FIFA - Decisión disputa Garbellotto Silveira Pedroso 24082023

REF. FPSD-9363

Decision of the Dispute Resolution Chamber passed on 24 August 2023 regarding an employment-related dispute concerning the player Marcos Garbellotto Silveira Pedroso BY: Frans de Weger (the Netherlands), Chairperson Roy Vermeer (the Netherlands), member Mario Flores Chemor (Mexico), member

CLAIMANT:

Marcos Garbellotto Silveira Pedroso, Brazil Represented by Yakub Kizilkaya

RESPONDENT:

FK Liepāja, Latvia Represented by Olga Polozova pg. 2

REF. FPSD-9363

I. Facts of the case

1. On 13 July 2021, the Brazilian player, Marcos Garbellotto Silveira Pedroso (hereinafter: Claimant or player) and the Latvian club, FK Liepāja (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) valid as from 13 July 2021 until 15 December 2022.

2. According to the contract, the Respondent undertook to pay the Claimant monthly salary of EUR 5,000, payable on the 15th day of the following month.

3. The contract further establishes that the player is entitled to “up to EUR 250 as payment for apartment” (art. 3.2.7. of the contract).

4. According to the club, on 1 February 2022, the parties signed a “supplementary agreement”, which due to “the current difficult socio-political situation in Europe” the salary of the player is reduced by 50% as of 1 February 2022.

5. On 26 December 2022, the player put the club in default and requested payment EUR 11,250, corresponding to salaries and accommodation expenses, within 10 days.

6. On 29 December 2022, the club replied to the representative of the player stating that no power of attorney was enclosed and that the club fulfilled its financial obligations.

II. Proceedings before FIFA

7. On 23 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

8. In his claim, the Claimant requested payment of the following monies: - EUR 2,500 as partial salary for February 2022; - EUR 2,500 as partial salary for March 2022; - EUR 1,500 as partial salary for October 2022; - EUR 1,500 as partial salary for November 2022; - EUR 806.55 as partial salary for December 2022; - EUR 750 as outstanding accommodation costs.

The player requested payment of 5% interest p.a. as of the respective due dates.

9. In this context, the player argued that the club failed to remit the claimed amounts, even after his default notice. pg. 3

REF. FPSD-9363

10. In support of his claim regarding accommodation cost, the player submitted a “rent contract” which confirmed that he rented accommodation for a monthly fee of EUR 500.

b. Position of the Respondent

11. In its reply, the club rejected the claim.

12. The club argued that the player agreed to the supplementary agreement and was therefore as of February 2022 entitled to EUR 2,500 as monthly salary, which was duly remitted.

13. Furthermore, the club pointed out that it increased the salary of the player as of July 2022 again.

14. The club argued that it therefore remitted more money than it had to during the period between February 2022 and December 2022. It detailed having paid the total amount of EUR 36,693.55 as salaries and EUR 2,000 for accommodation.

15. On account of the above, the club maintained that the claim is “groundless” and that it was lodged in “bad faith”.

16. The club held that the “rent contract” does not proof that the player indeed remitted

payments regarding accommodation. c. Replica of the Claimant

17. In his replica, the Claimant rejected having signed the “supplementary agreement” and maintained that his signature was forged.

18. In this context, the player maintained that when carefully analysing the different signatures of the player on file (contract, rent contract, power of attorney in comparison to the supplementary agreement), it is evident that the player did not sign this document himself.

19. In this regard, the player pointed out that especially the characteristics of his “M” is totally different in the actual signatures and the falsified one.

20. Moreover, the player held that he had no reason to agree to a reduction of his salary by 50% without getting anything in return.

21. The player alleged that the club failed to remit parts of his salary for months and now tries to “clean up the mess” with such fabricated agreement. pg. 4

REF. FPSD-9363

22. In support of his argumentation, the player provided an extracts from WhatsApp conversations with the sporting director and the club manager from December 2022, in which a debt of the club is discussed.

23. Furthermore, he provided a further extract from the teams WhatsApp Group in which the club held that 70% if the salaries are paid due to the bad results.

24. Moreover, the player held that he is contractually entitled to EUR 250 for the accommodation per month and that he does not have to provide further evidence regarding payments.

25. In this framework, the player reiterated his requests for relief.

d. Duplica of the Respondent

26. In its duplica, the Respondent the club reiterated its position and held that the claim of the player is a “blatant lie”.

27. The club held that it is obvious that differences occur when comparing different signatures and it pointed out that the player only challenged one of the three signatures on the supplementary agreement.

28. Furthermore, the club maintained that the allegation of forgery is serious and a criminal

offense and it offered to submit the original document for examination.

29. Moreover, the club stated that the reduction of salaries was necessary, otherwise the club would have gone bankrupt.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

30. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was presented to FIFA on 23 February 2023 and submitted for decision on 24 August 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand. pg. 5

REF. FPSD-9363

31. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player and club.

32. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the present claim was lodged on 15 February 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

33. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13

par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS). c. Merits of the dispute

34. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

35. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute the player’s entitlement to the claimed parts of his salary and accommodation allowance.

36. In this context, the Chamber acknowledged that its task was to decide if the player indeed was entitled to the claimed amounts.

37. The Chamber duly noted that the Respondent argued that the player agreed to a lower salary by signing the “supplementary agreement” and that he failed to proof that he actually remitted payments for accommodation. pg. 6

REF. FPSD-9363

38. On account of the above, the DRC first pointed out that it had to establish if the supplementary agreement shall be taken into account or not.

39. Bearing in mind the foregoing, the Chamber started analysing the documentation provided by both parties in support of their position. The members of the Chamber wished to emphasize that, according to the last sentence of art. 13 par. 3 of the Procedural Rules the Chamber has ultimate discretion to as to the weight it gives to evidence.

40. Taking into account the above, the DRC pointed out that the club could not give a valid reason why the player should have accepted a deduction of 50% of his salary.

41. Moreover, the club itself pointed out that it “raised” the player’s salary again (without any written confirmation) after July 2022, in order to explain why more than EUR 2,500 were remitted. According to the Chamber, the club’s argumentation is contradictory and does not add up.

42. At this stage, it shall be considered appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or documents, and that such affairs fall into the jurisdiction of the competent national criminal authority. In order to be able to solve such disputes in a satisfactory and timely manner, without the need to wait for the initiation and conclusion of a potential criminal investigation, the Chamber adopts a practical procedure in such cases, namely to request the party who claims the authenticity of the disputed document to provide its original version via regular mail. If for a layman the document appears to be authentic and in line with the further documentation on file, such document is considered as authentic for the purposes of solving the dispute at hand.

43. Comparing the signatures, from a laymans view, the DRC stated that the signatures from the supplementary agreement do look different to the undisputed ones.

44. On account of the above, mainly due to contradictory behaviour/argumentation of the the club, the DRC decded to disregard the supplementary agreement and concluded that the player was entitled to EUR 5,000 as monthly salary during the whole duration of the contract.

45. As to the claimed accommodation amounts, the DRC wished to emphasize that the club itself confirmed that it remitted EUR 2,000 as accommodation costs between February 2022 and December 2022. Therefore, the club confirmed having had an obligation to pay accommodation costs. The Chamber concluded that the total amount due amounts to EUR

2,750, which is 11 times EUR 250, as contractually stipulated. Therefore, the members of the Chamber rejected the club’s argumentation and awarded the claimed difference of EUR 750 as accommodation costs. pg. 7 REF. FPSD-9363 ii. Consequences

46. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the following amounts: - EUR 2,500 as partial salary for February 2022; - EUR 2,500 as partial salary for March 2022; - EUR 1,500 as partial salary for October 2022; - EUR 1,500 as partial salary for November 2022; - EUR 806.55 as partial salary for December 2022; - EUR 750 as outstanding accommodation costs.

47. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates (16th day of the following month) until the date of effective payment. iii. Compliance with monetary decisions

48. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

49. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and consecutive

registration periods.

50. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

51. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision. pg. 8

REF. FPSD-9363

52. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations.

d. Costs

53. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

54. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-9363

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Marcos Garbellotto Silveira Pedroso, is accepted.

2. The Respondent, FK Liepāja, must pay to the Claimant the following amount(s):

• EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 16 March 2022 until the date of effective payment; - EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 16 April 2022 until the date of effective payment; - EUR 1,500 as outstanding remuneration plus 5% interest p.a. as from 16 November 2022 until the date of effective payment; - EUR 3,056.55 as outstanding remuneration plus 5% interest p.a. as from 16 December 2022 until the date of effective payment.

3. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

4. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

5. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.

6. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-9363

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this

decision.

NOTE RELATED TO THE PUBLICATION: FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 11