Labour Disputes
Texto da decisão
REF FPSD-3313
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Lucas Vieira
de Souza
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Angela Collins (Australia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT / COUNTER-RESPONDENT:
Lucas Vieira de Souza, Brazil
Represented by Duarte Costa
RESPONDENT / COUNTER-CLAIMANT:
Changchun Yatai FC, China PR
Represented by Juan de Dios Crespo Pérez and Juan Yu
INTERVENING PARTY
Apoel Nicosia, Cyprus
Page 2
REF FPSD-3313
I.
Facts of the case
1.
On 28 February 2020, the Brazilian player, Lucas Vieira de Souza (hereinafter: the Player),
and the Chinese club, Changchun Yatai FC (hereinafter: the Club) signed an employment
contract valid as from 28 February 2020 until 31 December 2021.
2.
Pursuant to article 7.2 of the contract, the Club undertook to pay the following remuneration
to the Player:
“In the period of contract from 28 February 2020 to 31 December 2021, the total salary is
3,630,000 EUR (three million six hundred and thirty thousand euros) pretax which equals
2,000,000 EUR (two million euros) net.
Advance payment: the sum 830,000 EUR (Eight hundred and thirty thousand euros)
pretax which equals 460,000 EUR net (Fur hundred and sixty thousand euros) in salary
should be paid in 15 April 2020.
In the period of contract from 1 March 2020 to 31 December 2021 the total salary is
2,800,000 (two million and eight hundred thousand euros) pretax which equals 1,540,000
EUR (One million five hundred and forty thousand euros) net should be paid in 22 months
127,000 EUR pretax which equals 70,000 EUR net per month”
3.
Article 7.3 of the contract stipulated the following:
“Party A shall pay Party B match bonus according to difference match nature, match result
and staging time and Performance:
In China Football Association First League matches, the winning bonus (individual full
court) is 3,000,000 USD (three thousand US dollars), the draw bonus (individual full court)
is 1,000,00 USD (one thousand US dollars) payable in 30 days after the game, and no
bonus for lost matches. If in the end of 2020 season. The YATAI team goes up to the
Super League, From 2021 season, In China Football Association Super League matches,
the winning bonus (individual court) is 5,000,00 USD (five thousand US dollars), the draw
bonus (individual court) is 2,000,00 USD (Two Thousand US dollars) payable in 30 days
after the game, and no bonus for lost matches.
If Yatai team goes up to China Super League, Party A will pay to Party B 100,000 USD
(One Hundred Thousand USD) as Extra Bonus. If YATAI team wins Champion of China
Super League, extra bonus is 200,000 USD (Two Hundred Thousand USD), if YATAI team
wins Champion of Asian Champions League, extra bonus is 500,000 USD (Five Hundred
Thousand USD)
Page 3
REF FPSD-3313
party a shall pay party B match bonus according to different match nature, match result
and staging time and performance;
All the amounts of bonuses set out below are net and not subject to individual income
taxes.
In addition to salary, signature fee and bonus, Party A shall not pay any money to Party B
in any name.”
4.
On 29 March 2021, the Player and the Club concluded a supplemental agreement
(hereinafter: “the supplemental agreement”) with Beijing Guoan FC (hereinafter: the “loan
club”), based on which the player was loaned to the loan club for the period between 29
March 2021 and 29 July 2021.
5.
Moreover, art.10 (5) of the contract stipulated the following:
“In case of unilateral early termination of contract by Party B during the course of this
Contract, the Party B shall pay Party A 2,000,000 euros (Two million euros) as contract
breach compensation.”
6.
On 4 July 2021, the Player sent a default notice to the Club, requesting payment of his
outstanding salaries for the months of February until May 2021. According to the Player, the
Club accordingly fulfilled its obligations.
7.
On 31 July 2021, the Player informed the Club that he had “finish the loan period with Beijing
Guoan FC and requested more information about what he should do as member of Yatai
FC professional team.”
8.
On 2 August 2021 the Player apparently went to the Club’s facilities, however it was empty,
and he returned home without training. Moreover, the Player mentioned that on the same
day, the coach of the club in an interview confirmed that “I didn’t receive the notice from the
club Lucas return to the team. This still needs to be confirmed. The situation has not
changed.”
9.
On 3 August 2021, the Player via email to the Chinese Football Association enquired on his
status and registration with the Club and specifically asked “if he was eligible to play for the
Club”
10. According to the Player, on 5 August 2021, he was telephonically informed by Mr Andres,
the club’s translator, “that he was out of the professional team and in some days the board
will find him a place with the second team, an option that the player immediately, expressly
and clearly refused, in a verbal way.”
Page 4
REF FPSD-3313
11. On 5 August 2021, the Player informed the Club that he will not accept the aforesaid situation
and demanded that he immediately be reintegrated “in a time limit of 48Hours to participate
in training with the clubs' first team or will be forced to immediately terminate.” However,
the Club failed to reply.
12. On 7 August 2021, the Player sent a letter of termination to the Club, unilaterally terminating
the contract with just cause in the terms of the articles 14.1 and 14.2 of the RSTP, indicating,
inter alia, the following reasons:
“The Club failed:
i) to provide to the player his salaries during four months, until being warned on 4 July 2021
i) to provide the player the training conditions together with his teammates or even alone,
even after the warning dated 5 August 2021, and prefer to banned the player from any
activity of the club professional team; and,
iii) preventing the player for playing in any official competition, failing to comply with some of
the main obligations of a professional football club to its professionals.
This situation constitutes a complete disregard for the player as a professional and violates
the main duties of the Employer (the club) to the Employee (the player) and his main rights
and we consequently, conclude that the club fail to provide to the player the conditions to
exercise his professional activity which shall be considered as an unjustified breach of an
employment contract by the club.”
13. On 19 August 2021, the Player signed an employment contract with the Cypriot club Apoel
Nicosia (hereinafter: “the Intervening Party” ) valid from 19 August 2021 until 31 May 2023,
entitling him to a monthly salary of EUR 10,000.
II. Proceedings before FIFA
14. On 13 August 2021, the Player 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
15. According to the Player, the Club failed:
to provide his salaries for four months corresponding to the monthly salaries of
February, March, April and May 2021, until being warned on 4 July 2021;
to provide to him the training conditions together with his teammates or even alone,
even after his warning on 5 August 2021;
to comply with the main obligations of a professional football club to its professionals.
Page 5
REF FPSD-3313
16. According to the Player, the abovementioned facts shall be considered as an unjustified
breach of an employment contract by the Club.
17. The requests for relief of the Player, were that the Club pay him the amount of EUR 875,000
net as compensation for breach of contract, corresponding to the residual value of his
contract.
b. Position of the Club and Counterclaim
18. In its reply to the claim, the Club mentioned that after the Player’s loan expired, the Player
refused to continue playing with the loan club, so the Club “went through the player loan
return procedure on 31 July 2021.” The Club indicated that the Player remained registered
as the Club’s player at the CFA.
19. The Club acknowledged the letter sent by the Player on 31 July 2021, and in this regard
mentioned that the Player was required to be in quarantine upon his return to the club,
accordingly:
the Player was required to have a COVID-19 test on 2 August 2021;
he then needed to have at least 7 days home observation, i.e., until 9 August 2021;
The Club informed the player of the COVID-19 test on 2 August 2021, and the Player
acknowledged it;
For the personal safety and health of the player, the club specifically approved the
extension of the player’s home self-isolation to 10 August 2021.
20. The Club therefore indicated that the Player cannot use the interview of the coach as a basis
to prove that the Club abandoned him, as he could not join the team on 2 August 2021, he
had to start his period of isolation neither could he be reintegrated into the team within 48hrs
in accordance with his letter sent on 5 August 2021 as he had to self-isolate until at least 9
August 2021.
21. Moreover, after the Club received the Player’s termination letter of 7 August 2021, it tried to
contact the Player, however the “translator/contact of the Club was deleted/blocked by the
Player.”
22. According to the Club on 9 August 2021, the Changchun Epidemic Prevention Department
informed the Player’s that his “home isolation period was done, and he could move freely”.
23. The Club indicated that it immediately sent an email to the Player requiring him to report to
the Club at 14:00 on 10 August 2021, which the Player failed to reply to.
24. On 12 August 2021, the Club sent a letter to FIFA mentioning that it has lost contact with
the Player and on 17 August 2021, FIFA replied and “referred the Club to ask for the
Page 6
REF FPSD-3313
assistance of the China Football Association and/or potential other member associations
to which the player could be linked.”
25. On 20 August 2021, the Club reported the “lost of contact” of the Player to CFA.
26. On 23 August 2021, the Club indicated that the media reported that the Player signed a new
contract with the Cypriot club Apoel Nicosia and requested the said ITC from CFA, accordingly
on 25 August 2021, the Club expressed its disapproval of the issuance of ITC
27. In conclusion, the Club stipulated the following:
“the Player did not have just cause to terminate the contract, since the Club did not
have any abusive behaviour;
the Player did not justify the existence of abusive behaviour by the Club as, by the
time of terminating the contract, it did not owe any outstanding salary to the Player;
the Club did not arrange training for the Player because he was under home
observation as the local pandemic control centre required;
the Club did not prevent the Player from playing in any official game. Quite opposite,
the Club registered the Player and used him to replace another foreign player, which
was self-explanatory that the Club was counting on the Player;
even if the Player believed the Club did not somehow act to his expectation, he
could have waited until the end of home observation, then talked to the Club, rather
than terminating the contract with immediate effect during the self-isolation period
while he could not go anywhere anyway.”
28. In continuation, the Club mentioned that it demonstrated that there was no abusive conduct
from its end, and accordingly the Player did not have the right to terminate the contract with
cause. In this context, the Club mentioned that that the Player had “acted in bad faith toward
the Club, which destroyed the contractual stability and violated the basic principle of pacta
sunt servanda.”
29. The Club mentioned that it had already registered the Player already and that the Player acted
in bad faith “to terminate the contract in the middle of the season while the Club used him
to replace another foreign player. Due to his bad faith, the Club lost one foreign aid and
without being able to add another one since the transfer window was closed already, which
inevitably would cause damage to the Club.”
30. The Club has indicated that it is entitled to the liquidated damages as indicated art. 10 par. 5
of the agreement, which stipulates the following:
“In case of unilateral early termination of contract by Party B during the course of this
Contract, the Party B shall pay Party A 2,000,000 euros (Two million euros) as
contract breach compensation.”
Page 7
REF FPSD-3313
31. Taking all the factors of the matter into account, the Club alleged that “two million euros
liquidated damage is fair and proportionate.” In this regard the Club stipulated the
following:
“it paid a transfer fee of 1.3 Million euro for a 22 months contract, and the
Player terminated contract without just cause, the amortized transfer fee shall
be awarded to the Club. The amount of which is: Amortized transfer fee= EUR
1,300,000/22 months * 4 months and 24 days= EUR 282,111
due to the premature termination of the Player, the Club lost one foreign aid in
the first team. Therefore, the Club would like to require FIFA DRC to award the
Club compensation based on the market value of the Player, which is EUR
850,000
Total Amount : EUR 282,111 + EUR 850,000= EUR 1,132,111
32. The Club requested the following relief:
(i)
(ii)
(iii)
to dismiss the claim in its entirety;
to determine that the Player terminated the contract without just cause; and
to condemn the Player to pay the Club compensation of EUR 2,000,000.
Alternatively, the Club requests to:
(iv)
(v)
(vi)
condemn the Player to pay the Club compensation of EUR 1,132,111, plus
5% interest p.a. from date of decision;
impose a six-months’ restriction sanction upon the Player;
condemn the Player to pay the legal fees to the Club incurred due to this
case.
c. Player’s reply to Counterclaim
33. In its reply to the Counterclaim, the Player firstly referred to a conflict of interest in relation
to the Club.
34. In this context, it mentioned that on 29 July 2021, the legal representative of the Player
requested the support of Ms Emily Yu, from the office of the legal representative of the Club
in order to verify issues of the Player relating to the clubs Beijing Guoan and Yatai Changchun
FC.
35. According to the Player, Emily Yu requested the name of the clubs involved in the issue with
the Player and on the same day the Player’s legal representative informed Emily Yu about the
details of the case and the name of the club, the Club Yatai Changchun FC. The Player
indicated that Emily Yu answer by clearly stating that she is involved in the case.
36. In conclusion, the Player mentioned that all the relevant details of the case have been given
to the legal representative of the Club and in this regard, it indicated that it had taken
Page 8
REF FPSD-3313
advantage of “the privileged information that had been disclosed by the Player to Miss
Emily Yu and her Law Firm, about this issue.”
37. In conclusion, the Player stipulated that the Club is therefore “in a privileged procedural
position by the conduct of the identified Lawyer, which is not admissible.”
38. On 14 October the Club, indicated that it does not have conflict of interest and provided the
following unsolicited information:
Emily Yu didn´t know all the details of the case, and she only answered questions
with public information and did so even before the Player’s lawyer revealed
Changchun Yatai´s name;
On 29 July 2021 19:02 CET time, which was 1: 02 am 30 July 2021 Beijing Time,
Emily Yu received the email from the Player´s lawyer asking some general
questions regarding Chinese transfer window time;
All the information related to the current case is all in this email, one can tell it is not
all the details of the case! The player´s lawyer said himself that he was 100% sure
the loaning club will not register him and make him eligible to play for the rest of the
season. The questions he raised up are all general questions;
When Emily Yu was asked whether she had conflict of interest, she said that she
didn´t know, since she was not informed of neither the name of the player nor the
name of the club by that time;
Without waiting for the name of the involved club from the Player´s lawyer, Miss
Emily Yu went directly provided the information she knew regarding these general
questions, since it was all in the public domain;
Emily Yu made it clear, she was only giving out some help as a favour, she miswrote
though, she meant “I am not involving in your case”. Her intention can be easily
seen by the context;
Miss Emily Yu was made aware of the Club´s name, i.e. Changchun Yatai, she
immediately consulted internally, and it was true that by the time she made the
exchange email with the Player´s lawyer, Emily Yu and her law firm was not involved
in any case whatsoever with Changchun Yatai FC;
Miss Emily Yu believed that the lawyer was representing Changchun Yatai actually,
not the Player, that was why in the email, she said ¨not your club, so don´t worry¨.
Apparently, she was just trying to be helpful and obviously she didn´t know all the
details of the case as alleged by the Player´s lawyer;
Changchun Yatai didn’t contact Emily Yu and her law firm until 27 August 2021;
Emily Yu and her law firm didn’t know all the details of the case until 27th August
when Changchun Yatai provided all the evidence regarding the case.
39. The Player contested the document provided by the Club, which allegedly indicated that the
Player was still registered as a player of the Club, it argued that “it is not an official document,
issued by the CFA, but a simple list, which’s authenticity is questionable particularly when
the lawyer of the Player had requested such Registration to the CFA, at least twice times
and never received any answer.” Furthermore, the Player mentioned that not all published
media material can be considered as trustworthy information.
Page 9
REF FPSD-3313
40. Moreover, with respect to the isolation period, the Player alleged that he can only confirm
and agree,” that he was contacted by the translator, to perform a COVID-19 test, he did
not know, nor was made aware, that allegedly he had to self-isolate for a certain time
period.” The Player indicated that he never received the notification from the authorities,
neither was this communicated or shown to him.
41. Despite the aforesaid, the Player mentioned that it would not change the fact that the Club
did not inform the Player or “even give him indications to do some training/assessment on
his own, whilst in alleged need of self-isolation.”
42. The Player further mentioned that it was the Club who failed to honour the contract as it only
fulfilled its obligations after being placed in default by the Player, additionally he was never
informed on his re-registration by the Club nor by the CFA.
43. In regard to the liquidated damage clause referred to in the counterclaim, the Player stated
“that a liquidated damage clause is not prohibited, however the one established in the
Employment Contract is clearly over-privileging the Club and over-prejudicing the Player.”
44. In conclusion, the Player requested that the request of the Club is rejected and furthermore
it reiterated his request for compensation as detailed in his claim.
d. Position of the Intervening party
45. In reply to the claim the Intervening party was not involved in any way Player’s action and
decision to unilaterally terminate his employment contract with the Club.
46. The Intervening Party further stipulated the following:
As can be seen in the FIFA TMS, the Player was registered with our club before
signing with the Chinese club;
He was then offered a very good contract by the Chinese club and asked our club
to consent to his transfer to the Chinese club. Following negotiations, we agreed
and signed a transfer agreement in return for a transfer fee;
Around mid-August 2021, the Player contacted us telling us that he had unilaterally
terminated his employment contract with the Chinese club and asked whether our
club was interested to have him back;
After receiving our coach’s confirmation that he would be interested to have the
Player in the team, we informed him accordingly;
Having in mind the provisions of the FIFA RSTP, we explained to the Player that
before signing him, we needed to make sure that the termination which he made
was with just cause;
The Player and his lawyer, Mr. Duarte Costa, provided us with various letters sent
to the Chinese club and the Chinese Football Association with which the Player was
complaining mainly for his outstanding and, more importantly, for his nonregistration with the first team and his non-eligibility to play in official matches.
These letters are already in the file sent to us by FIFA;
Page 10
REF FPSD-3313
Therefore, from the moment that the Chinese club had made the Player ineligible
to play in official matches, we felt that the termination was with just cause;
Nevertheless, in order to comply with our obligation for due diligence, we requested
the Player, before agreeing with him, to sign us a written guarantee confirming that
all the facts he had described to us were indeed true.
47. In conclusion, the Intervening Party mentioned that should the FIFA DRC decide that the
termination was made without just cause, “there is no evidence whatsoever involving our
club in the said termination as it accepted to sign the Player based on its representations
and reassurances. Had the Player not signed the Guarantee Agreement, we would never
accept to sign him.”
48. Moreover, the Intervening party indicated that “in case the FIFA DRC orders the Player to
pay any compensation to the Chinese club, our club should not be held jointly and
severally liable to pay this compensation or at least, the FIFA DRC should order the Player
to pay this compensation on his own, as per his contractual obligations stipulated in clause
4 of the Guarantee Agreement.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
49. 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 13 August 2021 and submitted for decision
on 21 April 2022. Taking into account the wording of art. 34 of the October 2021 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.
50. 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 (March 2022 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 Chinese club.
51. 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 (March 2022 edition) and
considering that the present claim was lodged on 13 August 2021, the August 2021 edition
in force on the date of claim edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
Page 11
REF FPSD-3313
b. Burden of proof
52. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
53. 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
54. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the allegation of the player that due to the club’s abusive conduct, it had
just cause to terminate the contract. In particular, the Chamber noted that the Player claims
that the Club violated its contractual obligations, by not paying his salaries for four months,
until the issuing of his default notices to the Club and that in addition, the Club excluded him
from activities with the professional team. Moreover, the Cub allegedly prevented him from
playing in any official competition.
55. The DRC took note that the Club on its account argued that the Player was still registered as
the Club’s player at the Chinese FA and that the Player could not use the interview of the
coach as a basis to prove that the Club abandoned him.
56. The DRC further noted that the Club rejected the Player’s claim and submitted a counterclaim
for breach of contract, alleging that the Player had in fact acted in violation of his contractual
obligations. Moreover, that the Club mentioned that the Player failed to justify the existence
of abusive behaviour by the Club taking into account that by time the Player terminated the
contract, it did not owe any outstanding salaries to the latter. Furthermore, the Club indicated
that it did not prevent the Player from participating in competitions, alleging that he was in
quarantine on instruction by the local COVID-19 pandemic control centre.
57. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the termination of the contract by the Player was
with or without just cause.
Page 12
REF FPSD-3313
58. Before entering the analysis of this specific case, the Chamber deemed it appropriate to
remind the parties that only a breach or misconduct which is of a certain severity justifies the
termination of a contract. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order to ensure the fulfilment of the contractual duties by the
counterparty, such measures must be taken before terminating an employment contract. A
premature termination of an employment contract can only ever be an ultima ratio measure.
59. In line with the above, the Chamber also referred to the specific wording of art. 14 par. 2 of
the Regulations, according to which “any abusive conduct of a party aiming at forcing the
counterparty to terminate or change the terms of the contract shall entitle the counterparty
(a player or a club) to terminate the contract with just cause”.
60. The Chamber then turned its attention to the events leading up to the termination of the
contract, in this regard it took note that:
on 31 July 2021, the Player’s loan expired;
on 3 August 2021 the Player checked his registration status with the Chinese FA;
on 5 August 2021 the Player alleged that he was informed by the translator of the Club
that he is out of the professional team and accordingly on the same day he issued a 48
hours’ warning to the Club to be reintegrated back to the team;
on 7 August 2021 the Player terminated the contract with the Club.
61. Nevertheless, turning to the evidence on file, as well as the submissions of the parties and
keeping in mind the short timeline of events indicated above, the DRC was of the opinion
that the Player had not submitted sufficient corroborating documentary evidence, by means
of which he could demonstrate abusive behaviour on account of the Club. Moreover, it
remains undisputed that at the date of termination, no outstanding salaries were due to the
Player, accordingly the Club had fulfilled all its financial obligations up until date of
termination of the contract by the Player. Additionally, the DRC remarked that the Player
terminated the contract after approximately one week, indicating that it seems that he was
excluded from the club’s activities for not more than a week.
62. Considering all of the above circumstances, the majority of the members of the Chamber
deemed that the Player did not have sufficient grounds to terminate the contract. It follows
therefrom that the members of the Chamber determined that the Player had unilaterally
terminated the contract without just cause and is therefore to be held responsible for the
consequences thereof.
63. At this point, the DRC decided to reject the claim of the Player and to focus on the Club’s
counterclaim, as the Club is in principle entitled to compensation for breach of contract.
Page 13
REF FPSD-3313
ii. Consequences
64. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Club by the Player 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 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, the fees
and expenses paid or incurred by the former club (amortised over the term of the contract)
and depending on whether the contractual breach falls within the protected period.
65. 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.
66. In this regard, the Chamber took note of the wording of article10 par.5 of the employment
contract of the contract, which established that “In case of unilateral early termination of
contract by Party B during the course of this Contract, the Party B shall pay Party A
2,000,000 euros (Two million euros) as contract breach compensation.”
67. After analysing the content of the aforementioned clause, the Chamber concluded that it did
not fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s
longstanding jurisprudence, and therefore could not be taken into account for establishing
the amount of compensation payable to the club by the player.
68. As a consequence, the Chamber determined that the amount of compensation payable by
the Player to the Club 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
69. Bearing in mind the foregoing as well as the claim of the Club, 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 EUR 334,194 (i.e. the
residual value of the contract between 8 August 2021 until 31 December 2021 amounts to
4 monthly salaries EUR 70,000 each, plus EUR 54,194 (August pro-rata salary) serves as the
basis for the determination of the amount of compensation for breach of contract.
70. In continuation, the Chamber verified whether the Player had signed an employment contract
with another club during the relevant period of time. According to the constant practice of
the Chamber as well as art. 17 par. 1 of the Regulations, such remuneration under a new
Page 14
REF FPSD-3313
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract due by a player to his former club. In particular, the
Chamber explained that its standard practice is to calculate the average between the player’s
remuneration with his former club and his remuneration with the new club, for the exact
same period of time comprised between the early termination of the employment contract
with the old club and the original expiry date of such contract.
71. In this respect, the Chamber noted that indeed, the Player found new employment with the
Cypriot club Apoel Nicosia. In accordance with the pertinent employment contract, the Player
was entitled to approximately EUR 15,000 per month, corresponding to the total amount of
EUR 66,290, consisting of 4 monthly salaries of EUR 15,000 each, plus EUR 6,290 as pro rata
part of the salary for August 2021.
72. Thus, the Chamber concluded that between the date of early termination of the contract with
his former club and its original expiry date, the average between his remuneration with the
former club and his current remuneration amounts to approximately EUR 200,000
73. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Player must pay the amount of EUR
200,000 to the Club, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
74. Lastly, taking into consideration the Club’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the club interest on said compensation
at the rate of 5% p.a. as of 21 April 2022 until the date of effective payment.
iii. Compliance with monetary decisions
75. 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.
76. 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.
77. 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
Page 15
REF FPSD-3313
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.
78. 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.
79. 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
80. 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.
81. 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.
82. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 16
REF FPSD-3313
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Lucas Vieira de Souza, is rejected.
2.
The claim of the Respondent/Counter-Claimant, Changchun Yatai FC, is partially accepted
3.
The Claimant/Counter-Respondent has to pay to the Respondent/Counter-Claimant,
Changchun Yatai FC, the amount of EUR 200,000 as compensation for breach of contract
without just cause plus 5% p.a. as of 21 April 2022 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
The Intervening Party, Apoel Nicosia, is jointly and severally liable for the payment of the
amount mentioned in point 3. above.
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 art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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 Claimant/Counter-Respondent shall be restricted from playing in official matches,
up until the due amount is paid. The maximum duration of the restriction shall be of
up to six months
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 restriction from playing of six months of the Claimant / CounterRespondent.
3. The Intervening Party 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.
4. 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.
▪
8.
The consequences shall only be enforced at the request of the Respondent/Counter-Claimant
in accordance with art. 24bis par. 2, 4 ,7, 8 and art. 24ter of the Regulations on the Status
and Transfer of Players.
9.
This decision is rendered without costs.
Page 17
REF FPSD-3313
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 18
REF FPSD-3313
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
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
Page 19