Labour Disputes
Texto da decisão
REF FPSD-5077
Decision of the
Dispute Resolution Chamber
passed on 27 October 2022
regarding an employment-related dispute concerning the player
Sidevaldo Pereira dos Santos
COMPOSITION:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Johan van Gaalen (South Africa), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Al Mesaimeer Sports Club, Qatar
Represented by Nilo Effori
RESPONDENT:
Sidevaldo Pereira dos Santos, Brazil
INTERVENING PARTY:
Al Thoqbah Club, Saudi Arabia
Represented by Ali Abbes and Mohamed Rokbani
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REF FPSD-5077
I. Facts of the case
1.
On 17 June 2022, the Qatari club, Al Mesaimeer Sports Club (hereinafter: Claimant or club)
sent a document titled “Subject/Contract offer for the season 2021/2022” (hereinafter: Offer)
to the player’s alleged agent.
2.
The offer reads as follows:
3.
On 21 June 2021, a VISA was issued by the state of Qatar for the player.
4.
On 23 June 2021, the club organised a flight ticket for the player (Sao Paulo – Doha) in
order to arrive in Qatar on 27 June 2021.
5.
According to the club, on 8 July 2021, the player signed the following declaration (issued
on the letterhead of the club):
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6.
On 15 July 2021, then club issued the following notification addressed to the player:
7.
On 28 July 2021, the club organised a flight ticket for the player (Sao Paulo – Doha) in order
to arrive in Qatar on 29 July 2021.
8.
According to the club, on 12 August 2021, the player signed the following declaration
(issued on the letterhead of the club):
9.
On 1 January 2022, the player signed an employment contract with the Saudi club, Al
Thoqbah, valid as from 2 January 2022 until 30 April 2022, including a monthly salary of
USD 4,000.
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II. Proceedings before FIFA
10. On 7 February 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
11. In its claim, the club requested payment of the following monies:
- USD 100,000 as compensation for breach of contract (corresponding to the
value of the contract);
Alternatively
- USD 95,000 as compensation for breach of contract (corresponding to the
“difference in costs to substitute the Player”)
In any case:
- USD 4,813 as reimbursement of the costs for the flight tickets;
- USD 4,309 as reimbursement of the costs for the accommodation of the
player.
The Claimant further requested interest of 5% p.a.
12. In its claim, the club argued that the player breached the “pre-contract” (the offer), which
obliged the parties to conclude the actual contract at a later stage.
13. According to the club the “pre-contract”, which contained all the essentialia negotii, was
concluded when the player arrived in Qatar, before he changed his mind and left the
country, twice.
14. In this regard, the club requested to be reimbursed with the costs of the flight tickets and
accommodation, as well as compensation for breach of contact.
15. The club maintained that it had to secure the services of a different, more expensive
player after the Respondent left. Such player did cost a transfer fee of USD 195,000.
b. Position of the Respondent
16. The player failed to reply to the claim.
c. Position of the new club
17. According to the player’s new club, Al Thoqbah, the player was contacted by the Claimant
in order to negotiate a contract. After he arrived in Qatar, the club lost interest in the
player’s services.
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18. In order to be able to leave the country, the player, under pressure from the club, had to
sign the declaration.
19. After a few days, the player was contacted again by the club, which explained that a
misunderstanding regarding his age caused doubts, but that he should return in order to
negotiate a contract.
20. The new club further stated that according to the player, after a medical check up, before
a contract was signed, the club ended the negotiations and again, he had to sign a
declaration in order to leave the country.
21. According to Al Thoqbah no employment contract was concluded between the player and
the Claimant.
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 07 February 2022 and
submitted for decision on 27 October 2022. Taking into account the wording of art. 34 of
the June 2022 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 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 (July 2022 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Brazilian player, a Qatari and a Saudi club.
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 (July 2022 edition), and
considering that the present claim was lodged on 07 February 2022, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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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 the Transfer Matching System (TMS).
c. Merits of the dispute
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 took note of the claim for breach of contract by a club against a player.
28. In this context, the Chamber acknowledged that it its task was to detail if the parties were
bound by a contractual relationship in connection with the offer sent by the club.
29. In view of the foregoing, the Chamber started by recalling its well-established
jurisprudence which dictates that, in order for an employment contract to be considered
valid and binding, apart from the signature of both the employer and the employee, it
should contain the essentialia negotii of an employment contract, such as the parties to
the contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee.
30. The Chamber also recalled the content of 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. With this in mind, the Chamber deemed that it was up to the Claimant
to prove that the employment relationship, on the basis of which it claimed compensation
for breach of contract and reimbursement of costs, indeed existed.
31. In this context, the Chamber turned its attention to the documentation brought forward
by the parties and acknowledged that no acceptance of the offer from the player is on
file.
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32. From the documentation on file, the Chamber concluded that the player was invited to
negotiate a contract, but that such negotiations did not result in the conclusion of a
contract.
33. The Chamber further wished to emphasize that the declarations on file in which the
players appear to apologize for “competing a contract” twice before leaving the country do
not proof the actual conclusion of a contractual relationship.
34. In light of the above, the Chamber understood that the Claimant did not meet its burden
of proof in order to demonstrate that a contractual relationship was indeed established.
35. Therefore, the Chamber decided that no valid and biding employment contract had been
concluded between the club and the player and the claim had therefore no legal basis
and had to be rejected.
36. The members of the Chamber noted that the player in the signed document dated 15 July
2021 appeared to have accepted to reimburse the club for USD 5,000 in case no contract
was concluded, but the DRC pointed out that such claim for reimbursement was not
admissible in front of the Football Tribunal since it was established that no employment
related relationship was concluded between the parties.
d. Costs
37. 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.
38. 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.
39. 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, Al Mesaimeer Sports Club, is rejected, insofar it is admissible.
2.
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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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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