DRC Overdue Payables
Texto da decisão
REF FPSD-4019
Decision of the
Dispute Resolution Chamber
passed on 9 December 2021
regarding an employment-related dispute concerning the player Henrique
Pereira da Silva
BY:
ONGARO, Omar (Italy), Deputy Chairperson
FLORES CHEMOR, Mario (Mexico), Member
TIMERA, Khadija (Senegal), Member
CLAIMANT:
Henrique Pereira da Silva, Brazil
Represented by Jose Miguel Sampaio e Nora
RESPONDENT:
Al Wehdah, Saudi Arabia
Represented by Global Sport Consulting Law and Management Firm
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I.
Facts of the case
1.
On 2 October 2021, the Brazilian player, Mr Henrique Pereira da Silva (hereinafter: the player
or the Claimant) and the Saudi club, Al Wehdah (hereinafter: the club or the Respondent)
concluded an employment contract valid as from the date of signature until 30 June 2021
(hereinafter: the employment contract).
2.
Pursuant to item 4 of the employment contract, the club undertook to pay the player, inter
alia, the following amounts:
a. USD 55,000 net as “advance amount” due by 15 October 2020;
b. USD 105,000 net as monthly remuneration; and
c. “3 return Business Class airplane tickets for him from Brazil to Jeddah per season
for him and his wife and 1 kid”.
3.
On 13 May 2021, the player put the club in default and requested payments of his salaries
from December 2020 until April 2021, amounting to USD 525,000. The player granted the
club a 20 days’ deadline in order to cure the breach.
4.
On the same date, i.e. 13 May 2021, the player also requested the club to book 3 flight tickets
to Brazil, for him and his family.
II. Proceedings before FIFA
5.
On 15 October 2021, the player 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
6.
In his claim, the player alleged that the club failed to honour its financial duties and should
be liable to the payment of his outstanding remuneration amounting to USD 635,904.56 net
plus interest of 5% p.a. as from 30 June 2021, broken down as follows:
a. USD 630,000 as the salaries from January to June 2021 (i.e. USD 105,000 each);
b. USD 5,904.56 corresponding to the flights tickets from Saudi Arabia to Brazil, in
line with item 4 of the employment contract.
7.
In addition, the player also requested sporting sanctions to be imposed on the club in line
with art. 12bis of the FIFA Regulations on the Status and Transfer of Players (RSTP).
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b. Position of the Respondent
8.
In its reply, the club referred to the COVID-19 pandemic and to the financial crisis faced as a
result. Consequently, the club apologized for the delay and proposed a new payment
schedule.
9.
Finally, the club requested the Dispute Resolution Chamber to “reschedule the debt”, as well
as to reject the player’s request for sporting sanctions due to its good faith.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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 15 October 2021 and submitted for decision
on 9 December 2021. 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.
11. 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
employment-related dispute with an international dimension between a Brazilian player and
a Saudi club.
12. 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 15 October 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
13. 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).
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c. Merits of the dispute
14. 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
15. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that it pertains to a claim for outstanding salaries and reimbursement of flight
tickets lodged by the player against the club.
16. In this context, the Chamber acknowledged that it remained undisputed between the parties
that the amounts claimed by the player were due by the club and remained outstanding. On
the other hand, the DRC observed that the club referred to the COVID-19 pandemic and the
consequent financial crisis in order to justify its default.
17. With due consideration of the above, the DRC turned its attention to the club’s allegations
regarding the pandemic. By doing so, the Chamber highlighted that FIFA issued a set of
guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the
most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
18. To this extent, the DRC observed that the FIFA COVID FAQ, in its question no. 1, establishes
that the Bureau of the FIFA Council did not determine that the COVID-19 outbreak was a
force majeure situation in any specific country or territory, or that any specific employment
or transfer agreement was impacted by the concept of force majeure; rather, it provides that
whether or not a force majeure situation (or its equivalent) exists in the country or territory is
a matter of law and fact, which must be addressed on a case-by-case basis vis-à-vis the
relevant laws that are applicable to any specific employment or transfer agreement.
19. In the DRC’s view, the club did not file together with its reply any documentation pertaining
to the question of the COVID-19 pandemic and the concept of force majeure. Consequently,
the Chamber underlined that the club failed to meet its burden of proof in accordance with
the aforementioned art. 13 par. 5 of the Procedural Rules. In addition, the DRC also referred
to its well-established jurisprudence and was firm to determine that the alleged financial
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difficulties faced by the club could not be considered as valid arguments not to perform
contractual obligations.
20. In view of the foregoing, the Chamber concluded that the club’s argumentation had to be
rejected. Consequently, in line with the general legal principle of pacta sunt servanda, the
members of the DRC unanimously decided that the club should be liable to pay the player
the outstanding salaries sought, amounting to USD 630,000 net.
21. 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 30 June 2021 until the date of effective payment.
22. Having established the above, the DRC moved to the analysis of the player’s request for
reimbursement of the flight tickets. To this extent, the Chamber observed that his request: (i)
is contractually-based; (ii) was supported by documentary evidence; and (iii) was not disputed
by the club. Accordingly, the DRC deemed that the player should also be entitled to said
amounts, however to be awarded in local currency as described in the invoice on file (i.e. SAR
22,146).
23. Once again the Chamber referred to its jurisprudence on the matter and considered that the
player should be awarded interest of 5% p.a. as from the date of the expiry of the
employment contract (i.e. 30 June 2021), as claimed.
ii. Art. 12bis of the Regulations
24. In continuation, the DRC referred to art. 12bis par. 2 of the Regulations, which stipulates that
any club found to have delayed a due payment for more than 30 days without a prima facie
contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
25. To this end, the Chamber confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due form more than 30 days, and granted the club with
10 days to cure such breach of contract.
26. The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the second offense by the club within the last two years, the DRC decided to
impose a reprimand on the club in accordance with art. 12bis par. 4 lit. b) of the Regulations.
27. In this connection, the DRC wished to highlight that a repeated offence will be considered as
an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
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28. 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.
29. 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.
30. 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.
31. 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.
32. 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
33. 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.
34. 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.
35. 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, Henrique Pereira da Silva, is partially accepted.
2.
The Respondent, Al Wehdah, has to pay to the Claimant, the following amounts:
- USD 630,000 net as outstanding remuneration plus 5% interest p.a. as from 30 June 2021
until the date of effective payment; and
- SAR 22,146 as outstanding amount plus 5% interest p.a. as from 30 June 2021 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand is imposed on the Respondent.
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 (August 2021
edition), 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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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