Labour Disputes
Texto da decisão
REF FPSD-4017
Decision of the
Dispute Resolution Chamber
passed on 10 February 2022
regarding an employment-related dispute concerning the player Jose Eduardo Machado Cordoba
BY:
Frans DE WEGER (The Netherlands), Chairperson
Khalid AWAD ALTHEBITY (Saudi Arabia), member
Stefano SARTORI (Italy), member
CLAIMANT:
José Eduardo Machado Córdoba, Colombia
RESPONDENT:
Moca FC, Dominican Republic
REF FPSD-4017
I Facts
1. According to the information contained in the Transfer Matching System (TMS) (Transfer reference:
406369), the player Jose Eduardo Machado Cordoba, concluded an employment contract with Moca
FC, valid as from 31 July 2021 until 26 September 2021.
2. Following art. 3.1 of the contract, the player was entitled to a monthly salary of USD 1,000.
3. Art. 14 of the contract stipulated the following:
14. Solución de Conflictos. LAS PARTES acuerdan que cualquier disputa que surja con motivo de la
ejecución o con relación al presente Contrato , las mismas serán dilucidadas en primer término por
ante el Tribunal de Arbitraje Deportivo (TAD), y en última instancia ante el Tribunal de Arbitraje
Deportivo también conocido como TAS .
14. Settlement of Disputes. THE PARTIES agree that any dispute arising out of the performance of or
in connection with this Agreement shall be settled in the first instance before the Court of Arbitration
for Sport (CAS), and in the last instance before the Court of Arbitration for Sport also known as CAS.
4. The relevant transfer instruction in TMS, which stated that the player transferred “out of contract”
from Boyacá Chico FC (Colombia) was cancelled.
5. On 9 August 2021, the player, via his legal representative, sent a notice to the club as follows:
“Nuestro cliente nos ha informado que para su asombro en el club Moca FC ya no quieren contar
más con él y que le presentaron una reserva de vuelo para regresarse a Colombia el día de mañana,
10 de Agosto de 2021.
(…)
Por las circunstancias expuestas, les rogamos que integren a nuestro cliente en su equipo de manera
inmediata o – en el caso de que se adhieran a su decisión de rescindir el contrato anticipadamente –
nos presenten una carta de terminación por escrita a nuestro correo electrónico
Free translation into English:
"Our client has informed us that to his astonishment the club Moca FC does not want to count on
him anymore and that he has been presented with a flight reservation to return to Colombia
tomorrow, August 10, 2021.
(...)
Due to the above circumstances, we kindly ask you to integrate our client into your team immediately
or - in case you adhere to your decision to terminate the contract early - to submit a letter of
termination in writing to our e-mail address.
6. On 26 August 2021, the legal representative of the player sent a new default notice asking for a
proposal for compensation for breach of contract, by no later than 6 September 2021.
7. The player informed FIFA that he remained unemployed.
8. Art. 73 of the Statutes of the Dominican FA stipulate the following:
“a) La FEDOFÚTBOL, sus Miembros los jugadores, los oficiales, los agentes de partidos y los agentes
de jugadores no remitirán un conflicto a los Tribunales Ordinarios, a menos que se establezca
expresamente en los presentes Estatutos y en la reglamentación de la FIFA. Por consiguiente,
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cualquier disputa estará suscrita a la jurisdicción de la FEDOFÚTBOL, del Tribunal Arbitral de Deportes
(TAD) y su Reglamento si procede o del Tribunal de Arbitraje Deportivo (TAS) en Lausana, Suiza.
Free translation into English:
"a) FEDOFÚTBOL, its Members, players, officials, match agents and players' agents shall not refer a
dispute to the Ordinary Courts, unless expressly provided for in these Statutes and FIFA regulations.
Accordingly, any dispute shall be subject to the jurisdiction of FEDOFUTBOL, the Court of
Arbitration for Sport (CAS) and its Regulations if applicable or the Court of Arbitration for Sport
(CAS) in Lausanne, Switzerland.
9. In addition, the club provided a copy of the Regulations of the Dominican Court of Arbitration for
Sport which, inter alia, stipulates the following:
3.3.- La Secretaría actuará con total y absoluta independencia de cualquiera de las partes y de
cualquier organismo y para ello desarrollará las siguientes funciones:
(…)
c) Recibir las ternas de árbitros, depositadas por las partes, de las cuales se procederá a escoger un
árbitro de manera aleatoria de cada terna. Esta elección se realizará en frente de las partes o éstas
debidamente convocadas. Los dos árbitros previamente designados, se reunirán y escogerán de
común acuerdo al tercer árbitro quien hará las funciones de Presidente del Tribunal Arbitral. En caso
de pluralidad de partes con un mismo interés, éstas deberán someter, de común acuerdo, una sola
terna.
(…)
3.4.- El Tribunal Arbitral de Deportes estará integrado por:
tres arbitros, donde uno de ellos será el presidente y un secretario para los casos en los que se
celebren audiencias.
Artículo 14.- Recusación de Árbitros
14. 1.- Todo árbitro podrá ser recusado cuando existan circunstancias que den lugar a dudas
justificadas sobre su imparcialidad en la decisión de la controversia sometida al arbitraje luego de la
designación de los árbitros.
Free translation into English:
3.3.- The Secretariat shall act with total and absolute independence from any of the parties and
from any body and to this end shall carry out the following functions:
(...)
c) To receive the shortlists of arbitrators, deposited by the parties, from which one arbitrator shall
be chosen at random from each shortlist. This choice will be made in front of the parties or they will
be duly summoned. The two previously appointed arbitrators shall meet and choose by mutual
agreement the third arbitrator who shall act as Chairman of the Arbitral Tribunal. In the event of a
plurality of parties with the same interest, they shall submit, by mutual agreement, a single list of
three arbitrators.
(...)
3.4 The Sports Arbitration Tribunal shall be composed of:
three arbitrators, one of whom shall be the chairman, and a secretary for cases in which hearings
are held.
Article 14.- Disqualification of Arbitrators
14. Any arbitrator may be challenged when there are circumstances giving rise to justifiable doubts
as to his impartiality in the decision of the dispute submitted to arbitration after the appointment of
the arbitrators.
REF FPSD-4017
10. On 18 October 2021, Jose Eduardo Machado Cordoba lodged a claim before FIFA for breach of
contract without just cause and requested the payment of the following:
- USD 2,000 as compensation for breach of contract;
- USD 6,000 (six salaries of USD 1,000 each) “for the absolutely despicable behaviour of the
Respondent (egregious circumstances),
- 5% interest p.a. on the compensation as from the date of the claim.
11. According to the player, despite repeated enquiries and requests, the Respondent did not hand over a
signed copy of the contract to the Claimant.
12. Following the player, when he arrived at the respondent club in the Dominican Republic on 23 July
2021, he was surprised that the Respondent asked him for a release letter (“el finiquito”) issued by his
Colombian club in order to proceed with his registration at the Dominican Football Federation.
13. The player stated that he explained to the club that his last contract was with a club in Haiti and that,
to his knowledge, the Respondent should therefore request his International Transfer Certificate (ITC)
from the Haitian club and not from his former Colombian club, with whom his employment
relationship had ended more than 30 months earlier.
14. As a consequence, the Claimant considered that, by not properly registering him, the club breached
the employment contract
15. In its reply to the claim, the Respondent contested the competence of FIFA.
16. As to the substance, the Respondent argued that the player failed to present the corresponding
documents (finiquito) for the correct registration in TMS within the reasonable timeframe so that he
could be eligible to to play in the Dominican Football League. In particular, the club argued that the
player did not provide a correct evidence of his last contract.
17. As a result, the Respondent explained that the transfer instruction was cancelled and noted that it
feared to be sanctioned by FIFA in relation to the use of the TMS.
18. In his replica, and as to the competence, the player considered that the national Arbitration Tribunal
of the Dominican Republic does not meet the minimum requirements for independent arbitration
tribunals as set out in the FIFA Regulations on the Status and Transfer of Players (the FIFA Regulations)
as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations which
entered into force on 1 January 2008 (the Standard Regulations).
19. The player considered that the chairman and vice-chairman of the Arbitration Tribunal are not elected
by mutual agreement of the players' and clubs' representatives and the members of the Arbitration
Tribunal do not represent players and clubs.
20. As far as the substance of the club's arguments, the player noted that the club does not contest
having signed a contract with him.
21. In relation to the documents concerning his registration, the player argued that the FIFA Regulations
do not provide for any obligation on the part of the player to submit any documents to the club
intending to register him with a view to his registration.
REF FPSD-4017
22. The player considered that he is not at fault for the failure of the club to register him. He stated that
“unlike the club, he has done everything in his power to be registered with the club.”
23. The player further argued that he correctly informed the club for which he was last registered, namely
Cavaly Association Sportive from Haiti
24. According to the player, if the club had doubts about the player's information on his former club, it
should have inquired with the Haitian club about this fact, as well as the player's status, the end of
his contract and the reason for the termination of the contract.
25. The player noted that such understanding is confirmed by the new the Commentary on the
Regulations on the Status and Transfer of Players (Edition 2021), according which “the club’s
responsibility to register the player on time. If the registration cannot be completed, the player will
not be able to participate in organised football. Therefore, if it fails to act, the club is effectively
blocking the player’s access to competitive football. This is a violation of a footballer’s fundamental
rights, and gives the player concerned a just cause to terminate the contract” (cf. page 115).
26. As final comments, the club stated that it exhausted all procedures to sign and register him.
27. The club stated that it has always wanted to collaborate in the process to register the player.
28. According to the club, the information available in TMS expressed that it invested all the time
necessary for the registration of the player.
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II 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 18 October 2021 and submitted for decision
on 10 February 2022. Taking into account the wording of art. 34 of the October 2021 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 (August 2021 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 Dominican club.
3. In this respect, the Chamber noted, however, that the Respondent contested the competence
of FIFA, noting that the matter shall be referred to the Arbitration Tribunal of the Dominican
Republic.
4. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as
the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been established at national
level within the framework of the Association and/or a collective bargaining agreement. With regard
to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings,
the Chamber referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the
Chamber further referred to the principles contained in the FIFA National Dispute Resolution
Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
5. In this respect, and after observing the evidence provided by the parties, the Chamber noted that the
Respondent did not provide any evidence on the effective and actual composition of the
aforementioned body, or that said body effectively guarantees fair proceedings and respects the
principle of equal representation of players and clubs.
6. In view of the above, the Chamber arrived to the conclusion that, from the evidence on file that was
gathered within the course of the present investigation, it cannot be established that the
aforementioned body respects the principle of equal representation of players and clubs.
7. In view 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
REF FPSD-4017
is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
8. 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 (August 2021 edition), and considering that
the present claim was lodged on 18 October 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
9. 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
10. 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.
i.
Main legal discussion and considerations
11. As to the substance, the Chamber first confirmed that, according to the information contained
in the Transfer Matching System (TMS) (Transfer reference: 406369), the player Jose Eduardo
Machado Cordoba concluded an employment contract with Moca FC, valid as from 31 July
2021 until 26 September 2021 (i.e. roughly two months).
12. Subsequently, the Chamber noted that the player lodged a claim for breach of contract without
just cause.
13. On the other hand, the Chamber took note of the Respondent’s position, according to which the
player failed to present the corresponding documents (finiquito) for the correct registration in TMS
within the reasonable timeframe so that he could be eligible to play in the Dominican Football
League.
14. In view of the above, the Chamber noted that, de facto, the contract between the parties was
apparently not executed.
REF FPSD-4017
15. In this context, the Chamber reminded the parties that, in line with the contents of art. 18 par.
4 of the Regulations, as well as the jurisprudence of FIFA, the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities, such as, but not
limited to, the registration procedure in connection with the international transfer of a player,
which are of the sole responsibility of a club and upon which a player has no influence. As the
club is supposedly interested in acquiring the rights of the player and in benefiting from his
services, it is also expected to act accordingly and execute the administrative formalities in view
of obtaining, for instance, the player’s ITC and his subsequent registration with the engaging
FA. Consequently, the registration or not of the contract is irrelevant in determining if the
contract was a valid and binding document.
16. Based on the foregoing, the Chamber rejected the Respondent’s objection to the validity of the
employment contract and determined that the latter is valid and biding for the parties.
17. The foregoing being established, the Chamber considered that the Respondent shall be held
liable for the non-execution of the contract and that the Claimant is entitled to compensation.
ii.
Consequences
18. Having stated the above, the members of the Chamber turned its attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
19. The Chamber then 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.
20. In application of the relevant provision, the Chamber held that it first of all had to clarify 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.
21. 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.
22. As a consequence, the Chamber determined that the amount of compensation payable by the
Claimant to the Respondent 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-
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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 Chamber proceeded with
the calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Chamber concluded that the amount of USD 2,000 (i.e. 1,000*2) serves as
the basis for the determination of the amount of compensation for breach of contract.
24. In continuation, the Chamber verified 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 Chamber 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 respect, the Chamber noted that the player remained unemployed since the unilateral
termination of the contract.
26. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the
player did not sign any new contract following the termination of his previous contract, as a
general rule, the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
27. In this respect, the Chamber decided to award the player compensation for breach of contract
in the amount of USD 2,000, corresponding to the residual value of the contract.
28. 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 the date of the claim until the date of effective payment.
iii.
Compliance with monetary decisions
29. 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.
30. 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.
31. 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
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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.
32. 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.
33. 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
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.
REF FPSD-4017
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jose Eduardo Machado Cordoba, is admissible.
2.
The Respondent, Moca FC, has to pay to the Claimant, the amount of USD 2,000 as
compensation for breach of contract without just cause plus 5% interest p.a. as from 18
October 2021 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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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