Labour Disputes
Texto da decisão
REF. FPSD-8433
Decision of the
Dispute Resolution Chamber
passed on 1 June 2023
regarding an employment-related dispute concerning
the player Janer Alexis Ordoñez Cuero
BY:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Calum Beattie (Scotland), member
CLAIMANT:
Janer Alexis Ordoñez Cuero, Colombia
Represented by Sportia Law
RESPONDENT:
UE Engordany, Andorra
Represented by Mr Marc Remola Navarro
pg. 2
REF. FPSD-8433
I. Facts of the case
1. On 1 August 2022, the Colombian player Janer Alexis Ordoñez Cuero (hereinafter: the
Claimant or player) and the Andorran club UE Engordany (hereinafter: the Respondent or club)
allegedly concluded an employment contract (hereinafter: the Contract) valid as from the date
of signature until 31 May 2023.
2. In accordance with the seventh clause of said Contract, the Respondent allegedly undertook
to pay the Claimant a net monthly salary of EUR 900, as well as a net monthly accommodation
allowance of EUR 300 within the first 10 days of each month.
3. Furthermore, the Contract also stipulated via the twelfth clause thereunder as follows:
“Las partes se comprometen a resolver de forma amistosa cualquier disputa o desacuerdo que
pueda surgir del desarrollo del presente contrato, sin perjuicio de poder someter cualquier
controversia, a los tribunales del deporte y en su defecto a los tribunales andorranos.”
Free translation into English:
“The parties commit to resolve any disputes that may arise out of the present contract amicably,
without prejudice of any party to submit such potential disputes to the sporting tribunals or, failing
that, the civil courts of Andorra”.
4. Following the signature of the Contract, at an unspecified date, the Respondent allegedly
informed the Claimant that “his services were no longer required and that he should leave”,
to which the Claimant responded that he was not prepared to do so, and instead intended
to honour the terms of the Contract.
5.
On 11 October 2022, the Claimant put the Respondent in formal notice via his legal
representative, stating as follows:
“According to the information provided by the Player, it has not been possible to obtain the work and
residence permit, UE Engordany considers that the contract signed in August is not valid due to the
lack of obtaining the work and residence permit and preventing the Player from accessing the Club’s
premises to continue providing his services.
In view of the above and in order to put on record that the Club considers the contract to be null and
void and that the Player is under no obligation to continue providing his services, I hereby formally
request you to state within three (3) days whether the said contract is still in force.
In the meantime, the Player will continue to attend training.”
6. On 12 October 2022, the Respondent allegedly “tore up one of the copies of the Contract signed
in August, saying that the Contract was worthless.” In addition, it allegedly threatened the
pg. 3
REF. FPSD-8433
Claimant with expulsion from the country because of his lack of a visa and attempted to make
him sign a waiver of all future claims in exchange for EUR 1,000.
7. On 14 October 2022, the Claimant put the Respondent in default once again, outlining the
alleged breaches of contract that occurred on 12 October 2022, as well as extending the
deadline to confirm the Respondent’s commitment to the Contract for another 24 hours,
failing which, the Claimant stated that he would consider the Contract terminated.
pg. 4
REF. FPSD-8433
II. Proceedings before FIFA
8. On 1 December 2022, the Claimant lodged a claim before FIFA for compensation due to the
unlawful termination of the Contract by the Respondent. A short summary of the parties’
submissions is outlined below.
a. Position of the Claimant
9. The Claimant maintained that the existence of an employment relationship created by the
Contract is undisputable, and submitted a copy of said Contract, the original version of which
was subsequently torn up by the Respondent.
10. The Claimant asserted that the Contract was terminated without just cause by the
Respondent, purely because the latter failed to obtain a work permit for the Claimant.
11. The Claimant stated that he was not paid any amounts and thus requested compensation in
the amount of EUR 12,000, corresponding to 10 x EUR 1,200, or the sum of the monthly salary
and accommodation allowance for the entire term of the Contract. The Claimant also
requested that said compensation shall be augmented by interest at the standard rate of
5% p.a..
12. Lastly, the Claimant requested the imposition of sanctions on the Respondent.
b. Position of the Respondent
POSITION OF THE RESPONDENT
13. In its reply, the Respondent firstly contested the competence of FIFA to hear the present
claim, firstly based on the fact that the Contract “contains no jurisdiction clause in favour of
FIFA”, and secondly, because the DRC can only hear labour disputes, and the Respondent
and the Claimant, allegedly, share no employment relationship, thereby not meeting the
requirements under art. 22 par. 1 lit. b) of the Regulations.
14. Furthermore, the Respondent outlined that the document submitted by the Claimant, which
is supposedly a copy of the Contract, does not contain the signature of the Claimant and,
therefore, does not prove the existence of the contractual relationship. The Respondent,
therefore, rejected the notion that the Contract was a valid and binding employment
agreement.
15. The Respondent also outlined that the copy of the Contract submitted by the Claimant was
a forgery, as the supposed signature of the president of the Respondent was fabricated by
the former sporting director, who was allegedly also the agent of the Claimant and therefore
had a conflict of interests.
16. In the absence of a Contract, the Respondent argued, the Claimant cannot possibly claim
compensation, as there is no basis for such claim.
pg. 5
REF. FPSD-8433
17. The Respondent, therefore, requested that the claim be rejected.
c. Replica of the Claimant
18. The Claimant insisted on the jurisdiction of FIFA. In particular, the Claimant pointed out that
the argument that there is no clause in favour of FIFA is irrelevant, and that in any case, there
is no clause clearly excluding FIFA’s jurisdiction, thereby making FIFA competent in
accordance with art. 22 par. 1 lit. b) of the Regulations.
19. The Claimant also vehemently rejected the notion that the copy of the Contract submitted to
the file had been falsified, pointing out that the Respondent provided no evidence of the
allegation of forgery or the abuse of contractual templates.
20. The Claimant also stressed that the signature and the seal on the copy of the Contract is that
of the President, and not the Sporting Director, who allegedly forged such Contract.
21. The Claimant also pointed out that the lack of his signature on the submitted copy is
unimportant, as the Contract (signed and sealed by the Respondent), if only signed by the
employer, is, at the very least, seen as a unilateral offer which is valid until revoked. The
Claimant, however, also reiterated and denounced that the Respondent tore up the copy of
the Contract which was signed by both parties.
22. The Claimant further asserted that the existence of the Contract in general and the
ratification thereof is undisputed, as the following evidence indicates:
-
Social media posts by the Respondent in which the Claimant appears in uniform with
other teammates;
Exchange of correspondence with FIFA regarding the ITC, stating that the transfer was
“cancelled”;
Photo of team sheet for matchdays of the Andorran league;
An unsigned payment receipt of lump sum of EUR 1,000;
An unsigned proposed termination agreement.
23. The Claimant thus reiterated his request for relief.
d. Duplica of the Respondent
DUPLICA OF THE RESPONDENT
24. The Respondent briefly reiterated that the Football Tribunal should not be held competent.
25. Additionally, the Respondent amended its position from the initial argumentation that there
was no Contract at all, to stating that the Claimant was merely on trial – and that such trial
was not successful.
pg. 6
REF. FPSD-8433
26. As to the ITC, the Respondent argued that the correspondence exchanged with FIFA relates
to a previously failed instruction for an “amateur transfer”, and that this allegedly further
supports the line of argument that the Claimant never was part of the actual squad.
27. Lastly, the Respondent outlined as to the alleged payment receipt that the Claimant
“demanded from the [Respondent] the amount of 1,000 euros and the drafting of a contract
resolution, for its subsequent study and signature, which it did not carry out and uses it as an
element to prove a contract that never existed”.
pg. 7
REF. FPSD-8433
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 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 and submitted for decision on
1 June 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.
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. b) of the
Regulations on the Status and Transfer of Players (March 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 from
Colombia and a club from Andorra.
3.
Furthermore, the Chamber took note that the Respondent contested the jurisdiction of
FIFA to deal with the present claim.
4.
The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the Contract does not contain a clear and exclusive
jurisdiction clause in favour of another forum, and that FIFA should be deemed competent
to resolve the dispute at hand.
5.
Taking into account the above, the Chamber emphasised that, in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
6.
In this context, the Chamber pointed out that it should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of a forum different than the Football Tribunal.
pg. 8
REF. FPSD-8433
7.
In this respect, the Chamber recalled the wording of clause 12 of the Contract, which
stipulated as follows:
“The parties commit to resolve any disputes that may arise out of the present contract amicably,
without prejudice of any party to submit such potential disputes to the sporting tribunals or,
failing that, the civil courts of Andorra.” (Freely translated from Spanish)
8.
After analysing the wording of the above-mentioned jurisdiction clause, the Chamber
concluded that such clause did not clearly and exclusively establish the competence of any
specific forum ahead of the Football Tribunal, making only a general reference to “sporting
tribunals” and, only subsidiarily, the civil courts of Andorra.
9.
As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, it established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be rejected and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of
the Regulations, to consider the present matter as to the substance.
10. 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 (March 2023 edition), and
considering that the present claim was lodged on 1 December 2022, 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
11. 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
12. 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.
pg. 9
REF. FPSD-8433
i. Main legal discussion and considerations
13. 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 validity of the
Contract, as well as the lawfulness of the potential termination thereof.
14. In this context, the Chamber acknowledged that it its task was to determine whether the
Contract was indeed validly and bindingly concluded, and if so, whether or not the
termination thereof occurred with or without just cause.
15. To begin with, the Chamber recalled the argumentation of the Claimant that the
Respondent, who was in possession of the only signed copy of the Contract, had torn it up,
thereby terminating the employment relationship between the parties with just cause.
16. On the other hand, the Chamber noted that the Respondent denied the existence of a
contractual relationship between the parties at all, and purported that the Claimant had
forged a copy of the Contract, thereafter submitting it to the file and lodging the present
claim in bad faith.
17. Before analysing the argumentations of the parties, the Chamber revisited the wording of
art. 13 par. 5 of the Procedural Rules, which stipulates that a party relying on a certain fact
bears the burden of proving its veracity.
18. Having established the above, the Chamber firstly addressed the allegations that the
Respondent tore up the original version of the Contract, and that the copy on file was a
forgery.
19. In this respect, the Chamber noted that the copy submitted by the Claimant not only
contained the stamp of the Respondent, but also the signature of its president. The
Respondent, in this respect, provided no evidence in support of its allegation of forgery, or
that the sporting director, who was dismissed several weeks after the Contract had been
signed, was also the Claimant’s agent and had forged such document on the Claimant’s
behalf.
20. Furthermore, and in any event, the Chamber was of the opinion that the Claimant
submitted ample evidence to adequately corroborate the line of argument that there was
a contractual relationship between the parties – including social media posts by the
Respondent with the Claimant, as well as team sheets from match days in which the
Respondent was involved, and the Claimant was listed.
21. The Chamber further wished to point out the inconsistent submission of the Respondent,
who firstly argued that there was no contractual relationship at all, to subsequently
changing the narrative to the Claimant being on trial.
pg. 10
REF. FPSD-8433
22. In respect of such argumentation, the Respondent failed to provide any evidence to
corroborate that the Claimant was on trial (such as a trial offer, a clause in the respective
Contract or any correspondence exchanged between the parties).
23. Lastly, the Chamber wished to remark that the Respondent failed to successfully contest
the allegation that it attempted to force the Claimant to signa a termination agreement /
waiver, a copy of which was provided by the latter. In this respect, the Chamber
emphasised that he Respondent merely alleged that the Claimant “demanded” such a
waiver, without providing any evidence to undermine the fact that such document was
signed, in reality, by itself.
24. Therefore, the Chamber firstly established that the Claimant submitted satisfactory
evidence that there was a contractual relationship between the parties, and that the
Respondent failed to meet his burden of proving that the Contract submitted to the file
was a forgery.
25. Consequently, the Contract was held to be valid and binding.
26. Having established the above, the Chamber observed that the Respondent failed to
provide any argumentation as to the lawfulness of the alleged contractual termination,
whereas it took note of the fact that the Claimant was uncontested in arguing that the
Respondent terminated the Contract on account of not being able to obtain a work permit
for the Claimant.
27. The Chamber subsequently referred to art. 18 par. 4 of the Regulations, as well as its longestablished jurisprudence in arguing that a Contract may not be made subject to the
existence of either a work permit or a medical examination, the former of which was
applicable in the present case.
28. As such, the Chamber concluded that the Respondent terminated the Contract without just
cause on 12 October 2022.
ii. Consequences
29. 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.
30. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to two monthly
salaries and accommodation allowances under the Contract, amounting to EUR 2,400 net.
pg. 11
REF. FPSD-8433
31. 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 net amounts
which were outstanding under the contract at the moment of the termination, i.e.
EUR 2,400 (i.e. two times EUR 900 plus two times EUR 300).
32. 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 following dates:
-
On the amount of EUR 1,200 net, 5% p.a. as from 11 August 2022 until the date of
effective payment;
On the amount of EUR 1,200 net, 5% p.a. as from 11 September 2022 until the date
of effective payment.
33. Having stated the above, 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.
34. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to 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. 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.
35. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
36. 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
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 9,600 net (i.e. the residual value of the Contract, or 8 x
EUR 1,200 net between October 2022 and May 2023) serves as the basis for the
determination of the amount of compensation for breach of contract.
pg. 12
REF. FPSD-8433
37. In continuation, the Chamber verified as to 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
DRC 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. The Chamber established that the Claimant had remained
unemployed, and thus failed to mitigate his damages.
38. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of EUR 9,600 net to the Claimant (i.e. the residual value of the Contract), which was
to be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
39. 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 12 October 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
40. 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.
41. 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.
42. 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.
pg. 13
REF. FPSD-8433
43. 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.
44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 14
REF. FPSD-8433
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Janer Alexis Ordoñez
Cuero.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, UE Engordany, must pay to the Claimant the following amount(s):
- EUR 2,400 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 1,200 net as from 11 August 2022 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 1,200 net as from 11 September 2022 until the
date of effective payment.
- EUR 9,600 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 12 October 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
pg. 15
REF. FPSD-8433
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 16
REF. FPSD-8433
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 17