Labour Disputes
Texto da decisão
REF. FPSD-10483
Decision of the
Dispute Resolution Chamber
passed on 14 September 2023
regarding an employment-related dispute concerning
the player Diego Fernando Dorregaray
COMPOSITION:
Martín Auletta (Argentina), Deputy Chairperson
Stella Maris Juncos (Argentina), Member
Mario Flores Chemor (Mexico), Member
CLAIMANT:
Club Deportivo Cuenca, Ecuador
Represented by c/o Andrés Holguín Martínez
RESPONDENT / CROSS-CLAIMANT:
Player Diego Fernando Dorregaray, Argentina
Represented by Alipaz Abogados
CROSS-RESPONDENT:
Ismaily SC, Egypt
pg. 2
REF. FPSD-10483
I. Facts of the case
1.
On 29 December 2020, the Argentinian player, Diego Fernando Dorregaray (hereinafter:
the player or the Respondent / Cross-Claimant) and the Ecuadorian club, CLUB DEPORTIVO
CUENCA (hereinafter: CD Cuenca or the Claimant) concluded an employment contract
(hereinafter: the contract), valid as from 1 January 2021 and until the end of the Tournament
2022 (according to the information displayed in the Transfer Matching System (TMS) said
tournament ended on 13 November 2022).
2.
In January 2022, the Claimant and the Egyptian club, Ismaily SC (hereinafter: Ismaily or the
Cross-Respondent) exchanged correspondence in connection with the eventual registration
of the player with Ismaily.
3.
In particular, on 8 January 2022, Ismaily sent an offer to the CD Cuenca with the following
content:
4.
In reply thereto, on 8 January 2022, CD Cuenca sent a counter-offer to Ismaily (hereinafter:
the counter-offer), accepting the amount payable as transfer compensation but proposing
a different payment schedule, as follows:
pg. 3
REF. FPSD-10483
5.
After further exchange of correspondence whereby the CD Cuenca and Ismaily made slight
changes to the payment schedule, on 9 January 2022, Ismaily sent a letter to CD Cuenca,
accepting the latest counter-offer of CD Cuenca (hereinafter: the acceptance), which was
signed by Ismaily only (not by the player):
pg. 4
REF. FPSD-10483
6.
On 10 January 2022, the CD Cuenca and the player concluded a termination agreement
(hereinafter: the termination agreement), whereby the player undertook to pay to CD
Cuenca a buy-out fee (hereinafter: the buy-out fee) of USD 250,000, as follows:
-
USD 55,000 would be compensated with credits due by the club to the player;
USD 45,000 on 10 January 2022;
USD 75,000 on 30 June 2022;
USD 75,000 on 1 December 2022.
7.
Clause 3 of the termination agreement (hereinafter: the acceleration clause) states that,
should the player fail to pay any of the instalments of the buy-out fee on their due
dates, the residual instalments thereof would fall due.
8.
On 14 January 2022, the player and Ismaily concluded an employment contract
(hereinafter: the Ismaily contract), valid as from the date of its signature and until 7
August 2026.
9.
On 17 January 2022, Ismaily paid the amount of USD 100,000 as part of the transfer
compensation to CD Cuenca (Exhibit 4 to the reply to the claim).
10. By means of its letter dated 4 July 2022, CD Cuenca put the player in default of payment of
the 3rd instalment of the buy-out clause in the amount of USD 75,000, thereby granting the
player a deadline of 10 days to cure his breach
II. Proceedings before FIFA
a. Position of CD Cuenca, the Claimant
11. On 7 June 2023, the CD Cuenca lodged a claim against the player in front of FIFA, requesting
to be awarded the total amount of USD 150,000, corresponding to the 3rd and 4th instalment
of the buy-out fee, plus 5% interest p.a. as from 30 June 2022 until the date of effective
payment.
12. In its claim, CD Cuenca argued that despite having agreed to conclude the termination
agreement – upon the player’s request – and having agreed on a certain amount to be paid
by the player as buy-out fee, the player failed to respect his contractual obligations despite
having been put in default of payment.
pg. 5
REF. FPSD-10483
13. In this regard, while referring to the acceleration clause contained in the termination
agreement, the Claimant requested the default interest to run as from the date on which
the player was at default of payment, i.e. as from 30 June 2022, when the player failed to
pay the 3rd instalment of the buy-out fee.
b. Position of the player, the Respondent / Cross-Claimant
14. In his reply and cross-claim, the player argued – inter alia – the following:
-
That, by the time of the conclusion of the termination agreement, CD Cuenca owed
the player USD 55,000, which would have given just cause to the player to terminate
the contract.
-
That the amount of the buy-out fee exceeded in much the residual value of the
contract and the only reason why the player accepted to sign the termination
agreement was because it was so agreed within the context of the negotiations
undertaken between CD Cuenca and Ismaily.
-
In view of the aforementioned, the player argued that the termination agreement
simply echoed the transfer agreed between the CD Cuenca and Ismaily (evidence of
which are the offer, the counter-offer and the acceptance) and that, therefore, rather
than Ismaily signing the player as a free agent, what occurred was a hidden transfer
of the player.
-
In this context, the player argues that it shall be Ismaily the party that shall be
condemned to pay the remainder of the buy-out fee, as it is rather a transfer
compensation, also considering that the only beneficiary of this particular scheme
has been Ismaily.
-
In addition, to the above, the player stressed that, in the offer, CD Cuenca explicitly
mentions that Ismaily would be – together with the player – co-responsible to pay
the transfer compensation and that, in Ismaily’s letter of 9 January 2022, Ismaily did
not oppose to it.
-
That, on 17 January 2022, Ismaily paid the amount of USD 100,000 as part of the
transfer compensation to the Claimant, which serves as proof that Ismaily was
responsible for the payment of the transfer fee.
-
That the Claimant did not send any default notice to the player, which is confirmed
by the fact that the Claimant failed to provide any proof of delivery of its letter of 4
July 2022.
pg. 6
REF. FPSD-10483
15. In view of all of the above, the player requested the claim of the Claimant be rejected, as it
was the club the party that committed to perform the payment of the amounts claimed by
the Claimant, since Ismaily and the Claimant agreed on a hidden transfer of the player and
Ismaily performed the first payment of the transfer compensation.
16. In this context, arguing that the player is not liable to make any payment whatsoever to the
Claimant, the player requested Ismaily be held liable to pay the outstanding transfer
compensation to CD Cuenca (the cross-claim).
c. Rejoinder of CD Cuenca, the Claimant
17. In its rejoinder, the Claimant maintained – inter alia – the following:
-
That the evidence provided by the player does not constitute any contract
concluded between the Claimant and Ismaily, which were only negotiating an
eventual transfer of the player.
-
That the Claimant and the player were the only contracting parties to the
termination agreement, which conclusion is not disputed by the player and that
the player, thereby, committed to pay to the Claimant the abovementioned buyout fee.
-
That there is no proof of any acceptance of Ismaily to pay the buy-out fee on
behalf of the player. In this respect, the Claimant contests the validity of the
evidence provided by the player as Exhibit 4 to the reply, i.e. the e-mail whereby
Ismaily would have admitted having paid the amount of USD 100,000 to the
Claimant. In addition, the Claimant referred to the termination agreement,
whereunder the parties agreed that the first instalment of USD 100,000 would be
lowered to USD 45,000 in view of the debt of the Claimant towards the player and
that, therefore, no payment of USD 100,000 was ever made, which shows that the
allegations of the player are false.
-
That the notification of 4 July 2022 was sent to the player’s wife, to whom previous
correspondence addressed to the player had been sent.
d. Final comments of the player, the Respondent / Cross-Claimant
18. In his duplica, the player held – inter alia – the following:
-
That, even though the player signed the termination agreement, the facts that: 1.) the
Claimant and Ismaily exchanged correspondence aiming at the transfer of the player,
pg. 7
REF. FPSD-10483
whereby the parties gave their consent to transfer the player against payment of a
transfer compensation; 2.) the said parties – thereby – agreed on Ismaily being at least
jointly and severally liable together with the player, to pay the transfer compensation;
3.) the transfer compensation exceeds in much the residual value of the contract; 4.)
Ismaily was the party proceeding with the first payment of the transfer compensation;
all points to the direction that the player was not signed as a free agent by Ismaily but
that there existed a hidden transfer of the player and that Ismaily was the party that
undertook to pay the transfer compensation to the Claimant.
e. Comments of Ismaily, the Cross Respondent
19. In its comments, Ismaily argued, inter alia, the following:
-
That Ismaily was not a party to the termination agreement, which was freely
entered into between the player and the Claimant.
-
That – in the negotiations undertaken between the Claimant and Ismaily – it was
always clear that the player would be signed by Ismaily as a free agent and that,
therefore, a transfer agreement was never concluded between the parties.
20. As to the payment of USD 100,000 made in favour of the Claimant, Ismaily acknowledged
having paid it – allegedly on behalf of the player – and held the following:
-
“After joining Ismaily, the Player asked Ismaily to pay an amount of USD 100,000 on
his behalf to the Claimant to be deducted from the Player’s financial dues of the second
season under the employment contract between him and Ismaily”.
-
“Ismaily had no reason to reject the Player’s request, in all ways the paid amount of
USD 100,000 ought to be deducted from the Player’s financial dues. Moreover, Ismaily
believed it would strengthen the mutual relationship between it and the Player bearing
in mind that he was a newcomer at the Club”.
21. In view of the above and stressing that the Claimant has not named Ismaily as a
Respondent, Ismaily requested not to be involved in the matter at hand as a Respondent
and, should it need to be, Ismaily requested the economic liability be split between the
player and Ismaily as follows: “Alternatively, if Ismaily shall bear any liability, it shall be limited
to USD 25,000 only as stated above, and the remaining USD 125,000 shall be borne and paid by
the Player”.
pg. 8
REF. FPSD-10483
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 7 June 2023 and submitted for
decision on 14 September 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.
23. 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 employmentrelated dispute with an international dimension between an Ecuadorian club, an
Argentinian player and an Egyptian club
24. 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 7 June 2023, the May 2023 edition edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
25. 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
26. 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-10483
i. Main legal discussion and considerations
27. The DRC unanimously concluded that, by means of the exchange of correspondence
maintained between the Claimant and Ismaily on 8 and 9 January 2022, i.e. the offer,
counter-offer and acceptance, the said parties agreed on the permanent transfer of the
player from the Claimant to Ismaily against payment of a transfer compensation of USD
250,000.
28. In this respect, although the player was not included in the said exchange of
correspondence, the Chamber noted that the Claimant and the player signed a separate
document, namely, the termination agreement, whereby the parties agreed on the
termination of the contract and on the player participating in the payment of the transfer
compensation of USD 250,000, irrespective of said amount being called buy-out fee under
the termination agreement (irrelevance of nomen iuris).
29. In this context, the Chamber underscored that any argument of the Claimant or Ismaily in
the sense that no transfer of the player occurred, as the Claimant and the player validly
signed a termination agreement and as the player was signed by Ismaily as a free agent
needs to be rejected, insofar as multiple events demonstrate that – as maintained by the
player – what took place was a hidden transfer (permanent) of the player from the Claimant
to Ismaily. In particular, the key events that demonstrate such extent are the following,
underlined the Chamber:
-
The fact that both agreements (the one concluded between the Claimant and
Ismaily via e-mails and the termination agreement entered into between the
Claimant and the player) were concluded with a difference of 1 day, which creates
the legitimate appearance that both were concluded within the scope of the same
legal framework, i.e. the transfer of the player.
-
The fact that both agreements contain the same amount payable in order for the
player and the Claimant to terminate the contract and for the player to be signed
by Ismaily, i.e. USD 250,000, be it called transfer compensation or buy-out fee.
-
The fact that – as acknowledged by Ismaily – the latter paid the first instalment of
the transfer compensation in the amount of USD 100,000 on 17 January 2022
demonstrates that – at least in a jointly fashion – Ismaily was aware that it was
liable to pay to the Claimant the transfer compensation agreed, which was also
mentioned in the counter-offer submitted by the Claimant and not disputed by
Ismaily in the acceptance.
30. In view of the abovementioned considerations, the Chamber conclude that both
agreements jointly constitute a transfer agreement with all legal effects.
-
pg. 10
REF. FPSD-10483
31. In this context, the DRC decided that both, the Respondent player and Ismaily, shall be held
jointly and severally liable to pay to the Claimant the remainder of the transfer
compensation. In this regard, although both, the Claimant and Ismaily, refuse Ismaily to be
considered as a Respondent within the scope of the present proceedings, the DRC
determined that that Ismaily shall be considered as a Respondent in the matter at hand in
view of the fact that, in its reply to the claim, the player expressly requested Ismaily be
condemned to pay to CD Cuenca the remainder of the buy-out fee / transfer compensation
due.
32. In view of this specific request, the DRC determined that the player did, thereby, lodge a
cross claim against Ismaily, reason why the Chamber considered Ismaily as a CrossRespondent in the present proceedings.
33. However, continued the DRC, it needs to be noted that there is a discrepancy between the
amount payable as transfer compensation under the transfer agreement concluded
between the Claimant and Ismaily via the abovementioned exchange of emails and under
the termination agreement entered into between the Claimant and the player: whereas the
former indicates that the amount payable by Ismaily is USD 250,000, the latter indicates
that the amount payable by the player is USD 250,000 minus the amount of USD 55,000
that was due by the Claimant to the player (compensation of credits).
34. In view of the above, the DRC decided that the credit in favour of CD Cuenca can only
amount to USD 95,000 in view of the following calculations:
-
Transfer compensation agreed: USD 250,000;
Amount compensated with the player’s credit: USD 55,000
Amount already paid by Ismaily: USD 100,000;
Current outstanding amount: USD 95,000 (250,000 – (55,000 + 100,00) = 95,000).
ii. Consequences
35. 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
player and Ismaily.
36. The Chamber observed that the outstanding remuneration due to CD Cuenca amounts to
USD 95,000, in view of the aforementioned considerations.
37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the player (Respondent / Cross-Claimant) and Ismaily (CrossRespondent) are jointly and severally liable to pay to the Claimant the amount of USD
95,000.
pg. 11
REF. FPSD-10483
38. As for the default interest requested by the Claimant, the Chamber decided that,
considering the blatant lack of transparency in the performance of the transfer of the
player, the default interest to be awarded to the Claimant, at the rate of 5% p.a., shall only
run as from the date on which the claim was lodged, i.e. as from 7 June 2023, also
considering the fact that the Claimant did not provide any evidence of having put the
Respondents in default of payment.
iii. Compliance with monetary decisions
39. 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.
40. In this regard, the Chamber highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months. Equally, the DRC underlined 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.
41. Therefore, bearing in mind the above, the DRC decided that the player and Ismaily are
jointly and severally liable to 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.) a restriction on playing in official matches for the maximum duration of
six months shall become immediately effective on the player in accordance with art. 24 par.
2, 4, and 7 of the Regulations; and b.) 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 Ismaily in accordance with art.
24 par. 2, 4, and 7 of the Regulations.
42. The player and Ismaily 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.
43. 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.
pg. 12
REF. FPSD-10483
d. Costs
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club Deportivo Cuenca, is partially accepted.
2.
The claim of the Respondent / Cross-Claimant, Diego Fernando Dorregaray, is partially
accepted.
3.
The Respondent / Cross-Claimant and the Cross-Respondent, Ismaily SC, are jointly and
severally liable to pay to the Claimant the following amount:
- USD 95,000 as outstanding remuneration, plus 5% interest p.a. as from 7 June 2023 until
the date of effective payment.
4.
Any further claims of the Claimant and of the Respondent / Cross-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 / Cross-Claimant shall be imposed with a restriction on playing in official
matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months on playing in official matches.
pg. 13
REF. FPSD-10483
2. The Cross-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.
3. 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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
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pg. 14