Labour Disputes
Texto da decisão
REF FPSD-4780
Decision of the
Dispute Resolution Chamber
passed on 07 July 2022
regarding an employment-related dispute concerning the player Fernando
Andrade dos Santos
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
ANDRADE José Luis (Portugal), member
LUKASEK Peter (Slovakia), member
CLAIMANT:
Fernando Andrade dos Santos, Brazil
Represented by André Sica & Alexandre Miranda
RESPONDENT:
Al Fayha Club, Saudi Arabia
Represented by Ali Abbes & Mohamed Rokbani
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I. Facts of the case
1.
On 2 August 2021, the Brazilian player Fernando Andrade dos Santos (hereinafter: the Claimant),
the Saudi club Al Fayha (hereinafter: the Respondent) and the Portuguese club FC Porto entered
into a Loan Agreement (hereinafter: the Loan Agreement) by the means of which it was agreed the
temporary transfer of the player to the Respondent until 30 June 2022.
2.
Article 7 of the Loan Agreement states:
“7.1 During the entire loan period AL-FAYHA agrees and shall be the sole responsible regarding any
remuneration (including possible prize monies, subsidies etc.) to the PLAYER.
7.2 The PLAYER recognizes that all remuneration regarding the period of this Loan Agreement shall be
paid solely by AL-FAYHA and irrevocably declares that FC PORTO does not have to pay any amount to
the PLAYER for the period from 2 August 2021 to 30 June 2022 and therefore, renounces to make claims
regarding any kind of remuneration to FC PORTO in connection with such period.”
3.
On the same date, the Claimant and the Respondent signed and employment contract valid until
30 June 2022 (hereinafter: the Contract).
4.
Article 5 of the Contract reads as follows:
“The Club shall pay the following fixed monthly remuneration to the Player (net of any taxes, bank fees
and foreign exchange charges):
Monthly Salary: USD 118,181
The Club shall pay to the Player each monthly salary payment by the last day of each month for a total
of 11 months.”
5.
Article 5.6 of the Contract reads inter alia as follows:
“The Player shall be entitled to paid annual leave of (MINIMUM 28 CALENDAR DAYS). In all circumstances,
the Player shall have the right to paid leave of a minimum length of 28 calendar days per 12-month
period, with a guarantee that at least two weeks of paid leave may be taken uninterrupted after the first
part of the season and at least two weeks after the last official match of the season. Where the duration
of this Contract is less than 12 months the periods of paid leave referred to above shall apply on a pro
rata basis.”
6.
On 11 August 2021, whilst playing for the Respondent, the Claimant suffered a serious injury.
7.
On 19 August 2021, the Player underwent surgery in Portugal.
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8.
Between 25 and 30 August, the parties exchanged correspondence regarding the de-registration
of the Claimant and a possible termination.
9.
On 31 August 2021, the Respondent sent a termination notice to the Claimant which inter alia
stated as follows:
“(…) as soon as you became aware that the club had recruited a player, you changed your position and
started asking for unreasonable amounts.
9. Your abusive behavior has put the club in sporting difficulties with the start of the championship and
the impossibility of registering the new player before releasing your place.
10. Strangely, your lawyer informing us that you will not sign any arrangement when you know full well
that the club has already recruited a player in your place following the mutual decision to terminate the
contract.
11. Therefore, we consider that your actions constitute a just cause to terminate the contract unilaterally
by the club. (…) ”
10. On 21 September 2021, the Claimant sent a notice to the Respondent requesting the residual value
of the Contract, including salaries and surgery costs, and gave a deadline of 10 days to comply.
11. On 31 January 2022, the Claimant was re-registered with FC Porto.
12.
According to the Claimant, “the Player did not receive any remuneration from August 2021 to January
2022. Since then, he has been receiving a monthly wage of EUR 40,000 from FC Porto for the period
starting at February 2022”.
II. Proceedings before FIFA
13. On 11 January 2022, 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
14. According to the Claimant, the Respondent proceeded with the abusive conduct of trying to
impose a termination agreement in order to be able to register another foreign football player.
15. The Claimant states that the Respondent’s “sole intention was to exclude the injured Player from its
squad list in order to free a foreigner spot to register a new international signing before the Saudi
Arabian Football Federation”.
16. The Claimants asserts that on the Termination Notice, the Respondent “carelessly admits its real
motivation to perpetrate the termination, by saying “your abusive behavior has put the club in sporting
difficulties with the start of the championship and the impossibility of registering the new player before
releasing your place”.
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17. The Claimant considers that the Termination Notice has “no legal basis or value”.
18. The Claimant argues that the termination of the Contract happened without any just cause and,
as a consequence, the Respondent must pay compensation.
19. The Claimant deems he is entitled to the following amounts:
-
USD 1,299,991 as residual value
-
USD 98,484,16 as prorrata paid annual leave
-
EUR 5.535,13 as medical costs
-
Interest of 5% per year “from the date of default pursuant to FIFA and CAS well-established
jurisprudence.”
20. Lastly, the Claimant deems he is entitled to receive “Additional Compensation increased to a
maximum of six-monthly salary due to the egregious circumstances the Player faced due to the
Respondent’s conduct, as per article 17.1 (ii).”
21. The Claimant filed the following requests for relief:
the Player respectfully request to this honourable Chamber the following relief:
(i) To enforce FIFA’s jurisdiction as competent to rule on the matter;
(ii) To rule that AL-FAYHA shall pay to the Player compensation (plus the 5% p.a applicable interest) of:
USD 1.398.475,16 for the unilateral early termination of the employment contract without just cause
and for failing to comply with his basic duties of care, considerateness, good faith and provision of
information; and
EUR 5.535,13 for the medical costs effectively spent by the Player’s with the surgery needed;
(iii) In case the Player eventually signs a contract with another club between the date of the Claim's filing
and the FIFA’s Football Tribunal decision, to declare the Player shall be entitled to receive Additional
Compensation increased to a maximum of six-monthly salary due to the egregious circumstances the
Player faced due to the Respondent’s conduct, as per article 17.1 (ii);
iv) To impose a sanction on the Club pursuant to Article 12bis and 17 of the RSTP, especially the Sporting
Sanctions provided by the article 17.4 of the RSTP due to the termination of the Employment Contract
without just cause during the protected period; and
(v) In any event, to order the Club to cover all costs of the proceedings and to bear all the legal fees.
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b. Position of the Respondent
22. According to the Respondent, “after a long discussion, the two parties have agreed to terminate the
contractual relationship and prepared all necessary documents. the player counsel informed the club
that he will not sign any arrangement following the mutual decision to terminate the contract. The
player’s bad faith and abusive behaviour has put the club in sporting difficulties.”
23. The Respondent argues that the contract termination “was negotiated by both parties and agreed by
them”. “From that moment, the respondent considered that the labour relationship with the player is
terminated and for that only reason, the club started negotiation with another player to replace him”.
24. The Respondent refers to the Art. 44 of the Swiss Code of Obligations (“SCO”), which states that
“Where the injured party consented to the action which caused the loss or damage or circumstances
attributable to him helped give rise to or compound the loss or damage or otherwise exacerbated the
position of the party liable for it, the court may reduce the compensation due or even dispense with it
entirely”
25. In the view of the Respondent, “the behaviour of the player leaves no doubt regarding his bad faith
and compliance to the termination of the contract”.
26. The Respondent deems that art 17 of FIFA RSTP is not applicable.
27. The Respondent concludes that “the player he had, by his attitude, also participated in his own
damage and was not free of any blame as to the situation he was in. With this in mind, the amount of
compensation due to the player and should be further mitigated”.
28. The Respondent filed the following requests for relief:
Primarily: to reject the claim of the player.
Subsidiary: to consider the amount of compensation due to the player and should be mitigated taking
into account that the player was also to blame for the early termination of the contract and to decide
to reduce the compensation due to the player by three third 3/4.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. 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 11 January 2022 and submitted for decision on 7 July
2022. Taking into account the wording of art. 34 of the October 2021 edition of the Procedural
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Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
30. 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 Saudi club.
31. 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 11 January 2022, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
32. 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
33. 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 abovementioned 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
34. 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 existence of just cause in the contractual
termination undertaken by the Respondent.
35. In this context, the Chamber acknowledged that it its task was to determine whether the
Respondent had just cause to terminate the Contract.
36. In view of the foregoing, the Chamber referred to art. 13 par. 5 of the Procedural Rules, according
to which a party that asserts a fact has the burden of proving it and went on to analyse the
documentation provided by the parties in support of their allegations. In this respect, the DRC
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referred to the termination notice issued by the Respondent on 31 August 2021 and observed that
according to the Respondent, the Claimant’s unwillingness to sign a mutual termination agreement
constituted a just cause to terminate the Contract.
37. In this scenario, the Chamber recalled its long-standing jurisprudence and the principle pacta sunt
servanda, which in essence means that contracts must be respected. Furthermore, the Chamber
underlined that the Claimant was under no obligation whatsoever to agree to the mutual
termination of the Contract.
38. With the above in mind and after having carefully analysed the parties’ submissions, the Chamber
concluded the Respondent had not submitted enough evidence to prove the existence of just
cause to terminate the Contract, nor the existence of any baith by the Claimant.
39. On account of the aforementioned, the Chamber decided that the club had unlawfully terminated
the Contract with the player and should be held liable for such breach.
ii. Consequences
40. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
41. The Chamber turned to the calculation of the amount of compensation payable to the player by
the club 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, and depending on whether the contractual breach falls within the protected period.
42. 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. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
43. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the club to the player 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.
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44. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract from the date of
its unilateral termination until its end date. Consequently, the Chamber concluded that as no
payment has been made under the Contract, the amount of EUR 1,299,991 (i.e. the residual value)
serves as the basis for the determination of the amount of compensation for breach of contract.
45. In continuation, the Chamber verified as to whether the player had signed an employment contract
with another club during the relevant period of time, by means of which he would have been
enabled to reduce his loss of income. According to the constant practice of the DRC as well as art.
17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be
taken into account in the calculation of the amount of compensation for breach of contract in
connection with the player’s general obligation to mitigate his damages.
46. Indeed, the player was re-registered with club FC Porto on 31 January 2021. In accordance with the
pertinent employment contract, the player was entitled to approximately EUR 40,000 per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total amount of
EUR 200,000, approximately equivalent to USD 208,570.
47. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination did not take
place due to said reason and furthermore, the termination was carried out by the Respondent,
and therefore decided that no additional compensation can be awarded.
48. Having established the above, the DRC referred to the request for “prorata paid annual leave”
amounting USD 98,484.16 and decided that it ought not to be awarded since according to art. 5.6
of the Contract, the Claimant is entitled to 28 days annual leave although at no instance is he
entitled to the monetary value of the said allowance.
49. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the club must pay the amount of USD 1,091,421 to the
player (i.e. EUR 1,299,991 minus USD 208,570), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
50. Furthermore, taking into consideration the player’s generic request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 11 January 2022 until the date of effective payment.
51. Lastly, the Chamber referred to the claim for medical expenses and confirmed that the Claimant
has provided supporting evidence in this regard. Thus, the DRC deemed that the amount of EUR
5.535,13 must be reimbursed to the Claimant by the Respondent.
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iii. Compliance with monetary decisions
52. 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.
53. 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.
54. 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 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.
55. 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.
56. 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
57. 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.
58. 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.
59. 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, Fernando Andrade dos Santos, is partially accepted.
2.
The Respondent, Al Fayha Club, has to pay to the Claimant, the following amount(s):
- USD 1,091,421.00 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 11 January 2022 until the date of effective payment.
- USD 5,535.13 as reimbursement of expenses.
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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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
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