Labour Disputes
Texto da decisão
REF. FPSD-12048
Decision of the
Dispute Resolution Chamber
passed on 25 January 2024
regarding an employment-related dispute concerning
the player Gabriel Barbosa Avelino
COMPOSITION:
Clifford J. HENDEL (France & USA), Deputy Chairperson
Angela COLLINS (Australia), Member
Mario FLORES CHEMOR (Mexico), Member
CLAIMANT:
Gabriel Barbosa Avelino, Brazil
Represented by CCLA Advogados
RESPONDENT:
Levadiakos FC, Greece
Represented by Alkis Papantoniou
pg. 2
REF. FPSD-12048
I. Facts of the case
The Parties
1.
2.
The parties to this dispute are:
•
the Brazilian player Gabriel Barbosa Avelino (hereinafter: the Player or the
Claimant), born on 17 March 1999; and
•
the Greek club Levadiakos FC (hereinafter: the Club or the Respondent),
affiliated to the Hellenic Football Federation (HFF).
The Player and the Club are hereinafter jointly referred as the Parties.
The transfer of the Player to the Club
3.
On 26 January 2022, the Club sent the Player an employment offer with inter alia the
following terms and conditions (hereinafter: the Offer):
“1st Season Contract 40,000 €
2nd Season Contract 50,000 €
3rd Season Contract 70,000 €
EXTRA BENEFITS for every season
Car
Apartment
• [The Club] agrees that in the possibility of the sale of [the Player], his club SE
Palmeiras São Paulo B is entitled to 30% of the net transfer amount.
•
For the transfer of [the Player] to [the Club] the club will to the agent of the
player 10% of the agreement as commission, for his services in the signing of an
employment contract between [the Club] and [the Player]”.
4.
At the time the Offer was sent to the Player, he was employed by the Brazilian club,
Sociedade Esportiva Palmeiras (hereinafter: SE Palmeiras). The Offer was signed by the
Club and countersigned by the Player.
5.
In parallel, the Parties and SE Palmeiras entered into a transfer agreement dated 25 January
2022, by means of which the services of the Player were permanently transferred from SE
Palmeiras to the Club. Accordingly, SE Palmeiras became entitled to 30% over the amount
earned by the Club in any future transfer of the Player to a third party (i.e., the sell-on fee).
pg. 3
REF. FPSD-12048
The employment relationship between the Parties
6.
On 31 January 2022, the Parties concluded an employment contract valid as from the date
of signature until 31 December 2024 (hereinafter: the Levadiakos Contract).
7.
Clause 4 of the Levadiakos Contract reads inter alia as follows:
“4. Obligations of the team
4.1. It is agreed that the monthly regular salary of [the Player] – which in any case should
not be lower than the current, under the National Collective Bargaining Agreement, the
monthly salary of the unskilled worker – is set at the amount of 825 € to be paid to him
by [the Club] no later than the end of each month, for twelve months a year.
In addition to the above monthly regular salaries, [the Club] is obliged to pay [the
Player] a Christmas gift (an amount equal to the monthly regular salary) and an Easter
gift (an amount equal to half of the monthly regular salary), as well as a leave allowance
(an amount equal to half of the monthly regular salary).
[...]
4.4. The Player shall receive the total amount of 130,000 net € in 9 instalments, as
follows:
1st instalment amount 10,000 € payable on 31 March 2022;
2nd instalment amount 10,000 € payable on 31 August 2022;
3rd instalment amount 10,000 € payable on 31 October 2022;
4th instalment amount 13,500 € payable on 31 March 2023;
5th instalment amount 13,500 € payable on 31 August 2023;
6th instalment amount 13,500 € payable on 31 October 2023;
7th instalment amount 20,000 € payable on 31 March 2024;
8th instalment amount 20,000 € payable on 31 August 2024;
9th instalment amount 20,000 € payable on 31 October 2024;
[...]
4.6. Pension contributions and social security expenses, as foreseen by the law, promptly
and fully paid.
[...]
4.10. Payment of taxes is effected pursuant to the requirements of the Hellenic
legislation”.
pg. 4
REF. FPSD-12048
The Private Agreement signed by the Parties
8.
On 4 May 2022, the Parties entered into a Private Agreement (hereinafter: the Private
Agreement) stating, inter alia, the following:
“[The Player] states explicitly and unreservedly that he resigns from the amount of 6,000
€ (six thousand) euros, regarding the instalment of his contract dated 31/03/2022 as
these is stated in paragraph 4.4 of the [Levadiakos Contract]”.
The loan of the Player to FK Kukesi and its aftermath
9.
On 31 August 2022, the Parties and the Albanian club, FK Kukesi entered into a loan
agreement by means of which the services of the Player were temporarily transferred from
the Club to FK Kukesi as from the date of signature until 30 May 2023 (hereinafter: the
Loan Agreement).
10. Clauses 2, 4, and 6 of the Loan Agreement read as follows:
“2. Transfer on Loan Fee
In consideration of such temporary transfer of the Player’s registration, [the Club] shall
not receive any transfer fee for the transfer on loan”.
[...]
4. FK Kukesi and the Player’s employment contract
FK Kukesi will grant the Player a contract with terms agreed between FK Kukesi and the
Player.
[...]
6. Player’s Consent
6.1. The Player agrees to enter into an employment contract on the terms offered by and
agreed with FK Kukesi for the Loan Period.
6.2. The Player stated explicitly and unreservedly that he resigns from the amount of
10,000 € (ten thousand) euros regarding the instalment of his contract dated 31.08.2022
as these is stated in paragraph 4.4. of the Contract with [the Club] dated 31.01.2022.
6.3. The Player hereby gives his full agreement to the terms and conditions herein
established”.
pg. 5
REF. FPSD-12048
11. The Loan Agreement does not include any provision concerning the suspension of the
Levadiakos Contract nor refers to any arrangement of the Parties regarding the payment
of the amounts therein included.
12. Also on 31 August 2022, the Player and FK Kukesi entered into an employment agreement
valid for the same term as the Loan Agreement (hereinafter: the Kukesi Contract).
13. Article 2 of the Kukesi Contract reads inter alia as follows:
“1. [FK Kukesi] undertakes to pay [the Player] for all football season duration of this
contract the value of 5.000 Euro per month.
2. The Player will be paid a salary of 5,000 Euros in advance, the value of which will be
deducted from the next salary from 1,000 Euros every month until the value is completed.
3. The club will pay the player 300 euros per month for accommodation.
4. Bonus in case the Club wins the Championship.
5. Bonus 100 in case the Player scores a goal/assist in official matches”.
14. On 28 February 2023, the Player put the Club in default. Contextually, the Player argued
that until that date the Club had only paid him EUR 8,000 of the instalment due on 31 March
2022, and EUR 3,924 as salaries. Therefore, he requested payment of the balance of EUR
29,626 and granted the Club with 15 days to cure the breach under penalty of termination.
15. On 9 March 2023, the Club paid EUR 1,777.80 to the Player.
16. On 30 May 2023, the Loan Agreement naturally expired.
17. On 29 June 2023, the Player put the Club in default for the second time. Contextually, the
Player argued that until the date of the loan to FK Kukesi he had only received EUR 11,924,
leaving a balance of EUR 12,475 outstanding. Consequently, the Player requested the Club
to settle the amounts within the following 15 days under penalty of termination.
The return of the Player from loan and the permanent transfer of his services to FC Penafiel
18. According to the information retrieved from the FIFA Transfer Matching System (TMS):
•
on 6 July 2023, the Club entered a transfer instruction to engage the Player back
from FK Kukesi following the loan (TMS no. 690834);
•
on 6 July 2023, the HFF requested the Player’s International Transfer Certificate
(ITC); and
pg. 6
REF. FPSD-12048
•
on 7 July 2023, the Football Association of Albania (FSHF) delivered the Player’s
ITC, and he was registered with the Club.
19. On 11 July 2023, the services of the Player were permanently transferred from the Club to
the Portuguese club, FC Panafiel. According to the relevant transfer agreement, the
Levadiakos Contract was mutually terminated, however, no reference was made to any
outstanding remuneration due by the Club to the Player.
The last default notice by the Player
20. On 18 September 2023, the Player sent the Club another default notice claiming that he
was still owed EUR 123,026 under the Levadiakos Contract, being EUR 1,026 as the balance
of his salaries and EUR 122,000 as overdue sign-on fees. The Player requested the Club to
remedy its default within the 10 following days, to no avail.
II. Proceedings before FIFA
21. On 3 October 2023, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the Player
22. In his claim, the Player initially claimed to be entitled to EUR 123,026 as overdue payables,
broken down as follows:
Salaries
Date
31/01/2022
28/02/2022
31/03/2022
30/04/2022
31/05/2022
30/06/2022
31/07/2022
31/08/2022
Salaries
EUR 825
EUR 825
EUR 825
EUR 825
EUR 825
EUR 825
EUR 825
EUR 825
Total 01
Amount Received
EUR 825
EUR 825
EUR 720
EUR 720
EUR 720
EUR 848
EUR 916
-
Outstanding Remuneration
EUR 105
EUR 105
EUR 105
EUR 23
EUR 31
EUR 825
EUR 1,026
Sign-on Fees
Date
31/03/2022
31/08/2022
31/10/2022
31/03/2023
Original Amount
EUR 10,000
EUR 10,000
EUR 10,000
EUR 13,500
Amount Received
EUR 8,000
-
Outstanding Remuneration
EUR 2,000
EUR 10,000
EUR 10,000
EUR 13,500
pg. 7
REF. FPSD-12048
31/08/2023
31/10/2023
31/03/2024
31/08/2024
31/10/2024
EUR 13,500
EUR 13,000
EUR 20,000
EUR 20,000
EUR 20,000
Total 02
-
EUR 13,500
EUR 13,000
EUR 20,000
EUR 20,000
EUR 20,000
EUR 122,000
Total Amount Due
Total 03 = Total 01 + Total 02
EUR 123,026
23. In addition, the Player requested 5% interest p.a. to be applied on the abovementioned
amounts as from the due dates of each instalment until the date of effective payment.
b. Reply of the Club
24. On 13 November 2023, the Club replied to the claim of the Player and opposed to his
calculations.
25. First and foremost, the Club clarified that the Levadiakos Contract did not provide for any
type of sign-on fee, hence the additional payments mentioned in clause 4.4 were
“characterised as salaries”. In support of its argumentation, the Club referred to (i) the
wording of the Employment Contract; (ii) the Offer, the financial conditions of which were
the same; (iii) the wording of the Loan Agreement; (iv) the jurisprudence of the Football
Tribunal and the Court of Arbitration for Sport (CAS) in other cases involving the standard
federative contract of the HFF; and (v) the guide issued by the Panhellenic Union of
Professional Footballers (PSAP).
26. Having established the above, the Club highlighted that the Player incorrectly requests
amounts that fell due during the term of the Loan Agreement (i.e., when the Levadiakos
Contract was suspended), as well as concepts that were either expressly waived during the
negotiations or that would fall due after the Player’s permanent transfer to FC Panafiel.
27. In particular, the Club made the following remarks regarding the payments stipulated in
clause 4.4 of the Levadiakos Contract:
•
the Player validly waived the payment of 31 August 2022 upon signing the Loan
Agreement (cf. clause 6). This amount was, instead, embedded in the Kukesi
Contract;
•
the Levadiakos Contract was suspended during the period of the loan of the
Player to FK Kukesi (cf. art. 10, par. 1 of the FIFA Regulations on the Status and
Transfer of Players) (RSTP). As it can be inferred from the Player’s notice of 29
June 2023, he was aware that he was not entitled to claim the amount falling due
in the overlapping period. Likewise, the financial obligations mentioned in the
pg. 8
REF. FPSD-12048
Levadiakos Contract were encompassed into the Kukesi Contract. Consequently,
there is no basis to awarding the Player the same amounts twice, as well as it
would lead to an illogical agreement for the Club: it would have loaned the Player
free of costs and would still be liable to pay his entire remuneration, whilst the
Player would receive the same amounts twice;
•
following the first notice of 28 February 2023, on 9 March 2023, the Club paid EUR
1,777.80 to the Player and completed the payment of the instalment of 31 March
2022, as follows:
o
EUR 8,000 were acknowledged in the claim;
o
EUR 1,777.80 were paid on 9 March 2023;
o
EUR 100 were paid on behalf of the Player to the PSAP;
o
EUR 122 “was withheld as the pro rata contribution of the Player to the
collective insurance policy contract concluded between the Super League 2
and the insurance company EUROPAIKI PISTI, in accordance with art. 89 of the
Greek of the Sports Law (N. 2725/1999)”.
28. In light of the above, the Club referred to the national rules on taxes / contributions and
concluded that the Player has received all his dues per clause 4.4 of the Levadiakos
Contract, as follows:
Amount
Payments
Due date
EUR 10,000
31/03/2022
EUR 10,000
31/08/2022
EUR 10,000
31/10/2022
EUR 13,500
31/03/2023
EUR 13,500
31/08/2023
EUR 13,000
31/10/2023
EUR 20,000
31/03/2024
EUR 20,000
31/08/2024
EUR 20,000
31/10/2024
Comment
Paid
Waived
Suspended
Suspended
Not payable
Not payable
Not payable
Not payable
Not payable
29. Furthermore, the Club also added that the salaries of the Player (cf. clause 4.1 of the
Levadiakos Contract) have also been properly paid. In this respect, the Club outlined that
the salaries were fixed in the Levadiakos Contract “gross”, hence subject to tax deductions.
30. The Club also argued that the minimum differences were normal and, in any event, that it
overpaid the Player for the relevant period for an amount of EUR 5,640.70.
pg. 9
REF. FPSD-12048
31. Based on the abovementioned considerations, the Club filed the following requests for
relief, quoted verbatim:
“A. In relation to the amounts requested by the Claimant on the basis of art. 4.4 of the
[Levadiakos Contract]:
(a) To reject the argument of the Claimant that the amounts arising from art. 4.4 of
the [Levadiakos Contract] were amounts corresponding to a sign-on fee;
(b) To reject the claim of the Claimant to receive the total amount of EUR 123,026.00
(plus the applicable interest) in connection with art. 4.4 of the [Levadiakos Contract];
(c) To determine that the Claimant is not entitled to receive any amounts by the Club
during his loan transfer to FK Kukesi and thus reject the relevant part of the Claim on
this basis as well;
(d) To determine that the Claimant is not entitled to receive the amount of EUR 10,000
(which was payable on 31.08.2023 because he waived the payment of said amount in
the context of his loan transfer;
(e) To determine that the Club has paid the instalment of 31.03.2022 in full and thus
the relevant part of the claim shall be rejected.
B. In relation to the amounts requested by the Claimant on the basis of art. 4.1 of the
[Levadiakos Contract], to determine that all amounts in connection with art. 4.1 of the
[Levadiakos Contract] were paid to the Player as agreed in the [Levadiakos Contract]
and therefore reject the relevant part of the Claim”.
c. Rejoinder of the Player
32. On 28 November 2023, the Player filed his rejoinder on this matter.
33. In doing so, the Player initially disputed the Club’s allegation that the amounts mentioned
in clause 4.4 of the Levadiakos Contract are alike salaries. In his view:
•
those payments have different natures and cannot simply be treated as the
same. Indeed, the amounts mentioned in clause 4.4 were fixed “net”, showing its
commercial nature, as well as proving that they should be not subject to any
deduction as alleged by the Club;
•
the other gifts mentioned in clause 4.1 of the Levadiakos Contract were also not
paid to the Player. It has to be noted that despite referring to those concepts in
his submission, the Player did not amend his claim and/or filed any specific
request concerning those concepts;
pg. 10
REF. FPSD-12048
•
the amount mentioned in clause 4.4 of the Levadiakos Contract corresponded in
fact to the transfer fee due to the Player’s former club (i.e., SE Palmeiras), which
was agreed to be paid to him directly; and
•
the open / unclear wording of the Levadiakos Contract should be interpreted
contra stipulatorem, entailing that said amounts were indeed a sign-on fee.
34. In continuation, the Player acknowledged that no salary should be paid during the loan to
FK Kukesi, however he argued that the payments under clause 4.4 of the Levadiakos
Contract should have been done normally.
35. As to the quantum claimed, the Player insisted that he was still entitled to: (i) the balance of
EUR 222.20 regarding the instalment of 31 March 2022; and (ii) EUR 120,000 corresponding
to the other 8 instalments under clause 4.4 of the Levadiakos Contract.
36. Alternatively, the Player stressed, quoted verbatim:
“38. Subsidiarily, in case the Arbitrator understands that all the sums mentioned on the
[Levadiakos Contract] correspond to salary, the Claimant requests that the forfeit of the
EUR 10,000.00 (ten thousand Euros) as disposed on the Loan Agreement (Exhibit 4 of the
Answer) is considered null and void and that such amount is paid by the Respondent.
39. This is because, according to the understanding of CAS, the request by a club to a
player to renounce the right of remuneration that has already been earned is a ‘conduct
that is manifestly contrary to good faith’ and as such ‘shall not be granted legal
protection’.
40. Thus, if this panel believes that the payments on Clause 4.4 are also salary, the
Respondent could not request the Claimant to forfeit his right, and therefore, the second
[instalment] is due”.
37. The Player concluded his submission as follows, quoted verbatim:
“41. Based on the facts and arguments mentioned above, we hereby request that the
amount described on Clause 4.1 shall be interpreted as salary and the amount disposed
on Clause 4.4 shall be interpreted as signing fee.”
d. Final comments of the Club
38. On 13 December 2023, the Club filed its final comments on this matter.
39. In doing so, the Club reiterated its position that the payments mentioned in clause 4.4 of
the Levadiakos Contract were not sign-on fees. In this regard, besides recalling its
pg. 11
REF. FPSD-12048
argumentation concerning the wording of the contracts, the Club also filed a copy of the
transfer agreement concluded with SE Palmeiras on 25 January 2022, corroborating that
the transfer was not free of costs (as suggested by the Player), but involved a sell-on fee.
Therefore, the Club argued that: “the argument of the Player that the parties had agreed that
the Player would receive the amount corresponding to the transfer fee and generally an
increased remuneration [...] is completely false and ungrounded”.
40. Contrario sensu, the Club highlighted that the total fixed fee established in the Levadiakos
Contract (i.e., salaries plus additional payments) met the ones included in the Offer, hence
confirming its position that they were both components of the Player’s remuneration. On
the other hand, the Club also underlined that it would be illogical for the Player to receive
EUR 30,000 as salaries for a two-years’ contract, as opposed to EUR 130,000 as sign-on fee.
41. Regarding the instalment of 31 March 2023 (cf. clause 4.4 of the Levadiakos Contract), the
Club concurred that the amount was fixed “net”, but argued that the deductions applied
were indeed a set-off made by the Club, quoted verbatim:
“57. In particular, and as elaborately analysed in our Response (paras. 101 – 104 /
Response), the amount of EUR 222.80 corresponds to EUR 100.00 paid for the Player’s
subscription to PSAPP and EUR 122.80 for the Player’s mandatory contribution to the
collective insurance policy contract of Super League 2 [...]. The Player was not entitled to
receive those payments from the Club, and therefore, the Club had the right to withhold
those amounts from the salaries of the Player”.
42. The Club requested, thus, that the claim of the Player concerning the amounts mentioned
in clause 4.4 of the Levadiakos Contract be rejected.
43. In parallel, the Club opposed to the Player’s allegation that the gifts mentioned in clause
4.1 remained outstanding. Likewise, it argued that such allegations were disconnected to
the rest of the claim, hence should be inadmissible.
44. Furthermore, the Club also challenged the Player’s alternative request, and insisted that
the waiver of the instalment of 31 August 2023 was clear and unambiguous (cf. clause 6 of
the Loan Agreement), hence valid. Said waiver, in the Club’s opinion, is also not against
FIFA’s or CAS’ jurisprudence and it was the part of the negotiations for the Player’s transfer
to FK Kukesi, which in fact involved the payment of a higher remuneration for the same
period. As such: “it is understandable that the Player validly waived the amount of EUR 10,000
payable on 31.08.2022 in order to receive improved contractual payments by FK Kukesi”.
45. Finally, the Club recalled several arguments set out in its reply to the claim, which allegedly
remained unanswered and tacitly accepted by the Player – including the Player’s
acknowledgement of the suspension of the Employment Contract (and the financial
obligations therein included) via the default notice of 29 June 2023.
pg. 12
REF. FPSD-12048
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
46. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 3 October 2023 and submitted for
decision on 25 January 2024. 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.
47. Furthermore, 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 FIFA
RSTP (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 Brazilian player and a Greek club.
48. At this point, the DRC acknowledged that the Club raised an objection to the admissibility
of the Player’s allegations as to the additional benefits included in the Levadiakos Contract
(i.e., Easter Bonus, Christmas Bonus and leave allowance) in that they were only mentioned
in his rejoinder. Nevertheless, the Chamber determined that the assessment of his
entitlement to any such amounts was not a matter of admissibility but rather of substance,
hence should be analysed in the appropriate section, infra.
49. 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 FIFA RSTP (May 2023 edition) and considering that the present claim was
lodged on 3 October 2023, the cited edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
50. 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.
pg. 13
REF. FPSD-12048
c. Merits of the dispute
51. 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.
i. Main legal discussion and considerations
52. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for outstanding remuneration
lodged by the Player against the Club based on the Levadiakos Contract.
53. As a departure point, the Chamber recalled that during these proceedings:
•
the Player initially claimed to be entitled to EUR 123,026 as the balance of his
remuneration for the duration of the Levadiakos Contract;
•
the Club, for its part, challenged the Player’s entitlement and argued that the
amounts claimed by the Player were either (i) paid; or (ii) undue because of the loan
to FK Kukesi and his subsequent transfer to FC Panafiel;
•
the Player, in his rejoinder, accepted the narrative of the Club as to the fulfillment
of its obligations concerning the salaries, however insisted on his own version about
the additional payments, quoted verbatim:
“35. That being said, the Respondent still owes the Claimant EUR 222.20 (two
hundred twenty-two Euros and twenty cents) regarding the first instalment due
on 31.03.2022.
36. Considering that, and that no salaries are due according to the proofs
presented by the Respondent only the instalments of signing fee), the
Respondent still has to pay EUR 120,222.20 (one hundred twenty thousand
Euros and twenty cents) at this time as sign-on fee.
37. This amount consists of EUR 222.20 (two hundred twenty-two Euros and
twenty cents) regarding the first instalment due on 31.03.2022 and also the
2nd to 9th instalments, which totalize EUR 120,000.00 (one hundred twenty
thousand Euros).
pg. 14
REF. FPSD-12048
38. Subsidiarily, in case the Arbitrator understands that all the sums
mentioned on the [Levadiakos Contract] correspond to salary, the Claimant
requests that the forfeit of the EUR 10,000 (ten thousand Euros) as disposed
on the Loan Agreement [...] is considered null and void and that such amount
is paid by the Respondent”.
54. Against this background, the DRC established that the Player’s entitlement to the salaries
(cf. clause 4.1 of the Levadiakos Contract) was no longer in dispute. As such, the Chamber’s
task was to determine:
A. What is the nature of the additional payments mentioned in clause 4.4 of the
Levadiakos Contract?
B. What amounts should have been paid to the Player under said clause 4.4?
C. What are the consequences that follow?
55. The Chamber then moved to the analysis of each topic in turn.
A.
What is the nature of the additional payments mentioned in clause 4.4 of the Levadiakos
Contract?
56. First and foremost, the DRC noted that at the crux of the dispute the Parties diverge as to
nature of the additional payments mentioned in clause 4.4 of the Levadiakos Contract. For
the Player, such amounts were agreed as sign-on fees, therefore payable under any
circumstances (i.e., including during the loan to FK Kukesi and following the definitive
transfer to FC Panafiel). In contrast, the Club argues that said additional payments are in
fact part of the Player’s remuneration with the only difference that they were payable in
three instalments per year instead of in a monthly basis. Consequently, for the Club, such
amounts should not be payable while the Levadiakos Contract was suspended or after it
was terminated.
57. With the above in mind, the DRC firstly turned to the wording of the Levadiakos Contract
and identified that it does not make any reference to the concept of sign-on fee.
Consequently, the Chamber went on analysing whether there was any additional element
in the case file that could support the Player’s position to this extent.
58. In doing so, the Chamber found it noteworthy that (i) the additional payments highly
overcome the Player’s salaries; (ii) the global remuneration included in the Levadiakos
Contract (i.e., salaries plus additional payments) matches the one mentioned in the Offer;
and (ii) the Offer does not establish the payment of a transfer fee akin the sign-on fee to
the Player, as suggested by the Player.
pg. 15
REF. FPSD-12048
59. In addition, the DRC acknowledged that the Player failed to advance any evidence
corroborating that the Club had undertook to pay such a sign-on fee and/or that said
additional payments should be paid under any circumstances ergo regardless of the status
of the Levadiakos Contract. In other words, whilst the Club filed a myriad of evidence
suggesting that the additional payments were part of the Player’s remuneration, the Player
failed to advance any counterevidence to the contrary i.e., demonstrating that amounts
were merely a consideration for the signature of the Levadiakos Contract, hence unlinked
to the services being rendered.
60. Taking all the above into consideration, the DRC decided that the additional payments per
clause 4.4 of the Levadiakos Contract should indeed be treated as part of the Player’s
remuneration.
B.
What amounts should have been paid to the Player under clause 4.4?
61. Having established the above, the DRC moved on to the assessment of the Player’s
entitlement to any outstanding remuneration vis-à-vis the constellation of agreements
signed by the Parties in continuation.
62. In this connection, the DRC deemed that the following timeline was pivotal to its analysis:
Employment Contract
Originally valid as from 31 January 2022 until 31 December 2024
Loan Agreement and
Time lapse between the end of the
Player’s permanent
Kukesi Contract
Loan Agreement and the subsequent
transfer to FC Panafiel
Valid as from 31 August
transfer of the Player
11 July 2023
2022 until 30 May 2023
As from 31 May 2022 until 11 July 2023
63. While considering the above in combination with the contents of art. 10 of the Regulations,
the Chamber concurred with the Club to the extent that the Levadiakos Contract:
•
•
•
•
was firstly valid as from 31 January 2022 until 30 August 2022,
then suspended from 31 August 2022 until 30 May 2023,
resumed for the period between 31 May 2023 and 11 July 2023, and
finally terminated with the permanent transfer of the Player on 11 July 2023.
64. Firstly, concerning the overlapping period with the Loan Agreement, the Chamber was of
the opinion if the Parties intended to reach a different agreement as their financial
obligations per the Levadiakos Contract, they should have done so in writing. Nevertheless,
in the absence of such a written agreement, the only possible conclusion was that the
entire arrangement between them was suspended in that the only sums owed to the Player
for the loan period would be the ones mentioned in the Kukesi Contract.
65. Secondly, the DRC deemed Player should be entitled to the pro rata payment for the time
lapse between end of the Loan Agreement and the upcoming transfer to FC Panafiel.
pg. 16
REF. FPSD-12048
Accordingly, the Chamber determined that the Player’s registration reverted to the Club for
41 days (i.e., from 31 May until 11 July 2023) that should be remunerated accordingly.
66. Thirdly, the Chamber deemed that the instalments that fell due after the Player’s transfer
to FC Panafiel were not payable because no service would be rendered to the Club for said
period (exceptio non adimpleti contractus). The Chamber’s rationale was the same for the
loan period: in case the Parties wished to set any residual credit to the Player following the
termination of the Levadiakos Contract, they should also have done so in written form (e.g.,
via termination or settlement agreement, and/or in the transfer agreement with FC
Panafiel).
67. It followed from the above, in the DRC’s view, that out of the amounts claimed by the Player
he was in principle entitled to the following:
Additional payments cf. clause 4.4 of the Levadiakos Contract
Due date
31/03/2022
31/08/2022
31/10/2022
31/03/2023
31/08/2023
31/10/2023
31/03/2024
31/08/2024
31/10/2024
Amount
EUR 10,000
EUR 10,000
EUR 10,000
EUR 13,500
EUR 13,500
EUR 13,000
EUR 20,000
EUR 20,000
EUR 20,000
Comment
Due.
Due.
Undue. The Levadiakos Contract was suspended because of
the Loan Agreement.
Partially due (cf. §65, supra) – only EUR 3,614.44 net.
Undue. The Player had already moved to FC Panafiel.
68. Having established the above, the DRC moved on to analyse whether the amounts due by
the Club were paid by the Player.
(i)
As to the first instalment (31/03/2022)
69. The Chamber noted that the Player claimed to be entitled to EUR 222.20 as the balance of
the first instalment. Conversely, the Club argued that such amount was paid, and the
balance now claimed by the Player indeed corresponded to the set-off made against the
following concepts:
•
EUR 100 paid on behalf of the Player to the PSAP;
•
EUR 122 “was withheld as the pro rata contribution of the Player to the collective
insurance policy contract concluded between the Super League 2 and the insurance
company EUROPAIKI PISTI, in accordance with art. 89 of the Greek of the Sports Law (N.
2725/1999)”
70. In this respect, although being of the opinion that the Club’s argumentation as to the
legitimacy of the deductions is legally based and supported by documentary evidence, the
pg. 17
REF. FPSD-12048
Chamber found it decisive that the additional payments were fixed in the Levadiakos
Contract as “net”. As such, the DRC stressed that in case the Club intended to make any
deductions regarding taxes and contributions, it should have done so over the Player’s
salaries (at a monthly basis) or, at least, it should have properly specified the deductions in
his payslips. Nevertheless, in the absence of any documentation in this regard, the
Chamber decided that the Club was not authorized to set-off amounts against a concept
that was contractually agreed as “net” and, even worse, whose payment was already
delayed.
71. Given the above, the DRC concluded that the Player should be entitled to the EUR 222.20
net claimed.
(ii) As to the second instalment (31/08/2022)
72. The Chamber outlined that it remained undisputed between the Parties that the second
instalment of clause 4.4 of the Levadiakos Contract was not paid. Nevertheless, the
Chamber took also note that the Club referred to clause 6 of the Loan Agreement and
stressed that such amount was validly waived. The DRC recalled, for ease of reference, that
such provision reads as follows:
“6. Player’s Consent
6.1. The Player agrees to enter into an employment contract on the terms offered by and
agreed with FK Kukesi for the Loan Period.
6.2. The Player stated explicitly and unreservedly that he resigns from the amount of
10,000 € (ten thousand) euros regarding the instalment of his contract dated 31.08.2022
as these is stated in paragraph 4.4. of the Contract with [the Club] dated 31.01.2022.
6.3. The Player hereby gives his full agreement to the terms and conditions herein
established”.
73. While analysing the above, the DRC firstly considered that the scope of the provision was
clear and unequivocal: it constitutes a waiver by the Player of the second instalment of
clause 4.4 of the Levadiakos Contract, which was supposed to fall due exactly on that same
date.
74. Notwithstanding the above, the Chamber also recalled that the mere signature of a
contract (in the case at hand, the Loan Agreement) is not sufficient to ensure the
enforceability of its contents. In particular, the jurisprudence of the FIFA and CAS on
waivers 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
pg. 18
REF. FPSD-12048
there is an appropriate equivalence between the parties’ reciprocal concessions (see, for
example, CAS 2016/A/4471 and SFT 4A_376/2010 for additional reference).
75. In this regard, the Chamber found it decisive that the Player has never disputed his consent
to the arrangement found between the Parties. Likewise, the Player has never raised any
objections as to the circumstances for the signature of the Loan Agreement, such as that
he was under duress, unaware of the waiver and/or in opposition to the terms therein
established. In fact, the timeline of the case in fact – in the DRC’s view – suggests that the
Player freely agreed (or, at least, did not object in any manner) to being loaned to FK Kukesi
under the conditions set out in the Loan Agreement.
76. Considering the above, and by taking the Player’s behaviour into account, the DRC was not
convinced that the waiver included clause 6 of the Loan Agreement involved nonreciprocal
concessions by the Parties. In balance: the Club accepted to loan the Player to another club
free of costs, whereas the Player committed to seek new opportunities in a different
country, for a slightly higher remuneration, however at the expense of one of the
instalments mentioned in clause 4.4 of the Levadiakos Contract.
77. All in all, the Chamber established that that the Player could not now change his course of
action and argue that the negotiations were illegally conducted, hence that the waived
amount should be in fact granted (venire contra factum proprium). In other words, the DRC
decided that the second instalment of the Levadiakos Contract was validly waived.
(iii) As to the fifth instalment (31/08/2023)
78. Lastly, the DRC recalled that following the natural expiry of the Loan Agreement, the
Levadiakos Contract resumed for a period of 41 days (i.e., from 31 May until 11 July 2023),
which should be remunerated accordingly.
79. The Chamber was also observant that the Club did not make any comment as to said
period, let alone advanced any proof that those days were paid to the Player. Consequently,
the DRC was firm to determine that he should be entitled to part of the instalment falling
due on 31 August 2023, calculated pro rata, as follows:
•
1 April 2023 to 31 August 2023 = 152 days
= EUR 13,500 net
•
31 May 2023 to 11 July 2023 = 41 days
= EUR 3,641.44 net
80. Consequently, the DRC decided to award the Player the additional EUR 3,641.44 net.
pg. 19
REF. FPSD-12048
C.
What are the consequences that follow?
81. By means of conclusion, the DRC decided that the Club should be liable to pay to the Player
the total of EUR 3,863.64 net.
82. In addition, taking into consideration the Player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Player interest at the rate of
5% p.a. on the outstanding amount as follows:
•
Over EUR 222.20 net as from 1 April 2022 (i.e., the day following the due date of the
second instalment of clause 4.4 of the Levadiakos Contract); and
•
Over EUR 3,641.44 net as from 11 July 2023 (i.e., the date of the Player’s transfer to
FC Panafiel and consequent termination of the Levadiakos Contract).
83. Therefore, the claim of the Player was partially accepted.
ii. Compliance with monetary decisions
84. Taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and
2 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.
85. In this regard, 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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
86. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on the Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
87. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
88. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
pg. 20
REF. FPSD-12048
d. Costs
89. 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.
90. 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.
91. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by the Parties.
pg. 21
REF. FPSD-12048
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Gabriel Barbosa Avelino, is partially accepted.
2.
The Respondent, Levadiakos FC, must pay to the Claimant the following amount(s):
- EUR 222.20 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment; and
- EUR 3,641.44 net as outstanding remuneration plus 5% interest p.a. as from 11 July
2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 22
REF. FPSD-12048
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. 23