Labour Disputes
Texto da decisão
REF. FPSD-13861
Decision of the
Dispute Resolution Chamber
passed on 22 August 2024
regarding an employment-related dispute concerning the player Robson
Januario de Paula
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Khadija TIMERA (Senegal), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT/COUNTER-RESPONDENT:
Player Robson Januario de Paula, Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT/COUNTER-CLAIMANT:
Al Jandal Club, Saudi Arabia
Represented by Ahmad Alamir
INTERVENING PARTY
Dalian Zhixing Football Club, China
pg. 2
REF. FPSD-13861
I. Facts of the case
1.
The parties to the present dispute are:
-
The Brazilian player, Robson Januario de Paula (hereinafter: the Player or the
Claimant/Counter-Respondent).
-
The Saudi Arabian club, Al
Respondent/Counter-Claimant).
-
The Chinese club, Zhixing Football Club (hereinafter: the Intervening Party).
Jandal
Club
(hereinafter:
the
Club
or
the
2.
On 20 July 2023, the Player and the Club concluded an employment contract valid as from
the date of signature until 20 May 2024 (hereinafter: the contract).
3.
According to clause 5.1. of the contract, the Club undertook to pay the Player a monthly
net salary of USD 14,000, payable at the end of each month.
4.
According to clause 5.2. of the contract, the Player was entitled to a payment named
“contract provider” of USD 60,000 net payable on 25 July 2024.
5.
Clause 5.3 of the contract reads as follows:
“the Club shall, upon satisfaction by the Player of the condition(s) specified in this
section, pay the following remuneration to the Player (net of any taxes, bank fees and
foreign exchange charges) within [Blank section – no amounts or payment type
included]”
6.
Clause 5.5 of the contract reads as follows:
“The Club shall also provide the following non-monetary benefits/benefits in kind to
the Player during the validity of the contract:
Non-monetary
/benefit in kind
Housing
Transport
Tickets
7.
benefit Details
Condition to be met (if any)
Yes
Yes
Travel insurance for the Yes
player and his family
Clause 11.2 of the contract reads as follows:
pg. 3
REF. FPSD-13861
“Amendments are only permitted to be made to Article 4 and Article 5 of this Contract.
Any such amendments shall be made by mutual agreement, recorded in writing, and
signed by both Parties. No other amendments shall be permitted.”
8.
Clause 12 reads as follows:
“1. In the case of the Club unlawfully failing to pay the Player at least two monthly
salaries on their due dates, the Player will be deemed to have a just cause to terminate
this Contract, provided that he has put the Club in default in writing and has granted
a deadline of at least 15 days for the Club to fully comply with its financial
obligation(s).
2. If either Party terminates the Contract with just cause, following amount will have
to be paid: — (-)• If there is no agreement on the amount, compensation for breach of
contract is payable in accordance with Art. 17 of the FIFA Regulations.
3. The Club shall not terminate the contract due to the Player sustaining an injury
during play or training.
4. The validity of the Contract may not be made subject to a successful medical
examination and/or the grant of a work permit.
5. The Club shall not suspend, Interrupt or delay the Player’s remuneration due to the
Player sustaining an Injury during play nr training. The Contract may not be
terminated by either party during the sporting season in any circumstances, with the
exception of cases where: (a) there is just cause; and/or (b) the Parties have agreed to
terminate the Contract before the date of its expiry by mutual consent.
6. The Player shall not, under any circumstances, waive salaries for work already
performed, unless it is of greater benefit to the player.
7. The Club shall notify the Committee in writing of any termination of this Contract
without delay and within three (3) working days at the latest. The Club shall also notify
the League Organiser wherever so required under the relevant League Organiser
regulations.”
9.
On 5 December 2023, as per the evidence provided by Player, or 6 December 2023 at 1:31h
Saudi Arabian time, as per the evidence provided by the Club, the Player put the Club in
default and requested payment of USD 86,066 corresponding to : (i) USD 50,000 (signature
bonus); (ii) USD 7,000 (September 2023 salary); (iii) USD 14,000 (October 2023 salary); (iv)
USD 14,000 (November 2023 salary); (v) USD 1,066 (performance bonuses). The Player set
a 15 days’ time limit in order to remedy the default.
pg. 4
REF. FPSD-13861
10. On 14 December 2023, the Player and the Club's Professionalism Manager had a discussion
via the WhatsApp application in which (i) the Club's Professionalism Manager sent a copy
of a settlement agreement dated 18 December 2023, (ii) the Player replied that his lawyer
would review the settlement agreement, (iii) the Club's Professionalism Manager asked the
Player if he would sign the settlement, to which he replied that there was a discrepancy in
the amount due.
11. On 17 December 2023, the Club paid the Player USD 39,000.
12. On an unspecified date, the Club's Professionalism Manager and the Player had the
following discussions. It is to be noted that the order of the WhatsApp print screens were
provided in the following order:
[Print screen 1]
“[Player]: My friend Im still in Sakaka
[Club's Professionalism Manager]: I am waiting for you, if you come, call me
[Player]: Ok
[Club's Professionalism Manager]: Hello bro, all your remaining dues that
the lawyer notified us of are ready. We are waiting for you now at the club
to deliver them to you. Do not delay.
[Club's Professionalism Manager]: Bro where are you?”
[Print screen 2]
“[Player]: Tomorrow we speak bro, I’m not in domat now.
[Club's Professionalism Manager]: Abdul Karim and I are waiting for you.
When will you come?
[Player]: My friend Im still in Sakaka
[Club's Professionalism Manager]: I am waiting for you, if you come, call me.
[Player]: Ok”
[Print screen 3]
“[Player]: My friend I understand you but I don’t agree! But no problem
tomorrow we speak, okay?
pg. 5
REF. FPSD-13861
[Club's Professionalism Manager]: We want to meet with you now
[Club's Professionalism Manager]: So that we can end all this and solve the
problem
[Club's Professionalism Manager]: Are you coming to the club now?
[Player] Tomorrow we speak bro, I’m not in domat now”
13. By e-mail, on 21 December 2023 at 8:21 pm, the Club requested the Player to “come to the
Club’s premises to receive late payments”.
14. On 21 December 2023, the Player sent a termination notice to the Club. In his letter, the
Player clarified that the total amount due to him was USD 76,000, that the Club only paid
USD 39,000 on 15 December 2023, and that the there was an outstanding amount of USD
37,000.
15. On 23 December 2023, the Player left Saudi Arabia.
16. On 25 December 2023, the Club sent an email to the Player refuting the legality of his
termination notice. In particular, the Club indicated the following:
-
It received the default notice on 6 December 2023 requesting payment of USD
86,066.
-
As per its records, the Club paid USD 46,865 (i) on 8 August 2023 SAR 52,000 / USD
14,000: salary of 10 days of July & 20 days of August 2023; (ii) on 19 October 2023
SAR 52,000/USD 14,000: salary of 10 days of August & 20 days of September 2023 (iii)
on 20 November 2023 SAR 33,296/USD 8,865: 10 days of September & 9 days of
October 2023; and (iv) on 26 November 2023 USD 10,000 as part of the Player
signature bonus.
-
The Player wrongly requested the payment of USD 7,000, as this amount had already
been paid. As to the payment of USD 1,066 as bonus, the Club mentioned that it had
no contractual basis.
-
As of 30 November 2023, the amount due was USD 73,799 (USD 9,799 corresponding
to 21 days of October 2023; USD 14,000 as November 2023 salary and USD 50,000
as the balance of the signature bonus).
-
In accordance with settlement agreement, it made a timely payment of SAR
146,250/USD 39,000 and the remaining amount due of USD 36,666 was to be made
pg. 6
REF. FPSD-13861
on 15 January 2024. The Club enclosed an unsigned settlement agreement, which it
claimed had been verbally accepted by the Player.
-
On 18 December 2023, the Club sent the Player the settlement agreement, for which
he replied that he would review it and then as there was a discrepancy with the
amount due, he was unable to execute it.
-
On 20 December 2023, the Club procured a check of USD 36,666 from a bank in the
player's name. The Club mentioned that “In a timely manner, the club initiated the
recall of the player by phone calls as well as through messaging him by the messaging
application WhatsApp via the club's professionalism manager, wherein he duly notified
the player of his obligation to promptly attend to the club's premises in order to settle the
outstanding monetary sum owed. However, the player's response was that he is currently
situated outside of the club's vicinity and therefore unable to physically present himself
at the club. Nonetheless, the player expressed his intention to engage in a discussion with
the club on the following day, which is Thursday the 21st of December 2023”
-
On 21 December 2023, the Club sent an email to the Player asking him to collect the
bank cheque, but the Player did not respond. Furthermore, the Club encountered
difficulties in transferring the funds from the bank cheque to the Player's bank
account via an international transaction.
-
On 21 December 2023 at 9:19 pm prior to the deadline, the Club received the notice
of termination. The Club indicated that it had a deadline to reply to it until 22
December 2023. However, as this deadline was on a non-working day, the Club sent
the remaining amount on 24 December 2023.
-
In view of all the above, the Club indicated that the contract remained binding.
17. On 25 December 2023, the Club paid the Player USD 34,785.
18. On 30/31 December 2023, the Club sent a notice to the Player reiterating the information
sent on 25 December 2023, and emphasising that the Player had refused to receive a bank
cheque. In addition, the Club asked the Player to fulfil his contractual obligations within
seven days.
19. On the same date, the Player answered to the Club explaining that the Club’s request had
no factual or legal basis since the Player had already terminated the contract.
20. On an unspecified date, the Player requested, via the application WhatsApp, a document
from the president of the Club specifying the last date of contract.
21. On 6 February 2024, the Club’s Professionalism Manager sent the Player a proposal for a
mutual termination however, the Player refused it.
pg. 7
REF. FPSD-13861
22. On 21 February 2024, the Player signed an employment contract with the Intervening Party
valid as from 1 February 2024 until 30 November 2024, including a monthly salary of USD
10,003 gross per month /USD 8,000 after tax; totalling USD 80,000 after tax.
II. Proceedings before FIFA
23. On 29 February 2024, the Player filed the claim at hand before FIFA. A summary of the
parties’ position is set out below.
a. Position of the Player
24. The Player requested outstanding remuneration and compensation for breach of contract.
25. In his claim, the Player mentioned that the Club only paid USD 7,000 as partial payment of
September salary and USD 20,000 as the signature bonus, failing to pay the balance of
September salary (USD 7,000), November and December 2023 salaries (USD 14,000 each),
the balance of signing-on bonus (USD 40,000) and the performance bonus of USD 1,066.
26. In his claim, the Player argued that he terminated the contract with just cause considering
that:
-
“The 15-day deadline provided for in Art. 14bis of the FIFA RSTP is not strictly applied.
Indeed, the members of the DRC take into consideration all the circumstances of the
case. Therefore, if “the continued and unjustified non-payment by the club had
generated a reasonable expectation in the player that, in the future, the club would
continue to breach its contractual obligations”19 the delay established in Art. 14bis
may be reduced and the employment contract still terminated with just cause”.
-
He sent a default notice to the Club and the latter did not pay the entire amount
within the timeframe granted.
-
The conditions of art. 14bis of the Regulations on the Status and Transfer of Players
were triggered.
-
He did not sign a settlement agreement with the Club either orally or in writing.
-
It is undisputed that the payments occurred after the termination notice.
Moreover, the argumentation of the Club that it tried to pay the remaining
amount on 21 December 2023, was irrelevant as the Club had enough time to
remedy the default.
pg. 8
REF. FPSD-13861
-
A 15-day period was granted, and the Player did not have to wait until the next
working day to terminate the contract, there is no legal argument for this
requirement. Even if this is accepted, the payment did not arrive on 23 December
2023.
27. In view of the foregoing, the Player is entitled to compensation for breach of contract of
USD 84,000 in accordance with art. 17 of the Regulations on the Status and Transfer of
Players and outstanding remuneration of USD 2,466. As to this amount, the Player provided
the following clarifications:
“Such amount was result of the following financial breakdown: (a) USD 7,000
(due as monthly salary of September 2023); (b) USD 14,000 (due as monthly
salary of October 2023); (c) USD 14,000 (due as monthly salary of November
2023); (d) USD 40,000 (due as signing on fee); and (e) USD 1,066 (due as
performance bonus).
On 17 December 2023, the Club paid to the Player USD 39,000 and on 25
December 2023, the former paid the latter USD 34,600. In line with the above,
the Club managed to pay USD 73,600 out of USD 76,066, which was
outstanding. It means, that the Club still owes the Player as outstanding
remuneration and based upon the Employment Contract USD 2,466 to the
present date.”
28. Moreover, the Player is entitled to the reimbursement of his flight tickets of BRL 16,419.06
as it was contractually agreed (cf. clause 5.5. of the contract).
29. The Player also requested to sanction the Club in accordance with art. 17 par. 4 of the
Regulations on the Status and Transfer of Players and requested FIFA “to obtain a copy of
the Club’s bonus policy in order to confirm that the Player is indeed entitled to receive an amount
of USD 1,066 NET as bonuses under the Employment Contract.”
30. In view of the above, the Player requested the following relief:
“FIRST – To uphold the entire claim filed by the Player;
SECOND – To issue a finding that the Club breached the Employment Contract
and that the Player terminated the Employment Contract unilaterally but with
undisputed just cause;
THIRD – To order the Club to pay the Player USD 1,400 net due as outstanding
salary due on 21 December 2023, plus default interest at a rate of 5% p.a. as
of 22 December 2023 until the date of effective payment;
pg. 9
REF. FPSD-13861
FOURTH – To order the Club to pay the Player USD 1,066 net due as
outstanding performance bonus, plus default interest at a rate of 5% p.a. as
of 6 December 2023 until the date of effective payment;
FIFTH – To order the Club to pay the Player USD 84,000 net due as
compensation, plus default interest at a rate of 5% p.a. as of 22 December
2023 until the date of effective payment;
SIXHT – To order the Club to pay the Player BRL 16,419.06 NET due as
reimbursement of the tickets afforded by the Player to return to Brazil;
SEVENTH - To ban the Club from registering any new players, either national
or internationally, for 2 (two) entire and consecutive registration periods (cf.
Art. 17, par. 4 of the FIFA RSTP);
EIGHT – To open the proceedings regarding the present dispute and notify the
Club immediately (cf. Art. 6, par. 3 and Art. 9, par. 5 of the FIFA Procedural
Rules); AND
NINTH – To confirm that the ongoing proceedings is free of any costs.”
b. Position of the Club and counterclaim
31. On 24 March 2024, the Club filed a counterclaim.
32. On 27 March 2024, the FIFA secretariat general requested the Club to complete the
counterclaim.
33. On 1 April 2024, the Club completed the counterclaim.
34. The Club mentioned inter alia the following facts/assertions:
-
In accordance with the contract the Player was entitled to USD 14,000 as monthly
salary and a signature bonus of USD 60,000 and the club quoted that “according to
article 5.5 of the contract, [the Player] was entitled to the following nonmonetary benefit;
housing, Transportation, and flight tickets as well as travel insurance for [the Player] and
his family”.
-
It paid USD 46,865 (i) on 8 August 2023 SAR 52,000 / USD 14,000: salary of 10 days of
July & 20 days of August 2023; (ii) on 19 October 2023 SAR 52,000/USD 14,000: salary
of 10 days of August & 20 days of September 2023 (iii) on 20 November 2023 SAR
33,296/USD 8,865: 10 days of September & 9 days of October 2023; and (iv) on 26
November 2023 USD 10,000 as part of the Player’s signature bonus.
pg. 10
REF. FPSD-13861
-
It received the default notice on 6 December 2023 at 1:36 am.
-
The Player wrongly requested the payment of USD 7,000, as this amount had already
been paid. As to the payment of USD 1,066 as bonus, the Club mentioned that it had
no contractual basis.
-
As of 30 November 2023, the amount due was USD 73,799 (USD 9,799 21 days d of
October 2023; USD 14,000 November 2023 salary and USD 50,000 as the balance of
the signature bonus).
-
On 17 December 2023, the Club paid the Player USD 39,000 and mentioned that the
amount of USD 36,666 would be paid on 15 January 2024. This according to the Club
was after the Player had verbally agreed to sign a settlement agreement. In addition,
the Club stated that this payment was made prior to the approval of the Player's
lawyer and securing the Player's signature on the Settlement Agreement.
-
On 18 December 2023, the Club transmitted the settlement agreement to the Player.
Then on the subsequent day, it was revealed that the Player's response indicated the
existence of a discrepancy in the amount owed, and given the aforementioned
discrepancy, he was unable to execute the settlement agreement.
-
On 20 December 2023, the Club, following said refusal, intended to pay the Player,
and procured a cheque on the Player’s name, and requested him by phone and
messages, to attend the Club in order to settle the outstanding amount, however,
the Player mentioned that he was outside of the Club’s premises and was unable to
attend to the office. Nonetheless, the Player expressed his intention to engage in a
discussion with the Club on the following day, i.e., on 21 December 2023.
-
On 21 December 2023, the Club sent an email to the Player instructing him to
personally present himself at the Club’s premises in order to get the aforementioned
cheque. Unfortunately, the Player failed to react to the email and failed to appear at
the Club's meeting.
-
On the same date, the Club encountered difficulties in sending the funds from its
bank to the Player's designated bank account via an international transaction due to
the working hours of the Saudi Arabian Bank.
35. On 21 December 2023 at 9:19 pm, the Club received the termination notice.
36. As to the condition of art. 14bis of the Regulations on the Status and Transfer of Players,
the Club was of the opinion that (i) the Player requested an incorrect amount in his default
notice, USD 86,066 instead of USD 73,7999 and that the Club was willing to pay an extra
amount of USD 1,900 as additional compensation; (ii) the default notice was sent on 6
December 2023 and the termination notice on 21 December 2023, thus still within the time
pg. 11
REF. FPSD-13861
frame of the provided time limit.; (iii) in accordance with art. 11 pars. 1 and 3 of the
Procedural Rules Governing the Football Tribunal, the deadline was extended until 24
December 2023, date on which the Club attempted to pay this amount. However, due to
some problem with its bank’s provider, the payment only arrived on 25 December 2023. In
view of these considerations, the Club considered that the contract was terminated prior
to the deadline of 15 days.
37. Furthermore, the Club was in the opinion that the Player had an abusive behaviour by
failing to fulfil his contractual obligations, and added that:
“Despite the incident occurring after the termination of the contract, it is
important to note that the termination itself lacks legal justification. Therefore,
the contract remains enforceable and binding in this particular situation.
Based on the incident, the [Club] has the legal right to terminate the contract
for just cause.
Despite having the right to terminate the contract for just cause, [the Club]
chose to prioritize the stability of the contract by overlooking the [Player]'s
violations and attempting to persuade him to fulfill and resume their duties
with the Club.
In contrast to the [Club]'s desire to preserve the stability of the contract, [the
Player’s] desire was to terminate the contract by his abusive conducts and
acting in bad faith.”
38. In view of the foregoing, the Club concluded that the contract was unilaterally terminated
without just cause and the Player must pay compensation. Therefore, the Club requested
USD 200,000 on the below considerations:
“- The total value of the loan contract and remunerations for Mr. Gomaa Fathallah
(Central Defender) who took the place of the [Player] in the team of the [Club] is
$115,000.00 (One Hundred Thirty Thousand United State Dollar).
- The amount of $70,000.00 (Seventy Thousand United State Dollar)., which is
equivalent to the remaining value of five months salaries of the terminated contract.
- The amount of 15,000.00 (Fifteen Thousand United State Dollar), which is equivalent
to a portion of the advanced signing on fee.”
39. The Club requested the following relief:
“i. Establish that the [Player] has seriously breached the contract without just cause;
pg. 12
REF. FPSD-13861
ii. Condemn the [Player] to pay to the [Club] a financial compensation for breaching
the Contract.
iii. Sanction the [Player] in accordance with Art. 17, Par. 3 of the RSTP.”
c. Reply of the Player to the counterclaim
40. In his reply to the counterclaim, the Player first raised several procedural issues. The Club
did not specify in its request for relief the amount of compensation requested, therefore,
it did not comply with art 18 par.1 lit. d of the procedural Rules Governing the Football
Tribunal. Consequently, the counterclaim shall be declared inadmissible.
41. Then, the Player made the following observations:
-
Despite the discrepancy between the Player’s calculations (USD 86,066) and the
Club’s calculations (USD 73,799), more than 2 salaries were due, as such the Player
considered that he had the right to terminate the contract.
-
It is also clear that the Club was unsure of the amount due, first it mentioned that it
was USD 75,666 and then USD 73,799. Subsequently, the Club paid the Player USD
39,000 on 17 December 2023 and USD 34,600 on 25 December 2023, consequently,
the payment occurred after the termination notice which was with just cause.
-
As to the 15-day deadline granted, the Player first mentioned that:
•
“the 15-day deadline determined by the FIFA legislator shall not be strictly applied.
In other words, the members of the FIFA DRC shall take into consideration all the
circumstances of the case before considering such specific matter[…] the Club had
repeatedly failed to comply with its contractual obligations towards the Player,
despite of the latter having not only addressed its attention to them but also
providing a very reasonable time limit to the former remedy the referenced
financial breaches.”
•
Then, the Player mentioned that the deadline of 15 days was respected.
•
“It is irrelevant, thus, the reasons why the Club failed to fulfil with the transfer to
the Player of USD 34,600 on 21 December 2023. The fact is that the amount
outstanding remained substantial since it was higher than 2-months salaries, as
well as the Club had more than enough time to remedy such breach […]Moreover,
when a club makes a partial payment to the player after receiving a notice of
default, the player still has just cause to terminate an employment contract.”
42. In view of the above, the Player is of the opinion that he had just cause to terminate the
contract on 21 December 2023.
pg. 13
REF. FPSD-13861
43. As to the request of the Player to be in the Club’s office, he added the following;
“the Club alleges that on 20 December 2023 the Player himself refused to
attend in person the premises of the Club to collect his dues as the Club had
allegedly prepared a bank check. Nevertheless, the evidence sent along by the
Club to prove such allegations does not contain any date (see Annex 12 of the
Counterclaim).
However, the Club did not need the Player to in person attend its premises to
proceed with the payment of his outstanding salaries. Indeed, few days later,
namely on 25 December 2023, the Club proceeded with a payment of USD
34,600 through wire transfer directly to the bank account of the Player without
any intercurrence.
Nevertheless, players do not have the obligation to go in person collect their
dues at the premises of a club.”
44. In view of the foregoing, the Player requested the following relief:
“FIRST – To uphold the entire claim filed by the Player;
SECOND – To issue a finding that the Club breached the Employment Contract
and that the Player terminated the Employment Contract unilaterally but with
undisputed just cause;
THIRD – To order the Club to pay the Player USD 1,400 net due as outstanding
salary due on 21 December 2023, plus default interest at a rate of 5% p.a. as
of 22 December 2023 until the date of effective payment;
FOURTH – To order the Club to pay the Player USD 1,066 net due as
outstanding performance bonus, plus default interest at a rate of 5% p.a. as
of 6 December 2023 until the date of effective payment;
FIFTH – To order the Club to pay the Player USD 84,000 net due as
compensation, plus default interest at a rate of 5% p.a. as of 22 December
2023 until the date of effective payment;
SIXHT – To order the Club to pay the Player BRL 16,419.06 net due as
reimbursement of the tickets afforded by the Player to return to Brazil;
SEVENTH – To ban the Club from registering any new players, either national
or internationally, for 2 (two) entire and consecutive registration periods (cf.
Art. 17, par. 4 of the FIFA RSTP); AND
pg. 14
REF. FPSD-13861
EIGHT – To confirm that the ongoing proceedings are free of any costs.
As to the Counterclaim:
NINTH – To declare that the Counterclaim is inadmissible.”
d. Position of the Intervening Party
45. In its comments, the Intervening Party first raised procedural issues. It mentioned that the
Club did not specify in its request for relief the amount of compensation requested, and
therefore, it did not comply with art 18 par.1 lit. d of the procedural Rules Governing the
Football Tribunal. Consequently, the counterclaim shall be declared inadmissible.
46. As the merits, the Intervening Party mentioned that (i) the Club did not include the
intervening party in its counterclaim, and it only lodged a counterclaim against the Player
and that (ii) FIFA ex officio added the Intervening party in this case. Therefore, the
Intervening Party is of the opinion that:
“the mere insertion of a provision in the FIFA regulations such as the abovequoted Art. 9, par. 4, of the FIFA Procedural Rules, cannot per se entitle FIFA to
unlawfully determine, ex officio, the intervention of a natural or legal person
as party to a procedure in front of its decision-making bodies when the
claimant has deliberately chosen not to assert its claim against that natural or
legal person beforehand.
Admitting otherwise would inevitably lead to an inexcusable and unjustifiable
violation of the fundamental legal principle of non ultra/extra petita, insofar
as claims lodged before the FIFA decision-making bodies are subject to the
terms principle of party-disposition”
47. The Intervening Party concluded that:
“it is undisputed that the mere insertion of a provision in the FIFA Procedural
Rules whereunder FIFA would have the prerogative to request the intervention
of a natural or legal person as a party to a procedure in front of its decisionmaking bodies cannot in any way triumph over the fundamental legal
principles of non ultra/extra petita and equal treatment of the parties.
[…]
Hence, considering that A1 Jamal has deliberately chosen not to assert his
claim against Dalian FC. FIFA cannot unlawfully determine the latter's
intervention as a party to the case at hand, reason why the Counterclaim
should be dismissed due to a lack of mandators’ joinder.”
pg. 15
REF. FPSD-13861
48. The Intervening Party requested the following relief:
“FIRST - To declare that the Counterclaim is inadmissible; and
SECOND - To confirm that the ongoing proceedings are free of any costs.”
pg. 16
REF. FPSD-13861
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
49. First of all, the Dispute Resolution Chamber (hereinafter: the 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 29 February 2024 and submitted for decision
on 22 August 2024. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
50. Furthermore, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Saudi Arabian club with the involvement of a Chinese club.
51. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 29 February 2024, the February2024
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Admissibility
52. The Chamber observed that the admissibility of the counterclaim and the invitation to the
Intervening Party by the FIFA Secretariat General has been challenged by the Player and
the Intervening Party.
53. As to the admissibility of the counterclaim, the Player and the Intervening Party mentioned
that the request for relief did not include the amounts requested and therefore, it is not in
accordance with the art. 18 of the Procedural Rules. However, the Chamber stressed that
the Club in its request for relief requested the payment of a financial compensation which
was clearly described in point 65 of the counterclaim. Consequently, the Chamber
concluded that that counterclaim is admissible.
54. As to the invitation of the Intervening party, the Chamber observed that this was made in
accordance with the Football Tribunal’s powers codified in art. 9 of the Procedural Rules,
and due to the possible consequences arising from the termination of the contract in
accordance with art. 17 of the RSTP. The Chamber emphasised that was done in order to
pg. 17
REF. FPSD-13861
protect the Intervening Party’s right to be heard. Consequently, the Chamber concluded
that the FIFA general secretariat correctly involved the Intervening Party.
c. Burden of proof
55. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
d. Merits of the dispute
56. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
i. Main legal discussion and considerations
57. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the justice of the early termination of the contract by the
Player, based on the alleged non-payment of certain financial obligations by the Club as
per the contract.
58. In this context, the Chamber acknowledged that in order to determine whether the
contract was terminated with or without just cause, the following is to be analysed:
-
Did the parties enter into a settlement agreement prior to the termination?
-
What was the amount due on the date of the default notice and the date of
termination?
-
Did the Player comply with the 15-day period granted in the default notice? Was
the contract terminated in accordance with art. 14bis of the Regulations?
-
Alternatively, was the contract terminated in accordance with art. 14 of the
Regulations?
Did the parties enter into a settlement agreement prior to the termination?
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REF. FPSD-13861
59. The Chamber observed that (i) a settlement agreement was provided as part of the
evidence by the Club; (ii) the Club provided evidence that it sent a settlement agreement
to the Player prior to the termination. However, he did not accept it; and (iii) the document
provided by the Club is unsigned.
60. In view of the above considerations, the Chamber reasoned that no settlement was
effectively concluded between the Player and the Club.
What was the amount due on the date of the default notice and the date of termination?
61. The Chamber observed that the parties strongly disputed the amount due on the date of
the default notice and the date of termination.
62. Then, the Chamber observed that in accordance with the contract, the Player would be
entitled until 30 November 2024 to USD 121,419.35 : USD 60,000 (payable on 25 July 2023);
July 2023 (12 days): USD 5,419.35; and from August to November 2023: USD 56,000.
63. The Chamber further noted that the Player requested the payment of USD 1,066 net as
bonus; however, the Chamber observed that no evidence was provided, and the contract
did not mention additional bonuses (cf. clause 5.3 of the contract). Consequently, the
Chamber did not consider that the mentioned amount was part of the Player’s
remuneration.
64. Then, the Chamber observed that the following payments performed by the Club were
uncontested by the Player: USD 46,865 in total (i) on 8 August 2023 SAR 52,500 / USD
14,000: salary of 10 days of July & 20 days of August 2023; (ii) on 19 October 2023 SAR
52,500/USD 14,000: salary of 10 days of August & 20 days of September 2023 (iii) on 20
November 2023 SAR 33,296/USD 8,865: 10 days of September & 9 days of October 2023;
and (iv) on 26 November 2023 USD 10,000 as part of the Player signature bonus.
65. In view of the above considerations, the Chamber concluded that the amount due as of the
date of default was USD 74,554.35, which was equivalent to approximately 5.2 salaries.
66. It is further uncontested that, following the default, the Club paid the amounts of USD
25,000 and USD 14,000. Therefore, the Chamber concluded that, as of the date of
termination, the amount due was USD 35,554.35.
Did the Player comply with the 15-day period granted in the default notice? Was the
contract terminated in accordance with art. 14bis of the RSTP?
67. Based on the above considerations, the Chamber then, acknowledged that its task was to
determine, based on the evidence presented by the parties, whether the claimed amounts
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REF. FPSD-13861
had in fact remained unpaid by the Club and, if so, whether the formal pre-requisites of
art. 14bis of the Regulations had in fact been fulfilled.
68. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the Player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
69. The Chamber observed that, as to the date of sending the default notice, the Player only
provided a letter dated 5 December 2023, but did not provide the email showing the exact
date it was sent. On the other hand, the Club provided the email which clearly showed that
the date of receipt of such email was on 6 December 2023 at 1:31h Saudi Arabian time.
Based on the additional evidence provided by the Club the Chamber concluded that the
default notice was received by the Club on 6 December 2023.
70. Then, as to the termination notice, the Chamber observed that neither the Player nor the
Club provided any email showing the exact date of sending or reception. However, the
Chamber also noted that both parties asserted that this letter was sent and received on 21
December 2023. In the absence of additional information, the Chamber concluded that the
contract was terminated on 21 December 2023 and that the Club received such letter on
21 December 2023.
71. Therefore, the Chamber deadline of 15 days was not met and therefore, the formal prerequisites of art. 14bis of the Regulations were not fulfilled.
Was the contract terminated in accordance with art. 14 of the RSTP?
72. Before entering the analysis of this specific case, the Chamber deemed it appropriate to
remind the parties that only a breach or misconduct which is of a certain severity justifies
the termination of a contract. In other words, only when there are objective criteria which
do not reasonably permit to expect the continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order to ensure the fulfilment of the contractual
duties by the counterparty, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only ever
be an ultima ratio measure.
73. Then, the Chamber observed that:
-
The Club failed to pay the signature bonus on its due date.
-
The salaries were never paid at the end of each month since the start of the contract;
thus for a period of 5 months the Player did not receive his salaries in its due dates.
pg. 20
REF. FPSD-13861
Thus, the Club was continuous breaching of the contract since the beginning, as the
Club had constantly failed to pay his salaries on time.
-
The Player put the Club in default of payment and the Club partially paid the
requested amount.
-
The Club did only pay the remaining amount on 25 December 2023. At the time of
termination, the amount of USD 35,554.35 was still due, which is almost 2.5 salaries.
74. In Chamber’s view, this situation was unsustainable, as for a period of almost 5 months the
Player did not receive his salaries on time and/or not received at all. The Chamber
concluded that the Player had just cause to terminate the contract in accordance with art.
14 of the Regulations.
Consequences
75. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Club.
76. The Chamber observed that on 25 December 2023 the Club paid USD 24,785 and the
outstanding remuneration at the time of termination, coupled with the specific requests
for relief of the Player, are equivalent to USD 769.35 net for November 2023 and USD
14,000 net for December 2023.
77. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Club is liable to pay to the Player the amounts which were
outstanding under the contract at the moment of the termination, i.e., 14,769.35 net.
78. In addition, taking into consideration the Player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Player interest at the rate of
5% p.a. on the outstanding amounts as from 22 December 2023 until the date of effective
payment.
79. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Player by the Club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the Player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
pg. 21
REF. FPSD-13861
80. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that the compensation clause (clause 12 of the contract) referred to the
Regulations.
81. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
82. Bearing in mind the foregoing as well as the claim of the Player, the Chamber proceeded
with the calculation of the monies payable to the Player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 65,333.33 (4 months and 20 days) serves as the basis
for the determination of the amount of compensation for breach of contract.
83. In continuation, the Chamber verified as to whether the Player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the Player’s general obligation to
mitigate his damages.
84. Indeed, the Player found employment with the Intervening Party. In accordance with the
pertinent employment contract, the Player was entitled to approximately USD 8,000 net
per month. Therefore, the Chamber concluded that the Player mitigated his damages in
the total amount of USD 29,151.29.
85. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the Club, and therefore
decided that the Player shall receive additional compensation.
86. In this respect, the DRC decided to award the amount of additional compensation of USD
42,000, i.e., three times the monthly remuneration of the Player.
pg. 22
REF. FPSD-13861
87. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of
the Regulations, the overall compensation may never exceed the remaining value of the
prematurely terminated contract.
88. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 65,333.33 net, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
89. Then, taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Player interest on said
compensation at the rate of 5% p.a. as of 22 December until the date of effective payment.
90. Finally, as to the Player’s request of the reimbursement of the flight tickets, the Chamber
decided to award the amount of BRL 16,419.06m in accordance with clause 5.5. of the
contract, the acknowledgement of the Club in its reply that the Player is entitled to flight
tickets for him and his family and the evidence provided.
ii. Compliance with monetary decisions
91. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
92. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
93. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on the Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
94. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
pg. 23
REF. FPSD-13861
95. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
e. Costs
96. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
97. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
98. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 24
REF. FPSD-13861
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Robson Januario de Paula, is partially
accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Al Jandal Club, is rejected.
3.
The Respondent/Counter-Claimant, Al Jandal Club, must pay to the Claimant/CounterRespondent the following amounts:
- USD 769.35 net as outstanding remuneration plus 5% interest p.a. as from 22
December 2023 until the date of effective payment.
- USD 14,000 net as outstanding remuneration plus 5% interest p.a. as from 22
December 2023 until the date of effective payment.
- USD 65,333.33 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 22 December 2023 until the date of effective payment.
- BRL 16,419.06 as outstanding remuneration.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent/Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid. The maximum
duration of the ban shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
pg. 25
REF. FPSD-13861
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 26
REF. FPSD-13861
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 27