Labour Disputes
Texto da decisão
REF FPSD-5419
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding an employment-related dispute concerning the player Anthony Caceres
BY:
Frans DE WEGER (The Netherlands), Chairperson
Khalid AWAD ALTHEBITY (Saudi Arabia), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Anthony Caceres, Australia
RESPONDENT:
Jeju United, Korea Republic
REF FPSD-5419
I Facts
1. On 17 February 2021, the player Anthony Caceres concluded an employment contract with the
Australian club, Sydney FC,
2. Following item 1.1. of the Schedule 1, the player was entitled to the following remuneration:
Season 2021/2022: AUD 240,000
Season 2022/2023: AUD 255,000
Season 2023/2024: AUD 265,000
3. On 31 December 2021, Sydney FC wrote to the Korean club, Jeju United, the following message:
“your Transfer Fee offer of USD$190,000 activates a trigger in his Standard Player Contract.
To be clear that number in Australian Dollars is $263,158 inclusive of training compensation and
solidarity. Subject to you agreeing to that AUD amount and agreeing personal terms with Anthony
we would be willing to accept this transfer bid.”
4. In this regard, Sydney FC proposed a transfer agreement, which was not signed by Jeju United.
5. On 4 January 2022, the player and Jeju United concluded and “Official Proposal” with the
following terms:
“We, Jeju United Football Club, are having interesting in contracting with Anthony Richard Caceres,
Australia, September 29th, 1992, Passport No.PB-1590201 (hereinafter "Player") here is our
proposal to the player. Read carefully and we kindly ask for your positive and prompt response.
1. Contract Period: January 1, 2022 ~ December 31, 2023 (24 months) + Club option (12 months)
2. Contract Conditions1 (January 1, 2022 ~ December 31, 2023)
A. 2022 Season Salary: USD 300,000 / gross (monthly USD 25,000 / gross)
B. 2023 Season Salary: USD 300,000 / gross (monthly USD 25,000 / gross)
B-1 If a player plays more than 20 games in the 2022 season, 2023 season salary: USD 350,000 /
gross B-2 Based on the game: Over 45min_ 1 game / 44-1 min_0.5 game
3. Contract Conditions2 (January 1, 2024 ~ December 31, 2024)
A. Annual Salary: USD 400,000 / gross (monthly USD 33,333 / gross)
4. Bonuses
A. Bonus Game Winning: KRW 1,000,000 / gross (*Payment rate: Over 45min 100% / 45-1min
50%) B. Bonus Game Draw: KRW 500,000 / gross (*Payment rate: Over 45min 100% / 45-1 min
50%)
C. Achieve Winning in the K-League or FA cup: According to the club's regulations
D. Bonus for attack point (Goal + Assist): USD 10,000 gross / 10 points - USD 1,000 / (After 10
points) 1 attack point achieve
5. Other conditions
A. Accommodation (2 bedrooms & 1 bathroom, basic furniture and electronic appliance will be
provided). All maintenance costs must be paid by the Player.
B. Car (around 2,000cc) All maintenance costs must be paid by the Player.
C. JEJU shall provide the player and his family ("family" meaning legal wife and children of the
player) with round-trip airline 2 tickets the player's home country to Jeju, South Korea for every year
for the duration of the contract.
D. Health Insurance (Basic to coverage)”
REF FPSD-5419
6. On 5 January 2022, the club’s agent sent a message to the player’s agent, indicating that the
player’s former club would need to sign a transfer agreement.
7. According to the player, on 11 January 2022, the club’s agent advised the player (through his
agent) that the club had elected not to proceed with the execution of the employment contract.
8. On 12 January 2022, the player, via Professional Footballers Australia (PFA), sent a letter to the club
requesting the execution of the contract.
9. On 14 January 2022, the club sent a letter to the player’s former club, Sydney FC, stating the
following:
“We were introduced to Anthony Caceres, a player from SYDNEY FC, through a Korean agent, and
it is true that we were interested in the player. And we has asked SYDNEY FC about Anthony
Caceres transfer and suggested it. In addition, we proposed in writing on December 30, 2021 and
received a reply from SYDNEY FC on December 31.
However, we decided not to recruit players due to changes and budget problems in devising the
2022-season squad, and on January 11, 2022, we replied to [email protected] that a player
transfer would not be possible to SYDNEY FC. We are very unfortunate that this transfer proposal
has not been made.
Currently, the player's agent (Tony Rallis) is raising more issues than filing complaints with Korean
agents and us. The player's agent (Tony Rallis) directly contacts our General Manager and Staff to
raise issues, and threatens our Staff with racist abusive language and insults that should not be
done.”
10. On 17 January 2022, Sydney FC replied by stating, inter alia, the following:
“We would ask that you find a quick resolution to that action as we do not want this to be a
drawn-out legal affair that continues to disrupt our season and Anthony’s performances. We
request you offer a quick and fair financial settlement to Mr Caceres, and we can all move on and
put this unfortunate situation behind us.”
11. The player continued to be employed by Sydney FC (cf. point 1 above)
12. On 11 March 2022, Anthony Caceres lodged a claim before FIFA for breach of contract without
just cause and requested the payment of the total amount of USD 232,510 as “mitigate
compensation”, plus “interest at the prevailing rate awarded by the DRC; payable from 17 January
2022”.
Salary pursuant to Official Proposal:
• Season 2022 (USD 300,000)
• Season 2023 (USD 300,000)
Mitigated Compensation (Sydney Contract): USD 367,490
REF FPSD-5419
TOTAL MITIGATED COMPENSATION: USD 232,510
13. According to the Claimant, it is evident that the Official Proposal constitutes a valid and legally binding
employment contract because it contains the essentialia negotii of an employment contract.
14. The Claimant further considered that the Official Proposal was not conditional upon the execution of a
Transfer Agreement.
15. In the opinion of the Claimant, the club failed to perform the following:
(a) refusing to execute the Transfer Agreement;
(b) failing to arrange for the Player’s travel to the Club; and
(c) ultimately, failing to attend to his registration with the Korean Football Federation.
16. In its reply, the Respondent considered that the official proposal cannot be interpreted as a legally
binding employment agreement because it was just a statement showing the conditions included in
the final and formal employment agreement after completing a medical examination.
17. The Respondent stated that a legally binding employment agreement between Respondent and the
Claimant can be established only after the Claimant takes complete medical examination according
to Article 18.4 of the FIFA RSTP and jurisprudence of DRC.
18. The Respondent further argued that it did not reach an agreement with Sydney FC as to the
transfer of the player.
19. Furthermore, the club argued that it was a victim of racist terms from the player’s agent.
20. In his replica, the Claimant insisted that the proposal is a valid employment contract and considered
that the club has to understand the concept of essentialia negotii.
21. The Claimant further considered that the Club could have taken steps to make it clear that the
Official Proposal was a pre-contract which was subject to a medical examination
22. In its duplica, the Respondent insisted in its previous position and considered that the proposal is
not a legally binding agreement.
REF FPSD-5419
II Considerations of the DRC
a. Competence and applicable legal framework
1. 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 11 March 2022 and submitted for decision on
5 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.
2. 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. a) OR b) of the
Regulations on the Status and Transfer of Players (August 2021 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 Australian player and a Korean club.
3. 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 (August 2021 edition), and considering that
the present claim was lodged on 11 March 2022, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4. 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
5. 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
REF FPSD-5419
6. First of all, the Chamber noted that the player was initially employed with the Australian club,
Sydney FC as from 17 February 2021.
7. Subsequently, the Chamber noted that, within the scope of a proposed transfer agreement
between Sydney FC and the Korean club, Jeju United (the Respondent), the player and Jeju
United concluded an “Official Proposal” with the terms quoted in point I. 5 above.
8. Afterwards, the Chamber took into account that the player lodged a claim for breach of contract
without just cause against Jeju United, arguing that the latter failed to execute said document,
which had to be considered as a valid and legally binding employment contract because it
contains the essentialia negotii of an employment contract.
9. Conversely, the Chamber acknowledged the position of the Respondent, according to which the
“official proposal” cannot be interpreted as a legally binding employment agreement because it
was just a statement showing the conditions included in the final and formal employment
agreement after completing a medical examination.
10. In addition, the Respondent argued that it did not reach an agreement with Sydney FC as to the
transfer of the player.
11. In view of the above, the Chamber understood that the main legal issue at stake was to
determine whether the “Official Proposal” had to be considered as a valid and binding
employment contract.
12. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence
which dictates that, in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it should contain the essentialia
negotii of an employment contract, such as the parties to the contract and their role, the duration
of the employment relationship and the remuneration payable by the employer to the employee.
13. After a thorough analysis of the documentation on file, the Chamber concluded that all such
elements were included in the document filed by the player. In other words, the Chamber
understood that the legal document concluded by the parties indeed included all the relevant
information at the basis of an employment relationship between contractual parties. Specifically,
the document contains the signature of both parties, provides for the duration of the
employment relationship and the remuneration payable to the player. Thus, the Chamber
concluded that the “Official Proposal” is in fact a valid and binding employment contract and
shall be considered in the case at stake, as the contractual basis of the present dispute.
14. Moreover, and concerning the Respondent’s argument according to which it ultimately failed to
conclude a transfer agreement with the player’s former club, the Chamber considered that the
player cannot be held liable for the disagreement between the clubs, as he is not a party to the
transfer agreement.
REF FPSD-5419
15. In view of the above, the Chamber established that the Respondent shall compensate the
Claimant for breach of contract without just cause.
ii.Consequences
16. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
17. In this respect, the Chamber turned to the calculation of the amount of compensation payable
to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that,
in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including in particular, the remuneration and other benefits due to the
player under the existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the contractual breach falls
within the protected period.
18. In application of the relevant provision, the Chamber held that it first of all had to clarify whether
the pertinent employment contract contained a provision by means of which the parties had
beforehand agreed upon an amount of compensation payable by the contractual parties in the
event of breach of contract.
19. In this regard, the Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
20. As a consequence, the Chamber determined that the amount of compensation payable by the
Claimant to the Respondent had to be assessed in application of the other parameters set out in art.
17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of compensation
payable.
21. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract until its term.
22. In this respect, the Chamber noted that the full value of the contract is as follows:
A. 2022 Season Salary: USD 300,000 / gross (monthly USD 25,000 / gross)
B. 2023 Season Salary: USD 300,000 / gross (monthly USD 25,000 / gross)
23. Consequently, the Chamber concluded that the amount of USD 600,000 serves as the basis for the
determination of the amount of compensation for breach of contract.
REF FPSD-5419
24. In continuation, the Chamber verified whether the player had signed an employment contract
with another club during the relevant period of time, by means of which he would have been
enabled to reduce his loss of income. According to the constant practice of the Chamber as well
as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for breach of
contract in connection with the player’s general obligation to mitigate his damages.
25. Indeed, the player continued to work for his former club, Sydney FC. In accordance with the
pertinent employment contract, the player was entitled to the following:
1 January 2022 – 30 June 2022: AUD 120,000
1 July 2022 – 30 June 2023: AUD 255,000
1 July 2023 – 31 December 2023: AUD 132,500
TOTAL: AUD 507,500, equivalent to approx. USD 367,490.
26. Therefore, the Chamber concluded that the Claimant mitigated his damages in the total amount
of USD 367,490.
27. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of USD 232,510 to
the player (i.e. USD 600,000 minus USD 367,490, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
28. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation at
the rate of 5% p.a. as of the date of the claim until the date of effective payment.
iii. Compliance with monetary decisions
29. 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.
30. 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.
31. 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
REF FPSD-5419
consecutive registration periods shall become immediately effective on the Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
32. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form.
33. 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
34. 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.
35. 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.
36. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
REF FPSD-5419
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Anthony Caceres, is partially accepted.
2.
The Respondent, Jeju United, has to pay to the Claimant, the amount of USD 232,510 as
compensation for breach of contract without just cause plus 5% interest p.a. as from 11
March 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
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.
2.
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.
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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5419
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
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