Labour Disputes
Texto da decisão
REF. FPSD-15679
Decision of the
Dispute Resolution Chamber
passed on 12 December 2024
regarding an employment-related dispute concerning the player
Marlon Douglas de Sales e Silva
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Roy VERMEER (The Netherlands), Member
Alejandro ATILIO TARABORELLI (Argentina & Italy), Member
CLAIMANT:
Marlon Douglas de Sales e Silva, Brazil
Represented by Pedro Macieirinha
RESPONDENT:
Gil Vicente FC, Portugal
Represented by Isabel Carneiro
pg. 2
REF. FPSD-15679
I. Facts of the case
1.
On 30 December 2022, the Brazilian player Marlon Douglas de Sales e Silva (hereinafter:
the Claimant or the Player) and the Portuguese club Gil Vicente FC (hereinafter: the
Respondent or the Club) concluded an employment contract (hereinafter: the Contract) valid
as from 1 January 2023 until the end of the 2025-2026 sporting season.
2.
According to article 3 of the Contract, the Respondent undertook to pay the Claimant as
follows:
“1- 2022/2023 season - The net global amount of €50,000.00 (fifty thousand euros), which will
be paid in 6 (six) net ninth payments of €8,333.33 (eight thousand, one hundred and thirty-three
euros and thirty-three cents), including the proportional holiday and Christmas bonuses.
2- 2023/2024 season - The total net sum of €120,000.00 (one hundred and twenty thousand
euros), which will be paid in 12 (twelve) net, monthly, equal and successive instalments of
€10,000.00 (ten thousand euros) each, including holiday and Christmas bonuses.
3- 2024/2025 season - The total net amount of €120,000.00 (one hundred and twenty thousand
euros), which will be paid in 12 (twelve) net, monthly, equal and consecutive instalments of
€10,000.00 (ten thousand euros) each, including holiday and Christmas bonuses.
4- 2025/2026 season - The total net amount of €120,000.00 (one hundred and twenty thousand
euros), which will be paid in 12 (twelve) equal and successive monthly instalments of €10,000.00
(ten thousand euros) each, including holiday and Christmas bonuses.
5- Monthly instalments shall be paid by the 5th (fifth) day of the month following the month to
which they relate.
6- The net amounts stated in this contract are based on the assumption that the Player is
married (an income earner) and has 2 (two) dependents, and that his wife and these two
dependents are not yet resident in Portugal. […]”
3.
In addition, article 4 of the Contract read as follows:
“The Sports Company undertakes to award the Player, as a signing bonus, the net amount of
€50,000.00 (fifty thousand euros), which must be paid to the Player in 2 (two) instalments, each
net of €25,000.00 (twenty-five thousand euros), the first of which by 30 June 2023, and the
second by 30 June 2024.”
4.
Lastly, article 16 of the Contract read as follows:
“In order to settle any disputes arising out of this agreement, the Parties agree to submit the
matter to the Labour Court of Barcelos. Submit the respective resolution to the Labour Court of
Barcelos.”
pg. 3
REF. FPSD-15679
5.
On 9 January 2024, the Claimant and the Respondent signed a loan agreement (hereinafter:
the Loan Agreement) with the Brazilian club Guarani - SP.
6.
In this respect, article 2 of the Loan Agreement stipulated the following:
“1. By this contract, GIL VICENTE FC, after obtaining the PLAYER's consent and respecting his
wishes, temporarily and free of charge transfers to the GUARANI FC, which accepts sports
participation rights (federative rights) arising from the sports employment contract referred to
in the previous clause with effect from January 15, 2024 until December 31, 2024.
2. GUARANI FC assumes the obligation to keep the PLAYER duly registered with the competent
sporting bodies during the term of this contract (temporary transfer), under penalty of civil
liability for damages caused to GIL VICENTE FC due to failure to comply with this obligation.
3. GUARANI FC recognizes its obligation to settle before the competent sporting bodies, in
relation to infractions committed during the term of this transfer contract, the fines that may be
applied to the PLAYER in accordance with the applicable sporting regulations (e.g. : for showing
yellow cards), as well as the respect all disciplinary sanctions that may be applied to him.
Violation of the provisions of this clause will constitute the obligation of GUARANI FC to
compensate GIL VICENTE FC in an amount equal to twice the fine penalties that remain to be
paid, plus all expenses inherent to the recovery of this credit.
4. GIL VICENTE FC maintains the ownership of disciplinary power over the PLAYER, without
prejudice to GUARANI FC also having the right to exercise disciplinary power to the extent that it
is strictly necessary for the proper execution of this contract.
5. It is clarified that the disciplinary power of GIL VICENTE FC referred to in the previous
paragraph is limited to the obligations that subsist between the PLAYER and GIL VICENTE FC as
he will continue to be his athlete (despite being transferred to GUARANI FC on a temporary basis)
and/or conduct that may influence the PLAYER's activity and the rights of GIL VICENTE FC in the
period after the temporary transfer comes into effect. In any case, the disciplinary power to be
exercised by GIL VICENTE FC cannot imply any type of limitation in the relationship between the
PLAYER and GUARANI FC, therefore prohibiting any sanctions in force during the period of
temporary transfer that are not merely pecuniary. […]”
7.
In addition, article 3 of the Loan Agreement read as follows:
“(Consequences of the Assignment in Relation to the Employment Contract and Remuneration
of the PLAYER)
1. During the period of validity of this temporary assignment contract, the effects of the sports
employment contract referred to in Clause One are considered suspended. [sic] concluded
between GIL VICENTE FC and the PLAYER.
pg. 4
REF. FPSD-15679
2. GIL VICENTE FC is exonerated and released from obligation to the PLAYER in relation to any
payment due to him for the work to be performed during the term of the temporary assignment,
further declaring to the PLAYER that on this date the accounts between themselves and to GIL
VICENTE FC, including all outstanding credits (salaries and others) up to the present date and
with effect until the beginning of the temporary assignment, I have nothing to receive or claim
from GIL VICENTE FC for any reason whatsoever and if there is or had already expressly and
irrevocably renounced any credit.
3. GUARANI FC is responsible to the PLAYER and assumes the obligations of GIL VICENTE FC as
an employer.”
8.
Furthermore, article 7 of the Loan Agreement stipulated the following:
“(PLAYER statements)
1. THE PLAYER declares, in a free and clear way, that he accepts the transfer made here and all
the clauses of this contract, obliging himself from the aforementioned date and until the end of
the transfer period, to carry out his activity as a player of professional football at the service of
GUARANI FC, committing to carry out their professional activity with loyalty, zeal and dedication.
2. THE PLAYER expressly declares that he accepts and fully agrees with this contract and with the
temporary transfer of his sports participation rights, in agreement with the entire content of this
contract.
3. THE PLAYER declares that on this date the accounts with GIL VICENTE FC resulting from the
sports employment contract referred to in Clause One have been fully settled, including all
outstanding credits (salaries and others) up to this date, with nothing having the receive or claim
from GIL VICENTE FC in any capacity and if you have or had to do so, you expressly and
irrevocably renounce any credit.”
9.
Lastly, article 12 of the Loan Agreement read as follows:
“The Parties elect as applicable to this contract, exclusively, the regulations sports issued by FIFA.
To resolve any issues arising from the execution or interpretation of this contract, the
Parties elect exclusively and renouncing any other forum: the FIFA bodies with appeal to
the Court of Arbitration for Sport (TAS-CAS), in Lausanne, Switzerland, with the procedures
were all conducted in English.”
10. By correspondence dated 16 January 2024, the Claimant sent the following
correspondence to the Respondent:
“Good morning to GIL VICENTE FOOTBALL CLUB, FUTEBOL SDU
pg. 5
REF. FPSD-15679
As already confirmed by telephone by Mr. Tiago Lenho, Director of the club, we need an e-mail
from the club rectifying Clause 7 of the attached TEMPORARY RELEASE AGREEMENT, currently
being signed between GIL VICENTE FOOTBALL CLUB, FOOTBALL SDUQ, LDA (“Gil Vicente”),
GUARANI FUTEBOL CLUBE - EM RECUPERAÇÃO JUDICIAL (“Guarani”) and MARLON DOUGLAS
DE SALES SILVA (“Marlon”), Gil Vicente thus ratifying that the amounts already agreed with the
athlete Marlon described below remain due even with the TEMPORARY RELEASE CONTRACT
to Guarani.
- 25,000 euros due June 30, 2023
- 25,000 euros due June 30, 2024 […]”
11. On 17 January 2024, the Respondent answered the Claimant’s correspondence as follows:
Respondent’s version of the translation of the correspondence.
“Mr. Marlon Douglas de Sales Silva,
Gil Vicente FC expressly acknowledges that, notwithstanding the provisions of Clause 7.3
of the Temporary Assignment Agreement between GIL Vicente FC, Guarani FC and you, Gil
Vicente FC still owes you the sum of € 50,000.00 (fifty thousand euros), agreed as a signing bonus
in Clause Four of the sports employment contract, to be paid in two (2) instalments of €
25,000.00 (twenty-five thousand euros) each, due on June 30, 2023 and June 30, 2024,
respectively. […]”
Claimant’s version of the translation of the correspondence.
“Dear Marlon Douglas de Sales Silva,
Gil Vicente FC expressly recognizes that, notwithstanding the provisions of Clause 7(3) of the
Temporary Assignment Agreement between GIL Vicente FC, Guarani FC and you, Gil Vicente FC
remains indebted to you to this day for the amount of €50,000.00 (fifty thousand euros) agreed
in Clause 7(450.00) of the Temporary Assignment Agreement between GIL Vicente FC, Guarani
FC and you. Gil Vicente FC still owes you the sum of €50,000.00 (fifty thousand euros), agreed at
€7,450.00 in Clause Four of the sports employment contract, to be paid in two (2) instalments of
€25,000.00 (twenty-five thousand euros) each, due on 30 June 2023 and 30 June 2024,
respectively. […]”
12. On 31 January 2024, the Respondent remitted the Player a lower salary for the month,
noting that he had an unjustified absence from 1 January 2024 to 15 January 2024.
13. On 31 July 2024, the Claimant put the Respondent in default and requested payment within
10 days of the following amounts:
“i) 5 000,00 € net, equal to 7 450,00 € gross, for the monthly retribution of January 2024,
regarding the period from 1 January 2024 until 15 January 2024;
pg. 6
REF. FPSD-15679
ii) 50 000,00 € net regarding the signature bonus prize, overdue in the first instalment of
25 000,00 € net on 30 June 2023 and overdue in the second instalment of 25 000,00 € net
on 30 June 2024;
iii) Plus interest at 5% rate since the overdue dates until effective payment.”
II. Proceedings before FIFA
14. On 21 August 2024, the Claimant 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 Claimant, the Club discounted his monthly salary of January 2024 without
legal right, as he was not absent from 1 January 2024 until 15 January 2024 and had
provided his services to the Club.
16. In addition, the Claimant argued that he was forced to sign the Loan Agreement due to the
pressure of the closure of the transfer window and registration period. In fact, the Claimant
noted that he signed the Loan Agreement under duress, without having a chance to review
it or even correct it, especially its article 7.3. Therefore, it is the Claimant’s position that he
laboured in fundamental error according to article 23 of the Swiss Code of Obligations and
that article 7.3 of the Loan Agreement is null and void as it waived its remuneration for
work already performed.
17. On account of the above, the requests for relief of the Claimant, were the following:
“The Dispute Resolution Chamber shall declare the condemnation of the Respondent, to proceed
with the following payments:
iv) 5 000,00 € net, equal to 7 450,00 € gross, for the monthly retribution of January 2024,
regarding the period from 1 January 2024 until 15 January 2024;
v) 50 000,00 € net regarding the signature bonus prize, overdue in the first instalment of 25
000,00 € net on 30 June 2023 and overdue in the second instalment of 25 000,00 € net on 30
June 2024;
vi) Plus interest at 5% rate since the overdue dates until effective payment.”
b. Position of the Respondent
18. According to the Respondent, FIFA does not have jurisdiction to hear the present dispute,
as article 16 of the Contract refers to the Labor Court of Barcelos to settle any dispute
pg. 7
REF. FPSD-15679
between the parties. In this respect, the Respondent noted that the present matter
concerns a dispute related to the Contract rather than to the Loan Agreement, and that it
is the Contract rather than the Loan Agreement that gives the Player standing to sue the
Club.
19. As to the substance of the claim of the Player, the Respondent argued that the
correspondences between the parties dated 16-17 January 2024 do not mention the
payment of the half-monthly salary of January to the Player. In this regard, the Club noted
that the correspondence submitted by the Player contains a serious translation defect and
does not correspond to the actual Club’s correspondence. Therefore, it is the position of
the Respondent that it is not possible to ascertain the validity of a supposed agreement
regarding the payment of the Player’s half-monthly salary, as this was not the will of the
parties, nor was it foreseen in the correspondences.
20. In addition, the Club argued that the Player could not have signed the Loan Agreement
under the pressure of the closure of the transfer window and registration period, as he
signed it on 9 January 2024 and the transfer window from Portugal and Brazil respectively
closed on 31 January 2024 and on 7 March 2024.
21. Considering the foregoing, the requests for relief of the Respondent were the following:
“(i) Accepts the present Reply and reject the present Claim;
If this not the case, then:
(ii) this Honorable FIFA DRC may conclude that [sic] has no jurisdiction nor competence to decide
the present dispute;
Without prejudice,
(iii) the Respondent shall not be ordered to pay to the Claimant 5.000,00 € net, equal to 7450,00
€ gross, for the monthly retribution of January 2024, regarding the period from 1 January 2024
until 15 January 2024;
(iv) the Respondent shall not be ordered to pay to the Claimant 50.000,00 € net regarding the
signature bonus prize, overdue in the first instalment of € 25.000,00 net on 30 June 2023 and
overdue in second instalment of € 25.000,00 net on June 2024;
(v) the Respondent shall not be creditable under penalty of imposition disciplinary measures or
default interest;
(vi) order the Claimant to pay all administrative costs arising from the present dispute.”
pg. 8
REF. FPSD-15679
c. Replica of the Claimant
22. In its replica, the Claimant reiterated its previous position and noted that the Respondent
confessed in its reply that it owed the Player EUR 50,000, corresponding to the signing
bonus.
23. With respect to the Respondent’s challenge of the jurisdiction of FIFA, the Claimant recalled
that he specifically mentioned to the Club in his correspondence dated 31 July 2024 his
intention to rely on the FIFA Football Tribunal and that the Respondent did not object to it.
In this regard, the Claimant argued that where a clear and exclusive jurisdiction clause has
been agreed upon by the parties, the case will still be heard by the Dispute Resolution
Chamber (hereinafter: the Chamber or the DRC) provided that the international dimension
is present and both parties agree (even tacitly) that the DRC adjudicates.
24. In addition, the Claimant mentioned that the present dispute concerns article 7.3 of the
Loan Agreement and that the latter establishes the competence of FIFA in its article 12.
Lastly, the Claimant argued that the decision of the present dispute by the DRC is required
for reasons of transparency, independence, impartiality, and related to the sports
specificity.
d. Duplica of the Respondent
25. In its duplica, the Respondent reiterated its initial position and clarified that at no point in
its reply it confessed owing the Claimant the half-monthly salary of January 2024, as well
as EUR 50,000 for the signing bonus.
26. Concerning the jurisdiction of FIFA, the Respondent emphasized that the present dispute
relates firstly and exclusively to an issue related to the Contract as the Claimant requests
its remuneration for half of the month of January 2024 and the signing bonus, which are
respectively stipulated in article 3 and 4 of the Contract. Consequently, it is the position of
the Respondent that article 16 of the Contract is applicable to the matter and that the
exclusive jurisdiction of the Labour Court of Barcelos is established to settle any dispute
between the parties.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the 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 21 August 2024
and submitted for decision on 12 December 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.
pg. 9
REF. FPSD-15679
28. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (October 2024 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 Portuguese club.
29. Notwithstanding the above, the Chamber acknowledged that the Respondent, on one
hand, contested the competence of FIFA’s deciding bodies on the basis of article 16 of the
Contract, alleging that the competent body to deal with any dispute deriving from the
relevant employment contract is the Labour Court of Barcelos. On the other hand, the
Chamber noted that the Claimant insisted on the competence of FIFA to adjudicate the
present claim, sustaining that the dispute arises from the Loan Agreement, rather than
from the Contract, and that article 12 of the Loan Agreement establishes the competence
of FIFA.
30. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the Contract or the Loan Agreement is at the
basis of the present dispute, and whether it contained a clear and exclusive jurisdiction
clause in favour of the Labour Court of Barcelos or if the competence of FIFA is established.
31. Taking into account all the above, the Chamber emphasised that, in accordance with art.
22 par. 1 of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations), FIFA is competent to hear employment-related disputes between a player and
a club with an international dimension “without prejudice to the right of any player […] or club
to seek redress before a civil court for employment related disputes”.
32. In the present matter, the Chamber duly noted that the Claimant’s requests for relief find
their contractual basis in the Contract, and most specifically in its articles 3 and 4. In
particular, the Chamber took note of the fact that the parties strongly dispute the payment
of certain financial obligations by the Respondent as per the Contract. Therefore, the
Chamber determined that it is the Contract, and not the Loan Agreement, that is at the
basis of the present dispute.
33. In continuation, the Chamber recalled the following wording of article 16 of the Contract:
“In order to settle any disputes arising out of this agreement, the Parties agree to submit the
matter to the Labour Court of Barcelos […]”.
34. In this respect, the Chamber concluded that the Claimant and the Respondent had
unambiguously and exclusively decided that any dispute that would arise from the
Contract would be submitted to the Labour Court of Barcelos.
pg. 10
REF. FPSD-15679
35. Further, the Chamber recalled that parties may freely agree to give jurisdiction to a civil
court, and that such choice shall always prevail. In fact, the Chamber, recalling its
jurisprudence as well as the CAS jurisprudence in this regard, highlighted that even if the
choice of law does not specify which courts are competent (e.g. a generic reference is made
to a region/city), FIFA is not competent when the parties have exclusively agreed upon the
jurisdiction of a civil court. In addition, the Chamber emphasised that art. 22 par. 1 of the
Regulations provides a clear hierarchy in favour of contractual autonomy.
36. Consequently, in view of all the above, the Chamber decided that it does not have
jurisdiction to hear the dispute between the Claimant and the Respondent.
b. Costs
37. 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.
38. 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.
39. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-15679
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Marlon
Douglas de Sales e Silva.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-15679
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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396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13