Labour Disputes
Texto da decisão
REF. FPSD-12832
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Marcella Souza Bezerra
BY:
Frans de Weger (the Netherlands), Chairperson
Tarek Brauer (Germany), member
Johan van Gaalen (South Africa), member
CLAIMANT:
Marcella Souza Bezerra, Brazil
Represented by FIFPro Legal Africa
RESPONDENT:
Trabzonspor AS, Türkiye
Represented by Ms Duygu Yaşar
pg. 2
REF. FPSD-12832
I. Facts of the case
1.
On 2 January 2023, the Brazilian player Marcella Souza Bezerra (hereinafter: Claimant or
player) and the Turkish club Trabzonspor Futbol (hereinafter: club or Respondent) concluded
a contract (hereinafter: Contract) valid as from 2 January 2023 until 31 May 2023.
2.
The Contract was titled as follows:
“Foreign female amateur football player contract”
3.
Article 3 of the Contract stipulated as follows:
“The Club will allow the football player to play in amateur competitions and provide a suitable
playing environment for her during team training.
In addition, the club will cover transportation, accommodation, equipment, insurance, nutrition
and training expenses related to the competitions.”
4.
On 7 February 2023, the Respondent paid the Claimant USD 1,800 with the payment
description reading: “January salary payment”.
5.
At an unspecified date, the Claimant wrote a note addressed to the club in both Portuguese
and Turkish, in which she confirmed as follows:
“As of 30 March 2023, I leave the women’s team of Trabzonspor.”
6.
On 27 March 2023, the Claimant departed Türkiye to return to Brazil.
7.
On 31 March 2023, the Respondent paid the Claimant USD 1,800 with the payment
description reading: “March salary payment”.
8.
No default notices were sent throughout the duration of the Contract.
pg. 3
REF. FPSD-12832
II. Proceedings before FIFA
9.
On 26 November 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
10. According to the Claimant, the player argued that the Respondent had failed to remit two
salaries in the amount of USD 1,800, corresponding to the months of April 2023 and
May 2023.
11. The Claimant equally emphasised that the lack of a salary stipulated in the Contract should
not detract from the commercial reality that she was being remunerated for her services
at the monthly rate of USD 1,800.
12. The Claimant invoked the principle of pacta sunt servanda to argue that the Respondent
had fallen short of meeting its contractual obligations.
13. Consequently, the Claimant requested a total amount of USD 3,600 plus interest as from
the respective due dates, or, alternatively, the minimum wage for the above months
pursuant to Turkish law.
b. Position of the Respondent
14. In its reply, the Respondent argued that the Claimant is an amateur player.
15. The Respondent stressed that the Contract was titled “Foreign female amateur football
player contract” and that it expressly foresaw no remuneration beyond covering basic
pastoral needs such as accommodation, food and transportation.
16. The Respondent equally highlighted that allegedly all female player contracts in Türkiye are
amateur contracts.
17. As the definition of the Claimant fell outside the scope of art. 2 par. 1 of the RSTP, the latter
would not be able to benefit from the protection of the Regulations.
18. As to the merits, and in the eventuality that the Claimant would be held as not being a
“professional player”, the Respondent wished to point out that the Claimant unilaterally
departed at the end of March 2023, signing a document in both Portuguese and Turkish to
signify that she would no longer be bound to the club as of 30 March 2023.
19. Overall, therefore, the Respondent requested for the claim to be rejected.
pg. 4
REF. FPSD-12832
c. Comments of the Claimant
20. The Claimant was invited to comment on the challenge as to the allegation of her status as
an amateur, and emphasised that the denomination of her status in the Contract does not
detract from the fact that she was remunerated – in the way a professional player would
be – for her services.
21. The Claimant also wished to stress that she does not believe that all female players in
Türkiye are considered amateurs, as this would constitute discrimination and an
impediment to justice.
22. The Claimant also felt that the signature of the letter did not per se constitute a waiver of
the remaining salaries from the Contract, and that, despite the fact that she had departed
at the end of March, she should have continued to receive her remuneration in April and
May.
pg. 5
REF. FPSD-12832
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 26 November 2023 and
submitted for decision on 22 February 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.
24. 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 lit. b) of the
Regulations on the Status and Transfer of Players February 2024 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 Turkish club.
25. 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 26 November 2023, the May 2023 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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 Transfer Matching System (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. 6
REF. FPSD-12832
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 the parties strongly dispute the obligation of the
Respondent to remit various financial amounts stipulated in the Contract.
29. In this context, the Chamber acknowledged that it its task was to determine whether the
Claimant, first of all, was entitled to receive the amounts in dispute, subsequently whether
the Respondent had a valid justification to default thereon, and lastly what the
consequences of the above conclusion(s) may be.
30. The Chamber first revisited the parties’ submissions, starting with the Claimant, according
to whom two monthly salaries corresponding to April 2023 and May 2023 had remained
outstanding.
31. The Respondent, on the other hand, argued that the Claimant was not only an amateur,
not collecting any actual salary, but also that she had departed from Türkiye and ceased to
render services, thus effectively waiving her entitlement to receive a salary and de facto
terminating the Contract before its term.
32. In this respect, the Chamber wished to first of all address the allegation of the Respondent
that the Claimant was an amateur, thus precluding her from claiming any remuneration
per the Contract.
33. Whilst the Chamber took note of the nomenclature of the Contract (“Foreign female amateur
football player contract”), it had considered that the commercial reality had been a different
one: the Claimant had collected, since the beginning of the Contract, monthly salary
payments of USD 1,800. The Chamber was, in this respect, satisfied by the evidence
submitted by the Claimant demonstrating a clear reference in the relevant bank extracts
that those regular payments made by the Respondent could be construed as remuneration
for professional football services.
34. The Chamber equally referred to the definition of a professional football player pursuant
to art. 2 par. 2 of the Regulations, and noted that, whilst the Claimant had provided
evidence of her income, the Respondent failed to provide any countervailing evidence to
suggest that the income the Claimant had been collecting was inferior to the expenses she
bore, or was likely to bear – in short, that she was indeed an amateur player.
35. Consequently, the Chamber established that the Claimant was a professional football
player with a monthly salary of USD 1,800.
pg. 7
REF. FPSD-12832
36. With this established, the Chamber moved on to consider whether the Respondent had a
justification to default on the disputed payments – for it remained undisputed that the
amounts had been withheld by the latter.
37. The Chamber deemed it important to recall that the Claimant admitted to departing from
the club prematurely (on 27 March 2023) and acknowledging in a letter signed by her and
composed in both Portuguese and Turkish, that she would no longer be with the women’s
first team from 30 March 2023.
38. The Chamber went further to observe that, despite the general wording of the letter, what
was undeniable from the facts at hand was that the Claimant left for Brazil without
returning, and confirmed this in writing.
39. Whilst the intention to waive any remuneration could not be established exclusively
therefrom, the Chamber deemed it significant that the Claimant not only did not return,
ceasing to render services from that point onwards, but also never put the Respondent in
default of the amounts, suggesting that, until the filing of the present claim, there was no
expectation or urgency to receive the amounts in dispute.
40. The Chamber was, therefore, of the opinion that, whilst not unilaterally waiving her
entitlement to the amounts presently being claimed, the Claimant (together with the
Respondent) mutually departed from the Contract, with the former ceasing to render
services, and the latter expressing no objection to this.
41. In light of the above conclusion, and recalling that the Claimant confirmed having received
all her dues up to the date of mutual departure, the Chamber rejected the claim in its
entirety.
d. Costs
42. 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.
43. 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.
44. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-12832
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marcella Bezerra Souza, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-12832
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. 10