Labour Disputes
Texto da decisão
REF FPSD-7271
Decision of the
Dispute Resolution Chamber
passed on 15 December 2022
regarding an employment-related dispute concerning
the player Roger Krug Guedes
BY:
Omar ONGARO (Italy), Deputy Chairperson
Daan DE JONG (The Netherlands), member
Alexandra GOMEZ BRUINEWOUD (Uruguay), member
CLAIMANT:
Shandong Taishan FC, China PR
Represented by Mr Jinyu Zhang and Ms Kiera Zhuang
RESPONDENT:
Roger Krug Guedes, Brazil
Represented by Mr Breno Costa Ramos Tannuri
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I Facts of the Case
1. Mr Roger Krug Guedes (hereinafter: Claimant or player) and Shandong Luneng Taishan
Football Club (TMS ID 726) (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 13 July 2019 until 13 July 2022.
2. According to art. 5 of the contract, the Respondent undertook to pay the Claimant, inter alia,
a salary of EUR 3,038,750 per month.
3. In addition, on 10 July 2018 Shandong Luneng Taishan Football Club, Talents Sports Ltda. and
the player concluded an image right agreement, valid, according to its clause 3, as from the
date of signature and until “the end date of the employment contract”.
4. Clause 7 of the image rights agreement stipulated the following:
“Clause 6 - If the Player unilaterally terminates the employment contract with the Licensee and/or
if the Player does not sign an employment contract with the Licensee valid until 9 July 2022, this
contract shall be automatically terminated and within 48 hours of the termination of this contract
(…)
Clause 7 - The parties agree the Court of Arbitration for Sport (TAS-CAS), located in Lausanne,
Switzerland, as the competent Court to settle any disputes that may arise as a consequence of the
breach of this contract, applying this contract shall be governed by the laws of Switzerland and,
in the alternative, by the laws of the People's Republic
of China. In this case, the parties hereby agree that the arbitration panel shall be composed of
three arbitrators and the official language of judgement shall be in English.”
5. On 2 August 2021, Shandong Taishan Football Club Co., LTD, Talents Sports Ltda. and the
player signed a “Termination Agreement of the Employment Contract and the
Endorsement Contract of Professional Soccer Player's Name, Nickname, Image and
Works (hereinafter “the Termination Agreement") with the following conditions:
“Article 2 - ROGER GUEDES or anyone designed by him - including but not limited to - TALENTS
("Designee'') shall pay to SHANDONG €700.000,00 (seven hundred thousand euros). The fee
shall be paid in two instalments: first instalment of €350.000,00 (three hundred and fifty
thousand euros) shall be paid before November 23, 2021; and the second instalment of
€350.000,00 (three hundred and fifty thousand euros) shall be paid before February 23, 2022.
If ROGER GUEDES or his Designee failed to pay any of the above instalment within the time
limits stipulated herein, ROGER GUEDES shall be under the obligation to pay a late payment
penalty equal to 20% of the outstanding due amount, plus 5% default interest per annum as
from the due date until the date of effective payment.”
6. On 6 May 2022, the Claimant put the Respondent (with copy to Talents Sports LTDA and Kirin
Soccer S/S LTDA) in default and requested payment of EUR 423,452 by no later than 15 May
2022 (350,000 + 70,000 + EUR 3,452 as interest).
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II Proceedings before FIFA
1. On 31 August 2022, the Claimant lodged a claim against the Respondent in front of FIFA and
requested the payment of EUR 350,000 plus 5% interest p.a. as from 23 February and EUR
70,000 as penalty, arising from the termination agreement.
2. In its reply, the player contested the competence of FIFA, noting that Talents Sports Ltda.,
and Kirin Soccer S/S Ltda., which take part into the termination agreement, are neither of the
persons – legal or natural – over which the decision-making bodies of FIFA also have
jurisdiction.
3. The player underlined that claims derived from a contract concluded with a company cannot
be taken into consideration due to the lack of competence.
4. The Respondent further argues that the FIFA DRC does not have jurisdiction over the image
rights agreement.
5. The player considered that the Employment Contract and the Image Rights Agreement were
concluded with the predecessor of the Claimant, Shangdong Luneng which is a different legal
entity.
6. The player noted that the Claimant has not provided any convincing document or any
evidence which could effectively substantiate its claims and demonstrate the legal and
sporting succession by the Claimant of its predecessor Shangdong Luneng.
7. As to the claimed penalty fee, the Respondent considered it to be “grossly disproportionate”
and excessive.
8. In its replica, the Claimant insisted in the competence of FIFA.
9. The Claimant considered that the image rights agreement is a dependent contract of the
employment contract.
10. The Claimant further considered that “It is crystal clear that the Claimant is the same legal entity
of Shandong Luneng Taishan Football Club.”
11. The Claimant underlined that it shares the same club ID (726) in TMS, as its predecessor.
12. In his duplica, the Respondent confirmed its initial arguments, as he considered that “the
Claimant has not been able to establish any legal or sporting succession”.
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13. The claimant underlined that he paid the first instalment under the termination agreement
via its new club, Sport Club Corinthians Paulista, but explained that “on realising that the Club
(or Claimant) and Shangdong Luneng are 2 (two) separate and different legal entities, the Player
refrained from making the payment of the second instalment under the Termination Agreement.”
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III Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 31 August 2022 and submitted
for decision on 15 December 2022. Taking into account the wording of art. 34 of the
October 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.
2.
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 (October 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 such as the
present one, which concerns a Brazilian player and a Chinese club.
3.
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 (October 2022 edition), and
considering that the present claim was lodged on 31 August 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Admissibility
4.
The Chamber noted, in limine litis, that the present matter concerns an employment
agreement concluded between the parties (cf. point I 1 above), as well as to an image rights
agreement (cf. point I 3 above).
5.
In view of the above, the Chamber referred to the jurisprudence of the Football Tribunal,
according to which, as a general rule, if there are separate agreements, FIFA tends to
consider the agreement on image rights as such and does not have the competence to deal
with it. However, the Chamber pointed-out that such conclusion might be different if
specific elements of the separate agreement suggest that it was in fact meant to be part of
the actual employment relationship. In the cases at hand, such elements appear to exist.
6.
The Chamber acknowledged that, according to the player, FIFA is not competent in relation
to the image rights agreement.
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7.
However, after duly examining the contents of the so-called image rights agreement, the
Chamber arrived at the conclusion that, despite its name, said agreement must be
considered as part of the employment contract, as it covers the same period and it is even
subordinated to the latter (cf. clause 6 of the “image rights agreement”).
8.
In addition, the Chamber noted that, on 2 August 2021, the parties concluded an
agreement both the employment contract and the rights agreement. In the opinion of the
Chamber, this circumstance is a clear an indicator of the fact that both contracts
encompass the same employment relationship. As a result, the Chamber dismissed the
player’s arguments in this regard.
9.
The Chamber then observed that the Respondent further argued that the termination
agreement was concluded with a company.
10. In this regard, the Chamber observed that, indeed, the termination agreement was
concluded by Shandong Taishan Football Club Co. LTD, Talents Sports Ltda. as well as by
the player. Yet, the Chamber also noticed that the termination agreement clearly stipulates
that the player (“or anyone designed by him”) is obliged to pay EUR 700,000.
11. Therefore, the Chamber considered that fact that the company was a party to the contract
is not relevant, as the obligated party is the player. In turn, the Chamber observed that the
player may potentially request a reimbursement to Talents Ltda, but this would in any case
correspond to a different procedure outside from the scope of FIFA.
12. Finally, the Chamber also took note of the player’s argument, according to which the
Claimant is not the same club than the one with which he signed a contract, since the
claimant is Shandong Taishan and his contract was concluded with Shandong Luneng.
13. However, the Chamber considered that this last argument cannot be upheld, since the
termination agreement was already concluded with Shandong Taishan Football Club and
not with Shandong Luneng, meaning that, de facto, the player by his own acts recognized
the club succession. In any case, the Chamber also verified that the club’s identity (including
kit and logo), TMS ID and head offices remained the same for both entities.
14. Given all of the above, the Chamber confirmed that it is competent to deal with the present
matter.
c. Burden of proof
15. 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
REF FPSD-7271
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
d. Merits of the dispute
16. 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
17. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that, fundamentally, the Claimant requested the payment
of the amount of EUR 350,000 and a penalty of EUR 70,000, arising from the mutual
termination agreement concluded between the parties on 2 August 2021.
18. In this context, the Chamber observed that the Respondent did not contest that the
principal amount of EUR 350,000 remains due.
19. Consequently, in strict application of the principle of pacta sunt servanda, the DRC
established that the Respondent has to pay to the Claimant, the outstanding principal
amount of EUR 350,000, as agreed in the mutual termination agreement.
20. In addition, and as to the claimed penalty fee, the Chamber verified that art. 2 of the mutual
termination agreement clearly stipulated the following:
“If ROGER GUEDES or his Designee failed to pay any of the above instalment within the time
limits stipulated herein, ROGER GUEDES shall be under the obligation to pay a late payment
penalty equal to 20% of the outstanding due amount, plus 5% default interest per annum as
from the due date until the date of effective payment.”
21. Given that the Respondent failed to pay the principal amount, the Chamber considered
that the consequences of the penalty clause are in principle fully applicable and that also
in principle, the Respondent is liable to pay 5% interest p.a. as from the due date, as well
as a penalty corresponding to 20% of the principal amount (i.e. EUR 70,000).
22. Nevertheless, the Chamber also acknowledged the position of the Respondent, who
considered the penalty to be grossly disproportionate.
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23. However, given the circumstances of the matter at stake and also considering the usual
practice in professional football, the Chamber considered that there is no reason for the
parties to deviate from the terms that were agreed upon in the mutual terms agreement.
24. Hence, in strict application of the principle of pacta sunt servanda, the Chamber established
that the Respondent shall pay to the Claimant the penalty amount of EUR 70,000, as well
as 5% interest p.a. as from the due date of the principal amount.
ii. Compliance with monetary decisions
25. 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.
26. In this regard, the Chamber highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months.
27. Therefore, bearing in mind the above, the Chamber decided that the player must pay the
full amount due (including all applicable interest) to the club within 45 days of notification
of the decision, failing which, at the request of the creditor, a restriction on playing in official
matches for the maximum duration of six months shall become immediately effective on
the player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
28. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form.
29. The Chamber 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.
e. Costs
30. 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.
31. 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.
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32. 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, Shandong Taishan FC, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Roger Krug Guedes, has to pay to the Claimant, the following amounts:
-
EUR 350,000 as outstanding amount plus 5% interest p.a. as from 23 February 2022
until the date of effective payment.
-
EUR 70,000 as penalty fee.
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 imposed with a restriction on playing in official matches up
until the due amounts are paid. The overall maximum duration of the restriction shall
be of up to six months on playing in official matches.
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 six months.
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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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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