Labour Disputes
Texto da decisão
REF. FPSD-8304
Decision of the
Dispute Resolution Chamber
passed on 26 May 2023
regarding an employment-related dispute concerning
the player Matheus Leite Nascimento
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), member
Roy VERMEER (The Netherlands), member
CLAIMANT:
Matheus Leite Nascimento, Brazil
Represented by José Miguel Sampaio e Nora
RESPONDENT:
Cangzhou Mighty Lions FC, China PR
pg. 2
REF. FPSD-8304
I. Facts of the case
1.
On 5 November 2019, the Brazilian player, Matheus Leite Nascimento (hereinafter: the
Player or the Claimant), and the Chinese club, Cangzhou Mighty Lions FC (hereinafter: the
Club or the Respondent) concluded an employment contract (hereinafter: the contract) valid
as from 1 January 2020 until 31 December 2020.
2.
For the sake of good order, it is noted that per the information retrieved from Transfer
Matching System (TMS), the Respondent was previously named “Shijiazhuang Yongchang
FC” until 7 June 2021, when changed its name to “Cangzhou Mighty Lions FC”.
3.
According to the contract, the Player was entitled to a monthly net salary of EUR 100,000
payable on the 15-day of the following month.
4.
In accordance with clause 5.4 of the contract, inter alia:
“(i): When the official summer transfer window of season 2020 closes, if [the Claimant] is still
selected for [the Respondent] first team, [the Respondent] shall pay another 300,000 Euros
net to [the Claimant];
(ii): Each time [the Claimant] starts the league match and plays over 45 minutes, [the
Respondent] shall pay to [the Claimant] 20,000 Euros net; each time substitutes and plays
over 20 minutes, 10,000 Euros net;
(iii): At the conclusion of season 2020, [the Claimant] has achieved 10 goals, assistances and/
or penalty suffered, [the Respondent] shall pay to [the Claimant] another 200,000 Euros
net, 20 goals, assistances and/or penalty suffered, 400,000 Euros net
(iv): League matches in season 2020 have a total length of 2700 minutes, if [the Claimant]
plays over 50% of the total minutes and [the Respondent] does not relegate to the Chinese
second division, [the Respondent] shall pay to [the Claimant] another 300,000 Euros net;
(v): League matches in season 2020 have a total length of 2700 minutes, if [the Claimant]
plays over 50% of the total minutes, [the Respondent] promote to ACL, [the Respondent] shall
pay to [the Claimant] another 200,000 Euros net; […]”.
5.
Clause 6 of the contract reads as follows:
“League matches in season 2020 have a total length of 2700 minutes, if [the Claimant] plays
over 65% of the total minutes and [the Respondent] does not relegate to the Chinese second
division, both parties agree that the Contract shall be automatically extended to December
31 2021 with all financial agree at conditions remaining the same”.
6.
On an unspecified date, the Player concluded a new contract with the Chinese club Zhejiang
Professional FC, valid as from 1 February 2021 until 31 January 2022.
pg. 3
REF. FPSD-8304
II. Proceedings before FIFA
7.
On 22 November 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
The Claimant lodged a claim for overdue payables and compensation for breach of
contract.
Overdue payables
9.
The Claimant requested the amount of EUR 70,000 as the remaining salary for the last
instalment (December 2021) as agreed in clause 5 of the contract.
10. The Claimant further requested the amount of EUR 300,000 net as agreed in article 5.4 (iv).
The Claimant specified that: “In the season 2020 the Player played in 18 games of 20 available
(14 in the initial line-up and 4 as a used substitute), in a total 1480 minutes of 1800 available,
given the reduction of the calendar given the pandemic of Covid-19, then more than 50% of the
available minutes, specifically 82,2% and the Club was not relegated to Chinese Second Division,
and still playing in the Chinese Premier League”.
11. The Claimant also requested that the amount of EUR 370,000 “must be increased by an
interest rate of 5% of the net amount of 34.060 Euros from the date of due, specifically 3rd June
2022, till the date of effective payment”.
Termination of the contract
12. According to the Player the conditions of clause 6 of the contract were fulfilled and
consequently the contract was extended until 31 December 2021, as according to him, he
played 82.2% of the matches in 2020 and the Club was not relegated to the Chinese Second
Division and plays in the Chinese Premier league.
13. Moreover, the Player argued that he was forced to find another club and signed with a club
of a lower division earning a total amount of EUR 200,000.
14. Accordingly, the Cub terminated the contract without just cause and he is entitled to
compensation in accordance with art. 17 of the Regulations on the Status and Transfer of
Players (RSTP) to EUR 1,200,000 plus 5 % interest per month of delay from the due date
until the effective payment.
15. Finally, the Claimant requested sporting sanctions on the Club.
pg. 4
REF. FPSD-8304
b. Position of the Respondent
16. As to the remaining salary the Club indicated that all salaries were paid, however, as to the
bonuses, the Club argued that the amount due is EUR 70,000 and not EUR 300,000. The
Club provided the following calculations (quoted verbatim):
“(i) € 300.000 net, done;
(ii) "starts the games and played more than 45 min...", total 14 games X € 20.000 = € 280K;
"each time substitutes and play more that 20 min...", total 4 games X € 10.000 = € 40K;
(iii) He "achieved more than 10 goals, assistance or penalty suffered...", verificado, total €
200K
Total of bónus = € 820K (net)
The Club has already paid € 750K (net)”.
17. In its reply, the Club stated that it did not extend the contract, as the Club was facing some
financial difficulties and could not afford the salary’s player. Additionally, the Club stated
that conditions of clause 6 were not meet as it was relegated to the Chinese second division
and thus, the contract was not automatically extended until 31 December 2021.
18. The Club requested the following relief:
•
•
•
•
•
“Rule that the present submissions are admissible;
Issue a finding that the Respondent shall pay the remaining bonus to the Claimant for an
amount equal to EUR 70,000 net. Besides, the Respondent shall not pay any other
remuneration to the Claimant.
Rule that the bonus to be paid by the Claimant is net of taxes;
Confirm that the Respondent shall not pay any travel, medical, accommodation or other
expenses claimed by the Claimant;
To the extent that any costs of these proceedings are to be paid by the parties, rule that
Claimant shall be responsible for payment of such costs”.
c. Rejoinder of the Claimant
19. As to the relegation, the Claimant argued that although the Club finished in 16th place it
continued to play in the Chinese Super League and was never, effectively, relegated to a
lower division.
20. The request of relief of the Claimant remained unchanged. However, as to the interests the
Claimant requested 5% interest on the claimed amounts a from 15 January 2021 until the
date of effective payment.
d. Final comments of the Respondent
pg. 5
REF. FPSD-8304
21. The Respondent failed to submit its final comments within the stipulated timeframe
provided.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 22 November 2022 and
submitted for decision on 26 May 2023. 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.
23. Subsequently, 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 lit. b) of the Regulations
on the Status and Transfer of Players (May 2023 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 player from Brazil and a club from
China.
24. 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 (May 2023 edition), and
considering that the present claim was lodged on 22 November 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
25. 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 TMS.
c. Merits of the dispute
pg. 6
REF. FPSD-8304
26. Its competence and the applicable regulations having been established, 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 the assessment of the matter at hand.
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the
matter, and noted that the case at hand pertains to a claim for outstanding remuneration
and compensation for breach of contract lodged by the Player against the Club.
28. The Player claims that (a) the Club failed to pay the remaining salary of December 2021
(EUR 70,000) and the bonus of EUR 300,000 in line with clause 5.4 (iv) of the contract; and
(b), the contract should be extended until 31 December 2023 considering that the
conditions of clause 6 of the contract were fulfilled, thus the Player requested the payment
of the residual value of the contract.
29. The club, on the other hand, alleges that (a) it complied with all its financial duties regarding
the salaries and that the outstanding bonus that the Club owns the Player is EUR 70,000;
and (b) such contract was not extended and the conditions of clause 6 of the contract were
not fulfilled.
30. In this context, the DRC acknowledged that its task was to determine the following:
a. Is the player entitled to the outstanding remuneration of EUR 370,000?
b. Was the employment contract validly extended until 31 December 2021?
Is the player entitled to the outstanding remuneration for EUR 370,000?
31. The Chamber proceeded to examine these issues and based on the evidence presented by
the parties, assessed whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the latter had a valid justification for not having complied
with its financial obligations.
32. With regards to December salary, the Chamber first noted that in the case at hand the
Respondent bore the burden of proving that it indeed complied with the financial terms of
the contract concluded between the parties.
33. Nonetheless, the Chamber noted that the Respondent has not provided evidence in this
regard. In view of the foregoing and bearing in mind the basic legal principle of pact sunt
servanda, the Respondent is held liable to pay the Claimant EUR 70,000.
pg. 7
REF. FPSD-8304
34. With regards to the bonus of EUR 300,000, the Chamber noted that the Club acknowledged
that it owed the amount of EUR 70,000 related to a bonus payment. The Chamber
concluded that in line with the principle pacta sunt servanda, the Player is entitled to EUR
70,000, as this is not disputed by the Respondent.
35. Subsequently, 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
EUR 140,000 at the rate of 5% p.a. as of 16 January 2021 until the date of effective payment.
36. As to the remaining bonus of EUR 230,000 requested by the Claimant in accordance with
clause 5.4 (iv), the Chamber recalled the wording of said clause: “League matches in season
2020 have a total length of 2700 minutes, if [the Claimant] plays over 50% of the total minutes
and [the Respondent] does not relegate to the Chinese second division, [the Respondent] shall
pay to [the Claimant] ut another 300,000 Euros net”.
37. Based on the evidence provided by the parties, the Chamber was able to corroborate that
the Claimant played 1480 minutes and thus, the first condition of clause 5.4 (iv) was
fulfilled. As to the second condition, the Claimant bore the burden of proving that in fact
the club was not relegated. On this point, the documentation provided by the Club shows
that the Club finished in the last position i.e., 16th position, and according to said
documentation by losing the playoffs and remaining in the 16th position, the Club would be
directly relegated to the 2021 China League One. Thus, as per the information on file, it
appears that the Club was in fact relegated – which in principle would not entitle the
Claimant to the bonus sought, for the conditions established therein were not fulfilled.
38. On the other hand, the DRC noted that the Claimant has provided additional
documentation, such as the results of the different matches played by the Club between
26 July 2020 and 11 November 2020, in support of the assertion that the Club was not
relegated. In this respect, the DRC found that such documentation is insufficient and does
not enable the Chamber to determine that the Club was in fact not relegated. Thus, the
Chamber concluded that the Claimant did not meet his burden of proof of art 13 par. 5 of
the Procedural Rules and the Player’s claim on this point shall be rejected.
Was the employment contract validly extended until 31 December 2021?
39. Subsequently, the DRC analysed whether the employment contract was validly extended
between the parties until 31 December 2021.
40. The Chamber observed that clause 6 of the contract enabled the parties extend the contract
until 31 December 2021, subject to two conditions. At the same time, the Chamber also
observed that the Player signed a new contract with the club Zhejiang Professional FC valid
as from 1 February 2021 until 31 January 2022.
pg. 8
REF. FPSD-8304
41. The Chamber determined accordingly that by signing a new contract, the Player tacitly
recognized the contract’s term as being of one year only. Additionally, the Chamber noted
that the Claimant never put the club in default for at least one year after the contract had
already elapsed – which in the Chamber’s view speaks to the principle of venire contra factum
proprium and estoppel.
42. In light of the above, and in accordance with the principle of estoppel, the Player is
prevented from acting in a different manner as he generated the legitimate expectation on
the Respondent that he acquiesced to the contract’s term for one year only. Moreover, the
Chamber noted that the Player did not meet his burden of proof in order to demonstrate
that the conditions of said clause, as mentioned above, had been triggered – in that the
Chamber was not able to determine that the Club was in fact not relegated.
43. Consequently, the DRC decided that the Player’s position on this matter should be rejected,
meaning that no compensation is to be awarded to the Player, since no breach of contract
took place and the Contract expired naturally.
ii. Compliance with monetary decisions
44. 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.
45. 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.
46. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
47. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
pg. 9
REF. FPSD-8304
48. 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.
d. Costs
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-8304
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Matheus Leite Nascimento, is partially accepted.
2.
The Respondent, Cangzhou Mighty Lions FC, must pay to the Claimant the following
amount:
-EUR 140,000 as outstanding remuneration plus 5% interest p.a. as from 16 January 2021
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-8304
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12