The dispute between Hapoel Tel Aviv, an Israeli football club, and Gabriel Dos Santos Nascimento, a Brazilian professional football player, centered on the termination of their employment contract signed on 17 July 2007, which was set to run until 30 June 2011. The contract included provisions for salary, signing fees, and additional benefits such as flights, accommodation, and a car for the player and his family. After six months, the player was loaned to Sporting Club Recife in Brazil, where he suffered a serious knee injury. The loan was extended until 30 June 2009, and negotiations for a further extension until 31 December 2009 were initiated by the player’s agent. Hapoel countered with an offer to extend the loan until 30 June 2010 for a fee of USD 70,000, later negotiated down to USD 50,000. However, Recife withdrew its interest, and the player requested to return to Hapoel. The club refused, citing a lack of space in the team due to signed contracts with other players and the quota for foreign players. The player’s agent contested this, asserting the player’s right to return under the existing contract, but the club did not respond. The player then purchased his own flight tickets to return to Israel.
The legal principles governing the case revolved around compensation for breach of contract, as outlined in Article 17 of the FIFA Regulations for the Status and Transfer of Players. The calculation of compensation aimed to place the injured party in the position they would have been in had the contract been properly performed, considering factors such as the specificity of sport and the conduct of the parties. The Swiss Code of Obligations also allowed for a reduction in compensation if the injured party contributed to the loss or damage. The case highlighted the complexities of contractual obligations in football, including the balance between club interests and player rights, and the role of mitigating circumstances in determining fair compensation.
The dispute was adjudicated by the FIFA Dispute Resolution Chamber (DRC), which ruled in favor of the player, finding that Hapoel had breached the contract by refusing to reintegrate him and that the invoked contractual clause was invalid and inapplicable. The DRC awarded the player compensation after deducting earnings from his subsequent contracts. Hapoel appealed to the Court of Arbitration for Sport (CAS), arguing that the player had consistently sought to remain in Brazil on loan and that the club had relied on these representations when replacing him in the squad due to foreign player quotas. The player maintained that the club had unilaterally breached the contract by refusing his return.
The CAS panel partially upheld Hapoel’s appeal, reducing the compensation owed to the player by 20%. The panel found the player’s behavior questionable, noting he had shown little intention to play in Israel during his contract, spending only six months there out of 24. Despite a serious injury in October 2008, the player sought to remain in Brazil for medical care and attempted to stay there. Only when negotiations with Recife failed did he try to enforce his contract with Hapoel, which placed the club in a difficult position. The panel highlighted that all negotiations between Hapoel and Recife were conducted through the player’s agent, with no direct club contact, and the agent had communicated an agreement that was never formalized. While Hapoel was at fault for relying on this unformalized agreement, the player and his agent’s actions contributed to the misunderstanding. The panel also noted the player’s lack of communication with Hapoel for nearly two months, during which he sought to stay in Brazil.
The final compensation was set at NIS 2,154,832, plus interest. The CAS ruled to partially uphold Hapoel’s appeal, partially set aside the FIFA DRC’s decision, and dismissed all other claims. The case underscores the importance of clear contractual terms, the protection of players’ rights under FIFA regulations, and the complexities of resolving disputes in international football. The decision reflects a balance between upholding contractual obligations and considering the specific circumstances of the case.