Dispute Resolution Chamber
Texto da decisão
REF 20-01678
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021,
regarding an employment-related dispute concerning the player Luiz Eduardo
Figueiredo
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Luiz Eduardo Figueiredo, Brazil
Represented by Diogo Souza Advogados Associados
RESPONDENT:
Club Al Tai, Saudi Arabia
Represented by Mr Saleh Alobeidli
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I. FACTS OF THE CASE
1.
On 15 June 2019, the Brazilian player, Luiz Eduardo Figueiredo (hereinafter: Claimant or player) and
the Saudi club, Al Tai (hereinafter: Respondent or club) concluded an employment contract
(hereinafter: contract) valid as from 15 July 2019 until 14 July 2020, for “twelve months”.
2.
According to the contract, the Respondent undertook to pay the Claimant a signing fee in the amount
of USD 50,000 and a monthly salary in the amount of USD 16,667.
3.
Art. 6 of the contract reads as follows: “In the event the club fails to pay the salaries of the player for
a period of three months, the player shall be entitled to raise to FIFA”.
4.
Art. 9 of the contract establishes:
“1. The present contract shall be governed by SAFF Statutes and regulations including SAFF TLPS as
well as Saudi Law. For foreign players only, FIFA Regulations and Swiss law shall be applicable on a
subsidiary basis instead of Saudi law.
2. Any dispute arising out of or in connection with the present contract shall be submitted to the
exclusive jurisdiction of the SAFF Players Status Committee in KSA. Only in case the SAFF PSC shall
decline its jurisdiction, the dispute shall be submitted to the exclusive jurisdiction of the Court of
Arbitration for Sport (CAS/TAS) in Lausanne (CH). The procedure shall be held in English language”.
5.
On 28 August 2020, the Claimant put the Respondent in default and requested payment of USD
100,000, corresponding to his salaries of January 2020 (half) until July 2020, within 10 days.
6.
On 17 November 2020, the Claimant lodged a claim against the Respondent in front of FIFA,
requesting payment of USD 100,000 as outstanding remuneration corresponding to a part of his
salary of January 2020 (USD 8,333.33) and his salaries as of February 2020 until July 2020 (6x USD
16,666.67) plus interest of 5% p.a. as of the due dates.
7.
In his claim, the player argued that he received the sign-on fee and his salaries as from July 2019 until
December 2019 (6 months). Subsequently, the player pointed out having received only half of his
salary regarding January 2020 and that no further payments have been received.
8.
The player stated having tried to amicably settle the dispute, but to no avail.
9.
In its reply to the claim, the Respondent contested FIFA’s competence to deal with the matter at hand
referring to art. 9 of the contract and arguing that the Saudi Arabian DRC (hereinafter: SAFF DRC)
was competent to deal with the matter at hand.
10. The Respondent held that the parties agreed to submit disputes to the SAFF DRC and that said body
meets the requirements set by FIFA for fair proceedings.
11. Subsidiary, in case the DRC would declare itself competent to deal with the matter at hand, the
Respondent rejected the claim.
12. In this regard, the Respondent maintained that the player left Saudi Arabia on 28 April 2020 due to
the suspension of the season in connection with COVID-19 as from 14 March 2020. Further, the club
stated that the League was resuming in August 2020.
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13. According to the club, it requested the player to return, which he did not do. In support of this
allegation the club submitted the following documentation:
- An Email dated 6 June 2020 to the player, whereby the club requested to extend the contract
beyond 14 July 2020 in case the League would resume;
- An undated letter addressed to the player, informing him that training restarts on 21 June 2020
and that he is expected to attend said session;
- A document named “flight briefing” containing information about a flight from Sao Paulo to
Saudi Arabia on 27 June 2020 without the player’s name.
14. The club further states that the email sent to the player “show clearly the will of the club to pay to
the Player his outstanding salaries”.
15. On account of the above, the club held that the player breached the contract on 28 April 2020, when
he left the club without authorization.
16. On account of the above, taking into account the suspension of the league, that the player did not
train with the club as from 14 March 2020 (suspension of the league) and in line with a decision of
the Saudi Professional Leagues, the Respondent requested the DRC to reduce the player’s salaries
accordingly.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, the Chamber took note that
the present matter was submitted to FIFA on 17 November 2020. Consequently, the DRC concluded
that the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at
hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition February 2021) the Dispute Resolution Chamber is, in
principle, competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension.
3.
However, the DRC acknowledged that the club contested the competence of FIFA’s deciding bodies
on the basis of art. 9 of the contract highlighting that the “SAFF DRC” was competent to deal with
the matter at hand.
4.
Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the
one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs, has been established at national level within
the framework of the Association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the Chamber
further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
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5.
In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions
that needs to be met in order to establish that another organ than the FIFA DRC is competent to settle
an employment-related dispute between a club and a player of an international dimension, is that the
jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference
in the employment contract.
6.
In this regard, the DRC noted that the arbitration clause in the contract (art. 9) refers to a body named
“SAFF Players Status Committee”, whereby the Respondent argues that a body named “SAFF DRC” is
competent. What is more, the contract refers in its article 6 to the possibility to revert to FIFA in case
salaries would not be paid. Taking all this into account, we can conclude that no clear arbitration
clause was concluded between the parties.
7.
In view of all the above, the DRC established that the club’s objection to the competence of FIFA to
deal with the present matter has to be rejected and that the Dispute Resolution Chamber is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to
consider the present matter as to the substance.
8.
Furthermore, 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, and considering that the present claim was lodged on 17
November 2020, the October 2020 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
9.
The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. The members of the Chamber started by
acknowledging the facts of the case, as well as the documentation contained in the 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.
10. Having said that, the DRC acknowledged that, on 15 June 2019, the Claimant and the Respondent
signed an employment contract valid as from 15 July 2019 until 14 July 2020, for “twelve months”.
11. In this context, the members of the Chamber observed that the player requested payment of his
salaries as of January 2020 (partially) and February 2020 until July 2020.
12. The Chamber noted that the outstanding remuneration as such was not contested by the Respondent,
but the club requested to declare that the player had breached his contract and that it therefore
should not have to pay the salaries. Furthermore, the DRC took notice of the alternative request of
the club that the salaries shall be reduced due to COVID-19 and the suspension of the league and the
trainings.
13. In view of this dissent between the parties, the DRC firstly referred to art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof..
14. On account of the above, the Chamber noted that the Respondent argued that the player breached
his contract by not returning to the club even though it requested him to do so.
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15. In this regard, the DRC examined the documentation on file and found that the club failed to proof
that it in fact requested the player to return at a certain date to resume his activities. The members of
the Chamber concluded that documentation on file is not clear in this regard and the club failed to
discharge its burden of proof. The Chamber concurred that the email sent to the player does not
contain a request to resume work, and that it is rather a request to extend the contract. The DRC
further noted that there is no proof on file that the letter with the request to resume training on 21
June 2020 was indeed sent. Lastly, the DRC examined the alleged flight tickets sent to the player and
noted that they do not contain his name.
16. Therefore, the DRC rejected the Respondent’s arguments in this regard.
17. Furthermore, the members of the Chamber turned their attention to the club’s argument that the
player’s salary shall be reduced due to COVID-19 and the suspension of the season and the trainings.
18. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19
outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
appropriate guidance and recommendations to member associations and their stakeholders, to both
mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
19. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as the FIFA
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country
or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a
player’s salary.
20. In this context, the DRC considered that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the Claimant, in other words,
the reasons brought forward by the Respondent in its defence do not exempt the Respondent from
its obligation to fulfil its contractual obligations towards the Claimant. The DRC especially considered
that no negotiations about a possible reduction took place at any time.
21. On account of the above considerations, the DRC rejected the Respondent’s argument and concluded
that the player is entitled to his salaries until the end of the contract.
22. In this regard, the Chamber noted that the player acknowledged receipt of 6 full monthly salaries
until December 2019 as well as half of his salary for January 2020. Taking into account the duration
of the contract, which was established for “twelve months”, the player remains entitled to receive
the other half of his salary for January 2020 as well as further 5 full monthly salaries.
23. Therefore, the DRC decided that, in accordance with the general legal principle of “pacta sunt
servanda”, the Respondent is liable to pay USD 91,668.50 corresponding to half of his salary for
January 2020 as well as further 5 full monthly salaries.
24. In addition, and taking into consideration the player’s claim and the jurisprudence of the Chamber,
the DRC decided to award on the aforementioned amounts interest of 5% p.a. as from the respective
due dates until the date of effective payment.
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25. Furthermore, taking into account the consideration under number II./8. above, the DRC referred to
par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
26. In this regard, the DRC pointed out that, against clubs, the consequence of the failure to pay the
relevant amounts in due time shall consist of a ban from registering any new players, either nationally
or internationally, up until the due amounts are paid and for the maximum duration of three entire
and consecutive registration periods.
27. Therefore, bearing in mind the above, the Chamber decided that, in the event that the Respondent
does not pay the amounts due to the Claimant within 45 days as from the moment in which the
Claimant, following the notification of the present decision, communicates the relevant bank details
to the Respondent, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
28. Finally, 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. 24bis par. 3 of the
Regulations.
29. The members of the Chamber concluded its deliberations by rejecting any further claim lodged by the
Claimant.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Luiz Eduardo Figueiredo, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Al Tai, has to pay to the Claimant, the following amounts:
- USD 8,333.33 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020
until the date of effective payment.
- USD 16,666.67 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020
until the date of effective payment.
- USD 16,666.67 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until
the date of effective payment.
- USD 16,666.67 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until
the date of effective payment.
- USD 16,666.67 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until
the date of effective payment.
- USD 16,666.67 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until
the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
8. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court
of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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