Labour Disputes
Texto da decisão
REF. FPSD-16021
Decision of the
Dispute Resolution Chamber
passed on 14 November 2024
regarding an employment-related dispute concerning
the player Maritza Jidney Lopez Guerrero
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Gonzalo DE MEDINILLA (Spain), Member
Iñigo RIESTRA (Mexico), Member
CLAIMANT:
Maritza Jidney Lopez Guerrero, Colombia
Represented by Andres Charria
RESPONDENT:
Gaziantep Asya Spor, Türkiye
pg. 2
REF. FPSD-16021
I. Facts of the case
1.
According to the Colombian player Maritza Jidney Lopez Guerrero (hereinafter: the Player
or the Claimant), on an unspecified date, she and the Turkish club Gaziantep Asya Spor
(hereinafter: the Club or the Respondent) entered into an employment contract (hereinafter:
the Contract) valid for ten months starting from 13 July 2023. According to the Player, the
Contract was for the 2023/2024 season.
2.
According to the Player, the Respondent undertook to pay her a monthly salary of USD 900,
assistance for USD 400, two economy class tickets from Colombia to Türkiye, and
accommodation and meals.
3.
On 6 October 2023, the Claimant had a WhatsApp conversation with a contact saved as
“Fisioterapeuta Dila” (freely translated into English: “physiotherapist Dila”) concerning an
alleged meniscus injury.
4.
On 29 January 2024, the Player was diagnosed with a meniscus disorder due to a tear or
old injury, sprains in lateral ligaments and knee contusion in the left knee. Additionally, the
total cost of the treatment was estimated at COP 15,200,000.
5.
On 16 May 2024, apart from the medical treatment, a psychological diagnosis was made
for the Player, and it was recommended that she continue therapy sessions until she
achieved her ideal physical state. It was also mentioned that she attended 12 sessions at
COP 150,000 each.
6.
On 19 September 2024, the Turkish Federation informed the FIFA general secretariat that
the Player was registered with the Club as an amateur and did not have a contract.
7.
On 21 October 2024, the Player informed that she did not sign a contract with any other
club. According to the information contained in the Transfer Matching System (TMS), the
Player was transferred to the Colombian club C.D. Utrahuilca – Futbol as an amateur.
II. Proceedings before FIFA
8.
On 12 September 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
9.
According to the Claimant, she had an employment contract with the Respondent and the
Club terminated it without just cause.
pg. 3
REF. FPSD-16021
10. In this regard, the Player stated that she signed the Contract for ten months starting from
13 July 2023, but she was not provided with a copy of it. Furthermore, the Player asserted
that on 20 September 2023 she was hit in her left knee and, although the Club provided
her some treatment to reduce the pain and conducted some examination, no diagnosis
was ever communicated to her. In December 2023, the physical issues continued, and the
Club denied her entry to the training centre and therapy sessions. Moreover, the Club
unilaterally decided to remove her from her room, and on 28 December 2023, the Club’s
delegate informed her that she no longer belonged to the Club.
11. According to the Player, after that situation, she had to rent an apartment with her own
money and to support herself with food allowances.
12. The Player also mentioned that on 26 January 2024, she returned to Colombia and on 29
January 2024, she attended a medical appointment. She was diagnosed with a meniscus
disorder due to a tear or old injury, sprains in lateral ligaments and knee contusion in the
left knee, and the cost of the treatment was COP 15,200,000. Furthermore, the Player had
to attend therapy, completing 12 sessions at a cost of COP 150,000 each.
13. Based on the above, the Player argued that the Club did not fulfil its obligation to provide
health and protection to its players. According to the Player, the Club was contractually
obliged to provide any and all services for the players to recover from injuries. Moreover,
the Player stated that she had just cause to terminate the Contract because the Club (i) did
not provide her with medical assistance, (ii) removed her from her room and (iii) stopped
paying for food allowances. Therefore, the Player asserted that the Club must pay
compensation.
14. In addition, and based on the special circumstances, the Player argued that she is entitled
to compensation for moral damages.
15. The requests for relief of the Claimant were the following:
“5. PETICIONES
5.1. Se DECLARE que el contrato de trabajo que vinculó a MARITZA JIDNEY LÓPEZ
GUERRERO y el club ASYA SPORTS CLUB fue terminado sin justa causa por parte del club
turco.
5.2. Se CONDENE a el club ASYA SPORTS CLUB a pagar la suma de CINCO MIL
CUATROCIENTOS DÓLARES equivalente seis meses de salario correspondiente al valor
residual del contrato como indemnización por terminación unilateral del contrato de
trabajo sin justa causa, de acuerdo con el artículo 17 del Reglamento sobre el Estatuto y
la Transferencia de Jugadores de FIFA.
5.3. Se SANCIONE a ASYA SPORTS CLUB sin inscribir jugadoras por dos períodos de
inscripción pues al momento de terminar, el club ASYA SPORTS CLUB, el contrato de
trabajo sin justa causa la JUGADORA se encontraba dentro del período protegido.
pg. 4
REF. FPSD-16021
5.4. Se CONDENE a pagar a ASYA SPORTS CLUB la suma de USD $3.922 por concepto de
gastos médicos
5.5. Se CONDENE a pagar a ASYA SPORTS CLUB la suma de USD $3.922 por concepto de
gastos psicológicos.
5.6. Se CONDENE a pagar a ASYA SPORTS CLUB la suma de USD $50.000 por concepto
de daños morales.”
Freely translated into English:
"5. REQUESTS
5.1. DECLARE that the employment contract between MARITZA JIDNEY LÓPEZ GUERRERO
and the ASYA SPORTS CLUB was terminated without just cause by the Turkish club.
5.2. CONDEMN ASYA SPORTS CLUB to pay the sum of FIVE THOUSAND FOUR HUNDRED
DOLLARS equivalent to six months' salary corresponding to the residual value of the
contract as compensation for unilateral termination of the employment contract without
just cause, in accordance with article 17 of the FIFA Regulations on the Status and
Transfer of Players.
5.3. ASYA SPORTS CLUB be sanctioned not to register players for two registration periods
because at the time ASYA SPORTS CLUB terminated the employment contract without just
cause the PLAYER was within the protected period.
5.4. Order ASYA SPORTS CLUB to pay the sum of USD $3.922 for medical expenses.
5.5. ASYA SPORTS CLUB be ordered to pay the sum of USD $3.922 for psychological
expenses.
5.6. Order ASYA SPORTS CLUB to pay to ASYA SPORTS CLUB the sum of USD $50,000 for
moral damages.”
b. Position of the Respondent
16. Despite having been invited to do so, the Respondent failed to reply to the claim.
pg. 5
REF. FPSD-16021
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter: the 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 12 September 2024 and submitted for
decision on 14 November 2024. 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.
18. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (October 2024 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 Colombian player
and a Turkish club.
19. 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 (October 2024 edition), and
considering that the present claim was lodged on 12 September 2024, the June 2024
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
20. 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
21. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 6
REF. FPSD-16021
i. Main legal discussion and considerations
22. The Chamber then moved to the substance of the matter and took note of the fact that this
is a claim of a player against a club for breach of contract.
23. The Chamber recalled that, according to the Claimant, the parties had a valid and binding
contract, and the Club terminated it without just cause. Thus, the Player seeks
compensation for breach of contract, compensation for moral damages, and payment for
physical and psychological treatment.
24. Since the Respondent did not provide its position on the claim, and according to the longstanding jurisprudence of the Football Tribunal, it must be considered that it renounced its
right to defence. Consequently, the decision shall be taken based on the documentation
already in the file (i.e., the statements and documents presented by the Claimant).
25. In this context, the Chamber acknowledged that its task was to determine whether there
was an employment contract between the parties, and if so, whether the club breached it.
26. The Chamber first noted that the Claimant did not provide a copy of the alleged Contract,
claiming that the Club did not provide her with such a copy.
27. Besides the abovementioned fact, the Chamber pointed out that the information retrieved
from TMS indicates that the Player was engaged with the Club as an amateur.
28. Additionally, the Chamber highlighted that the Turkish Federation informed, on 19
September 2024, that the player had an amateur status and did not have a contract.
29. Furthermore, the Chamber remarked that the Player stated that she had repeatedly
requested the Club to provide her with a copy of the alleged Contract, but she did not
provide any evidence of these requests. Moreover, the Player failed to provide any other
evidence to demonstrate an employment relationship, as, for example, she did not provide
any proof of payments. Finally, the Player did not show that there was a contractual
obligation for the Club to provide medical care or assistance in the event of injury.
30. In fact, the Chamber considered that the Player did not meet the burden of proving that
the parties indeed had an employment contract and that she was entitled to a monthly
salary and all the allowances she mentioned.
31. In this context, based on the evidence on file, the Chamber concluded that the parties did
not enter into an employment contract and that the Player was only registered with the
Club as an amateur player. Therefore, the Club cannot be required to pay compensation
for breach of contract under the terms of art. 17, nor can it be required to pay medical or
psychological costs.
pg. 7
REF. FPSD-16021
32. In light of all the above, the Chamber decided to reject those claims due to a lack of
contractual basis.
33. Finally, regarding compensation for moral damages, the Chamber, based on the
jurisprudence of the Football Tribunal, also decided to reject this claim due to a lack of legal
and contractual basis. Furthermore, the Chamber highlighted that the Claimant did not
provide any evidence or justification regarding the alleged moral damages she suffered or
its quantification.
d. Costs
34. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
35. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
36. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-16021
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Maritza Jidney Lopez Guerrero, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-16021
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10