Labour Disputes
Texto da decisão
REF. FPSD-13872
Decision of the
Dispute Resolution Chamber
passed on 2 May 2024
regarding an employment-related dispute concerning
the player Caín Jair Fara
BY:
Frans DE WEGER (The Netherlands) , Chairperson
Oleg ZADUBROVSKIY (Russia), member
Tomislav KASALO (Croatia), member
CLAIMANT:
Caín Jair Fara, Argentina
RESPONDENT:
Sociedad Deportiva Aucas, Ecuador
pg. 2
REF. FPSD-13872
I. Facts of the case
1. On 1 January 2022, the player and Sociedad Deportiva Aucas concluded an employment contract
valid as from 1 January 2022 until 31 October 2022.
2. As per art. 4 of the contract, the player was entitled to USD 500 net per month.
3. Art. 9 of the contract stipulated the following:
“(…) la partes renuncian a domicilio y acuerdan que toda controversia derivada de la aplicación o
interpretación de este contrato será resuelta por la Cámara de Mediación y Resolución de Disputas de
la Federación Ecuatoriana de Fútbol”.
Free translation into English:
"(...) the parties waive domicile and agree that any dispute arising from the application or interpretation
of this contract shall be resolved by the Mediation and Dispute Resolution Chamber of the Ecuadorian
Football Federation".
4. Following art. 1 of the annexe to the contract, the player was entitled to USD 6,500 net per month,
from 1 January 2022 until 30 October 2022.
5. The annexe further stipulated the following:
“En caso que el campeonato se extienda se pagara lo proporcional a las días trabajados, valor que
incluye todos los beneficios de ley coma son decimo tercer, decimo cuarto, vacaciones y fon dos de
reserva para que el jugador preste efectivamente sus servicios profesionales al CLUB de acuerdo con
todas las obligaciones que asume con et CLUB por este o por cualquier otro contrato, reglamento,
Código, norma o disposición del CLUB.”
Free translation into English:
"In the event that the championship is extended will be paid in proportion to the days worked, value that
includes all the benefits of law such as the thirteenth, fourteenth, holiday and fon two reserve for the
player to effectively provide their professional services to the CLUB in accordance with all obligations
assumed with the CLUB by this or any other contract, regulation, code, rule or provision of the CLUB".
6. Art. 4 of the Annex 2 to the contract stipulated the following:
“Si el jugador queda campeón con el equipo en el torneo de la Liga Pro 2022, el CLUB cancelara el valor
de $10.000 al jugador una vez terminada In temporada.
Free translation into English:
"If the player becomes champion with the team in the 2022 Pro League tournament, the CLUB will pay
the value of $10,000 to the player at the end of the season.”
7. On 1 November 2023, the Claimant sent a default notice to the club, requesting inter alia the
following amounts, and granted 10 days to remedy the default:
USD 17,000 Individual awards due on 10.12.2022
USD 3,033.34 pro-rata salary and monthly bonus from 1 to 13 November 2022
pg. 3
REF. FPSD-13872
II. Proceedings before FIFA
8. On 29 February 2024, the player lodged a claim before the FIFA Football Tribunal for outstanding
remuneration and requested the total amount of USD 13,033, detailed as follows:
- USD 3,033 net as the pro-rata salary for the month of November 2022 (cfr. article. 4 of the
Employment Contract iuncto article 1 of Annex 1 to the Employment Contract)
- USD 10,000 net as individual bonus for winning the 2022 national championship LaLigaPro
(cfr. article 4 of Annex 2 to the Employment Contract)
9. The player further requested 16 interest p.a. as from 14 November 2022 as per Ecuadorian law,
or 5% interest p.a. as per Swiss law.
10. The Claimant acknowledged that the employment contract contains an arbitration clause
referring disputes to the national NDRC in Ecuador. However, he argued that, for the FIFA DRC
to uphold and consider an arbitration clause referring a dispute to a national NDRC, the national
NDRC must guarantee fair proceedings and respect the principle of equal representation.
11. In this case, the Claimant argued that the Ecuadorian NDRC does not meet these requirements.
In particular, he argued that the President and Vice-President of the FEF NDRC were not
appointed from a list agreed upon by the representatives of players and clubs, as required by
their own regulations. Therefore, in his view, the FIFA DRC should disregard the arbitration
clause and take jurisdiction based on article 22 of the FIFA RSTP.
12. Additionally, the player noted that the FEF NDRC and its appeal body are not fully operative, as
confirmed by a FIFA DRC decision dated 9 September 2022 (FIFA DRC Vaz-Cano-ES_09092022).
13. In its reply, the Respondent contested the competence of FIFA as it considered the Cámara de
Mediación y Resolución de Disputas de la Federación Ecuatoriana de Fútbol (Ecuadorian
NDRC) to be competent, as per art. 9 of the contract
14. As to the substance, the club acknowledged a debt of USD 11,9434.
15. In this respect, the club noted that the following amounts should be subtracted from the
claim.
Item
Box Ticket provided to the player
Full Tribune provided to the player
Central Tribune provided to the player
South Tribune provided to the player
Player's Jerseys
Total Expenses
Quantity
1
2
2
5
-
Unit Price
(USD)
$120
$85
$45
$35
-
Total
Price
(USD)
$120
$170
$90
$175
$535
$1090
16. Thereby, the club acknowledged a debt of USD 11,943.33 (i.e. USD 13,033.33 – 1,090)
pg. 4
REF. FPSD-13872
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 29 February 2024 and submitted for decision on .
Taking into account the wording of art. 34 of the May 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 October 2022 edition), the Dispute Resolution Chamber is in
principle competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an Argentinean player and an Ecuadorian 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 (May 2023 edition), and considering that the
present claim was lodged on 29 February 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
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.
5.
Admissibility
Notwithstanding the above, the Chamber noted that, in its reply to the claim, the Respondent
contested the competence of FIFA to deal with the present matter, arguing that it shall be referred
to the Mediation and Dispute Resolution Chamber of the Ecuadorian Football Federation (FEF)
(hereinafter: Ecuadorian NDRC) as the contract that is at the basis of the present dispute grants
competence to the later.
6.
The Dispute Resolution Chamber also noted that the Claimant insisted on the competence of FIFA
to adjudicate the present claim.
pg. 5
REF. FPSD-13872
7.
Taking into account all the above, the Dispute Resolution 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.
8.
In this context, 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
the Ecuadorian NDRC.
9.
In particular, the Chamber noted that Clause 9 of the employment contract stipulated the following:
“(...) la partes renuncian a domicilio y acuerdan que toda controversia derivada de la aplicación o
interpretación de este contrato será resuelta por la Cámara de Mediación y Resolución de Disputas de la
Federación Ecuatoriana de Fútbol”.
Free translation into English:
"(...) the parties waive domicile and agree that any dispute arising from the application or
interpretation of this contract shall be resolved by the Mediation and Dispute Resolution Chamber of the
Ecuadorian Football Federation".
10. In the view of the Chamber, the contents of said clause of the contract are sufficiently clear, as they
grant competence to the Ecuadorian NDRC.
11. Having established the foregoing, the Chamber turned its attention to the further pre-requisites for
establishing the competence of a NDRC. The Chamber namely referred to principle of equal
representation of players and clubs and underlined that this principle is one of the very fundamental
elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such.
Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in
the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the
aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall
serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the
player and club representatives (…); b) between three and ten player representatives who are elected or
appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such
associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten
club representatives (…).”
pg. 6
REF. FPSD-13872
12. The club provided a copy of the Regulations of the Ecuadorian NDRC (Reglamento de
Funcionamiento de la Cámara de Mediación y Resolución de Disputas). The most relevant articles
are quoted below:
“Art. 3.- Composición.La CMRD, respetando la paridad, estará integrada por:
a) Un Presidente y un Vicepresidente, independientes, elegidos por el Directorio de la FEF, sobre la
base de una lista de como mínimo cinco personas, elaborada de común acuerdo por los
representantes de los jugadores y los clubes;
b) Dos representantes de los clubes, elegidos por el Directorio de la FEF de entre una nómina de un
candidato presentado uno por cada club de la primera categoría; y,
c) Dos representantes de los jugadores, escogidos por el Directorio de la FEF de un listado de cuatro
candidatos presentados por la organización representativa de los jugadores profesionales de fútbol
reconocida por FIFPRO, de acuerdo a los requisitos señalados en éste Reglamento. En caso de no existir
dicha organización reconocida por FIFPRO, será FIFPRO directamente la encargada de presentar el
listado de los 4 candidatos.
Los miembros nombrados por las partes deberán ser abogados o doctores en jurisprudencia,
especializados en derecho deportivo, en libre ejercicio de la profesión y con experiencia de por lo
menos diez años.
La Cámara de Mediación y Resolución de Disputas se reúne cuando esté compuesta por al menos tres
de sus miembros o cinco de sus miembros, incluido el Presidente o el Vicepresidente, de tal manera
que siempre y necesariamente estén representados clubes y jugadores en igual número.
En ningún caso la CMRD estará integrada por más de dos miembros por clubes o jugadores.”
(…)
Art. 14.- Quórum.Para que la CMRD, pueda instalarse y sesionar, deberán estar presentes cuando menos tres de sus
miembros o cinco de sus miembros, de tal manera que siempre y necesariamente estén representados
clubes y jugadores en igual número.
Consecuentemente deberán participar, necesariamente, un delegado por el club y un delegado por el
jugador. Si no estuviere alguno de los citados delegados, la sesión en mención, no se llevará a cabo,
en cuyo caso el Presidente el mismo día de la sesión fallida señalará nuevo día y hora para la reunión,
la cual se realizará con el quórum antes señalado, constatando la presencia de las partes que
conforman la Cámara, para lo cual convocará al miembro alterno del titular que no asistió a la
primera convocatoria.
Free translation into English:
"Art. 3 - Composition.
The Ecuadorian NDRC, respecting parity, shall be composed of:
(a) A President and a Vice-President, independent, elected by the FEF Board of Directors, on the basis
of a list of at least five persons, drawn up by mutual agreement by the players' and clubs'
representatives;
b) Two club representatives, elected by the FEF Board of Directors from a list of one candidate
presented by each club in the first category; and,
c) Two players' representatives, chosen by the FEF Board of Directors from a list of four candidates
presented by the professional football players' representative organisation recognised by FIFPRO, in
accordance with the requirements set out in these Regulations. In case there is no such organisation
recognised by FIFPRO, FIFPRO will be directly in charge of presenting the list of the 4 candidates.
The members appointed by the parties must be lawyers or doctors of jurisprudence, specialised in
sports law, in free exercise of their profession and with at least ten years of experience.
pg. 7
REF. FPSD-13872
The Mediation and Dispute Resolution Chamber is convened when it is composed of at least three of
its members or five of its members, including the chairman or the vice-chairman, in such a way that
clubs and players are always and necessarily represented in equal numbers.
In no case shall the Ecuadorian NDRC be composed of more than two members from clubs or players."
(...)
Art. 14 - Quorum.
In order for the Ecuadorian NDRC to convene and meet, at least three of its members or five of its
members must be present, in such a way that clubs and players are always and necessarily
represented in equal numbers.
Consequently, one delegate for the club and one delegate for the player must necessarily be present.
If any of the aforementioned delegates are absent, the aforementioned session shall not take place, in
which case the President shall, on the same day of the failed session, set a new day and time for the
meeting, which shall be held with the aforementioned quorum, ascertaining the presence of the parties
so that the President shall call the alternate member of the incumbent who did not attend the first
meeting.
13. In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence
over the appointment of arbitrators. This means for example that every party shall have the right to
appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal
(…). Where arbitrators are to be selected from a predetermined list, every interest group that is
represented must be able to exercise equal influence over the compilation of the arbitrator list”.
14. With the aforementioned principles in mind, the Chamber went on to examine the documentation
presented by the Respondent and noted that it indeed provided a copy of the Regulations of the
Ecuadorian NDRC.
15. However, after duly examining article 3 of said Regulations, the Chamber noted that said article
stipulates that the Ecuadorian NDRC is, inter alia, Chaired by a “President and a Vice-President,
independent, elected by the FEF Board of Directors, on the basis of a list of at least five persons, drawn up
by mutual agreement by the players' and clubs' representatives”.
16. In this respect, the Chamber considered the Respondent failed to demonstrate the current
president and vice-president of the Ecuadorian NDRC have been appointed respecting the principle
of equal representation between players and clubs and that, moreover, documentation had been
provided by the Claimant that the appointments had not been done in accordance with the FEF’s
own regulations.
17. In addition, the DRC confirmed that the documentation provided by the FEF indicates that the
operation of its national dispute resolution system follows a two-tiered structure, with the CMRD
serving as the first instance and the Cámara de Apelaciones de Resolución de Disputas (CARD) as
the appellate instance. In this regard, the Chamber noted from said documentation that the FEF
itself acknowledges that both chambers are not yet fully operational.
18. In this context, the DRC considered that denying FIFA's jurisdiction would imply that the Player, if he
were to resort to the Ecuadorian dispute resolution system established within the FEF, would find it
impossible to have his right to due legal process fully respected. This conclusion was particularly
pg. 8
REF. FPSD-13872
drawn with regard to his right to appeal, as provided for in the FEF regulations, which would not be
guaranteed due to the absence of a properly constituted body to decide on the appeal.
19. As a consequence, the Chamber was of the opinion that the club failed to prove that the Ecuadorian
NDRC indeed respects the principle of equal representation of players and clubs.
20. On account of all the above, the Chamber 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.
d. Merits of the dispute
21. 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 abovementioned 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
22. The foregoing having been established, the Chamber moved to the substance of the matter. In this
context, the Chamber acknowledged that the present matter is a claim for outstanding
remuneration.
23. In essence, the club acknowledged the claimed debt, but argued that certain amounts
corresponding to tickets and sports gear should be deducted.
24. In relation to said argument, the Chamber observed that there is no clear contractual basis for said
deductions and, in addition, the evidence provided by the club (consisting in an internal listing) is
clearly insufficient.
25. As a result, the player is entitled to the claimed amounts, which are otherwise uncontested by the
club:
- USD 3,033 net as the pro-rata salary for the month of November 2022
- USD 10,000 net as individual bonus for winning the 2022 national championship LaLigaPro
26. 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 due dates until the date of effective payment.
ii. Compliance with monetary decisions
pg. 9
REF. FPSD-13872
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind that this
is the club already received a warning in the matter FPSD-13877, the Chamber decided to impose a
reprimand on the club in accordance with art. 12bis par. 4 lit. of the Regulations.
e. Costs
33. 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.
34. 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.
35. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
pg. 10
REF. FPSD-13872
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Caín Jair Fara
2.
The claim of the Claimant, Caín Jair Fara, is partially accepted.
3.
The Respondent, Sociedad Deportiva Aucas, must pay to the Claimant the following
amounts:
- USD 13,033 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount USD 3,033.33 net of as from 1 December 2022 until the
date of effective payment;
- 5% interest p.a. over the amount USD 10,000 net of as from 10 November 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.
8.
This decision is rendered without costs.
9.
A reprimand is imposed on the Respondent (art. 12 bis of the Regulations)
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-13872
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
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
pg. 12