Labour Disputes
Texto da decisão
REF. FPSD-15777
Decision of the
Dispute Resolution Chamber
passed on 06 November 2024
regarding an employment-related dispute concerning the Player Marcelo
Andre Da Veiga Lopes
BY:
Stijn BOEYKENS (Belgium), Single Judge
CLAIMANT:
Player Marcelo Andre Da Veiga Lopes, Portugal
Represented by Mihai & CO. Business Lawyers
RESPONDENT:
Club Fotbal Club Voluntari SA, Romania
pg. 2
REF. FPSD-15777
I. Facts of the case
1.
On 1 July 2022, the Portuguese player Marcelo Andre Da Veiga Lopes (hereinafter: the player
or the Claimant) and the Romanian club FC Voluntari (hereinafter: the club or the
Respondent) concluded an employment contract valid from the same date until 31 May
2024 (hereinafter: the first contract).
2.
Pursuant to the first contract, the player’s monthly remuneration would amount to EUR
7,500 net during the season 2022/2023 (i.e., until 30 June 2023) and EUR 8,000 net from 1
July 2023 until 31 May 2024. Furthermore, according to the first contract, each salary would
be due “on the 20th day of the following month for the previous month”.
3.
On 12 February 2024, the player and the club (hereinafter jointly referred to as the parties)
signed a “termination agreement”, which reads as follows:
“I have entered this termination agreement under the following conditions upon which we have
agreed:
Art. 1 - Starting with the date of 12.02.2024, the Sports Activity Contract registered at the LPF
with no. 301/01.07.2022 is terminated by agreement of both parties.
Art. 3 - By signing this Termination Agreement, the parties declare that they no longer have any
financial or other claim regarding the Sports Activity Contract registered at the LPF with no.
301/01.07.2022.”
4.
Notwithstanding the above, on 15 February 2024, the parties concluded a new employment
agreement valid until 31 May 2024 (hereinafter: the second contract).
5.
On 22 August 2023, the club executed a payment in favour of the player amounting to RON
39,520.
6.
On 12 September 2023, the club made a second payment to the player, in the amount of
RON 37,050 .
7.
On 9 November 2023, the club made a third payment of RON 39,520.
8.
On 19 December 2023 the club paid a total of RON 50,000 to the player.
9.
On 14 February 2024 a fifth payment in the amount of RON 39,520was made by the club.
10. By correspondence dated 22 July 2024, the player put the club in default of EUR 41,111.46
net, granting a deadline of 10 days to remedy the alleged breach.
pg. 3
REF. FPSD-15777
11. On 13 August 2024, the player lodged a claim against the club before the Football Tribunal,
pleading his outstanding remuneration under the second contract (FPSD-15569).
12. On 14 August 2024, the player sent a new default notice to the club. In this context, the
player demanded outstanding remuneration in connection with the first contract, namely
in the amount of EUR 21,878, and granted the club 10 days to remedy the default.
13. On 6 November 2024, the Single Judge of the Dispute Resolution Chamber of the Football
Tribunal passed a decision on the case FPSD-15569, acknowledging the existence of
outstanding amounts under the second contract and thus ordering the club to pay the
following sums :
“EUR 32,063.46 net as outstanding remuneration plus 5% interest p.a. as follows: - 5% interest p.a. over the amount of EUR 3,395.46 as from 21 March 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 8,000 as from 21 March 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 3,310 as from 2 April 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 8,000 as from 21 May 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 1,358 as from 1 June 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 8,000 as from 21 June 2024 until the date of
effective payment.”
II. Proceedings before FIFA
14. On 27 August 2024, the player filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
15. According to the player, part of the club’s financial obligations under the first contract
remains outstanding, hence he had to lodge a second claim after FPSD-15569.
16. In this context, the player acknowledged having signed the termination agreement on 12
February 2024, but he argued that the said document shall be considered null and void as
the salaries related to working activities already performed cannot be waived.
17. In this respect, the player stated that in spite of the relevant default notice dated 14 August
2024, the club failed to pay a total of EUR 21,878 as outstanding salaries under the first
contract.
pg. 4
REF. FPSD-15777
18. The requests for relief of the player, accordingly, were the following:
1) “The outstanding salary (in part, in relation to the full amount of 8000 EUR), amounting to
EUR 5.878 (29.037 RON), for the month of October 2023;
2) The outstanding salary, amounting to EUR 8.000 (39.520 RON), for the month of December
2023;
3) The outstanding salary, in the amount of EUR 8.000 (39.520 RON), for the month of January
2024.
(…) In addition, with regard to the Claimant's ancillary claim which consists of the
Respondent’s obligation to pay interest of 5% per annum, calculated from the due date of
the first debt, November 20th 2023, until the full payment of the main claim, we consider
that this claim shall be upheld, taking into account the standard approach of the Chamber
in this regard.”
b. Position of the Respondent
19. In spite of having been invited to provide its reply to the claim, the club failed to submit any
statement of defence.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 27 August 2024 and submitted for
decision on 06 November 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.
21. Furthermore, Single Judge 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 (November 2024 edition), the Single
Judge of 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 Portuguese player and a Romanian club.
pg. 5
REF. FPSD-15777
22. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (November 2024 edition)
and considering that the present claim was lodged on 27 August 2024, the June 2024
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
23. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
24. Having established the competence and the applicable regulations, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
25. The Single Judge then moved to the substance of the matter and took note of the fact that
the player claims the existence of outstanding salaries deriving from the first employment
contract signed with the club.
26. In this respect, the Single Judge observed that on 1 July 2022 the parties entered their first
employment agreement, originally valid until 31 May 2024. The Single Judge however
assessed that the same parties de facto agreed on an amendment of their employment
relationship in February 2024, namely by signing a termination agreement on 12 February
2024 first and subsequently signing a second contract on 15 February 2024.
27. In this context, the Single Judge noted that the player objected to the validity of the
termination agreement alleging that the said document is actually a waiver of salaries
already matured under the first contract and, thus, unlawful.
pg. 6
REF. FPSD-15777
28. In this respect, the Single Judge however recalled that in his first claim (i.e., FPSD-15569)
the player indeed acknowledged the validity of the second contract dated 15 February 2024
and in fact, by means of the relevant decision dated 6 November 2024, the Single Judge
awarded the player the sum of EUR 32,063.46 as outstanding salaries related to the said
employment agreement.
29. In this context, Single Judge therefore considered that his task was to determine whether
any amount had remained outstanding under the first contract, and in the affirmative,
whether the player had indeed renounced to such sums. In other words, the Single Judge
acknowledged that he should first assess whether the termination agreement signed by
the parties on 12 February 2024 represents a “waiver”.
30. To begin with, the Single Judge noted that the club failed to present its response to the
claim of the player, in spite of having been invited to do so. As such, the Single Judge
confirmed that per art. 21 of the Procedural Rules, he shall make a determination on the
basis of the arguments and documentation filed by the player.
31. In this context, the Single Judge noted that the player argues not having received his
remuneration corresponding to the period between October 2023 and January 2024.
32. In continuation, the Single Judge took a look at the content of the termination agreement
signed by the parties and assessed that it reads:
“I have entered this termination agreement under the following conditions upon which we have
agreed:
(…)
Art. 3 - By signing this Termination Agreement, the parties declare that they no longer have any
financial or other claim regarding the Sports Activity Contract registered at the LPF with no.
301/01.07.2022.”
33. In this regard, the Single Judge considered that it was clear from the text of the termination
agreement that the player acknowledged the absence of any outstanding amounts under
the first contract, while he did not express any renunciation of potential outstanding claims
from his previous employment relationship with the same club.
34. The Single Judge therefore determined that the termination agreement does not constitute
a waiver by the player (in claris non fit interpretatio).
35. In this context, the Single Judge also noted that the second contract does not make any
reference to any outstanding amounts in favour of the player deriving from the previous
employment relationship.
pg. 7
REF. FPSD-15777
36. Furthermore, the Single Judge found that the player did not refer to the existence of
outstanding credits in relation to the first contract when he first put the club in default on
22 July 2024, nor when he lodged a claim against the club on 13 August 2024 (FPSD-15569)
but waited approximately 8 months from the date of the termination agreement before
raising such an issue in front of the club, thus inducing the latter to confirm the parties’
original position as stated in the relevant termination agreement.
37. In the Single Judge’s view, the present claim therefore openly contradicts the player’s
previous conduct as well as the content of his first claim, whereas the player failed to
sustain his burden of proof in relation to the existence of any outstanding remuneration
under the first contract.
38. In view of the above and recalling the principle of “nemo venire contra facta propria”, the
Single Judge decided to reject the player’s claim in its entirety.
d. Costs
39. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
40. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
pg. 8
REF. FPSD-15777
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marcelo Andre Da Veiga Lopes, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-15777
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10