FIFA - Decisión disputa Leite Nascimento 26052023

REF. FPSD-8304

Decision of the Dispute Resolution Chamber passed on 26 May 2023 regarding an employment-related dispute concerning the player Matheus Leite Nascimento

COMPOSITION:

Frans DE WEGER (The Netherlands), Chairperson Mario FLORES CHEMOR (Mexico), member Roy VERMEER (The Netherlands), member

CLAIMANT:

Matheus Leite Nascimento, Brazil Represented by José Miguel Sampaio e Nora

RESPONDENT:

Cangzhou Mighty Lions FC, China PR pg. 2

REF. FPSD-8304

I. Facts of the case

1. On 5 November 2019, the Brazilian player, Matheus Leite Nascimento (hereinafter: the Player or the Claimant), and the Chinese club, Cangzhou Mighty Lions FC (hereinafter: the Club or the Respondent) concluded an employment contract (hereinafter: the contract) valid as from 1 January 2020 until 31 December 2020.

2. For the sake of good order, it is noted that per the information retrieved from Transfer Matching System (TMS), the Respondent was previously named “Shijiazhuang Yongchang FC” until 7 June 2021, when changed its name to “Cangzhou Mighty Lions FC”.

3. According to the contract, the Player was entitled to a monthly net salary of EUR 100,000 payable on the 15-day of the following month.

4. In accordance with clause 5.4 of the contract, inter alia: “(i): When the official summer transfer window of season 2020 closes, if [the Claimant] is still selected for [the Respondent] first team, [the Respondent] shall pay another 300,000 Euros net to [the Claimant];

(ii): Each time [the Claimant] starts the league match and plays over 45 minutes, [the Respondent] shall pay to [the Claimant] 20,000 Euros net; each time substitutes and plays

over 20 minutes, 10,000 Euros net; (iii): At the conclusion of season 2020, [the Claimant] has achieved 10 goals, assistances and/ or penalty suffered, [the Respondent] shall pay to [the Claimant] another 200,000 Euros net, 20 goals, assistances and/or penalty suffered, 400,000 Euros net (iv): League matches in season 2020 have a total length of 2700 minutes, if [the Claimant] plays over 50% of the total minutes and [the Respondent] does not relegate to the Chinese second division, [the Respondent] shall pay to [the Claimant] another 300,000 Euros net; (v): League matches in season 2020 have a total length of 2700 minutes, if [the Claimant] plays over 50% of the total minutes, [the Respondent] promote to ACL, [the Respondent] shall pay to [the Claimant] another 200,000 Euros net; […]”.

5. Clause 6 of the contract reads as follows: “League matches in season 2020 have a total length of 2700 minutes, if [the Claimant] plays over 65% of the total minutes and [the Respondent] does not relegate to the Chinese second division, both parties agree that the Contract shall be automatically extended to December 31 2021 with all financial agree at conditions remaining the same”.

6. On an unspecified date, the Player concluded a new contract with the Chinese club Zhejiang Professional FC, valid as from 1 February 2021 until 31 January 2022. pg. 3

REF. FPSD-8304

II. Proceedings before FIFA

7. On 22 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 Claimant

8. The Claimant lodged a claim for overdue payables and compensation for breach of

contract. Overdue payables

9. The Claimant requested the amount of EUR 70,000 as the remaining salary for the last instalment (December 2021) as agreed in clause 5 of the contract.

10. The Claimant further requested the amount of EUR 300,000 net as agreed in article 5.4 (iv).

The Claimant specified that: “In the season 2020 the Player played in 18 games of 20 available (14 in the initial line-up and 4 as a used substitute), in a total 1480 minutes of 1800 available, given the reduction of the calendar given the pandemic of Covid-19, then more than 50% of the available minutes, specifically 82,2% and the Club was not relegated to Chinese Second Division, and still playing in the Chinese Premier League”.

11. The Claimant also requested that the amount of EUR 370,000 “must be increased by an interest rate of 5% of the net amount of 34.060 Euros from the date of due, specifically 3rd June 2022, till the date of effective payment”.

Termination of the contract

12. According to the Player the conditions of clause 6 of the contract were fulfilled and consequently the contract was extended until 31 December 2021, as according to him, he played 82.2% of the matches in 2020 and the Club was not relegated to the Chinese Second Division and plays in the Chinese Premier league.

13. Moreover, the Player argued that he was forced to find another club and signed with a club of a lower division earning a total amount of EUR 200,000.

14. Accordingly, the Cub terminated the contract without just cause and he is entitled to compensation in accordance with art. 17 of the Regulations on the Status and Transfer of Players (RSTP) to EUR 1,200,000 plus 5 % interest per month of delay from the due date until the effective payment.

15. Finally, the Claimant requested sporting sanctions on the Club.

pg. 4

REF. FPSD-8304

b. Position of the Respondent

16. As to the remaining salary the Club indicated that all salaries were paid, however, as to the bonuses, the Club argued that the amount due is EUR 70,000 and not EUR 300,000. The Club provided the following calculations (quoted verbatim): “(i) € 300.000 net, done;

(ii) "starts the games and played more than 45 min...", total 14 games X € 20.000 = € 280K; "each time substitutes and play more that 20 min...", total 4 games X € 10.000 = € 40K; (iii) He "achieved more than 10 goals, assistance or penalty suffered...", verificado, total € 200K Total of bónus = € 820K (net) The Club has already paid € 750K (net)”.

17. In its reply, the Club stated that it did not extend the contract, as the Club was facing some financial difficulties and could not afford the salary’s player. Additionally, the Club stated that conditions of clause 6 were not meet as it was relegated to the Chinese second division and thus, the contract was not automatically extended until 31 December 2021.

18. The Club requested the following relief: • “Rule that the present submissions are admissible; • Issue a finding that the Respondent shall pay the remaining bonus to the Claimant for an amount equal to EUR 70,000 net. Besides, the Respondent shall not pay any other remuneration to the Claimant. • Rule that the bonus to be paid by the Claimant is net of taxes; • Confirm that the Respondent shall not pay any travel, medical, accommodation or other expenses claimed by the Claimant; • To the extent that any costs of these proceedings are to be paid by the parties, rule that Claimant shall be responsible for payment of such costs”.

c. Rejoinder of the Claimant

19. As to the relegation, the Claimant argued that although the Club finished in 16th place it continued to play in the Chinese Super League and was never, effectively, relegated to a lower division.

20. The request of relief of the Claimant remained unchanged. However, as to the interests the Claimant requested 5% interest on the claimed amounts a from 15 January 2021 until the date of effective payment.

d. Final comments of the Respondent pg. 5

REF. FPSD-8304

21. The Respondent failed to submit its final comments within the stipulated timeframe provided.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

22. 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 22 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.

23. Subsequently, 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 (May 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 from Brazil and a club from

China.

24. 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 22 November 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

25. 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.

c. Merits of the dispute pg. 6

REF. FPSD-8304

26. 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

27. The foregoing having been established, the Chamber moved to the substance of the matter, and noted that the case at hand pertains to a claim for outstanding remuneration and compensation for breach of contract lodged by the Player against the Club.

28. The Player claims that (a) the Club failed to pay the remaining salary of December 2021

(EUR 70,000) and the bonus of EUR 300,000 in line with clause 5.4 (iv) of the contract; and (b), the contract should be extended until 31 December 2023 considering that the conditions of clause 6 of the contract were fulfilled, thus the Player requested the payment

of the residual value of the contract.

29. The club, on the other hand, alleges that (a) it complied with all its financial duties regarding the salaries and that the outstanding bonus that the Club owns the Player is EUR 70,000; and (b) such contract was not extended and the conditions of clause 6 of the contract were not fulfilled.

30. In this context, the DRC acknowledged that its task was to determine the following:

a. Is the player entitled to the outstanding remuneration of EUR 370,000? b. Was the employment contract validly extended until 31 December 2021? Is the player entitled to the outstanding remuneration for EUR 370,000?

31. The Chamber proceeded to examine these issues and based on the evidence presented by the parties, assessed whether the claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the latter had a valid justification for not having complied with its financial obligations.

32. With regards to December salary, the Chamber first noted that in the case at hand the Respondent bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties.

33. Nonetheless, the Chamber noted that the Respondent has not provided evidence in this regard. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, the Respondent is held liable to pay the Claimant EUR 70,000. pg. 7

REF. FPSD-8304

34. With regards to the bonus of EUR 300,000, the Chamber noted that the Club acknowledged that it owed the amount of EUR 70,000 related to a bonus payment. The Chamber concluded that in line with the principle pacta sunt servanda, the Player is entitled to EUR 70,000, as this is not disputed by the Respondent.

35. Subsequently, 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 EUR 140,000 at the rate of 5% p.a. as of 16 January 2021 until the date of effective payment.

36. As to the remaining bonus of EUR 230,000 requested by the Claimant in accordance with clause 5.4 (iv), the Chamber recalled the wording of said clause: “League matches in season 2020 have a total length of 2700 minutes, if [the Claimant] plays over 50% of the total minutes and [the Respondent] does not relegate to the Chinese second division, [the Respondent] shall pay to [the Claimant] ut another 300,000 Euros net”.

37. Based on the evidence provided by the parties, the Chamber was able to corroborate that the Claimant played 1480 minutes and thus, the first condition of clause 5.4 (iv) was fulfilled. As to the second condition, the Claimant bore the burden of proving that in fact the club was not relegated. On this point, the documentation provided by the Club shows that the Club finished in the last position i.e., 16th position, and according to said documentation by losing the playoffs and remaining in the 16th position, the Club would be directly relegated to the 2021 China League One. Thus, as per the information on file, it appears that the Club was in fact relegated – which in principle would not entitle the Claimant to the bonus sought, for the conditions established therein were not fulfilled.

38. On the other hand, the DRC noted that the Claimant has provided additional documentation, such as the results of the different matches played by the Club between 26 July 2020 and 11 November 2020, in support of the assertion that the Club was not relegated. In this respect, the DRC found that such documentation is insufficient and does not enable the Chamber to determine that the Club was in fact not relegated. Thus, the Chamber concluded that the Claimant did not meet his burden of proof of art 13 par. 5 of the Procedural Rules and the Player’s claim on this point shall be rejected.

Was the employment contract validly extended until 31 December 2021?

39. Subsequently, the DRC analysed whether the employment contract was validly extended between the parties until 31 December 2021.

40. The Chamber observed that clause 6 of the contract enabled the parties extend the contract until 31 December 2021, subject to two conditions. At the same time, the Chamber also observed that the Player signed a new contract with the club Zhejiang Professional FC valid as from 1 February 2021 until 31 January 2022. pg. 8

REF. FPSD-8304

41. The Chamber determined accordingly that by signing a new contract, the Player tacitly recognized the contract’s term as being of one year only. Additionally, the Chamber noted that the Claimant never put the club in default for at least one year after the contract had already elapsed – which in the Chamber’s view speaks to the principle of venire contra factum proprium and estoppel.

42. In light of the above, and in accordance with the principle of estoppel, the Player is prevented from acting in a different manner as he generated the legitimate expectation on the Respondent that he acquiesced to the contract’s term for one year only. Moreover, the Chamber noted that the Player did not meet his burden of proof in order to demonstrate that the conditions of said clause, as mentioned above, had been triggered – in that the Chamber was not able to determine that the Club was in fact not relegated.

43. Consequently, the DRC decided that the Player’s position on this matter should be rejected, meaning that no compensation is to be awarded to the Player, since no breach of contract took place and the Contract expired naturally. ii. Compliance with monetary decisions

44. 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.

45. 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.

46. 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.

47. 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. pg. 9

REF. FPSD-8304

48. 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

49. 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.

50. 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.

51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-8304

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Matheus Leite Nascimento, is partially accepted.

2. The Respondent, Cangzhou Mighty Lions FC, must pay to the Claimant the following amount: -EUR 140,000 as outstanding remuneration plus 5% interest p.a. as from 16 January 2021 until the date of effective payment.

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 pg. 11

REF. FPSD-8304

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. 12