F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 27 August 2020
Decision of the
Dispute Resolution Chamber (DRC) Judge
passed, on 27 August 2020,
regarding an employment-related dispute concerning the player Gilson Varela
BY:
Omar Ongaro (Italy), DRC Judge
CLAIMANT:
Gilson Varela, Cape Verde
RESPONDENT:
Geylang lnternational FC, Singapore
I. FACTS
1. On 1 January 2020, the parties concluded an employment contract valid until 30 November 2020.
2. According to the Schedule I of the contract, the player was entitled to the following:
“a) A gross monthly salary of $ 4500; a sum of $ 675 (of the salary) shall be withheld monthly to meet personal income tax liability where the Player is a Player from outside jurisdiction (a foreign Player)
c) The Club shall provide the Player with a Singapore/ Lisbon economy class return air-ticket for each year of the Agreement.
d) The Club shall provide suitable accommodation in a furnished apartment subject to a maximum of rental of $ 2,000 per month; all public utilities (water, electricity gas, telephone) shall be provided in the accommodation but the Player shall bear the cost of all the public utilities charges.”
3. On 6 February 2020, the parties concluded a termination agreement with the following conditions:
3. [The club] is agreeable to your request to terminate your Player Contract, dated 12 December 2019, by mutual consent with effect from 06 February 2020 on the following terms –
3.1 a sum of S$13,500 being (3) months salary payable to you by way of agreed settlement fee;
and
3.2 cost of air-ticket (one-way Economy class) to Lisbon paid for by GIFC.
(…)
ACCEPTANCE
I, Monteiro Varela Da Silva Gilson, Passport No: P112390 hereby agree to the above terms and undertake to abide by the terms as above stated.
I confirm that I have been read and explained the above terms clearly and that I understand the same and have here to sign my name voluntarily without any duress whatsoever.
4. The “Addendum” to the termination agreement further stipulated the following:
“Geylang International FC will be compensating you with $4500/- x 3 - months. In addition, the club will bear the cost for the flight ticket for you from Singapore to Lisbon.
The total amount you will receive in cash is $11,475.00 as the club will be withholding 15% of your total compensation for your tax payable to the Singapore government.”
5. According to the player, “after one month of work, [he] was surprised by the administration with the information that [he] should leave the club or spend the rest of the season training alone, threatened with the eviction from [his] apartment, giving [him], as any alternative, to avoid such problems in a foreign country, the signature of a termination agreement.”
6. On 1 June 2020, the player sent a default notice indicating the following:
“After one month of work, I was surprised by you with the Information that I should leave the club or spend the rest of the season training alone, threatened with the eviction from my apartment, giving me, as any alternative, to avoid such problems in a foreign country, the signature of a termination agreement, what I was forced to do in February 6th 2020.
ln the mentioned termination agreement that I was forced to sign, you paid me only the gross compensation of § 11,475.00 $ and I come back to my country (Portugal) where l'm living with great financial difflculties, since I didn't had the opportunity to find a new club.
Since I was forced to sign the mentioned termination agreement and considering that, without this pressure as abusive behaviour from your club, I would have the expectation to comply with my contract, l'm notifying you to pay me the oustanding salaries, corresponding to 8 salaries, in the gross amount of 36.000 S.
l'm doing this notification under the terms of the article 12bis of FIFA RSTP and if, in a maximum period of 15 davs, you didn't pay me the mentioned amount, I will be forced so start procedures on FIFA'S competent body
7. On 5 June 2020, the player lodged a claim against the club and requested the total amount of “€” 36,000, noting the following:
“2. Amount requested on the claim:
If I hadn't been pressured to sign the mentioned agreement and leave the club, I should have received my monthly salary of 4.500 $, until 30 November 2020, in a total amount of 36.000 €.”
8. In relation to the signature of the termination agreement, the player stated the following:
“I was under great pressure, with fear of being left unprotected in a foreign country, so I ended up signing the contract termination and returning to Portugal.”
As to the evidence, the player explained that “since these acts of pressure were carried out verbally, and through some messages that, unfortunately, I can't present due to a malfunction I had on my phone, at the moment I can't gather more evidence.”
9. The club offered its reply to the claim lodged by the player.
10. According to the club, the Player was informed, by way of training evaluation and feedback, and in presence of the Club's Head Coach and General Manager that “the standard of his performances during pre-season trainings and training matches were unbefitting the skill-sets and quality reasonably expected of an experienced Twenty-Nine (29) year-old professional football.”
11. As such, the Club's explained that, upon review of pre-season preparations and at the recommendation of the Head Coach, first approached the Player to negotiate an amicable termination of his contract, by mutual consent.
12. In addition, the club denied having pressured or forced the player to sign a mutual termination agreement and highlighted that the player did not provide any evidence in this regard.
13. The Club therefore concluded that the Letter of Mutual Termination of Player Contract was hence validly executed for valuable consideration and of legal effect and that “there should be no retrospective review of the Letter of Mutual Termination of Player Contract.”
II. CONSIDERATIONS OF THE DRC JUDGE
1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: “the DRC judge”) analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 24 March 2020. Taking into account the wording of art. 21 of the 2019 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 judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players, he 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 Singaporean club.
3. Furthermore, the DRC judge analyzed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition June 2020), and considering that the present claim was lodged on 5 June 2020, the June 2020 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.
4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge emphasized that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.
5. To start with, the DRC judge acknowledged that the parties to the dispute had signed an employment contract valid as from 1 January 2020 until 30 November 2020.
6. The DRC judge further noted that, on 6 February 2020, the parties concluded a termination agreement.
7. In relation to said agreement, the DRC judge subsequently observed that the player lodged a claim against the Respondent arguing, inter alia, that if he “hadn't been pressured to sign the mentioned agreement and leave the club, [he] should have received [his] monthly salary of 4.500 $, until 30 November 2020, in a total amount of 36.000 €”.
8. In view of the above, the DRC judge understood that the first legal issue at stake is to determine whether the termination agreement was valid, i.e. whether it was signed under duress or not.
9. In doing so, the DRC judge reminded the parties of the content of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.
10. In application of said principle, the DRC judge took note that, according to the player, the acts of pressure that allegedly forced him to sign the termination agreement “were carried out verbally”, and that, “unfortunately, [he cannot] present due to a malfunction [he] had on [his] phone, at the moment I can't gather more evidence.”
11. After taking into account the player’s allegations, as well as the entire documentation gathered during the course of the investigation, the DRC Judge had no other option than to conclude that the Claimant failed to meet his burden of proof as to the alleged duress and, as such, the termination agreement had to be deemed as valid and binding.
12. In addition, as to the legal effects of said termination agreement, the DRC Judge analysed its contents (cf. point I.3 above) and concluded that its effects were clear, insofar it novated any previously existing debt between the parties. The DRC Judge further noted that the player acknowledged having received the amount foreseen in the addendum of the termination agreement.
13. In view of the above, and since the termination agreement was fully binding and duly executed by the club, the DRC Judge concluded that the claim of the Claimant had to be rejected.
III. DECISION OF THE DRC JUDGE
1. The claim of the Claimant, Gilson Varela, is rejected,
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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