FIFA - Decisión disputa Viera de Souza 21092023

REF. FPSD-8865

Decision of the Dispute Resolution Chamber passed on 21 September 2023 regarding an employment-related dispute concerning the player Lucas Viera de Souza COMPOSITION: Frans de Weger (Netherlands) , Chairperson Michele Colucci (Italy) , member Dana Mohamed Al-Noaimi (Qatar) , member CLAIMANT / COUNTER-RESPONDENT: Lucas Viera de Souza, Brazil Represented by J.Rebelo da Silva

RESPONDENT / COUNTER-CLAIMANT:

APOEL NICOSIA, Cyprus pg. 2

REF. FPSD-8865

I. Facts of the case

1. On 19 August 2021, the Brazilian player, Lucas Vieira de Souza (hereinafter: Claimant/ Counter-Respondent or player) and APOEL NICOSIA (hereinafter: club or Respondent/CounterClaimant) concluded an employment contract (hereinafter: contract) valid as from 19

August 2021 until 31 May 2023.

2. According to the contract, the club undertook to pay the player: - a monthly salary of EUR 15,000 net - 31 August 2021 until 31 May 2022; - a monthly salary of EUR 15,000 net - 31 August 2022 until 31 May 2023

3. On 29 July 2022, the player and the club agreed to terminate the contract, and concluded a mutual termination agreement, in accordance with which the parties agreed to the following terms: 1. “The preamble of the present agreement constitutes an integrated part of it.

2. The Club recognizes the debt to the Player for £200,000, as well the player accepts this amount as the total amount moved to him, payable after CAS final and binding decision.

3. If CAS confirms the FIFA decision, or even if it reduces it and as result the Parties will remain liable to pay compensation to the Chinese club, both Parties agree that this compensation will

be paid by them by ½.

4. The Parties hereby declare that they have no future claim whatsoever against each other for the termination of the employment relationship between them and further declares that the present agreement fully settles all differences between the parties.

5. The Parties agree that the Guarantee Agreement dated 13/08/2021 signed between them is hereby mutually terminated and of no longer legal validity or enforcement and no longer imposes any contractual obligations on the Player.

6. The Club declares that with signing the present agreement, the Player is free to sign any contracts with any Club he wants, apart from a Cyprus club and the Club has no claim from the Player.

IN WITNESS WHEREOF the parts here to set their respective hands the date as above written.”

4. On 21 April 2022, the Dispute Resolution Chamber under case ref. FPSD-3313 decided that the Player had unilaterally terminated the contract without just cause and is therefore to be held responsible for the consequences thereof.

5. The DRC further determined that the club, is jointly and severally liable for the payment of the amount of EUR 200,000 as compensation.

6. On 8 May 2022, the player was notified by FIFA that “a ban from playing in official matches has been implemented by FIFA as today up, until the due amount is paid” with “the maximum duration of the restriction shall be of up to six months”, and the respondents member association (Cyprus, Brazil, Portugal and Saudi Arabia)“is requested to immediately implement pg. 3

REF. FPSD-8865 on the respondent, the Player Lucas Vieira de Souza, if done yet, a ban from playing in official matches”

7. On 9 August 2022, in order to play, the player fully paid the amount as per FIFA’S decision FPSD-3313 and on 12 August 2022 he paid EUR 3,014.00 in interest, in a total of EUR

203.014,00

8. As per the prior decision the club was jointly and severely liable to pay the amount as per

FIFA’S decision FPSD-3313, however it failed to do so.

9. Moreover, the player indicated that the club failed to pay his “outstanding salaries owed to him in the amount of € 200,000,00, nor did it pay the half that it was responsible for bearing in the FIFA process with reference no. FPSD-3313, which the player had to pay.”

10. On 24 December 2022 the player sent a default notice to the club requesting payment of the amount of EUR 300,000, granting it a deadline of ten days to comply with its financial obligation(s).

II. Proceedings before FIFA

11. On 11 January 2023, the player 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

12. In his claim, the player argued that the club failed to comply with its financial obligations, moreover that the club was always jointly and severally liable to pay the debt as per FIFA

DRC decision FPSD-3313.

13. The player requested the following relief: - “Establish that Apoel Nicosia is liable to pay him the amount of 200.000,00 EURO

(thirty thousand Euro), plus interest since 12.08.2022 until payment is made, as consequence of the outstanding salaries. - Establish that Apoel Nicosia is liable to pay him the amount of € 100.000,00, plus interest since 21.04.21, referring to the half that it was responsible for bearing in the FIFA process with reference no. FPSD-3313, which the player had to pay, in terms of right of subrogation over the Club result of the joint and several liability - Condemn the Club, as the sole responsible for the present procedure, to bear all the proceedings costs incurred in the matter before FIFA. - Determine that the amounts in which the club is doomed to be deposited in the bank account with IBAN PT50 0018 0003 4047 7408 02091 (for international transfers).

• impose to the club the sanctions mentioned in the no. 4 of article 12bis of RSTP” pg. 4

REF. FPSD-8865

b. Position of the club

14. In its reply, the club confirmed that it signed a termination agreement with the player, but alleged that the agreement as submitted by the player was forged.

15. In this context, the club indicated the following: “First Forgery “The Club recognises the debt to the Player for €200,000, as well the player accepts this amount as the total amount owed to him.” “The Club recognises the debt to the Player for €200,000, as well the player accepts this amount as the total amount owed to him, payable after CAS final and binding decision.”

Second Forgery Clause no 3 of the authentic termination agreement has been totally removed. This clause states the following: “The Parties agree that in order for the Player to be prematurely released from the Club and sign with the club from Saudi, he shall pay the amount of EUR 200,000. This amount shall be set off against the Club’s debt towards the Player and the Club will no longer be indebted to the Player.”

16. The terms of the termination agreement provided by the club can be stipulated as follows:

1. The Club recognizes the debt to the Player for €200,000, as well the player accepts this amount as the total amount owed to him.

2. The Parties agree that in order for the Player to be prematurely released from the Club and sign with the club from Saudi, he shall pay the Club the amount of EUR 200,000. This amount shall be set off against the Club's debt towards the Player and the Club will no longer be indebted to the Player.

3. If CAS confirms the FIFA decision, or even if it reduces it and as a result the Parties will remain liable to pay compensation to the Chinese club, both Parties agree that this compensation will be paid by them by ½.

4. The Parties hereby declare that they have no further claim whatsoever against each other for the termination of the employment relationship between them and further declares that the present agreement fully settles all differences between the parties.

5. The Parties agree that the Guarantee Agreement dated 13/08/2021 signed between them is hereby mutually terminated and of no longer legal validity or enforcement and no longer imposes any contractual obligations on the Player.

6. The Club declares that with signing the present agreement, the Player is free to sign any contracts with any Club he wants, apart from a Cyprus club and the Club has no claim from the Player.”

17. Regarding the guarantee agreement, the club indicated, that it was signed by the player as such “confirming that in case our club would be ordered to pay any compensation to the Chinese club, he would fully cover and pay this compensation. In addition to this, the Player also accepted to pay a penalty of EUR 50,000.” pg. 5

REF. FPSD-8865

18. The club mentioned that the player started negotiations with a Saudi club, for a more beneficial future remuneration.

19. On 21 July 2022, the club granted the right to the player to negotiate with aforesaid club,

stipulating the following: “Dear Lucas, Following your request of today, we are confirming that you are granted the right to negotiate with club Al Khaleej from Saudi Arabia for a potential transfer to this club. This right is valid until 25 July 2022 and it is limited to negotiating with this club. It does not give you the right to travel to Saudi Arabia or to refrain from complying with your contractual obligations towards our club. Should you wish to transfer to this club, our club must first consent to the relevant transfer terms.”

20. According to the club, the player indicated that he would appeal the FIFA DRC decision to CAS and on 28 July 2022, when the termination agreement was signed, the player had very well known that: a) He had never sent, on time, the hard copies of his statement of appeal.

b) As a result, he had never really filed any appeal against the FIFA DRC decision.

21. Accordingly, the club indicated that the conclusion of the termination agreement was “the result of fraud committed by the Player and as a result, our club declares that it is not bound by the terms of the termination agreement which were agreed as a result of fraud and which are

the following:

1. Clause 4 – with which our club agreed to assume ½ of the compensation which CAS could decide in favor of the Chinese club. ii. ii. Clause 6 – with which our club agreed to waive any rights under the guarantee agreement.”

22. Additionally, the club stated that “even if the player had never defrauded our club into signing the termination agreement and accepting clauses 4 & 6 and even if the termination agreement was duly valid and enforceable, our club would still not be obliged to pay any compensation to the Chinese club because our club’s contractual obligation to the Player to contribute to the payment of the compensation was conditional upon the issuance of a decision from CAS. Clause 4 of the termination agreement would be triggered only after the CAS decision on the Player’s appeal.”

23. The club further argued that FIFA is not competent to hear the claim, even if the termination agreement was valid, on the basis of the fact that “from the moment that the pg. 6

REF. FPSD-8865

DRC award has been settled, if the Player wants our club to contribute, this is not an employment related dispute and he has no right to request such a decision by the DRC. This is a civil dispute and cannot be heard and decided by the FIFA DRC.”

24. In conclusion, the club requested that the player’s requests for relief must be rejected, on the basis of the following: i. “Our club has no obligation to pay any due salaries to the Player. ii. This is because these due salaries were set off with the compensation that the Player agreed to pay to our club to acquire his release and sign with the Saudi Arabian club for a considerably

higher remuneration. iii. Our club has no obligation to pay EUR 100,000 plus legal interest to the Player”

25. Additionally the club filed a counterclaim against the player indicating that “from the moment that the clause 6 of the termination agreement was the result of a fraud, this means that the guarantee agreement was never cancelled and our club never waived any of its rights under it, consequently, our club is hereby requesting the imposition of the agreed penalty of EUR 50,000 on the Player, plus legal interest from 21/04/2022 when the DRC decision was issued.”

c. Replica of the Player

26. In his replica, the player indicated that the club’s counterclaim should be rejected as “it did not, in particular, present a statement of claim, setting out full written arguments in fact and law, the full body of evidence, and requests for relief.”

27. Moreover, the player indicated that “it did not commit any fraud and that the contract revocation agreement that the player has submitted is the true and valid one, on the contrary, the document presented by the club is false, regardless of whether the club has brought it to the

Cyprus Football Association (CFA).”

28. The player indicated that he has filed the appeal at CAS and that there had only been one notification from CAS to join one more element, however the player personally was unaware until this notification and that on the date of the signed agreement there was no final decision of the CAS on the appeal.

29. Furthermore, the player mentioned that “the joint and several liability of the club towards another club because it has signed a player who has unlawfully terminated an employment contract with that club is governed by FIFA regulations and that any agreement aimed at removing these liability rules is contrary to FIFA rules and should be considered null and void.”

30. On account of the above, the player requires that:

(a) FIFA joins all documents filled in TMS platform pg. 7

REF. FPSD-8865

(b) Notify the central services of Cyprus tax authorities to inform this Tribunal if Apoel has

communicated the transfer amount of € 200,000 - value that Apoel said the transfer fee -, as well as if it has communicated the value of the salaries and premiums of the contracts and them amendments enclosures with the initial claim, sending to that authority a copy thereof, (c) Under the duty of good faith and procedural cooperation, player requires this Court to order the club to merge all the emails, messages of whatsApp exchanged with the lawyer Mr Costa that led to the revocation agreement, in a format that allows this Tribunal to be able to understand the evolution of the negotiations and the agreement reached (Mr. Efthymios Agathokleous phone number is +35799517956); (d) the player requires FIFA to inform UEFA of the irregular use of the player by Apoel against Botev Plovdv, a match held on 28 July 2022; (e) the player must be acquitted of the counterclaim; (f) concluding in accordance with the player claim. d. Duplica of the club

31. In its duplica, the club mentioned that the player’s allegations that the counterclaim does not comply with the Procedural Rules is totally unsubstantiated and is rejected.

32. The club again reiterated that the one and only agreement the parties signed is the original of which has already been sent to FIFA by courier and that it would have never submitted a forged agreement to the CFA.

33. Moreover, the club confirmed that the termination agreement was negotiated between the club’s general director and the player’s previous lawyer via telephone, who was duly eligible to represent the club and confirm that, as the player states that the final and signed version of the termination agreement was sent to his lawyer via email on 28 July 2022.

34. The club reiterated for the correspondence of CAS, “it is clear that on 28/07/2023 when the termination agreement was signed, the player knew, or he should had known that his CAS appeal

could not proceed.”

35. The club mentioned that the player agreed “to pay a compensation of EUR 200,000 to our club in order to buy his release. Due to the fact that our club also owed the Player the same amount, these were set off. If the Player insists on getting his due salaries, he must also pay us the agreed buy-out fee of EUR 200,000.”

e. New contractual situation of the player

36. On 29 July 2022, the player signed a contract with the Saudi club, Al Khaleej valid from 29

July 2022 until 28 July 2024, for a monthly salary of USD 56,250 per month and signon fee X2 of USD 75,000 payable on 31 August 2022 and 31 August 2023. pg. 8

REF. FPSD-8865

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 11 January 2023 and submitted for decision on 24 August 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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 employmentrelated dispute with an international dimension between a Brazilian player and a Cyprus

club.

3. In its reply to the claim, the club contested the competence of FIFA to deal with the matter at hand, on the basis that its responsibility to pay the compensation to the Chinese club under case ref nr: FPSD-3313, does not fall within the ambit of an “employment related dispute”.

4. In this respect the Chamber decided to reject the argument of the club and mentioned that the decision passed in terms of which the player was found liable to pay compensation to the Chinese club, Changchun Yatai FC under case ref nr: FPSD-3313 and the club was jointly and severally liable for payment thereof, related to an employment related dispute.

5. Consequently, the Chamber concluded that it is competent to deal with the substance of the present claim.

6. 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 11 January 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

7. 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 pg. 9

REF. FPSD-8865 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

8. 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

9. The foregoing having been established, the Chamber moved to the substance of the matter and took note that the parties strongly dispute the total amount that was due to the Claimant as detailed in his claim.

10. In this context, the Chamber acknowledged that its task was to determine whether the amounts claimed by the Claimant were to be paid by the Respondent.

11. The Chamber noted that in its submission, the club claimed that the player submitted a forged termination agreement, and further noted that the player on his account denies this allegation and in return claims that the document which the club submitted is forged, however failed to substantiate its argument with any corroborating evidence.

12. The Chamber observed that the club provided the original termination agreement concluded between the parties on 29 July 2022, confirming the contents it alleged the parties agreed.

13. In consideration of the dissent between the parties, the Chamber deemed it important to take into consideration the following: - a request from the player in specific the WhatsApp correspondence seeking permission from the club to negotiate with the Saudi club - copy of the declaration from the Saudi club relating to said negotiations dated, 19 July 2022 - the permission granted by the club to the player to negotiate with the club, dated 21

July 2022 - the subsequent contract the player concluded with the Saudi club, Al Khaleej at a higher value, dated 29 July 2022 pg. 10 REF. FPSD-8865 - termination agreement of the club referencing the aforesaid, dated 29 July 2022

14. On analysis of the documentation on file, the Chamber established that (i) it is evident that

the parties agreed to mutually terminate the contract, (ii) that the player negotiated with a third club for potential future employment and (iii) that the player was released prior to the expiry of his contract from the club. i.e., due to expire on 31 May 2023.

15. In consideration of the above circumstances and the documentation on file, this according to the Chamber seems to lead to the conclusion and furthermore verify that the termination agreement provided by the club, reflected the true intention of the parties regarding the terms for mutual termination. In support of this opinion, the Chamber highlighted that the original document as provided by the club was signed by both parties, furthermore the player failed to provide corroborating evidence as to his argument that the said agreement was forged by the club.

16. On account of the above, the Chamber took into account the termination agreement as provided by the club in assessment of this matter.

17. Subsequently, the Chamber made reference to article 3 of the termination agreement which mentions that “the parties agree that in order for the player to be prematurely released from the Club and sign with the club from Saudi, he shall pay the Club the amount of EUR 200,000. This amount shall be set off against the Club’s debt towards the Player and the Club will no longer be indebted to the Player.”

18. In this regard, the Chamber took note that the club argued that it had no obligation to pay any outstanding salaries to the player as it was set off against compensation the player agreed to pay to the club to acquire his release and to sign with the Saudi Arabian club for a considerably higher remuneration.

19. In the context, the Chamber remarked that it would take into consideration whether there were reciprocal concessions of equivalent value between the parties. In this regard, the Chamber noted that the club agreed to release the player early from his contract without paying compensation to the club in consideration that the club would no longer be indebted to the player for his outstanding salaries.

20. Following the aforesaid, majority of the Chamber deemed that this indeed established in a

manner a reciprocal concession, consequently majority of the Chamber considered that the club made a concession as to a similar value as the rights per se waived by the player i.e., entitlement to his outstanding salaries.

21. In conclusion hereof, majority of the Chamber decided that the set-off had been validly agreed to between the parties and that reciprocal concessions have been established, therefore it decided to reject the part of the claim of the player amounting to EUR 200,000. pg. 11

REF. FPSD-8865

22. In continuation reference was made to the liability of the club established in FPSD-3313 and majority of the Chamber concluded that the termination agreement clearly establishes that the club would remain liable for payment of half of this amount.

23. Consequently, majority of the Chamber decided to reject the counterclaim of the club. ii. Consequences

24. As a consequence, majority of the Chamber decided that the club is liable to pay to the player the amount of EUR 100,000.

25. 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 Claimant interest at the rate of 5% p.a. on the outstanding amount as from 21 April 2022 until the date of effective payment. iii. Compliance with monetary decisions

26. 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.

27. 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.

28. 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.

29. 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.

30. 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. pg. 12

REF. FPSD-8865

d. Costs

31. 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.

32. 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.

33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-8865

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/ Counter-Respondent, Lucas Viera de Souza, is partially accepted.

2. The Respondent/ Counter-Claimant, APOEL NICOSIA, must pay to the Claimant the

following amount(s): - EUR 100,000 as outstanding amount plus 5% interest p.a. as from 21 April 2022 until the date of 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. 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.

6. The consequences shall only be enforced at the request of the Claimant/ CounterRespondent 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. 14

REF. FPSD-8865

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. 15