Labour Disputes
Texto da decisão
REF FPSD-7392
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player Davidson da Luz Pereira
BY:
Frans de Weger (the Netherlands), Chairperson
Jorge Gutiérrez (Costa Rica), member
Stefano Sartori (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Club Alanyaspor, Türkiye
Represented by Sami Dinç
RESPONDENT / COUNTER-CLAIMANT:
Player Davidson da Luz Pereira, Brazil
Represented by Tannuri Ribeiro Advogados
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REF FPSD-7392
I. Facts of the case
1.
On 14 August 2020, the Turkish club Alanyaspor (hereinafter the Club) and the Brazilian
player Davidson da Luz Pereira (hereinafter the Player) concluded an employment
agreement (hereinafter the Employment Agreement) valid for the period of three football
seasons, i.e. until the end of the season 2022/2023.
2.
The Player was entitled to a payment of EUR 800,000/season, payable in 10 equal
instalments of EUR 80,000 (cf. Clause 6.1 of the Employment Agreement).
3.
On 14 February 2022, the Club and the Player (hereinafter jointly referred to as the parties)
agreed to mutually terminated the Employment Agreement as concluded a termination
protocol (hereinafter the Termination Protocol).
4.
In Clause 2 of the Termination Protocol, the parties agreed upon the following:
“Taking into consideration that this early termination has been made upon the request of
the Player, the Parties irrevocably agree that the Player shall pay the abovementioned total
amount of 496.000,00-Euro (Four Hundred and Ninety Six Thousand Euro) to ALANYASPOR
as early termination compensation (in addition to the transfer fees which will be paid
by Wuhan FC to ALANYASPOR). Therefore the Player will pay the said total amount's
296.000,00-Euro (Two Hundred and Ninety Six Thousand Euro) part by waiving his due
and unpaid receivables from ALANYASPOR amounting of 296.000,00-Euro (Twp Hundred
and Ninety Six Thousand Euro). In this context, the Player irrevocably waived from the
abovementioned amounts and release these total amount of 296.000,00-Euro (Two
Hundred and Ninety Six Thousand Euro) to ALANYASPOR as a part of the abovementioned
compensation amount. Moreover, the Player hereby agrees, accepts and undertakes to pay
the remaining amount of 200.000,00-Euro (Two Hundred Thousand Euro) of the
abovementioned termination compensation to ALANYASPOR in 2 (two) equal instalments
as shown below:”
−
−
1st instalment until 31 March 2022 in the amount of EUR 100,000;
2nd instalment until 31 May 2022 in the amount of EUR 100,000. (emphasis added)
5.
On 11 August 2022, the Club sent a default notice to the Player, requesting the amount
of EUR 200,000 as well as the applicable interest within the next five days.
6.
In reply thereto, the Player sent a letter to the Club, requesting the adaptation of the
payment plan.
7.
On 6 and 7 September 2022, the Player made two payments in the amount of EUR 19,984.
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8.
On 4 February 2022, the Club and the Chinese club Wuhan Three Town Football Club
signed a Transfer Agreement regarding the transfer of the Player, by which the latter
agreed to pay, inter alia, a transfer fee of EUR 1,800,000.
II. Proceedings before FIFA
9.
On 8 September 2022, the Club filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Club
10. The Club requested the outstanding amounts based on the Termination Protocol, i.e.
EUR 160,911.85 as well as interest of 5% p.a. as from the respective due dates.
11. On 21 September 2022, the Club informed FIFA general secretariat that the Player “made
another partial payment after the initiation of the file in hand on 13 September 2022 in the
amount of 9.986,00-Euro.”
b. Position of the Player
12. The Player lodged a counterclaim against the Club with the following request for relief:
“FIRST – Set aside the Claim filed by the Club in its entirety;
SECOND – Uphold the Counterclaim herein filed by the Player;
THIRD – Order the Club to pay the Player EUR 296,000 net due as outstanding remuneration,
plus default interest at a rate of 5% annually as of 14 February 2022 until the date of
effective payment;
FOURTH – Order the Club to reimburse the Player EUR 20,000, plus default interest at a rate
of 5% annually as from 3 September 2022 until the date of effective payment;
FIFTH – Order the Club to reimburse the Player EUR 20,000, plus default interest at a rate of
5% annually as from 7 September 2022 until the date of effective payment; AND
SIXTH – Order the Club to reimburse the Player EUR 10,000, plus default interest at a rate of
5% annually as from 10 September 2022 until the date of effective payment;
Alternatively, and only in the event the above is rejected:
SEVENTH – Order the Club to pay the Player EUR 96,000 net due as outstanding
remuneration plus default interest at a rate of 5% annually as of 14 February 2022 until the
date of effective payment;
EIGHTH – Order the Club to reimburse the Player EUR 20,000, plus default interest at a rate
of 5% annually as from 3 September 2022 until the date of effective payment;
NINTH – Order the Club to reimburse the Player EUR 20,000, plus default interest at a rate
of 5% annually as from 7 September 2022 until the date of effective payment; AND
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TENTH – Order the Club to reimburse the Player EUR 10,000, plus default interest at a rate
of 5% annually as from 10 September 2022 until the date of effective payment.
Alternatively, and only in the event the above is rejected:
ELEVENTH – Confirm that the Player paid EUR 50,000 to the Club;
TWELFTH – Order the Player to pay EUR 50,000 plus default interest at a rate of 5% annually
as of 31 March 2022 until the date of effective payment;
AND
THIRTEENTH – Order the Player to pay EUR 100,000 plus default interest at a rate of 5%
annually as of 31 May 2022 until the date of effective payment.”
13. The Player argued that, based on the provisions of Swiss law, the said Termination
Protocol is invalid.
14. What is more, equally based on Swiss law, the Player asserted that it is illegal to waive his
outstanding salaries, i.c. corresponding to more than three monthly salaries.
15. The Player further argued that said Termination Protocol is immoral as “In addition to the
amounts under the immoral waiver, the Club was also compensated by Wuhan FC through the
Transfer Agreement whereby the latter undertook to pay to the former the amount of
EUR 1,800,000 in order to obtain the services of the Player.”
16. In view of the above, the Player was of the opinion that “considering the Termination
Agreement is to be considered null and void, the Club must pay to the Player the amount of
EUR 296,000, which was overdue and outstanding under the Employment Contract, and which
was immorally waived.”
17. “Furthermore, considering the undue (or unjust) enrichment obtained by the Club in the case
at hand and as demonstrated above, it must make restitution to the Player of all the amounts
it has already received under the Termination Agreement.”, i.e. a total amount of EUR 50,000,
corresponding to (i) EUR 20,000 paid on 2 September 2022; (ii) EUR 20,000 paid on
6 September 2022; and (iii) EUR 10,000 paid on 9 September 2022.
18. As an alternative, shall the Termination Protocol be recognized as partially valid and the
Player would have to pay a compensation in the amount of EUR 200,000, “then such
amounts must be set-off from the outstanding monthly salaries, which the waiving occurred
under unlawful circumstances.”
19. “In line with the above, the Player shall be entitled to receive from the Club a total amount of
EUR 146,000, which is consequence of the following calculation:
EUR 296,000 (outstanding monthly salaries) – EUR 200,000 (compensation amount) =
EUR 96,000 (sub-total amount) + EUR 50,000 (reimbursement amount) = EUR 146,000.”
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c. Position of the Club
20. The Club rejected the counterclaim of the Player and argued that the latter did not meet
the burden of proof to support his allegations.
21. The Club further argued that “The transfer offer, which was made by Wuhan FC, did not meet
the financial expectation of the Claimant/Counter Respondent in exchange for the termination
of the employment contract of the Respondent/Counter Claimant and to transfer him to
Wuhan FC in consideration with the cost of a new player to replace the position of the
Respondent/Counter Claimant.”
22. In view of the above, the Club alleged that the Player merely “intended to earn more money
from his new employment with Wuhan FC and after a basic calculation of his increased
earnings, he decided to cover a part of the requested compensation himself by the
Claimant/Counter Respondent in order to realize his transfer to Wuhan FC.” The Club asserted
that this was equally foreseen it Clause 2 of the Termination Protocol.
23. The Club finally asserted that the Player “had always confirmed his debt towards the
Claimant/Counter Respondent and had never raised any objection that the Claimant/Counter
Respondent had forced him to sign the Termination Protocol. It is crystal clear that the
Respondent/Counter Claimant invented a fictional story to delay his liabilities towards the
Claimant/Counter Respondent.” In support of its allegations, the Club provided for
correspondence between the parties.
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 8 September 2022 and
submitted for decision on 23 February 2023. Taking into account the wording of art. 34 of
the June 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 July 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 Turkish club.
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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 8 September 2022, the July 2022 of
said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
4.
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
5.
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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the validity of the
Termination Protocol.
7.
The DRC recalled that whereas the Club argues that the Termination Protocol is valid and
wishes to enforce the financial obligations therefrom, the Player is of the opinion that the
said document is null and void since (i) the “waiver“ of his outstanding salaries in not valid,
(ii) the payment of the compensation is immoral.
8.
In this context, the Chamber acknowledged that it its task was to decide if the Termination
Protocol is a valid and binding document.
9.
The DRC firstly turned its attention to the fact that the Player raised the potential invalidity
of the Termination Protocol before FIFA only, whereas he previously partially performed
the established payments.
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10. As to the alleged “waiver” in the amount of EUR 296,000, the majority of the DRC
considered that the Player validly agreed to pay a compensation in the total amount of
EUR 496,000 and that the respective payment of EUR 296,000 takes place in the form of
a set-off, i.e. the majority of the Chamber was of the opinion that there is no waiver in the
matter at hand.
11. Taking into account the above as well as the venire contra factum proprium of the Player,
the majority of the Chamber decided that the Termination Protocol shall be upheld and
complied with in line with the legal principle pacta sunt servanda.
12. In this respect, the majority of the Chamber highlighted that the Player signed the
Termination Protocol in his own responsibility and is consequently liable to bear the
possible legal consequences arising from the execution or non-execution of such
document.
13. In view of the above, the majority of the DRC decided to reject the counterclaim of the
Player.
ii. Consequences
14. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences.
15. The Chamber observed that the Club confirmed having received the amount of
EUR 49,956 from the Player, i.e. the amount of EUR 50,044 remained outstanding from
the first instalment. Furthermore, the DRC noted that the second instalment of
EUR 100,000 remained fully outstanding.
16. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Player is liable to pay to the Club the amounts
which were outstanding under the contract, i.e. EUR 150,044.
17. In addition, 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 an interest as follows:
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5% interest p.a. over the amount EUR 50,044 of as from 1 April 2022 until the date
of effective payment;
5% interest p.a. over the amount EUR 100,000 of as from 1 June 2022 until the date
of effective payment.
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iii. Compliance with monetary decisions
18. 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.
19. 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.
20. 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.
21. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the
present decision.
22. 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.
d. Costs
23. 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.
24. 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.
25. 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 / Counter-Respondent, Alanyaspor, is partially accepted.
2.
The Respondent / Counter-Claimant, Davidson da Luz Pereira, has to pay to the Claimant,
the following amount(s):
- EUR 150,044 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 50,044 of as from 1 April 2022 until the date of
effective payment;
- 5% interest p.a. over the amount EUR 100,000 of as from 1 June 2022 until the date of
effective payment.
3.
Any other claim of the Claimant / Counter-Respondent is rejected.
4.
The claim of the Respondent / Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
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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