Labour Disputes
Texto da decisão
REF. FPSD-11457
Decision of the
Dispute Resolution Chamber
passed on 12 October 2023
regarding an employment-related dispute concerning
the player Matheus Leite Nascimento
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Alejandro Atilio Taraborrelli (Argentina/Italy), member
Michele Colucci (Italy), member
CLAIMANT:
Matheus Leite Nascimento, Brazil
Represented by José Miguel Sampaio e Nora
RESPONDENT:
Zhejiang Professional FC, China PR
pg. 2
REF. FPSD-11457
I. Facts of the case
1.
On 7 April 2022, the Brazilian player Matheus Leite Nascimento (hereinafter the Claimant
or the Player) and the Chinese club Zhejiang Professional (hereinafter the Respondent or
the Club) concluded employment agreement (hereinafter the Employment Agreement), valid
as from 1 March 2022 until 31 December 2022.
2.
In accordance with TMS, the season 2022 ran as follows: 1 February – 31 December 2022.
3.
In accordance with Clause 3 of the Employment Agreement, the Claimant and the
Respondent (jointly referred to as the Parties) agreed upon the following bonus payment:
(…) If Party A finishes top 6 position in Chinese Super League at the end of Season 2022 and
Party B participates in more than 70% of Party As' Chinese Super League matches in
Season 2022, then Party A shall pay Party B EUR €100,000 net (EUR €175,000 before tax) as
bonus. For purpose of this clause, "participates" shall refer to any Chinese Super League
match Party B plays at least 1 minute. (…) The time for payment is the last day of next month
following the end of Season 2022.”
4.
In accordance with the employment contract, During the season 2022, the Claimant
participated in 23 out of 34 official matches for the Respondent.
5.
On 23 December 2022, the Respondent was supposed to play against Tianjin Jinmen Tiger,
yet the latter missed the game. In this respect, despite no played time, the Respondent was
awarded a win.
6.
At the end of the season 2022, the Respondent was placed in top three (3rd place) in the
Chinese Super League.
II. Proceedings before FIFA
7.
On 23 August 2023, 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 requests for relief of the Claimant, as amended, were the following:
“a) Consider the Club Zhejiang Professional FC guilty of the non-payment of overdue
payables to the Player Matheus Leite Nascimento (Annex 2);
and
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REF. FPSD-11457
b) In consequence of that order the Club Zhejiang Professional FC (China) to pay
immediately the Player the amount of EUR 245.000 regarding bonus agreed for the 2022
season (Annex 2);
and
c) In consequence also order Zhejiang Professional FC (China) to pay the Player an interest
rate of 5% of the amount referred above in b) and d) from the date of due, specifically
31st December 2022, till the date of effective payment regarding to the period after the
purpose of this claim.
and
d) Impose the sanctions mentioned in number 4 of the Article 12 Bis of the “FIFA
Regulations on the Status and Transfer of Players (March 2023 Edition)” due to the
damages said before caused by the non-payment by Zhejiang Professional FC (China) to
the Player Matheus Leite Nascimento of the amounts agreed between the parties in the
Employment Contract for Professional Football Player;
and
e) Order that Zhejiang Professional FC (China) bears with any and all legal costs incurred
by the player Matheus Leite Nascimento.”
9.
The Claimant argued that due to the fact that he participated in 70.58% of the official
matches and the Respondent achieved 3rd position in the Chinese Super League, he is
entitled to bonus in accordance with Clause 3 of the Employment Agreement,
i.e. EUR 175,000.
10. Regarding the participation in more than 70% of the matches, the Claimant argued that he
“played in 23 games of 34 available”. Furthermore, he added that “was called up for the game
of 32nd round of the Championship against Tianjin Jinmen Tiger, and given the suspension of
the Brazilian player Lucas, he was, for sure, in the line-up given that was only five foreign player
available and the maximum admissible is also five foreign player”, “however the opponent team,
Tianjin Jinmen Tiger, missed the game and, consequently, the Respondent won 3 points for this
victory, then this game must considered as game played for the effects of the bonus agreed in
the article 3, n.º 3 of the Employment Contract for Professional Football Player”.
11. Finally, the Claimant asserted that “in the final of the Chinese Super League, the Respondent
representatives given the excellent behaviour of the team during 2022 sporting season also
promised an extra bonus of €70.000, for each player, if the Respondent Club end the season
2022, at least, in 3rd place.”
12. In view of the above, the Claimant additionally requested the amount of EUR 70,000.
b. Position of the Respondent
13. Despite being invited to do so, the Respondent failed to reply to the claim.
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REF. FPSD-11457
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 23 August 2023 and submitted
for decision on 12 October 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.
15. Subsequently, the members of 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 employmentrelated dispute with an international dimension between a Brazilian player and a Chinese
club.
16. 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 23 August 2023, the May 2023 edition of
said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
17. 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).
c. Merits of the dispute
18. 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
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REF. FPSD-11457
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
19. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a Player against a Club concerning
overdue payables due to allegedly triggered bonuses.
20. In this respect, the members of the Chamber acknowledged that the Claimant requested
(i) EUR 175,000 based on Clause 3 of the Employment Agreement as well as (ii) EUR 70,000
that was allegedly promised by the Club for the achieved sporting results.
21. The DRC furthermore noted that the claim remained uncontested by the Respondent.
22. In this context, the Chamber acknowledged that it its task was to assess if, indeed, the
bonus payments were triggered.
23. The members of the Chamber firstly turned their attention to the claim for EUR 175,000
based on Clause 3 of the Employment Agreement and started with the analysis of the
pertinent clause, which reads as follows:
“(…) If Party A finishes top 6 position in Chinese Super League at the end of Season 2022
and Party B participates in more than 70% of Party As' Chinese Super League matches
in Season 2022, then Party A shall pay Party B EUR €100,000 net (EUR €175,000 before tax)
as bonus. For purpose of this clause, "participates" shall refer to any Chinese Super League
match Party B plays at least 1 minute. (…) The time for payment is the last day of next month
following the end of Season 2022.” (emphasis added)
24. Thereafter, based on the evidence provided by the Claimant, the Chamber acknowledged
that the Respondent was indeed placed in top three position in the Chinese Super League.
Nonetheless, the members noted that the Claimant participated only in 23 out of 34 official
matches of the Chinese Super League, which does not reach the necessary participation in
70% of the games as per Clause 3 of the Employment Agreement.
25. In this regard, the Chamber recalled the arguments of the Claimant that he reached the
relevant 70% as the 32nd game, which was won by the Respondent despite not being played
due to the behaviour of the opponent club, should be considered in his favour, i.e. one
should consider that the Claimant participated in 24 out of 34 official matches. The DRC
took note of the arguments of the Claimant that he “was called up for the game of 32nd
round of the Championship against Tianjin Jinmen Tiger, and given the suspension of the
Brazilian player Lucas, he was, for sure, in the line-up given that was only five foreign player
available and the maximum admissible is also five foreign player”.
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REF. FPSD-11457
26. After duly analysing the wording of Clause 3 of the Employment Agreement, the Chamber
deliberated that the Claimant did not technically participate in the 32nd game in question
and, consequently, the said game should not be taken into account for the relevant
calculation.
27. In view of the above, the Chamber concluded that, contrary to the Claimant’s assumption,
the latter did not participate in 70% of the official matches of the Chinese Super League in
order to trigger the payment of the claimed bonus. Subsequently, the Chamber rejected
the Claimant’s request.
28. The Chamber then turned its attention to the second request of the Claimant concerning
the allegedly promised bonus of EUR 70,000 for the achieved sporting result.
29. After thoroughly analysing the Employment Agreement as well as the evidence provided
by the Claimant, the members of the Chamber concluded that such bonus was not
contractually stipulates, nor did the Claimant provide for any evidence regarding such
potential entitlement.
30. Based on the above, the DRC decided to reject also this request of the Claimant.
ii. Consequences
31. Having stated the above, the members of the Chamber rejected the claim of the Claimant.
d. Costs
32. 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.
33. 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.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-11457
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Matheus Leite Nascimento, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-11457
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
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