Everton Ramos da Silva, Al Nassr Football Club v. Al Nassr Football Club, Everton Ramos da Silva, Shanghai Shenxin FC

II. FACTUAL BACKGROUND

5. The elements set out below are a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence adduced and at the hearing. Additional facts and allegations found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in the award only to the submissions and evidence it considers necessary to explain its reasoning.

6. On 1 July 2013, the Player and the Club entered into an employment contract valid from 1 July 2013 until 30 June 2015, i.e. for a period of two years (hereinafter referred to as the “Contract”).

7. The material obligations under the Contract are set out as follows:

“Article 3:

The player is committed to participate and devote all of his efforts and capabilities during training sessions and matches as required by the club anywhere any time as determined by the club unless his h ealth status doesn’t permit (as approved by a medical report issued by an authorized medical identity).

Article 19:

The club shall pay to the Player during the term of this contract the following payments:

- USD 1,008,000 payable in 24 monthly salaries of USD 42,000 “at the end of each month;

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

• USD 500,000 payable on 20 August 2013;

• USD 246,000 payable on the 1 February 2014;

• USD 500,000 payable on the 1 July 2014;

• USD 246,000 payable on the 1 February 2015;

• 5 business class return tickets for the player and his family (Sao Paulo- Riyadh).

Article 25:

All correspondences and notification related to this contract shall be addressed to both parties’ addresses as shown in this contract unless otherwise notified by either party in writing of any change in the address”.

In this respect the “mailing address” indicated in the preamble of the Contract referred only to “P.O. Box 60506 Postal Code 11555”.

8. On 1 July 2013, an “Annex of employment contract” (hereinafter referred to as the “Annex”) was signed between the Club and the Player (which existence and duly signature has been challenged by the Club).

9. The Annex stipulates that the following fines will be imposed on the Club if the Club “fails to timely execute the sign-fee payment”:

a. USD 250,000 for the payment due on 20 August 2013;

b. USD 125,000 for the payment due on 1 February 2014;

c. USD 250,000 for the payment due on 1 July 2014;

d. USD 75,000 for the payment due on 1 February 2015.

10. On 8 April 2014, the Player lodged a claim in front of the FIFA Dispute Resolution Chamber (hereinafter referred to as the “DRC”) against the Club, alleging that he terminated the Contract with just cause on 31 March 2014 and requesting a compensation in the amount of USD 2,871,500 plus 5% interest from the due dates, calculated as follows:

a. USD 210,000 as outstanding remuneration for the salaries of November 2013 to March 2014 (5x USD 42,000);

b. USD 317,000 for the “rest value of the compensation” due on 20 August 2013;

c. USD 246,000 for the payment due on 1 February 2014;

d. USD 375,000 for the fines regarding the payments due on 20 August 2013 and 1 February 2014 (USD 250,000 + USD 125,000);

e. USD 630,000 for the “rest value” of the salaries until June 2015 (15x USD 42,000);

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

f. USD 746,000 for the payments due on 1 July 2014 and 1 February 2015;

g. USD 325,000 for the fines due on 2 July 2014 and 2 February 2015;

h. USD 7,500 for one flight ticket to Riyadh- Sao Paulo (invoice for Saudi Riyal (SAR) 28,250 dated 27 December 2013 provided by the Player);

i. USD 15,000 for legal costs.

11. The Player explained that the Club, from the beginning of the Contract, was in default of its payment obligations.

12. The Player indicated before the DRC that:

a. he sent the Club an e-mail on 7 October 2013 asking for his outstanding salaries, followed by a second notification on 11 November 2013 to SAFF asking the latter “to use its rules to ask and push” the Club to pay its debts “before the opening of the new transfer window”;

b. in December 2013 the Club allowed him to travel to Brazil to be with his son (who was suffering from an illness), that he left the Club on 28 December 2013 and was bound to return on 10 January 2014. However, according to the Player, the Club did not facilitate the issuance of his visa (iqama) with respect to this return from Brazil to the Kingdom of Saudi Arabia;

c. his agent sent an e-mail on 6 January 2014 to the Club asking for the latter’s assistance in issuing a visa to the Player’s family. Such e-mail remained unanswered according to the Player’s submissions before the DRC;

d. the Club remained passive to his requests of paying his outstanding salaries and issuance of a visa to his family, hence he was obliged to stay in Brazil and was unable to carry out his profession;

e. on 16 February 2014, the Club issued a letter to the Player stating that it was ready to terminate the Player’s Contract on the condition that the Club will ask for no transfer fee from the Player (in case of a transfer to another club) nor that the Player will ask for any compensation from the Club;

f. that this letter was a basis to consider his Contract still valid as of the date of its issuance and that he terminated his Contract on 30 March 2014 for just cause.

13. In its answer to the Player’s claim lodged before the DRC, the Club argued that:

a. The employment contract and Annex were not approved by the SAFF;

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

b. “Whatsapp” messages as referred to by the Player of his communication with the Club could not be regarded as valid proof;

c. The email of 6 January 2014 was sent to “unknown people which has no relation with the Club”;

d. The Player had a residency permit which was valid until 23 November 2014;

e. To obtain the visa for his family, the Player had to be in Saudi Arabia to make the application. Therefore, his allegations that the Club “did not make the visa for his family is without sense”.

14. The Club lodged a counterclaim against the Player and the Chinese club, being the new club of the Player, where the latter signed an employment contract on 23 July 2014, requesting compensation for the breach of the Contract in the amount of USD 2,295,163 plus interest calculated as follows:

a. USD 187,000 as the non-amortised part of the commission of USD 250,000 paid to the agent Mr. Rossi, USD 50,000 in cash and USD 200,000 by bank transfer;

b. USD 50,000 since the replacement of the Player earned USD 50,000 more;

c. USD 1,667,776 as the transfer fee paid for the replacement of the Player;

d. USD 34,685 for damages to the Player’s villa;

e. USD 625,000 as extra compensation corresponding to 6 monthly salaries.

f. The Club further argued that it had imposed a deduction of 50% of the Player’s November 2013 salary for leaving the training camp on the evening before an important match on 25 November 2013, which match he missed. The Club argued that it only knew the reason of the Player’s refusal to partake at a later stage.

g. The Club admitted that it owed the Player half of his November 2013 salary, and the December 2014 salary being late in addition to the down payment due on 20 August 2013. However, the Club argued before the DRC that the amount outstanding was small comparing to the “generous amount of USD 351,000” already received by the Player. Further, the Club argued that it had not received any communication from the Player notifying the Club of its default. Therefore, the Player had no just cause to terminate the Contract. Furthermore, the Club stated that the Annex submitted by the Player was forged since the President of the Club never signed it, the document did not bear the stamp of the SAFF, which was a requirement in accordance with the SAFF Regulations, and it was obvious that the Club would never agree to such high penalties.

15. The Chinese club informed the DRC that it had signed a contract with the Player in July 2014 and had been informed by the Player’s representative that the Player had terminated his

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

Contract with the Club in April 2014. Furthermore, after receiving further documents from the Player indicating his termination of the Contract with the Club in April 2014, the Chinese Club signed an employment contract with the Player on 23 July 2014. The Chinese Club further added that the Club had agreed to release the ITC of the Player and never objected nor indicated that the Player was in breach of his contract.

16. On 21 January 2015, the DRC issued its decision with respect to the claim lodged by the Player and the counter-claim lodged by the Club and concluded the following:

1) The claim of the Claimant/Counter-Respondent 1, Everton Ramos da Silva is partially accepted.

2) The claim of the Respondent/Counter-claimant, Al Nassr Football Club is rejected.

3) The Respondent/Counter-claimant has to pay the Claimant/Counter-Respondent 1, within 30 days as from the date of notification of the present decision, outstanding remuneration in the amounts of USD 401,000 and SAR 29,250 plus 55 interest p.a. until the date of effective payment as follows:

i. 5% p.a. as of 21 August 2013 on the amount of USD 317,000;

ii. 5% p.a. as of 1 December 2013 on the amount of USD 42,000;

iii. 5% p.a. as of 1 January 2014 on the amount of USD 42,000;

iv. 5% p.a. as of 28 December 2013 on the amount of SAR 29,250.

4) The Respondent/Counter-claimant has to pay the Claimant/Counter-Respondent 1, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of USD 978,000 plus 5% interest p.a. on said amount as from 8 April 2014 until the date of effective payment.

5) In the event that the amounts due to the Claimant/Respondent 1 in accordance with the abovementioned (3 and 4) are not paid by the Respondent/Counter-claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and formal decision.

6) Any further claim lodged by the Claimant/Counter-Respondent 1 is rejected.

7) The Claimant/Counter-Respondent 1 is directed to inform the Respondent/Counter-claimant immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.

17. The grounds of the DRC decision were communicated to the Parties on 5 May 2015.

III. PROCEEDINGS BEFORE THE COURT OF A RBITRATION FOR SPORT

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

18. On 26 May 2015, the Player filed his Statement of Appeal before the Court of Arbitration for Sport (hereinafter referred to as the “CAS”) against the Club with respect to the decision rendered by the DRC on 5 May 2015 (hereinafter referred to as the “Appealed Decision”).

19. The Player requested that his appeal be submitted to a sole arbitrator, but nominated Mr Frans de Weger, attorney-at-law in Zeist, the Netherlands, as arbitrator, in case the dispute would be referred to a Panel of three arbitrators.

20. On that same day, the Club filed a Statement of Appeal before the CAS against the Player and the Chinese club with respect to the Appealed Decision. In its Statement of Appeal, the Club requested that its appeal be submitted to a sole arbitrator, but nominated Mr Jirayr Habibian, attorney-at-law in Dubai, United Arab Emirates, as arbitrator, in case the dispute would be referred to a Panel of three arbitrators.

21. On 1 June 2015, the CAS Court Office initiated an appeals arbitration procedure under the reference CAS 2015/A/4081 Everton Ramos da Silva v. Al Nassr Football Club and requested the Club to inform it within five days whether it agreed to submit the dispute to a sole arbitrator.

22. On 3 June 2015, the CAS Court Office initiated an appeals arbitration procedure under the reference CAS 2015/A/4087 Al Nassr Football Club v. Everton Ramos da Silva & Shanghai Shenxin FC and requested the Player and Chinese club to inform it within five days whether they agreed to submit the dispute to a sole arbitrator. Moreover, the CAS Court Office noted that an appeal procedure (CAS 2015/A/4081) was already pending in relation to the Appealed Decision and invited the Club, the Player and the Chinese club to inform it within three days whether they would agree to consolidate the two proceedings, pursuant to Article R52 of the Code of Sports-related Arbitration (hereinafter referred to as the “Code”).

23. On 5 June 2015, the Player filed with the CAS its Appeal Brief in the proceedings CAS 2015/A/4081 in accordance with Article R51 of the Code. The Club did not file an answer with the CAS in accordance with Article R55 of the Code.

24. On 11 June 2015, the Club filed its Appeal Brief in the proceedings CAS 2015/A/4087 in accordance with Article R51 of the Code.

25. On 6 July 2015, the Player filed his Answer in the proceedings CAS 2015/A/4087 in accordance with Article R55 of the Code. The Chinese Club did not file any Answer with the CAS in accordance with Article R55 of the Code.

26. On 13 July 2015, in the absence of any communication from all three parties on both the issue of consolidation and the number of arbitrators, the President of the CAS Appeals Arbitration Division decided to consolidate the proceedings CAS 2015/A/4081 and CAS 2015/A/4087, pursuant to Article R52 of the Code, and to submit the consolidated proceedings to a Panel of three arbitrators, pursuant to Article R50 of the Code.

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

27. In the above-mentioned letter of 13 July 2015, the CAS Office also invited the Player and the Chinese club to inform the CAS Court Office within ten days to either jointly confirm the nomination of Mr Frans de Weger or to jointly nominate a new arbitrator. The Player and the Chinese club were advised that their silence would be deemed as their tacit confirmation of the nomination of Mr de Weger.

28. On 20 July 2015, the Club requested to be reinstated in the time limit for the filing of the Answer in the proceedings 2015/A/4081.

29. On 24 July 2015, the CAS Court Office noted that the Player and the Chinese club had remained silent with regard to the joint confirmation of the nomination of Mr de Weger or a joint nomination of a new arbitrator and confirmed the joint nomination of Mr de Weger as arbitrator. The Club was granted a time limit of ten days to confirm its nomination of Mr Habibian. The Club was advised that its silence would be deemed as its tacit confirmation of the nomination of Mr Habibian.

30. On 5 August 2015, the CAS Court Office noted that the Club had remained silent with respect to the confirmation of the nomination of Mr Habibian and confirmed his nomination.

31. On 7 August 2015, Mr de Weger accepted his nomination, considering himself independent and impartial but disclosed some information to the attention of the parties and of the CAS.

32. On 10 August 2015, the CAS Court Office notified Mr de Weger’s “Arbitrator’s Acceptance and Statement of independence” form with the above-mentioned disclosures to the Parties.

33. On 16 August 2015, the Club filed a petition for challenge against the joint nomination of Mr de Weger pursuant to Article R34 of the Code.

34. The matter was referred to the ICAS Board for deliberation and on 21 December 2015 the ICAS Board rejected the petition to challenge Mr de Weger’s independence filed by the Club and decided that the “costs of the present order shall be determined in the final award”.

35. The decision of the ICAS Board was duly notified to the Parties, Mr. de Weger and Mr Habibian by CAS office on 22 December 2015.

36. The Club kept on insisting that the Panel was biased by the fact that Mr de Weger’s independence being questioned despite the ICAS Board’s decision which was duly notified to the Club.

37. On 20 January 2016, the CAS Court Office notified the Parties of the constitution of the Panel as follows:

President: Mr Lars Halgreen, Attorney-at-law, Copenhagen, Denmark Arbitrators: Mr Jirayr Habibian, Attorney-at-law, Dubai, United Arab Emirates Mr Frans de Weger, Attorney-at-law, Zeist, the Netherlands

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

38. On 23 February 2016, the CAS Court Office informed the parties of the Panel’s decision to dismiss the Club’s request for reinstatement in the time limit for the filing of the Answer in the proceedings CAS 2915/A/4081.

39. On 11 March 2016, the Parties were informed that a hearing would be held on 26 May 2015 in Lausanne, Switzerland.

40. On 4 May 2015, the Player respectively signed and returned the Order of Procedure to the CAS Court Office. On 11 May 2015, the Chinese club respectively signed and returned the Order of Procedure to the CAS Court Office. On 12 May 2015, the Club respectively signed and returned the Order of Procedure to the CAS Court Office.

41. On 26 May 2016, a hearing was held in Lausanne, Switzerland (hereinafter referred to as the “Hearing”). The Panel was assisted at the Hearing by counsel to the CAS, Mr Daniele Boccucci.

42. As a preliminary issue, the Panel considered the admissibility of the literature submitted by the Club.

43. The Player objected to the admission of the documents submitted by the Club.

44. With regard to the legal literature submitted by the Club, the Panel concluded to excluding the documents being filed outside the time limits permitted in the Code.

45. The Player was represented by Mr Roberto Branco Martins, attorney-at-law in Amsterdam, the Netherlands. The Player called the following witnesses via video conference:

- Mr Fernando César Souza;

- Mr Marcelo Robalinho Alves.

46. The Club was represented by video conference by Mr Boughrara Khaled, attorney-at-law, United Arab Emirates. The Club did not call any witnesses.

47. The witness testimonies called by the Player may be summarized as follows:

(i) The testimony of Mr Fernando César Souza (via video conference)

Mr Fernando César Souza (hereinafter “Mr Fernando”) was the representative of the Player in relation to his footballing career and took part in the negotiations of the Contract and the Annex. Mr Fernando informed the Panel that he went to Saudi Arabia and was involved in the negotiations on behalf of the Player in relation to his transfer to the Club. According to Mr Fernando, he met the President of the Club, HRH Faisal bin Turki bin Nasser bin Abdulaziz. The Club proposed the Annex with the fines in case of non-payment in order to give the Player

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

the security and tranquillity that the financial obligations towards him were going to be honoured in the future since the Player was concerned about non-payments due to the reputation of the Club. According to Mr Fernando, the Contract and the Annex were drafted by the Club. Mr Fernando confirmed that the Contract and the Annex were signed simultaneously. He and the Player signed the Contract and the Annex. The Club stamped the Contract and the Annex and sent it to the President to sign it. Mr Fernando confirmed that other players also had similar annexes.

(ii) The testimony of Mr Marcelo Robalinho Alves (via video conference)

Mr Marcelo Robalinho Alves (hereinafter “Mr Marcelo”) was the legal representative of the Player who attended the negotiations of the Contract and the Annex with the Player in Riyadh. Mr Marcelo informed the Panel about the role of Mr Rossi. According to Mr Marcelo, Mr Rossi contacted him after Mr Rossi was being mandated by the President of the Club about a player that was represented by Mr Marcelo. Mr Rossi made an offer in the name of the Club but the player that was represented by Mr Marcelo did not accept. According to Mr Marcelo, the Club had interest in the Player after Mr Marcelo informed the Club that he was an interesting player for the Club as an alternative for the player that was represented by Mr Marcelo. The Club liked the Player’s profile and therefore contacted Mr Fernando who was the lawyer/agent of the Player. Mr Marcelo informed the Panel about a meeting in Lausanne with Mr Rossi who was representing and mandated by the Club to start negotiations. After a discussion with Mr Fernando, the latter and Mr Rossi agreed on the financial details and reached an agreement. Mr Marcelo was asked about the circumstances regarding the conclusion of the Contract and the Annex. Mr Marcelo was present in Riyadh on and around 1 July 2013 when the Contract was negotiated with the Club. Mr Marcelo indicated that he was aware of the Annex. Mr Marcelo confirmed that the Annex being signed by the Player on the same date that the Contract was signed. According to Mr Marcelo, the rationale behind the amount of fines indicated in the Annex was related to the reputation of the Club and its status in relation to non-complying with payment obligations. Therefore, according to Mr Marcelo, the fines were a sort of an insurance to the Player. Mr Marcelo also remembered that the Annex was signed by him and the Player and stamped by the Club. He confirmed that the Annex was sent to the President of the Club for his signature, which was duly signed thereafter.

48. The Chinese club was represented at the hearing by Ms Rui Zhang and Mr Kai Cheong Derrick, attorneys-at-law in Shanghai, China.

49. Following the testimonies, the Parties presented their closing statements and conclusions. All Parties explicitly stated at the end of the hearing that they had no objection to the constitution of the Panel and that their right to be heard and to be treated equally in the arbitration had been fully observed and they all confirmed having duly signed the Order of Procedure. The representative of the Club was clearly asked by the President of the Panel whether he had any objection on the constitution of the Panel and he confirmed not having any objection on the

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

formation of the Panel and confirmed that his right to be heard had been fully observed by the Panel.

IV. SUBMISSIONS OF THE PARTIES

50. The following outline of the Parties’ positions which is illustrative only and does not necessarily comprise each and every contention put forward by the Parties. The Panel, however, has carefully considered all the submissions made by the Parties, even if no explicit reference has been made in what follows.

A. The position of the Player

51. In the Appeal Brief, the Player challenged the Appealed Decision and considered that the Appealed Decision should be partly set aside. It requested CAS to issue a new decision submitting the following requests for relief:

a) “To partly set aside the decision of the FIFA Dispute Resolution Chamber, respecting the decision of the existence of a just cause for a preliminary breach of contract by the player.

b) To issue a new decision in which your respected Court shall add to the calculation of damages of the decision of the FIFA Dispute Resolution Chamber:

c) The amount that Respondent is obliged to compensate on the basis of an Annex to the employment contract in which a fine was due in case of non or late payment of the salary. The addition amounts to 700.000 USD DOLLARS NET.

d) 140.000 Dollars as the FIFA Dispute Resolution Chamber wrongly calculated the amounts that Appellant was supposed to receive as a salary at his new club, and which served for the mitigation of the total amount of damages.

e) Therefore, in total an addition to the amount of damages and compensation of: 840.000 US DOLLARS NET. (total amount to be paid by Respondent USD 2.226.000, including the fixed 5% interest p.a. from very due date).

f) To order Respondent to bear all costs incurred with the present procedure.

g) To order Respondent to pay Appellant a contribution towards its legal and other costs in an amount to be determined at the discretion of the panel”.

52. In support of his requests for relief, the Player’s submissions, in essence, may be summarized as follows:

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

The Player does not appeal in relation to the Appealed Decision that the Player had a just cause to terminate the Contract. However, the Player submits that the DRC miscalculated the amounts that are due by the Club to the Player.

According to the Player, the DRC came to a total amount of USD 1.386.800, -- plus interest rate of 5% p.a. until the date of effective payment over:

- USD 317,000 as of 21 August 2013;

- USD 42,000 as of 1 December 2013;

- USD 42,000 as of 1 January 2014;

- USD 7,800 as of 8 December 2013.

In particular, according to the Player, the miscalculation was based on two false grounds. The first of those ground is that the calculation of the remuneration that the Player was going to receive at the Chinese club was less than what was included as a source of mitigation as calculated by the DRC, the Player stated the following. Due to the pressure in which the Chinese club found itself after the legal threat of the Club, the Player signed anothe r contract that manifested a decrease in salary. According to the Player, the total amount that the Player was going to receive for the period of the original rest-duration of the contract between the Player and the Club, was not USD 770,000 but USD 630,000. The difference between the calculation of the DRC and the amount the Player claimed was in reality USD 140,000.

The second false ground at the basis of the miscalculation of the DRC is that the DRC had not included a contractually agreed upon fine for the late payments of salaries in the calculation, the Player stressed that all fines as laid down in the Annex were due. The Player emphasised that the document was not a fraud and that it was completed in good faith. In order to demonstrate the authenticity of the Annex, the Player made reference to and submitted similar documents that were included in other contracts of former team mates with the Club. According to the Player, the Annex to the Contract is genuine. Therefore, according to the Player, the Pa nel must add the total amount of fines as laid down in the Annex to the compensation that was established by the DRC in the Appealed Decision.

53. In its Answer to the appeal of the Club, the submissions of the Player, in essence, may be summarized as follows:

The Player is of the opinion that it had a just cause to terminate the Contract with the Club.

According to the Player, the Club had presented many creative arguments as a justification for not paying in time or not paying at all. These arguments included a fine of 50% of the November 2013 salary based on regulations that had never been presented to the Player. An argument of the Club was that the Player could only receive parts of his salary in December 2013 because only then he could use his account. According to the Player, this is not correct since the account

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

was already in operation in October 2013. Furthermore, the Club raised an argument that it had no funds to pay the salary because it was depending on the SAFF for its incomes based on TV rights and sponsor income. According to the Player, also this argument is completely irrelevant and underlines that the Club was unable to duly perform its obligations.

The Player also stresses that arguments of the Club for not performing its financial obligati ons, such as the fact that “the Player had already received a generous amount” and that “the Player had a beautiful villa and a BMW car”, are irrelevant. According to the Player, the Club had no excuse for not paying the salary of the Player according to the Contract.

The Player claims that the Club was duly notified by the Player about late payments. The Player had already informed the Club on 7 October 2013 that it had failed the payments in the second and third months of the Contract (August and September). According to the Player, this was followed by a second official notification on 11 November 2013. Three letters then followed on 20, 27 and 31 March 2014. In the letter of 31 March 2014, the Player stated that there was no way back and the Player had to seek a satisfaction of the Contract before FIFA. The messages were sent to the people that were involved and present in the negotiations. With regard to the question as to whether or not the Club has received letters of the Player in which he summoned the Club to comply with its obligations, according to the Player, the letters were received by the Club since it stated that it was “bombarded” with letters.

The Player alleges that he asked for permission to move to Brazil and to take care of his son that was in sincere need of a medical treatment. The Player declares it is ready to witness about the health condition of his son during that period. The Player submits that the whatsapp messages between the Player and the President of the club also prove that the Club was aware and supported the travel to Brazil and that the necessary documents would be signed.

The Player submits, as opposed to the Club, that he did have to collaborate with the Club in order for him to obtain the visa (iqama) for the family. The Player submitted a page to prove that the assistance of the Club was needed with this very complex procedure.

The Player made reference to the fact that the Club positioned Mr Rossi as the agent of the Player. However, according to the Player, Mr Rossi was not his agent. The agent/lawyer for many years of the Player is Mr Fernando. It was Mr Rossi that approached the Player and his former colleague Mr Elton Rodrigues Brandão. The Player alleges that it was clear that Mr Rossi had been paid directly by the Club and that there was no representation contract nor mandate whatsoever allowing him to represent the Player. According to the Player, Mr Rossi worked for the Club. There was no documentation in which Mr Rossi appears as the agent of the Player.

The Player also makes reference to the position of the Chinese club. The Player submits that since the Player has a just cause, for this reason alone the Chinese club has nothing to do with any potential claim or sporting sanction. According to the Player, the Chinese club could have never induced the Player as more than 6 months had passed between the Player moving to Brazil and signing in China. Further to this, the Club agreed to delivering the ITC at the request

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

of the Chinese club. Due to the extra pressure on the Chinese club and the threat of the case before the DRC, the relationship between the Player and the Chinese club was also under pressure.

B. The position of the Club

54. In the Appeal Brief, the Club challenged the Appealed Decision and considered that the latter should be set aside. It requested CAS to issue a new decision submitting the following requests for relief:

1. “Accepts this Appeal against the Decision;

2. Replaces the appealed decision of 13 February. Decision of the FIFA DRC and issues a new decision.

3. to declare the player “Everton Da Silva” in breach of the labour contract without just cause.

4. To conform the sanction imposed by the club (50% deduction from November 2013 Salary following to the infringement committed by the player before 24 hours of the game of AL Hilal played on 25 November 2013).

5. to order the Player to send an invoice to SAFF to collect the overdue payment Set Off of USD

6. To order the player “Everton Da Silva” to pay an amount of USD 1,030,200, with interest at 5% from 24 July 2014.

7. To order the player to compensate the club the commission agent of USD 200,000paid to Mr. ROSSI.

8. To order the player to compensate the 6 months (i.e. 185,000 SA almost 50,000 USD) abandoned and without any prior permission to either EID Compound management to open the property.

9. To announce appropriate sanction on the club for breach of Art18.3 of FIFA TMS.

10. To declare “Shanghai Shenxin Football Club” jointly and severally liable with Mr “Everton Da Silva” to pay Al Nasr Saudi Club the amount of USD of USD 1,280,200, (One thousand Thirty dollars American dollars), with interest at 5% from 28 July 2014.

11. To order the appropriate Sportive sanctions on the player and the new club

12. Orders that the Respondents pay the amount so assessed; and

13. Order the Respondents to pay costs before the DRC and CAS in an amount to be assessed by the CAS.

14. in any case, to order to the Respondent to pay the entire cost of the present arbitration, if any;

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

15. in any case, to order the Respondent to pay the entire costs for the Appellant’s legal representation and assistance as well as other costs incurred by the Appellant in connection with this arbitration”.

55. In support of its requests for relief in the counter-appeal against the Player and the Chinese club, the Club’s submissions, in essence, may be summarized as follows:

The Club submits that the Player did not have a just cause to terminate the Contract.

The Club alleges that it imposed a disciplinary sanction corresponding to a 50% deduction of his November 2013 salary for refusing to partake in a match on 25 November 2013.

According to the Club, the Player left Saudi Arabia without permission of the Club. The permission was given verbally at a later stage at the moment the Club was informed about the illness of his son. The Player never provided the Club with proof of the illness.

The Club further submits that the Player bombarded the Club with intense correspondence including a letter of termination dated 20 May 2015.

With regard to the outstanding salaries, the Club alleges that the payments were late due to the fact that the SAFF fully controlled club incomes in relation to TV-rights and league sponsors. The Club alleges that it duly explained verbally the valid reasons for the delay in payments to the Player. The Player never warned the Club of any outstanding payments.

With regard to the visa, the Club submits that the Player allegedly invented a false sce nario so that he could not return to Saudi Arabia. According to the Club, the Contract did not stipulate that the Club was responsible to apply for the visa of his wife. The Player was aware of the Saudi Arabia rules in relation to immigration. According to the Club, the Player left the country unlawfully and with the intention not to return to Saudi Arabia.

C. The position of the Chinese club

56. The Chinese club in its submissions at the hearing before the Panel reiterated its position before the DRC and informed the Panel that:

a. It entered into an employment agreement with the Player on 23 July 2014 i.e. considerable time after the date of his termination of the Contract with the Club;

b. It undertook a proper due diligence prior to signing the agreement with the Player by ensuring the Player provided documentation that proved that his Contract with the Club was terminated, including but not limited to an undertaking by the Player that his Contract was terminated in April 2014;

Al Nassr FC v. Everton Ramos da Silva and Shanghai Shenxin FC, award of 12 January 2017

c. At the moment it requested the ITC of the Player in the TMS from the Club, the latter did not make any objection to the ITC issuance, nor made any remarks to the fact that the Player was in breach of his contract;

57. In view of the above, the Chinese club would like to ask the Panel to uphold the Appealed Decision related to the just cause of the Player in terminating the Contract and not to impose any sporting sanctions nor compensation on it.