FIFA - Decisión disputa Silva Lima 21092023

REF. FPSD-10261

Decision of the Dispute Resolution Chamber passed on 21 September 2023 regarding an employment-related dispute concerning the player Ismael Silva Lima BY: Frans DE WEGER (The Netherlands), Chairperson Michele COLUCCI (Italy), member Dana MOHAMED AL-NOAIMI (Qatar), member

CLAIMANT / COUNTER-RESPONDENT:

Al Faisaly Club, Saudi Arabia

RESPONDENT / COUNTER-CLAIMANT:

Ismael Silva Lima, Brazil pg. 2

REF. FPSD-10261

I. Facts of the case

1. The player Ismael Silva Lima, born on 1 December 1994, and the Saudi club, Al Faisaly concluded an employment contract valid as from 20 July 2021 until 19 July 2023 (cf. clause 6.1 of the contract).

2. According to art. 5 par. 1 of the contract, the player was entitled to a monthly salary of USD 66,667 net for the season 2021/2022.

3. In addition, following clause 5.2 of the contract, the player was entitled to a sign-on fee of USD 400,000, payable on 20 July 2021.

4. According to art. 6 par. 4 of the contract, the player was entitled to a monthly salary of USD 83,334 net for the season 2022/2023.

5. In addition, following clause 6.4.2 of the contract, the player was entitled to a sign-on fee of USD 400,000, payable “on 20 July 2021” (note: this is likely a typo, since it’s included in a section of the contract related to the season 2022/2023. Thus, it probably refers to 20 July 2022).

6. Art. 8 of the contract stipulated the following obligation for the player: “[to] 7. Apply his best efforts, with punctuality and without reservation, to the maximum of his

capabilities, in performing the activities and obligations provided for in this Contract, unless his health prevents him from doing so (…)

14. The Player must allow himself to be treated by a doctor/physiotherapist/chiropractor designated by the Club. Nevertheless, the Player shall have the right to a second opinion by an independent medical specialist of choice if he contests the opinion of the Club's doctor/physiotherapist/chiropractor. If there are still different opinions, the Player and the Club agree on accepting an independent third opinion (e.g. from a FIFA Medical Centre of Excellence), which will be binding on both Parties. The costs of any such third independent opinion will be covered by the

Club”

7. Art. 9 of the contract stipulated the following procedure for disciplinary sanctions:

“(..)

1. In the event that the Player commits a violation of any of his obligations under this Contract or the applicable regulations, the Club may impose disciplinary sanctions against the Player. The Club shall duly charge the Player and shall notify him in writing of the details of such charges. The Player shall be provided with an opportunity to respond to the charges.

(…)

3. Fines for minor offences which are imposed by the Club on the same day as the offence may not exceed the amount corresponding to one (1) day of the fixed monthly remuneration payable to the Player (the amount to be calculated by dividing the monthly salary by 30)

(…)

5. The Club shall notify the Player in writing at least 7 days prior to the hearing. The Player may be represented in disciplinary proceedings by a person (of any nationality) authorized by the Player for that purpose".

8. Art. 13 par. Of the contract stipulated the following:

2. If either Party terminates the Contract with just cause, following amount will have to be paid: ( .. . .... ........ ). If there is no agreement on the amount, compensation for breach of contract is pg. 3

REF. FPSD-10261 payable in accordance with Art. 17 of the FIFA Regulations."

9. On 5 June 2022, the club sent an email to the player, informing him that he had to provide a justification for his absences without permission on 3 and 4 June 2022.

10. On 7 June 2022, the player replied to the cluib, indicating that he informed the sports director and “then an unforeseen event happened” because he was solving “a very important thing”.

11. On the same date, the club replied and further requested to request for a further explanation for his absences on 5 and 6 June 2022.

12. On 1 August 2022, the club sent a “deduction letter” due to the player’s absences, informing the player that due to his absences from 27 to 29 July 2022, as well as for his absences from a preseason medical tests as well as from boarding a flight on 25 July 2022. The club notified a deduction of 30% of the player’s salary for July 2022, in accordance with parss. B.3, B4 and B.5 of the “SAFF List of Penalties”.

13. On 23 September 2022, the player, via his legal representative, sent a first default notice to the club, where he requested the payment of a total outstanding amount of USD 634,228.36 and granted 15 days to pay said amounts. In said letter, the player complained about illegal fines imposed against him in June, July and August 2022, which he deemed illegal as he could not defend himself. In said letter, the player acknowledged that he was absent from 27 July 2022 until 31 July 2022, but justified said absence since the club did not pay him his sign on fee, which was outstanding since 20 July 2022.

14. On 11 October 2022, the player, via his legal representative, sent a second letter to the club.

15. On 25 October 2022, the player sent a third letter to the club.

16. On 31 October 2022, the club replied to the player, indicating that, as to the salary deductions, the player was absent on 27 July 2022 and then missed fours flights on 25 July 2022, 28 July 2022, 3 August 2022 and 6 August 2022. In said letter, the club argued that in relation to the salary deductions for June, it was determined that the player was absent for four days and that, additionally, he missed the roll call at the start of the season. The club further elaborated that, in July, he was absent for six days, and in August, he was absent for a total of 25 days. According to said letter, all of these absence were communicated to him through email notifications, while the club noted that his lack of response or provision of unacceptable excuses led to the application of regulations and subsequent salary deductions as stipulated in the list of penalties and sanctions of SAFF.

17. On 19 of November 2022, the club informed the player that training would resume after the World Cup break on 29 of November 2022.

18. On 27 November 2022, the club sent a reminder to the player regarding the training resumption on 29 November 2022.

19. On 28 of November 2022, the club provided the player with an airplane ticket to return. pg. 4

REF. FPSD-10261

20. Between 30 November 2022 until 5 December 2023, the club sent various letter to the player notifying him of his absence since 29 November from training sessions, which included a summon to immediately join the first team training of the club.

21. On 5 December 2022, the player’s father in Brazil had a home accident with a shaving blade and was admitted to the hospital. The player attached a copy of a hospital report.

22. On 6 December 2022, the club sent a formal notice to the player, urging him to resume training and reminding him that he was in breach of his contractual commitments. The letter also stated that his behavior toward the club was considered abusive under Article 14 of the FIFA Regulations on the Status and Transfer of Players (RSTP). (Annex 14)

23. On 7 December 2022, the player sent a fourth default notice to the club.

24. In said notice, the player explained that his absence since 29 November 2022 was due to psychological issues, and attached a medical report to said notice. The player explained that he was suffering from anxiety and mental distress, making it difficult for him to adapt to work. The player also granted a 15-day medical leave starting from 1 December 2022. In addition, the player also raised concerns about unpaid salaries for June, July, and August 2022, amounting to USD 134,228.36, and attributed this non-payment to alleged illegal fines imposed by the club.

The player granted 10 days to remedy the default.

25. Between 7 December 2022, 9 December 2022, 10 December 2022, 11 December 2022,12

December 2022, the club sent new letters to the player, notifying him of his absences and asking him to provide reasons for his repeated absences.

26. On 13 December 2022, the club received a report from the head coach, Mr. Ante Mise, requesting disciplinary measures against the player for failing to meet his contractual obligations and respecting the team.

27. On 14 December 2022, the club once again requested the player to join the club for a medical examination with the club's doctor to determine his health status, as indicated in Article 8.14 of the contract.

28. In this respect, the club sent 32 default notices to the player (referred to as “deposition request”).

29. On 18 December 2022, the legal representative of the player sent a medical request of his doctor in Brazil, by means of which he granted him 15 days for health recovery from 16 December

2022.

30. The medical report stated the following: “(..) the patient reports he Is been having symptoms of anxiety for the last couple of months with progressive worsening. He is been also isolating himself from others (…). In addition, he frequently is under mental distress with associated tachycardia, insomnia and significant physical indisposition during day time (…) He is been experiencing difficulty to adapt to the country he is currently living in, which seems to be related to all his symptoms.

Today he was submitted to another psychiatrist evaluation. (…) So that, I prescribed pregabalin and psychotherapy in order to improve his symptoms. pg. 5

REF. FPSD-10261

Therefore, after the last medical evaluation, he needs excuse from his work activities for 15 more days for health recovering. (…) Dr Vicente Linhares Neto, MD Psychiatrist”

31. On 1 January 2023, the club sent a termination letter to the player, with the following contents: “(…) Thirdly: We remind the player of his duties among which is joining the training sessions of the first football team, as the player is absent for more than two weeks, although the club booked the player a flight ticket to return to Saudi Arabia and sent him a notification to immediately join the team, but unfortunately, the player failed to return.

We refuse the excuse of having a psychological issue, because the player is used to absence from training sessions after each vacation granted to him to fly to Brazil. The club had requested the player to immediately join the club to undergo a medical checkup and close supervision by the club's doctor by his letter dated on 14 December 2022 but as usually the player failed to join the club. (…) Therefore, AL-FAISALY FC had paid the player attention to join the first team trainings immediately

and if he considers himself suffering psychologically, which we are doubtful about, the player is legally obliged to come to be assessed, treated and supervised by the doctor of the club in accordance with Article 8 Paragraph 14 of the concluded contract between the two parties. The player failed to join the club despite the letters sent by the club, which constitutes a breach of obligations (…) Whereas the constant absence of the player is considered to be abusive behavior in accordance with Article 14 Paragraph 2 of FIFA Regulations. (…) Consequently, Al Faisaly club notifies by this letter the termination of the contract with player Ismael Silva.”

32. On 24 January 2023, the player sent a sixth notice to the club in response to the termination of the contract, emphasizing his improved health and readiness to resume his duties, while also addressing issues related to fines and unpaid salaries. The notice establish a deadline for the club to address the overdue payments and requests further flight arrangements.

33. On 2 August 2023, the player informed FIFA that he remained unemployed. pg. 6

REF. FPSD-10261

II. Proceedings before FIFA

34. On 18 May 2023, Al Faisaly lodged a claim before the FIFA Football Tribunal against the player for breach of contract without just cause and requested the payment of compensation in the amount of USD 1,750,000, detailed as follows: - USD 1,500,000 corresponding to the player’s salary for the season 2022/2023; - USD 250,000 corresponding to additional compensation (i.e. 83,3343).

35. According to the club, it has consistently honored its financial obligations to the player.

36. However, Al Faisaly argued that the player has developed a habit of being absent and leaving the training sessions and team camps whenever there is a break in the Saudi championship.

37. The club explained that, initially, the player did not participate in the training sessions with the first team during the summer preseason period, being absent from 27 July 2022, to 26 August

2022, for a duration of 30 days.

38. The club stated that the player was absent from 29 November 2022 until 1 January 2023, without a valid reason.

39. The club attached a copy of a receipt from “Alrajhi Bank”, dated 8 December 2022, indicating a transfer of USD 70,834 to the player’s bank account in Brazil, as well as a receipt dated 4

November 2022, for the amount of USD 83,335.

40. On 22 June 2023, the player provided his reply and simultaneously lodged a counterclaim.

41. The player requested the payment of the following amounts, plus 5% interest p.a. as from the due dates: - Outstanding remuneration: USD 230,062.36, corresponding to his salaries from June to December 2022; - Compensation: USD 500,004. - Legal expenses: USD 50,000

42. The Player denied breaching the contract and rejected the Club's claim that the contract was terminated with just cause.

43. The Player argued that the Club owed him overdue payments for various months, including June, July, August, November, and December 2022. The player explained that the club allegedly deducted fines from his salaries for alleged absences, leading to unpaid dues. In this respect, the Player claimed that the Club's deductions from his salary were illegal and unauthorized fines for absence, leading to significant amounts being withheld.

44. The Player contended that the Club's deductions were made in bad faith, with fines ranging from around 20% to 80% of his salary for different months due to alleged absences.

45. In particular, the player justified his request for outstanding remuneration as follows: pg. 7

REF. FPSD-10261

Absence Month Due Salary Amount Paid Amount Due Discount/Fine Explanation Days Player fined USD June 22 USD 66,667 USD 33,423.50 3, 4, 5 50% for 3 days of

33,243.50 absence USD 72,777.86 The player acknowledged that he only worked for 19 Player fined days and thus USD 27, 28, July 22 USD 36,258.86 50% for 4 days of made his pro36,559.00 29, 30 absence rata calculation from the original salary of USD 83,333. Player fined USD August 22 USD 83,334 USD 18,817 01-25 80% for 25 days of 64,517.00 absence Player fined USD November 22 USD 83,334 USD 70,834 29, 30 20% for 2 days of 12,500.00 absence Player was on USD medical leave December 22 USD 83,334 USD 0 31 N/A 83,334.00 for the entire month Total USD USD 159,333.22 USD

• -

389,447.20 230,113.98

46. The player highlighted that his medical condition, diagnosed by a psychiatrist, required medical treatment, and explained that he was eager to return to fulfil the contract after receiving medical clearance.

47. The player rejected the imposition of sporting sanctions against him.

48. In response to the counterclaim, the club asserted that it had consistently fulfilled its financial commitments towards the player, paying salaries and advances stipulated in the contract.

49. The club provided a document to support that it paid the November 2022 salary. The player's habit of absenteeism during breaks in the Saudi championship was highlighted, including his absence from training during the pre-season period from 27/07/2022 to 25/08/2022.

50. Despite the club's attempts to facilitate his return, the player repeatedly missed training sessions, resulting in 69 days of unexcused absence out of 180 working days.

51. The club emphasized the player's refusal to cooperate with medical evaluations.

52. The club deemed the player's behaviour abusive and a just cause for contract termination.

Accordingly, the club insisted in his request for compensation.

53. In its duplica, the player insisted in his initial position.

54. The player considered that the club’s representation of the facts is misleading. pg. 8

REF. FPSD-10261

55. The player further argued that the club only paid part of his salary of November 2022, meaning that USD 12,500 are still outstanding.

56. As to the document provided by the club, the player argued that said document is in fact a proof that the Club did not correctly pay his salary regarding November 2022.

57. According to the player, the club imposed an unreasonable fine of around 20% of the Player's salary for his 2-day absence in November. The player argued that the maximum fine the Club could impose, based on the contract terms, was USD 5,555.60, while the actual deduction was

USD 6,944.40.

58. The player considered that the Club's assertion that it had a just cause for the contract termination was done ins bad faith, since it disregarded his the Player's health issues and medical leave. The player considered that the termination was illegal since it was done during his leave, which ended on 23 January 2023.

59. The player was of the opinion that the club “that must be held liable for the premature termination of the Contract without just cause, and not the [himself] that is the weaker and innocent party“.

60. The player insisted to be paid his outstanding dues and compensation as mentioned in his replica and, in the alternative, should he pay any compensation, requested to reduce this amount “to the minimum as possible”. pg. 9

REF. FPSD-10261

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

1. 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 18 May 2023 and submitted for decision on 21

September 2023. Taking into account the wording of art. 34 of the October 2022 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.

2. 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 (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 Saudi club and a Brazilian player.

3. 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 (October 2022 edition), and considering that the present claim was lodged on 15 February 2023, the October 2022 edition edition of said regulations

(hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

4. 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

5. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

6. The foregoing having been established, the Chamber moved to the substance of the matter. pg. 10

REF. FPSD-10261

7. In this context, the Chamber acknowledged that the matter at stake concerns a breach of contract without just cause, where the club unilaterally terminated the contract as from 1 January 2023 due to the player’s absences.

8. On the basis of the information gathered during the proceedings, the Chamber observed that the parties started to have disagreements since July 2023, notably since the player’s initial absence

(starting on 27 July 2022 until 25 August 2022) during this month. The player argued that this absence was due to the club’s delay in paying his sign-on fee, which was due on 20 July 2023.

9. On this note, the Chamber considered that, in any case, being absent without prior notice for a potential delay of 7 days in the payment of a contractual amount, is not a correct way to solve the issue. Disputes and disagreements over payments are expected to be addressed through proper communication (incl. default notices), negotiation, and potentially legal channels, rather than through unilateral actions like being absent. The Chamber observed that this first unilateral action led to a series of further disagreements, misunderstandings, and unilateral actions from both

parties.

10. In addition, the Chamber could only observed that the player’s argument in this respect is contradictory, since in his justification, he only declared that he was absent because an “unforeseen event happened” because he was solving “a very important thing”. In the view of the Chamber, this excuse seems to be quite vague. Within the context of a professional contract, the Chamber considered that it would be expected from the player to provide a more detailed explanation about his absence.

11. Subsequently, the Chamber observed that, due to this absence, the club imposed a series of fines on the player, particularly on 1 August 2022.

12. In this respect, the Chamber confirmed that, indeed, the contract provided a framework in its art. 9 for imposing fines and disciplinary sanctions in case of contractual breaches from the player. This framework details the process for the imposition of fines and entitled the player a right to be heard, as well as provides clear deadlines for the notifications as well as for the amounts. However, from the evidence on file, the Chamber noted that there is no evidence that the player’s procedural rights were respected. In addition, the fines imposed upon the player appear to be excessive and inconsistent with the guidelines set forth in the contract. In addition, as observed by the Chamber, the fines were imposed following the “List of Penalties and Sanction of SAFF”, but the club did not provide a copy of said text.

13. In other words, as observed by the Chamber, in relation to the events of July-August 2023, both parties committed contractual breaches: the player for his non-justified (or insufficiently justified) absences, and the club for retaliating with abusive fines without respecting the player’s right to a due process.

14. Thereafter, the Chamber observed that disagreements between the player and the club escalated.

According to the club, the player had to be available since 29 November 2022. At that moment, the player was in Brazil. After many (almost daily) default notices sent by the club, the player explained

pg. 11 REF. FPSD-10261 that he had psychological issues, namely anxiety, which was diagnosed by a medical specialist. According to the player, this was worsened by a home accident occurred to his father.

15. In relation to said issue, the Chamber emphasized that the FIFA Football Tribunal is not in a position to directly assess mental health diagnoses. However, on initial examination, it appears that the player's psychological challenges (anxiety) were primarily triggered by work-related factors or by his work environment.

16. Being that the case, the Chamber understood that said issue should be resolved between the player and the club, particularly by trying to communicate and finding mutually agreeable solutions.

17. Furthermore, the Chamber noted that the contract stipulates (clause 14) a particular channel for addressing medical issues. Accordingly, the player was contractually bound to seek treatment from medical professionals designated by the club. However, the player unilaterally decided to be diagnosed by a psychiatrist in Brazil, without even consulting the club. In the view of the Chamber, clause 14 provides also sufficient rights to the player, as it entitles him with a right for a second opinion. Thus, the Chamber considered that the player should have communicated with the club to jointly appointing a medical doctor. The Chamber also noted that the clause does not prevent the player from suggesting a doctor in Brazil, provided that the club would have agreed to it (and, in any case, the player could have appointed a doctor of his choice as a second opinion).

18. All in all, the Chamber decided that it can be established that the player breached clause 14 of the contract. This implies that he cannot rely on his mental health diagnostic as a reason to not return to the club.

19. Furthermore, the Chamber recalled that the club served many default notices to the player (almost on daily basis), asking for his return, prior to terminating the contract on 1 January 2023. It therefore follows that the club clearly complied with the principle of ultima ratio.

20. In view of the above, the chamber conclude that the club terminated the contract with just cause. ii. Consequences

21. 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.

22. However, before examining the consequences of this termination, the Chamber deemed relevant to first examine the issue concerning the outstanding payments claimed by the player.

23. As previously mentioned, the club imposed a series of fines that did not follow the due process and were abusive as to their amounts. Consequently, the Chamber concurred that said fines must be disregarded and the player should receive his salaries in full.

24. Taking into account the evidence on file and the request of the player as well as the arguments of the club, the Chamber calculated that the total amount of USD 230,113.98 net is overdue and should be paid by the club to the player, as established in the following table: pg. 12

REF. FPSD-10261

Amount Month Due Salary Amount Paid Due

USD USD June 22 USD 66,667

33,423.50 33,243.50 USD 72,777.86 USD USD July 22 (i.e. player only worked 36,258.86 36,559.00 for 19 day) USD August 22 USD 83,334 USD 18,817 64,517.00 USD November 22 USD 83,334 USD 70,834 12,500.00 USD December 22 USD 83,334 USD 0 83,334.00

USD USD

Total USD 389,447.20 159,333.22 230,113.98

25. In this regard, the Chamber noted that the club’s receipt from 4 November 2022 (corresponding to one monthly salary) can be attributed to September or October 2022, which is consistent with the fact that these months are not claimed by the player.

26. In addition, 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 at the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of effective payment.

27. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the club by the player 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, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and depending on whether the contractual breach falls within the protected period.

28. 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.

29. In this regard, the Chamber observed that art. 13 established that the compensation is payable in accordance with art. 17 of the Regulations

30. As a consequence, the Chamber determined that the amount of compensation payable by the player to the club had to be assessed in application of the parameters set out in art. 17 par. 1 of the pg. 13

REF. FPSD-10261

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.

31. Bearing in mind the foregoing as well as the claim of the club, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until its term

32. In particular, the Chamber observed that, from the date of termination (1 January 2023