F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 24 November 2020

Decision of the

Dispute Resolution Chamber

Passed on 24 November 2020,

regarding an employment-related dispute concerning the player Joao Alves de Assis Silva

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Roy Vermeer (Netherlands), member José Luis Andrade (Portugal), member

CLAIMANT / COUNTER-RESPONDENT:

NAGOYA GRAMPUS, Japan

Represented by Mr. Omori Masayuki

RESPONDENT 1 / COUNTER-CLAIMANT:

JOAO ALVES DE ASSIS SILVA, Brazil

Represented by Mr. Breno Costa Ramos Tannuri

RESPONDENT 2:

SC CORINTHIANS PAULISTA, Brazil

I. FACTS OF THE CASE

1. On 5 January 2018, the Japanese club, Nagoya Grampus (hereinafter: the club or Nagoya), the Brazilian club, SC Corinthians Paulista (hereinafter: Corinthians) and the Brazilian player, Mr. João Alves de Assis Silva (hereinafter: the player) executed a transfer agreement, by means of which the player’s services were transferred from Corinthians to Nagoya for a transfer fee of USD 10,000,000 net, payable by no later than 20 January 2020 (hereinafter: the transfer agreement).

2. The player was born in Sao Paulo, Brazil, on 20 March 1987.

3. According to clause 12 et seq. of the transfer agreement, the parties were assisted by the following intermediaries:

a. Corinthians: BF Assessoria e Propaganda Esportiva Ltda;

b. Nagoya: Mr. Tomohiro Inagawa (Sports Solution International Inc.);

c. The player: Bertolucci Assessoria e Propaganda Esportiva Ltda.

4. On 14 January 2018, the club and the player concluded a document titled “Memorandum” (hereinafter: memorandum), which inter alia stated as follows:

“The term of contract shall be:

From February 2, 2018 to January 1, 2019 (“Season 2018”);

From February 2, 2019 to January 1, 2020 (“Season 2019”);

From February 2, 2020 to January 1, 2021 (“Season 2020”).”

5. Said memorandum also determined the “base salary” of the player as USD 3,300,000 per season. The memorandum reads inter alia as follows:

“1. In the event of early cancellation of this Contract by either party, Art. 17 of the FIFA Regulations on the Status and Transfer of Player shall apply.”

“2. However, the Player will be entitled to be transferred to another club, in the case team receives an amount of USD 20,000,000 tax excluded (including Solidarity Contribution in the annex 5 FIFA regulation and excluding tax) as a transfer fee. The amount shall be paid by the offering club in a single instalment and, upon receipt of such full payment, the Player will be entitled to sign a new employment contract”.

6. On 14 January 2018, the player and the club concluded an employment contract (hereinafter: contract 2018), valid as of 2 February 2018 until 1 January 2019, including a total salary for USD 3,300,000.

7. According to the information available in the Transfer Matching System (TMS), on 19 January 2020, Nagoya made a payment of USD 10,000,000 in favour of Corinthians.

8. On 2 February 2019, the player and the club concluded a further employment contract (hereinafter: contract 2019), valid as of 2 February 2019 until 1 January 2020, including a total salary for USD 3,300,000.

9. On 11 January 2020, the player returned from an authorised vacation in Brazil in order to start the pre-season with Nagoya.

10. On 13 January 2020, the player was injured in training, which led the medical staff of the club to create a rehabilitation-training program for the player until 29 January 2020, in order for him to be able to join a training camp scheduled as from 31 January until 8 February 2020.

11. On 20 January 2020, Nagoya and company Innovation Assessoria E Marketing Ltda executed a services agreement, which reads as follows (quoted verbatim):

“Provision of service contact

Nagoya Grampus Eight Inc. (hereinafter simply “contracted”) and Innovation Assessoria E Marketing Ltda (hereinafter simply “contracted”) adjust a service provision agreement as follows.

“Clause 1 - Provision of Service

The “contractor” must outsource the negotiation for the acquisition and hiring of the athlete JOÃO ALVES DE ASSIS SILVA [in annex] (hereinafter simply “player”) to the “contracted”, and the same must use all the resources necessary for the completion of the acquisition is carried out efficiently and successfully.

Clause 2- Commission

The contractor must benefit the contractor with the amount described in the attached document as compensation”

[Attachment]

The name of the player and the value of t1e provision of the services are as follows.

All amounts mentioned in this contract, with taxes included.

JOÃO ALVES DE ASSIS SILVA (Date of Birth: 03/20/1987)

Value of services rendered: 464,333 Dollars

(Corresponding to 14.1% of the Athlete’s basic salary).

Payment will be made on April 5, 2020.

Athlete’s basic remuneration: 3,300,000 Dollars/NET.”

12. On 21 January 2020, the club and the player concluded a further employment contract (hereinafter: contract 2020), valid as of 2 February 2020 until 1 January 2021, including a total salary in the amount of USD 3,300,000, payable as follows:

a. USD 230,000 as monthly salary during 10 months (apart from April 2020 where he would get item b) payable by the 25th day of the month;

b. USD 1,000,000 as salary for April 2020, without a specific due date.

13. Art. 15 par. 4 of the contract 2020 reads as follows: “Player shall obtain permission in writing by Team in advance regarding any appearance in TV and radio programs or events etc, interview for newspapers and magazins or involvement in public relations and sales promotion activities organized by a third party”.

14. Art. 18 of the contract 2020 defines: “In case of facts falling under any of the accompanying sheet (Bylaw for Sanctions), the team will impose warnings, penalties, or both to the player. However, with respect to one fact the amount of the penalty fee shall be determined by team in range not exceeding 50% of the basic monthly salary.”

15. Said “Bylaw for Sanctions”, which was signed by the player, read as follows (quoted verbatim):

“Bylaw for sanctions

(…)

The club has the rights if they want to sanction the Player by the following guidelines of the Monthly Salary.

(…)

2. Disobeying Team’s instructions or orders

Contents

Guidelines

1. Disobeying specific time

0 ~ 15%

2. Not wearing specified clothes or equipment

0 ~ 15%

3. Contravention of non-smoking rule

0 ~ 15%

4. Disobedience to deadline for submissions (documents or equipment, etc)

0 ~ 15%

5. Violation of sponsorship contracts and appearance regulations

10 ~ 25%

6. Not showing up for training without notice in advance

0 ~ 35%

7. Leaving work early without permission

0 ~ 35%

8. Disobedience to the manager’s instructions and orders (Player shall bear the cost of civil compensation)

0 ~ 50%

3. Disturbing Team’s order and moral, and acting to run counter to criminal law

Contents

Guidelines

1. Violating regulations

10 ~ 15%

2. Being Halfhearted about practicing or lack of supervision

5 ~ 10%

3. Damage accident according to flagrant traffic offense

5 ~ 10%

Contents

First time

Second time and after

4. In spite of warning made by Team according to the bylaw, the improvement is not be seen

15 ~ 35%

35 ~ 50%

5. Leaking matters disadvantage to Team or criticizing Team

15 ~ 35%

35 ~ 50%

6. Attempting to obstruct business on purpose

15 ~ 35%

35 ~ 50%

7. Fighting, gambling or other similar acts in Team’s territory

15 ~ 35%

35 ~ 50%

8. Causing casualty in Team’s territory

15 ~ 35%

35 ~ 50%

9. Political activity in on-duty hours

15 ~ 35%

35 ~ 50%

10. Selling goods for profit

15 ~ 35%

35 ~ 50%

11. Causing accident resulting in injury or death according to flagrant traffic offense

15 ~ 35%

35 ~ 50%

16. On 25 January 2020, the player failed to attend a training session.

17. On 26 January 2020, the player left Japan without authorisation from the club, which led the club to contact the player via phone to request him to immediately return.

18. On 2 February 2020, the club sent the player a notification requesting him to resume work by no later than 11 February 2020.

19. On 5 February 2020, the player sent a letter to the club explaining that he decided to follow a better rehabilitation program in Brazil, refusing to return by 11 February 2020 and stating that he would return on 18 February 2020.

20. On 23 February 2020, the player returned to Japan and publicly apologized for his absence.

21. On 26 February 2020, the player underwent a medical examination and was put into a special training program with the physical coach of the club.

22. On 8 March 2020, during a meeting with the sporting director of Nagoya, the player expressed his will to leave the club as “he was not feeling comfortable with the new style of play of the team under the new coach”. The sporting director referred to the memorandum and the contract, but informed the player about the possibility to discuss a “reduced figure of USD 10,000,000”.

23. On 11 March 2020, the player gave an interview to a Brazilian media outlet and stated he would like to return to Corinthians.

24. On 6 April 2020, the player requested permission to leave Japan for family reasons, which was denied by Nagoya.

25. On 7 April 2020, the player missed a training session.

26. On 8 April 2020, the player left Japan without authorisation from the club, which led the club to contact the player via phone to request him to immediately return.

27. On 17 April 2020, the club sent the player a notification containing inter alia the following:

a. Two disciplinary fines in the total amount of USD 330,000 for “two substantial and unjustified absences”;

b. A request for the player to reimburse a part of the “rental fee” for the period January to April 2020;

c. The information that his salary payment is suspended as of April 2020.

28. On 24 April 2020, the player contested the fines and stated, without specification, he would return to Japan.

29. On 2 May 2020, Nagoya terminated the contract with the Respondent 1 due to the player’s repeated contractual violations as well as the impossibility to return to Japan anytime soon as there were restrictions in place in connection with COVID-19.

30. On 7 May 2020, the player contested the termination, alleging that he already bought flight tickets to return to Japan.

II. PROCEEDINGS BEFORE FIFA

31. On 24 May 2020, as amended on 18 June 2020, the club filed the claim at hand against the player and Corinthians. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the club

32. In its claim, Nagoya held that is had just cause to terminate the contract due to the player’s repeated contractual violations and since the player was unjustified absent for a total of 58 days, whereby he missed a lot of trainings and two official matches.

33. In this regard, Nagoya argued that the player, when he left Japan for the second time, knew that he would not be able to return to Japan due to the restrictions imposed by the local government in connection with COVID-19.

34. Due to the early termination of the contract caused by the player, Nagoya requests compensation in the amount of the “buy-out clause” defined in the memorandum. Alternatively, Nagoya requests compensation in accordance with article 17 of the FIFA Regulations on the Status and Transfer of Players, either in the amount of the non-amortised transfer fee or the remaining net or gross value of the contract.

35. Furthermore, Nagoya requests payment of the fines imposed, which were issued in accordance with the contract and the “bylaws”. In this regard, Nagoya held that the total fine of USD 330,000 is composed as follows:

a. USD 99.000 for the first absence of the player (30% of his monthly salary of USD 330,000);

b. USD 49,500 for “not showing up for training without notice in advance on 7 April 2020” (15% of USD 330,000);

c. USD 132,000 For “disobedience to the manager’s instructions and orders” (40% of USD 330,000);

d. USD 49,500 for “In spite of warning made by Grampus according to the by law, the improvement is not seen” (15% of USD 330,000).

36. Nagoya’s requests for relief were as follows:

“a. [Nagoya] terminated the contract with just cause;

b. [the player] and [Corinthians] shall be considered jointly and severally liable to pay [in] favour of [Nagoya] a compensation of:

- b.1. US$20,000,000 (…) in accordance with article 6 of the [memorandum] and article 17 of the [contract 2020]; or (…),

- b.2. the amount as last rata of the amortisation of the transfer fee paid and agency fees to acquire the sporting services of the[player], namely [USD] 3,663,549.60 (…)

- b.3. the remaining GROSS value of the contract [USD] 3,568,736.25 (…), related to the value of the remaining sporting season; or

- b.4. the remaining NET value of the contract [USD] 2,840,000 NET (…), related to the value of the remaining sporting season; or

- b.5 and any other amount that the honourable DRC deems opportune to consider in order to quantify the compensation;

c. the [player] must pay the amount of [USD] 330,000 as fine applied by the [club] on 17 April 2020;

d. the [player] must refund to the [club] the difference on the rental costs for 500,000 YEN which equals to [USD] 4,645.76;

e. the [player] and Corinthians must pay an interest at rate of 5% per year on any amount due in the favour of the Club, starting from 2 May 2020 as for the compensation and from 17 April 2020 as for the fines, until the date of effective payment;

f. finally, to sanction [the player] with a six-month ban from playing in official matches and to sanction [Corinthians] with a registration ban of two consecutive transfer windows;

g. to apply any other measures it considers necessary in the decision of the case at stake.”

b. Reply and counterclaim of the player

37. The player started his submissions clarifying that in the season preceding his move to Japan, he had won both the Brazilian Championship and the local state championship with Corinthians, and was named the best player of such tournaments, as well as top scorer. According to the player, this was only possible due to ”a conjunction of elements, in particular, the close attention provided by the members of the physical and medical department of SCCP during the aforementioned Brazilian football season”.

38. In this respect, the player explained that after arriving in Nagoya, he realized that the “Physical, Medical and Physiotherapy Departments of the Club was not good enough to provide the necessary assistance that professional football players usually need during competitions which demand high performance from them”. The player further submitted that he requested Nagoya to hire new professionals, something the club refused, following which the player decided to hire a personal physiotherapist, Mr. Guilherme Domenech.

39. Furthermore, the player explained that while the club at first refused to allow such professional access to the club’s training facilities, this changed in July 2018, “as consequence of the requests and pleadings made by the Brazilian players” at the club. Accordingly, the player explained that such professional was hired in December 2018 by the club.

40. The player deems that such professional was of utmost importance to his good performance during the 2018 and 2019 seasons.

41. In continuation, the player explained that in October 2019, the club sought his representatives to discuss a contractual extension, but unfortunately the parties did not reach an agreement.

42. With regards to the 2020 season, the player submitted that the “Club communicated to its players of the decision to resume the training sessions regarding the 2020 pre-season on 12 January 2020, despite of the fact the third JFA standardised employment contract, had term starting on 2 February 2020 only” but that he “obviously” complied with such request. The player further submitted that during the second training sessions of that season, he injured his left knee, which made the player have to undergo individual training sessions between 14 January 2020 and 20 January 2020.

43. To this end, the player explained that the club “weirdly” communicated that he would be left out of the squad that would travel “for the second stage of the 2020 pre-season”, and that “the technical staff of the Club communicated the Player that the Physiotherapist was traveling together with team during the upcoming 9 days”. Consequently, the player explained that his treatment would be supervised not by Mr. Domenech, but by Mr. Masaki Sato.

44. Concerning Mr. Sato, the player affirmed that “Few days later after having started the aforementioned new phase of the rehabilitation program, the Player realised that the treatment provided without the auspices of the Physiotherapist was not working and – what is worse – it was clear that in the manner in which Mr. Sato was conducting it, there was no chance to work anyway.”. Consequently, the player explained that following a meeting in which he reported such unsuccessful treatment, the club and he verbally agreed that he could travel to Brazil to undergo treatment there. In this respect, the player maintained that one of the club’s translators, Mr. Leonardo Martins Uchara was to join him in Brazil.

45. In continuation, the player explained that a few hours before his trip to Brazil, Mr. Uchara contacted him to inform that the club had reviewed its position and therefore he could no longer travel. Notwithstanding the above, the player admitted that he decided to travel to Brazil anyway on account of the fact that in the meeting he had had with the club, the latter “had raised that none of the members of the Medical Department, who remained in Nagoya (Japan) good enough to assist the Player during his rehabilitation program”.

46. The player went on to explain that on 4 February 2020, while he was in Brazil attending his rehabilitation program, he received a notice from the club dated 2 February 2020, according to which he was requested to return to Japan by 11 February 2020. According to the player, he replied to such notice on 5 February 2020 and informed the club that he would return by 18 February 2020 on account of the fact that he wanted to finish the programmed treatment he was undergoing in Brazil.

47. The player outlined that the club never objected to such letter and that on 17 February 2020 he returned to Japan. He claimed that upon his return not only his left knee was a lot better, but also the club “had not addressed or imposed any sort of disciplinary sanction whatsoever on the former based upon the alleged decision of going to Brazil in order to obtain a better medical treatment than the one provided by the latter”. Nevertheless, the player argued that he was not in condition to be fielded in any matches due to the period necessary to transition back to full fitness, and therefore the club’s allegation that “the Club expected to use the services of the Player during the official matches in the J-League Cup (16 February 2020) and J-League 1 (22 February 2020) obviously has no factual or legal basis whatsoever”.

48. In parallel, the player explained that upon his return to Japan on 17 February 2020, his wife joined him, but not his two children, who remained in Brazil with their grandparents. The player explained that the plan was for his wife to go back to Brazil in March and then return to Japan thereafter, when the COVID-19 pandemic started. In this respect, the player detailed the pandemic timeline in Japan, explaining inter alia that it severely disrupted the local league.

49. The player further clarified that by early April 2020, “strong rumours” were going in the sense that Japan would close its boarders, which according to the player “which certainly was going to result into a problem in the plans of his wife to return to Brazil in order to come back afterwards to Nagoya (Japan)”. Accordingly, the player argued that such situation coupled with various text messages sent by the club to his foreign players communicating the deterioration of health conditions in Japan, that he requested authorization to go back to Brazil but the club denied it.

50. The player nonetheless admitted that he decided to go back to Brazil, doing so on 8 April 2020, on account of the fact that he was unsure when the club’s normal activities as well as the local championship would resume.

51. The player went on to state that he received a notice from the club on 18 April 2020 but dated one day before according to which he was fined USD 330,000, which corresponded to “156% of the monthly salary due to the Player by the Club”.

52. The player explained furthermore that he addressed an e-mail to the club on 24 April 2020 whereby he disagreed with the club’s position, stating as follows (quoted verbatim):

“Good morning Omori, how are you? With daily conversations with my representatives we decided to go back to Japan of course first because we have a contract and second because I needed to come pick up my children even though I know the consequences you have children and you know when we give importance to the family , I'm taking the flight back Wednesday the 6th because by the information I have about borders and flight available to Japan this is the date !! Thanks for understanding I await an answer !!!! hug I am aware of the fine, I thought it was an exaggeration because it was a family situation but I also understand, I will be coming back to fulfill my contract until the end and be the same professional that you hired me and I spent these 2 years serving the club in the best way I hope that understand me and have equality !! God bless”.

53. The player clarified that on 1 May 2020 he informed the club that he would be returning to Japan on 4 May 2020, only to receive a termination letter from the club on 3 May 2020. The player further explained that he objected to such termination on 6 May 2020.

54. Lastly, the player informed that on 20 July 2020, the player and Corinthians concluded an employment contract with valid as from its signature until 31 December 2023.

55. As to his legal arguments, the player rejected the club’s claim and filed a counterclaim against the club.

56. The player argued that the club terminated the contract without just cause. Firstly, he argued that a termination of contract, in general, can only happen once a breach “has reached such a level of seriousness”, and that in casu:

a. the first absence of the player was justified on the grounds that he was attending a necessary rehabilitation treatment – one he would not obtain in Japan - and that, in any event, the player missed only 18 days of the season due to the fact that the third employment contract only started on 2 February 2020. Additionally, the player argued that the club waived any disciplinary action as soon as the player returned to Japan, therefore not allowing it to later in April apply the fine of USD 330,000, which the player deems to be disproportionate.

b. The second absence was communicated to the club and was due to “catastrophic” situation where the player was running the risk of being separated from his children in the midst of the COVID pandemic.

57. The player further outlined that he could have re-entered Japan in spite of the pandemic, rendering the termination of the contract unlawful. The player filed an expert witness statement in support of this allegation.

58. The player further referred to the FIFA COVID Guidelines and argued that “the decision-making bodies of FIFA – including but not limited to the FIFA DRC – were only going to recognise unilateral terminations if they took place and respected the premises of (i) good faith, (ii) reasonability and (iii) proportionality”.

59. The request of the player were as follows:

“FIRST - To set aside in fully the statement of claim filed by the Club;

SECOND – To confirm the counter-claim herein filed by the Player;

THIRD - To order the Club to pay to the Player USD 230,000 (two hundred thirty thousand dollars) due as outstanding basic salary of April, plus default interest at rate of 5% annually as from 26 April 2020 until the date of effective payment;

FOURTH - To order the Club to pay to the Player USD 1,000,000 (one million dollars) due as outstanding bonus-salary due in April, plus default interest at rate of 5% annually as from 1 May 2020 until the date of effective payment;

FIFTH – To order the Club to pay to the Player USD 2,739,466* (two million seven hundred thirty-nine thousand four hundred sixty six Euros) due as compensation, plus default interest at a rate of 5% annually as from 4 May 2020 until the date of effective payment

SIXTH – To ban the Club to transfer any new football players nationally and internationally for the 2 (two) next registration period (cf. Article 17, par. 4 of the FIFA RSTP); and

SEVENTH - To confirm that the whether there is the necessity to pay any procedural in relation to the ongoing dispute the Club shall afford it in full, exempting the Player of any obligation whatsoever”.

60. The compensation sought by the player is broken down as follows:

a. USD 1,359,466 as mitigated compensation;

b. USD 1,380,000 as additional compensation.

c. Reply of Corinthians

61. Corinthians, for its part, rejected the club’s claim and argued that it did not induce the player to breach his contract with Nagoya. In Corinthians’ opinion, the media articles filed by Nagoya are not capable of demonstrating that inducement took place.

62. Additionally, Corinthians argues that “at no time made any contact approach or proposal to the Player while the Player was under contract with Club Nagoya. No action was taken by Corinthians related to the Employment Contract between Nagoya and the First Respondent”. What is more, Corinthians argued as follows: “the Employment Contract of the Player was terminated by Nagoya in reason of professional violations committed uniquely by the player, as claimed by Club Nagoya itself. It is preposterous admit that Corinthians had any involvement related to the unauthorized absences of the Player during the term of the Player’s Employment Contract, as alleged by Club Nagoya”.

63. In continuation, Corinthians argued that the application of art. 17 par. 2 of the FIFA Regulations on the Status and Transfer of Players cannot be presumed and must be analysed in a case by case basis. Consequently, Corinthians is of the position that (i) it has not committed any inducement or has not been at fault concerning the breaches of the Player’s contract and the consequently termination of contract; (ii) the player was a free agent, since Nagoya dismissed him; (iii) the alleged breach would have occurred outside the protected period.

64. As an alternative prayer for relief, Corinthians requested “to reject all the amounts as compensation claimed by Club Nagoya, since such request is absolutely excessive and is unfounded. In the unlikely event of Corinthians’ liability, Corinthians requests FIFA DRC to quantify the compensation, bearing in mind that the Second Respondent has always acted as a third party in good faith concerning the employment relationship existed between Nagoya and the Player”.

d. Reply to the counterclaim by Nagoya

65. The club rejected the player’s position and argued that the player filed no evidence in support of its allegation that the club’s medical staff was incapable of treating the player’s injury.

66. What is more, the club detailed that it “disputes the Player’s claim that the Player had the right to travel to Brazil to receive a second “medical” opinion (which is, in any case, arguable). Indeed, the Player complained that the reason behind his trip to Brazil was the impossibility to avail himself of the services of Mr. Domenech, who is a physiotherapist and not a “medical specialist”. Additionally, the club explained that “A physiotherapist does not belong to the “medical specialist” category and the Player had no rights whatsoever to receive a second opinion for physiotherapy treatments just because he did not like the physiotherapist designated by the Club within its staff. Thus, the unilateral choice of the Player to disregard the Club’s instructions and the lack of authorization for his return in Brazil shows the attitude of the Player vis-à-vis his employer-club, i.e. an absolute lack of respect and consideration for any instructions received and his blatant disregard towards his obligations as a professional player.”

67. In this regard, the club stressed that the player admits to have gone to Brazil contrarily to its instruction. Therefore, the club is of the opinion that his absence is unjustifiable, even more so due to the fact that the player left Japan on 26 January 2020 and the club’s first team arrived back from the pre-season trip on 28 January 2020. The club argued that if the player was concerned about the quality of his medical assistance in Japan (which the club disputes was adequate and professional), the player could have waited for 2 more days instead of leaving to Brazil and staying there until 20 February. The club furthermore submitted that “the obligation of the Player to actively participate in the above activities of the Club was particularly important. He was the best player and one of the most experienced, if not the most experienced, player on the team. Therefore, his participation in the team’s activities were fundamental to make a difference, either before the game in the locker room or on the bench. His illegitimate choice to abandon the team was dreadfully serious. With the exception of the Player, all the Club’s employees were at the Club’s disposal. Being in Brazil, the Player clearly disregarded his obligations vis-à-vis the Club and showed disrespect to his teammates and the other members of the Club”.

68. The club furthermore argued that even if it is considered that the contract 2020 started on 2 February 2020, an 18 day absence is serious enough to constitute just cause. In addition, regarding the player’s first absence, the club argued that “While the Club did not immediately impose disciplinary sanctions on the Player, they never communicated to the Player that his behavior was acceptable. In fact, while the Club reserved the right to take legal action, they were not required to take any disciplinary action”.

69. With regards to the player’s second absence, the club argued that the player did not show any evidence that he applied, at the time, for an exception authorization by the Japanese government to re-enter the country, and that it is speculative if such authorization would be granted. In any event, the club is of the opinion that by February/March, upon start of the COVID pandemic, the player could have made arrangements to have his children fly to Japan, but instead he chose to abandon Japan in April 2020. In this respect, the club underlined that it had expressly instructed its players not to travel further form the Aichi borders.

70. The club furthermore argued that it was important for the players and staff to be ready as soon as activities could resume, which took place only two weeks after the player left for Brazil and he no longer could join the club’s squad. The club highlighted that the player was the only one that put himself in such position.

71. The club further outlined that it could not indicate a date for the player’s return in light of the fact that this could not be determined due to the COVID restrictions imposed by the local authorities. What is more, the club described that “the Japanese government had imposed the entry ban so [the player] would not have been permitted to return to Japan”, and that “On 1 May 2020 when the Player sent an email to Mr. Omori informing the latter that he intended to return to Nagoya no later than 6 May 2020, the Player would not have been permitted to enter Japan as the entry ban was and still is in force today”. The club hence concluded that “the Player had left the country while the entry ban was in place, he would not be permitted to reenter the country for an indefinite period of time. Considering that this was the Player’s second unauthorized absence within three months, the Club determined that the Player had abandoned his responsibilities and sent a letter of termination dated 2 May 2020”.

72. The club further indicated that the plane tickets bought by the player to return to Japan also bear a return flight to Brazil dated 2 July 2020, which in the club’s view shows that the player never really intended to remain in Japan.

73. In continuation, the club argued that “While the Club recognizes that these events occurred in the midst of a global crisis, that does not permit the Player to breach the Agreement, especially since the Player’s unilateral choices to disregard the Club’s instructions and denials definitely contributed to the injurious situation of the Club, as his employer”. The club submitted that “The Player left Japan after the entry into force of these measures and he was well informed of the risks. Despite this prohibition and contrary to the Club’s instructions, the Player chose to travel to Brazil and thus to take the risk of not being able to return back to Japan. These issues were already present on the day that the Player left Japan for Brazil and can thus not be qualified as events of force majeure”.

74. Lastly, the club rejected the player’s counterclaim and reiterated the position outlined in its statement of claim. As an alternative prayer for relief, the club requested, should it be deemed that it did not have just cause to terminate the contract, “to deduct all the amounts agreed between the First Respondent and the Second Respondent from any amount possibly awarded to the Player”.

e. Final comments by the player

75. The player reiterated his position and argued that there was no reason that prevented him from travelling with the team during the pre-season in spite of his injury and also that “it is important to stress that the Player tried to stay under the medical care of the Japanese medical staff of the Club for few days but, unfortunately, the results were far distant from what would be acceptable. It was within this context that the Player decided to travel to Brazil in order to undergo proper medical treatment”. The player emphasised that he went to Brazil as it was his “fundamental right”. The player referred to FIFA Circular 1171 in this respect.

76. The player in continuation referred to the termination of the contract and argued that the club is, in bad faith, changing its position. The player in this respect referred to the termination letter and underlined that such termination was made by the club “not because of the coronavirus but because of your irresponsible and unilateral decision to leave the Club and the country”. Additionally, the player reiterated that he would be able to re-enter Japan since one of his children was enrolled in a local school and he was seeking medical treatment there.

77. The player emphasized that the termination of contract was disproportionate and that it was not ultima ratio by the club. The player referred to the jurisprudence of CAS and highlighted that “the Club never communicated the Player that if the latter did not return to Nagoya (Japan) up to certain date, moment or place it was going to unilaterally terminate the employment contract”. The player further added that “There is an unjustified non-appearance at or leaving of the working place when the employee is absent for a certain amount of time and the employer can reasonably assume that it is not in the employee’s intention to return and that his decision is final”.

78. The player reiterated his requests for relief.

f. Final comments by Corinthians

79. Corinthians did not file any final comments despite having being invited by FIFA to do so.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

80. 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 24 May 2020 and submitted for decision on 24 November 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

81. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition October 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, a Japanese club, and a Brazilian club.

82. 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 Player (edition October 2020), and considering that the present claim was lodged on 24 May 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

83. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

84. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

85. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

i. Main legal discussion and considerations

86. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute whether the club terminated its contractual relationship with the player with just cause or not.

87. In order to do so, the DRC started by taking note of the absences of the player, which are directly connected to the said termination. Accordingly, the DRC emphasized that the parties do not dispute that in the two occasions that the player in which the player left Japan in January and April 2020, he was not authorized to do so by the club. The Chamber took due note of the fact that the player provided a number of reasons in his submissions as to why he decided to leave Japan; but in any event the DRC confirmed that the lack of authorisation by Nagoya remains clear and unquestionable.

88. As to the first unauthorized absence, the Chamber found noticeable that while the pre-season seemed to fall outside of the period under which the contract 2020 and the memorandum were in force, the player himself not only spontaneously attended the call by the club to take part in such pre-season, but also he recognized that it was “obvious” that he would do so. Consequently, the Chamber deemed that the player expressly acquiesced to train and be present in Japan, and accordingly found that the position of the player that the club could not contractually oblige him to be present in Japan during January 2020 cannot be upheld.

89. In this respect, the DRC turned to the player’s argumentation that the medical treatment provided by the club was flawed and it was his “fundamental right” to seek treatment abroad. The DRC underlined that the player filed no concrete evidence that the medical/physiotherapeutic treatment provided by the club was not adequate. Conversely, the Chamber observed the clear contents of the witness statement of Mr. Domenech filed by Nagoya, a professional with whom the player had no queries.

90. Additionally, the Chamber emphasized in any event that as the club correctly argued, an 18 day absence can be considered, under the specific circumstances of the case, a serious breach of the player’s contractual duties. Moreover, the Chamber recalled the jurisprudence of the Dispute Resolution Chamber and noted that it is not a “fundamental right” of the player to be treated abroad.

91. As to the second absence, the player again left Japan without authorization, rendering it impossible for him to go back due to the travel restrictions in that country due to the COVID-19 pandemic. To this end, the Chamber highlighted that the player has failed to meet his burden of proof to demonstrate that he could re-enter the country – the expert witness statement filed by the player was found to be inconclusive and generally speculative in this respect. More in particular, the DRC outline that the player did not provide concrete evidence that the Japanese government had allowed him to enter the country during the lockdown period.

92. In addition, the DRC stressed that the situation of the player can be attributed to no one else but the player himself, as he had left the country in January to later return to Japan unaccompanied by his family. Had the player complied with the club’s instructions to remain in Japan, he would have not found himself separated from his family – and ultimately would have not triggered the termination of the contract by Nagoya.

93. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

94. Bearing the foregoing in mind, the Chamber was comfortable to establish that the player had breached the contract. The DRC concurred that in view of the particular circumstances of the case, and given the player’s violation of a direct and legitimate instruction by the club in more than one occasion, coupled with the impossibility of the player to re-enter Japan, it was not reasonably expected from the club that the contractual relationship of the parties could continue. Consequently, the Chamber found that the club terminated the contract with just cause, and the player is liable for the consequences thereto.

ii. Consequences

95. The Chamber moved subsequently to the consequences for the breach of contract by the player, and determined that they were twofold as they gave respect to the fines imposed by the club and to the compensation payable to Nagoya.

96. With regards to the fines imposed, the DRC outlined that they had a clear and undisputed contractual basis. However, the DRC was firm to conclude that the club imposed a number of fines for one offense only: the absence of a player from the country. Accordingly, and moreover bearing in mind the substantial amount involved vis-à-vis the player’s salary, the DRC did not find it neither reasonable not justifiable to entirely uphold such fines.

97. Additionally, as explained above, the DRC concluded that the player breached the contract by leaving Japan without authorization in April 2020, and concurred that compensation for breach of contract is payable for such breach as the contract was terminated with just cause. Consequently, no fines are to be imposed on the player for his absence in April 2020.

98. On account of the foregoing, the Chamber decided that the fines imposed on the player should be reduced. Considering the severity of the infringements committed by the player pertaining solely to the player’s absence in January 2020 as detailed above, the DRC decided to reduce the amount of the fines imposed on the player to USD 69,000, which is equivalent to 30% of the player’s monthly salary of USD 230,000 in line with the “bylaws for sanctions”.

99. As a consequence and in line with the principle of pacta sund servanda, the DRC decided that the player shall pay USD 69,000 to Nagoya as a contractual penalty.

100. In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations, according to which the player is liable to pay compensation to Nagoya. Furthermore, pursuant to the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. Corinthians, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the player’s new club is independent from the question as to whether the new club has committed an inducement to contractual breach or any other kind of involvement by the new club. This conclusion is in line with the jurisprudence of the DRC, which has been repeatedly confirmed by the Court of Arbitration for Sport (CAS). Notwithstanding, the Chamber recalled that in accordance with art. 17 par. 2 of the Regulations, it should be assumed that, unless otherwise proven, any club that signs a contract with a professional player who has terminated his/her contract without just cause has induced the player to terminate such contract.

101. In continuation, the Chamber 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 as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period.

102. The Chamber at this point confirmed that the contractual breach did not fall within the protected period as the player was born on 20 March 1987 and his three-season long contract with Nagoya was executed on 14 January 2018.

103. In application of the relevant provision, the Chamber held that it had firstly to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. Upon careful examination of said contract, the members of the Chamber assured themselves that this was not the case in the matter at stake. For the sake of completeness, the Chamber referred to USD 20,000,000 buy-out fee included in the memorandum, and firmly concurred that the relevant clause does not give any respect to the compensation payable in case of breach of contract; rather, the memorandum itself establishes that in such case “Art. 17 of the FIFA Regulations on the Status and Transfer of Player shall apply”.

104. Proceeding then to the calculation of the amount of compensation due by the player, the Chamber firstly turned its attention to the remuneration and other benefits due to the player under the existing contract and/or any new contract(s), a criterion which was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any new contract(s) in the calculation of the amount of compensation.

105. According to the documentation provided by the parties, it appears that in accordance with the contract 2020 (and the memorandum), which was to run until 1 January 2021, the player was on one hand to receive a total remuneration of USD 1,840,000. This amount includes the player’s remuneration from May to December 2020.

106. At this point, the DRC emphasized once again that the player left Japan without authorization in April 2020, not rendering any services to the club in that month. Since neither the club could enjoy the player’s services and the player did not perform any work for the month of April 2020, coupled with the fact that the club terminated the contract with just cause, the Chamber concurred that the remuneration regarding that month could not be taken into consideration for the purposes of assessing the compensation due to Nagoya as the contract was not being performed.

107. On the other hand, the value of the employment agreement concluded between the player and Corinthians appears to amount to USD 385,960 for the relevant period.

108. In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of the Regulations, after having duly taken into account the specificities of the present case, the compensation considering the player’s both existing contract and any new contract(s) amounts to USD 1,112,980, which is the average between the amounts the player is entitled to both under the contract with Nagoya and new employment agreement with Corinthians, a sum the Chamber found to be fair and proportionate. For the sake of completeness, the Chamber wished to clarify that in order to properly calculate the aforementioned average it was necessary to consider the amounts due to the player under the Corinthians’ employment agreement for the same period of time remaining in the contract 2020/memorandum. In other words, the DRC clarified that in order to properly calculate the average of the amounts due to the player under both the former and the new contract, it had to (fictionally) match the period of the Corinthians’ agreement to match the original term of the contract 2020/memorandum.

109. The members of the Chamber then turned to the criterion relating to the fees and expenses paid or incurred by Nagoya in accordance with art. 17 par. 1 of the Regulations. The Chamber recalled that the Claimant argued that a transfer compensation of USD 10,000,000 had been paid by Nagoya to Corinthians, documentation of which has been presented by Nagoya and was confirmed by the information available to the Chamber in TMS.

110. The Chamber deemed that the unamortized transfer fee incurred by Nagoya fits into the description of article 17 par. 1 of the Regulations referring to the fees and expenses paid or incurred by the former club (amortised over the term of the contract), and therefore could be considered as part of the compensation to be granted. Said unamortized transfer fee corresponds to 8/35 of the USD 10,000,000 paid, i.e. 8 months remaining out of a total of 35 moths originally agreed under the memorandum, arriving hence at the amount of USD 2,285,714.

111. Subsequently, the DRC noted Nagoya’s request for the agents fees incurred in connection with the transfer of the player, and found that the club failed to meet its burden of proof in this regard. From the confused wording and multiple companies involved, the DRC determined that it could not be comfortably established whether the agreements referred to the transfer of the player at stake. As such, the DRC rejected the club’s request in this respect.

112. Therefore, the DRC found that the amount of USD 2,285,714 was to be taken in consideration as expenses incurred by Nagoya in accordance with art. 17 par. 1 of the Regulations in the calculation of the relevant compensation to be paid by to the club.

113. On account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the player must pay the amount of USD 3,398,694 (i.e. USD 1,112,980 plus USD 2,285,714) to Nagoya as compensation for breach of contract without just cause. Furthermore, Corinthians is jointly and severally liable for the payment of the relevant compensation.

114. In addition, taking into account Nagoya’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the player and Corinthians must pay to Nagoya interest of 5% p.a. on the amount of compensation as of the date of claim until the date of effective payment.

iii. Compliance with monetary decisions

115. Finally, the Chamber 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.

116. In this regard, the DRC pointed out that, against players, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from playing in official matches, up until the due amounts are paid and for the maximum duration of six months.

117. Additionally, 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 and for the maximum duration of three entire and consecutive registration periods.

118. Therefore, bearing in mind the above, the DRC decided that, in the event that the player does not pay the amounts due to Nagoya within 45 days as from the moment in which Nagoya, communicates the relevant bank details to the player, provided that the decision is final and binding, a ban from playing in official matches, for the maximum duration of six months shall become effective on the player in accordance with art. 24bis par. 2 and 4 of the Regulations.

119. Likewise, the DRC decided that, in the event that Corinthians does not pay the amounts due to Nagoya within 45 days as from the moment in which Nagoya communicates the relevant bank details to Corinthians, provided that the decision is final and binding, 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 Corinthians in accordance with art. 24bis par. 2 and 4 of the Regulations.

120. The DRC recalled that the above-mentioned bans 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.

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

122. In conclusion, the DRC decided to partially accept Nagoya’s claim and reject the player’s counterclaim.

d. Costs

123. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

124. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of Nagoya/Counter-Respondent, NAGOYA GRAMPUS, is partially accepted.

2. The counterclaim of the Respondent 1/Counter-Claimant, JOAO ALVES DE ASSIS SILVA, is rejected.

3. The Respondent 1/Counter-Claimant has to pay to Nagoya/Counter-Respondent the following amounts:

- USD 69,000 as contractual penalty;

- USD 3,398,694 as compensation for breach of contract without just cause plus 5% interest p.a. as from 24 May 2020 until the date of effective payment.

4. The Respondent 2, SC CORINTHIANS PAULISTA, is jointly and severally liable for the payment of the aforementioned compensation.

5. Any further claims of Nagoya/Counter-Respondent are rejected.

6. Nagoya is directed to immediately and directly inform the Respondent 1/Counter-Claimant and the Respondent 2 of the relevant bank account to which the due amounts must be paid.

7. The Respondent 1/Counter-Claimant and the Respondent 2 shall provide evidence of payment of the due amounts in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amounts due, plus interest as established above are not paid by the Respondent 1/Counter-Claimant within 45 days, as from the notification by Nagoya/Counter-Respondent of the relevant bank details to the Respondent 1/Counter-Claimant, the following consequences shall arise:

 1.

The Respondent 1/Counter-Claimant shall be restricted on playing in official matches up until the due amount is paid and for the maximum duration of six months. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is not paid within the granted deadline, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

9. In the event that the amounts due, plus interest as established above are not paid by the Respondent 2 within 45 days, as from the notification by Nagoya/Counter-Respondent of the relevant bank details to the Respondent 2, the following consequences shall arise:

 1.

The Respondent 2 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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

10. The decision is rendered free of costs.

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).

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