & Fédération
Internationale de Football Association (FIFA).
pg. 16
REF. FPSD-13984
but in harmony with the autonomy of the member associations and the national dispute
resolution system.
55. In support of this conclusion, the DRC recalled that its jurisprudence shows that in cases
involving dual nationality or citizenship, a dispute can only be considered to have an
international dimension if the parties concerned do not share the same nationality. In this
regard, the jurisprudence confirms that “the dispute will only be deemed to have an
international dimension (and, by extension be within FIFA competence) if the player is registered
by their club to participate in the relevant championship under their other nationality [...] the
same principle applies to coaches (albeit coaches are not registered in the same manner as
players)”.
56. Therefore, whenever a party to a dispute has more than one nationality, their registration
is considered a determining factor in assessing whether there is an international
dimension. This means that if the claimant is registered with the same nationality as
the respondent, the dispute is considered to be a purely internal (national) matter
to be decided by the competent authorities of that country.
57. According to the Chamber, the jurisprudence of the Football Tribunal and CAS is also
consistent in stating that the party invoking the international dimension bears the burden
of producing conclusive and substantial evidence to prove that they were not hired as
nationals 5.
58. In the DRC’s opinion, these considerations further support its general conclusion that in
the case of shared nationality where the player is registered under the same nationality as
the club, or both parties indeed share the same nationality, the minimum requirement of
the international dimension is not met. The Chamber determined that this was precisely
the case at hand since the Player is of Chinese nationality (inasmuch as the state nationality
is not conferred to the special administrative region of Hong Kong), and the Club is also
based in China PR.
59. The Chamber was further convinced of this conclusion when it considered that the CAS
Award did not appear to represent the unanimous opinion of CAS, as another award
published by CAS on 18 March 2024 (i.e., only 8 days after the CAS Award), reached
the exact opposite conclusion 6. In that case, the Sole Arbitrator dealing with the dispute
between a player from the United Kingdom (British) and a club based in Gibraltar (British
Overseas Territory), expressly confirmed that:
•
the wording of art. 22, par. 1 lit. b) of the RSTP is clear and reinforced by the
consistent jurisprudence of the Football Tribunal and CAS in similar cases;
See, for example, CAS 2010/A/2255 René Salomon Olembe-Olembe v. Kayserispor Kulübü Dernegli; CAS
2010/A/2071 IFA v. FAI, Kearns & FIFA; and CAS 2016/A/4441 Jhonny van Beukering v. Pelita Bandung Raya & FIFA.
5
6
CAS 2023/A/9957 Carlos Patrick Simeon v. Lynx Football Club Limited.
pg. 17
REF. FPSD-13984
•
the existence of the international dimension was conditional on the player being
a foreigner in the club’s country;
•
the fact that the parties shared the same British nationality and the player was
registered as a British national was considered to be a decisive argument; and
•
in conclusion, there was no international element for players with nationalities
of independent countries which have more than one member association of FIFA
incorporated within their territory.
60. The DRC pointed out that it had adhered to the above reasoning for several years and
continues to do so. As a result, the Chamber remained of the opinion that, for the Chinese
player playing for the Chinese club and registered as a national, there was no international
dimension.
iii. DRC’s mandate in the present case
61. Having stated the above, the Chamber wished to make it very clear that, while it may have
its own views on the general application of certain provisions of the RSTP, as set out in the
previous section, it was in any event bound to abide by the conclusions and orders of the
CAS in relation to the present dispute, as set out in the CAS Award.
62. In accordance with art. 56 and 57 par.1 of the FIFA Statutes, FIFA has elected to confer upon
the CAS the jurisdiction to rule on appeal from final decisions of the FIFA bodies and to,
consequently, decide on the application of the relevant provisions of the FIFA regulatory
framework. As the first instance tribunal, this Chamber acknowledged that it should
therefore respect the dispute resolution system implemented by FIFA and abide by the
instructions provided by the CAS as the higher court within the system.
63. As a consequence, in strict compliance with the instructions contained in the CAS Award,
the Chamber noted that its mandate was essentially limited to deciding on the
merits of the Player’s claim (cf., CAS Award, par. 167 et seq.).
64. For the sake of completeness, the Chamber acknowledged that the Club insisted on its
reply brief that the Football Tribunal does not have jurisdiction to hear the dispute because
the dispute lacks international dimension, and therefore the criteria under art. 22 par. 1 lit.
b) of the RSTP are not met. It equally argued that the new evidence on file support that fact
that the Player was registered as Chinese, confirming that it shared the same nationality as
the Club.
65. Notwithstanding the above and as thoroughly explained in the previous sections, the
objections raised by the Club have already been determined by the CAS Award, which
indicated that the DRC is competent insofar as the Parties “belong to different member
pg. 18
REF. FPSD-13984
associations”. The Chamber emphasized, once again, that the case was only referred
back for the DRC to make an assessment on the merits of the Player’s claim and
therefore the Chamber is not empowered to re-visit the topic of jurisdiction.
66. Consequently, the Club’s position in this respect was dismissed.
b. Applicable legal framework
67. The DRC then recalled that the present matter was referred back to FIFA by means of the
CAS Award, dated 6 March 2024. Furthermore, the matter was submitted for decision of
the DRC on 4 July 2024. Considering the wording of art. 34 of the March 2023 edition of the
Procedural Rules, the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
68. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) of the
Procedural Rules and observed that in accordance with the CAS Award ex positis and art.
23 par. 1 in combination with art. 22 par. 1 lit. b) of the RSTP (October 2022 edition), the
DRC should deal with the matter at stake.
69. Lastly, in accordance with art. 26 par. 1 and 2 of the RSTP (June 2024 edition) and
considering that this claim was originally submitted on 22 September 2022 and referred
back to the DRC on 6 March 2024, the Chamber pointed out that the July 2022 edition of
said regulations is applicable to the matter at hand as to the substance.
c. Burden of proof
70. 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).
d. Merits of the dispute
71. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 19
REF. FPSD-13984
i. Main legal discussion and considerations
72. The Chamber acknowledged that this is a claim brought by the Player against the Club for
(i) outstanding remuneration (i.e., salaries and match bonuses); (ii) reimbursement of flight
tickets; and (iii) compensation for breach of contract.
73. Before entering into the discussion of the Player’s entitlement to any of the above, the DRC
confirmed that the Parties did not dispute the circumstances of the termination of the
Contract and, in particular, the existence of just cause on the part of the Player. In other
words, the Club never disputed that the Player’s termination of the Contract was for just
cause, and instead only addressed the quantum claimed by the Player. Therefore, the DRC
determined that its task was limited to determining the financial consequences arising
therefrom.
74. In light of the foregoing, the DRC proceeded to analyse each of the Player’s requests in turn.
A. Outstanding remuneration
A.1. Salaries
75. The Player initially claimed salaries from May to June 2022 (cf., statement of claim).
However, these sums were unambiguously received in the meanwhile and therefore the
Player withdrew his claim for any outstanding salary.
76. Consequently, the DRC confirmed that there was no further dispute between the Parties in
this regard.
A.2. Match bonuses
77. The Player also claimed CNY 38,400 as win bonus “in connection with the Club’s wins in
friendly matches against Shaanxi Chang’an Athletic Football Club, Sichuan Jiuniu Football Club
and Zibo Cuju Football Club, played on 9 April 2022, 22 May 2022 and 13 June 2022,
respectively”.
78. Notwithstanding the foregoing, the Chamber agreed with the Club to the extent that the
burden of proof was on the Player to provide documentary evidence of the achievement
of the sporting objectives (i.e., the outcome of the matches). However, since the Player
failed to provide any evidence to support his argument, the DRC decided that this part of
his claim should be dismissed.
B. Reimbursement of flight tickets
79. The Player requested reimbursement of his return ticket from Hong Kong (China PR) to Rio
de Janeiro (Brazil), with stopovers in Istanbul (Türkiye) and Sao Paulo (Brazil).
pg. 20
REF. FPSD-13984
80. The Club, on the other hand, argued that his request lacked contractual basis and, in the
alternative, that it should be limited to the price of economy tickets (instead of the business
tickets claimed).
81. In view of the above, the Chamber first noted that the Contract reads as follows on the
Player’s entitlement to a flight ticket: “A house and a round-trip flight ticket for the whole family
including quarantine-related expenses (3 family members, from Chinese mainland to Brazil)
should be included”.
82. Whilst it is true that a literal reading of the clause would be against the Player in that his
departure was from Hong Kong rather than Mainland China, the Chamber considered that
would be overly formalistic to reject his request on that basis – particularly given that the
Club did not dispute that its team was based in that region for the time being and that the
Club gave cause to the premature termination of the Contract.
83. With regard to the Club’s position on the issue of economy versus business class tickets,
the Chamber was of the opinion that (i) the Player’s assumption that he would be entitled
to business class tickets was not unreasonable; and (ii) as the Contract is silent on this
respect, it is to be interpreted contra stipulatorem.
84. All in all, the Chamber decided that the Player should be entitled to a reimbursement of
HKD 37,217. Furthermore, and due to the fact that the date of payment of this amount was
not clear from the document on file, the DRC decided that interest at a rate of 5% p.a.
should be applied from the date of the (original) claim (i.e., 22 September 2022).
C. Compensation for breach of contract
85. The Chamber then 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.
86. 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. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
pg. 21
REF. FPSD-13984
87. As a consequence, 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.
88. 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 Contract from the date
of its unilateral termination until its end date. Consequently, the Chamber concluded that
the amount of CNY 1,224,820.15 net serves as the basis for the determination of the
amount of compensation for breach of contract, calculated as follows:
•
•
•
CNY 49,548.39 as the pro rata salary for August 2022 (i.e., 22 days);
CNY 279,272.76 as the salaries from September to December 2022; and
CNY 895,999 as the salaries from January to December 2023.
89. 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.
90. Indeed, the Player found employment with Madureira Esporte Clube. According to the
relevant employment contract, the Player was entitled to approximately CNY 5,835.69 (i.e.,
BRL 4,050 at the exchange rate on the signing date) for the overlap period.
91. The Chamber then referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a
player is entitled to an amount equal to three months’ salaries as additional compensation
if the termination of the employment contract in question is due to overdue payables.
92. In the present case, the Chamber confirmed that the Contract was terminated for this
reason i.e., overdue payables by the Club, and therefore decided that the Player should –
in principle – receive additional compensation of CNY 209,454.57 (i.e., 3 month’s salary).
93. However, the Chamber equally recalled that pursuant to art. 17 of the Regulations the total
amount of compensation awarded (including any mitigation and additional compensation)
cannot exceed the original residual value of the prematurely terminated contract. As a
result, the DRC decided to award the Player CNY 5,835.69 as additional compensation.
94. Consequently, on account of all above considerations and the specificities of the case at
hand, the Chamber decided that the Club must pay the Player final amount of CNY
pg. 22
REF. FPSD-13984
1,224,820.15 (i.e. CNY 1,224,820.15 minus CNY 5,835.69 plus CNY 5,835.69), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
95. Finally, taking into consideration the Player’s request and its constant practice, the DRC
decided to award the Player interest on said compensation at the rate of 5% p.a. as of the
date of termination (i.e., 9 August 2022) until the date of effective payment.
ii. Compliance with monetary decisions
96. 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.
97. 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.
98. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
99. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
100. 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.
e. Costs
101. 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.
pg. 23
REF. FPSD-13984
102. 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.
103. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 24
REF. FPSD-13984
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Alessandro Ferreira
Leonardo.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Guangxi Pingguo Haliao Football Club, must pay to the Claimant the
following amount(s):
- HKD 37,217 as outstanding amount plus 5% interest p.a. as from 22 September 2022
until the date of effective payment; and
- CNY 1,224,820.15 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 9 August 2022 until the date of effective payment.
4.
Any further claims of the Claimant are 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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 25
REF. FPSD-13984
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 26