Labour Disputes
Texto da decisão
REF FPSD-3523
Decision of the
Dispute Resolution Chamber
passed on 5 February 2022
regarding an employment-related dispute concerning the player Rodrigo
Longo Freitas
BY:
Omar Ongaro (Italy), Chairperson
Khadija Timera (Senegal), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Rodrigo Longo Freitas, Brazil
Represented by Débora Trombeta de Mattos Cesário
RESPONDENT:
Adanaspor, Turkey
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REF FPSD-3523
I.
Facts of the case
1.
On 21 July 2016, the Brazilian player Rodrigo Longo Freitas (hereinafter: the player or
Claimant) and the Turkish club Adanaspor (hereinafter: the club or Respondent) signed an
employment agreement (hereinafter: the first contract), valid between 21 July 2016 and 31
May 2019, based on which the Claimant was entitled to the following amounts:
Seasons 2016/2017 and season 2017/2018:
• USD 30,000 as ‘advance payment’;
• USD 70,000 as salary to be paid in 10 equal instalments of USD 7,000 each, due on
the 30th day of the respective month in the period between August and May;
• USD 1,000 ‘per game bonus’.
Season 2018/2019:
• USD 30,000 as ‘advance payment’;
• USD 100,000 as salary to be paid in 10 equal instalments of USD 10,000 each, due
on the 30th day of the respective month in the period between August and May;
• USD 1,500 ‘per game bonus’.
2.
In ‘mid-June 2018’ (according to the Claimant) or on 30 August 2018 (according to the
Respondent), the Claimant and the Respondent signed another contract (hereinafter: the
amendment to the first contract), which amended the conditions for the 2018/2019 season
as follows:
Season 2018/2019:
• USD 30,000 as ‘advance payment’;
• USD 135,000 as salary to be paid in 10 equal instalments of USD 13,500 each, due
on the last day of the respective month in the period between August 2019 and
May 2020;
• USD 1,500 ‘per game bonus’.
3.
‘At the end of the 2018/2019 season’ (according to the Claimant), or on 30 August 2018
(according to the Respondent), the Claimant and the Respondent renewed the contract for
the period between 1 June 2019 and 31 May 2020 (hereinafter: the second contract), based
on which the Claimant was entitled to the following amounts:
Season 2019/2020:
• USD 30,000 as ‘advance payment’, due on 15 September 2019;
• USD 135,000 as salary to be paid in 10 equal instalments of USD 13,500 each, due
on the last day of the respective month in the period between August 2019 and
May 2020;
• USD 1,500 ‘per game bonus’.
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4.
On 2 September 2019, the Respondent unilaterally terminated the contract with the
Claimant, according to the Claimant without even informing him.
5.
On the same day, 2 September 2019, the Claimant and the Respondent allegedly signed a
mutual termination agreement, based on which the parties agreed the following:
-
-
the second contract would be terminated with immediate effect;
the Claimant had an amount of USD 43,500 as outstanding remuneration to claim
from the Respondent, however wished to terminate his contract with the Respondent
in exchange for the payment of an amount of USD 30,000 by the Claimant to the
Respondent;
the Claimant would receive from the Respondent the remaining balance, i.e. the
amount of USD 13,500, as ‘salary for August 2019’ on 2 October 2019;
the parties would waive all other obligations towards each other.
6.
On 4 September 2019, the Claimant was informed by his former agent that he no longer
needed to be present at the training sessions of the Respondent, as his contract was allegedly
terminated.
7.
After a due diligence by the Claimant’s lawyer, the Claimant found out in the weeks after the
alleged unilateral termination that the Respondent never registered the second and third
contract at the TFF, and moreover, that the Respondent had submitted a fake mutual
termination document dated 2 September 2019 to the TFF, holding a falsified signature of
the Claimant.
8.
On 21 October 2020, the Claimant signed a new contract with the Brazilian club CA
Metropolitano, valid for the period between 23 October 2020 and 22 January 2021, based
on which the Claimant was entitled to a monthly salary of Brazilian Reais (BRL) 1,045
(approximately USD 200).
II. Proceedings before FIFA
9.
On 2 September 2021, 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. In his claim, the Claimant explains that the Respondent only registered the first contract at
the Turkish Football Federation (TFF). The second contract was offered to the Claimant by the
Respondent, because of ‘the Claimant’s performance that pleased the Board of Directors’,
aiming at equalizing the Claimant’s remuneration with the rest of the squad.
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11. Further, the Claimant explains that during the 2018/2019 season, he always received an
amount of EUR 13,500 from the Respondent.
12. Moreover, a few weeks after the conclusion of the third contract, the president of the
Respondent, Mr Bayram Akgul, ‘imposed to the Claimant the acceptance of 25% wage
reduction over the whole contract, which was refused by the Claimant’. After the refusal of
the Claimant to accept said salary reduction, the Respondent allegedly started to intimidate
the Claimant.
13. The Claimant explicitly points out that the signature on the document dated 2 September
2019 is falsified, that the Respondent on purpose did not register him for the 2019/2020
season and that he never agreed with the (unilateral) termination of the contract. The
Claimant deemed that such behaviour from the Respondent is to be considered abusive
conduct in the sense of art. 14 par. 2 RSTP.
14. In addition, the Claimant argues that it made no sense at all that he would leave the
Respondent on the last day of the summer 2019 transfer window, with waiving all his
entitlements.
15. As to the document dated 2 September 2019, the Claimant explains that said document was
not correctly registered before the TFF, as the declaration from notary regarding the validity
of the signature was missing.
16. Further, the Claimant explained that he opened a case before a Turkish Court to examine the
signature on the document dated 2 September 2019, however that said case is for procedural
reasons dismissed.
17. Additionally, the Claimant explains that even for a layman, the differences between the
(uncontested) signature on the contract and the (contested) signature on the document dated
2 September 2019, are significant. What is more, the document dated 2 September 2019
also allegedly mentions the wrong starting date of the contract, and furthermore, the amount
of USD 13,500 as mentioned in the document, was never paid.
18. In conclusion, the Claimant explains that his career suffered significant damages as a result
of the behaviour of the Respondent and that as a result, the contract was terminated without
just cause by the Respondent.
19. The requests for relief of the Claimant, were the following:
To be awarded the total amount of USD 246,000, plus 5% interest p.a. as from the respective
due dates, specified as follows:
Outstanding remuneration in the total amount of USD 43,500, broken down as follows:
• USD 30,000 as advance payment, due on 16 September 2019;
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•
USD 13,500 as outstanding remuneration for August 2019, due on 31 August 2019.
Compensation for breach of contract in the total amount of USD 121,500, broken down as
follows:
• USD 121,500 as residual value of the contract for the “2021-2022 Football Season”.
Additional compensation in the total amount of USD 81,000, broken down as follows:
• 6 monthly salaries of USD 13,500 each.
b. Position of the Respondent
20. In its reply, the Respondent asks for the rejection of the entire claim of the Claimant and
argued that the Claimant was training with the A-team of its club during the period between
17 June and 2 September 2019, i.e. the first transfer window in Turkey. According to the
Respondent, at the beginning of September 2019, the Claimant approached the Respondent,
indicating that he wished to find a new club and wanted to terminate his contract with the
Respondent.
21. As a result of the foregoing, the Respondent explains that it signed a termination agreement
with the Claimant on 2 September 2019. Moreover, the Respondent explains that the
Claimant eventually did not find a new club.
22. Moreover, the Respondent explains that it had no obligation to register the amendment to
the first contract with the TFF, as it merely amends the amount of remuneration.
23. In addition, the Respondent explains that it did not had the obligation to pay the advance
payment of USD 30,000, as said amount only fell due on 15 September 2019, i.e. after the
signing of the settlement agreement.
24. As to the alleged payment arrears, the Respondent explains that throughout their contractual
relationship, the Claimant became entitled to USD 452,125, however received effectively USD
461,841 from the Respondent. As a result of this, the Respondent argues that ‘it is evident
that the player did not waive his receivables and did not pay a compensation to the club’.
25. Furthermore, the Respondent explains that the Claimant was always registered during the
seasons 2016/2017, 2017/2018 and 2018/2019, and also took part in the pre-season training
camp of the Respondent in ‘summer 2019’.
26. Also, the Respondent argues that the registration and termination of the second contract was
duly registered at the TFF. Moreover, the Respondent argues that there was no need to
register the Claimant, as the parties signed a mutual termination agreement.
27. In relation to the mutual termination agreement dated 2 September 2019, the Respondent
argues that said agreement is validly concluded between the parties and also registered at
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the TFF. It also explained that the original version of said termination agreement is in the
offices of the TFF and that it had requested for said original to be provided, however until
now to no avail.
28. The Respondent is of the opinion that the Claimant, in an alleged attempt to “recover” some
of the monies, after he failed to find a new club in the summer of 2019, decided to lodge a
complaint against the Respondent ‘to take his chance for unjust enrichment’.
29. As to the alleged forgery of the termination agreement, the Respondent argues that a criminal
expert of the Turkish National Police, Mr Mehmet Ali Tekiner, examined the original version
of the settlement agreement, and concluded that the signature and name on said document
indeed were put there by the Claimant. Also, for a layman, the names and signatures on the
termination agreement and other (non)-contested documents, appear to be the same.
30. The Respondent further points out that the fact that the Claimant wrote his name under the
settlement agreement, has to be considered as an intention to sign the termination
agreement.
31. As to the contents of the settlement agreement, the Respondent points out that ‘the player
did not waive his receivables’, as he duly received the amount of USD 13,500 on 15 October
2019, nor that he ‘paid compensation to the club’, as the amount of USD 30,000 was due
only on 15 September 2019, but the settlement agreement was already signed on 2
September 2019.
32. Finally, the Respondent contests the calculation of the residual value of the contract made by
the Claimant and argues that the salary for August 2019 has been paid. Also, the Respondent
contests that additional compensation can be due.
c. Additional position of the Claimant
33. In an additional position, the Claimant denied the Respondent’s allegations that on 30 August
2018, signed the amendment to the first contract, and on the same day signed the second
contract. The Claimant argues that it is ‘crystal clear that the signing date of the contract in
dispute was a mistyping’ and that it seemed more logical that Respondent only changed the
term of the ‘second contract and by mistake did not update that field’.
34. Also, the Claimant denies that he requested to be transferred to another club, and also
pointed out that an alleged mutual termination would have needed to be registered at the
TFF, accompanied with a ‘notarized circular of signature of the parties’, which did not happen
in the matter at hand.
35. Moreover, the Claimant argues that the payment of USD 66,000 - made in June 2019 - was
related to the 2018/2019 season and that the Respondent only fulfilled its obligations under
the second agreement after it was put in default. Also, the Claimant explained that in relation
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to the alleged payment of USD 13,500 on 15 October 2019, he ‘did not recognize any
payment in connection with the receipt presented by the club’.
36. Also, the Claimant argues that at the time of the forged termination, the championship in
Turkey had already started and he was not included in the squad of the Respondent for at
least three matches, as a ‘revenge’ for him not agreeing with a salary reduction or mutual
termination.
37. In addition, the Claimant submitted a letter of the TFF, on the basis of which it could be
concluded that the second contract was indeed submitted to the TFF, but was on 2 September
2019, ‘before its registration’.
38. Finally, in relation to the expert examination submitted by the Respondent, the Claimant
explains that such examination cannot be considered, as it is partial as well as the TFF did not
agree with it.
d. Additional position of the Respondent
39. In an additional position, the Respondent stated that not all terms of the first contract were
amended, however only the Claimant’s remuneration. What is more, the Respondent
confirms that the amendment to the first contract, as well as the second contract were
effectively signed on 30 August 2018.
40. Moreover, the Respondent denies the Claimant’s position that the Respondent should have
concluded a transfer agreement, as (a) it was the Claimant which requested on the last day
of the transfer window to sign a mutual termination agreement and (b) it did not request a
transfer compensation.
41. Further, the Respondent states that at the end of the 2018/2019 season, it was going through
difficult financial times and that the allegations of the Claimant that it was acting abusive,
cannot be upheld.
42. Finally, the Respondent argues that the signatures of the Claimant on the correspondences
dated 1 and 13 June 2019 differ significantly from those under other documents presented
in this case, as well as that the Claimant also signed with his name only under for instance
the power of attorney.
43. As to the alleged invalidity of the expert examination, the Respondent denies such allegations
and explains that the expert is impartial.
44. In conclusion, the Respondent asks for the rejection of the Claimant’s claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
45. 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 2 September 2021 and submitted for
decision on 16 February 2022. Taking into account the wording of art. 34 of the October
2021 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.
46. 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 (August 2021 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.
47. 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 (August 2021 edition) and
considering that the present claim was lodged on 2 September 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
48. 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
49. 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.
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i. Main legal discussion and considerations
50. 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 contractual basis on which this
employment relationship was based and whether the parties – after having been in a
contractual relationship as from 21 July 2016 – had validly concluded a termination
agreement dated 2 September 2019.
51. In this context, the Chamber acknowledged that it its task was to determine whether it could
be validly assumed that the parties had indeed validly concluded a settlement agreement on
2 September 2019 and if so, what the consequences of such termination would be.
52. First of all, the members of the Chamber deemed it relevant to point out that - after having
evaluated the documentation submitted by the parties, the timeline, the signatures of the
parties as well as the circumstances described – it appears to be the most likely that the
contractual basis of the employment relationship was based on (1) a contract valid between
21 July 2016 and 31 May 2019, the financial conditions of which were amended on 30
August 2018 for the next season 2018/2019 and (2) a second contract signed on the same
day, 30 August 2018, which would only come into force on 1 June 2019 and would be valid
until 31 May 2020. Based on the latter, the player was entitled to a monthly salary of USD
13,500 and an advance payment of USD 30,000, due on 15 September 2019.
53. In this respect, the Chamber wished to point out that in this respect, the line of argumentation
submitted by the Respondent as to the registration of the contracts seemed to be the most
reliable.
54. Taken into account the foregoing, the Chamber decided that the contractual basis for the
amounts claimed in the current claim was the second contract, signed between the parties
on 30 August 2019.
55. What is more, the members of the Chamber, noted that the player deems that the
termination agreement dated 2 September 2019, allegedly concluded between him and the
club, cannot be considered, as he never signed such agreement and because the signature
on aid document does not belong to him.
56. Furthermore, the members of the Chamber noted that the main point of discussion between
the parties is the alleged settlement agreement dated 2 September 2019 and its validity,
which is contested between the parties.
57. In this respect, the Chamber first wished to point out that the club is of the opinion that the
player requested for the conclusion of the settlement agreement at the beginning of
September 2019, as he wished to sign a contract with another club, however also noted that
the player eventually only signed a new contract in October 2020. On the other hand, the
members of the Chamber also noted that the player claims to have never signed the
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settlement agreement, but only lodged a claim against the club two years after the alleged
signing of the settlement agreement.
58. Furthermore, the Chamber turned its attention to the different signatures placed on the
documents on file and noted that the “signature” placed on the settlement agreement is
simply the name of the player, written in full, which is different from signatures that appear
on all the other contracts.
59. However, the Chamber also noted that the player signed of the power of attorney dated 4
September 2019, which is also on file, again with his full name and which power of attorney
is in principle considered acceptable by the FIFA Administration. The Chamber took into
account that the updated power of attorney dated 1 September 2021, was only requested
by the FIFA Administration because of the fact that the power of attorney dated 4 September
2019 was considered outdated.
60. Furthermore, the members of the Chamber also analysed the original of the settlement
agreement, which was provided by the Respondent – via the TFF, on 23 November 2021 –
and noted that the signature, i.e. the name of the player, is also written in full and that there
are no indications that said signature could not have been placed by the player and/or is
significantly different from all other signatures available on (non-contested) documentation.
61. As to the expert reports provided by the club, which conclude that the player had effectively
signed the settlement agreement, the members of the Chamber further noted that the player
choose to not submit an expert report and/or to request the original of the settlement
agreement, as a result of which the expert report submitted by the club remained
uncontested from the player’s end.
62. Additionally, the members of the Chamber deemed it relevant to point out that the player,
already on 4 September 2019, shortly after he allegedly signed the settlement agreement and
after he received some WhatsApp messages from his agent that the contract had been
terminated, granted a power of attorney to a lawyer, to represent him in a dispute towards
the club. However, on the other hand, after issuing of the power of attorney, the player
remained silent for almost two years and only effectively lodged a claim against the club on
2 September 2021.
63. Taken into account all the circumstances described above, the members of the Chamber
deemed it more likely that the player – around September 2019 – allegedly used as a signature
his name written in full. As such, the Chamber came to the conclusion that, taking into
account all the relevant circumstances and documentation on file, it seemed most likely that
the settlement agreement dated 2 September 2019 was indeed signed by the player and thus
can be upheld.
64. Following the line that the settlement agreement can be upheld, the members of the
Chamber went on to analyse whether the amount foreseen in the settlement agreement, i.e.
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USD 13,500, was effectively paid by the club. In this respect, the Chamber noted that the
player denied having received said payment, but that the club had submitted convincing
documentary evidence, that is, bank receipts which are of a similar form and lay out of bank
receipts that were not contested, that it effectively paid said amount of USD 13,500 on 15
October 2019.
ii. Consequences
65. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of the above circumstance, keeping in mind that the settlement
agreement can be upheld and that the club effectively had paid the amount of USD 13,500
on 15 October 2019.
66. Keeping in mind the above considerations, the members of the Chamber came to the
conclusion that the claim of the Claimant has to be rejected.
d. Costs
67. 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.
68. 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.
69. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Rodrigo Longo Freitas, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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