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 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 12 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman Johan van Gaalen (South Africa), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Jonathan Boareto dos Reis, Brazil

represented by Ms Christiane Munster Oliveira

as Claimant

against the club,

Al Gharafa SC, Qatar

represented by Mr Nilo Effori

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 10 August 2017, the Brazilian player Jonathan Boareto dos Reis (hereinafter: the Claimant or the player) and the Qatari club, Al Gharafa SC (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: contract1 ), valid as from 10 August 2017 until 30 June 2019.

2. According to contract 1, the Respondent undertook to pay to the Claimant the following amounts:

- EUR 1,143,750 on 1 September 2017;

- EUR 1,143,750 on 1 January 2018;

- EUR 55,000 as monthly salary for the months August 2017 until May 2018 (10x);

- EUR 50,000 as monthly salary for the month June 2018;

- EUR 1,093,750 on 1 August 2018;

- EUR 1,093,750 on 1 January 2018;

- EUR 60,000 as monthly salary for the months July 2018 until April 2019 (10x);

- EUR 55,000 as monthly salary for the months May and June 2019.

3. Art. IX par. 3 of contract 1 reads as follows: “The validity of this Contract is subject to the specific approval of the QFA and the confirmation that the Player is eligible to play (ratification of the Contract)”.

4. On 12 September 2017, the parties signed a termination agreement (hereinafter: termination agreement), which, inter alia, reads as follows: “The employment contract between the club and the player, signed on 10 August 2017, is terminated from 12 September 2017, as according to the Article X.2 of such contract. By signing this termination agreement, the player confirms and agrees that the club does not have any debts towards him. The player agrees and confirms that there is no salary, sign on fee, outstanding amounts or any present or future payment to be made by the club to him in connection to the employment contract signed on 10 August 2017.”

5. On 14 September 2017, the parties signed a new employment contract (hereinafter: contract 2) valid as from 14 September 2017 until 30 June 2019. According to contract 2, the Respondent undertook to pay to the Claimant the following amounts:

- EUR 45,000 as monthly salary between September 2017 and June 2018 (10x);

- EUR 37,500 as monthly salary between July 2018 and June 2019 (12x).

6. Art. 10.6 of contract 2 reads as follows: “The player shall be entitled to terminate this contract by fifteen days’ notice in writing to the club if the club:

a) Shall be guilty of serious or persistent breach of the terms and conditions of this contract; or

b) Fails to pay any remuneration or other payments or bonuses due to the player, after a notice of thirty days, for more than four consecutive months, even the FIFA Dispute Resolution Chamber’s and the Court of Arbitration for Sport’s Jurisprudence considers three months overdue as a reason to breach the contract, the player agrees to be four consecutive months the reason to breach reach regarding outstanding payments;

c) The Player need to give an official notice to the club with a period of 30 days to cure the default in clause 10.6.b.”

7. Art. 10.7 of contract 2 reads as follows: “In case the player has just cause to terminate the contract based on 10.6 above, he shall receive 70% (seventy per cent) of the remaining amount of the contract as compensation, reduced by any outstanding amount from the club according to this contract. The principle of mitigation of damages must also be applied, where the new contract(s) signed by the player will reduce the amount of compensation to eventually be paid by the club.”

8. On 24 December 2017, the parties concluded a settlement agreement (hereinafter: settlement agreement) in order to terminate the existing employment relationship. In accordance with the agreement, the Respondent was obliged to pay the player Qatari Riyals (QAR) 215,000 and EUR 50,000 “within 10 days”.

9. Said settlement agreement, inter alia, read as follows: “The parties hereby ratify their relationship is terminated in relation to the employment contract granting each other a full, general and irrevocable release of any and all obligations arising under the employment contract. Upon the full accomplishment of the obligations as stated in clauses 2 and 3 below [above-mentioned payments], the parties will irrevocably waive and renounce any rights, and/or claims they may have against each other to pursue any legal action and/or initiate any judicial or extrajudicial proceeding against each other whether concerning fees, salaries, wages, bonus etc based on the employment contract.”

10. On 18 January 2018, the player signed an employment contract with the South Korean club, Busan Ipark FC, valid as from 18 January 2018 until 17 January 2018, including a monthly salary of USD 33,333 as well as a sign-on fee of USD 150,000.

11. On 28 June 2018, the contract between the Claimant and Busan Ipark FC was mutually terminated.

12. On 15 August 2018, the player signed an employment contract with the Iranian club, Sanat Naft Abadan FC, valid as from 15 August 2018 until 15 June 2019, including a total salary of USD 200,000.

13. On 1 March 2019, the player lodged a claim in front of FIFA for breach of contract against the club requesting requested payment of the following amounts due to the club’s termination of contract 1 without just cause on 14 September 2017:

- EUR 1,149,250 as outstanding remuneration corresponding to the payment due on 1 September 2017 and the salary of August 2017.

- EUR 2,397,000 as compensation corresponding to the residual value of the contract.

14. Alternatively, the player requested payment of the following amounts based the club’s alleged breach of contract 2:

- EUR 135,000 as outstanding remuneration corresponding salaries of September 2017 until November 2017;

- EUR 630,000 as compensation corresponding to 70% of the residual value of the contract, in accordance with art. 10.7 of contract 2.

15. In his claim, the Claimant held that the club “forced” him under duress to sign contract 2 with a significant lower salary than contract 1 and even after said contract 2 was signed, the player’s salary remained unpaid for 3 months, which led the player to “unilaterally terminate the contract” with just cause.

16. Furthermore, the player alleged that his wife and him were stopped at the airport and prevented from leaving the country in December 2017 due to the lack of a “clearance certificate” issued by the club. According to the player, he had to sign the settlement agreement dated 24 December 2017 in order to receive such document and to be able to leave the country.

17. In this framework, and under the assumption that contract 2 as well as the settlement agreement dated 24 December 2017 were concluded under duress and are therefore null and void, the player requested outstanding remuneration and compensation for breach of contract based on contract 1. Alternatively, he requested outstanding remuneration as well as compensation for breach of contract based on his alleged termination of contract 2 with just cause.

18. In its reply, the club rejected the player’s claim, but acknowledged its debt of EUR 50,000 to the player, resulting from the settlement agreement dated 24 December 2017, which would be submitted as soon as the club receives the player’s bank details.

19. Moreover, the club maintained that after contract 1 was signed, the player could not be registered due to a dispute with his former club about the transfer fee and the rejection of the ITC.

20. In this regard, the club enclosed a decision of the Single Judge of the PSC, dated 19 September 2018, according to which the former club’s claim for a transfer fee against the club was rejected.

21. According to information contained in the Transfer Matching System (TMS), the transfer instruction of the transfer in question was uploaded in the System on 17 August 2017, subsequently the former club failed to upload the counter instruction, which led the club on 26 December 2017, to cancel the transfer with the remark: “FK Vardar refused to enter the counter instruction before the first registration Window so that we terminated the contract with the player.”

22. The club further argued that since the player could not be registered and due to Art. IX par. 3 of contract 1, there was a “concrete risk that the first contract was not valid”, which led to discussions about the continuance of the employment relationship between the parties. The club rejected any assertions about duress and held that already two days before the conclusion of contract 2, contract 1 was mutually terminated with an agreement, signed by the player with his free will.

23. In addition, even though the player could not yet be registered and got injured in the meantime, the club maintained that both parties intended to continue the employment relationship, which led to the conclusion of contract 2 without a clause like art. IX from contract 1.

24. The club further argued that the settlement agreement was concluded without any duress. In fact, the club held that the player approached the club in order to terminate the contract. In this regard, the club submitted a WhatsApp conversation dated 21 December 2017 between the player and the club’s team coordinator in which such approach is confirmed.

25. Furthermore, the club submitted another WhatsApp conversation dated 5 March 2018, in which the player requested payment of the remaining amount of EUR 50,000. In the club’s view he therefore confirmed the settlement agreements’ validity.

26. In his replica, the player reiterated his position and held that the club’s allegations were not based on evidence. The player confirmed having tried to find an amicable solution, but that a settlement in the total amount of EUR 200,000 was offered by the club. In the player’s view that confirms duress since he would not have settled for an amount significantly lower than that.

27. In its duplica, the club reiterated its position and insisted that the settlement agreement is valid.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analyzed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 1 March 2019. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC noted that, in accordance with art. 24 par. 1 and 2. in combination with art. 22 lit. b) of the aforementioned Regulations on the Status and Transfer of Players (edition January 2020), 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 Brazilian player and a Qatari club.

3. Furthermore, 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 Player (edition January 2020), and considering that the present claim was lodged on 1 March 2019, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. First, the DRC started by acknowledging that, according to the Claimant, he was “forced” under duress to sign contract 2 as well as the settlement agreement on 24 December 2017. Under the assumption that those documents were null and void, the Claimant requested outstanding remuneration and compensation for breach of contract based on contract 1. Alternatively, he requested outstanding remuneration as well as compensation for breach of contract based on his alleged termination of contract 2 with just cause.

6. The Dispute Resolution Chamber furthermore took due note of the fact that the Respondent, on its part, had categorically denied any duress and held that the contracts as well as the settlement agreement are valid.

7. In view of this dissent between the parties in respect of the basic question as to whether or not the employment contracts and the settlement agreement were valid, the members of the Chamber 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. Due to the fact that the conclusion of contract 2 and the settlement agreement as such were not contested, the application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the Claimant to prove that contract 2 and the settlement agreement were signed under duress.

8. On account of the above, the members of the Chamber turned their attention to the Claimant’s arguments having been forced to sign contract 2 and the settlement agreement and noted that he failed to submit any corroborating evidence in order to proof his allegations.

9. On the other hand, the Chamber duly noted the Respondent’s explanation regarding the termination of contract 1 and the conclusion of contract 2 as well as the approach of the player via WhatsApp on 21 December 2017 in which he requested the termination of contract 2.

10. Moreover, the Chamber took note of the player’s approach in 5 March 2018, whereby he requested payment of the outstanding EUR 50,000 from the club, resulting from the settlement agreement. In the opinion of the DRC, the player appears to have been assessing the settlement agreement as valid at this point.

11. What is more, the Chamber noticed that the Claimant lodged his claim more than one year after the alleged occurrence of duress without having sent any notification to the club disputing the validity of such document.

12. On account of the above, and due to the lack of corroborating evidence regarding any duress in connection with the documents in question, the Chamber had to reject the player’s arguments and declared the settlement agreement dated 24 December 2017 valid.

13. From the documentation on file, it appears that the amount of QAR 215,000 has been remitted to the player by the club.

14. Furthermore, it remained undisputed that the amount of EUR 50,000 resulting from the settlement agreement remained unpaid.

15. In view of the above, the DRC established that the Respondent had failed to pay to the Claimant the amount of EUR 50,000 as agreed upon between the parties in the settlement agreement. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations towards the Claimant and is to be held liable to pay the Claimant the amount of EUR 50,000.

16. Finally, the members of the Chamber established that any further claim lodged by the Claimant is rejected.

17. Furthermore, taking into account the consideration under number II./3. above, the DRC referred to par. 1 and 2 of art. 24bis 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.

18. In this regard, the Chamber pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

19. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

20. Finally, the Chamber 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. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Jonathan Boareto dos Reis, is partially accepted.

2. The Respondent, Al Gharafa SC, has to pay to the Claimant the amount of EUR 50,000.

3. Any further claim lodged by the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due plus interest in accordance with point 2. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned sum is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer