FIFA - Decisión disputa Ferreira dos Santos 26052023

REF. FPSD-8099

Decision of the Dispute Resolution Chamber passed on 26 May 2023 regarding an employment-related dispute concerning the player Rene Ferreira dos Santos BY: Frans de Weger (The Netherlands), Chairperson Roy Vermeer (The Netherlands), member Mario Flores Chemor (Mexico), member

CLAIMANT / COUNTER-RESPONDENT:

Rene Ferreira dos Santos, Brazil Represented by Breno Costa Ramos Tannuri

RESPONDENT / COUNTER-CLAIMANT:

Al Raed, Saudi Arabia Represented by Pedro Macieirinha

INTERVENING PARTY:

CS Maritimo, Portugal pg. 2

REF. FPSD-8099

I. Facts of the case

1. On 1 July 2021, the Brazilian player, Rene Ferreira dos Santos (hereinafter: player) and the Saudi club, Al Raed (hereinafter: club) concluded an employment contract (hereinafter: contract) valid as from 1 July 2021 until 30 June 2023.

2. According to the contract, the Respondent undertook to pay the Claimant the following payments: - USD 41,667 as monthly salary; - USD 200,000 as “fixed payment” on 1 July 2021; - USD 200,000 as “fixed payment” on 1 July 2022.

3. On 5 April 2022, the Claimant put the Respondent in default and requested payment of USD 245,001, corresponding to the salaries of January 2022 until March 2022 (3x USD 41,667) and USD 120,000 resulting from the fixed payment due on 1 July 2021. The player requested payment within 15 days. Subsequently, the player acknowledged receipt of the claimed payment.

4. On 2 September 2022, the Claimant put the Respondent in default and requested payment of USD 366,668, corresponding to the salaries of May 2022 until August 2022 (4x USD

41,667) and the fixed payment due on 1 July 2022 (USD 200,000). The player requested payment within 15 days. Said default notice was sent via email to the email addresses: alraedfc1954@gmail.com; fcc1954@gmail.com; info@saff.com.sa.

5. On 3 September 2022, the club imposed a fine of 5% of the player’s salary of September 2022 due to a red card.

6. On 9 September 2022, the club opened disciplinary proceedings against the player, who got a red card after spitting on an opponent, which caused a six match ban.

7. On 16 September 2022, the player sent a reminder to the club.

8. On 20 September 2022, the player terminated his contract with the club due to outstanding remuneration of USD 325,001. In this letter, the player acknowledged receipt of his salary for May 2022.

9. On 21 September 2022, the player attempted to leave Saudi Arabia on a flight leaving in the early hours of 22 September 2022 to Brazil. Since his Exit VISA was not issued by the club, he was not allowed to leave and subsequently missed his flight. pg. 3

REF. FPSD-8099

10. On 23 September 2022, after an intervention of the Saudi Arabian Football Federation, the Exit VISA was issued and the player was able to leave Saudi Arabia.

11. On 28 September 2022, the club issued a disciplinary decision in connection with the player’s red card and fined the player in the amount of USD 41,667.

12. On 16 December 2022, the player signed an employment contract with the Portuguese club, CS Maritimo de Madeira, valid as from 1 January 2023 until 30 June 2024, including a monthly salary of EUR 20,000.

II. Proceedings before FIFA

13. On 3 November 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 player

14. In his claim, the player requested payment of the following monies: - USD 325,001 as outstanding remuneration (Salaries of June 2022 until August 2022 plus instalment of USD 200,000), plus 5% interest p.a. as of the due dates; - USD 8,567.77 as reimbursement for a flight ticket; - USD 414,587 as compensation for breach of contract, corresponding to the residual value, plus 5% interest p.a. as of 21 September 2022; - USD 250,002 as additional compensation (6 monthly salaries), plus 5% interest as of 21 September 2022.

15. In this framework, the player argued that he had just cause to terminate the contract due to outstanding remuneration, after having put the club in default.

16. In this context, he requested to be reimbursed of his costs in connection with the denied Exit VISA and the missed flight. He submitted a receipt of a flight ticket in the amount of

BRL 44,066.71.

17. Due to the club’s refusal to issue the Exit VISA, the player held that “egregious circumstances” in accordance with art. 17 RSTP shall be applied and that he therefore is awarded with additional circumstances of 6 monthly salaries. pg. 4

REF. FPSD-8099

b. Position of the club / counterclaim

18. In its reply the club rejected the player’s claim and lodged a counterclaim against the player, requesting payment of USD 416,667 as compensation for breach of contract, corresponding to the residual value of the contract.

19. The club argued that the player terminated the contract without just cause.

20. In this context, the club alleged that it did not receive the player’s default notice dated 2

September 2022.

21. On account of the above, the club maintained that the player terminated the contract

without having put it in default before, and therefore without just cause.

22. Moreover, the club argued that the player seriously damaged the club’s reputation with his actions surrounding the red card on 1 September 2022.

23. The club pointed out that it fined the player in accordance with its disciplinary regulations and while giving the player the right to be heard.

24. Regarding the EXIT VISA, the club rejected the player’s allegations and held that his problems were created by himself and that it immediately acted as soon as it was aware of the situation.

c. Reply of the player to the counterclaim

25. In his reply to the counterclaim, the player rejected the club’s claim.

26. Regarding the default notice, the player held that he sent it to the email address mentioned in the contract (alraedfc1954@gmail.com) and to a second email address registered in the Transfer Matching System (fcc1954@gmail.com). Furthermore, the player pointed out that he sent a copy of the email to the Saudi Arabian Football Federation.

27. On account of the above, the player held that he sufficiently notified the club of his default notice.

28. As to the disciplinary sanctions against him, the player pointed out that he was provoked during the incident surrounding the red card. Further, he held that the club only started disciplinary actions after his default notice on 2 September 2022.

29. As to the “first fine”, the player maintained that the club failed to follow due process as his right to be heard was violated and the club issued a fine of 5% of his monthly salary. pg. 5

REF. FPSD-8099

30. Even worse, the club issued a “second fine” of 100% of his monthly salary later on, charging him for the second time for the same incident, which is against the internal regulations and basic principles of law.

31. On account of the above, the player held that both fines shall be disregarded.

32. Due to his new employment contract, the player reduced his claim for compensation for

breach of contract, taking into account the mitigation, from USD 414,587 to USD 299,832 (plus interest). d. Position of the new club

33. The new club has failed to submit its comments as the present matter.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

34. 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 3 November 2022 and submitted for decision on 26 May 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.

35. 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 2023 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 and a club.

36. 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 3 November 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. pg. 6

REF. FPSD-8099

b. Burden of proof

37. 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

38. 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.

1. Main legal discussion and considerations

39. 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 that the player had just cause to terminate the contract on 20 September 2022.

40. In this context, the Chamber acknowledged that its task was to decide if the player had just cause to terminate the contract on 20 September 2022 and to decide on the consequences thereof.

41. The DRC noted that the matter at hand concerns a claim of a player against a club for breach of contract, including a counterclaim of the club.

42. The Chamber took note of the player’s argumentation that he terminated the contract with just cause due to outstanding remuneration, after having put the club in default.

43. Furthermore, the members of the Chamber acknowledged that club argued that it did not receive the default notice and that the termination of the contract was therefore without just cause.

44. In this context, the DRC started to analyse the circumstances of the player’s default notice

dated 2 September 2022, with which the player submitted a screenshot of the email in question. pg. 7

REF. FPSD-8099

45. On account of the above, the DRC wished to point out that the email addresses used to send the default notice correspond to the email addresses of the club. Furthermore, the members of the Chamber noted that the player sent an (undisputed) reminder on 16

September 2022 to the same email addresses before terminating the contract on 20 September 2022.

46. In this regard, the DRC concluded that the player has validly put the club in default on 2

September 2022.

47. Subsequently, the Chamber observed that the player claims not having received his remuneration corresponding to USD 325,001 as salaries of June 2022 until August 2022 plus the instalment of USD 200,000 due on 1 July 2022. Furthermore, as concluded above, the player has provided written evidence of having put the default in default on 2

September 2022, i.e. at least 15 days before unilaterally terminating the contract on 20 September 2022.

48. In this framework, the Chamber held that it has to be noted that in the case at hand the club bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties. Nonetheless, the club failed to remit any evidence of further payments to the player.

49. Thus, the DRC concluded that the player had a just cause to unilaterally terminate the contract on 20 September 2022, based on art. 14bis of the Regulations.

50. In line with the above, the Chamber rejected the club’s counterclaim. ii. Consequences

51. 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 club.

52. The Chamber observed that the outstanding remuneration at the time of termination,

coupled with the specific requests for relief of the player, amounts to EUR 366,668 (Salaries of June, July, August and September 2022 plus the instalment due on 1 July 2022).

53. Regarding the two fines issued by the club regarding the red card incident involving the player (on 1 September 2022), the Chamber decided to disregard it since, the first fine was issued without respecting the due process (right to be heard) and the second one was based on the very same incident, with a different, much higher fine. Therefore, the DRC decided to award the player the full September 2022 salary. pg. 8

REF. FPSD-8099

54. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR

366,668.

55. In addition, taking into consideration the Claimant’s request as well as 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 as from the relevant due dates until the date of effective payment.

56. Having stated the above, 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.

57. 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.

58. 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 non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

59. 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 the amount of USD 375,003 (i.e. October 2022 until June 2023; 9x USD 41,667) serves as the basis for the determination of the amount of compensation for breach of contract. pg. 9

REF. FPSD-8099

60. 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.

61. Indeed, the player found employment with CS Maritimo de Madeira. In accordance with

the pertinent employment contract, the player was entitled to approximately USD 22,000 per month. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of USD 132,000 (6x USD 22,000; January 2023 until June 2023).

62. 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 took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

63. In this respect, the DRC decided to award the amount of additional compensation of USD USD 125,001, i.e. three times the monthly remuneration of the player.

64. 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 368,004 to the player (i.e. USD 375,003 minus USD 132,000 plus USD 125,001), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

65. Furthermore, the player shall be entitled to the cost of his flight tickets as part of the compensation, i.e. BRL 44,066.71.

66. Lastly, taking into consideration the player’s 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 21 September 2022 until the date of effective payment. iii. Compliance with monetary decisions

67. 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. pg. 10

REF. FPSD-8099

68. 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.

69. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount due (including all applicable interest) to the player within 45 days of notification of the decision, failing which, at the request of the player, 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.

70. The club 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.

71. 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

72. 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.

73. 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.

74. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 11

REF. FPSD-8099

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Rene Ferreira dos Santos, is partially accepted.

2. The Respondent / Counter-Claimant, Al Raed, must pay to the Claimant the following amount(s): - USD 41,667 as outstanding remuneration plus 5% interest p.a. as from 1 July 2022 until the date of effective payment; - USD 200,000 as outstanding remuneration plus 5% interest p.a. as from 2 July 2022 until the date of effective payment; - USD 41,667 as outstanding remuneration plus 5% interest p.a. as from 1 August 2022 until the date of effective payment; - USD 41,667 as outstanding remuneration plus 5% interest p.a. as from 1 September 2022 until the date of effective payment; - USD 41,667 as outstanding remuneration plus 5% interest p.a. as from 21 September 2022 until the date of effective payment; - USD 368,004 and Brazilian Real (BRL) 44,066.71 as compensation for breach of contract without just cause plus 5% interest p.a. as from 21 September 2022 until the date of effective payment.

3. Any further claims of the Claimant / Counter-Respondent 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. The counterclaim of the Respondent / Counter-Claimant is rejected.

6. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment (including

all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent / Counter-Claimant 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.

7. The consequences shall only be enforced at the request of the Claimant / Counter-Respondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of

Players.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 12

REF. FPSD-8099

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 | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 13