Labour Disputes
Texto da decisão
REF. FPSD-10921
Decision of the
Dispute Resolution Chamber
passed on 21 September 2023
regarding an employment-related dispute concerning
the player Freddy Antonio Alvarez Rodriguez
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), member
Michele COLUCCI (Italy), member
CLAIMANT:
Freddy Antonio Alvarez Rodriguez, Costa Rica
Represented by Alberto Ruiz de Aguiar Diaz-Obregón
RESPONDENT:
Zdruzhenie Fudbalski Klub Shkupi 1927, North Macedonia
Represented by Talat Emre Kocak
pg. 2
REF. FPSD-10921
I. Facts of the case
1.
The parties to the dispute are the Costa-Rican player, Freddy Antonio Alvarez Rodriguez
(hereinafter: the Claimant or the player), and the North-Macedonian club, Zdruzhenie
Fudbalski Klub Shkupi 1927 (hereinafter: the Respondent or the club).
2.
On an unspecified date in July 2021, the Claimant and the Respondent concluded an
employment contract (hereinafter: the contract) valid until 16 June 2023.
3.
In accordance with the data available in the Transfer Matching System (TMS), the start date
of the contract was 21 June 2021, and the end date 14 June 2023.
4.
Under the contract and its annexe, the Respondent undertook to pay to the Claimant:
a.
b.
c.
d.
e.
f.
MKD 30,700 net as salary, payable by the 15th day of each subsequent month.
Additional monthly salary of EUR 3,500.
EUR 100 per goal scored.
EUR 75 per assist given.
EUR 4,000 if the club won the domestic championship.
EUR 4,000 if the club qualified for the UEFA Europa Conference League Group
Stage.
5.
According to the information displayed in TMS, the season 2022/2023 in North Macedonia
ran from 15 June 2022 to 14 June 2023.
6.
On 20 August 2021, the club issued the following decision with regards to payment of
bonuses to the team:
“DECISION
Article 1
A monetary award is approved for the Footballers, the Professional Staff and all the
employees of the club if in the case of the 2021/2022 season they win the first place in the
FIRST MACEDONIAN FOOTBALL LEAGUE.
Article 2
The total prize money will amount to EUR 200,000.00 (two hundred thousand).
Article 3
A table with a list of persons and amounts for the payment of cash transfers according to the
number of matches played and the individual performance of each football player will be
prepared after the end of the championship as an integral part of this decision.
Article 4
pg. 3
REF. FPSD-10921
The decision enters into force on the day of its adoption.
Article 5
The executive director and the professional services of FC Shkupi 1927 AD Skopje undertake
to approach its realization while respecting financial liquidity.”
7.
On 13 May 2023, the player and the club signed the following declaration (hereinafter: the
declaration):
“By means of this DECLARATION, signed this day of 13.05.2023, I, the undersigned,
professional football Player Freddy Antonio Alvarez Rodriguez, born on 26 April 1995, citizen
of Costa Rica, Passport No. O406527, issued by BCR-255 valid through 26.12.2027 (The
Player), hereby, on his own wish, without any kind of influence by the Club and any other third
party, declare the following:
I, the Player, declare, obligate and confirm to myself that subject to compensation already
received from the Club represent all of which I was entitled to receive concerning the Contract
of employment and other accompanying documents.
Further I confirm that as from this day 13 May 2023 year do not have and will not have in
future any law suits and/or complaints and/or demands from the Club concerning the period
I was employed by the Club, nevertheless regarding the salaries, premiums and/or for any
other benefit which was stipulated in the Contract of employment and any other
accompanying documents.”
8.
Per TMS, on 22 June 2023, the Thai club BGPU entered a transfer instruction to engage the
player on a permanent basis as a free agent. The player was ultimately registered with such
club on 5 July 2023. In such transfer instruction as “proof of last contract end date”, is found
a declaration issued by the Respondent, dated 1 July 2023 (hereinafter: the declaration),
stating as follows:
“This is to confirm that the employment contract between FC SHKUPI 1927 AD and Alvarez
Rodriguez Freddy Antonio has expired on 01/06/2023.”
9.
The Claimant confirms that he signed a new contract with BGPU as from 1 June 2023, valid
for one year, for a remuneration of THB 420,500 net per month (approx. EUR 11,000), plus
THB 60,000 (approx. EUR 1,500), as accommodation allowance, an unspecified car
allowance and air tickets.
10. Per TMS, the season 2023/2024 in Thailand started on 1 July 2023 and ends on 30 June
2024. The first registration period in that country was opened from 16 May 2023 until 4
August 2023.
pg. 4
REF. FPSD-10921
II. Proceedings before FIFA
11. On 14 July 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the Claimant
12. The player is seeking a total of EUR 16,106 as unpaid salaries and bonuses for the seasons
2021/2022 and 2022/2023. The breakdown of the amounts requested by the player is as
follows:
a. EUR 4,000 for the full salary of May 2023.
b. EUR 1,806 for the pro-rata salary for 14 days of June 2023.
c. EUR 4,000 for the individual bonus for winning the domestic championship in the
season 2021/2022.
d. EUR 2,300 for the individual bonus for scoring eight goals and providing 18 assists
in the season 2021/2022.
e. EUR 1,500 for the unpaid portion of the outstanding collective bonus of EUR 7,000
that was awarded to the player by the club’s decision dated 20 August 2021.
f.
EUR 2,500 for the individual bonus for scoring 10 goals and providing 20 assists
in the season 2022/2023.
13. The player also requests 5% interest on the outstanding amounts indicated above. It is to
be noted that no further specification on the interest requested was made by the player.
By the same token, it is to be noted that the player has provided evidence for assists and
goals scored, but no evidence of winning the national championship. Equally, no evidence
as to the percentage distribution of the collective bonus has been brought forward by the
player.
b. Reply of the Respondent
14. The Respondent filed its reply and argued that the Claimant waived his right to claim any
amount from the club by signing the declaration, which states that he received all his
receivables and will not open any lawsuit or lodge any claim against the club.
15. The Respondent requests the FIFA Football Tribunal to dismiss all the claims of the
Claimant.
pg. 5
REF. FPSD-10921
c. Rejoinder of the Claimant
16. In his rejoinder, the player started by pointing out that “the Club has not contested either the
amounts or the concepts claimed by the Player. There is no challenge as to the individual
bonuses accrued for the seasons 2021-2022 and 2022-2023 or as to the collective bonus
partially paid, or as to the monthly salary of May, or as to the prorated salary of June.”
17. As to the declaration, the player argued that it is null and void based on art. 21 and 341 of
the Swiss Code of Obligations (SCO) and the jurisprudence of the Court of Arbitration for
Sport (CAS). The player contended that he was in straitened circumstances, exploited by
the club, and did not receive any consideration for signing the declaration. In particular,
the player outlined that he was “forced to sign such declaration under the Club´s threat in
order to avoid problems with the issuance of the ITC in subsequent hiring where many clubs
usually request the settlement with the former Club.” He also stated that “the Respondent took
advantage of the Player's vulnerability, ignorance and lack of knowledge about the impossibility
of preventing or blocking the issuance of the ITC” and that the player enjoyed no advantage
in signing the declaration.
18. As to the intention of the parties regarding the declaration, the player stated that the
expression included therein “nevertheless regarding the salaries, premiums and or for any
other benefit which was stipulated in the contract” is an indication that “the player´s intention
of not waiving salaries or bonuses already accrued. Such a declaration was requested by the
Club, without the Player having any intention to forfeit the salaries and bonuses already
accrued.”
19. The request for relief of the player was to order the Respondent as follows:
“Pay the amount of FIVE THOUSAND EIGHT HUNDRED AND SIX EUROS (5.806 €) as outstanding
salaries, plus 5% interest.
Pay the amount of THEN THOUSAND THREE HUNDRED EUROS (10.300 €), for outstanding
bonuses, plus 5% interest.”
d. Final comments of the Respondent
20. In its final comments, the club stated inter alia as follows:
“2.1. In the very beginning it is stated by the Player that he has no overdue and unpaid
receivables from the Club.
2.2. The Claimant gave that paper to the Respondent in order to declare that he has no unpaid
amount. The Club is very surprised with this claim that the Player has still overdue receivables.
It shall be once again announced that the Club has no debt to the Player.
2.3. According to the decision rendered by FIFA with its number FPSD-9432, the claim of the
pg. 6
REF. FPSD-10921
Claimant has been dismissed and this decision was correct pursuant to the Swiss Law.
2.4. There is no specification about the name of the debt of the Club what was written in the
Declaration. According to the Answer of the Player that there is no problem about the
signature of the Player. Secondly, the Player clearly states that he has no unpaid receivables
from the Club. In other words which is true, the Player has been paid the premiums and
salaries as well.
2.5. As a result, the Respondent kindly asks FIFA to dismiss this case entirely.”
e. Additional comments of the Claimant
21. Upon request of the FIFA general secretariat, the Claimant provided the following
comments as to his employment situation and the letter from the club dated 1 July 2023
found in TMS:
“I acknowledge receipt of your las communication dated 18 August by virtue of which you
kindly asked the Claimant to provide FIFA Football Tribunal with our comments regarding a
document retrieved from TMS and to indicate the end date of his Employment with the
Respondent and his subsequent employment situation thereafter and until today.
The previous relationship ended on the 1st of June, the same day that the player signed a new
contract attached hereto as exhibit 1.
I take this opportunity to waive our claim for 14 days' salary for the month of June and to
highlight that the rest of the amounts claimed are salaries and bonuses already accrued and
non-contested by the Respondent. Therefore, no mitigation of damages is possible.
I remain at your disposal for any further question.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 14 July 2023 and submitted for
decision on 21 September 2023. Taking into account the wording of art. 34 of the March
2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
pg. 7
REF. FPSD-10921
23. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (May 2023 edition), 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 Costa-Rican
player and a North-Macedonian club.
24. 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 Players (May 2023 edition), and
considering that the present claim was lodged on 14 July 2023, the same edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
25. For completeness, the Chamber recalled that when deciding a dispute, FIFA’s regulations
prevail over any national law chosen by the parties. In this regard, the Chamber
emphasised that the main objective of the FIFA regulations is to create a standard set of
rules to which all the actors within the football community are subject to and can rely on.
This objective would not be achievable if the DRC would have to apply the national law of
a specific party on every dispute brought to it. Therefore, the Chamber deemed that it is
not appropriate to apply the principles of a particular national law to the substance of the
dispute but rather the Regulations, general principles of law and, where existing, the
Football Tribunal’s well-established jurisprudence.
b. Burden of proof
26. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the TMS.
c. Merits of the dispute
27. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments, and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
pg. 8
REF. FPSD-10921
i. Main legal discussion and considerations
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim for overdue payables, where the parties’
dissent lies on the validity and effects of the declaration with respect to alleged unpaid
remuneration of the player.
29. In particular, the Chamber outlined that through his additional comments, the player
withdrew his request for any amounts payable for the month of June 2023. Consequently,
the DRC determined that its task was limited to establishing the player’s entitlement to
receive the salary of May 2023 and the bonuses vis-à-vis the waiver included in the
declaration.
30. Given the above and as a departure point, the DRC considered that, despite not challenging
the signature of the declaration, the player claimed that it was signed under duress and
“the Respondent took advantage of the Player's vulnerability, ignorance and lack of knowledge
about the impossibility of preventing or blocking the issuance of the ITC”.
31. Nevertheless, the Chamber was also observant the player did not advance any
documentation in support of his position, e.g., any correspondence exchanged between
the parties in this connection or any proof of unfair negotiations or duress. Consequently,
the DRC was firm to determine that the player did not meet his burden of proof in line with
art. 13, par. 5 of the Procedural Rules, hence his argumentation in this regard should be
set aside.
32. Subsequently, the DRC noted that the declaration per se does not amount to a termination
agreement. However, from the file, the majority of the Chamber was of the opinion that
the contract would have naturally expired on 14 June 2023, together with the end of the
relevant season in North Macedonia, but the parties deliberately decided to terminate it
early so that the player could move to Thailand. In other words, it seemed to the Chamber
that the parties found a compromise via the declaration, akin to a transfer agreement.
33. In this respect, the Chamber outlined that the mere signature of a contract (in the case at
hand, the declaration) is not sufficient to ensure the enforceability of its contents. In
particular, the DRC recalled the CAS jurisprudence which establishes that, in concrete
terms, to assess whether a transaction is permissible, the court/deciding body is required
to conduct a balancing of interests, checking whether the mutual claims waived by each
party are of comparable value. Put differently, whether there is an appropriate equivalence
between the parties’ reciprocal concessions, especially when a waiver is included in the
relevant document.
34. Given this particular constellation, the DRC proceeded to analyse if there are reciprocal
concessions made by and between the parties, in order to examine if the waiver included
in the declaration is valid.
pg. 9
REF. FPSD-10921
35. In doing so, the DRC initially highlighted that the club makes no challenge to the allegations
that it took advantage of the player’s situation and had him sign the waiver in order to allow
his possible transfer, which further confirms that the issue of the player moving to another
club was of importance. By the same token, the Chamber was also convinced that the
player was (or at least should have been) fully aware of the club’s intention while
conditioning his release to the signature of the declaration.
36. In continuation, the DRC noted that the player would waive approx. EUR 12,300 in
outstanding remuneration (already considering half the salary of June 2023), in exchange
of being released and free to engage his new club in Thailand, with a remuneration which
was almost the triple he was earning. On the club’s side, this amount would be saved.
37. Based on the foregoing, the majority of the DRC was of the opinion that there are
concessions of equivalent nature made by and between the parties, because the player
was able with his early release to be engaged in a more profitable contract for an additional
year, while the amount waived would be almost immediately covered by his new salary. By
the same token, the majority of the DRC found also that because the season was starting
in Thailand, it was likely that the new club wished to engage the player immediately,
whereas if he had waited until the expiry of the contract on 14 June 2023, the new club
might have retained someone else’s services.
38. By majority, the DRC was furthermore comforted with this reasoning since the player also
waived future compensation in exchange for his release, per the contents of the letter of
13 May 2023 – therefore corroborating his consent with the declaration.
39. Considering the above and given that there are reciprocal concessions by and between the
parties on the declaration, the DRC decided by majority that the waiver signed by the player
is valid, and therefore it should be enforced to the effect that no amounts can be claimed
from the club. Hence, the claim of the Claimant was rejected.
d. Costs
40. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
41. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
42. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-10921
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Freddy Antonio Alvarez Rodriguez, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-10921
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12