Labour Disputes
Texto da decisão
REF. FPSD-15131
Decision of the
Dispute Resolution Chamber
passed on 12 September 2024
regarding an employment-related dispute concerning the player
Willian Souza Arao da Silva
COMPOSITION:
Clifford J. HENDEL (USA / France), Deputy Chairperson
Johan VAN GAALEN (South Africa), Member
André DOS SANTOS MEGALE (Brazil), Member
CLAIMANT:
Willian Souza Arao da Silva, Brazil
Represented by Breno Costa Ramos Tannuri
RESPONDENT:
Fenerbahçe A.Ş., Türkiye
pg. 2
REF. FPSD-15131
I. Facts of the case
1.
On 14 July 2022, the Brazilian player Willian Souza Arao da Silva (hereinafter, the Claimant or the
Player) and the Turkish club Fenerbahçe A.Ş., (hereinafter, the Respondent or the Club) concluded an
employment contract valid until 31 May 2024.
2.
On 14 August 2023, the Player and the Club (hereinafter, jointly referred to as the Parties) signed the
so-called “Mutual Termination” in accordance with which they agreed to mutually terminate their
employment relationship.
3.
Also on 14 August 2024, the Parties concluded the “Settlement Agreement”.
4.
Pursuant to Clause 3 of the Settlement Agreement, the Club undertook to pay to the Player EUR
400,000 net in the following 30 instalments:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
5.
EUR 15,000 net on 25/08/2023
EUR 15,000 net on 25/09/2023
EUR 15,000 net on 25/10/2023
EUR 15,000 net on 25/11/2023
EUR 15,000 net on 25/12/2023
EUR 15,000 net on 25/01/2024
EUR 15,000 net on 25/02/2024
EUR 15,000 net on 25/03/2024
EUR 15,000 net on 25/04/2024
EUR 15,000 net on 25/05/2024
EUR 15,000 net on 25/08/2024
EUR 15,000 net on 25/09/2024
EUR 15,000 net on 25/10/2024
EUR 15,000 net on 25/11/2024
EUR 15,000 net on 25/12/2024
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
EUR 15,000 net on 25/01/2025
EUR 15,000 net on 25/02/2025
EUR 15,000 net on 25/03/2025
EUR 15,000 net on 25/04/2025
EUR 15,000 net on 25/05/2025
EUR 10,000 net on 25/08/2025
EUR 10,000 net on 25/09/2024
EUR 10,000 net on 25/10/2025
EUR 10,000 net on 25/11/2025
EUR 10,000 net on 25/12/2025
EUR 10,000 net on 25/01/2026
EUR 10,000 net on 25/02/2026
EUR 10,000 net on 25/03/2026
EUR 10,000 net on 25/04/2026
EUR 10,000 net on 25/05/2026
According to Clause 3.4 of the Settlement Agreement:
“(…) a penalty of 5% and default interest at the rate of 10% annual interest shall accrue on each instalment
that the Club (sic). This clause will be valid if the Club fails to pay the installment within 20 (twenty) days
after the due date.
In case of not paying 3 (three) consecutive installments within the 20 (twenty) days after the due dates,
then all remaining installments become due immediately (“acceleration clause”).
If the acceleration clause activates, then a penalty of 5% will not accrue to the remaining installments.
Nevertheless, the Player will be still entitled to claim the 10% annual default interest referred above”.
pg. 3
REF. FPSD-15131
6.
As per Clause 6(b) of the Settlement Agreement:
“Any dispute or claim arising out or in connection with this Agreement (or arising out of or in connection
with the relationship between the parties which is created by this Agreement), including any question
regarding its existence, validity or termination, shall be referred to and finally resolved by FIFA, applying
the relevant FIFA Regulations (…)”.
II. Proceedings before FIFA
7.
On 3 July 2024 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 Player
8.
According to the Claimant, the Club failed to pay the 8th, 9th and 10th instalments of the Settlement
Agreement, amounting to EUR 45,000 (i.e., EUR 15,000 each).
9.
The Player sustained that the Club’s failure to comply with the above three consecutive instalments
within 20 days from their due dates triggered, on 15 June 2024, the acceleration clause provided in
Clause 3.4 of the Settlement Agreement. In this respect, the Player argued that the last instalment
paid by the Club was the 7th one, consequently, as from the 8th instalment all the upcoming ones
became due. Accordingly, the Player claimed being entitled to the outstanding instalments and the
remaining value of the Settlement Agreement in the amount of EUR 295,000 (i.e., EUR 45,000 and
EUR 250,000, respectively).
10. The Player, also based on Clause 3.4 of the Settlement Agreement, further claimed being entitled to
a penalty of EUR 12,500, corresponding to a 5% of the accelerated amount.
11. Lastly, the Player claimed being entitled to interest of 10% per annum as per Clause 3.4 of the
Settlement Agreement.
12. The Player requested the following relief:
“FIRST – To uphold the entire claim filed by the Player;
SECOND – To order the Club to pay to the Player an amount of EUR 15,000 (fifteen thousand Euros) plus
default interest at a rate of 10% p.a. as of 26 March 2024 until the date of effective payment;
THIRD – To order the Club to pay the Player an amount of EUR 15,000 (fifteen thousand Euros) plus default
interest at a rate of 10% p.a. as of 26 April 2024 until the date of effective payment;
FOURTH – To order the Club to pay the Player an amount of EUR 15,000 (fifteen thousand Euros) plus
default interest at a rate of 10% p.a. as of 26 May 2024 until the date of effective payment.
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REF. FPSD-15131
FIFTH – To order the Club to pay the Player the amount of EUR 250,000 (two hundred and fifty thousand
Euros) net due as the remaining instalments triggered by the acceleration clause plus default interest at
the rate of 10% p.a. as from 15 June 2024 until the date of effective payment;
SIXTH – To order the Club to pay the Player a penalty of EUR 12,500 (twelve thousand five hundred Euros)”.
b. Position of the Club
13. In its reply, the Club initially argued that the penalty claimed should not be applied to the accelerated
amount in accordance with Clause 3.4 of the Settlement Agreement. According to the Club, the
Player could either claim the penalty clause on the overdue instalments, or the acceleration clause,
“however, the Claimant requested both sanctions contrary to the agreement between the Parties with his
statement of claim”.
14. The Club sustained that Clause 3.4 of the Settlement Agreement is clear when it stipulates that the
penalty of 5% only applies to the overdue amounts, which are EUR 45,000. Accordingly, the Club
argued that the penalty amounts to EUR 2,250, corresponding to a 5% of EUR 45,000 (i.e., the three
outstanding instalments).
15. The Club further alleged that, as a general principle of law, it is not possible to impose several
sanctions for a breach, namely, a penalty, default interest, and an acceleration clause. According to
the Club, to do so would be excessive and out of proportion considering the size of the breach of
the party.
16. The Club rejected the dies a quo of the interest in relation to the accelerated amount, which should
start from the submission date of the claim in accordance with art. 105 of the Swiss Civil Code.
17. The Club requested the following relief:
1) To suspend the matter at hand at least until 31.08.2024 by considering the ongoing negotiations
between the Parties in order to find an amicable solution.
2) To dismiss the claim of the Claimant.
3) If the above-mentioned request (2) is not accepted by your honorable Chamber,
- To dismiss the claim of the Claimant in regards to the:
(i) Penalty amount
(ii) Interest
4) If the above-mentioned request (3) is not accepted by your honorable Chamber,
pg. 5
REF. FPSD-15131
- To partially accept the claim of the Claimant in regards to the:
(i) Penalty amount as 2.250 Euro (Two Thousand Two Hundred and Fifty Euro).
(ii) Interest application date to the accelerated amount from 03.07.2024 until the effective date of
payment.
(iii) To make decision that the judicial costs and the legal fees that the Respondent is faced with shall
be paid by the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Dispute Resolution Chamber (hereinafter, the Chamber or the 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 3 July 2024 and submitted for decision on 12 September 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.
19. Furthermore, 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 par. 1 lit. b) of the Regulations on the
Status and Transfer of Players (June 2024 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 Turkish club.
20. 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 (June 2024 edition), and considering that the
present claim was lodged on 3 July 2024, the June 2024 edition of said regulations (hereinafter, the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
21. 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).
pg. 6
REF. FPSD-15131
c.
Merits of the dispute
22. Having established the competence and the applicable regulations, the Chamber entered into the
merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned 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 assessing the matter at hand.
i. Main legal discussion and considerations
23. The Chamber then moved to the substance of the matter, and took note of the fact that the present
dispute concerns outstanding amounts arising from the Settlement Agreement concluded between
the Parties.
24. In this respect, the DRC noted that the Player claimed being entitled not only to the outstanding
instalments due at the time of lodging the present claim, but also to the overall amount agreed in
the Settlement Agreement, based on the acceleration clause provided in Clause 3.4 therein.
Furthermore, the Player also claimed being entitled to EUR 12,500 as a contractual penalty,
calculated on the overall accelerated amount, as well as interest at a rate of 10% per annum.
25. The Chamber also observed that the Club did not dispute being in default for the three instalments
claimed by the Player, neither the fact that the acceleration clause was triggered. Nonetheless, the
Club sustained that the contractual penalty should not be calculated on the accelerated amount,
but only on the three instalments due. The DRC noted that, according to the Club, the acceleration
clause, the contractual penalty and the interest constitute an excessive and unproportioned
sanction in comparison with the breach.
26. In this context, the Chamber acknowledged that it its task was to assess which are the amounts
payable by the Club to the Player and if awarding the acceleration clause, the contractual penalty
and interest would result in an excessive sanction, as argued by the Respondent.
27. In doing so, the DRC initially observed that the Club did not dispute being in default for the three
monthly instalments claimed by the Player, nor that the acceleration clause provided in the
Settlement Agreement was triggered. In view of the foregoing, and bearing in mind the legal
principle of pacta sunt servanda, which in essence means that agreements must be respected by the
parties in good faith, the Chamber determined that, as claimed by the Claimant, the Club is held
liable to pay to the Player EUR 45,000, corresponding to the three outstanding instalments, as well
as EUR 250,000 net, corresponding to the residual value of the Settlement Agreement in accordance
with the acceleration clause provided therein.
28. In addition, taking into consideration the Claimant’s request, and based on Clause 3.4 of the
Settlement Agreement, which provided an interest of 10% per annum in case the Club defaulted any
instalment for more than twenty days, the Chamber decided to award the Player interest at the rate
of 10% per annum, which is in line with the jurisprudence of the Football Tribunal as follows:
pg. 7
REF. FPSD-15131
- On the amount of EUR 15,000 (i.e., 8th instalment), as from 26 March 2024;
- On the amount of EUR 15,000 (i.e., 9th instalment), as from 26 April 2024;
- On the amount of EUR 15,000 (i.e., 10th instalment), as from 26 May 2024; and
- On the amount of EUR 250,000 net (i.e., accelerated amount), as from 15 June 2024.
29. The above having been established, the Chamber noted that the Player also claimed being entitled
to EUR 12,500 as a contractual penalty, corresponding to 5% of the accelerated amount. The
Chamber also observed that, according to the Club, such penalty only applied to the overdue
amounts, and consequently it amounts to EUR 2,250.
30. In view of the above, the Chamber turned its attention to the wording of Clause 3.4 of the Settlement
Agreement, and observed that it established the following:
“(…) a penalty of 5% and default interest at the rate of 10% annual interest shall accrue on each instalment
that the Club (sic). This clause will be valid if the Club fails to pay the installment within 20 (twenty) days
after the due date.
(…)
If the acceleration clause activates, then a penalty of 5% will not accrue to the remaining installments.
Nevertheless, the Player will be still entitled to claim the 10% annual default interest referred above”.
31. Based on the foregoing provision, the Chamber concluded that the Parties established that in case
the acceleration clause was triggered, the contractual penalty would not be applicable to the
accelerated instalments, although it did not limit it to the already overdue instalments.
32. Consequently, the Chamber determined that the Club must be ordered to pay to the Player EUR
2,250 as contractual penalty, corresponding to 5% of the three instalments due.
33. The Chamber, by recalling the legal principle of non bis in idem, further established that no interest
should be applicable over the penalty.
34. Lastly, the Chamber noted that, according to the Club, the application of the following measures,
namely, the acceleration clause, interest at a rate of 10% p.a. and a penalty clause, constitute an
excessive and not proportionate measure.
35. In this respect, the Chamber underlined that the Parties were, under the principles of autonomy
and pacta sunt servanda, free to determine the terms that would regulate the conditions of the
termination of their employment relationship. In casu, these conditions entitled the Player to claim
the accelerated amount, a penalty on the outstanding amount and also interest at a rate of 10% per
annum.
pg. 8
REF. FPSD-15131
36. The Chamber wished to point out that that acceleration clauses are often used in termination
agreements, where the parties agree that should the club fail to pay an instalment on the agreed
date, the player can accelerate all due instalments and request the totality of the amount. By
claiming it, the Player is requesting the performance of the Settlement Agreement based on an
agreement reached under the principle of autonomy and pacta sunt servanda, and consequently it
should be enforced.
37. Furthermore, the Chamber also emphasised that the application of default interest derives from its
long-standing practice, provided that it is claimed by the relevant party. In casu, the interest of 10%
per annum on the outstanding amounts has its contractual basis on Clause 3.4 of the Settlement
Agreement, and is in line with the well-established jurisprudence of the Chamber in this regard.
38. Lastly, the Chamber considered it appropriate to recall the Parties that the Football Tribunal may
only reduce penalty clauses in case they are not proportional. In casu, a penalty representing 5% of
the outstanding amount is deemed proportional and is also in line with the well-established
jurisprudence of the Chamber.
39. Consequently, the Chamber concluded that the combination of the foregoing measures cannot be
deemed excessive or disproportionate, and thus decided to reject the Club’s allegations in this
regard.
ii. Compliance with monetary decisions
40. 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.
41. 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.
42. 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.
43. 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.
pg. 9
REF. FPSD-15131
44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the Parties.
pg. 10
REF. FPSD-15131
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Willian Souza Arao da Silva, is partially accepted.
2.
The Respondent, Fenerbahçe A.Ş., must pay to the Claimant the following amount(s):
EUR 45,000 as outstanding amount plus 10% interest per annum as follows:
- 10% interest p.a. over the amount of EUR 15,000 as from 26 March 2024 until the date of effective
payment;
- 10% interest p.a. over the amount of EUR 15,000 as from 26 April 2024 until the date of effective
payment; and
- 10% interest p.a. over the amount of EUR 15,000 as from 26 May 2024 until the date of effective
payment.
EUR 250,000 net as outstanding amount plus 10% interest per annum as from 15 June 2024 until
the date of effective payment.
EUR 2,250 as contractual penalty.
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
pg. 11
REF. FPSD-15131
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
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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
pg. 12