Labour Disputes
Texto da decisão
REF. FPSD-11368
Decision of the
Dispute Resolution Chamber
passed on 18 October 2023
regarding an employment-related dispute concerning
the player Caio Eduardo de Souza Germano
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Khalid AWAD ALTHEBITY (Saudi Arabia), member
Peter LUKASEK (Slovakia), member
CLAIMANT:
CR Vasco da Gama SAF, Brazil
RESPONDENT 1:
Shabab Al Ahli Dubai, UAE
RESPONDENT 2:
Caio Eduardo de Souza Germano, Brazil
Represented by PVBT Law
pg. 2
REF. FPSD-11368
I. Facts of the case
1.
The parties to the dispute are:
a. The Brazilian club, CR Vasco da Gama SAF (hereinafter: Vasco, Claimant or club). Vasco
is headquartered in Rio de Janeiro, Brazil and affiliated to the Brazilian Football
Confederation (CBF).
b. The Emirati club, Shabab Al Ahli Dubai (hereinafter: Shabab or Respondent 1). Shabab
is headquartered in Dubai, UAE and affiliated to the United Arab Emirates Football
Association (UAEFA).
c. The Brazilian player, Caio Eduardo de Souza Germano (hereinafter: player or
Respondent 2), born on 9 April 2003.
2.
Shabab and the player are hereinafter jointly referred to as the Respondents.
3.
On 1 August 2018, Vasco and the player, assisted by his mother, entered into a contract
titled “Sports Training Contract with the Provision of an Apprenticeship Scholarship – Football”,
valid until 31 July 2021 (hereinafter: the Training Contract). The player was contextually
registered with Vasco as an amateur.
4.
On 29 July 2019, Vasco and the player, again assisted by his mother, signed a first
professional work contract (hereinafter: the Contract), valid as from 10 July 2019 until 10
July 2022.
5.
Clause 9 of the Contract reads as follows (freely translated to English):
“In accordance with article 28. paragraph l, sections "a" and "b", of Law 9.615/98,
modified by Law 12. 395/2011, this contract shall contain a Sports Indemnity Clause,
owed by the PLAYER in favour of the CLUB, in the event of the transfer of the PLAYER
to another national or foreign team, during the term of this contract, or, on the
occasion of the return of the PLAYER to professional activities in another sports
practice entity (club), within a period of up to 30 (thirty) months. In accordance with
article 28, §1º of the aforementioned Law, the Sports Compensation Clause, for
national transfers, must be stipulated up to a maximum limit of 2,000 (two thousand)
times the average value of the contractual salary (clause I), without limitation for
international transfers (clause II). When, in accordance with § 1 of art. 40, § 1 of Law
9.615/98, the stipulation of the respective value in foreign currency is permitted, it
shall always be settled in national currency (Reais). In accordance with article 28, § 2º
of Law 9.615/98 modified by Law 12.395/2011, the PLAYER and the new sports practice
entity that employs him (new club), are jointly and severally liable for the payment of
the Sports Compensation Clause referred to in paragraph I of the same article”.
pg. 3
REF. FPSD-11368
6.
Clause 11 of the Contract reads as follows (freely translated to English):
"The contracting parties expressly acknowledge that the employment contractual
relationship established between them is subject to a special legal regime, with the
general rules of labour and social security legislation applying to the professional
PLAYER, with the exception of the peculiarities contained in this contract and in Law
9.615/98, amended by Law 12.395/2011."
7.
Clause 14 of the Contract reads as follows (freely translated to English):
“International Transfer. The parties establish that the basic condition for the transfer
of the [player] abroad is the payment by the club that intends to acquire the [player],
or by the [player] himself, of the amount equivalent in reais to the amount stipulated
in field 18 from the sports compensation clause, established for international
transfers.
8.
Field 18 of the Contract contains an amount of EUR 30,000,000 regarding the player’s
international transfer.
9.
On 3 December 2021, Vasco presented a renewal proposal to the player, which contained
inter alia the following conditions (hereinafter: the Formal Offer):
-
New contractual term until 31 December 2024.
Salaries as follows:
o BRL 15,000 per month for the first year.
o BRL 20,000 per month for the second year.
o BRL 25,000 per month for the third year.
10. On 27 December 2021, Vasco sent a formal notification to the player’s agents, reiterating
the Formal Offer and informing them of the right of first refusal under Brazilian law.
11. On 10 January 2022, the player replied to the club and while denying having received the
Formal Offer, it informed Vasco of the offer he received from the club NK Lokomotiva
Zagreb, which had better financial conditions then the Formal Offer.
12. During the month of April 2022, Vasco and NK Lokomotiva Zagreb discussed the possibility
to transfer the player, to no avail.
13. On 24 August 2022, Shabab entered a transfer instruction in the FIFA Transfer Matching
System (TMS) to engage the player. The instruction type chosen was “Engage permanently
(out of contract)”. The International Transfer Certificate (ITC) of the player was delivered by
the CBF on 25 August 2022, without distinctive issues.
pg. 4
REF. FPSD-11368
14. Also on 25 August 2022, Shabab and the player signed an employment agreement, binding
them as from the same date until 30 June 2024, with a potential option to extend said
contract (hereinafter: the Shabab Agreement). Under the Shabab Agreement, the player was
entitled inter alia to a sign-on fee of USD 15,000, monthly salaries of USD 12,000 during the
first contractual year, monthly salaries of USD 14,000 during the second contractual year,
accommodation, and flight tickets.
15. The player was registered by the UAEFA on 31 August 2022, without distinctive issues.
16. In accordance with the information on file, art. 29 of the Brazilian Federal Law no. 9815/98
(as amended) reads as follows (freely translated to English, emphasis added):
“Art. 29 - The sports organisation that trains the athlete will have the right to sign the
athlete's first special sports employment contract from the age of 16 (sixteen), the term
of which may not exceed 5 (five) years.
§ Paragraph 2. An athlete training organisation is considered to be one which:
I - provides athletes with training programmes in the basic categories and educational
complementation; and
II - cumulatively fulfil the following requirements:
a) the athlete in training has been registered by it with the respective regional sports
administration body for at least 1 (one) year;
b) prove that the athlete in training is actually registered for official competitions;
c) guarantee educational, psychological, medical and dental assistance, as well as
food, transport and family life;
d) maintain adequate accommodation and sports facilities, especially in terms of
food, hygiene, safety and health;
e) maintaining a team of professionals specialised in technical sports training;
f) adjust the time allocated to the athlete's effective training activity, not exceeding 4
(four) hours per day, to the timetable of the school curriculum or vocational course,
in addition to providing school enrolment, with attendance and satisfactory
performance requirements;
g) the athlete's training is free of charge and at the expense of the sports organisation;
pg. 5
REF. FPSD-11368
h) prove that they participate annually in competitions organised by a sports
administration body in at least 2 (two) categories of the respective sport; and
i) ensure that the selection period does not coincide with school hours.
§ Paragraph 3 The national sports administration body will certify as a training sports
organisation the one that demonstrably meets the requirements set out in this Law.
§ Paragraph 4 The non-professional athlete in training, over fourteen and under
twenty years of age, may receive financial assistance from the training sports
organisation, in the form of an apprenticeship grant freely agreed through a formal
contract, without any employment relationship being created between the parties.
§ Paragraph 5 - The training sports organisation will be entitled to compensation if it
is unable to sign the first special sports employment contract due to the athlete's
opposition, or when the athlete joins another sports organisation in any form without
the express authorisation of the training sports organisation, subject to the following
conditions:
I - the athlete must be regularly registered and must not have been disconnected from
the training sports organisation;
II - the indemnity will be limited to the amount corresponding to 200 (two hundred)
times the proven expenses incurred in training the athlete, specified in the contract
referred to in § 4 of this article;
III - payment of the indemnity amount can only be made by another sports
organisation and must be made directly to the training sports organisation within a
maximum of 15 (fifteen) days from the date the athlete joins the new sports
organisation, in order to allow new registration with a sports administration body.
§ Paragraph 6 - The sports training contract referred to in Paragraph 4 of this article
must include:
I - identification of the parties and their legal representatives;
II - the duration of the contract;
III - the rights and duties of the contracting parties, including a guarantee of life and
personal accident insurance to cover the activities of the contracted athlete; and
IV - specification of the items of expenditure for the purposes of calculating the
indemnity for sports training.
pg. 6
REF. FPSD-11368
§ Paragraph 7 - The training sports organisation holding the first special sports
employment contract with the athlete it has professionalised shall have the right of
first refusal for the first renewal of this contract, the term of which may not exceed 3
(three) years, unless it is to match a third party's proposal.
§ Paragraph 8 - In order to ensure its right of first refusal, the training sports
organisation holding the first special sports employment contract must submit
a proposal to the athlete no later than 45 (forty-five) days before the end of the
current contract, the content of which must be notified to the corresponding
regional sports administration body, The athlete must submit a response to the
training sports organisation, the content of which must be notified to the
aforementioned administration body within 15 (fifteen) days of receiving the
proposal, under penalty of tacit acceptance. (Included by Law no. 12.395, 2011).
§ Paragraph 9 - In the event that another sports organisation decides to offer a
more advantageous proposal to an athlete linked to the sports organisation
that trained him, the following must be observed:
I - the proposing organisation must submit a proposal to the training
organisation, including all the remuneration conditions;
II - the proposing organisation must inform the corresponding regional
administration body of the proposal; and
III - the training sports organisation may, within a maximum period of 15
(fifteen) days from receipt of the proposal, communicate whether it will exercise
the right of preference referred to in § 7, under the same conditions offered.
§ Paragraph 10 - The sports administration body must publish the receipt of the
proposals referred to in §§ 7 and 8 in its official means of publicity within 5 (five)
days of receipt.
§ Paragraph 11 - If the training sports organisation offers the same conditions,
and the athlete still objects to renewing the first special sports employment
contract, it may demand compensation from the new contracting sports
organisation corresponding to a maximum of 200 (two hundred) times the value
of the monthly salary contained in the proposal.
§ Paragraph 12 - The training athlete shall be contracted directly by the training
sports organisation, and may not be contracted through third parties.
§ Paragraph 13 - The training organisation must register the training contract of the
athlete in training with the administration body of the respective sport”.
pg. 7
REF. FPSD-11368
II. Proceedings before FIFA
17. On 16 August 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
18. According to the Claimant, the Respondent 1 and the Respondent 2 signed the Shabab
Agreement without respecting the right of preference that the Claimant had to renew the
Contract. To this end, the Claimant recalled it had signed the Contract with the player in
2019, with a clause that established compensation for contractual termination without
justified cause. The Contract was also governed by Brazilian law, which granted Vasco as
training club a right of preference for the first renewal of the Contract, as well as
compensation for violation of this right.
19. Vasco equally recalled that it presented a renewal proposal to the player in December 2021,
i.e., the Formal Offer, with monthly salaries and performance bonuses. The player did not
respond to it or communicated any other offers from third parties. In August 2022
however, the Claimant argued it had learned that the player had signed with the
Respondent 1, without giving it the opportunity to match the offer from said club.
20. Accordingly, the Claimant claims to the Football Tribunal that it recognizes its right of
preference and grants it compensation for its violation, in accordance with Brazilian law
and FIFA regulations.
21. As to the jurisdiction, the Claimant argued that FIFA is competent to hear the claim based
on art. 22 par. 1 lit. a) and art. 23 par. 1 of the Regulations on the Status and Transfer of
Players (RSTP).
22. As to the substance, the Claimant advances six questions and corresponding answers in
support of its claim:
(1) What does the Contract and Brazilian Law say about the general indemnity for
unjustified breach of contract by the player?
23. Vasco asserts that Brazilian Law and the Contract require the player and their new club to
pay a sports indemnity clause in case of unjustified termination. This penalty is outlined in
art. 28, I of Federal Law no. 9615/98, and must be included in the professional contract per
said law. By the same token, this penalty is related to the player’s destination market: if
foreign, the amount can be unlimited; if national, it must be up to 2,000 times the average
contractual salary. In both cases (national or international), the new club and the player are
jointly responsible for the sports indemnity clause (art. 28, par. 2, of Law no. 9.615/98), a
provision which Vasco deems coherent with art. 17 par. 2 of the RSTP.
pg. 8
REF. FPSD-11368
24. The Claimant further explained that even though the Federal Law no. 9615/98 allows for a
sports indemnity clause of up to BRL 8,000,000 based on the average salaries of the
Contract for a termination resulting from a national transfer, Vasco and the player agreed
to set an amount of BRL 6,000,000 in the Contract.
(2) What do the Contract, the Brazilian Law and the FIFA Regulations say in relation
to the right of first refusal/pre-emption referred to in the facts of this claim?
25. Vasco contended that the Federal Law no. 9615/98 grants the club that signs the first
professional contract with a football player the right of first refusal for the first renewal of
that contract. This is a hybrid and personal right derived from the law and the employment
contract. The law outlines a procedure for exercising this right, which involves the club
presenting a renewal proposal to the player and the regional federation affiliated with the
CBF 45 days before the end of the contract. The player then has 15 days to respond. If the
player does not respond, it is considered as an implicit acceptance of the proposal.
26. If another club wishes to offer a more advantageous proposal to the player, it must send
its proposal to the original club and the regional federation. The original club then has 15
days to match this proposal.
27. If this right of first refusal is violated, i.e., if the player and/or new club prevent its exercise,
the original club has a right to financial compensation from the new club. This
compensation is not a right of withdrawal but an indemnity for violation of preferential
rights. It can be up to 200 times the salaries contained in the renewal proposal offered to
the player.
28. Vasco is of the opinion that this right of first refusal does not conflict with FIFA regulations,
which apply to professional clubs and players.
(3) Is there a conflict between Brazilian (national) law and FIFA regulations in the
present case?
29. Vasco deems that the right of first refusal under Brazilian Law and its corresponding
financial compensation are not in conflict with FIFA regulations since these require the
application of national laws in cases of contractual breach. In this respect, Vasco deems
that the RSTP respects and values the specificity of national public law, especially when it
represents a unique evolution, innovation, and adaptation to the reality of a particular
market.
30. To this effect, Vasco recalled that the Brazilian market is the largest exporter of football
talent. The right of first refusal under Brazilian law aims to allow Brazilian clubs to retain
their players in the domestic market for as long as possible before they move to the
international market.
pg. 9
REF. FPSD-11368
31. Equally, Vasco highlighted that the right of first refusal under Brazilian law is distinct from
the FIFA training compensation because it is a financial compensation for the unjustified
breach of contract under the logic of art. 17 par. 1 of the RSTP.
(4.1) Would the Claimant have a right of first refusal/pre-emption for the first renewal
of the [Contract]?
32. Vasco submitted that it met the national law conditions per art. 29 par. 7 of the Federal
Law no. 9815/98, and therefore it has a right of first refusal to renew the Contract.
(4.2) If so, did the player and Shabab violate such right?
33. Vasco deems that the answer to the above is yes, because the player did not allow the
Claimant to match the offer of Shabab, nor did Shabab make any effort to facilitate the
exercise of that right by Vasco. Vasco further submitted that the player tried to simulate a
simple contractual proposal, but in reality it was a transfer proposal sent by the club NK
Lokomotiva Zagreb.
34. Vasco concludes that, by signing the Shabab Agreement, both the player and Shabab risked
paying the compensation of up to 200 times the average salaries of the Formal Offer
submitted by Vasco in accordance with Brazilian Law.
(4.3) Should the Player and Shabab pay compensation to the Claimant for the
violation of the right of first refusal? How much?
35. Vasco answers the above in the affirmative, because it deems that the player and Shabab
are responsible for paying the compensation according to Brazilian law. The compensation
is calculated based on the salary offered in the Formal Offer and can be up to 200 times
that amount.
36. In the matter at hand case, Vasco argues that the average salary under the Formal Offer
was BRL 15,000. Therefore, the compensation is calculated by multiplying this amount by
the legal multiple of 200, thus arriving at BRL 3,000,000.
(4.4) Should the Player and Shabab suffer sporting sanctions for the violation of
Vasco’s right of first refusal/pre-emption?
37. Even though Brazilian law states that Shabab should only pay the compensation for the
violation of the right of first refusal, Vasco submitted that the RSTP provide that sanctions
are also applicable since Shabab did not respect the Contract with Vasco.
38. Vasco furthermore averred that it is known that sports sanctions are the main means of
coercion to ensure clubs and players fulfil their economic obligations. Therefore, Vasco
claims that sporting sanctions should also be applied against Shabab, as it induced the
pg. 10
REF. FPSD-11368
player to violate the right of first refusal with Vasco without presenting a contractual
proposal that would allow Vasco to match the conditions.
39. In other words, at the time of execution of the Shabab Agreement, Vasco’s right of first
refusal under Brazilian law and under the Contract was still valid and effective. The joint
and colluded action between the Respondents made it impossible for Vasco to exercise
this right, and therefore, the consequence should result in monetary and sports sanctions,
jointly, according to art. 17 par. 1, 2 and 5of the RSTP.
40. Vasco requested the following relief (freely translated to English):
“The facts and basis of the claim lead the claimant, [Vasco], to respectfully request the
Football Tribunal to issue a decision jointly condemning the defendants to pay, within
the regulatory period, the following concepts and values:
Compensation for violation of the right of preference/option (IVDP) for the first
renewal of the professional contract under Brazilian National Law (articles 28, I,
paragraphs 1st and 2nd and 29, paragraphs 7th to 11th) and articles 17.1 and 17.2
of FIFA RSTP - BRL 3,000,000 (three million reais);
Vasco also requests that any compensation be added with interest of 5% per year from
the end of the contract (July 10, 2022).
Vasco also requests the imposition of sports sanctions, mainly the prohibition of
registration of new players and suspension, to [Shabab] and the player, respectively,
for violating Vasco’s right of preference.
(…)
The total amount claimed is BRL 3,000,000.00 (three million reais), which converted
at present corresponds to USD 623,960.10 (six hundred twenty-three thousand nine
hundred sixty US dollars and ten cents).”
b. Joint position of the Respondents
41. The Respondents filed a joint statement of defence, detailed in continuation. In doing so,
they characterized the claim of the Claimant as “delusional” and “frivolous”.
42. The legal arguments of the Respondents were as follows:
•
there was no valid contract between the player and Vasco at the time he signed with
Shabab, as the Contract expired on 10 July 2022 and there was no contractual provision
for a unilateral extension by Vasco.
pg. 11
REF. FPSD-11368
•
Brazilian law, which grants Vasco the right of first refusal to renew the Contract for
another three years, is not applicable or opposable to the Respondents, as Shabab is
not affiliated to the CBF nor under the jurisdiction of the Brazilian legal system.
•
Brazilian law is also contradictory and in breach of the RSTP, which take precedence over
national laws and regulations in cases of international transfers. The Respondents cited
art. 18 par. 2 of the RSTP in this respect, which prohibits players under the age of 18
from signing a professional contract for a term longer than three years. The
Respondents claimed that the player was 16 years old when he signed the Contract,
which means that he could not agree to any provision that would extend the contract
duration beyond three years.
•
There was no breach or unjustified termination by the player or Shabab, as they only
engaged in negotiations after the expiration of the Contract. They claimed that art. 17 of
the RSTP, which establishes the consequences of terminating a contract without just
cause, does not apply to their case, as there was no existing contract to be terminated.
They also claimed that even if there was a breach, it would have occurred outside the
protected period, preventing any sporting sanctions from being applicable.
43. The Respondents filed the following request for relief:
“Based on the facts, arguments, legal grounds, and evidence brought herein, the
Respondents hereby request the honorable DRC to admit this Response and pass a
decision:
a. Recognizing that: (i) [the Contract] expired on its term, on 10 July 2022; (ii) Brazilian
law is not opposable to Shabab; (iii) Article 29, §7 from Pelé Law, which contravenes
article 18 of the RSTP is unapplicable to this matter; and (iv) there was no existing (or
valid) contractual relationship between Vasco and Player after 10 July 2022;
b. As consequence, establishing there was no breach by the Player (or Shabab) that
could entitle Vasco to any compensation and, as result, entirely rejecting the tortuous
claim presented by Vasco and dismissing its frivolous requests for relief; and
c. condemning Vasco to support all costs associated with this dispute”.
pg. 12
REF. FPSD-11368
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
44. 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 16 August 2023 and submitted
for decision on 18 October 2023. Taking into account the wording of art. 34 of the March
2023 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.
45. In doing so, 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 TMS.
46. Subsequently, the Chamber referred to art. 2 par. 1 of the Procedural Rules as well as art.
23 par. 1 in combination with art. 22 lit. a) and b) of the RSTP (May 2023 edition), and noted
that even if the parties do not dispute if the Chamber is competent to entertain the claim
at hand, the jurisdiction has to be examined ex officio, especially because the Claimant and
the Respondent 2 share the same nationality.
47. The DRC remarked that in accordance with art. 22 par. 1 lit. b) in combination with art. 23
of the RSTP, FIFA is competent to deal with employment-related disputes between a club
and a player of an international dimension, unless an independent arbitration tribunal
guaranteeing fair proceedings exists at national level. The wording of the article in question
clearly implies that the first condition that needs compulsorily to be fulfilled in order for
FIFA to be competent to hear an employment-related dispute between a club and a player
is that said dispute has an “international dimension”. This means that FIFA is only
competent to hear an employment-related dispute between of such kind when the parties
have different nationalities. In the matter at hand, both the Claimant and the Respondent
2 are of Brazilian nationality, and thus art. 22 par. 1 lit. b) of the RSTP cannot apply.
48. As such, and moving on to the analysis of art. 22 par.1 lit. a) of the RSTP, the Chamber
recalled that such provision reads as follows:
“1. Without prejudice to the right of any player, coach, association, or club to seek
redress before a civil court for employment-related disputes, FIFA is competent to
hear:
pg. 13
REF. FPSD-11368
a) 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.”
49. Article 22 par. 1 lit. a) of the RSTP gives FIFA the authority to decide on disputes between
players and clubs that affect the maintenance of contractual stability, especially when they
involve a request for an ITC (and a related claim by a party interested in that request for
compensation or sporting sanctions). This means that FIFA can intervene when a player
wants to transfer to a club in another member association and there is a conflict with the
former club over the contract previously concluded between them.
50. When a player moves from one club to another in different member associations, like in
the matter at hand, the player’s registration also needs to be transferred between the two
associations. This is done by issuing an ITC, which is a certificate that confirms the player’s
registration with the new club and association. According to Annexe 3, art. 11 par. 8 and
Annexe 3, art. 11 par. 3 lit. b) of the RSTP, there is only one valid reason to deny an ITC:
when the former club and the player have a contractual dispute connected to the issuance
of the ITC.
51. However, in this case, the DRC was not convinced that such a dispute existed in relation to
the player’s engagement with the Respondent 1, which happened after the natural expiry
of the original Contract.
52. On this note, the DRC underlined that the lack of a dispute is further confirmed because
the CBF did not reject the issuance of the ITC. If it had done so, the UAEFA could have asked
FIFA to step in and allow the player’s registration according to Annexe 3, art. 11 par. 8 lit. b)
of the RSTP, and then the Players’ Status Chamber (PSC) would have had to determine
whether the player could be registered with the Respondent 1 despite the ongoing
contractual dispute between the player and the former club (as per art. 23 par. 4 of the
RSTP).
53. Per Annexe 3, art. 11 par. 8 lit. b) of the RSTP, it must be noted that any such decision by
the PSC in cases like this one are made without prejudice to any claim that may be filed
with FIFA regarding the underlying contractual dispute between the player and the former
club.
54. The DRC equally underscored that these decisions by the PSC have an international impact,
which is why FIFA has the power to authorize registrations for a player to with a (foreign)
new club. This also explains why FIFA has jurisdiction over employment-related disputes
where the player and the club concerned have the same nationality. If a player wants to
transfer to a club in another member association (that is, an international transfer) and this
leads to a contractual dispute with his (old) club, it would not make sense for FIFA’s
pg. 14
REF. FPSD-11368
decision-making bodies to decide on the registration of a player, but not on the underlying
contractual dispute.
55. Similarly, when the player and the club have the same nationality as in this case, the player’s
potential new club (in this case, the Respondent 1) is outside of the jurisdiction of the
member association/national court of the former club. The involvement of a foreign club
in the dispute because it is trying to register the player creates the international dimension.
This is particularly important because the potential new club could be held jointly and
severally liable for paying compensation if a breach of contract without just cause is found
according to art. 17 par. 4 of the RSTP, as well as because sporting sanctions may be
imposed on the new club if it induced a breach.
56. However, according to article 22 par. 1 lit. a) of the RSTP, the contractual dispute between
the player and their former club must be related to an ITC request. This means that if a
player and a club have an employment dispute that does not involve any international
aspect (e.g., if both parties are, for example, Brazilian as in this case), and the player decides
to transfer internationally to a club affiliated to another member association only after the
original dispute occurs, the international transfer cannot be the cause of the underlying
contractual dispute. Therefore, the original contractual dispute has no international
element, and the competent authority to deal with it is the relevant national one.
57. In this case, the player’s transfer to the Respondent 1 is not connected to the contractual
dispute that is the basis of the Claimant’s claim, which is based solely on national law. In
other words, the mechanism established by art. 22 par. 1 lit. a) of the RSTP to prevent
foreign influence on domestic players cannot be applied in these proceedings because the
player’s new registration in the UAE has nothing to do with the right of first refusal between
the player and the club, seemingly established by national law.
58. Indeed, the Chamber was furthermore comforted with this reasoning because the
Claimant’s claim is entirely based on a right conferred by national law, which constitutes
yet another confirmation that the dispute does not seem do enjoy international status for
it to be entertained by FIFA, even more so given that the issue at hand does not concern a
prematurely terminated contract, but an alleged tort/damage arising out of an
employment contract which undisputedly expired naturally.
59. Moreover, the Chamber once again underlined that the Claimant (or the CBF on its behalf)
did not challenge the issuance of the player’s ITC from the CBF to the UAEFA. It seems that
the Claimant waited until the player had found new (international) employment with the
Respondent 1 and then involved this club in these proceedings, seeking the consequences
provided by art. 17 par. 4 of the RSTP.
60. For the sake of completeness, the Chamber remarked that the Claimant’s behaviour by
now lodging a claim in front of FIFA even touches upon the venire contra factum proprium
doctrine with regards to the legitimate expectations towards the new club. After having
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REF. FPSD-11368
read the submissions of the parties and having closely looked at the course of actions in
the matter, the Chamber equally concluded that the behaviour of the Claimant could also
be interpreted as an abuse of right/law: the Claimant simply waited until the player signed
with a new foreign club to try to enjoy the benefits of the jointly liability and sporting
sanctions foreseen in the FIFA dispute resolution system.
61. In parallel, the Chamber stressed that for the purposes of these proceedings in light of art.
22 par. 1 lit. a) of the RSTP the presence of a national arbitration body is not relevant, but
in light of forum shopping it could be. In this regard, the Chamber posed the question as to
why the Claimant did not sue the player before a national body or court? Moreover, why
did the Claimant not follow such route but waited until the player had a new foreign club
under the presumption that FIFA would be competent?
62. The answer, in the Chamber’s view, is clear: the benefits of FIFA’s dispute resolution system.
All the more so, because the Contract expired on 10 July 2022, but the Claimant decided
not to follow a different route other than filing a claim with the FIFA Football Tribunal until
16 August 2023. It seemed to the DRC that the Claimant had found it thus far more
beneficial (in terms to financial gain and sporting consequences) to wait until the player
signed a contract with a new foreign club. Put differently: it seemed that the Claimant
selected a forum of convenience by addressing FIFA.
63. Simply put, the DRC found that the dispute is of a national dimension only between a
Brazilian player and a Brazilian club on the basis of national law: even if Vasco tries to frame
it as if the case concerned a breach of contract and the corresponding duty to compensate
it, together with the possibility of imposing sporting sanctions (akin to the Respondent 1
having committed inducement for breach of contract), the reality is that the (domestic)
Contract expired naturally, and the additional right of first refusal (which is not established
in the Contract) has no international element to it which allows FIFA to intervene.
64. Therefore, the DRC ruled that the Football Tribunal is not competent to hear the Claimant’s
claim.
b. Costs
65. 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.
66. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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REF. FPSD-11368
67. 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-11368
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, CR Vasco
da Gama SAF.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-11368
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
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
pg. 19