Labour Disputes
Texto da decisão
REF. FPSD-9363
Decision of the
Dispute Resolution Chamber
passed on 24 August 2023
regarding an employment-related dispute concerning
the player Marcos Garbellotto Silveira Pedroso
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Marcos Garbellotto Silveira Pedroso, Brazil
Represented by Yakub Kizilkaya
RESPONDENT:
FK Liepāja, Latvia
Represented by Olga Polozova
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REF. FPSD-9363
I. Facts of the case
1.
On 13 July 2021, the Brazilian player, Marcos Garbellotto Silveira Pedroso (hereinafter:
Claimant or player) and the Latvian club, FK Liepāja (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from 13 July 2021 until
15 December 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant monthly salary
of EUR 5,000, payable on the 15th day of the following month.
3.
The contract further establishes that the player is entitled to “up to EUR 250 as payment for
apartment” (art. 3.2.7. of the contract).
4.
According to the club, on 1 February 2022, the parties signed a “supplementary agreement”,
which due to “the current difficult socio-political situation in Europe” the salary of the player
is reduced by 50% as of 1 February 2022.
5.
On 26 December 2022, the player put the club in default and requested payment EUR
11,250, corresponding to salaries and accommodation expenses, within 10 days.
6.
On 29 December 2022, the club replied to the representative of the player stating that no
power of attorney was enclosed and that the club fulfilled its financial obligations.
II. Proceedings before FIFA
7.
On 23 February 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
8.
In his claim, the Claimant requested payment of the following monies:
- EUR 2,500 as partial salary for February 2022;
- EUR 2,500 as partial salary for March 2022;
- EUR 1,500 as partial salary for October 2022;
- EUR 1,500 as partial salary for November 2022;
- EUR 806.55 as partial salary for December 2022;
- EUR 750 as outstanding accommodation costs.
The player requested payment of 5% interest p.a. as of the respective due dates.
9.
In this context, the player argued that the club failed to remit the claimed amounts, even
after his default notice.
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REF. FPSD-9363
10. In support of his claim regarding accommodation cost, the player submitted a “rent
contract” which confirmed that he rented accommodation for a monthly fee of EUR 500.
b. Position of the Respondent
11. In its reply, the club rejected the claim.
12. The club argued that the player agreed to the supplementary agreement and was therefore
as of February 2022 entitled to EUR 2,500 as monthly salary, which was duly remitted.
13. Furthermore, the club pointed out that it increased the salary of the player as of July 2022
again.
14. The club argued that it therefore remitted more money than it had to during the period
between February 2022 and December 2022. It detailed having paid the total amount of
EUR 36,693.55 as salaries and EUR 2,000 for accommodation.
15. On account of the above, the club maintained that the claim is “groundless” and that it was
lodged in “bad faith”.
16. The club held that the “rent contract” does not proof that the player indeed remitted
payments regarding accommodation.
c. Replica of the Claimant
17. In his replica, the Claimant rejected having signed the “supplementary agreement” and
maintained that his signature was forged.
18. In this context, the player maintained that when carefully analysing the different signatures
of the player on file (contract, rent contract, power of attorney in comparison to the
supplementary agreement), it is evident that the player did not sign this document himself.
19. In this regard, the player pointed out that especially the characteristics of his “M” is totally
different in the actual signatures and the falsified one.
20. Moreover, the player held that he had no reason to agree to a reduction of his salary by
50% without getting anything in return.
21. The player alleged that the club failed to remit parts of his salary for months and now tries
to “clean up the mess” with such fabricated agreement.
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REF. FPSD-9363
22. In support of his argumentation, the player provided an extracts from WhatsApp
conversations with the sporting director and the club manager from December 2022, in
which a debt of the club is discussed.
23. Furthermore, he provided a further extract from the teams WhatsApp Group in which the
club held that 70% if the salaries are paid due to the bad results.
24. Moreover, the player held that he is contractually entitled to EUR 250 for the
accommodation per month and that he does not have to provide further evidence
regarding payments.
25. In this framework, the player reiterated his requests for relief.
d. Duplica of the Respondent
26. In its duplica, the Respondent the club reiterated its position and held that the claim of the
player is a “blatant lie”.
27. The club held that it is obvious that differences occur when comparing different signatures
and it pointed out that the player only challenged one of the three signatures on the
supplementary agreement.
28. Furthermore, the club maintained that the allegation of forgery is serious and a criminal
offense and it offered to submit the original document for examination.
29. Moreover, the club stated that the reduction of salaries was necessary, otherwise the club
would have gone bankrupt.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 23 February 2023 and
submitted for decision on 24 August 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.
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REF. FPSD-9363
31. 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 (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 player and club.
32. 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 15 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
33. 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
34. 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
35. 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 player’s entitlement
to the claimed parts of his salary and accommodation allowance.
36. In this context, the Chamber acknowledged that its task was to decide if the player indeed
was entitled to the claimed amounts.
37. The Chamber duly noted that the Respondent argued that the player agreed to a lower
salary by signing the “supplementary agreement” and that he failed to proof that he actually
remitted payments for accommodation.
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REF. FPSD-9363
38. On account of the above, the DRC first pointed out that it had to establish if the
supplementary agreement shall be taken into account or not.
39. Bearing in mind the foregoing, the Chamber started analysing the documentation provided
by both parties in support of their position. The members of the Chamber wished to
emphasize that, according to the last sentence of art. 13 par. 3 of the Procedural Rules the
Chamber has ultimate discretion to as to the weight it gives to evidence.
40. Taking into account the above, the DRC pointed out that the club could not give a valid
reason why the player should have accepted a deduction of 50% of his salary.
41. Moreover, the club itself pointed out that it “raised” the player’s salary again (without any
written confirmation) after July 2022, in order to explain why more than EUR 2,500 were
remitted. According to the Chamber, the club’s argumentation is contradictory and does
not add up.
42. At this stage, it shall be considered appropriate to remark that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the
ones of alleged falsified signature or documents, and that such affairs fall into the
jurisdiction of the competent national criminal authority. In order to be able to solve such
disputes in a satisfactory and timely manner, without the need to wait for the initiation and
conclusion of a potential criminal investigation, the Chamber adopts a practical procedure
in such cases, namely to request the party who claims the authenticity of the disputed
document to provide its original version via regular mail. If for a layman the document
appears to be authentic and in line with the further documentation on file, such document
is considered as authentic for the purposes of solving the dispute at hand.
43. Comparing the signatures, from a laymans view, the DRC stated that the signatures from
the supplementary agreement do look different to the undisputed ones.
44. On account of the above, mainly due to contradictory behaviour/argumentation of the the
club, the DRC decded to disregard the supplementary agreement and concluded that the
player was entitled to EUR 5,000 as monthly salary during the whole duration of the
contract.
45. As to the claimed accommodation amounts, the DRC wished to emphasize that the club
itself confirmed that it remitted EUR 2,000 as accommodation costs between February
2022 and December 2022. Therefore, the club confirmed having had an obligation to pay
accommodation costs. The Chamber concluded that the total amount due amounts to EUR
2,750, which is 11 times EUR 250, as contractually stipulated. Therefore, the members of
the Chamber rejected the club’s argumentation and awarded the claimed difference of EUR
750 as accommodation costs.
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REF. FPSD-9363
ii. Consequences
46. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the following
amounts:
- EUR 2,500 as partial salary for February 2022;
- EUR 2,500 as partial salary for March 2022;
- EUR 1,500 as partial salary for October 2022;
- EUR 1,500 as partial salary for November 2022;
- EUR 806.55 as partial salary for December 2022;
- EUR 750 as outstanding accommodation costs.
47. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates (16th day of the
following month) until the date of effective payment.
iii. Compliance with monetary decisions
48. Finally, 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.
49. 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.
50. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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.
51. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
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REF. FPSD-9363
52. 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.
d. Costs
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-9363
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marcos Garbellotto Silveira Pedroso, is accepted.
2.
The Respondent, FK Liepāja, must pay to the Claimant the following amount(s):
- EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 16 March 2022
until the date of effective payment;
- EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 16 April 2022 until
the date of effective payment;
- EUR 1,500 as outstanding remuneration plus 5% interest p.a. as from 16 November
2022 until the date of effective payment;
- EUR 3,056.55 as outstanding remuneration plus 5% interest p.a. as from 16 December
2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-9363
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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