Labour Disputes
Texto da decisão
REF FPSD-4593
Decision of the
Dispute Resolution Chamber
passed on 7 April 2022
regarding an employment-related dispute concerning the player Jailson
Marques Siqueira
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Jerome Perlemuter (France), member
CLAIMANT:
Jailson Marques Siqueira, Brazil
Represented by PVBT Advogados
RESPONDENT:
Dalian Football Club, China PR
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I.
Facts of the case
1.
On 15 September 2020, the player and the club signed an employment contract (hereinafter:
the contract). valid as from 15 September 2020 until 31 December 2024.
2.
In accordance with clause 7 of the contract, the club undertook to pay to the player, inter
alia, the following remuneration:
For the year 2020 (as from 15 September until 31 December 2020):
- EUR 100,000 by 30 September 2020;
- EUR 200,000 by 15 November 2020;
- EUR 75,000 as monthly salary (4 salaries of EUR 75,000 during the remainder of the year
2020).
For the year 2021:
- EUR 500,000 by 15 April 2021;
- EUR 100,000 as monthly salary (12 salaries of EUR 100,000).
For the year 2022:
- EUR 500,000 by 15 April 2022;
- EUR 100,000 as monthly salary (12 salaries of EUR 100,000).
For the year 2023:
- EUR 500,000 by 15 April 2023;
- EUR 100,000 as monthly salary (12 salaries of EUR 100,000).
For the year 2024:
- EUR 500,000 by 15 April 2024;
- EUR 100,000 as monthly salary (12 salaries of EUR 100,000).
3.
According to the above-mentioned clause 7 of the contract, the club undertook to pay the
player’s salary by the 15th day of the following month to their accrual.
4.
On 24 September 2020, the player arrived in Shanghai and quarantined for 2 weeks, before
joining the club.
5.
On 11 November 2020, the player returned to Brazil due to the suspension of the
competitions and was supposed to return to China on 31 January 2021.
6.
By means of his letter dated 29 November 2021, the Claimant put the Respondent in default
of payment in the amount of EUR 800,000, corresponding to the lump sum of EUR 5000
(payable by 15 April 2021) and his salaries of August, September and October 2021 in the
amount of EUR 100,000 each, thereby granting the club a 15 days’ deadline to remedy the
default; however, to no avail.
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7.
Subsequently, the player unilaterally terminated the contract by means of his letter dated 15
December 2021.
8.
On 5 January 2022, the Claimant signed a new contract with the Brazilian club, Palmeiras
(hereinafter: the new club), valid as from 2 January 2022 until 31 December 2022, whereby
Palmeiras undertook to pay to the player, inter alia, a total fixed remuneration amounting to
BRL 3,638,710 (approx.: EUR 593,000).
II. Proceedings before FIFA
a. Position of the Claimant
9.
On 17 December 2021, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the total
amount of EUR 6,100,000, plus 5% interest p.a. as of the date of claim, broken down by the
Claimant as follows:
Outstanding remuneration: EUR 900,000
- EUR 500,000 corresponding to the lump sum payable by 15 April 2021;
- EUR 400,000 corresponding to the salaries of August, September, October and November
2021 in the amount of EUR 100,000 each.
Compensation for breach of contract: EUR 5,200,000
- EUR 5,200,000 corresponding to the residual value of the contract, i.e. the salaries payable
as from December 2021 until December 2024 and the 2 lump sums payable throughout the
term of the contract (37 salaries of EUR 100,000 each, plus the 3 lump sums of EUR 500,000
each).
10. The player explained that, despite it being scheduled that he had to return to China on 31
January 2021, following his stay in Brazil, “due to the worsening conditions of the Covid-19
pandemic in mainland China, the Club was unable to obtain a “greencode” and the Player
was prevented from returning to China”.
11. The Claimant further explained that, during the following months, both parties were in close
contact with the Chinese authorities in order to obtain the necessary documentation for the
Claimant to travel to China and continue rendering his services for the club, but the
Respondent failed to comply with its contractual obligations. In particular, the Claimant
explained that, although the club performed all payments in connection with the 2020
season, during the year 2021, the club: 1.) initially delayed several months the payment of
the player’s salaries; 2.) failed to pay the amount of EUR 500,000, which fell due on 15 April
2021; 3.) and, as from August 2021, completely failed to pay the player’s salaries, the salary
of July 2021 being the last salary paid by the Respondent.
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12. In this context, the player argued that, after having put the Respondent in default of payment
and the latter not remedying the default within the granted deadline, he had no alternative
but to terminate the contract.
b. Position of the Respondent
13. On its part, the Respondent acknowledged not having paid the player’s salary as from August
2021, but argued that due to the financial impact of the Covid-19 pandemic and the player’s
absence (the player being in Brazil and not being allowed to enter China in January 2021 due
to Covid-19 restrictions), the club suffered big losses and was relegated at the end of the
2021 season, which had an important financial impact on the club.
14. The Respondent acknowledged receipt of both, the default and termination notices.
15. In this point, the Respondent referred to the new employment situation of the player and
held that, should the player have signed a new contract with his new club before having
terminated the contract at stake, i.e. before 15 December 2021, it must be determined that
the player breached the contract and shall be held liable for the unlawful termination of the
contract.
16. In addition, the Respondent stressed that, should the DRC conclude that the player
terminated the contract with just cause, the new income of the player with his new club shall
be taken into account when calculating the potential compensation for breach of contract
due to the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 17 December 2021 and submitted for
decision on 7 April 2022. Taking into account the wording of art. 34 of the October 2021
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.
18. 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 (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
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employment-related dispute with an international dimension between a Brazilian player and
a Chinese club.
19. 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 (August 2021 edition) and
considering that the present claim was lodged on 17 December 2021, the August 2021
edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
20. 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
21. 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
22. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant is requesting to be awarded outstanding
remuneration and compensation for breach of contract in the total amount of EUR
6,100,000, plus 5% interest p.a. as of the date of claim (cf. point 9 supra for breakdown).
23. Whereas the Claimant affirms having terminated the contract with just cause on 15 December
2021 ex. art. 14bis of the Regulations, the Respondent -despite having acknowledged being
in default of payment of the player’s salaries as from August 2021 until the present datepointed out that the termination of the contract shall be deemed as made without just cause,
if the new contract concluded between the player and his new club was signed before the
date of termination of the contract.
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24. In this respect, it must firstly be noted that the new contract was only signed by the player
and his new club on 5 January 2022 (cf. point 8 supra). Thus, the argumentation of the
Respondent in this regard cannot be upheld.
25. Hence, it being uncontested that the club -without any legal basis- failed to pay the player’s
remuneration as from August 2021 onwards, as well as the lump sum payment that fell due
in April 2021 (which lack of payment also remained unchallenged), the DRC determined that
the Claimant terminated the contract with just cause on 15 December 2021, insofar as -at
that moment in time- the player had put the Respondent in default on 29 November 2021,
thereby granting the Respondent a 15 days’ deadline to remedy the default (in accordance
with the prerequisites set by art. 14bis of the Regulations); to no avail.
26. Concerning the argument of the Respondent that the club underwent financial difficulties
due to the Covid-19 pandemic, the said circumstance -albeit inconvenient- cannot be
considered a valid argument, since the Respondent has failed to provide any documentation
in this respect, preventing the DRC from even starting to assess whether the Respondent’s
allegations could be upheld and, most importantly, since the allegation of Covid-19 as a
situation of force majeure needs to be proven by the party alleging it existence, in accordance
with both, the FIFA Guidelines on Covid-19 and art. 13.5 of the Procedural Rules.
27. As for the allegation of the Respondent that the player was absent and not rendering services
for the club due to Covid-19 restrictions to travel from Brazil to China, the Respondent has
neither alleged nor provided any evidence in relation to the reason and specific restrictions
that applied to the player’s return to China, which also prevents the DRC from assessing
whether the player’s absence in China was or was not a consequence of the player’s
negligence.
28. Thus, the DRC concluded that all the arguments of the Respondent need to be rejected.
ii. Consequences
29. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
30. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounts to EUR 900,000, broken
down as follows: EUR 500,000 corresponding to the lump sum payable by 15 April 2021;
and EUR 400,000 corresponding to the salaries of August, September, October and
November 2021 in the amount of EUR 100,000 each. As a consequence, and in accordance
with the general legal principle of pacta sunt servanda, the Chamber decided that the
Respondent is liable to pay to the Claimant the amount of EUR 900,000 as outstanding
remuneration.
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31. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the amount of EUR 900,000 as from 17 December 2021, i.e. the date on which
the claim was lodged (as requested by the Claimant) until the date of effective payment.
32. 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.
33. 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 no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
34. 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.
35. 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 EUR 5,200,000 serves as the basis for the determination of the amount
of compensation for breach of contract.
36. 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.
37. Indeed, the player found employment with the Brazilian club, Palmeiras, for a duration as
from 2 January 2022 until 31 December 2022, whereby Palmeiras undertook to pay to the
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player, inter alia, a total fixed remuneration amounting to BRL 3,638,710 (approx.: EUR
593,000).
38. 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.
39. In this respect, the DRC decided to award the amount of additional compensation of EUR
300,000, i.e. three times the monthly remuneration of the player at the moment of the
termination of the contract.
40. 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 EUR
4,907,000 to the player (i.e. EUR 5,200,000 minus EUR 593,000 plus EUR 300,000), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
41. Lastly, 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 17 December 2021 until the date of effective payment.
iii. Compliance with monetary decisions
42. 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.
43. 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.
44. 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.
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45. 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.
46. 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
47. 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.
48. 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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jailson Marques Siqueira, is partially accepted.
2.
The Respondent, Dalian Football Club, has to pay to the Claimant, the following amount:
- EUR 900,000 as outstanding remuneration plus 5% interest p.a. as from 17 December 2021
until the date of effective payment;
- EUR 4,907,000 as compensation for breach of contract, plus 5% interest p.a. as from 17
December 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 the ban shall
be of 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 article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
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7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
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