Labour Disputes
Texto da decisão
REF FPSD-4385
Decision of the
Dispute Resolution Chamber
passed on 19 May 2022
regarding an employment-related dispute concerning the player Bautista
Andres Pavlovsky
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Stefano Sartori (Italy), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Bautista Andres Pavlovsky, Argentina
Represented by Javier Casabal
RESPONDENT:
FC Botosani, Romania
Represented by Dragos Balta
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REF FPSD-4385
I.
Facts of the case
1.
On 13 June 2019, the Argentinian player, Bautista Andres Pavlovsky (hereinafter: Claimant or
player) and the Romanian club, FC Botosani (hereinafter: club or Respondent) signed a
document named “Sports activity preliminary agreement” (hereinafter: agreement) valid as
from 1 July 2019 until 30 June 2020.
2.
According to the agreement, the Respondent undertook to pay the Claimant the total
amount of EUR 18,000, corresponding to a monthly salary of EUR 1,500, payable as follows:
EUR 4,500 until 30 September 2019;
EUR 4,500 until 15 December 2019;
EUR 4,500 until 30 March 2020;
EUR 4,500 until 30 June 2020.
3.
Furthermore, in accordance with the agreement the Respondent undertook to pay the player
the following monies:
EUR 250 per month as accommodation allowance;
EUR 400 per month as food allowance;
EUR 4,000 per year as car allowance.
4.
On 12 August 2019, the club sent the player a draft for an employment contract in word
format containing a monthly salary of EUR 1,500.
5.
According to the Respondent, on 14 August 2019, the parties terminated the agreement
with a termination agreement, which declares that the player “has no longer any financial
claims against the club”.
6.
On 14 August 2019, the parties concluded an employment contract (hereinafter: contract)
with the duration as from 19 August 2019 until 30 June 2020, according to which the
Respondent undertook to pay the Claimant “a basic gross salary of 4,033 lei” (approx. EUR
815).
7.
On 3 November 2021, the Claimant put the Respondent in default and requested payment
of EUR 13,500 within 10 days.
II. Proceedings before FIFA
8.
On 24 November 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the Claimant
9.
In his claim, the Claimant requested payment of EUR 13,500 “plus interest”.
10. The player held that the claimed amount based on the contract remained outstanding, despite
his default notice.
b. Position of the Respondent
11. In its reply, the Respondent rejected the player’s claim since no amounts remained
outstanding.
12. The Respondent argued that it fulfilled its financial obligations as to the contract. In this
regard, the club submitted a list of payments remitted to the player:
Note: RON 23,391 are approx. EUR
4,700.
13. Moreover, the club held the agreement was terminated on 14 August 2019, establishing that
no further financial obligations exist for the club.
14. In this regard, the club maintained that the contract was registered with the Romanian
Football Federation and also uploaded in the Transfer Matching System (TMS).
15. Furthermore, the Respondent also submitted a “Job description” dated 14 August 2019,
which was allegedly signed by the player as well.
16. Moreover, the Respondent argued that on the basis of the contract the Romanian authorities
issued a long-term VISA and the Romanian Football Federation a football licence.
17. In this regard, the Respondent rejected the Claimant’s argument that the agreement was
“the only contract” concluded between the parties.
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c. Replica of the Claimant
18. In his replica, the player rejected the club’s arguments and contested the having signed the
alleged termination agreement dated 14 August 2019 as well as the job description. He
alleged that those documents were forged by the club.
19. In this regard, the player submitted an “expert report” establishing that the documents on
the alleged termination agreement and the job description were not signed by the Claimant.
20. The Claimant pointed out that the agreement was the result of the true negotiations of the
parties and therefore reflected the intentions of the parties regarding the contractual
relationship. He further held that the agreement is an employment contract containing all the
necessary elements and that the lack of registration of such contract does not affect the rights
and obligations arising thereof.
21. Subsequently, the player pointed out that he received a draft of an employment contract on
12 August 2019 reflecting a monthly salary of EUR 1,500, before the parties signed the
contract on 14 August 2019, containing a monthly salary of half of what was previously
agreed.
22. In this context, the player held that he did not understand the content of the contract when
he signed it, as it was in a “foreign language”.
23. The Claimant argued that it was bad faith and an abuse of power by the club as the
negotiations always included the higher salary and that the player would have never agreed
on the lower amount if he would have realized it. Further, the player also pointed out that he
was promised food, car and housing allowances in the agreement, which suddenly did not
appear anymore in the contract.
24. Consequently, the player requested the Chamber to “recognize” the salary from the
agreement as the true value of the contractual relationship as it was the true intention of the
parties.
25. Moreover, the player explained that he did not protest earlier since he did receive some
payments of the club without reference to the agreement or the contract and that he only
became aware to the situation when being provided with the club’s reply.
26. Additionally, the player did not acknowledge receipt of all the payments referred to by the
club in its list. He stated having received EUR 4,500 in total.
27. On account of the above, he requested the Chamber to “condemn FC Botosani to pay the
Player the overdue amounts of EUR 13,500 of salaries, plus EUR 4,000 for car, plus any
difference regarding the Individual Labor Contract, plus moral and ethical damages if any,
plus interest, costs and fines”.
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d. Duplica of the Respondent
28. In its duplica, the Respondent reiterated its position.
29. The club submitted its own expert report regarding the disputed signatures, according to
which the signatures on the alleged termination agreement and the job description belong
to the player in question.
30. Therefore, the club maintained that the termination shall be taken into account and the claim
therefore shall be rejected.
31. Furthermore, the Respondent pointed out that the fact that the player did not mention the
actual contract in his initial claim is showing the bad faith of the player.
32. Moreover, the club rejected the player’s argument that he did not understand what he signed,
since the contract was signed in Romanian and English language, as the agreement as well.
33. Additionally, the Respondent submitted the payment orders in support of their payments
effectively remitted to the player.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. 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 24 November 2021 and submitted for
decision on 19 May 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.
35. 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 (March 2022 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 an Argentinian player
and a Romanian club.
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36. 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 (March 2022 edition), and
considering that the present claim was lodged on 24 November 2021, the August 2021
edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
37. 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
38. 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
39. 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 if the player is entitled to the
outstanding remuneration claimed.
40. In this context, the Chamber acknowledged that its task was to decide on which contractual
basis the player’s claim was based and if the player waived his salaries or if he is entitled to
receive the monies claimed.
41. Therefore, first of all, the Chamber had to establish what the contractual basis of the
employment relationship is in the case at hand.
42. In this regard, the DRC established that, undisputedly, the parties concluded the agreement
on 13 June 2019. Subsequently, the conclusion of the termination agreement is disputed by
the player, who stated that such document was forged since he did not sign it. The Chamber
noted that the parties submitted diverging expert opinions on those signatures.
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43. As a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal
law, such as the one of alleged falsified signatures of documents, as such affairs fall into
jurisdiction of the competent national criminal authority.
44. Nevertheless, the Chamber held that from a layman’s point of view the disputed signatures
seem different from the undisputed ones.
45. Additionally, after thoroughly analysing the documentation produced by the parties, the
Chamber noted that the Respondent was not able to provide the original of such document
within the given deadline.
46. Therefore, in line with FIFA’s well-established jurisprudence, the Chamber established that
the termination agreement could not be taken into account in the context of the present
dispute.
47. Nevertheless, the members of the Chamber wished to emphasize that even if the termination
agreement was not validly concluded, it remained undisputed that the parties entered into
the contract subsequently. Such contract does not appear to be an annex to the agreement,
but rather a separate contract, replacing the previous one, i.e. the agreement.
48. The Chamber also noted that, while the player does not dispute having in fact signed the
contract, he deems that the latter should be considered as invalid, as he does not understand
the language in which it was drafted and therefore had no full understanding of its content
when signing it.
49. In this respect, Chamber referred to FIFA’s well-established jurisprudence, according to which
a party signing a document of legal significance, as a general rule, does so on its own
responsibility and is liable to bear the legal consequences arising from the execution of such
document.
50. Furhterore, the DRC pointed out the fact that the player did never complain about his “lower”
salary of the contract (first default notice is dated 3 November 2021, whereby the contract
was valid during the season 2019/2020), which indicates that he did not expect the higher
salary of the agreement
51. Therefore, in the present case, the Chamber deems that it is the player’s responsibility to bear
any legal consequences arising from the execution of the contract and therefore, his objection
in this regard must be disregarded.
52. On account of the above, the members of the Chamber concluded that the contract signed
replaced the agreement previously concluded and that the club therefore was liable for the
financial obligations arising from the contract and not the agreement.
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ii. Consequences
53. Taking into account the above considerations, the Chamber turned its attention to the
amounts received by the Claimant from the Respondent and noted that the player
acknowledged an amount of EUR 4,500 in total, whereby the Respondent held having
remitted slightly more (RON 23,391 corresponding to approx. EUR 4,700).
54. Referring to Art. 13 par. 5 of the Procedural Rules and taking into account the payment orders
in its duplica, the Chamber concluded that the amount of RON 23,391 was effectively paid
to the player.
55. According to the contract, the player was entitled to a gross salary, which according to the
Respondent corresponds to a total net amount of RON 23,391. Such allegation remained
undisputed by the Claimant. Therefore, the Chamber considered that the club fulfilled its
financial obligations.
56. Consequently, the DRC decided to reject the player’s claim.
d. Costs
57. 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.
58. 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.
59. 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, Bautista Andres Pavlovsky, 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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