F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 June 2020

Decision of the

DRC Judge

passed via videoconference, on 12 June 2020,

regarding an employment-related dispute concerning the player Diego Assis Figueiredo

BY:

Daan De Jong (The Netherlands)

CLAIMANT:

Diego Assis Figueiredo, Brazil

represented by Mr Luis Cassiano Neves, Mr Bernardo Morais Palmeiro and Mr Frederico Bensimon

RESPONDENT:

Al Ain FC, Saudi Arabia

represented by Mr Ali Abbes and Mr Mohamed Rokbani

I. FACTS OF THE CASE

1. On 7 January 2019, the Brazilian player, Diego Assis Figueiredo (hereinafter: the Claimant or the player) and the Saudi Arabian club, Al Ain FC (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 7 January 2020.

2. According to article 3 of the contract, the club committed itself to pay to the player a total remuneration of USD 180,000, as follows:

a) a monthly salary of USD 10,500, “payable at the end of each calendar month”; and

b) an advance payment of USD 54,000, payable “upon signing [the] contract and applying medical examination”.

3. Pursuant to article 12 of the contract, the parties further agreed upon the following:

“1- It is possible to amend some provisions of the contract with consent of parties together with signature on any addition or deletion.

2- Parties may mutually agree on terminating the contract before expiry of term established herein.

3- [The club] may terminate the contract against payment of (2) month salary to the [player]”.

4. As per the player, on 27 July 2019, the Respondent sent a letter to the Claimant, stating the following:

“We hereby inform you the intent of Club to validate the penalty clause provided for in contract entered into with you on 07/01/2019 (Item 12, clause 3) stipulating right of the Club to terminate contract against two (2) months payment of the player.

Accordingly, kindly respond within five (5) days upon date of this letter so we could finalize all financial liabilities arising out of contract termination […]”.

5. On the same date, the Respondent further enclosed a document titled “FINANCIAL DISCHARGE” dated 25 July 2019 (hereinafter: the termination agreement). Said termination agreement read as follows:

“On this day 25/07/2019 agreement is made between [the club] and [the player], to terminate the contractual relation and accordingly the player with particulars set forth herein earlier declared and acknowledged that “I have received all my entitlements and I have no other financial entitlements against [the club]”. Furthermore, [the club] hereby declares and acknowledges that they have no financial claims against the player. In witness thereof, this discharge was executed […]”.

6. Additionally, the Respondent further enclosed a document titled “UNDERTAKING” (hereinafter: the player’s confirmation), which stated the following: “I player […] a professional player in [the club] acknowledge the accuracy of financial discharge from the Club and I have no other claims against the Club”.

7. On 23 April 2019, the Claimant lodged a claim in front of FIFA against the Respondent requesting the outstanding remuneration of EUR 42,000, plus 5% interest p.a., as follows:

- EUR 10,500, corresponding to the monthly salary for June 2019, plus 5% interest p.a. as from 30 June 2019 until the date of effective payment;

- EUR 10,500, corresponding to the monthly salary for July 2019, plus 5% interest p.a. as from 31 July 2019 until the date of effective payment;

- EUR 21,000, corresponding to “2 (two) monthly salaries as penalty clause in accordance with Article 12.3 of the Employment Agreement”, plus 5% interest p.a. as from the date of termination, i.e. 27 July 2019, until the date of effective payment.

8. In addition, the Claimant requested FIFA to intervene on the basis of art. 12bis of the Regulations on the Status and Transfer of Players as well as to impose sanctions on the Respondent.

9. According to the player, on 27 July 2019, he “signed all documents sent to him by the Club in order to finalize the termination agreement, including financial discharges and termination statements issued in accordance with the club licensing requirements”.

10. As per the player, the club further “undertook to pay to the Player the amount equal to 2 (two) monthly salaries as penalty clause in accordance with Article 12.3 of the Employment Agreement […], accrued by the salaries for the work provided in June and July 2019, which became due and payable, respectively, on 30 June and 31 July 2019”.

11. Having said this, the Claimant maintained that the club failed to comply with its financial obligations, as “the Club failed to pay the Player the amounts agreed as compensation for the unilateral termination of the Employment Agreement, as well as the amounts that have become due and payable but remained outstanding”.

12. In this regard, the Claimant alleged having put the Respondent in default of payment on two occasions. In this respect, the Claimant provided a copy of a default notice dated 2 September 2019 addressed to the Respondent. The Claimant gave the Respondent a ten days’ deadline to remedy the situation.

13. Subsequently, on 12 September 2019, the Claimant allegedly put the Respondent again in default, setting on this occasion a ten days’ time limit for the Respondent to remedy the alleged default.

14. In its reply to the claim, the Respondent rejected the Claimant’s claim and asserted that, by means of the signature of the the termination agreement and the player’s confirmation, the Claimant confirmed having received all his entitlements.

15. The club argued that due to “lack of integration and poor performance, the club offered the player to terminate the contract amicably”. Moreover, the Respondent claimed that on 25 July 2109 “the two parties agreed to end the contract amicably and they signed a ‘financial discharge’ according to which the player expressly declares ‘having received all his entitlements and he has no other financial entitlements against the Saudi Alain club”.

16. In this regard, the Respondent emphasised that the employment relationship was terminated by mutual consent and that the player had received “all his dues and entitlements from the club according to the contract and waiving, therefore, any further claim”.

17. The Respondent stressed that the player did not sign said declaration “until he had received all of his dues” and that the club “cannot imagine that a player sign a document of legal importance without knowledge of its precise contents”.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

18. First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he referred to the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 23 April 2020 and decided on 12 June 2020. Therefore, the DRC Judge concluded that the 2019 edition of the Procedural Rules is applicable to the matter at hand.

19. Furthermore, the DRC Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 23 April 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

20. Subsequently, the DRC Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b of the Regulations, he is competent to adjudicate on the present employment-related dispute between a Brazilian player and a Saudi Arabian club.

21. His competence and the applicable regulations having been established, the DRC Judge entered into the substance of the matter, by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence that he considered pertinent for the assessment of the matter at hand.

22. First of all, the DRC Judge noted that the Claimant and the Respondent concluded an employment contract valid as from 1 January 2019 until 1 January 2020.

23. The DRC Judge also observed that, on 27 July 2019, the Claimant signed two settlement agreements dated 25 July 2019 (cf. see points I.5. and I.6. above), which, inter alia, stated that the player had no financial entitlements against the Respondent. The DRC Judge further took note of the fact that the Claimant, by means of the signature of the termination agreement, acknowledged having received all his entitlements from the Respondent.

24. With the above in mind, the DRC Judge noted that the Claimant requested the payment of USD 42,000 (cf. see point I.7.), alleging that, the Respondent failed to pay to the Claimant the monthly salaries for June and July 2019, as well as the “compensation for termination executed on 27 July 2019”.

25. The DRC Judge equally took due note of the fact that the Respondent, on its part, maintained that the settlement agreements were clear in referring to all the player’s financial entitlements. In this context, the Respondent pointed out that both documents “contain a clearly declaration of the player that he has received all his dues and entitlements from the club according to the contract and waiving, therefore, any further claim”.

26. In view of the diverging position of the parties with regard to the termination of the contract, the DRC Judge deemed that the central issue in the matter at stake was to determine as to whether the Respondent had to pay any compensation to the Claimant for unilateral termination of the employment relationship.

27. In this context, the DRC Judge turned his attention to the content of article 12.3 of the contract, according to which “[the club] may terminate the contract against payment of two (2) [monthly salaries] to the [player]” (cf. see points I.3. and I.4. above).

28. Notwithstanding the above, the DRC Judge wished to emphasize that it was undisputed between the parties that the Claimant signed the termination agreement and the confirmation, according to which the player confirmed having received all his dues from the club and not having any claims against the Respondent.

29. In this context, the DRC Judge took note of the fact that the underlying dispute in the present matter was to determine the legal effects of the aforementioned documents (cf. see points I.5. and I.6. above). In doing so, the DRC Judge firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

30. As to legal effects of the termination agreement and the player’s confirmation, the DRC Judge was of the opinion that the documents signed by the player on 27 July 2019 were clear, specific and unambiguous in including any claim for outstanding remuneration and/or compensation. Consequently, the DRC Judge concluded that the Claimant, by signing the aforementioned documents on 27 July 2019, confirmed having received all his entitlements from the Respondent.

31. Moreover, the DRC Judge was eager to emphasise that a party signing a document of legal importance, as a general rule, does so on its own responsibility.

32. In view of the above, and referring to art. 12 par. 3 of the Procedural Rules, the DRC Judge deemed that the Claimant had not presented any documentation that could demonstrate the nullity of the two agreements, i.e. the termination agreement and the player’s confirmation. Consequently, the DRC Judge concluded that said documents were to be considered as valid and binding documents by means of which the Claimant acknowledged having received “all [his] entitlements” and waived any claim he might have or have had against the Respondent.

33. On account of the above, the DRC Judge decided to reject the claim of the Claimant in its entirety.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Diego Assis Figueiredo, is rejected.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 of the Procedural Rules).

CONTACT INFORMATION:

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