Labour Disputes
Texto da decisão
REF. FPSD-11360
Decision of the
Dispute Resolution Chamber
passed on 25 January 2024
regarding an employment-related dispute concerning
the player Alan Henrique Ferreira Bastos Soares
COMPOSITION:
Clifford HENDEL (USA & France), Deputy Chairperson
Angela COLLINS (Australia), member
Mario FLORES CHEMOR (Mexico), member
CLAIMANT:
Alan Henrique Ferreira Bastos Soares, Brazil
Represented by Wallace Joacir Alves de Oliveira
RESPONDENT:
Najran SC, Saudi Arabia
Represented by Global Sport Consulting
pg. 2
REF. FPSD-11360
I. Facts of the case
1.
On 1 January 2023, the Brazilian player (hereinafter: Claimant or player) and the Saudi
Arabian club, Najran FC (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 1 January 2023 until 31 May 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of USD 12,000.
3.
Additionally, the Respondent, undertook to provide to the Claimant housing, flight tickets
and transportation, as detailed in the contract.
4.
On 20 January 2023, the player travelled to Saudi Arabia and commence training sessions
with the club in accordance with the training schedule provided by the club.
5.
On 1 February 2023, the Respondent allegedly informed the Claimant that the contract
could not be concluded on the basis of his physical condition and apparently provided a
flight ticket to the Claimant to return to Brazil.
6.
On 1 March 2023, the Claimant sent a default notice to the Respondent, requesting
payment of the amount of USD 60,000, corresponding to the total value of the contract,
however to no avail.
7.
On 23 February 2023, the player signed an employment contract with the Finnish club, IFK
Mariehamn Fotboll valid as from 27 February 2023 until 31 October 2023, including a
monthly salary of EUR 1,000.
II. Proceedings before FIFA
8.
On 16 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
9.
In his claim, the Claimant argued that the Respondent failed to provide him with a signed
copy of the contract, however the club undertook all the necessary steps to hire the player,
including “presenting him with an offer, getting him a visa, sending tickets, receiving him in its
premises, allowing him to train with the rest of the team and procuring an employment contract
(draft) and, finally, publicly announcing the player as one of the new signings of the club.”
10. Moreover, the player argued that the club is liable to pay compensation for terminating the
contract without just cause.
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REF. FPSD-11360
11. The request of relief of the player, were as follows:
a)
b)
c)
“Establish that Respondent has unlawfully breached the parties’ employment contract during
the Protect Period;
Establish that Claimant has unilaterally terminated the employment contract with just cause;
Order the Respondent to pay the Claimant, the unpaid remunerations at the amount of US$
12.000,00 (twelve thousand dollars) as listed below:
US$ 12.000,00
•
January 2023
d)
Order the Respondent pay to the Claimant the contract at the amount of US$48.000,00 (fortyeight thousand dollars) for all his sporting and financial damages, as listed below:
•
•
•
•
February 2023
March 2023
April 2023
May 2023
e)
Order the Respondent to pay an additional compensation corresponding to three times
the monthly salary of the Player US$36.000,00 (thirty-six thousand dollars - 3 x US$ 12.000,00)
in case a mitigation of the compensation occurs;
Impose a sporting sanction on NAJRAN SPORT CLUB consisting on a ban from registering any new
players, either nationality or internationality, for 3 (three) registration periods, as a
consequence of having unlawfully breached the parties’ employment contract during the
Protected Period in the matter at hand;
g) Order the Respondent to pay interest at the rate of 5% per year since the moment the due
amount became outstanding.”
f)
g)
US$12.000,00
US$12.000,00
US$12.000,00
US$12.000,00
b. Position of the Respondent
12. In its reply to the claim, the Respondent mentioned the following:
-
-
-
“The player was proposed to the club by his agent to be part of the first team of Najran and to
join the club .
The club has informed the agent of the player that he should come to Saudi Arabia to pass all
medical examinations and technical tests (for 10 days maximum) because it has no idea about
the player’s capacities. And in case he succeeded in the obvious requirements, in that moment
an employment contract will be signed between them.
The player received a draft of a contract that will be signed only if the player succeeded in the
technical examination to be aware of all terms of the contract in case that he succeeded in the
technical examination.
Due to that agreement, the club sent an invitation to the player (and not an offer as falsely
indicated by the player) (exhibit 4 of the claim).
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REF. FPSD-11360
-
-
-
The said letter cannot be considered as a binding offer because its constitues a simple invitation
without containing any conditions required to be considered as a contract.
The respondent sent a flight ticket to the player so that he came to Saudi Arabia and the player
starts the technical examination training with the club in order to evaluate his physical and
technical capacities before any engagement.
Also, contrary to the player’s allegations, the club did never announce that it signed a contract
with the player and all pictures provided by the player are only a picture of the training sessions
of the team in which the player participated to supervise his technical capabilities by the
technical staff before signing the contract.
Unfortunately, after passing the technical test (few sessions ( he stood in Saudi Arabia less than
10 days) , the player didn’t succeed to convince the coach who informed the club of his decision.
In this respect, in 01/02/2023, the club informed the player that he did not succeed in the
technical test.
According to that, the club has informed the player that he failed to convince the technical staff
, and thus it cannot sign with him any employment contract.”
13. In conclusion the club argued that “the documentation presented by the claimant, its cannot
be presume, beyond doubt, by documentary evidence, that the said parties had indeed entered
into a respective labor agreement.”
14. The club requested that the claim should be rejected.
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REF. FPSD-11360
III. Competence and applicable legal framework
15. 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 16 August 2023 and submitted
for decision on 25 January 2024. 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.
16. 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 Saudi
Arabian club.
17. 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 16 August 2023, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
a. Burden of proof
18. 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).
b. Merits of the dispute
19. 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.
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REF. FPSD-11360
i. Main legal discussion and considerations
20. The foregoing having been established, the Chamber noted that the parties’ first
fundamental disagreement is whether the player concluded a valid and binding
employment contract with the club.
21. The Chamber took note that the player argued that he had accepted the offer presented
and accordingly had a valid contract in place with the club and in this regarded he provided
a copy of a contract on the letterhead of the club, which contained majority of the
necessary essentialia negotii of an employment contract, however the said contract was
only signed by the player.
22. The Chamber further noted that the club did not deny that it sent the employment contract
to the player, it argued that it sent a draft of a contract to the player and mentioned that it
will only be concluded if the player succeeded in the technical examination. The Chamber
observed that the club further argued that it merely invited the player to the club for a
technical training session, and that the documentation provided by the player does not
establish that a valid contract was concluded between the parties.
23. 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 as valid and
binding, 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.
24. Additionally, the Chamber highlighted that in order for the Chamber to be able to assume
that the Claimant and the Respondent had indeed been bound to an employment contract
with the terms as described by the Claimant, it had to be established, with comfortable
satisfaction, by documentary evidence, that said parties had indeed entered into an
employment agreement, and, if so, under which terms.
25. After thoroughly analysing the documentation on file, the Chamber understood that the
alleged employment contract concluded between the parties indeed (i) contains the proper
identification of the parties; (ii) provides for the duration of the employment relationship
and the payable remuneration to the player; and (iii) refers to the player as being employed
as a footballer with the club. Moreover, the letter dated 14 January 2023, the club sent to
the “airlines”, indicates that the club had the intention to sign the player for the 2022/2023
season.
26. In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did prove to the Chamber’s comfortable satisfaction
that the Respondent and the Claimant had validly entered into an employment contract.
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REF. FPSD-11360
27. The Chamber also found it noteworthy to highlight that the club did not provide any
evidence of any correspondence it had with the player’s agent, specifically in reference to
the alleged purpose of the player’s trip to Saudi Arabia and it did not submit any
communication it had with the player, supposedly informing him that the contract would
only be signed if he succeeded in the technical assessment.
28. In consideration of all of the above, the Chamber concluded that the player met his burden
of proof to demonstrate that an employment relationship was established between the
parties and that the contract sent by the club to the player is in fact a valid and binding
employment contract that shall be considered in the case at stake, as the contractual basis
of the present dispute.
29. Having established that the parties had a valid and binding employment contract, the
Chamber analysed whether this contract was in fact breached by the club.
30. In this context the player indicated that the club terminated his contract on the basis of his
physical condition and in this regard, the Chamber underlined that no official termination
document and/ or correspondence corroborating the aforesaid was submitted on file,
however the Chamber remarked that on the basis that such allegations were not contested
by the club, it decided to accept the position of the player as to the termination of the
contract.
31. On account of the above, the Chamber decided that the club terminated the contract on 1
February 2023 without just cause.
ii. Consequences
32. Having stated the above the Chamber observed that the outstanding remuneration at the
time of termination, coupled with the specific requests for relief of the player, amounts to
USD 12,000.
33. 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 amounts
which were outstanding under the contract at the moment of the termination, USD 12,000.
34. 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 outstanding amounts as from the respective due dates until the date of
effective payment.
35. 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
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REF. FPSD-11360
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.
36. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
37. 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.
38. As a consequence, the Chamber determined that the amount of compensation payable by
the Respondent to the Claimant 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.
39. 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
until its term. Consequently, the Chamber concluded that the amount of USD 48,000 (i.e.,
USD 12,000 X 4 – February until May 2023) serves as the basis for the determination of the
amount of compensation for breach of contract.
40. In continuation, the Chamber verified 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
Chamber 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.
41. Indeed, the player found new employment with the Finnish club, IFK Mariehamn Fotboll
valid as from 27 February 2023 until 31 October 2023. In accordance with the pertinent
employment contract, the player was entitled to approximately EUR 1,000 per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of EUR 3,000 (approximately USD 3222.10).
42. 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
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REF. FPSD-11360
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination did not occur due to said reason, and therefore decided that the player shall
not receive additional compensation.
43. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
44,777.90 to the player (i.e., USD 48,000 minus USD 3222.10), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
44. 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 1 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
45. 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.
46. 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.
47. 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.
48. 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.
49. 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.
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REF. FPSD-11360
c. Costs
50. 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.
51. 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.
52. 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-11360
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alan Henrique Ferreira Bastos Soares, is partially accepted.
2.
The Respondent, Najran SC, must pay to the Claimant the following amount(s):
- USD 12,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2023
until the date of effective payment
- USD 44,777.90 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 February 2023 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
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REF. FPSD-11360
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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