Dispute Resolution Chamber
Texto da decisão
REF 20-01347
Decision of the
Dispute Resolution Chamber
passed on 28 April 2021
regarding an employment-related dispute concerning the player RENAN
RODRIGUES DA SILVA
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Renan Rodrigues da Silva, Brazil
Represented by Mr Koray Akalp
RESPONDENT:
AdanaSpor, Turkey
Page 2 of 11
REF 20-01347
I. FACTS OF THE CASE
1.
On 22 July 2016, the Brazilian player, Renan Rodrigues da Silva (hereinafter: the player or the
Claimant), and the Turkish club, Club Adanaspor (hereinafter: the club or the Respondent), concluded
an employment contract, valid as from 1 June 2017 until 31 May 2019.
2.
In accordance with clause 3 of the contract, the club undertook to pay to the player, inter alia, the
following remuneration:
For the season 2017/2018:
USD 42,500 as advance payment for the season 2017/2018;
USD 12,500, as monthly salary, payable as from August 2017 until May 2018 (10 monthly
salaries, each of them payable on the 30th day of the month – and on the 28th of February
2018);
USD 3,000 “per game bonus for league games […] The player will be entitled to receive 100%
of the amounts stated above if the player is fielded within the first eleven, 75% if he is fielded
from the bench and 50% if he is in the match list of 18 players but not fielded”.
For the season 2018/2019:
3.
USD 50,000 as advance payment for the season 2018/2019;
USD 15,000, as monthly salary, payable as from August 2018 until May 2019 (10 monthly
salaries, each of them payable on the 30th day of the month – and on the 28th of February
2019);
USD 3,000 “per game bonus for league games […] The player will be entitled to receive 100%
of the amounts stated above if the player is fielded within the first eleven, 75% if he is fielded
from the bench and 50% if he is in the match list of 18 players but not fielded”.
On 20 September 2018, the parties allegedly concluded a mutual termination agreement (hereinafter:
the termination agreement), which reads as follows:
“MUTUAL TERMINATION
Whereas Mr. Renan Rodrigues Da Silva, (hereinafter referred to as The Player) and Club Adanaspor
A.S. (hereinafter referred to as The Club) (together will be referred to as The Parties) have a valid
employment contract until 31 May 2019. The Player requested the premature termination of the
employment contract.
Parties mutually and amicably agreed as follows:
The Player states and confirm that his all remuneration which became due until the
termination are paid in full other than USD 208,520 (Total take until 20.09.2018).
The Player suggested to pay early termination compensation in the amount of USD
160,000.- and deduction of such amount from his outstanding remuneration. Parties on the
Page 3 of 11
REF 20-01347
amount of compensation as USD 160,000 and deduction of compensation from the Player´s
outstanding remuneration.
The Club will pay the remaining USD 48,520.- to the Player on 24 September 2018.
The Parties, in accordance with the above mentioned points hereby mutually terminated all
agreements including but not limited to the employment contract signed on 22.07.2016
and its annexes by and between parties with immediate effect.
This mutual termination agreement is drafted only in English.
The player hereby releases the Club from its all obligations, other than the above mentioned USD
48,520.-, derived from all the contracts including but not limited to the employment contract signed
on 22.07.2016 and its annexes in full and irrevocably.
This instrument is drafted and signed by Parties mutually on 20.09.2018 in Adana”.
4.
In accordance with the information displayed in TMS, the first transfer window of the sporting season
2018/2019 in Turkey closed on 31 August 2018.
5.
On 24 September 2018, the Respondent paid the amount of USD 48,520 to the Claimant as per point
3 of the termination agreement.
6.
On 9 October 2018, the Claimant lodged a criminal complaint against the Respondent in Turkey,
stating that he never signed the termination agreement.
7.
On 12 January 2019, the Claimant concluded a contract (hereinafter: the new contract) with the
Turkish club, Giresunspor Kulübü Dernegi, valid as from January 2019 until May 2020, whereby the
player was entitled to receive a monthly salary of EUR 20,000.
II. PROCEEDINGS BEFORE FIFA
a.
8.
The claim of the Claimant
On 18 September 2020, the Claimant lodged a claim against the Respondent before FIFA. In his
request for relief, the player requested to be awarded outstanding remuneration and an additional
compensation for breach of contract in the amount of USD 250,000 broken down by the player as
follows:
Outstanding remuneration:
USD 160,000 net corresponding to his outstanding salaries after deduction of the amount
paid by the Respondent, i.e. USD 48,520, plus 5% interest p.a. as from 20 September 2018
until the date of effective payment (208,520 – 48,520 = 160,000);
An “additional compensation for breach of contract”:
Page 4 of 11
REF 20-01347
USD 90,000, corresponding to 6 instalments of the player´s salary (15,000*6 = 90,000), plus
5% interest p.a. as from 21 September 2018 until the date of effective payment.
Subsidiary to the above-requested compensation for breach of contract, an “additional
compensation”:
USD 45,000 corresponding to 3 instalments of the player´s salary (15,000*3 = 45,000), plus
5% interest p.a. as from 21 September 2018 until the date of effective payment.
9.
In his claim, the Claimant firstly held that, on 21 September 2018, he was shocked when he found
out, via the local news media, that his contract with the Respondent was terminated on an alleged
mutual basis on 20 September 2018.
10. The Claimant held that he immediately contacted the Respondent, who surprisingly confirmed the
conclusion of this alleged termination agreement. In this context, the Claimant explained that, as per
the Respondent, the mutual termination agreement dated 20 September 2018 had been validly
concluded and registered within the Turkish FA.
11. Later, on 1 October 2018, the Claimant sent a letter to the Respondent and the Turkish FA, stating
that he had never signed the alleged mutual termination agreement and that he rejected its content.
Thereby, the Claimant informed the Respondent that the amount paid by the latter, i.e. USD 48,520,
would be deducted from the Respondents financial obligations.
12. The Claimant explained that, on 15 October 2018, the Respondent replied thereto, stating that the
parties had validly concluded the termination agreement and that the signatures of the parties therein
contained correspond to the real signatures of the parties.
13. However, –continued the Claimant– a copy of the alleged termination agreement was never provided
by the Respondent to the Claimant; and it was only on 24 September 2018 that, upon the Claimant´s
request from the Turkish FA of a copy of the alleged termination agreement, the Claimant was
provided with a copy thereof.
14. As to the content of the termination agreement, the Claimant agrees on the amount that was initially
due to him, i.e. USD 208,520, from which the Respondent paid USD 48,520 on 24 September 2018.
Therefore, the Claimant maintained that the amount of USD 160,000 corresponding to outstanding
salaries due to him is still outstanding.
15. The Claimant himself informed our services that he concluded a new contract with a Turkish club,
Giresunspor Kulübü Dernegi, whereby the player was able to fully mitigate his damages as from
January 2019 and, therefore, the player did not request compensation for breach of contract.
Notwithstanding the above, the Claimant requested an additional compensation in an amount equal
to 6 monthly salaries and, subsidiary, in an amount equal to 3 monthly salaries.
16. The Claimant further held that, since the Respondent terminated the contract without just cause –by
means of fabricating the said termination agreement and forging his signature– on 20 September
2018, i.e. after the closure of the first transfer window of the 2018/2019 season, he remained
unemployed until the opening of the second transfer window. For clarification purposes, the Claimant
stressed that, being crystal-clear that the conclusion of the alleged termination agreement would not
make any sense at that moment in time, i.e. after the closure of the first transfer window of the
Page 5 of 11
REF 20-01347
2018/2019 season, the fact that the player accepted to waive USD 160,000 from his overdue salaries
makes it clearer that the termination agreement was forged by the Respondent, insofar it wold make
no sense that the player accepted to renounce on his salaries and early terminate the contract in order
to remain unemployed during the following months.
17. In addition, the Claimant referred to arts. 341 and 362 of the Swiss Code of Obligations and held
that, in accordance with the said articles, an employee may not waive any claim arising from
mandatory provisions during the period of the employment relationship and for one month after its
end. Thus, the Claimant held that –taking into consideration the relevant provisions of the abovementioned articles– the termination agreement, even if validly concluded, quad non, would be null.
18. As to the claim lodged before the Turkish criminal court, the Claimant explained that “he preferred
to wait until the outcome of these proceedings to file the present claim before the FIFA DRC. However,
due to the fact that the criminal proceedings have not reached a result at the date of this claim and
taking into consideration article 25.5 of the FIFA RSTP, the Claimant is left with no other choice but
to lodge the present claim against the Respondent for collection of his overdue salaries at the date of
the unlawful termination of [the contract] as well as compensation from the Respondent for breach
of contract”.
b.
Position of the Respondent
19. In its reply to the claim, the Respondent insisted in the validity of the termination agreement and held
that the signature of the player in the contract and the termination agreement are exactly the same.
In this respect, the Respondent maintained that, although FIFA is not competent to decide upon
criminal matters, the usual practice of the DRC is to compare the challenged signatures with
uncontested signatures on file and, “unless the challenged signatures differ significantly from the
ones that can it be compared with or the document in question shows signs of unsolicited
amendments (e.g. in handwriting), the signatures in question are examined with their appearances”.
20. In this respect, the Respondent held that, for a layman, the challenged signature “appears to be
genuine and the same with the ones under the other documents and therefore, the Claimant´s claim
[in this regard] must be rejected”.
21. Moreover, the Respondent confirmed the existence of criminal proceedings before the criminal courts
in Turkey regarding the authenticity of the termination agreement. In this respect, the Respondent
argued that, subsidiary to the rejection of the claim on the grounds of what will be explained here
below, the Chamber should wait for the decision to be issued by the criminal court of Turkey before
deciding on the merits of the present matter.
22. As to the reason why the player accepted to waive his entitlement to his outstanding salaries in an
amount equal to USD 160,000, the Respondent argued that –as pointed out by the Claimant–, he
was an essential player of the team and, therefore, since he wished to prematurely terminate the
contract, the parties agreed on the player paying a compensation of USD 160,000 to the club –which
would materialize in the player waiving his entitlement to the said amount–, which was reasonable
and fair –explained the Respondent–, insofar the club could not replace him until the opening of the
next transfer window. What is more –continued the Respondent–, the aforementioned explanation
matches the fact that the player´s remuneration with its new club is higher than the one he was
Page 6 of 11
REF 20-01347
obtaining with the Respondent, which would lead to the conclusion that it was the player who was
eager to prematurely terminate the contract.
23. The Respondent further sustained that, had the club forged the termination agreement, it would have
directly stated therein that the player had nothing to claim against it and that the club has complied
with all its financial obligations towards the player; but the termination agreement instead stated that
the club owed the player an amount of USD 48,520, which was effectively paid, as acknowledged by
the Claimant.
24. As to the application of art. 341 SCO, the Respondent held that employment relationships between
players and clubs differ from ordinary employment relationships and, hence, fall outside of the scope
of application of the said article.
25. As to the additional compensation requested by the Claimant, the Respondent held that art. 17.1 lit
ii RSTP does not apply to the present case, insofar the termination of the contract did not occur due
to overdue payables.
26. By means of its unsolicited correspondence dated 19 April 2021, the Respondent provided the
decision no. 2020/41051 issued by the Turkish Courts (T.C. Adana 1st Criminal Court of Peace) on 16
November 2020, in connection with the forgery of the termination agreement, which states, inter
alia, the following:
“The plaintiff whose clear identity is given above submitted a petition to our public prosecutor office
through his attorney and stated as follows: Renan Rodrigues Da Silva signed a contract having starting
date 01.06.2017 and expiry date 31.05.2019 as professional football player with Adanaspor; however
mentioned contract has been terminated by the club since 20.09.2018 but the plaintiff was not
informed in any way and also he didn't sign the termination documents therefore plaintiff and his
attorney complained that there had been forgery at stated documents; Defendant, Bayram AKGUL
stated in his statement briefly as follows: he had been chairman of Adanaspor since13 years; he had
100% shares of the club; they terminated the contract mutually upon statement of Renan Rodrigues
Da Silva as desiring to wear uniform in another club; the signature in the contract belong to him;
termination of the Professional Player Contract was realized in dur form; he didn't accept referred
crime.
In accordance with Certificate of Specialty issued by Erzurum Criminal Police Laboratory Directorate,
Signature Statement, Original Professional Player Contract in the file content, ".a) There was similarity
between the signatures belong to Renan Rodrigues Da Silva on the mentioned documents and
comparison hand writing and signatures of Renan Rodrigues Da Silva; therefore it has been concluded
that mentioned signatures were signed by hand of Renan Rodrigues Da Silva.. b) there was similarity
between signatures on the "MUTUALTERMINATION" document subject of the examination and under
the title of "ADANASPOR A.Ş. CLUB" and comparison hand writing and signatures of
BAYRAMAKGUL, therefore it has been concluded that mentioned signatures were signed by hand of
Bayram AKGUL" it has been determined that the signatures are hand products of plaintiff and
defendant so referred crime to defendant has no legal features. […]”.
Page 7 of 11
REF 20-01347
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: DRC or the Chamber)
analyzed whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was submitted to FIFA on 18 September 2020 and was submitted for decision on
28 April 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable
to the matter at hand.
2.
Subsequently, the DRC referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in
accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, the DRC is, in principle, competent to deal with the matter at stake,
which concerns an employment–related dispute with an international dimension.
3.
In this point, the DRC analyzed –ex officio– its competent to decide upon the present case, insofar
the outstanding moneys requested by the player seem to originally derive from outstanding salaries
due to the player before the date of 20 September 2018, i.e. the date on which the parties allegedly
concluded the termination agreement; and, since the player lodged his claim before FIFA on 18
September 2020, some of those outstanding salaries would be time-barred ex. art. 25.5 of the
Regulations. Nevertheless, after carefully analyzing the factual scenario of the present case, the DRC
deemed that the legal basis for the claim at stake shall be the termination agreement, which novated
the financial rights and obligations of the parties. Hence, since the statute of limitations of 2 years
contemplated in art. 25.5 of the Regulations is not exceeded, insofar no more than 2 years elapsed
neither since the due dates of the amounts payable thereunder nor from the date of its conclusion,
the DRC determined that the claim of the player is to be considered admissible.
4.
The above being clarified, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the DRC confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (February 2021 edition), and
considering that the claim was lodged on 18 September 2020, the August 2020 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
5.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12 par. 4 of the
Procedural Rules, pursuant to which it may consider evidence not filed by the parties.
6.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or contained in TMS.
Page 8 of 11
REF 20-01347
c. Merits of the dispute
7.
The competence of the DRC and the applicable regulations having been established, the Chamber
entered into the substance of the matter. In this respect, the DRC started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation submitted by the parties.
However, the DRC 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
8. Entering into the substance of the matter-at-hand, the DRC acknowledged that one of the main issues
regarding the present case is whether the parties concluded or not the alleged termination agreement
by means of the player would have renounced his entitlement to claim his outstanding moneys in the
amount of USD 160,000.
9. In this context, the DRC observed that both parties acknowledged that the amount of USD 160,000
was due to the player as per the contract but was never paid to him; the only dissenting point being
that the Respondent argues that the player validly waived his entitlement thereto, whereas the
Claimant denies having done so, since he never signed the said termination agreement.
10. In the first place, the DRC –after having analysed the content of the termination agreement–
concluded that it contained all the essentialia negotii needed in order for an agreement to be held
effective and legally binding, i.e. the parties are duly identified, the contract has a subject-matter, has
a valid cause and the parties seem to have validly given their consent to be bound thereby. In this
respect, the DRC acknowledged the arguments of both parties regarding the signature of the player
in the termination agreement and held that, even though the DRC has no capacity to investigate
criminal matters, the DRC is in a position to compare the signatures contained in the relevant
agreements provided by the parties in order to determine whether the relevant signatures seem to
have been produced by the same individual or not. In this respect, after having compared the
signatures contained in the contract and the termination agreement, the DRC deemed that both
signatures seem to have the same author. Nevertheless –continued the DRC– a proper analysis thereof
could not be possibly undertaken, given that the original documents are in possession of the criminal
courts in Turkey.
11. In addition to the aforementioned, the DRC acknowledged receipt of the correspondence dated 19
April 2021, which was submitted by the Respondent and whereby the latter provided FIFA with the
decision no. 2020/41051, issued by the Turkish Courts (T.C. Adana 1st Criminal Court of Peace) on
16 November 2020. In this respect, the DRC determined that, in view of the aforementioned
considerations and that the ruling of the Turkish Courts is resounding in its conclusion that the
termination agreement was indeed signed by the player and the club, it is to be determined that the
parties validly entered into the said termination agreement.
12. The above being clarified, the DRC turned its attention to the arguments of the Claimant, who
stressed that, in accordance with art. 341 of the Swiss Code of Obligations (SCO), an employee
(player) will not be able to waive, during the duration of the contract and within a month following
the (effective) end of the contractual relationship, claims arising from mandatory provisions of law or
of a collective agreement. In addition, the Chamber noted the explanation of the Claimant, who
stated that, whereas arts. 361 and 362 SCO –which list the mandatory provisions to which art. 341
refers– do not expressly contemplate salaries as mandatory provisions, these lists are not exhaustive,
as confirmed by the doctrine and the Swiss Federal Tribunal. In this respect, the Chamber noted the
argumentation of the Claimant, who highlighted that the Court of Arbitration for Sport (CAS) is
Page 9 of 11
REF 20-01347
inclined to consider salaries due to a player in connection to an effectively worked period as
mandatory provisions in the sense of art. 341 SCO.
13. The DRC further noted that, on its part, the Respondent argued that art. 341 SCO shall not apply to
the present case, since the employment relationships between players and clubs differ from ordinary
employment relationships.
14. In this context, the DRC –after having carefully analysed the content and wording of the termination
agreement entered into between the parties– referred to the fourth paragraph of the termination
agreement, which states that “The player suggested to pay early termination compensation in the
amount of USD 160,000- and deduction of such amount from his outstanding remuneration”.
15. In view of the aforesaid, the Chamber wished to emphasize that the player did not thereby waive his
entitlement to receive the outstanding amount of USD 160,000, but rather accepted to pay liquidated
damages to the club in the amount of USD 160,000; amount that would be offset from the player´s
outstanding moneys. In this respect, the Chamber highlighted that parties to a contract are free to
agree on liquidated damages clauses, which become due when one of the parties wishes to terminate
the contract during its term, as seems to be the situation in the present case. As to the proportionality
of the amount payable as compensation, i.e. USD 160,000, the DRC deemed that –albeit high– it
represented less than half of the player´s fixed income with the club, which together with the fact
that the club –under the termination agreement– obliged itself to pay an amount of USD 48,250 to
the player, which was effectively paid, lead to the conclusion that the parties freely entered into such
agreement in order for the player to be released.
16. In this context, the Chamber wished to also emphasize that, although the abovementioned reasoning
is the one reached by the Chamber in strict interpretation of the wording of the termination
agreement, which validity and legitimacy has been confirmed, the overall logic of the situation, i.e.
the player accepting to renounce his outstanding salaries in an amount of USD 160,000, even though
the player may have terminated the contractual relationship with the club (in view of the fact that at
the date on which the parties concluded the termination agreement the club was in default of
payment of several monthly salaries), is particular to say the least. Nevertheless, the Chamber
determined that, in view of the evidence provided, the arguments wielded and the wording of the
termination agreement, it is to be concluded that the parties validly agreed on the player paying an
amount of USD 160,000 to the club as liquidated damages in order to be released.
17. With the aforementioned idea in mind, the Chamber referred to the argument of the Claimant
regarding the application of art. 341 SCO to the present case and concluded that, insofar the player
did not waive his entitlement to receive outstanding amounts, but rather accepted to pay an amount
of USD 160,000 as liquidated damages to the club, the aforesaid article cannot apply.
18. Thus, being acknowledged that the club paid the contractually agreed amount of USD 48,520 to the
player and that the player accepted that the amount of USD 160,000 from his outstanding moneys
would be offset by the club as liquidated damages for him to be released and the contract to be
considered terminated, the DRC deemed that the Claimant had no further entitlement to claim from
the Respondent.
Page 10 of 11
REF 20-01347
ii. Consequences
19. The DRC concluded its deliberations in the present matter stipulating that the claim of the Claimant
is rejected.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Renan Rodrigues da Silva, is admissible.
2.
The claim of the Claimant is rejected.
3. This decision is rendered without costs.
For the DRC:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the, 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 20 of the Procedural Rules).
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
Page 11 of 11