Dispute Resolution Chamber
Texto da decisão
REF 20-00786
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Gabriel Girotto Franco
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Gabriel Girotto Frenchanco, Brazil
Represented by Mr. Breno Costa Ramos Tannuri
RESPONDENT / COUNTER-CLAIMANT:
Al Hilal, Saudi Arabia
Represented by Bichara & Motta Advogados
INTERVENING PARTY:
Sport Club Corinthians Paulista, Brazil
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I.
FACTS OF THE CASE
1.
On 13 January 2017, the Brazilian player, Mr. Gabriel Girotto Franco (hereinafter: the player
or the Claimant / Counter-Respondent), and the Brazilian club, Sport Club Corinthians
Paulista (hereinafter: Corinthians or the Intervening Party), signed an employment
agreement valid as from the date of signature until 31 December 2020.
2.
According to said employment agreement, Corinthians undertook to pay the player a
monthly remuneration as follows:
a.
BRL 200,000 as from the date of signature and until 31 December 2017;
b.
BRL 240,000 as from 1 January 2018 and until 31 December 2018;
c.
BRL 280,000 as from 1 January 2019 and until 31 December 2019; and
d.
BRL 320,000 as from 1 January 2020 and until 31 December 2020.
3.
On 25 August 2019, the Saudi Arabian Club, Al Hilal Saudi Club (hereinafter: Al Hilal or the
Respondent / Counter-Claimant) exclusively authorized the intermediary, Mr. El Yaagoubi
Mohammed (hereinafter: Mr. Mohammed), to negotiate on behalf of the club the “possible
transfer agreement of the professional player Mr Gabriel Girotto Franco” with Corinthians
(hereinafter: the mandate).
4.
The mandate in favour of the Mr. Mohammed, inter alia, established the following: “this
mandate is only limited to negotiate on behalf of Al Hilal SFC with Sport Club Corinthians
Paulista. Any and all documentations and/or agreements without the signature of al Hilal
SFC shall be deemed as invalid and null. This exclusive mandate to the Intermediary is valid
until 30 August 2019”.
5.
By a document dated 28 August 2019 and through the intermediation of Mr. Mohammed,
Al Hilal and Corinthians entered into a transfer agreement by means of which the player
should be transferred from Corinthians to Al Hilal against payment of a compensation of
USD 5,500,000 (hereinafter: the transfer agreement). Apparently, the player did not sign
such transfer agreement at the time of the negotations.
6.
In accordance with article 9 of the transfer agreement, its validity was subject to the
“relevant employment contract to be executed between Al Hilal SFC and the player”.
7.
Furthermore, article 12 par. 3 of the transfer agreement stipulated the following:
“notwithstanding anything to the contrary, the Parties hereby expressly and irrevocably
agree that nothing herein shall oblige [Al Hilal] to enter into an employment contract with
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the player, and in the event that [Al Hilal], for any reason, does not enter into an
employment contract with the player, this agreement shall become null and void”.
8.
On 29 August 2019, at 12:03 AM (Brazilian time), Corinthians sent Al Hilal the transfer
agreement signed by Corinthians’ authorized representatives.
9.
On 28 August 2019, after several discussions between the Mr. Mohammed and the player’s
intermediary via Whatsapp, Mr. Guilherme Miranda (hereinafter: Mr. Miranda), Al Hilal sent
an “Employment proposal” to the player, describing the main conditions of their eventual
employment relationship (hereinafter: the employment proposal).
10.
In accordance with the employment proposal “[Al Hilal] are looking forward your respond
to this letter by no later than 29 August 2019 at 22:00 (KSA hrs). Should we not receive
any respond (sic), this letter shall be deemed as terminated”.
11.
Moreover, the employment proposal also specified that it was a “non-binding offer” which
should be considered as a letter that “is not intended to be legally binding and Al Hilal SFC
may withdraw from negotiations at any time without liability and without prior written
notice”.
12.
On the same same, i.e. 28 August 2019, Mr. Miranda and Mr. Mohammed exchanged
some messages via Whatsapp regarding the duration of the employment proposal offered
by Al Hilal to the player.
13.
On 29 August 2019, at 1:17 AM (Brazilian time) i.e. 7:17 AM (Saudi Arabian time), Mr.
Miranda wrote to Mr. Mohammed via Whatsapp, in verbis: “2 years ok for Gabriel. I
manage that”.
14.
On 29 August 2019, at 17:38 (Brazilian time), Mr. Mohammed provided the player via
Whatsapp with plane tickets to travel from Sao Paulo to Riyadh with a stopover in Dubai.
Such flight tickets were for the player and Mr. Miranda to fly on the same date, at 21:40
(Brazilian time) and arrive in Dubai on 30 August 2019 at 22:55 (UAE time).
15.
On 29 August 2019, at 19:16 (Brazilian time), Mr. Mohammed asked Mr. Miranda if
everything was ok with the flight and the latter replied only “yes”. Subsequently, Mr.
Mohammed wrote the following “let me know when about to leave” (sic).
16.
On the same night of 29 August 2019, the player played an official match for Corinthians
in Rio de Janeiro, Brazil, valid for the 2019 CONMEBOL Sudamericana against Fluminense
FC. Consequently, the player never boarded the 21:40 flight departing from Sao Paulo to
Riyadh via Dubai.
17.
Following the match, the player gave an interview in which he declared the following:
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“Good night. We came to know at the end of the night that there would be an inquire, an
interest from Al Hilal, but I was focused on the match. Now that the match is over, I am
happy about the qualification, I don’t know to say what is right and what is wrong. I will
meet with my agents and with Corinthians in order to know the decision taken. But
irrespective of anything, I am happy for the match and the qualification. When I will know
100% what will happen, I will speak, Corinthians is my home. I am happy. (..) What’s really
missing is signing. Everything happened very fast today. Because I was concentrated,
focused on the match, I could not stop to think about it. Now the adrenaline will low down,
I will meet with my agents, Corinthians and family in order to take a decision. In a few hours
or at least in one day, the windows will close, it will be defined”.
18.
On 30 August 2019, at 00:27 (Brazilian time), Mr. Miranda informed Mr. Mohammed about
the issuance of new plane tickets from Rio de Janeiro to Saudi Arabia, supposedly bought
at the player’s expenses.
19.
A few minutes later, at 00:43 (Brazilian time), Mr Miranda wrote to Mr. Mohammed the
following: “I gonna fly now talk later my Friend”. Subsequently, Mr. Miranda and the player
travelled to Dubai from Rio de Janeiro.
20.
Upon their arrival in Dubai, on 30 August 2019, Mr. Mohammed allegedly informed the
player that Al Hilal was not interested anymore in his services.
21.
On 30 August 2019, at 20:25 (Brazilian time), Al Hilal officially announced having signed
the player Gustavo Cuellar (hereinafter: Mr. Cuellar) and, thus, closed its transfer deals for
the 2019 summer transfer window.
22.
On 31 August 2019, the player sent a formal notice to Al Hilal, in which he stated that the
parties had signed an employment contract and requested Al Hilal to confirm within the
following 24 hours if “the Club has decided to breach the Employment Contract”.
23.
On 7 September 2019, the player played an official match for Corinthians in the starting
eleven.
24.
On 9 September 2019, Al Hilal replied the player’s notice denying the existence of any
employment contract and referring to the clear terms of the non-binding letter of intention
of 28 August 2019 (i.e. the employment proposal).
25.
On 6 January 2020, Corinthians and the player agreed to amend the terms and conditions
of their original employment contract, as detailed below.
26.
In essence, the amended contract extended the employment relationship between
Corinthians and the Player until 31 December 2022, as well as it established that the latter
became entitled to receive monthly salaries amounting to BRL 500,000. In addition, the
player also agreed to assign 100% of his personal image rights to Corinthians during the
period of the amended contract. According to said image rights contract, Corinthians
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undertook to pay to the company that holds the player’s image rights, a total amount of
BRL 2,000,000.
II.
PROCEEDINGS BEFORE FIFA
27.
On 27 May 2020, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the player
28.
In his claim, the Player explained that on 25 August 2019, Mr. Mohammed contacted his
intermediary, Mr. Miranda, and expressed the club’s interest to open negotiations with
Corinthians for his permanent transfer. After this contact, on 28 August 2019, the transfer
agreement was concluded and allegedly signed by all the three parties involved.
29.
In this context, the player remarked that from the very beginning Mr. Mohammed had
undertaken all negotiations on behalf of Al Hilal and that the parties concluded a twoseason long contract (i.e. the employment proposal).
30.
Moreover, the player pointed out that, in the early morning of 29 August 2019 (at 1:17
AM, Brazilian time), he accepted the employment proposal via Whatsapp and later received
flight tickets from the club in order to travel to Saudi Arabia.
31.
Subsequently, on 30 August 2019, both the player and Mr. Miranda travelled to Saudi
Arabia. However, upon their arrival in Dubai, the player stated that Mr. Miranda received a
phone call from the Mr. Mohammed, who informed that Al Hilal had decided to breach the
contract. In this respect, the player also stressed that, according to Mr. Mohammed, the
reason given by Al Hilal was that another player whom they had pursued prior to the player,
and who had been the club’s first choice (i.e. Mr. Cuellar), had changed his mind and
decided to join Al Hilal after all.
32.
Furthermore, the player referred to the correspondence sent to Al Hilal on 31 August 2019,
by means of which he addressed a formal warning to Al Hilal in order to reconsider its
“regrettable” decision “to breach the contract”. As informed by the player, Al Hilal did not
reply to such warning, thus “forcing the player to return to Brazil”.
33.
Only after more than a week, on 9 September 2019, Al Hilal replied to the Player’s warning,
underlining that there was no contract between the parties since the player had failed to
respond to the club’s offer until 29 August 2019 at 22:00 (Saudi Arabian time), as described
in the employment proposal.
34.
In support of his allegations, the player firstly recalled CAS jurisprudence (i.e. CAS
2014/A/3611) in order to state that “representatives may undertake actions, which cause a
legal effect for another person, namely, the principal”. Accordingly, the player asserted that
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Mr. Mohammed “not only received the consent from [Mr. Miranda] that the Player has
agreed with the terms and conditions of the [employment proposal] but also pushed both
to travel to Riyadh immediately”.
35.
Notwithstanding the above, the player held that “even assuming but no admitting that the
Player had not provided any express response to [Mr. Mohammed] or [Al Hilal], the simple
fact that the he accepted to travel to Riyadh, it was – at least – and implicit acceptance to
the provisions established in the [employment proposal”.
36.
In continuation, the player pointed out that “the formation of a contract does not
presuppose formalities of any kind” and, in accordance with CAS jurisprudence, it shall
consider the intent of the parties.
37.
At this point, the player highlighted the following facts:
a.
Mr. Mohammed acted on behalf of Al Hilal during the whole process between the
parties;
b.
Al Hilal negotiated (and signed) the terms and conditions of the transfer agreement
with Corinthians;
c.
Then, Al Hilal and the player negotiated the terms and conditions of an employment
relationship, and the respective employment proposal was duly signed by both parties;
d.
The employment proposal was not subject to further rounds of negotiations in a later
stage since the main points were undisputedly all there and agreed upon; and
e.
Al Hilal bought and forwarded flight tickets to the player to travel from Brazil to Riyadh.
38.
With the above in mind, the player referred to the DRC jurisprudence and argued that the
employment proposal contains all essentiali negotii, namely: (i) the name of the parties; (ii)
the object; (iii) the duration of the employment relationship; (iv) the salary; and (v) the
signature of the parties concerned.
39.
With respect to the deadline mentioned in the employment proposal, the player underlined
that he did answer within the time limit (i.e. until 29 August 2019), reason why he received
the flight tickets to travel to Riyadh. Consequently, the player stressed that Al Hilal’s
allegation that the employment proposal was not valid was made in bad faith and, thus,
should be set side.
40.
The player further pointed out that the last clause of the employment proposal that
concedes the right to breach it at any time and without any condition whatsoever is
potestative and, consequently, should be deemed null and void. Furthermore, the player
claimed that it was clear that the clause granting the right for Al Hilal to breach the
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employment proposal at any point in time was only aimed at allowing the club to sign its
first choice, Mr. Cuellar.
41.
In support of the above, the player recalled the FIFA DRC jurisprudence on the matter and
stated that Al Hilal had never informed him that it was still negotiating with another player.
Consequently, the player concluded that Al Hilal acted in bad faith when it decided to sign
Mr. Cuellar and, in parallel, that he was forced to travel to Riyadh only for Al Hilal to inform
him that his services were no longer required.
42.
Based on the abovementioned considerations, the player stated that Al Hilal should pay him
a compensation for the damages caused, in accordance with art. 17 of the Regulations on
the Status and Transfer of Players (RSTP). In regards to the calculation of such compensation,
the player sustained that the following aspects should be taken into account:
a.
the remuneration set out in the employment proposal (i.e. USD 5,000,000 for two
seasons); minus
b.
the remuneration established in the player’s employment contract with Corinthians
during the equivalent period (i.e. USD 3,042,133.96).
43.
Having said this, the player concluded that Al Hilal should pay compensation amounting to
USD 1,957,866.04. In addition, the player also requested sporting sanctions to be imposed
on Al Hilal due to its “outrageous bad faith” and to the fact that the alleged breach
occurred during the protected period.
44.
Lastly, the Player referred to the principle of culpa in contrahendo, as well as to the DRC’s
and to the CAS’ jurisprudence on the matter in order to claim that: “even if the FIFA DRC
decided [the employment proposal] is not a (employment) contract but a pre-contract, [Al
Hilal] shall pay the amount of USD 1,957,866.04 to the Player due as compensation,
whatsoever the scenario may be”.
45.
The player’s requests for relief were the following:
a.
To order Al Hilal to pay him USD 1,957,866.04 as compensation for breach of contract,
plus 5% interest p.a. as from 2 September 2019 until the date of effective payment;
b.
To impose a transfer ban on Al Hilal for two entire and consecutive registration
periods;
c.
Alternatively, “to confirm that by breaching [the employment proposal] [Al Hilal]
violated the principle of culpa in contrahendo and as such, shall pay a compensation
to the Player amounting USD 1,957,866.04, plus default interest at the rate of 5% per
annum as from 2 September 2019 until the effective date of payment”.
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b.
Reply and counterclaim of Al Hilal
46.
On 13 July 2020, Al Hilal submitted its reply and counterclaim.
47.
Initially, Al Hilal sustained that the dispute concerns “an offer related to the possible
employment of a football player, which, besides being manifestly non binding was even not
accepted by said player”. Therefore, Al Hilal established that FIFA lacks jurisdiction because
there is no employment contract nor an arbitral clause in favour of its deciding-making
bodies.
48.
As to the substance, Al Hilal firstly stressed that the employment proposal cannot be
considered as a valid and binding employment contract for the following reasons:
49.
a.
Al Hilal was aware that, as per art. 18 para. 4 of the FIFA RSTP, the validity of a contract
may not be made subject to a successful medical examination, so that the club would
have to realize medical examination before an employment contract is signed and, for
this reason, “expressly made it clear that [the employment proposal] was not an
employment agreement”;
b.
the employment proposal expressly stated that Al Hilal’s obligations would only be
valid upon the signature of an employment contract and Al Hilal made it clear that it
could withdraw its offer at any time (in accordance with CAS 2016/A/4489 and CAS
2018/A/5628); and
c.
none of the parties had expressed the intention required for the conclusion of a
contract because (i) the employment proposal sent by Al Hilal was manifestly nonbinding; and (ii) in any case, the Player failed to accept the employment proposal
within the pertinent deadline.
After establishing the above, Al Hilal maintained that the player did not validly accept the
employment proposal due to the following reasons:
a.
“the hand-written apposition of the date of 29 August 2019 in [the employment
proposal] is manifestly in bad-faith” and “even if said document was really signed by
the Player on the mentioned date, the Player failed to inform [Al Hilal] of his (alleged)
acceptance”;
b.
the fact that the player accepted to travel to Saudi Arabia cannot be deemed as equal
to accepting the employment relationship, because is “perfectly possible that a player
travels, meets the with the club and then for some reasons (including a negative results
of the medical exams) an employment contract is not signed”;
c.
the player did not travel with the flight tickets provided by Al Hilal;
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d.
the transfer agreement received from Corinthians on 29 August 2019 was not signed
by the player;
e.
by the time limit settled in the employment proposal Al Hilal had not received any
answer from the player “and therefore no longer bound by the offer”; and
f.
the player also played an official match for Corinthians after the expiry of the deadline
granted by Al Hilal and, after the match, confirmed “that no agreement existed with
Al Hilal”.
50.
In continuation, Al Hilal pointed out that Mr. Mohammed was only mandated to negotiate
the transfer agreement with Corinthians. As such, the authorization could not be extended
to the employment contract with the player (i.e. “this mandate is only limited to negotiate
on behalf of Al Hilal SFC with Sport Club Corinthians Paulista”).
51.
Additionally, Al Hilal remarked that the mandate provided that “any and all documentations
and/or agreements without the signature of al Hilal SFC shall be deemed as invalid and null.
This exclusive mandate to the Intermediary is valid until 30 August 2019”. Thus, “since the
Player failed to prove to have communicated its alleged acceptance to a valid representative
of Al Hilal, no employment contract was concluded by the parties”.
52.
Al Hilal further suggested that “the fact that Al Hilal and the Player did not enter into an
employment contract is confirmed by the fact that the Player did not terminate his
employment relationship with Corinthians in the first place”. In support of its allegations,
Al Hilal informed that: (i) the player played official matches for Corinthians on 29 August
and 7 September 2019; and (ii) the new employment contract with Corinthians was only
signed on 6 January 2020, demonstrating that the original one remained valid.
53.
In view of the above, Al Hilal stressed that the player could not be employed by two different
clubs at the same time and, hence, that no employment relationship was ever started with
Al Hilal.
54.
At the basis of its counterclaim, Al Hilal stated that if the employment proposal was
accepted by the player and if an employment relationship was initiated between the parties,
“the Player breached it first by participating to the mentioned official match. Even more,
after that match, the Player declared that Corinthians was ‘his home’”.
55.
Consequently, Al Hilal argued that the player should be liable to compensate it for the
breach of his pre-contractual duties and not vice-versa.
56.
In regards to the calculation of the compensation allegedly due by the player to Al Hilal, the
latter pointed out that the following criteria should be considered, in accordance with art.
17 of the FIFA RSTP:
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a.
USD 5,000,000, corresponding to the remuneration that Al Hilal would have paid to
the player in an employment contract would have been signed; plus
b.
USD 5,500,000, corresponding to the transfer fee that Al Hilal would have paid to
Corinthians as agreed in the transfer agreement.
57.
Having said this, Al Hilal concluded that the player should pay compensation amounting to
USD 10,500,000. In addition, Al Hilal also requested SAR 75,809 as compensation for the
damages suffered by the club with the issuance of flight tickets to the player and Mr.
Miranda – based in the principle of culpa in contrahendo.
58.
Finally, Al Hilal opposed the calculation presented by the player in regards to his supposed
compensation and recalled the CAS jurisprudence in order to request FIFA to “[dispense]
entirely the payment of any compensation to the Player or, alternatively, that any such
compensation be reduced at least 80%”.
59.
The same considerations were used to request the rejection of the player’s request to be
compensated based on the principle of culpa in contrahendo. In this respect, Al Hilal also
informed that the player “suffered no losses” and that he did not prove having incurred
any costs to be potentially reimbursed / restored by Al Hilal.
60.
The requests for relief of Al Hilal were the following:
a.
To dismiss the player’s claim for lack of jurisdiction because not employment-related;
b. Alternatively, in the event that FIFA determines that it has jurisdiction, to dismiss the
player’s claim in the merits and to admit the counterclaim to decide that the player
breached the employment contract and should pay a compensation of USD
10,500,000 and SAR 75,809, plus 5% interest p.a. on all the due amounts as from
the due dates and until the effective payment;
c.
To impose sporting sanctions on the player, restricting him from playing official
matches for at least four months; and
d. To order the player to pay Al Hilal EUR 50,000 as legal expenses and costs, as well as
to deem the player liable for any procedural costs.
c.
61.
Reply to the counterclaim by the player
In his answer to the counterclaim, the player firstly reiterated that the employment proposal
fulfilled all the essentialia negotii and, hence, that the Chamber should “set aside any
eventual malicious attempt from [Al Hilal] to disregard the validity of the signature of the
Player in [the employment proposal].
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62.
In this regard, the player stated that “the club failed to carry the burden of proof” regarding
the allegation that he signed the employment proposal after the time limit.
63.
Moreover, the player stressed that “there was no instruction, order or request whatsoever
from [Al Hilal] to address a copy of [the employment proposal] duly signed in writing”.
Consequently, the player claimed that the message sent by Mr. Miranda to Mr. Mohammed
should suffice and that the player’s acceptance was confirmed by the plane tickets sent by
Mr. Mohammed to Mr. Miranda.
64.
The player then contested Al Hilal’s allegation concerning the authority of Mr. Mohammed.
In synthesis, the player invoked the principle of venire contra factum proprium and
reiterated that Mr. Mohammed was the direct channel of communication between the
player and Al Hilal – as demonstrated by the messages exchanged between the parties via
Whatsapp. What is more, the player also added that “during the entire process regarding
the transaction at stake, there was never any sort of communication whatsoever from [Al
Hilal] to the Player informing that [Mr. Mohammed] had no powers to represent it”.
65.
Further, the player stressed that the assumption that he breached the employment
proposal, as indicated by Al Hilal, is “baseless”. In this regard, the player pointed out that
playing for Corinthians did not alter the schedule planned by the parties, as well as “there
is a huge difference between date of signature of a contract and the starting date of an
employment relationship” and the employment proposal “does not exactly clarifies when
such employment relationship was going to commence”.
66.
Additionally, the player also maintained that Al Hilal had never notified Corinthians “for
having supposedly forced (or induced) the Player to attend the mentioned match and as
such, breached [the employment proposal]”. Accordingly, he concluded that “the
allegation submitted by [Al Hilal], notably, that the Player unilaterally terminated [the
employment proposal] without just causa has no factual or legal basis whatsoever and,
consequently, shall be set aside in full”.
67.
As per the interview given after the match played for Corinthians, the player stated that the
“intention clearly was to minimise the fact that [Corinthians] was losing one of its most
important players during a crucial moment of the season”. In this regard, he highlighted
that the content of the employment proposal was confidential and that the player left the
press conference directly to the airport in order to travel to the Saudi Arabia.
68.
In continuation, the player reiterated his submission is regards to the breach of the
employment proposal by Al Hilal and concluded that “it is undisputed that all the arguments
raised by [Al Hilal] in its answer are legally groundless, which drives to one simple and
undisputed conclusion – the document dated 28 August 2019 shall be considered a valid
and binding employment contract”.
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69.
Having established the above, the player also reiterated his calculation regarding the
compensation for breach of contract and requested the imposition of sporting sanctions on
Al Hilal.
70.
Finally, the player mentioned that the signature of a standardised employment contract (as
suggested by the employment proposal) did not occur only because of Al Hilal’s bad faith,
which breached the employment proposal when the player was already in Dubai. In
addition, he also strongly contested the witness statement of Mr. Turki Khalid, filed by Al
Hilal, and informed, inter alia, that Al Hilal had never informed the player that he should
pass through medical examinations nor that he should formally respond the employment
proposal.
71.
At the end, the player reiterated his requests for relief, apart from the amount of
compensation allegedly due by Al Hilal, which appears to be miswritten as per the
fundaments previously collected in his submission.
d.
Position of Corinthians
72.
After being invited to provide its comments to the claim, Corinthians firstly referred to the
negotiations regarding the conclusion of the transfer agreement between Corinthians and
Al Hilal, represented by Mr. Mohammed. In this context, Corinthians informed that the
document was signed by the club on 28 August 2019 and by the other parties on the
following day, i.e. 29 August 2019.
73.
Secondly, Corinthians recalled that on 29 August 2021, the player expressly agreed with
the employment proposal sent by Al Hilal via Whatsapp message sent by Mr. Miranda to
Mr. Mohammed.
74.
In this regard, Corinthians stated: “Although Al Hilal had sent tickets to the Player for him
to travel to Saudi Arabia on 29th August 2019 form Sao Paulo, the plan was altered so that
the Player would fly to Saudi Arabia from Rio de Janeiro on 29th August 2019 after playing
his farewell match in the 2019 Copa Sul-Americana CONMEBOL against Fluminense
Football Club”. Corinthians also remarked that “such information was passed on to [Mr.
Mohammed] and he was fully aware of the fact that the Player would travel to Saudi Arabia
from Rio on 30th August 2019”.
75.
Thirdly, Corinthians referred to the wording of the transfer agreement in order to conclude
the following: “based on the apparent formulation and provision of [the transfer
agreement], Al Hilal have explicitly contracted to the transfer of the Player. Article 3 of [the
transfer agreement] categorically states that Al Hilal ‘agrees to receive the Player’, which
cannot be construed in any way other than valid consent to conclude [the transfer
agreement]. For Al Hilal to sign and conclude [the transfer agreement], and then to try to
avoid their obligations towards the Player and therefore by extension us, in a a brazen
violation of principles of contractual stability”.
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76.
In continuation, Corinthians made reference to the general legal principle of pacta sunt
servanda and to the doctrine of venire contra factum proprium, stating that “Al Hilal
conducted themselves in a way that did induce legitimate expectations with regard to the
[transfer agreement]”. In support of its allegations, Corinthians also reiterated that (i) Al
Hilal bought plane tickets to the player, demonstrating the club’s acceptance of the player’s
hiring; (ii) Mr. Mohammed had also confirmed Al Hilal’s position multiple times via
Whatsapp; and (iii) Al Hilal fully agreed with the transfer agreement by providing the
signature of the president.
77.
Furthermore, the player contested Al Hilal’s submission and informed that the media release
used by the club in support of its allegations “were taken out of context”. Accordingly,
Corinthians stressed that the player is a fan favourite and that his statements “were
necessary to acknowledge the worries of the fans”.
78.
Subsequently, Corinthians pointed out that the statements made by the player would not
be valid grounds to terminate the agreement between the parties, while “concept of
contractual stability that is enshrined under article 13 of the RSTP is grossly violated by this
unreasonable and regretful behaviour on the part of Al Hilal”.
79.
Lastly, Corinthians concluded that in the event that FIFA finds the player to be in breach of
contract, it could not be held jointly and severally liable due to the fact that (i) “Al Hilal have
not made such a request in their submissions and for the Panel to recover damages from
us in association with any breach made by the player would be contrary to a fundamental
principle of law – ultra petita”; and (ii) Corinthians did not profit from the player’s alleged
breach of contract (in line with CAS 2017/A/4977).
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
80.
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 27 May 2020 and submitted
for decision on 6 May 2021. Taking into account the wording of art. 21 of the January 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
81.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed 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
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concerns an employment-related dispute with an international dimension between a
Brazilian player, a Saudi Arabian club and a Brazilian club.
82.
Nevertheless, the DRC noted that Al Hilal challenged its competence to hear the dispute
based on the allegation that the case concerns “an offer related to the possible employment
of a football player, which, besides being manifestly non binding was even not accepted by
said player”. In this regard, Al Hilal stressed that there is no employment contract nor a
jurisdiction clause in favour of the FIFA deciding-bodies and, hence, that the claim should
be ruled inadmissible.
83.
In this context, the Chamber deem it essential to clarify that in spite of the parties disputing
whether the employment proposal is to be considered as an employment contract, the case
at stake unequivocally involves an “employment-related” matter of international dimension
in accordance with art. 22, lit. b, of the FIFA RSTP.
84.
Additionally, the Chamber also remarked that the only exception provided for in the
abovementioned article relies on the existence of an option made by the parties in writing
to refer any arising dispute to an independent arbitration tribunal established at a national
level – which is not the case.
85.
Consequently, the members of the Chamber unanimously decided to set aside Al Hilal’s
allegation as to the competence and to rule that the DRC is competent to adjudicate on the
present matter.
86.
Finally, 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 Player (edition February 2021), and
considering that the present claim was lodged on 27 May 2020, the March 2020 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
87.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
88.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
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c.
Merits of the dispute
89.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
90.
The Chamber then moved to the substance of the case and acknowledged that it is its task
to determine whether the employment proposal sent by the club to the player is to be
considered a valid and binding document on the parties, as well as whether the acceptance
provided by the player was sufficient to trigger the consequences of an employment
relationship between them.
91.
In this context, the DRC started by recalling the Chamber’s well-established jurisprudence
which dictates that, in order for an employment contract to be considered as valid and
binding, apart from the signature of both the employer and the employee, it should contain
the essentialia negotii of an employment contract, such as the parties to the contract and
their role, the duration of the employment relationship and the remuneration payable by
the employer to the employee.
92.
Accordingly, the DRC noted that the employment proposal, in casu, expressly mentioned
the following conditions:
a.
the document was defined as a “non-binding offer”;
b.
the term of the employment contract should commence “as of the date of signature”;
c.
“upon the signature of the employment contract” Al Hilal should pay the player the
remuneration and other benefits as stipulated in items 3 and 4;
d.
the player should present its position to the offer “by no later than 29 August 2019
at 22:00 (KSA hrs)”;
e.
in case of no reply “this letter shall be deemed as terminated”;
f.
the letter “is not intended to be legally binding and Al Hilal SFC may withdraw from
negotiations at any time without liability and without prior written notice”;
93.
In addition, the Chamber also observed that the employment proposal was dully signed by
Al Hilal’s CEO, Mr. Abdullah Abdulaziz Aljarboa.
94.
To this extent, after a careful study of the employment proposal filed by the player, the
members of the Chamber unanimously concluded that the essential elements described in
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the jurisprudence in order to justify the validity of the contract are fully included in the case
at stake. In particular, the Chamber highlighted that the document contains the signature
of both parties, provides for the duration of the employment relationship, provides for the
payable remuneration to the player, and, moreover, that it can be clearly inferred that said
document relates to the player as being employed in order to play as a footballer with Al
Hilal.
95.
The Chamber then turned its attention to the factual framework involving the negotiations
between the parties and, specifically, to the correspondences exchanged in the context of
the acceptance of the employment proposal.
96.
In this respect, the DRC observed that, in accordance with the documentation brought
forward by the parties, the employment proposal was delivered by Mr. Mohammed to Mr.
Miranda via Whatsapp. Furthermore, the Chamber noted that a copy of said document
signed by the Player was never delivered to Al Hilal (nor to Mr. Mohammed).
97.
In view of the above, the Chamber highlighted that the player’s consent was only limited
to a Whatsapp message sent by Mr. Miranda to Mr. Mohammed after the formal expiry of
the deadline settled by the club (i.e. in the early morning of 29 August 2019, at 1:17 AM,
Brazilian time).
98.
At this point, the Chamber recalled the content of art. 12 par. 3 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. Consequently, the DRC was firm to determine that the player
did not provide any evidence that confirms that he formally answered the employment
proposal within the deadline.
99.
In addition, the members of the Chamber unanimously agreed that the consent provided
via Whatsapp by a third person other than the player himself – and also to a third person
to Al Hilal, namely to Mr. Mohammed – shall not be deemed as a valid manner to accept
an employment proposal and, hence, to trigger the consequences of a labour relationship.
Additionally, the Chamber highlighted for the sake of completeness that the message in
question was dubious and unclear, and does not clearly state an acceptance on the player’s
part.
100. Furthermore, the Chamber also wished to outline that the issuance of the plane tickets by
Al Hilal to the player cannot supplement the fact that the player did not validly accept the
employment proposal under the perspective of the long-standing jurisprudence of the
Chamber.
101. The members of the DRC also concurred that the signature of the transfer agreement by
the clubs do not impact the conclusion above since the transfer agreement expressly set
forth that the “execution” of “an employment agreement” between Al Hilal and the player
should be considered as a condition precedent to the enforcement of the contract.
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102. Based on the foregoing, the Chamber unanimously concluded that, irrespective of the
formal validity of the employment proposal vis-à-vis FIFA’s jurisprudence regarding the
essentialia negotti; the player did not meet his burden of proof in order to demonstrate that
he dully accepted Al Hilal’s offer.
103. As a consequence, the Chamber decided that by not manifesting his acceptance as
established under the employment offer, the player withdrew his will in rendering services
to Al Hilal, hence triggering the termination of the offer. At the same time, the Chamber
was mindful that Al Hilal engaged the services of a different player and expressed to the
player that it was no longer interested in his services as no confirmation had been received
from him.
104. Therefore, the DRC decided that no compensation is to be awarded to the parties since
they both mutually and willingly departed from their contractual relationship and,
consequently, that both the player’s claim and Al Hilal’s counterclaim shall be rejected.
105. Lastly, the Chamber pointed out that Al Hilal’s request for reimbursement of its flight
expenses could not be upheld due to the lack of contractual basis.
106. Finally, the Chamber referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the Chamber decided that
no procedural costs were to be imposed on the parties.
107. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant / Counter-Respondent, Gabriel Girotto Franco, is admissible.
2.
The claim of the Claimant / Counter-Respondent, Gabriel Girotto Franco, is rejected.
3.
The counter-claim of the Respondent / Counter-Claimant, Al Hilal, is rejected.
4. 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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