FIFA - Decisión disputa Dafa Gomes 24082023

REF. FPSD-9544

Decision of the Dispute Resolution Chamber passed on 24 August 2023 regarding an employment-related dispute concerning the player Sana Dafa Gomes BY: Frans de Weger (the Netherlands), Chairperson Roy Vermeer (the Netherlands), member Mario Flores Chemor (Mexico), member

CLAIMANT:

FC Alverca, Portugal Represented by 14 Sports Law

RESPONDENT 1:

Sana Dafa Gomes, Guinea-Bissau Represented by JMPM Advogados

RESPONDENT 2:

Al Wasl, United Arab Emirates Represented by JMPM Advogados pg. 2

REF. FPSD-9544

I. Facts of the case

1. On 2 June 2021, the Portuguese club Futebol Clube de Alverca (hereinafter: Claimant or Alverca) and the Guinea-Bissauan player Sana Dafa Gomes (hereinafter: Respondent 1 or player) concluded an employment contract (hereinafter: the Contract) valid as from 1 July 2021 until 30 June 2023.

2. According to the Contract, Alverca undertook to pay the player a monthly salary of EUR 916.20 gross.

3. Furthermore, in accordance with clause 10 of the Contract, the player and Alverca agreed as follows: “Under the terms and for the purposes of Article 125 of the General Regulations of the Portuguese Professional Football League, as well as Article 46 of the Collective Bargaining Agreement concluded between the Union of Professional Football Players and the Portuguese Professional Football League, which approves the legal regime of the employment contract of sportsmen, the parties agree, expressly and irrevocably, that the inscription and registration of the Federative Rights of the Player in favor of a club, association or third company depends, in the case of a club, association or third company, on the payment of the amount of

€10.000.000,00 (ten million Euros), made by way of termination clause, value that the Parties determine it corresponds to the valuation of the rights of sports participation of the Player, not being able to FC Alverca, upon effective payment of the termination clause, plus VAT at the legal rate if applicable, oppose to the transfer of the Player, endeavoring to celebrate all documents and fulfill all necessary actions to the immediate registration of the Player in favor of a third party.”

4. On 5 July 2021, Alverca and the Portuguese club Portimonense Futebol (hereinafter: Portimonense) signed an agreement for the loan transfer of the player to Portimonense as from the date of signature until 30 June 2022 (hereinafter: the Loan Agreement).

5. On 19 July 2021, the player and Portimonense signed an employment contract (hereinafter: the Loan Employment Contract) valid as from the date of signature until 30 June 2022.

6. In accordance with clause 5 of the Loan Employment Contract, the player and Portimonense agreed as follows: “The present contract has a certain term and duration, starting as from 5 July 2021 and ending on 30 June 2022. pg. 3

REF. FPSD-9544

The Club is entitled to buy the player at the end of the present sporting season, and in case it exercises such option to buy, it shall celebrate an employment contract with the player to be in force for the next 5 sporting seasons with the following salary: 1Season 2022/2023: gross EUR 1,200; 2Season 2023/2024: gross EUR 1,500; 3Season 2024/2025: gross EUR 1,800; 4Season 2025/2026: gross EUR 2,000; 5Season 2026/2027: gross EUR 2,500.

7. On 16 September 2021, Alverca, the player and Portimonense signed an agreement for the

definitive transfer of the player to Portimonense (hereinafter: the Transfer Agreement), in accordance with which the following was agreed: “By the present contract, [Alverca] agrees to transfer from now and on a definitive basis and with effect as of (including) 1 January [2022] the registration and economic rights of the player of which is the sole and exclusive owner to the second party (i.e. Portimonense) who accepts them.”

8. In accordance with the Transfer Agreement, Alverca and Portimonense agreed on a free transfer but with a 50% sell on clause in favour of Alverca on any future transfer (temporary or permanent) from Portimonense to a third club.

9. Furthermore, in accordance with clause 2 of the Transfer Agreement, it was agreed as follows: “the player declares that he freely accepts and agrees with the present transfer and undertakes to continue executing his professional football activity at the services of

[Portimonense].”

10. Additionally, the object of the Transfer Agreement was defined as follows: “The present transfer agreement of the player’s rights from the first party to the second party Alverca SAD’s player to of Portimonense SAD is hereby celebrated, in the following terms and conditions.”

11. Moreover, in accordance with clause 10 of the Transfer Agreement, it was stated as follows: “The present contract expresses the integrity of the agreement between the parties, and revokes all the previous agreements, verbal or written, express or tacit, related, even partially, to the object of the present contract.

Any modification or annexes to the present contract must be exclusively made by written means.” pg. 4

REF. FPSD-9544

12. On 4 May 2022, a meeting between the representatives of Portimonense and the player’s agent took place, in which it was explained to the latter that the player was under the obligation to sign a new employment contract, per the transfer agreement, otherwise the

player would have to return to Alverca. The agent, on the other hand, purported that there was no obligation to sign a new contract, that the player would become a free agent if no agreement was signed (as opposed to returning to Alverca “from loan”), and that the terms previously agreed to would have to be renegotiated if any contract would be signed.

13. No new employment contract was ever concluded between Portimonense and the player.

14. On 8 June 2022, the Emirati club Al Wasl (hereinafter: Respondent 2 or Al Wasl) made Alverca an offer for the permanent transfer of the player to Al Wasl.

15. On 13 June 2022, Alverca rejected the proposal of Al Wasl.

16. On 6 July 2022, the player and Al Wasl entered into an employment contract valid as from 1 July 2022 until 30 June 2025 (hereinafter: the New Contract).

17. In accordance with the New Contract, the player is entitled to receive the following remuneration: - One-time advance payment of EUR 100,000; - Monthly salary of EUR 8,333 between July 2022 and June 2023; - Monthly salary of EUR 10,000 between July 2023 and June 2025.

18. On 11 July 2022, Alverca allegedly requested the player via the messaging service WhatsApp to return to its premises for training.

19. On 12 July 2022, Alverca officially requested the player to return to its premises in order to resume his activity under the Contract.

20. On 14 July 2022, Al Wasl entered a transfer instruction to engage the player permanently from Alverca.

21. On 15 July 2022, the United Arab Emirates Football Association (UAEFA) requested the International transfer certificate (ITC) from the Portuguese Football Federation (FPF).

22. On 19 July 2022, FPF rejected the ITC request, stating that the player still has a valid contract

with Alverca.

23. On 22 July 2022, Alverca sent Al Wasl a “cease and desist letter”, informing the latter that the player still had a valid contract with Alverca, and requesting any contractual relation pg. 5

REF. FPSD-9544 between Al Wasl and the player to be ceased so that the latter could return to Alverca and resume his services there.

24. On 23 July 2022, Al Wasl informed Alverca that the Contract was allegedly terminated when the player signed the Transfer Agreement.

25. On the same day, UAEFA disputed the rejection of the ITC request, stating that the player signed a valid and binding employment contract with Al Wasl, and requested FIFA’s intervention.

26. On 26 July 2022, FIFA requested clarification which is the player’s former club – Alverca or

Portimonense.

27. On 27 July 2022, UAEFA submitted a statement from Al Wasl explaining that the Contract between the player and Alverca was terminated when the Transfer Agreement was signed, and that, following 30 June 2022, the player was a free agent.

28. On 29 July 2022, the PSC Single Judge passed a decision granting the request of UAEFA to register the player. pg. 6

REF. FPSD-9544

II. Proceedings before FIFA

28. A brief summary of the parties’ submissions is outlined below.

a. Position of Alverca

29. On 9 March 2023, Alverca lodged a claim against the player and Al Wasl in front of FIFA.

30. Alverca requested payment of compensation of EUR 10,000,000 for an unlawful breach of contract by the player and inducement thereto by Al Wasl.

31. In its claim, Alverca argued that the player, after having been loaned out to Portimonense, and having failed to sign an employment contract after the Transfer

Agreement was concluded, retained his status as a loan player by virtue of the Transfer Agreement never being executed.

32. With this in mind, after the loan expired, Alverca asserted that the player refused to return and instead signed the New Contract with Al Wasl, thereby de facto terminating the Contract with Alverca without just cause.

33. Alverca corroborated the allegation that the player refused to return with a witness statement by a Board Member of Portimonense, stating that the player had refused to sign a new contract. The witness statement further outlined that the player was conscious of his stronger bargaining position and attempted to either force better financial terms than those agreed in the Transfer Agreement, or make use of his purported status as a free agent to move elsewhere for a more lucrative contract.

34. Alverca emphasised that the invalidity of the Transfer Agreement is manifestly evident through the signature of the Annexe, which demonstrated that Portimonense was of the opinion that the player was still a loan player. Equally, Alverca stressed that the offer sent on 8 June 2022 clearly demonstrated that Al Wasl was aware of the player’s active Contract with Alverca, further substantiating the line of argument for inducement to breach of contract.

35. Alverca also pointed out that, in accordance with the regulations of the Portuguese Football Federation (FPF) concerning domestic transfers, in order for a player to be registered with any club in Portugal, two documents must be submitted to FPF – the relevant transfer agreement (or proof of termination of the previous contract), and the employment contract with the new club. Alverca emphasised that these requirements are cumulative in order to avoid that a player is transferred to a club, but subsequently arrives there without a valid employment contract.

36. With this in mind, Alverca stressed that the player was never registered with the FPF as a permanent player, as no employment contract was signed and thus the Transfer

pg. 7

REF. FPSD-9544

Agreement never ratified. Furthermore, Alverca argued that this is reflected in the relevant player passport, which refers to the relationship between the player and Portimonense as a “Loan”. As a result, according to Alverca, this further substantiates that the player was not a free agent after the expiry of his term with Portimonense, but rather under contract with the former.

37. In conclusion, Alverca requested payment of EUR 10,000,000, corresponding to the release clause contained in clause 10 of the Contract, which should be paid jointly and severally by the player and Al Wasl. Alverca argued that, since it missed out on such compensation from the potentially lawful transfer of the player from Alverca to a third club, it had a legitimate expectation to receive such amount and thus the clause is entirely proportionate.

38. Alternatively, should the Tribunal not find that the release clause under clause 10 should be used to calculate the compensation payable to Alverca, the latter argued that it is in any event entitled to EUR 300,000.

39. Lastly, Alverca requested interest as from the due date of the respective amounts awarded, and sporting sanctions on both the player and Al Wasl for breach of contract and inducement thereto during the protected period.

b. Position of the Respondents

40. On 5 April 2023, the player and Al Wasl, (hereinafter jointly: the Respondents), submitted their position to the claim jointly.

41. The Respondents argued that the Transfer Agreement, by changing the status of the player from a loanee to a permanent player of Portimonense, effectively terminated the Contract that previously existed with Alverca.

42. Contrarily to what was alleged by Alverca, the Respondents argued that the player was under no obligation to sign another contract, and that they were merely negotiating terms for renewal. The Respondents emphasised that the Loan Employment Contract

was the only valid employment agreement by which the player was bound, and that he became a free agent once his term with Portimonense expired on 30 June 2022.

43. The Respondents equally remarked that Alverca allegedly never contacted the player to return or resume his services, and only began to send correspondences when it discovered that he had signed a new contract with Al Wasl. To this end, according to the Respondents, Alverca should have sent the player its “sporting plans”.

44. The Respondents equally remarked that Alverca and FPF attempted to block the player’s transfer to Al Wasl, by stating wrongfully that the player is still under contract with Alverca. It was also pointed out by the Respondents that FIFA, on 29 July 2022, pg. 8

REF. FPSD-9544 provisionally registered the player to Al Wasl, thereby strengthening the claim of the latter that the player was a free agent.

45. The Respondents acknowledged that the transfer of the player from Alverca to Portimonense should have been registered in the Transfer Matching System (TMS) pursuant to Annexe 3 of the Regulations on the Status and Transfer of Players, but that failure to do so should not bear any influence on the contractual and commercial reality that the player permanently moved to Portimonense by virtue of the Transfer

Agreement.

46. The Respondents equally asserted that Alverca and Portimonense should be sanctioned by FIFA on account of engaging in a bridge transfer, since the transfer of the player from Alverca to Portimonense allegedly occurred less than 16 weeks after he joined Alverca.

47. The Respondents further argued, with specific reference to the alleged inducement by Al Wasl, that, since there was no breach of contract by the player, Al Wasl cannot be held liable for inducement for breach of contract, and thus no sporting sanctions should be applied.

48. Furthermore, the Respondents pointed out that Al Wasl was allegedly never informed

about the player’s employment situation, and thus the offer to sign him was misinformed and incorrect.

49. Lastly, the Respondents argued that the claim for compensation is excessive, based on the fact that the Transfer Agreement merely envisioned a sell-on clause in case of the player’s transfer from Portimonense to a third club, no principal transfer fee, and the residual value of the Contract with Alverca amounted to merely EUR 10,944.40 gross.

Thus, any compensation which may be deemed payable by the Respondents should be calculated in accordance with art. 17 of the Regulations on the Status and Transfer of Players. c. Replica of Alverca

50. In its replica, submitted on 12 May 2023, Alverca argued that the Respondents are misrepresenting the facts and that the reality of the player still being under contract with Alverca remains unchanged.

51. It was particularly highlighted that the Loan Employment Contract was purely intended to govern the relationship between the player and Portimonense during the term of the Loan Agreement concluded on 5 July 2021, and that no corresponding employment contract was signed following the signature of the Transfer Agreement, meaning that the transfer never materialised. Alverca stressed that each of these contractual instruments is autonomous. pg. 9

REF. FPSD-9544

52. Alverca equally emphasised that the Contract with itself was never formally terminated or revoked by the player, and that the Transfer Agreement contained no clause by virtue of which the Contract would be terminated once the transfer became effective.

53. Alverca also vehemently denied not having contacted the player, and provided several formal and informal correspondences (including a formal notice sent on 12 July 2022) sent from itself requesting him to attend training and resume his services.

54. Alverca also reiterated the line of argument pertaining to the player’s registration with FPF, and argued that the Respondents failed to meaningfully rebut said point.

55. Moreover, Alverca reiterated its line of argument as to the offer dated 8 June 2022 made

by Al Wasl, and contested that they were not aware of his employment situation, as the player’s agent was included in the chain of correspondence surrounding the offer, with reference to the witness statement submitted by the Board Member of Portimonense.

56. Alverca pointed out equally that the Respondents’ reference to Annexe 3 is erroneous, since the purported transfer of the player from Alverca to Portimonense is domestic and thus not within the scope of said provision.

57. Furthermore, Alverca dismissed the argument as to a bridge transfer and argued that the Respondents provided no explanation thereto and merely quoted the relevant provisions verbatim.

58. Lastly, Alverca reiterated its comments as to the compensation payable, emphasising that clause 10 of the Contract is not a liquidated damages clause, but rather a buyout/release clause, thereby not falling within the scope of FIFA’s jurisprudence.

d. Duplica of the Respondents

59. In their joint duplica submitted on 13 June 2023, the Respondents reiterated all of their previous comments. pg. 10

REF. FPSD-9544

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

59. 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 9 March 2023 and submitted for decision on 24 August 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.

60. 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. a) of the

Regulations on the Status and Transfer of Players October 2022 edition), the DRC is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Guinea-Bissauan player, a Portuguese club and an Emirati club.

61. 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 (May 2023 edition), and considering that the present claim was lodged on 9 March 2023, 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

62. 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 TMS.

c. Merits of the dispute

63. 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. pg. 11

REF. FPSD-9544

1. Main legal discussion and considerations

64. The foregoing having been established, the Chamber moved on to the substance of the

matter, and took note of the fact that the parties strongly dispute the circumstances of the contractual termination between the player and Alverca.

65. In this context, the Chamber identified the following key points in order to determine whether or not any liability may arise for either the player or Al Wasl in the case at hand: - Was the Contract with Alverca terminated by virtue of the Transfer Agreement? - If not, when was the Contract terminated, and did such termination occur without just cause? - What are the consequences of such potentially unlawful termination?

66. Having set out the above, the Chamber revisited the parties’ arguments. In this respect, it noted that, according to Alverca, the player terminated the Contract without just cause, since he signed the New Contract during the same period with Al Wasl, after the expiry of his loan with Portimonense.

67. Alverca emphasised that the Contract was neither terminated nor revoked, and that the Transfer Agreement was never given effect to, since the player and Portimonense failed to sign an employment contract beyond the Loan Employment Contract.

68. Based on the above, and in light of clause 10 of the Contract, Alverca argued that it is entitled to EUR 10,000,000 as compensation from the player and Al Wasl.

69. On the other hand, the Chamber recalled that the Respondents vehemently reject this line of argument. Rather, they asserted that the Contract was de facto terminated when the Transfer Agreement was signed, and that the player was a free agent when he signed the

New Contract with Al Wasl.

70. The Respondents further emphasised that Alverca never demonstrated any intent to reintegrate the player and that they never believed that the player would return to render services after the term with Portimonense expired.

71. Lastly, the Respondents briefly argued that the player was under no further obligation to sign a new contract with Portimonense, and that the negotiations with the latter were for a renewal of the Loan Employment Contract under different terms.

pg. 12 REF. FPSD-9544 ➢ Was the Contract with Alverca terminated by virtue of the Transfer Agreement?

72. With the above in mind, the Chamber proceeded to firstly consider the effects of the Transfer Agreement, with particular reference to the Contract between Alverca and the player.

73. In this respect, some key aspects were recalled by the Chamber. On one hand, the Loan Employment Contract, based on which the player was temporarily transferred to Portimonense, stated that the latter is entitled to permanently acquire the services of the player, and in case such option is exercised, an employment contract shall be concluded for a period of five seasons, with definitive financial terms.

74. To start with, the Chamber referred to Article 10(1)(c) of the Regulations which provides that, during the agreed duration of the loan, the contractual obligations between the professional and the former club shall, as a general rule, remain suspended. This means that, once the loan spell comes to an end, the contract between the player and his parent club regains its full effects. The Commentary to the RSTP explains this as follows: “In the event of a loan being agreed, the player’s parent club will, with the player’s consent, allow the player to be registered with, and play for, a different club for a predetermined period. The player will be obliged to return to their parent club following the expiry of the agreed loan period. This obligation is based on the employment contract concluded between the parent club and the professional player, the effects of which are suspended for the duration of the loan, but will become effective again at the end of the loan period.”

75. Keeping this in mind, the Chamber took note of the fact that the player and Portimonense never reached an agreement as to signing a new contract, or rather, to formalise the terms set out in the Loan Employment Contract.

76. Indeed, from the evidence on file, especially the witness statement of the Board Member of Portimonense and the fact that the player did not dispute it, it appeared that the player

refused to sign a new contract, despite the terms of the Loan Employment Contract and Transfer Agreement jointly stipulating that this was required upon the permanent transfer of the player. What is more, from the witness statement it also followed that Portimonense and Alverca were in agreement over the fact that the Transfer Agreement was null and void as a consequence of the failure of the player to agree to new contractual terms beyond the loan.

77. Also, the Chamber attached value to the fact that Al Wasl sent an offer to Alverca on 8 June 2022, and subsequently argued that it did not have “all the information” about the player’s contractual situation. pg. 13

REF. FPSD-9544

78. Furthermore, it was considered of significance by the Chamber that the player was never formally registered as a permanent player of Portimonense, and that his player passport reflected that he had retained his status as a loan player, even after the signature of the

Transfer Agreement.

79. Moreover, the Chamber wished to point to the wording of the Transfer Agreement. In this respect, although it was acknowledged that the Transfer Agreement contained a provision under clause 10 that it would “revoke all previous agreements, verbal or written, express or tacit, related even partially, to the object of the present contract”, the Chamber wished to specify that the object of the Transfer Agreement was defined as the transfer of the player’s rights from Alverca to Portimonense.

80. In other words, the Chamber held that the fundamental object of a transfer agreement is to allow that the player renders his services to the new club, which can only happen once an employment contract between the player and the new club is concluded. Put differently, without such new employment contract, the fundamental object of a transfer agreement cannot be fulfilled. This in turn could lead to situations where players could find themselves in “limbo” if, for instance, the new club would refuse to sign the new employment contract while at the same time holding that the player’s contract with the former club was definitely

terminated only by means of a transfer agreement. This is not the case here, given that it was the player who refused to sign a new contract even though a transfer agreement had been signed by all parties.

81. Lastly, the Chamber wished to emphasise that the Annexe to the Transfer Agreement as was submitted by the Claimant and allegedly signed on 9 May 2022 could not be taken into account for the sake of the present proceedings, as it had only been submitted in its original language of Portuguese, and not translated into a procedural language, pursuant to art. 13 par. 3 of the Procedural Rules.

82. All of the above taken into account, the Chamber was of the unanimous opinion that the Contract between Alverca and the player had not been terminated by virtue of signing the Transfer Agreement and that thus the player was obliged to return to Alverca once the loan spell with Portimonense ended. Not only had the player and Portimonense failed to conclude a new employment contract – which was a condition precedent – but it was evident from the failure of Portimonense to register the player as “permanent” that the Transfer Agreement itself never materialised.

83. Given that the Transfer Agreement had, thus, not been executed, and the loan never made permanent, the Chamber established that the player had still been under contract with Alverca upon expiry of the loan with Portimonense. pg. 14

REF. FPSD-9544 ➢ When was the Contract between the player and Alverca terminated?

84. With such important clarification having been made, the Chamber moved on to consider the consequences of the player signing with Al Wasl.

85. It was, in this respect, recalled that the player was bound to Alverca by virtue of the Contract until 30 June 2023. Equally, the Chamber noted that Alverca had sent a formal notice to the player to return to training on 12 July 2022, and that the former consistently displayed

belief that the Contract was still in force following the expiry of the loan period with Portimonense on 30 June 2022.

86. Despite the abovementioned circumstances in place, the Chamber recalled that the player signed the New Contract with Al Wasl on 6 July 2022.

87. Recalling its longstanding jurisprudence, as well as the wording of art. 18 par. 5 of the Regulations, the Chamber pointed out that a player is prohibited from signing two employment contracts with different clubs during the same period.

88. The Chamber was thus able to establish that, by signing the New Contract with Al Wasl, the player had irreversibly departed from the Contract on 6 June 2022, de facto unilaterally and prematurely terminating the employment relationship on said date. ➢ Did such contractual termination occur with or without just cause?

89. With this in mind, the Chamber moved on to consider the lawfulness of such contractual termination revisiting the wording of art. 14 of the Regulations, in accordance with which a premature termination of an employment contract may only result where a substantial or consistent breach of contract occurs. Where other measures are available to remedy the parties’ disagreements, these should be re