FIFA - Decisión disputa Marques Amorim 21092023

REF. FPSD-11090

Decision of the Dispute Resolution Chamber passed on 21 September 2023 regarding an employment-related dispute concerning the player Artur Jorge Marques Amorim

COMPOSITION:

Frans DE WEGER (The Netherlands), Chairperson Dana MOHAMED AL-NOAIMI (Qatar), member Michele COLUCCI (Italy), member

CLAIMANT:

Artur Jorge Marques Amorim, Portugal Represented by Duarte Costa

RESPONDENT:

Al-Bataeh, United Arab Emirates pg. 2

REF. FPSD-11090

I. Facts of the case

1. On 30 July 2022, the Portuguese player Artur Jorge Marques Amorim (hereinafter: the Claimant or the Player) and the Emirati club Al-Bataeh (hereinafter: the Respondent or the Club) concluded an employment contract valid until 30 June 2023.

2. Between 27 April 2023 and 6 May 2023, the parties had conversation regarding the signature of a new employment contract.

3. On 6 May 2023, the Respondent (allegedly) sent a draft of the new employment contract to the Player and to the Player’s agent via WhatsApp.

4. On the same date, the Player’s Agent requested some changes to be implemented and the Respondent replied “ok”.

5. On 7 May 2023, the parties (allegedly) signed a new employment contract (hereinafter: the Contract) valid from 1 July 2023 until 30 June 2025.

6. Art. 5 of the Contract reads as follows: The club will pay the amounts shown below to the player net without any taxes or fees a follows: - Contract advance $40,000 payable on 1-7-2023, 1-72024 -A contract advance of$40,000, payable on 31-01-2024, 31-01-2025 -A monthly salary of $35,000, paid at the end of each calendar month from 01/07/2023 to

30/06/2025

7. Art. 6 of the Contract reads inter alia as follows: The First party provides to the second party the following:- Traveling Tickets 3 economy class tickets, round trip to and from his country of residence each year and during the contract period.

A House A-The first party pays to the second pai1y a housing allowance of 40,000 thousand dirhams (only forty thousand dirhams to change) in addition to the monthly salary

8. Art. 8.17 of the Contract reads as follows: 17/1. If the first party wishes to terminate the contract, negotiations will take place between the two parties to terminate the contract 17/ 2. If the second party wishes to terminate the contract during the sports season, he must pay an amount of USD 2,000,000 only, two million US dollars, provided that the written consent of the first party is obtained for termination. pg. 3

REF. FPSD-11090

9. On 16 May 2023, the Player’s Agent sent a message stating that “Artur already signed the contract almost one week ago. We are waiting a copy with the club signature. There is any problem?”

10. On 24 May 2023, the Claimant sent an email to the Respondent requesting to be provided a copy of the Contract.

11. On 2 June 2023, the Player’s Agent sent a message stating that “Hello my friend. Hope you are doing fine. We have a big problem in hands. Artur signed a contract and we don't have a copy. ls big problem for the player. He is not free to sign for any other club and he don’t have contract.”

12. On the same date, the Respondent replied stating “I will send declaration letter as the player free to you soon”.

13. Between 2 June and 15 June, the Player’s representative and the Respondent exchanged messages regarding the delivery of the “declaration letter”.

14. On 15 June 2023, the Player’s representative sent several messages stating “Artur is coming in

beginning of the season. Witch (sic) dah he need to be there to start the pre season? How do i look in front of the player? He sign one contract and we don't have the copy because you kept it in the club. Can you imagine the player situation? Don’t need to send it anymore. Player is coming in the beginning (sic) of the season to follow the 2 years contract that we signed. Just tell me the date he need to be there.”

15. On the same date, the Respondent replied that “We didn't sign any contract. I will send the declaration of the player tomorrow.”

16. The Player’s representative replied: “In this message [referring to a voice note] you say clearly that the contract is waiting to be signed by the club and stamped so you can give us a copy”.

17. The Respondent replied to the above stating “If you are well-versed in FIFA law, regulations, and the KAS Court, you will know that it does not count, nor does the court consider any agreement or contract except with the approval and signature of both parties of all parties to it”.

18. On 17 June 2023, the Respondent sent a “notice of non-renewal of the contract” to the Claimant dated 15 June 2023 via WhatsApp stating that “your contract has not been renewed based on the decision of the technical committee and the club's board of directors, and we also acknowledge that there is no official or legal connection between the club and the player after the expiration date of the aforementioned contract 06-30-2023”.

19. According to the Claimant, on 20 July 2023, the Claimant concluded an employment contract with the Portuguese club Farense (hereinafter: Farense) valid until 30 June 2024 with an overall net remuneration of EUR 74,700.

20. According to the information available in TMS, the Claimant and Farense concluded an

employment contract on 3 July 2023 with an agreed remuneration of EUR 104,400. pg. 4

REF. FPSD-11090

II. Proceedings before FIFA

21. On 27 July 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

22. The Claimant states that on 7 May 2023, “after negotiations between the parties and the formal proposal of the contract accepted by the player (after reviewed by his agent) the claimant player signed the contract in the Respondent club facilities.”

23. The Claimant sustains that the Contract contains the essentialia negotii, based CAS jurisprudence: “1) the duration of the agreement. 2) the subordination of the employee to the employeer; 3) the personal performance; and, 4) wages.”

24. The Claimant argues that the communications were conducted via WhatsApp and “that cannot be considered a less credible evidence even more because all the messages enclosed to the claim were notarized which gives them legality and a extremely high degree of certainty.”

25. In the view of the Claimant the DRC “should be comfortably satisfied that the so called “contract of a non-national professional football player” is, in fact, a valid and binding employment agreement”.

26. Having established the above, the Claimant considers that on 15 June 2023 the Respondent repudiated the Contract, and this is tantamount to unilateral termination by the club without just cause.

27. Based on the above, the Respondent shall pay compensation “for the damages incurred by the player as a consequence of its early termination, which in consideration for the provision in article 17/2 of the contract, shall be USD 2,000,000”.

28. Alternatively, the Claimant requests compensation equal to the residual value of the Contract in the amount of USD 1,000,000 net.

29. The Claimant filed the following requests for relief: In view of the above, the Claimant player respectfully requests FIFA to: i) Determine that the “Contract of a non-national professional football player” signed on 7 May 2023 between claimant player and respondent club, is valid and binding. ii) Determine that the respondent club unilaterally terminated the employment contract with the claimant player, without just cause. iii) Order the respondent club to pay the claimant player for breach of contract of $2.000.000 USD pg. 5

REF. FPSD-11090 as agreed compensation plus 5% of interest as from 15 June 2023, or alternatively, the amount of $1.000.000 USD as the residual value of the contract, plus interest of 5% as of 15.06.2023 until the date of effective payment. This payment shall be made on a net basis, free of any taxation, the Respondent being responsible for the filling and payment of all taxes relating to this payment due to the Claimant. iv) Impose sporting sanctions to the Respondent club in accordance with article 17/A of the FIFA RSTP. v) Order the Respondent to bear any costs incurred with the present procedure. b. Position of the Respondent

30. Despite being invited to file its position, the Respondent failed to reply to FIFA.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

31. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the DRC” or “the Chamber”) 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 27 July 2023 and submitted for decision on 21 September 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.

32. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (May 2023, it is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Portuguese player and an Emirati club.

33. 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 27 July 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

34. 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, pg. 6

REF. FPSD-11090 including without limitation the evidence generated by or within the Transfer Matching System (TMS). c. Merits of the dispute

35. 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

36. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the claim is for breach of contract in relation to the alleged conclusion of a new contract extending the contractual relationship between the parties and furthermore it underlined that the claim remains uncontested by the Respondent.

Was the Contract effectively and validly concluded?

37. In this regard, the Contract allegedly sent by the Respondent on 7 May 2023 via WhatsApp, is of pivotal importance. The Chamber acknowledged that by means of such correspondence, the Club clearly and expressly manifested to the player its intention to extend the employment contract for two additional seasons, as well as formalized the financial conditions that would be applied thereon. After the parties had allegedly agreed the terms of the extended contractual relationship, the Claimant states that it signed a new employment contract albeit the Respondent failed to deliver a copy to him.

38. In proof of the latter, the Claimant relies on the WhatsApp messages exchanged with the alleged representative of the Respondent. The WhatsApp conversation is held with a contact saved as “Emad CEO Al Bataeh”. Considering the fact that the conversation submitted last several months and includes a great number of messages exchanged between the Player’s representative and the mentioned person on behalf of the Respondent, it appears to be a legitimate and credible evidence. Moreover, the ”declaration letter” stating that the Claimant was no longer employed was also sent via the same WhatsApp contact. In addition, the Claimant has provided a notarised copy of the full conversation between the parties.

39. Furthermore, the Chamber underscored that the Respondent has not replied to the claim and therefore no argument has been filed against the validity of this piece of evidence.

40. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence which dictates that, in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee, it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship and the remuneration payable by the employer to the employee. pg. 7

REF. FPSD-11090

41. In casu, the Contract provides for the duration of the employment relationship and the remuneration payable to the player. Moreover, it clearly stipulates that the player is employed as a footballer with the club.

42. The Chamber noted that the document provided is unsigned. However, the Chamber underscored that the consent of the Respondent to enter into the Contract might be inferred from other means, such as the fact that it was the Respondent who drafted in its own letterheaded paper and sent the Contract to the Claimant for its review, and the fact that the Respondent failed to react after several messages from the Claimant and his representative requesting to be provided a signed copy of the agreement.

43. Thus, after a thorough analysis of the documentation on file, the Chamber concluded that all required elements were included in the document filed by the player. In other words, the Chamber understood that the document filed by the Claimant indeed included all the relevant information at the basis of an employment relationship between contractual parties and therefore the Chamber concluded that the Contract is in fact a valid and binding employment contract and shall be considered in the case at stake, as the contractual basis of the present dispute.

44. Against this background, it could be concluded that the Respondent was initially interested in maintaining/extending its employment relationship with the Claimant but at some point, for unknown reasons, it lost interest in the Claimant’s services.

45. From the analysis of the WhatsApp conversation between the parties, the Chamber observed that

after the alleged signature of the Contract, the Respondent had an inconsistent behaviour. At the beginning the Respondent states that no contract had been signed. However, at a later stage the Respondent states that “If you are well-versed in FIFA law, regulations, and the KAS Court, you will know that it does not count, nor does the court consider any agreement or contract except with the approval and signature of both parties or all parties to it”. Thus, from the analysis of the evidence submitted by the Claimant, the Chamber was convinced that an agreement was found between the parties.

46. To this extent, the Chamber deem that: (i) the Claimant could establish to a comfortable satisfaction degree that the parties did mutually agree upon the conclusion of the Contract; and

(ii) the Respondent cannot benefit from its position of failing to provide a signed copy of the Contract to the Claimant.

47. Based on the foregoing, the Chamber endorsed the Claimant’s position as to the validity of the employment contract and determined that the latter is valid and biding for the parties.

In the affirmative, was the Contract terminated without just cause by the club?

48. The Claimant sustains that on 15 June 2023 the Respondent repudiated the Contract, and this constitutes a termination without just cause.

49. In this regard, the Chamber noted that on 17 June 2023, when the Respondent sent a letter pg. 8

REF. FPSD-11090 informing that the Claimant’s employment had not been renewed, the Claimant could consider with an adequate degree of certainty that the Respondent considered that no employment relationship existed and therefore, the Respondent had decided to terminate the Contract.

50. In this context and bearing in mind the aforementioned considerations, the Chamber concluded that on 17 June 2023 the Respondent terminated the Contract without just cause. 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 Respondent.

52. The Chamber proceeded with 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.

53. 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.

54. 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.

55. 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. Based on art. 5 of the Contract the Claimant is entitled to 4 “contractual advance payments” of USD 40,000 and 24 monthly salaries of USD 35,000, all “net”.

Consequently, the Chamber concluded that the amount of USD 1,000,000 net (i.e. the residual

value) serves as the basis for the determination of the amount of compensation for breach of contract.

56. 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 pg. 9

REF. FPSD-11090 contract in connection with the player’s general obligation to mitigate his damages.

57. Indeed, the player found employment with Farense. In this respect, the Chamber observed that the document provided by the Claimant is different to the one available in TMS. In the absence of a reasonable explanation from the Claimant for this disparity, the Chamber decided to take into consideration the amount available in TMS and understood that the Claimant successfully mitigated EUR 104,400, equal on date of termination (i.e. 17 June 2023) to USD 114,213.

58. 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.

59. In this respect, the DRC emphasised that the termination did not take place due to overdue payables and therefore additional compensation is not applicable in the case at hand.

60. 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 885,787 net to

the player (i.e. USD 1,000,000 minus USD 114,213), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

61. 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 date of termination (i.e. 17 June 2023) until the date of effective payment. iii. Compliance with monetary decisions

62. 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.

63. 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.

64. 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.

65. The Respondent shall make full payment (including all applicable interest) to the bank account pg. 10

REF. FPSD-11090 provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

66. 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

67. 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.

68. 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.

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

REF. FPSD-11090

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Artur Jorge Marques Amorim, is partially accepted.

2. The Respondent, Al-Bataeh, must pay to the Claimant the following amount(s): - USD 885,787 as compensation for breach of contract without just cause plus 5% interest p.a. as from 17 June 2023 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. 12

REF. FPSD-11090

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