Labour Disputes
Texto da decisão
REF FPSD-7379
Decision of the
Dispute Resolution Chamber
passed on 12 October 2022
regarding an employment-related dispute concerning the player Esteban de Goicoechea Boasso
BY:
Sihon GAUCI (Malta), Single Judge of the DRC
CLAIMANT:
Esteban de Goicoechea Boasso, Spain
RESPONDENT:
Glacis United Football Club, Gibraltar
Page 2
REF FPSD-7379
I.
Facts of the case
1. On 28 January 2022, the player Esteban de Goicoechea Boasso and Glacis United FC concluded an
employment contract stipulating the following:
“See below the agreement for premier league seasons 2021/2022 and 2022/2023,
*The agreement is for the rest of the season from the 1st of January 2022 until the end of April 2022. In case
Glacis United FC will reach the Cup Final or the Europa Conference League we will extend the contract with
1 month until the end of May 2022) or for 2 months (until the end of June 2022).”
2. Accordingly, the player was entitled to the following:
“*From the 1st of January 2022 Glacis will pay a total of € 2000.
€ 450 will be paid as fee in a professional contract and € 1550 will be paid for all travel expenses for ali
training sessions and matches in Spain and Gibraltar.
* In case we reach in season 2021/2022 the Europa Conference League then we will pay you for season
2022/2023 a total per month of € 2500.”
3. According to the player, the president of the club sent him a “WhatsApp” message indicating that the
club was facing financial difficulties and that therefore it would not be possible to keep him with his
salary (note: undated screenshot on file).
4. On 17 May 2022, the president of the club wrote the following to the player via “WhatsApp”:
“Goicoe, unbelievable you have involved a lawyer and if you want to play it the hard way then you can play
it the hard way. I tried to find a solution which can work for both of us. Michele was waiting for a phone call
of your wife but instead you/ she went to a lawyer. But I hope you understand that there is no way back
now. The letter of your lawyer is ridiculous and most facts are not correct. You had an agreement until the
30th of April 2022 and the new season will start with our pre season the 1st of September 2022. You are
claiming 4 months of payments in a period in which we do not have an agreement. Further your contract is
not a professional agreement. I wish you good luck but to play with Glacis you can totally forget now.”
5. The player informed FIFA that he remained unemployed.
6. However, according to the information contained in TMS, the player registered on 16 September
2022 with the Italian club, Pol. Calcio Budoni as an amateur.
Page 3
REF FPSD-7379
II. Proceedings before FIFA
a.
Position of the Claimant
7.
On 8 September 2022, the player Esteban de Goicoechea Boasso lodged a claim before for breach
of contract without just cause and requested the payment of EUR 30,000 as compensation
(2,500*12), plus 5% interest p.a. as from 14 August 2022.
8.
The player explained that the club stopped to pay his remuneration in April 2022.
9.
The player considered that the contract of employment was terminated without just cause by the
club as a retaliation for a sent default notice.
b.
Position of the Respondent
10. Despite being invited to do so, the Respondent failed to reply to the claim within the deadline
granted by FIFA.
III. Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) 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 8 September 2022 and submitted for
decision on 12 October 2022. Taking into account the wording of art. 34 of the June 2022 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 Single Judge 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 (June 2022 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 Spanish player and a Gibraltarian club.
3.
Subsequently, the Single Judge 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 (June 2022 edition), and considering that
the present claim was lodged on 8 September 2022, the August 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b.
Burden of proof
4.
The Single Judge 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 Single Judge stressed the wording of art.
Page 4
REF FPSD-7379
13 par. 4 of the Procedural Rules, pursuant to which she 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 Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge 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
6.
The foregoing having been established, the Single Judge moved to the substance of the matter.
7.
The Single Judge first noted that, on 28 January 2022, the player Esteban de Goicoechea Boasso
and Glacis United FC concluded an employment contract stating the following:
“see below the agreement for premier league seasons 2021/2022 and 2022/2023”
8.
The Single Judge further noted that the contract stipulated the following:
9.
Given the above, the Single Judge first understood that it had to determine the exact period of
duration of the contract. In this respect, the Single Judge observed that the contents of the contract
are confusing.
10. The Single Judge, referring to the provision quoted in the previous paragraphs, observed that it is
not possible that a contract for the season “2022/2023” would start in July 2023. Hence, a contract
for the season 2022/2023 would logically only start in July 2022. Therefore, the Single Judge
understood that the reference to 2023 appears to be an obvious typographical error, which in
reality refers to July 2022.
11. In addition, the Single Judge observed that, according to the Transfer Matching System (TMS), the
season in Gibraltar last until 31 May.
12. Consequently, the Single Judge understood that the contract was valid as valid as from 28 January
2022 until 31 May 2023, with a period of leave in June 2022 (i.e. after the end of the season on 31
May 2022 and until it was restarted on 1 July 2022).
Page 5
REF FPSD-7379
13. The foregoing being established, and for the sake of completeness, the Single Judge also wished
to refer to art. 2 par. 1 of the Regulations, according to which “a professional is a player who has a
written contract with a club and is paid more for his footballing activity than the expenses he effectively
incurs.”
14. In the matter at hand, and considering the remuneration of the player, the Single Judge concluded
that he is indeed a professional.
15. Subsequently, the Single Judge turned her attention to the claim of the player, according to which
the club terminated the contract without just cause.
16. In this respect, the Single Judge considered of outmost importance to recall the main events that
led to the present dispute. In particular, the Single Judge observed that, on 17 May 2022, the
president of the club wrote a message to the player via “WhatsApp” where he complained, inter
alia, that, he “involved a lawyer” and that, as a result, “there is no way back now” and “to play with
Glacis you can totally forget now.”
17. As a result, the Single Judge understood that the club unilaterally terminated the contract due to
the fact that the player tried to seek for legal advice.
18. The Single Judge established that said form of termination is clearly of an abusive nature and hence
without just cause. Consequently, it can be established that the player is entitled to compensation.
ii. Consequences
19. Having stated the above, the Single Judge turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
20. The Single Judge 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 Single Judge 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.
21. In application of the relevant provision, the Single Judge 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 Single Judge established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
22. As a consequence, the Single Judge 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.
Page 6
REF FPSD-7379
1 of the Regulations. The Single Judge recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
23. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge concluded that the
amount of EUR 22,000 (from July 2022 until 30 May 2023, 11*2,000 = EUR 22,000) serves as the
basis for the determination of the amount of compensation for breach of contract.
24. 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.
25. In this regard, the Single Judge verified that the player continued his career as an amateur.
26. On account of all of the above-mentioned considerations and the specificities of the case at hand,
the Single Judge decided that the club must pay the amount of EUR 22,000 to the player, which
was to be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
27. Lastly, taking into consideration the player’s request as well as the constant practice of the Single
Judge 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
28. Finally, taking into account the applicable Regulations, the Single Judge 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.
29. In this regard, the Single Judge 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.
30. Therefore, bearing in mind the above, the Single Judge 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.
Page 7
REF FPSD-7379
31. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form.
32. The Single Judge 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
33. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.
34. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
35. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 8
REF FPSD-7379
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Esteban de Goicoechea Boasso, is partially accepted.
2.
The Respondent, Glacis United Football Club, has to pay to the Claimant, the amount of EUR 22,000
as compensation for breach of contract without just cause plus 5% interest p.a. as from 8
September 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. 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.
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
Page 9
REF FPSD-7379
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
Page 10