Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 November 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (Netherlands ), member
S tefano S artori (Italy), member
Pav el Piv ov arov (Russ ia), member
Jérôm e Perlem uter (France), member
on the claim presented by the club,
Al Fateh Club, Saudi Arabia
represented by Mr Juan de Dios Crespo Perez
as Claimant / Counter-Respondent
against the player,
Elton Jos é Xav ier Gom es , Brazil
represented by Mr Breno Costa Ramos Tannuri
as Respondent / Counter-Claimant
and the club,
Al Mes aim eer S C, Qatar
represented by Mr Luca Tettamanti
as Intervening Party
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 25 January 2011, the Saudi Arabian club Al Fateh Club (hereinafter: Al Fateh or
Claimant / Counter-Respondent) and the Brazilian player Elton José Xavier Gomes
(hereinafter: the player or Respondent / Counter-Claimant) signed an employment
contract valid as from 29 January 2011 until 30 June 2011. After having renewed
their contractual relation on 1 July 2011 and on 29 May 2012, on 22 November 2013,
Al Fateh and the player concluded a new employment contract, valid as from 1 July
2014 until 30 June 2017 (hereinafter: the contract).
2.
According to article 4 of the new contract, the player was entitled to receive the
total amount of USD 4,500,000 for the entire period of the contract, payable as
follows:
In the period between 1 July 2014 and 30 June 2015:
an instalment of USD 150,000, due ‘at the signing of this contract’;
an instalment of USD 550,000, due on 1 September 2014;
a monthly salary of USD 58,333, due ‘by the end of each calendar month’;
In the period between 1 July 2015 and 30 June 2016:
an instalment of USD 750,000, due on 1 September 2015;
a monthly salary of USD 62,500, due ‘by the end of each calendar month’;
In the period between 1 July 2016 and 30 June 2017:
an instalment of USD 800,000, due on 1 September 2016;
a monthly salary of USD 66,666, due ‘by the end of each calendar month’.
3.
Article 5.1 and 5.2 of the contract stipulate the following: ‘5.1 If the second party
[player] wants to cancel the contract in the second year of the contract, must pay a
penalty to the First party of Five million US Dollars is not. 5.2 If the second party
[player] wants to cancel the contract in the third year of the contract, must pay a
penalty to the First party of Two million US Dollars is not’.
4.
Article 6 of the contract holds the following: ‘The first party may not delay payment
of the second party’s salaries or terminate the contract due to player’s injury during
play or training’.
5.
Article 9 of the contract stipulates as follows: ‘Item 9: Settlement of Disputes: 1. The
two parties shall seek solving their disputes on the enforcement of the contract by
amicable ways. 2. The committee is concerned with considering the disputes arising
between a club and a professional player on the terms and executing it’.
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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6.
On 7 August 2016, Al Fateh lodged a claim before FIFA against the player, claiming
compensation for breach of contract in the total amount of USD 2,453,588 to be paid
by the player, broken down as follows:
USD 1,599,992 as the residual value of the contract in the period between 7 July
2016 and 30 June 2017, corresponding to 12 monthly salaries of USD 66,666 each
and the instalment of USD 800,000 due on 1 September 2016;
USD 750,000 as total value of the loss of the player’s services, according to Al
Fateh calculated with due consideration to the player’s important role in the
team, the value of the player on www.transfermarket.com, the duration left on
the contract and the amount of USD 700,000, the player’s lawyer allegedly
offered to Al Fateh in order to buy-out of the contract;
USD 399,996 as ‘specificity of sport’, corresponding to 6 monthly salaries of USD
66,666 each;
Minus the amount of USD 296,400, the player is still entitled to as due
remuneration.
Furthermore, Al Fateh requested to be awarded 5% interest p.a. on the amount due,
as from ‘the date of breach of the employment contract (either 7 or 29 July 2016)’. In
addition, Al Fateh requested:
7.
that sporting sanctions will be imposed on the player;
that the player is obliged to pay the legal fees of Al Fateh;
that the Qatari club Al Mesaimeer (hereinafter: Mesaimeer or Intervening Party)
as the player’s new club and the Saudi Arabian club Al Qadisiya SC (hereinafter:
Qadisiya) as the second new club of the player, should be considered jointly and
severally liable for the payment of the compensation awarded.
In its claim, first of all, Al Fateh explains that it paid the instalments due at the
beginning of each season via cheques in several instalments during the season,
without receiving any complaints from the player. Moreover, Al Fateh explained that
it paid all amounts due in the 2014/2015 season, and that for amounts due to the
player in relation to the 2015/2016 season, an amount of USD 296,500 remained
outstanding. According to Al Fateh, it was agreed that the player would receive said
amount ‘upon his return to the Club from his annual vacation in Brazil’, however the
player ‘refused to receive the cheque for this amount […]’.
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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8.
Moreover, Al Fateh explains that the player was on holidays as from 13 May 2016
and that he returned to Al Fateh on 29 June 2016. What is more, Al Fateh holds that
the player participated in a training session on 30 June 2016 and that he underwent
medical examination, but that on 3 July 2016, he requested a meeting with Al Fateh,
in order to request an extension of his current contract with another 3 years.
According to Al Fateh, it explained to the player that it decided to postpone said
request, as it could not yet take a decision regarding a possible extension of the
contract.
9.
In addition, Al Fateh explains that during the meeting on 3 July 2016, the player
refused to sign the check for the amount of SAR 1,111,875 and – according to Al
Fateh – requested ‘to keep it at the club until he would come back from another
short vacation granted to the team between 5 and 7 July 2016 and this due to
holiday of Eid el Fitr […]’. Subsequently, Al Fateh explains that it granted the player a
visa to spend the holidays between 5 and 7 July 2016 in Bahrain, and that from said
visa it can be seen that on 5 July 2016, the player travelled from Saudi Arabia to
Bahrain.
10.
What is more, according to Al Fateh, on 5 July 2016, it informed the Saudi Arabian
Football Association (SAFF) ‘about the situation that occurred between the club and
the player and his refusal to receive the cheque […]’. Moreover, Al Fateh explained
that the player did not return to the club on 7 July 2016.
11.
According to Al Fateh also on 7 July 2016, instead of returning to the club, the player
sent a termination letter to Al Fateh’s president, by means of which the player
unilaterally terminated the contract with immediate effect. The player explained that
– although he put Al Fateh in default on several occasions - an amount of “USD
296,400” allegedly had remained outstanding.
12.
Furthermore, Al Fateh argued that ‘shortly afterwards’, it was contacted by the
player’s agent, with the request to discuss the renewal of the player’s contract. As it
had just received the player’s termination letter, Al Fateh holds that it was confused
by such behaviour, and that on 10 July 2016, it sent a default letter to the SAFF,
informing them that the player did not attend the training camp of Al Fateh in the
Netherlands.
13.
Moreover, Al Fateh explains that on 12 July 2016, the player apologized via
WhatsApp for his behaviour to Al Fateh’s president. As a result, on the same day, a
meeting was held between Al Fateh and the player’s agent, to discuss ‘the matter of
the player’.
14.
Al Fateh further points out that during the meeting, the agent of the player
requested for the renewal of the player’s contract, but that it replied that the player
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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first needed to return to Al Fateh, in order to make a final decision about a contract
renewal. In addition, Al Fateh holds that in the days after 12 July 2016, the player’s
agent not only offered that the player would waive his right to receive the amount
of USD 296,500, but also, at a later stage, the payment of an amount USD 700,000 in
order ‘that the club would let the player leave as a free agent’.
15.
As a result of all the foregoing, Al Fateh argues that ‘the termination sent on 7 July
2016 was not considered by anyone as a true termination of the contract but as an
instrument of pressure […]’, and that it expected the player to return to its club in
order to resume his duties. After having waited for two weeks, according to Al Fateh,
it sent two default letters to the player, requesting him to come back to the club by
29 July 2016 at the latest.
16.
What is more, Al Fateh held that the player did not return to its club, and that on 26
July 2016, it received a letter from the player’s lawyer, insisting on the player’s
termination of the contract on 7 July 2016.
17.
Finally, as he player had not returned to the club on 29 July 2016, on 2 August 2016,
Al Fateh informed him that it considered the contract terminated without just cause
by the player.
18.
In this respect, Al Fateh points out that it cannot be held responsible for the nonpayment of an amount, if the player refused to receive the cheque covering this
amount, because for Al Fateh there was no other way to make the payment to the
player. Further, Al Fateh explains that the player did not give a prior warning about
a possible termination of the contract, as well as that there was no substantial
amount outstanding. Also, the player could not reasonably expect that Al Fateh
would not pay the amount due, as it even offered the player to pay the amount of
USD 296,500 by cheque and finally, the player never complained about the way Al
Fateh made the payments, i.e. in several instalments throughout the season.
19.
In his reply dated 13 December 2016, the player first of all contested FIFA’s
competence to deal with the matter at hand, indicating that on an unspecified date,
Al Fateh already lodged a claim against him in front of the Professionalism and
Players’ Status Committee of the Saudi Arabian Football Federation (hereinafter: the
SAFF PSC), which is according to the player the deciding body mentioned in article 9
par. 2 of the contract.
20.
The player further explains that the SAFF PSC, on “09/02/1438” (this date corresponds
to 9 November 2016) rendered a decision in which the SAFF PSC, ‘in essence, imposed
a life-ban on the player, in casu, preventing the latter, perpetually, to sign a new
employment contract with any football club affiliated to the SAFF again’.
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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21.
As a result of the foregoing, and based on the legal concepts of forum shopping, ne
bis in idem and res judicata, the player states that FIFA has no jurisdiction to consider
the claim of Al Fateh and argues that the case, based on article 25 par. 4 of the FIFA
Regulations, should be referred to the FIFA Disciplinary Committee.
22.
As to the substance, only if FIFA would declare itself competent, the player argues
that he terminated the contract with just cause.
23.
Moreover, the player refers to article 6 of the contract and argues that in the
2015/2016 season, Al Fateh was on several occasions late with payments, e.g. with
the payment of the amount of USD 750,000, due as from 1 September 2015.
24.
In this respect, the player explains that on 1 November 2016, he only received the
amount of USD 187,500 and that the residual part of the amount of USD 750,000
remained outstanding. As a result, on 1 April 2016, the player put Al Fateh in default
for the outstanding amount of USD “562,400”. After having received a payment of
USD 266,000 from Al Fateh on 23 May 2016, the player holds to have put Al Fateh
again in default on 16 June 2016, for the payment of the amount of “296,400”. In
said default letter, the player holds to have provided Al Fateh with a deadline of
‘more than 15 days […] remedy of such breach’, and that in the event of nonpayment, he would terminate the contract with just cause due to the outstanding
payments.
25.
In addition, when he returned to Al Fateh on 29 June 2016, his default letter dated
16 June 2016 was ‘completely ignored […]’ and that such behavior ‘brought an
unsustainable and irremediable lack of confidence to the referenced employment
relationship as whole, in particular, as from the player side’. Moreover, the player
argues that Al Fateh never provided him with any cheque whatsoever, regarding the
outstanding amount. As a result, the player holds to have terminated the contract on
7 July 2016, by sending his termination letter by email to the addresses
[email protected], [email protected] and [email protected].
26.
Furthermore, the player argues that in the period after 7 July 2016, he tried to
amicably settle the matter at hand with Al Fateh, however to no avail. Since ‘[…]
only after the referenced negotiations had failed, the Club addressed a senseless
correspondence to the player requesting his return in order to attend the training
sessions regarding the pre-season time’, on 26 July 2016, the player again pointed
out to Al Fateh that the contract was already terminated by him on 7 July 2016.
27.
As a result, the player holds that he terminated the contract with just cause, as Al
Fateh was in breach of its financial obligations, as well as that said ‘violation persist
for a long time’. In this respect, the player points out that the amount of USD
296,500 (which corresponds to more than 4 monthly salaries) remained outstanding
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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for at least one entire season. In addition, the player points out that – in line with
article 8 of the SAFF Regulations - Al Fateh should have paid the player’s salaries ‘by
means of a deposit into bank accounts […]’.
28.
Moreover, the player argues that Al Fateh was in the possession of his email address,
as well as the address of his residence in Saudi Arabia, and that Al Fateh, ‘bizarrely
only submits the alleged correspondence exclusively to the SAFF’.
29.
In conclusion, the player asks for the rejection of Al Fateh’s claim and lodged a
counterclaim, claiming the amount of USD 1,879,832 to be paid by Al Fateh, specified
as follows:
USD 296,500 as outstanding remuneration, plus 5% interest p.a. as from 1
September 2015;
USD 1,600,000 as residual value of the contract in the 2016/2017 season;
USD 133,332 as ‘specificity of sport’, consisting of two monthly salaries in the
period which the player remained unemployed;
Minus the amount of USD 150,000 as total value of the new contract the player
holds to have signed on 1 September 2016 with Mesaimeer, valid between 1
September 2016 and 28 February 2017.
Moreover, the player requested for sporting sanctions to be imposed on Al Fateh and
legal fees to be paid by Al Fateh.
30.
In its replica and reply to the counterclaim, Al Fateh first of all contests the player’s
objection to FIFA’s competence and explained that it did not lodge a claim in front of
the SAFF against the player, but that it ‘informed the SAFF authorities that the player
once has been under that contract and prematurely terminated it, intended to
contract another club in Saudi Arabia, as the club was always reporting all the acts
and breaches of the player to the SAFF’. Al Fateh also explained that the procedure
before the SAFF PSC was ‘with a posterior date of the claim to the FIFA’, as it sent its
request to intervene on “23/01/1438” (this date corresponds to 25 October 2016) to
the SAFF.
31.
Subsequently, Al Fateh explained that the decision of the SAFF PSC was ‘a decision
forbidding the player to be registered for any Saudi club without the acquiring
approval of his original club Al Fateh SC and not a life ban […]’ and that said decision
was taken in order ‘to keep the whole rights of Saudi Arabian clubs and not limited
to protecting Al Fateh’. According to Al Fateh, the decision was also taken in view of
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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‘the return of the player to play at the Saudi Competition […]’, which ‘asserted his
circumvention to Saudi Arabian Football Regulations’.
32.
In addition, Al Fateh explained that in the proceedings before the SAFF, it never
asked for compensation for breach of the employment contract to be paid by the
player. Instead, Al Fateh holds to have informed the SAFF PSC about the current
proceedings before FIFA and that it only requested the SAFF ‘to take measures in
order to protect the interests of Saudi Clubs’.
33.
What is more, Al Fateh explains that the player ‘in fact’ recognized the competence
of the SAFF bodies ‘to treat with the dispute’, as he appealed the mentioned decision
of the SAFF PSC dated 10 November 2016. Al Fateh explains that in said appeal, the
player however argued that the SAFF PSC is not competent to hear the dispute
between the parties, and thus arguing both in front of FIFA and in front of the SAFF
PSC, that these bodies are not competent.
34.
As a result of the foregoing, Al Fateh argues that FIFA should be competent to deal
with the matter at hand, and, in case FIFA would consider that there was indeed ‘the
res iudicata, it should be limited by an assumption that a player was the party liable
for the breach of the contractual obligations […]’. Al Fateh concluded that ‘the FIFA
DRC would be only competent to render a decision establishing the amount of the
compensation that should be paid in favour of the club’.
35.
As to the substance, Al Fateh pointed out that after the termination of the contract
in July 2016, the player signed new contracts with the following clubs:
-
on 1 September 2016 with Mesaimeer, for the period between 1 September
2016 and 1 January 2017, entitling the player to the total amount of USD
150,000 and;
-
on 1 January 2017 with Qadisiya, for the period between 4 January 2017 and 3
July 2019, entitling the player to the total amount of USD 3,944,990.
36.
In addition, according to Al Fateh, the player’s transfer to Mesaimeer has to
beconsidered as a ‘bridge transfer’, as the transfer to Qadisiya is a ‘clear sign for the
actual inducing […]’, as well as that the player signed a contract with Mesaimeer, a
second division club from Qatar, just ‘as a bridge transfer to get back to the actual
inducing club Qadisiya SC’. Al Fateh further explained that the player did not
participate in any game of Mesaimeer.
37.
Additionally, Al Fateh argued that the default letters the player alleges to have sent
to its club and the termination letter do not ‘contain the proof that the player sent
the mentioned notifications to the club rather than to the Saudi Arabian Football
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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Federation’ and that, since Al Fateh did not reply, it could not established that it
received such communications.
38.
Al Fateh again concludes that the player had no just cause to terminate the contract
on 7 July 2016, since it fulfilled all its financial obligations towards the player, since
the player refused to receive the cheque and because there was ‘a lack of prior
warning’ and ‘no loss of confidence for the player that the club would comply with
its contractual obligations’.
39.
With regard to the outstanding amount of EUR 296,500, Al Fateh argues that the
player did not consider this amount as a substantial amount, since during the
negotiations the player even offered to waive his right to receive said amount and
also offered to pay an amount USD 700,000, in order to buy himself out of his
contract.
40.
Finally, Al Fateh reiterates its previous arguments and argued that the player acted in
bad faith, because he ‘wanted to use the outstanding amount as an excuse to
prematurely terminate the contract and leave the club’. Moreover, it referred to a
witness statement of its president, which confirms the fact that the player refused to
receive the cheque dated 3 July 2016 and further states that it ‘could not realize the
payment in another way […] due to the official Muslim worldwide holiday “Eid el
Fitr”’.
41.
In his duplica, the player again explains that FIFA is not competent to deal with the
matter at hand, and refers explicitly to article 9 par. 2 of the contract. The player
argues that ‘the legal bodies of SAFF detains jurisdiction to order a party that
eventually breach an employment contract to pay compensation and impose sporting
sanctions’ and that during the proceedings before the SAFF ‘the payment of
compensation and the imposition of sporting sanctions were going to be considered
obviously’. Also, the player points out that in view of the legal principle of forum
shopping, Al Fateh does not have the right to lodge a second claim against the
player in front of FIFA, only because the SFF PSC did only impose sporting sanctions
on him, and did not order the payment of any compensation to Al Fateh.
42.
As to the substance, the player argues that the e-mail address he used for the
notification of the default letters, was the e-mail address ‘officially indicated by the
club in the TMS’. Furthermore, he even received a reply from Al Fateh, i.e. Mr Ahmed
Al Rashid with the email address [email protected]. As a result, the player
holds that it can established that Al Fateh received the default letters, however that
it did not pay him the requested outstanding amount.
43.
Moreover, the player argues that he considers the amount of USD 296,500 as
substantial, since it corresponds to approximately 4 monthly salaries and further
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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points out that there was a ‘persistent failure’ from Al Fateh to timely pay his
receivables. In addition, the player rejects Al Fateh’s arguments regarding the
possible waiving of the amount of USD 296,500, since he only made this proposal
during negotiations about a new contract, ‘without any prejudice’. Finally, the player
reiterates his arguments, holds he acted in good faith and that the termination letter
was the ultima ratio for him, as Al Fateh simply ignored his default letters.
44.
In its position regarding the claim of Al Fateh against the player, Mesaimeer argued
that from the file, it can be established that Al Fateh ignored the second default
letter of the player, and that as a result, the player had a just cause to terminate the
contract on 7 July 2016.
45.
In addition, Mesaimeer explained that after the termination of the contract between
the player and Al Fateh, first of all the player signed a contract with the Brazilian
club Clube de Regatas Brasil (hereinafter: CRB). However, according to Mesaimeer,
the registration of the player in the TMS could not be concluded, ‘due to unknown
reasons’.
46.
After the transfer of the player to CRB could not be concluded, the player decided to
travel to Qatar, as the transfer window in said country was still open and because he
wanted to play at least at a professional level. Only under these conditions, on 1
September 2016, the player and Mesaimeer signed an employment agreement.
When Mesaimeer tried to register the player, Al Fateh rejected the issuance of the
player’s ITC, however by a decision of the Single Judge of the Players’ Status
Committee dated 19 October 2016, the player could be provisionally registered with
Mesaimeer.
47.
Moreover, Mesaimeer points out the claim of Al Fateh contains inconsistencies and
cannot be upheld. In this respect, Mesaimeer argues that Al Fateh’s claim is
inadmissible and that the matter at hand cannot be dealt with by FIFA, due to the
legal principles of res iudicata and forum shopping.
48.
Furthermore, Mesaimeer states that the player terminated the contract with just
cause due to a substantial outstanding amount and that as such, FIFA cannot ‘grant
any compensation at all’ to Al Fateh.
49.
What is more, according to Mesaimeer, it cannot be considered as the player’s new
club and be held jointly and severally liable for the payment of any amounts, as CRB
was the player’s first new club. In this respect, Mesaimeer argues that the player’s
first new club in the sense of article 17 of the FIFA Regulations ‘must be interpreted
as the club that the player joins immediately after’ and further points out that it only
registered the player more than two months ‘after date of registration sought by
CRB’.
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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50.
Subsequently, Mesaimeer explains that it never induced the player to breach his
contract, as ‘the player autonomously and freely decided to leave Al Fateh long
before he even approached’ Mesaimeer. The only reasons the player and Mesaimeer
concluded a contract were, according to Mesaimeer, the strong will of the player to
return to professional football and the fact that Qatar was one of the few countries
in which the transfer window was still open.
51.
Regarding the alleged bridge transfer, Mesaimeer rejects Al Fateh’s arguments in this
respect and further states that the player participated in several official matches of
Mesaimeer.
52.
In conclusion, Mesaimeer requests to reject all the claims of Al Fateh, and points out
that CRB should ‘be joined in the present procedure’.
53.
Finally, after the termination of the contract with Al Fateh, the player signed the
following contracts:
on 1 September 2016 with Mesaimeer, for the period between 1 September 2016
and 1 January 2017, entitling the player to the total amount of USD 150,000 and;
on 1 January 2017 with Qadisiya, for the period between 4 January 2017 and 3
July 2019, entitling the player to the total amount of USD 3,944,990. For the
period between 4 January 2017 and 30 June 2017, the player was entitled to
receive a total amount of USD 1,064,998.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the claim of Al Fateh was submitted to FIFA on 7 August
2016 and that the counterclaim of the player was submitted on 13 December 2016.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are
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
2017) the Dispute Resolution Chamber is in principle competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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dimension between a Saudi Arabian club and a Brazilian player, with the
involvement of a Qatari club.
3.
However, the Chamber noted that the player is of the opinion that the Dispute
Resolution Chamber has no competence to deal with the claim at stake, by virtue of
article 9.2 of the contract as well as the application of the legal principles of forum
shopping and res iudicata.
4.
In this respect, the player further clarified that Al Fateh’s claim is aimed at obtaining
a decision from the Dispute Resolution Chamber ruling that the player terminated
the contractual relationship with Al Fateh without just cause, whereas the
employment relationship between Al Fateh and the player has been already
considered terminated at the player’s fault by means of the decision passed by the
Professionalism and Player’s Status Committee of the Saudi Arabian Football
Federation (hereinafter: the SAFF PSC) on 9 November 2016, which deciding body
according to the player is mentioned in article 9.2 of the contract. In the player’s
view, art. 9.2 excluded the competence of the Dispute Resolution Chamber to
adjudicate on the present matter and in any case, a matter allegedly involving the
same parties and object had already been decided by the SAFF PSC.
5.
In view of the player’s objection to the admissibility of Al Fateh’s claim, the Chamber
carefully analysed the information on file, and noted that indeed, it could be
established that Al Fateh, on 25 October 2016, sent a letter to the SAFF PSC,
requesting to prevent the player from signing with another club in Saudi Arabia,
because it did not agree with the termination of the player and that it wanted its
rights to be protected. Moreover, it remained uncontested that on 9 November 2016,
the SAFF PSC declared that the player could not sign an employment contract with
another Saudi Arabian club, because of the fact that he failed to join Al Fateh during
the validity period of his contract.
6.
What is more, following such decision of the SAFF PSC, the player deemed that the
legal principles of res iudicata and forum shopping apply and Al Fateh could no
longer lodge a claim against him for breach of contract in front of the DRC. In turn,
the Chamber observed that Al Fateh insisted that FIFA has jurisdiction to deal with
the present matter, as the request before the SAFF PSC was only made to protect the
interests of Saudi clubs and did not deal with a possible breach of contract by the
player.
7.
In view of all the foregoing, and first taking into account the player’s remarks
regarding the res iudicata and forum shopping-principles, the Chamber went on to
examine the contents of the alleged decision of the SAFF PSC dated 9 November
2016.
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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8.
In this respect, the Chamber deemed it appropriate to briefly recall that on the basis
of the principle of res iudicata, a decision-making body is not in a position to deal
with the substance of a case, in the event that another deciding body has already
dealt with the same matter by passing a final and binding decision. What is more, the
DRC also deemed it important to underline that in the spirit of the applicable
regulations, a player or a club, who actively decides to bring forward a dispute
before other courts outside the dispute resolution process proposed within the legal
framework of the football system, must demonstrate consistency in relation to the
choice of jurisdiction made. The DRC’s contention is that a party who chooses a
certain course of legal remedy may not then decide to change the legal forum of the
dispute, the so called forum shopping, as this would jeopardise the credibility of the
sporting dispute resolution system
9.
With the aforementioned circumstances in mind, the Chamber pointed out that the
principle of res iudicata can only be applicable if cumulatively and necessarily the
parties to the disputes and the object of the matter in dispute are identical.
10.
From the information and documentation on file, the Chamber could verify that
even though the identity of the parties appears to be given, on the one hand, that Al
Fateh merely requested the SAFF PSC to protect its immaterial rights and did not
submit any further financial or disciplinary requests. In particular, the DRC noted that
the SAFF PSC only decided that the player did not join Al Fateh during the validity of
the contract and therefore, he could not join other Saudi Arabian clubs. As such, the
SAFF PSC did not decide on the termination of the contract between the parties
and/or on the question of who was held responsible for the early termination of the
employment contract.
11.
In view of the aforementioned, the Dispute Resolution Chamber held that the
abovementioned legal actions were based on the same employment contract, but
aimed at establishing different consequences, and that as such, the condition of
identity of the object of the matter in dispute was not met, as the two claims are not
similar. Thus, the Chamber established that the matter at hand could not be
considered as a res iudicata, and that Al Fateh did not demonstrate inconsistency in
relation to the choice of jurisdiction made. Thus, the DRC rejected the player’s
objection to the admissibility of Al Fateh’s claim related to res iudicata and forum
shopping.
12.
Subsequently, the Chamber drew its attention to the player’s second objection to the
admissibility of Al Fateh’s claim, arguing that the parties had agreed upon the
jurisdiction of the SAFF PSC in their contract. In this respect, the Chamber emphasised
that in accordance with art. 22 lit. b) of the 2012 edition 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
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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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 the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members
of the Chamber referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on
1 January 2008.
13.
While addressing its competence to hear the present matter, the Dispute Resolution
Chamber considered that it should analyse whether the employment contract at the
basis of the present dispute actually contained a clear and specific jurisdiction clause.
In view of the foregoing, the Chamber first referred to art. 9.2 of the employment
contract, on the basis of which the player contested FIFA’s jurisdiction. Said article
stipulates that if the parties are not able to find an amicable agreement, the dispute
should be submitted to ‘the committee’. The members of the Chamber outlined that
the content of art. 9.2 is rather vague, as it does not explicitly refer to a national
dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit.
b) of the aforementioned Regulations, but only to ‘the committee’.
14.
In view of the foregoing, the Chamber held that the alleged jurisdiction of the SAFF
PSC does not derive from a clear reference in the employment contract and
therefore, this argument regarding the admissibility of Al Fateh’s claim could also
not be upheld.
15.
As a result of all the foregoing, all the player’s objections towards the competence of
FIFA to deal with the present matter had to be rejected, and 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.
16.
In continuation, 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 (edition
2016), and considering that the present claim was lodged on 7 August 2016 and the
counterclaim on 13 December 2016, the 2016 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
17.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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18.
In continuation, the members of the Chamber took into account that, on 22
November 2013, Al Fateh and the player concluded an employment contract, valid
between 1 July 2014 and 30 June 2017. Furthermore, the Chamber noted that on 7
July 2016, the player notified Al Fateh of the termination of the contract on the basis
of outstanding remuneration, which the player considered to be a termination with
just cause.
19.
Al Fateh, for its part, submitted that the player had no just cause to terminate the
contract on 7 July 2016 and that the termination letter dated 7 July 2016, cannot be
considered as a ‘true termination’, as according to Al Fateh, the player did not want
to terminate his contract. Al Fateh further explains that on 2 August 2016, it
terminated the contract with the player, as he did not return to its club anymore,
which it considers to be a just cause.
20.
With the aforementioned considerations in mind, in particular, the opposite position
of the parties, the Chamber deemed that the underlying issue in this dispute, was to
determine on which date and by which party the employment contract had been
unilaterally terminated, and whether said termination was made with or without just
cause. Subsequently, the Chamber needed to determine the consequences of said
early termination of the contractual relationship, as well as to establish which party is
to be held responsible for said consequences.
21.
In this respect, the Chamber wished to emphasize that Al Fateh acknowledges that
an amount of USD 296,500 related to the 2015/2016 season remained outstanding,
but claimed to have agreed with the player that said amount would be paid when
the player would have returned from his holidays in Brazil. Further, Al Fateh points
out that upon returning from holidays, the player refused to receive the check in the
amount of SAR 1,111,875 (corresponding to approximately USD 296,300) and instead
wanted to negotiate on a new contract. What is more, Al Fateh stated that it
informed the player that it could not yet take a decision regarding a possible
extension of the contract and that it granted the player a short vacation. After not
having returned from said vacation and having sent the termination letter on 7 July
2016, the player, according to Al Fateh, apologised for his behaviour. For this reason,
Al Fateh deems that the player did not want to terminate the contract on 7 July
2016. Finally, Al Fateh holds that after the player did not return to Al Fateh until 2
August 2016, on said date, it terminated the contract with just cause, based on the
player’s unjustified absence.
22.
Furthermore, the Chamber took note that the player explained that on two different
occasions, i.e. on 1 April 2016 and 16 June 2016, he put Al Fateh in default and
requested for the payment of his outstanding remuneration, however to no avail.
What is more, according to the player, on 7 July 2016, the total amount of USD
296,500 was yet to be paid by Al Fateh, as it failed to pay him said part of the total
sign-on fee of USD 750,000, due no later than 1 September 2015. As a result, on 7
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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July 2016, the player holds to have had no other choice than to unilaterally terminate
the contract.
23.
When analysing the respective arguments, the Chamber first of all turned its
attention to the events allegedly occurred in July 2016. In doing so, the Chamber
noted that the letter of the player dated 7 July 2016, is very clear, as it explicitly
mentions that the player unilaterally terminates his contract with Al Fateh, due to
outstanding remuneration. In relation to the later correspondence between the
parties in the period after 7 July 2016, the members of the Chamber only noted that
these letters aimed at possibly finding an amicable solution for the matter at hand,
and the possible conclusion of a new contract. When said attempts to amicably solve
the matter at hand failed, the player explicitly insisted on his termination made on 7
July 2016.
24.
In view of the foregoing, the Chamber deemed that Al Fateh’s arguments that it
terminated the contract with the player with just cause on 2 August 2016, cannot be
upheld, as it was the player who had unilaterally terminated his contract with Al
Fateh on 7 July 2016 and later, on 26 July 2016, insisted on said termination.
25.
Turning its attention to the question as to whether the termination of the player on
7 July 2016 was made with or without just cause, the Chamber recalled that
according to the legal principle of the burden of proof contained in art. 12 par. 3 of
the Procedural Rules, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof.
26.
Subsequently, the Chamber focused on the arguments of Al Fateh that it offered the
player a check with a value of the outstanding remuneration, but that the player
refused to receive said check. In this respect, the Chamber established that there is no
evidence on file that the player indeed refused to receive the check offered to him
and the player equally disputes this allegation of Al Fateh. The player, on the other
hand, submitted documentary evidence that he put Al Fateh on two different
occasions in default, requesting for the payment of the outstanding remuneration,
and that Al Fateh even acknowledged receipt of one of these default letters, namely
via its email dated 24 April 2016, confirming that it would come back to the player
with a reply.
27.
In view of the above, the DRC concluded that, taking into account the
documentation presented by the parties to the dispute, the amount of USD 296,500
(as outstanding part of the sign-on fee of USD 750,000 due on 1 September 2015),
equivalent to almost five monthly salaries, remained outstanding on 7 July 2016.
Consequently, the Chamber concurred that Al Fateh had seriously neglected its
financial contractual obligations towards the player.
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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28.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber came to the unanimous conclusion that on
7 July 2016, the player had a just cause to unilaterally terminate the contract and
that Al Fateh is to be held liable for the early termination of the contract with just
cause by the player.
29.
Having established that Al Fateh is to be held liable for the early termination of the
employment contract, the Chamber focused its attention on the consequences of
such termination. Taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided to reject Al Fateh’s claim and established that the player is entitled
to receive from Al Fateh an amount of money as compensation for breach of
contract, in addition to any outstanding payments on the basis of the relevant
employment contract.
30.
Along those lines, the Chamber firstly referred to the player’s request regarding the
outstanding remuneration at the time of the unilateral termination of the contract.
In this respect, the members of the Chamber concurred that Al Fateh must fulfil its
obligations as per the employment contract in accordance with the general legal
principle of “pacta sunt servanda”.
31.
Consequently, the Chamber decided that Al Fateh is liable to pay to the player the
remuneration that was outstanding at the time of the termination, i.e. the amount
of USD 296,500, which is the remaining part of the sign-on fee in the amount of USD
750,000, which was outstanding as from 2 September 2015.
32.
Moreover, taking into account the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that Al Fateh
must pay to the player interest of 5% p.a. on the amount of outstanding
remuneration, i.e. USD 296,500 as of 2 September 2015 until the date of effective
payment.
33.
In continuation, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the members
of 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.
34.
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
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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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 noted that the clauses in articles 5.1 and 5.2 of the
contract stipulate the financial conditions under which the player would be allowed
to terminate the contract with the club during the second and third year,
respectively.
35.
The members of the Chamber agreed that these clauses are not clearly phrased and
cannot be considered as compensation clauses, but rather as buy-out clauses,
therefore, said clauses cannot be taken into consideration in the determination of
the amount of compensation.
36.
As a consequence of the above, the members of the Chamber determined that the
amount of compensation payable by Al Fateh to the player had to be assessed in
application of the 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.
37.
Bearing in mind the foregoing, as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the terms
of the employment contract until 30 June 2017. Consequently the Chamber
concluded that, in line with the player’s request, the amount of USD 1,600,000 (i.e.
the payments due to the player in the period between July 2016 and June 2017)
serves as the basis for the determination of the amount of compensation for breach
of contract.
38.
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 able to reduce his loss of income. According to the
constant practice of the DRC, 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.
39.
In this context, the Chamber noted that on 1 September 2016, the player found
employment with the Qatari club, Mesaimeer. In accordance with the pertinent
employment contract which has been made available by the player, valid until 1
January 2017, the player was entitled to receive a total amount of USD 150,000.
Moreover, the Chamber noted that on 1 January 2017, the player signed another
contract, with the Saudi Arabian club Qadisiyah, valid until 3 July 2019, and
according to which the player was entitled to receive the total amount of USD
1,064,998 in the period between 1 January 2017 and 30 June 2017. Consequently,
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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the Chamber established that the value of the new employment contracts the player
signed in the relevant period until 30 June 2017, amounted to USD 1,214,998.
40.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that Al Fateh must pay the
amount of USD 385,002 to the player, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
41.
Moreover, taking into account the player’s request as well as its longstanding
jurisprudence, the Chamber decided that Al Fateh must pay to the player interest of
5% p.a. on the amount of compensation as of the date on which the counter-claim
was lodged, i.e. 13 December 2016, until the date of effective payment.
42.
Furthermore, the members of the Chamber decided to reject any further counterclaims lodged by the player.
43.
The Chamber concluded its deliberations in the present matter by rejecting the claim
lodged by Al Fateh, as it has been established that the player had just cause to
terminate the employment contract, and by partially accepting the counterclaim of
the player.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Al Fateh, is admissible.
2.
The claim of the Claimant / Counter-Respondent is rejected.
3.
The counter-claim of the Respondent / Counter-Claimant, Elton José Xavier Gomes, is
partially accepted.
4.
The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, w ithin 30 day s as from the date of notification of the present decision,
outstanding remuneration in the amounts of USD 296,500, plus 5% interest p.a. as
from 2 September 2015 until the date of effective payment.
5.
The Claimant / Counter-Respondent has to pay to the Respondent / CounterClaimant, w ithin 30 day s as from the date of notification of the present decision,
compensation for breach of contract in the amount of USD 385,002, plus 5% interest
p.a. as from 13 December 2016 until the date of effective payment.
6.
In the event that the amounts due to the Respondent / Counter-Claimant in
accordance with the above-mentioned numbers 4. and 5. are not paid by the
Claimant / Counter-Respondent within the stated time limits, the present matter shall
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
Page 19 of 20
be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
7.
Any further claim lodged by the Respondent / Counter-Claimant is rejected.
8.
The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent immediately and directly of the account number to which the
remittances under points 4. and 5. are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit for
filing the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Club Al Fateh Club, Saudi Arabia / Player Elton José Xavier Gomes, Brazil / Club Al Mesaimeer SC, Qatar
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