Labour Disputes
Texto da decisão
REF FPSD-2651
Decision of the
Dispute Resolution Chamber
passed on 29 July 2021
regarding an employment-related dispute concerning the player Brayan Josue Velasquez Moya
COMPOSITION:
Clifford Hendel (USA & France), Deputy Chairman
Angela Collins (Australia)
Stefano La Porta (Italy), member
CLAIMANT:
Club Fundación Deportiva Sport Zulia, Venezuela
RESPONDENT 1:
Brayan Josue Velasquez Moya, Honduras
RESPONDENT 2:
CD Primeiro do Agosto, Angola
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REF FPSD-2651
I.
Facts
1.
The player and the Venezuelan club, Fundación Deportiva Sport Zulia, concluded an
employment contract valid until December 2020 (the first contract).
2.
On 9 March 2020, the parties concluded a mutual termination agreement (“finiquito”), by
means of which the first contract was terminated as from said date.
3.
The parties concluded at the same time a new employment contract (the second contract) valid
as from 1 January 2021 “until the end of the participation of the club in the Clausura
Championship 2022, which is expected to end on 31 December 2022”.
4.
Following clause 3 of said contract, the player was entitled to a monthly remuneration of USD
5,000.
5.
Clause 5 of the second contract stipulated the following:
“QUINTA: De la rescision. De acuerdo con lo dispuesto por et art. 17.1 del Reglamento sobre el
Estatuto y la Transferencia de Jugadores de FIFA, para el supuesto de ruptura anticipada del
contrato por decision express o culpa de "EL FUTBOLISTA PROFESIONAL", las partes acuerdan
en conceplo de indemnizacion por rescision anticipada de contrato a favor de "EL CLUB" la
suma de TRES MILLONES DE DOLARES ESTADOUNIDENSES (USD 3.000.000,00) netos
(…)
El pago de las mencionadas sumas y de las cargas e impuestos correspondientes estara a cargo
de "EL FUTBOLISTA PROFESIONAL" y, en forma solidaria de su nuevo club contratante en caso
que suscriba contrato con nuevo club, en los términos del art. 17.2 del 108 Reglamento sobre el
Estatuto y la Transferencia de Jugadores de FIFA. Las partes dejan constancia gue el monto
estipulado por el concepto indemnizatorio antes expuesto ha sido fruto de un acuerdo
meditado entre ambas teniendo presente todas las pautas relevantes a esos efectos y en especial
acordando y proyectando el probable valor de mercado de los derecho economicos derivados
de los federativos de "EL FUTBOLISTA PROFESIONAL" durante la vigencia del contrato.”
Free translation into English:
"FIFTH: Termination. In accordance with the provisions of art. 17.1 of the FIFA Regulations on
the Status and Transfer of Players, in the event of early termination of the contract due to the
express decision or fault of "THE PROFESSIONAL PLAYER", the parties agree to pay to "THE
CLUB" the sum of THREE MILLION UNITED STATES DOLLARS (USD 3,000,000.00) net, as
compensation for early termination of the contract.
(...)
The payment of the aforementioned sums and the corresponding charges and taxes shall be
borne by "THE PROFESSIONAL PLAYER" and, jointly and severally, by his new contracting club
in the event that he signs a contract with a new club, in accordance with the terms of art. 17.2
of the FIFA Regulations on the Status and Transfer of Players. The parties hereby state for the
record that the amount stipulated for the indemnity concept above has been the result of a
considered agreement between both parties taking into account all relevant guidelines for that
purpose and especially agreeing and projecting the likely market value of the economic rights
derived from the federation of "THE PROFESSIONAL FOOTBALL PLAYER" during the term of
the contract.
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6.
Clause 25 of the contract stipulated the following:
“VIGESIMO QUINTA: Para todos los efectos y consecuencias derivadas del presente contrato,
LAS PARTES eligen como domicilio especial la ciudad de Maracaibo, y se someten a la autoridad
de la Cámara de Resolución de Disputas (C.R.O.) de la Federacion Venezolana de Fútbol
Free translation into English:
"VIGESIMO QUINTA: For all the effects and consequences derived from the present contract,
THE PARTIES choose as special domicile the city of Maracaibo, and submit to the authority of
the Dispute Resolution Chamber (C.R.O.) of the Venezuelan Football Federation.
7.
On 10 March 2020, the player and the Claimant signed a loan agreement towards the
Colombian club, Talento Dorado, which was ultimately not signed by the latter. Hence, this
transfer failed to materialize. The loan agreement established a duration between 10 March
2020 until 20 December 2020.
8.
On 29 August 2020, the player transferred to the Angolan club, CD Primeiro de Agosto (TMS
Ref. 306399) “out of contract”.
9.
In this respect, on 1 May 2020, the player concluded an employment contract with CD Primeiro
de Agosto, with a period of validity between 1 July 2020 until 31 May 2022.
10.
According to the aforementioned contract, the player was entitled to the following
remuneration:
Season 2020-2021: USD 192,000 net, to be paid in 12 instalments of USD 16,000 net;
Season 2021-2022: USD 192,000 net, to be paid in 12 instalments of USD 16,000 net
11.
On 2 July 2020, the player sent a letter to “Talento Dorado S.A.” indicating the following
“On Marth 9th, 2020, I signed the so called "Finiquito de Contrato· with Fundacion Deportiva
Sport Zulia putting an end to the employment relationship with that club.
The next day, I was asked to sign a new sports employment contract, but only to start taking
effect in January 2021, date that was also affixed to that document. In fact, and till the middle
of June 2020, I wasn't aware that what I signed is nothing more than a mere promise of a
contract, nothing forcing me to stay/ remain linked to this club.”
12.
On 27 December 2020, Zulia sent an email to the player with the following contents:
“Estimado Sr. Velásquez Moya. Esperamos que se encuentre bien en estas fechas. En función de
que debe incorporarse a nuestro club en fechas venideras, en virtud del contrato de empleo
firmado para las próximas temporadas, deseamos conocer las fechas de su llegada a Venezuela
para prepararla o, de ser necesario, coordinar con usted todo lo referente a su venida en los
próximos días.
Nuestro equipo de logística y deportivo estará atento para que se pueda coordinar lo que haga
falta.
Muchas gracias, saludos. Gerencia Deportiva”.
Free translation into English:
"Dear Mr. Velasquez Moya. We hope you are well at this time. As you are due to join our club
in the coming days, by virtue of the employment contract signed for the coming seasons, we
would like to know the dates of your arrival in Venezuela in order to prepare for it or, if
necessary, to coordinate with you everything related to your arrival in the coming days.
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Our logistics and sports team will be attentive so that everything can be coordinated.
Thank you very much, best regards. Sports Management".
13. On 7 January 2021, the player sent an email to Zulia indicating the following:
“Estimado señor Señor Presidente de la Fundación Deportiva Sport Zulia,
En la secuencia de Su correo electrónico a mi club "Clube Primero de Agosto" de Angola, por la
presente le informo lo siguiente:
En primer lugar, es muy grave e indignante el contenido de su comunicación a mi nuevo club,
que aquí rechazo expresamente. De hecho, como te dije antes, el 9 de marzo de 2020 firmé el
llamado "Finiquito de Contrato" con la Fundación Deportiva Sport Zulia, habiendo puesto fin
a la relación laboral con este club. Al día siguiente me pidieron que firmara un nuevo contrato
de trabajo deportivo, pero solo para que comience a entrar en vigor en enero de 2021, fecha
que también se adjuntó a ese documento. De hecho, y hasta ahora, no sabía que lo que firmé
no es más que una mera promesa de contrato, nada que me obligue a quedarme / seguir
vinculado a este club.
(…)
Por eso, considerando todo, me encuentro futbolista libre, ya que no se atendieron mis intereses
y me "empujaron" a una extinción de mutuo acuerdo del contrato ("Finiquito de Contrato")
que estaba vigente. Y es por eso que no servirá a mis intereses legítimos y superiores regresar y
abrazar ningún vínculo con este club,Y por eso también, por todas esas razones, firmé un nuevo
contrato deportivo con el "Clube Primero de Agosto" de Angola donde estoy perfecta y
agradecidamente integrado.”
Free translation into English:
"Dear Mr. President of the Sport Zulia Sports Foundation,
In the sequence of your e-mail to my club "Clube Primero de Agosto" in Angola, I hereby inform
you of the following:
First of all, it is very serious and outrageous the content of your communication to my new club,
which I herewith expressly reject. In fact, as I told you before, on 9 March 2020 I signed the socalled "Finiquito de Contrato" with Fundación Deportiva Sport Zulia, having put an end to the
working relationship with this club. The next day I was asked to sign a new sports employment
contract, but only to take effect from January 2021, a date that was also attached to that
document. In fact, and until now, I did not know that what I signed is nothing more than a
mere promise of a contract, nothing that obliges me to stay / remain linked to this club.
(...)
That is why, all things considered, I find myself a free footballer, as my interests were not served
and I was "pushed" into a mutually agreed termination of the contract ("Termination of
Contract") that was in force. And that is why it will not serve my legitimate and higher interests
to return and embrace any link with this club, and that is also why, for all these reasons, I signed
a new sports contract with the "Clube Primero de Agosto" in Angola where I am perfectly and
gratefully integrated.
14. On 11 January 2021, Zulia sent an email to the player, indicating the following:
“Estimado Sr. Velásquez Moya,
En primer lugar negamos todo lo expresado en su correo electrónico. Observamos que usted es
una persona mayor de edad en pleno uso de tus facultades mentales. Por lo tanto, no puede
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REF FPSD-2651
desconocer lo que firmó. Especialmente en el contexto de 2020, es muy lógico lo que sucedió
ya que se acordó que vuelva al club en 2021. Como firmó un contrato vinculante y válido, le
damos una semana para regresar a Venezuela, de lo contrario ejecutaremos la penalidad
expresada en el contrato por la que deberá abonarnos la suma de USD 3.000.000.
Free translation into English:
"Dear Mr. Velásquez Moya,
First of all we deny everything expressed in your e-mail. We note that you are a person of legal
age in full use of your mental faculties. Therefore, you cannot be unaware of what you signed.
Especially in the context of 2020, it is very logical what happened as it was agreed that you
return to the club in 2021. As he signed a binding and valid contract, we give him one week to
return to Venezuela, otherwise we will execute the penalty expressed in the contract for which
you will have to pay us the sum of USD 3,000,000.”
15.
On 27 May 2021, Zulia lodged a claim before FIFA against the player and his new club for breach
of contract without just cause, and requested the payment of USD 120,000 (i.e. corresponding
to the entire value of the second contract), plus related interests.
16.
The Claimant noted that, while the player is directly and principally responsible for the breach,
Art. 17.4 of the Regulations states that the player’s new club is presumed as jointly and severally
liable.
17.
According to the Claimant, the only particularity of the second contract signed in February 2020,
with a start date on 1 January 2021, but that, notwithstanding the above, it is a perfectly valid
and binding contract.
18.
The Claimant underlined that, under Swiss law it is perfectly valid to sign a contract to come
into force at a later date, and referred to Art. 22 para. 1 of the Swiss Code of Obligations,
according to which "the parties may enter into a binding agreement to conclude a contract at
a later date".
19.
The Claimant explained that the mutual termination agreement of 9 March 2020 was
established as a mutually acceptable solution in view of COVID-19 pandemic, and underlined
that it did not acted in a unilateral manner due to the crisis.
20.
According to Zulia, the breach of contract is very clear, since the player did not show up to
comply with the second contract and continued to provide his services for another club
21.
In its reply to the claim, the player contested the jurisdiction of FIFA, in accordance with art. 3
of the contract, and noted that the Venezuelan NDRC shall be competent in relation to this
matter.
22.
In a subsidiary manner, the player denied the validity of the second contract.
23.
According to the player, “the contracts that followed were translated into an amalgamation of
documents, the content that the player did not recognize as adequate and corresponding to
his will”
24.
The player explained that the mutual termination agreement was “unilaterally made by the
Claimant and signed with no questions by the Player.”
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25.
The player therefore requested to establish that the employment relationship terminated on 9
March 2020 and that, consequently, the claim shall be rejected and that Zulia shall pay all
procedural and legal costs.
26.
In its replica, Zulia referred to the jurisdiction.
27.
In this respect, Zulia argued that the Venezuelan NDRC does not respect the principle of equal
representation of players and clubs. In this regard, Zulia argued that the player has the burden
of proving that the Dispute Resolution Chamber of the Venezuelan Federation complies with
FIFA's requirements and noted that he failed to do so in his Statement of Defence,
28. In addition, Zulia argued that in this case we are faced with a dispute that affects not only the
player, Mr. Velazquez Moya, of Honduran nationality, but also the Venezuelan Club and a Club
in Angola, from which it follows that the dispute has an international dimension and must
therefore be analysed in the light of the regulations that FIFA has established in this respect.
29. According to Zulia, in this case, with respect to Respondent and the arbitration clause inserted
in the breached contract, the requirement ratione personae is not met, since CD Primeiro de
Agosto is not part of the employment contract signed between Mr. Velasquez Moya and the
Venezuelan club.
30. Therefore, according to the Claimant, the club from Angola cannot be covered by the
arbitration clause contained in the said contract.
31. As final comments, the player insisted that the Venezuelan NDRC is competent to hear about
the present matter.
32. The player argued that “it is of paramount importance to also note that the reference made to
Dispute Resolution Chamber of the Venezuelan Football Federation cannot be understood as a
reference to -an independent arbitration tribunal guaranteeing fair proceedings at national
level - as provided in Art. 22 b) of the FIFA RSTP in force because the nature of these Dispute
Resolution Chamber of the Venezuelan Football Federation are of a civil court of employmentrelated dispute, which is different to arbitration.”
33. The Respondent 2 stated that it hider the player following the legal procedures required by
FIFA.
34. The Respondent 2 further noted that the termination agreement was presented before hiring
the player.
35. In addition, the Respondent 2 declared that if finds “the position of Clube Sport Zuila strange,
since the player had terminated the contract with the referred club and transferred to Clube
Desportivo 1o de Agosto, there has never been any formal request via FIFA TMS for the player's
dismissal.”
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II.
Considerations of the Dispute Resolution Chamber
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.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs. In this respect, the Chamber
noted that said art 22 lit. b) further stipulates that “however, [the parties may] explicitly
opt in writing for such disputes to be decided by an independent arbitration tribunal that
has been established at national level within the framework of the association and/or a
collective bargaining agreement. Any such arbitration clause must be included either
directly in the contract or in a collective bargaining agreement applicable on the parties.
The independent national arbitration tribunal must guarantee fair proceedings and
respect the principle of equal representation of players and clubs”
3.
In addition, the DRC referred to art. 22 lit a) of said Regulations, according to which FIFA
is also competent for “disputes between clubs and players in relation to the maintenance
of contractual stability (articles 13-18) where there has been an ITC request and a claim
from an interested party in relation to said ITC request, in particular regarding the issue of
the ITC, sporting sanctions or compensation for breach of contract”.
4.
In this respect, the Chamber took note that the player contested the competence of FIFA
on the grounds of art. 25 of the contract concluded with FDS Zulia, which reads as follows:
“VIGESIMO QUINTA: Para todos los efectos y consecuencias derivadas del presente
contrato, LAS PARTES eligen como domicilio especial la ciudad de Maracaibo, y se someten
a la autoridad de la Cámara de Resolución de Disputas (C.R.O.) de la Federacion Venezolana
de Fútbol
Free translation into English:
"VIGESIMO QUINTA: For all the effects and consequences derived from the present
contract, THE PARTIES choose as special domicile the city of Maracaibo, and submit to the
authority of the Dispute Resolution Chamber (C.R.O.) of the Venezuelan Football
Federation.
5.
However, in relation to said allegation, the Chamber noted that the present matter
concerns a claim before Zulia against the player and his new club (CD Primeiro de Agosto)
for breach of contract without just cause
6.
Therefore, and regardless of the contents of clause 25 of the contract, the Chamber
deemed that the competence of FIFA is grounded on art.22 a) of the Regulations, as it is
a dispute between clubs and players in relation to the maintenance of contractual stability
(articles 13-18) where there has been an ITC request and a claim from an interested party
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in relation to said ITC request. In particular, the dispute concerns the return of the player
from the player’s new club to Zulia.
7.
Consequently, and considering that art. 22 a) of the Regulations does not foresee the
possibility for the parties to opt in writing for disputes to be decided by an independent
arbitration tribunal that has been established at national level. As a result, the Chamber
established that the application of clause 25 of the contract is not relevant for this matter,
and therefore confirmed its competence to deal with the present international dispute
related to the maintenance of contractual stability on the basis of art. 22 a) of the
Regulations of the Status and Transfer of Players.
8.
In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the February 2021 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
9.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well
as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
10.
In this respect, the Chamber noted that the player and the Venezuelan club, Fundación
Deportiva Sport Zulia, concluded an employment contract valid until December 2020 (the
first contract). The Chamber further noted that on 9 March 2020, the parties concluded a
mutual termination agreement. In addition, the Chamber also took note that, at the same
time, said parties also concluded a new employment contract (the second contract) valid
as from 1 January 2021 “until the end of the participation of the club in the Clausura
Championship 2022, which is expected to end on 31 December 2022”.
11.
Simultaneously, the Chamber also noted that, on 1 May 2020, the player concluded an
employment contract with CD Primeiro de Agosto, with a period of validity between 1 July
2020 until 31 May 2022. Hence, the Chamber understood that, in principle, it would appear
that said contract would overlap for a certain time with the second contract concluded
with Zulia.
12.
Subsequently, the Chamber observed that Zulia lodged a claim against the player and CD
Primeiro de Agosto, for breach of contract without just cause, noting that, due to his
contract with said Angolan club, the player failed to comply with its obligations arising
from the second contract.
13.
On the other hand, the Chamber took into account the player’s position, according to
which the second contract it would have signed with Zulia is invalid since it was only a
“promise” represents an “an amalgamation of documents, the content that the player did
not recognize as adequate and corresponding to his will”.
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14.
In view of the above, the Chamber understood that the present matter fundamentally
concerns to determine whether the second contract between Zulia and the player was valid
and binding.
15.
In this regard, the Chamber recalled that in order for an employment contract to be
considered as 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 (but
not limited to) the parties to the contract and their role, the duration of the employment
relationship and the remuneration agreed upon between the parties. After a careful study
of the second contract, the members of the Chamber concluded that all such essential
elements are included in the pertinent document, in particular, the fact that the contract
establishes that the player is entitled to receive remuneration, including a salary, in
exchange for his services to the club as a player.
16.
In view of the above, the Chamber established that the second contract concluded
between the player and Zulia was valid. Consequently, and since the player signed
afterwards a contract with another club that would cover an overlapping period of time,
the Chamber determined that the player breached his obligations towards Zulia that were
arising from the second contract. Consequently, since the player failed to honour the terms
of the second contract he signed with the Claimant, he therefore breached it without just
cause. In particular, the Chamber observed that said contract was not executed by the
player as from 1 January 2021, which it deemed as the date of the termination.
17.
Consequently, the Chamber established that Zulia is entitled to compensation.
18.
Subsequently, after having established that the player terminated the second contract
without just cause, the DRC established that, in accordance with art. 17 par. 1 of the
Regulations, the player is liable to pay compensation to the Claimant for breach of
contract. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of
the Regulations, the Chamber established that the Respondent’s new club, i.e. CD Primeiro
de Agosto, shall be jointly and severally liable for the payment of compensation. In this
respect, the Chamber was eager to point out that the joint liability of CD Primeiro de
Agosto is independent from the question as to whether the new club has committed an
inducement to contractual breach or any other kind of involvement by the new club. This
conclusion is in line with the well-established jurisprudence of the Chamber that was
repeatedly confirmed by the Court of Arbitration for Sport (CAS).
19.
Having stated the above, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of 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 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 as well as the fees and expenses paid or incurred by the former
club (amortised over the term of the contract) and whether the contractual breach falls
within a protected period. The DRC recalled that the list of objective criteria is not
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exhaustive and that the broad scope of criteria indicated tends to ensure that a just and
fair amount of compensation is awarded to the prejudiced party.
20.
In application of the relevant provision, the Chamber held that it first of all had to clarify
as to 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.
21.
In this context, the Chamber wished to recall that clause 5 of the contract stipulated the
following:
“QUINTA: De la rescision. De acuerdo con lo dispuesto por et art. 17.1 del Reglamento
sobre el Estatuto y la Transferencia de Jugadores de FIFA, para el supuesto de ruptura
anticipada del contrato por decision express o culpa de "EL FUTBOLISTA PROFESIONAL",
las partes acuerdan en concepto de indemnizacion por rescision anticipada de contrato a
favor de "EL CLUB" la suma de TRES MILLONES DE DOLARES ESTADOUNIDENSES (USD
3.000.000,00) netos
(…)
El pago de las mencionadas sumas y de las cargas e impuestos correspondientes estara a
cargo de "EL FUTBOLISTA PROFESIONAL" y, en forma solidaria de su nuevo club
contratante en caso que suscriba contrato con nuevo club, en los términos del art. 17.2 del
108 Reglamento sobre el Estatuto y la Transferencia de Jugadores de FIFA. Las partes dejan
constancia que el monto estipulado por el concepto indemnizatorio antes expuesto ha sido
fruto de un acuerdo meditado entre ambas teniendo presente todas las pautas relevantes
a esos efectos y en especial acordando y proyectando el probable valor de mercado de los
derechos economicos derivados de los federativos de "EL FUTBOLISTA PROFESIONAL"
durante la vigencia del contrato.”
22.
However, the Chamber noted that, in its claim, Zulia did not invoke the application of said
clause.
23.
As a consequence, the members of 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. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body. In this
regard, the Dispute Resolution Chamber stated beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a case-by-case
basis taking into account all specific circumstances of the respective matter.
24.
In order to estimate the amount of compensation due to the Claimant in the present case,
the members of the Chamber first turned their attention to the financial terms of the
former contract and the new contract, the value of which constitutes an essential criterion
in the calculation of the amount of compensation in accordance with art. 17 par. 1 of the
Regulations. The members of the Chamber deemed it important to emphasise that the
relevant compensation should be calculated based on the average fixed remuneration, i.e.
excluding any conditional or performance related payment, agreed by the player with his
former club and his new club, as well as considering the period of time remaining on the
contract signed between the player and the former club.
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25.
Bearing in mind the foregoing, the Chamber noted that, as per the second contract
concluded between the player and Zulia, the player would have received a total amount
of USD 120,000 (i.e. 5,000*24).
26.
On the other hand, the DRC equally took note of the player’s remuneration for the relevant
period under the terms of his employment contract with his new club, from 1 January 2021
until 31 May 2022, the player would have earned USD 288,000 (i.e. 96,000 =16,000*6, from
January until June + 192,000 for the following season).
27.
Hence, the Chamber calculated that the average between both amounts is USD 204,000.
28.
Nevertheless, the Chamber noted that Zulia limited its request to the amount of USD
120,000 (corresponding to the entire value of the second contract). Therefore, in
accordance with the principle of non ultra petita, the Chamber established that it could
not award more than the claimed amount of USD 120,000.
29.
Consequently, in application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant,
compensation for breach of contract without just cause in the amount of USD 120,000.
30.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the
Regulations, the player’s new club shall be jointly and severally liable for the payment of
the aforementioned amount of compensation.
31.
Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest
p.a. over said amount as from the date of the claim.
32.
Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 and 2 of art. 24bis 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.
33.
In this regard, the Dispute Resolution Chamber pointed out that, against a player, the
consequence of the failure to pay in due time shall consist in 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.
34.
The Chamber also pointed out 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 and for the
maximum duration of three entire and consecutive registration periods.
35.
Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the player does not pay the amounts due to the Claimant within 45 days as
from following the notification of the grounds of the present decision, a restriction on
playing in official matches up to six months on playing in official matches will be imposed.
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36.
Likewise, and within the same timeframe, in case the player’s new club does not pay the
amounts due to the Claimant, a a ban from registering any new players, either nationally
or internationally, for the maximum duration of three entire and consecutive registration
periods shall become effective on CD Primeiro de Agosto in accordance with art. 24bis par.
2 and 4 of the Regulations.
37.
Finally, the Dispute Resolution Chamber recalled that the above-mentioned restriction and
ban will be lifted immediately and prior to its complete serving upon payment of the due
amounts, in accordance with art. 24bis par. 3 of the Regulations.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent 1, Brayan Josue Velasquez Moya , has to pay to the Claimant, Club
Fundación Deportiva Sport Zulia, the amount of USD 120,000 to the Claimant, plus 5%
interest p.a. as from 27 May 2021.
4.
The Respondent 2, Clube Desportivo Primeiro de Agosto, is jointly and severally liable for
the payment of the aforementioned amount.
5.
Any further claims of the Claimant are rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
7.
Pursuant to article 24 bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of
this decision, the following consequences shall apply:
1. The Respondent 1 shall be restricted 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 Respondent 2 shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum
duration the ban shall be of three entire and consecutive registration periods.
3. 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 paid by the end of the of the three entire and consecutive registration periods.
8. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24 bis paragraphs 7 and 8 and article 24ter of the Regulations on
the Status and Transfer of Players.
9. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
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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