Labour Disputes
Texto da decisão
REF. FPSD-8352
Decision of the
Dispute Resolution Chamber
passed on 30 March 2023
regarding an employment-related dispute concerning
the player Yuri de Jesus Messias
BY:
Frans de Weger (The Netherlands), Chairperson
Dana Mohamed Al-Noaimi (Qatar), member
Johan Van Gaalen (South Africa), member
CLAIMANT:
Yuri de Jesus Messias, Brazil
Represented by Soccer Sport Network
RESPONDENT:
Al-Diwaniya SC, Iraq
Represented by Taaziz Football Law Agency
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REF. FPSD-8352
I. Facts of the case
1.
On 25 September 2022, the Brazilian player Yuri de Jesus Messias (hereinafter: the Claimant
or player) and the Iraqi club Al-Diwaniya SC (hereinafter: the Respondent or club) concluded
a settlement agreement in order to resolve a financial dispute between them in connection
with their past employment relationship.
2.
In particular, the settlement agreement has as object the amount of USD 144,000, which
had been awarded as outstanding remuneration and compensation for breach of contract
to the player by the FIFA Dispute Resolution Chamber (DRC) by means of the decision
passed on 19 May 2022 in connection with the matter no. FPSD-5664 (hereinafter: the
Decision).
3.
Pursuant to the settlement agreement, the parties stipulated a restructuring payment plan
by the club, which undertook to pay the player in three instalments of USD 48,000 each as
follows:
4.
•
“USD 48,000 at signature without delay and with restrictions to release the ban sanction
according to Article 3 of this Agreement.;
•
USD 48,000 on November 10, 2022;
•
USD 48,000 on December 21, 2022”.
Furthermore, article 6 of the settlement agreement, entitled “Penalty fee”, recites the
following:
“As the [Respondent] is the Party who offered the settlement agreement and as the
[Claimant] is the party that FIFA DRC judged favourably, the [Respondent] agrees to pay the
Second Party a penalty fee of USD 150,000 (One Hundred Fifty Thousand US Dollars) in case
of breach of Contract regarding the terms and conditions of this [settlement agreement].
[The Respondent] also agrees that this penalty fee will be final in violating any terms of this
[settlement agreement]. [The Respondent] understands and agrees that if any violation is
in place regarding the terms of this [settlement agreement], the [Claimant] will file a
Claim at FIFA DRC requesting the penalty fee amount stipulated in this Article and not the
remaining amount owed to the [Claimant].”
5.
By means of letter dated 13 November 2022, the player put the club in default of USD
48,000 corresponding to the second instalment of the settlement agreement and warning
the club that in case of failure to comply, the entire sum of USD 96,000 would become due
by the club in addition to the penalty fee of USD 150,000. Contextually, the player granted
the club a deadline of 10 days, i.e. until 23 November 2022, to remedy the alleged breach.
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REF. FPSD-8352
6.
On 25 November 2022 the player filed the claim at hand before FIFA. According to the
player, the club failed to comply with its financial obligations deriving from the settlement
agreement.
7.
In particular, the player stated that the club failed to pay the second instalment which
became due on 10 November 2022.
8.
In this context, the player argued that the failure by the club to comply with the second
instalment would trigger the payment of both the remaining instalments plus the penalty
fee stipulated under article 6 of the settlement agreement.
9.
The requests for relief of the player, accordingly, were the following:
•
“USD 48,000 referred to the second instalment payment;
•
USD 48,000 referred to the third instalment payment;
•
USD 150,000 penalty fee stipulated in the settlement agreement for the breach of contract by
Respondent side club;
10. Despite being invited to do so, the Respondent did not reply to the claim.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 25 November 2022 and
submitted for decision on 30 March 2023. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
12. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from Brazil
and a club from Iraq.
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REF. FPSD-8352
13. 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 25 November 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
14. 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
15. 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
16. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that on 25 November 2022 the player and the club
concluded a settlement agreement.
17. Subsequently, the DRC observed that the player lodged a claim before FIFA for outstanding
remuneration arguing that the club kept failing to comply with its financial obligations in
spite of the amicable attempts by the player to provide a restructuring payment plan so as
to grant more time and opportunities after the Decision.
18. In this context, the Chamber noted that the club failed to present its response to the claim
of the player, in spite of having been invited to do so. By not presenting its position to the
claim, the Chamber was of the opinion that the club renounced its right of defence and,
thus, accepted the allegations of the player. As such, the Chamber confirmed that it shall
make a decision on the basis of the documentation on file, that is, the allegations and
evidence put forward by the player.
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REF. FPSD-8352
19. Consequently, after having thoroughly analysed the submission of the player as well as the
documentation at his disposal, the Chamber acknowledged that it its task was to establish
the quantum of the outstanding remuneration in favour of the player.
20. In this context, the Chamber took note of the player’s request for relief, and although this
has remained undisputed by the club, the DRC was not convinced by the interpretation
given by the player to the settlement agreement in respect to the calculation of the
outstanding amounts.
21. In particular, the Chamber was of the opinion that art. 6 of the settlement agreement,
entitled “Penalty fee”, adopts a controversial wording, as it reads: “the [Claimant] will file a
Claim at FIFA DRC requesting the penalty fee amount stipulated in this Article and not the
remaining amount owed to the [Claimant]”. (emphasis added)
22. In this respect, and prior to delve into the analysis of the mentioned provision, the Chamber
wished to emphasize that when a dispute arises as to what concerns the meaning of a
certain contractual provision or clause, there are several main principles which finds large
application from a juridical point of view, namely:
•
the interpretation shall be based on an understanding of the contract from the
perspective of a reasonable hypothetical person who was aware of the relevant context
of the contract and the factual background at the time the contract was entered into;
•
single provisions or clauses shall be deemed as part of the entire contract, hence the
part shall be interpreted in consideration of the whole;
•
where wording is ambiguous and there is more than one possible meaning, it shall be
adopted the interpretation that better reflects commercial or business common sense,
as long as this does not conflict with the natural meaning of the words used.
23. With the above in mind, the Chamber first took into account the context in which the
relevant settlement agreement had been signed, and observed that this essentially
constitutes a restructuring payment plan of the debt owed to the player by the club of USD
144,000, which had already been recognized by the Decision in May 2022.
24. In this context, the Chamber assessed the original amount of USD 144,000 as the main
object of the club’s new contractual obligation and deemed as illogical - or at least against
the business common sense in the industry of football – that the club would undertake a
new obligation potentially risking to pay twice the original debt.
25. Accordingly, the Chamber was of the opinion that the relevant sum of USD 150,000 referred
to by the parties as penalty fee under art. 6 of the settlement agreement would indeed
correspond to the overall amount due by the club in case on noncompliance with any of
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REF. FPSD-8352
the instalments scheduled under the settlement agreement, working jointly as an indirect
acceleration clause and a penalty fee.
26. Conversely, in the Chamber’s view, a penalty fee corresponding to more than 100% of the
club’s original obligation would have resulted disproportionate because excessive, thus, to
be disregarded.
27. With the above in mind, the Chamber determined that by failing to pay the second
instalment stipulated under the settlement agreement and due on 10 November 2022, the
club caused the activation of art. 6 of the mentioned contract, hence it became liable to
pay the player a total of USD 150,000, comprising of the remaining unpaid instalments of
USD 96,000 in total which shall be considered outstanding as from the same date, and a
penalty of USD 54,000.
28. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding sums deriving from the
contract concluded between the parties, namely the two instalments amounting to USD
48,000 each plus USD 54,000 as penalty fee.
29. In addition, taking into consideration the constant practice of the Chamber in this regard,
the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding
amounts of USD 96,000 as from 13 November 2022 until the date of effective payment. As
such, the Chamber recalled the principle ne bis in idem, and confirmed that no interest
applies over the penalty.
ii. Compliance with monetary decisions
30. 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.
31. 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.
32. 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
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REF. FPSD-8352
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
33. 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.
34. 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
35. 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.
36. 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.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8352
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yuri de Jesus Messias, is partially accepted.
2.
The Respondent, Al-Diwaniya SC, must pay to the Claimant the following amount(s):
USD 96,000 as outstanding remuneration plus 5% interest p.a. as from 13 November
2022 until the date of effective payment;
USD 54,000 as contractual penalty fee.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8352
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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