Labour Disputes
Texto da decisão
REF. FPSD-15649
Decision of the
Dispute Resolution Chamber
passed on 16 January 2025
regarding an employment-related dispute concerning the
player Patricio Leonardo Núñez
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), Member
Michele COLUCCI (Italy), Member
CLAIMANT:
Patricio Leonardo Núñez, Argentina
Represented by Eduardo Alberto Martins
RESPONDENT:
Kalamata FC, Greece
pg. 2
REF. FPSD-15649
I. Facts of the case
1.
On 1 January 2024, the Argentinian player Patricio Leonardo Núñez (hereinafter, the
Claimant or the Player) and the Argentinian Club Deportivo Morón (hereinafter, CD Morón)
concluded an employment contract valid as from 1 January 2024 until 31 December 2025.
2.
On 5 June 2024, the Greek club Kalamata FC (hereinafter, the Respondent or the Club), sent
to CD Morón the so-called “Private Agreement – Loan Proposal” (hereinafter, the Proposal)
for the loan of the Player.
3.
Pursuant to the Proposal sent by the Respondent to CD Morón:
“Proposal:
• Loan of the player from 15/07/2024 until 30/06/2025 for 15.000 USD net.
• Option to buy the 90% of the rights of the player until 15/07/2025 for 250.000 USD net.
Football player salary & bonus:
Salary: 4.500 USD per month.
Bonus: Car.
1 round trip for the player and his wife.
500 USD for rent”.
4.
Also on 5 June 2024, the agent of the Player, Mr Nicolás Lucio, shared the Proposal with the
Player via WhatsApp. The Player signed the Proposal.
5.
On 10 June 2024, CD Morón, the Claimant and the Respondent concluded a loan agreement
(hereinafter, the Loan Agreement) pursuant to which they agreed on the Player’s transfer
on loan from CD Morón to the Respondent as from 25 July 2024 until 30 June 2025.
6.
Pursuant to Clause 1 of the Loan Agreement,:
“This agreement sets out the entire agreement between the parties and supersedes all prior
discussions, statements, representations and undertakings between them”.
7.
In accordance with Clause 2 of the Loan Agreement:
“[The Respondent] will not pay [CD Morón] for the loan of the Player until 30 June 2025”.
pg. 3
REF. FPSD-15649
8.
Moreover, Clause 3 of the Loan Agreement provided as follows:
“According to this loan agreement, [the Respondent] is responsible for paying the full salary of
the Player during the loan period from 25 July 2024 to 30 June 2025”.
9.
Pursuant to Clause 9 of the Loan Agreement:
“The validity of the present agreement is subject to:
The Player successfully undergoing the relevant medical examination at [the Respondent’s]
medical department discretion.
The Player entering into a sport employment agreement with [the Respondent]”.
10. On 12 June 2024, CD Morón sent the Loan Agreement to the Respondent via email,
informing the latter as follows:
“Sending the loan agreement signed by president and secretary. We await the travel date of the
player Patricio Nuñez”.
11. On 23 July 2024, CD Morón sent another email to the Respondent informing that:
“Good evening, attached transfer order of [the Player]. The loan signed by both clubs has been
correctly charged and we are awaiting the opposite order from [the Respondent]. Greetings”.
12. On 6 August 2024, CD Morón put the Respondent in default, requesting it to finalize the
transfer instruction in the Transfer Matching System (TMS) by uploading the Loan
Agreement.
13. Also on 6 August 2024, the Player put the Respondent in default, requesting the flight
tickets to travel to Greece, as well as the day, time and place for his medical examination.
14. On 9 August 2024, CD Morón terminated the Loan Agreement in the absence of reply from
the Respondent.
15. Also on 9 August 2024, the Player terminated the alleged employment contract with the
Respondent.
pg. 4
REF. FPSD-15649
II. Proceedings before FIFA
16. On 19 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
17. According to the Player, he concluded a valid and binding employment contract with the
Respondent by means of the Proposal and the Loan Agreement, which should be analysed
in conjunction. In this respect, the Player argued that both contracts include the essentialia
negotii of an employment contract. Furthermore, the Player sustained that the Loan
Agreement did not supersede the Proposal, but rather that the former complemented the
latter.
18. The Player also argued that the first condition provided in the Loan Agreement for its
validity (i.e., the medical examination) was fulfilled, as on 6 August 2024 he made himself
available to the Respondent and requested the relevant instructions to undertake the
medical examination. According to the Player, if this condition depends on the Respondent,
it would be of a potestative nature, as the employment relationship would be subject to
the will of the Club. The Player added that, according to the jurisprudence of the Chamber,
these type of clauses are not valid.
19. Moreover, the Player sustained that the other condition (i.e., signature of an employment
contract) was also fulfilled by means of the Proposal in conjunction with the Loan
Agreement.
20. The Player argued that in the absence of reply from the Respondent, he terminated the
employment contract with just cause, and claimed being entitled to USD 60,000 as
compensation for breach of contract, i.e., USD 54,000 corresponding to the residual value
of the Proposal, and USD 6,000 corresponding to rent allowance pursuant to the Proposal.
21. The Player requested the following relief:
“Por lo tanto, solicitamos:
1. Se tenga por presentada la presente demanda conforme la representación invocada.
2. Se tenga por iniciada demanda en tiempo y forma, y por ofrecida prueba.
3. Se produzca la prueba ofrecida.
4. Se haga lugar a la demanda, con costas a la demandada”.
Free translation of the Player’s request for relief:
pg. 5
REF. FPSD-15649
“Therefore, we request:
1. That this claim be deemed to have been lodged in accordance with the representation
invoked.
2. That the claim be deemed to have been initiated in time and that the evidence be offered.
3. That the evidence presented be admitted.
4. That the claim be upheld, with costs to be imposed on the Respondent”.
b. Position of the Respondent
22. On 20 August 2024, the FIFA General Secretariat notified the claim to the Respondent, and
invited it to provide its position on the claim by no later than 9 September 2024.
23. On 9 September 2024, the Respondent requested an extension of the aforementioned
deadline.
24. Also on 9 September 2024, the FIFA General Secretariat granted the Respondent an
extension to provide its position on the claim until 19 September 2024 in accordance with
art. 11 par. 6 of the Procedural Rules Governing the Football Tribunal (hereinafter, the
Procedural Rules).
25. On 19 September 2024, the Respondent informed that an agreement had been reached
with the Player, and that “The side of the player will respond affirmatively to our request”. In
addition, the Respondent requested an additional extension of five days in order to
prepare the relevant agreement.
26. On 25 September 2025, the FIFA General Secretariat invited the Player to confirm if the
parties had reached an amicable solution to the dispute.
27. On 30 September 2024, the Player informed that there was no agreement between the
parties.
28. Also on 30 September 2024, the FIFA General Secretariat acknowledged receipt of the
aforementioned correspondence from the parties, and informed them that the submission
phase of the proceedings was closed.
pg. 6
REF. FPSD-15649
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. First of all, the Dispute Resolution Chamber (hereinafter, the Chamber or the 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 19 August 2024 and submitted for decision
on 16 January 2025. Taking into account the wording of art. 34 of the January 2025 edition
of the Procedural Rules, the aforementioned edition of the Procedural Rules is applicable
to the matter at hand.
30. 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 January
2025 edition of the Regulations on the Status and Transfer of Players (hereinafter, the
Regulations), the DRC is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Argentinian
player and a Greek club.
31. 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. 29 of the
Regulations (January 2025 edition), the January 2025 edition of said Regulations is
applicable to the matter at hand as to the substance.
b. Burden of proof
32. 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 TMS.
c. Merits of the dispute
33. 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. 7
REF. FPSD-15649
i. Main legal discussion and considerations
34. The Chamber then moved to the substance of the matter and took note of the fact that it
concerned a claim by a player against a club concerning the alleged existence of an
employment contract between the parties, its purported termination and the
consequences thereof.
35. The DRC noted that, according to the Player, he entered into a valid and binding
employment contract with the Respondent by means of the Proposal and the Loan
Agreement, which should be analysed in conjunction. In this regard, the Player sustained
that the essentialia negotii of an employment contract can be inferred from the
aforementioned documents. In addition, the Player argued that he had just cause to
unilaterally terminate the alleged employment relationship with the Respondent after the
latter failed to provide him with the relevant details for his medical examination and,
ultimately, failed to enter the transfer instruction on TMS.
36. The Chamber also noted that, although the Respondent participated in the present
proceedings by requesting an extension of the deadline and by informing about an alleged
agreement reached with the Claimant (which was ultimately denied by him), it failed to
provide its position on the claim, despite having been invited to do so and despite having
been granted an extension of the deadline.
37. The DRC therefore concluded that the decision will be made based on the documents and
arguments on file (cf. art. 21 par. 1 of the Procedural Rules).
38. In this context, the Chamber acknowledged that it its primary task was to assess whether,
as argued by the Player, the parties had entered into a valid and binding employment
contract, as only in such a case could a potential breach of contract have occurred.
39. For the analysis of this main question, the DRC initially referred to art. 13 par. 5 of the
Procedural Rules, which provides that a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Accordingly, the Chamber concluded that it
was up to the Player to prove that the employment relationship, on the basis of which he
claimed compensation for breach of contract from the Respondent, indeed existed.
40. With the above in mind, the Chamber started its analysis by recalling its well-established
jurisprudence in accordance with which in order for an employment contract to be
considered valid and binding, in addition to the consent of the employer and the employee,
it must contain the essential elements (essentialia negotii) of an employment contract, i.e.,
the parties to the contract and their function, the duration of the employment relationship
and the remuneration to be paid by the employer to the employee.
pg. 8
REF. FPSD-15649
41. In this context, the DRC went on to examine the evidence presented by the Player, and
noted that on 5 June 2024, the Respondent sent the Proposal to CD Morón, in which the
former proposed to the latter the Player’s transfer on loan until 30 June 2025 and in
exchange for USD 15,000 net, as well as an option to acquire 90% of the Player’s economic
rights by means of a definitive transfer for USD 250,000 net. The Chamber also noted that
the Proposal included the Player’s name and a proposed monthly salary of USD 4,500 plus
other fringe benefits. Furthermore, the DRC took note that, even though the Player signed
the relevant document, the Proposal was not addressed to the Player, but actually to CD
Morón.
42. The DRC also noted that, on 10 June 2024, CD Morón, the Claimant and the Respondent
concluded the Loan Agreement, in accordance with which the parties agreed on the loan
of the Player from CD Morón to the Respondent until 30 June 2025, free of payment and
with an option for the latter to permanently transfer the Player for USD 250,000.
43. The Chamber deemed that the first conclusion that follows from the aforementioned two
documents is that the Claimant and the Respondent did not conclude an employment
agreement as an autonomous and/or independent contract.
44. Nonetheless, the Chamber noted that, according to the Player, the essentialia negotii of an
employment contract could be inferred from the Proposal and the Loan Agreement in
conjunction.
45. In this respect, the DRC noted that, in accordance with the Loan Agreement, “This agreement
sets out the entire agreement between the parties and supersedes all prior discussions,
statements, representations and undertakings between them”. Based on the clear and
unambiguous wording of the foregoing provision, the Chamber ruled that the Proposal and
the Loan Agreement cannot be analysed in conjunction, as the Proposal was clearly
superseded by the Loan Agreement, to which the Player is a party.
46. For the sake of completeness and without prejudice to the foregoing, the Chamber also
recalled that the Proposal was not addressed to the Player, but only to CD Morón. In
addition, said Proposal did not even include a designated space for the Player to insert his
signature. Accordingly, the Chamber considered that such document was not an
agreement involving the Player, and that therefore cannot be considered as (part of) an
employment contract.
47. Based on the above, the Chamber concluded that the assessment as to whether the parties
had entered into an employment relationship had to be made on the basis of the Loan
Agreement.
48. In this respect, the DRC referred to art. 10 par. 1 of the Regulations, which establishes that
“A professional may be loaned for a predetermined period by their club (“former club”) to
pg. 9
REF. FPSD-15649
another club (“new club”) on the basis of a written agreement. The following rules apply to the
loans of professionals: a) The clubs shall conclude a written agreement defining the terms of the
loan (“loan agreement”), in particular, its duration and financial conditions. The professional
may also be a party to the loan agreement; b) The professional and the new club shall sign a
contract covering the duration of the loan. This contract shall acknowledge that the professional
is on loan”.
49. Furthermore, the Chamber also referred to the Commentary to art. 10 of the Regulations,
which clarifies that “(…) a written employment contract between the player and the club they
are joining on loan is required even if the player has co-signed the loan agreement, unless the
loan agreement incorporates all the essential terms of the relationship between the player and
their temporary new club” (cf. p. 95 of the Commentary).
50. The DRC noted that it follows from the above that a loan agreement can be considered as
an employment contract provided that the central elements of an employment relationship
(i.e., the essentialia negotii) are included.
51. With the above in mind, the Chamber went to analyse whether the Loan Agreement
contained the essential elements of an employment contract, and noted that it included
the parties to the alleged employment contract and their role (i.e., the Claimant and the
Respondent), as well as the duration.
52. As to the remuneration, the Chamber observed that the Loan Agreement merely provided
that “According to this loan agreement, [the Respondent] is responsible for paying the full
salary to the Player during the loan period from 25 of July, 2024 to 30 of June, 2025”, without
any other indication and/or specification. The Chamber therefore found that the Loan
Agreement did not foresee the salary of the Player.
53. In light of the foregoing, and in particular the absence of one of the essential elements of
an employment contract, the DRC decided that the Loan Agreement could not be
considered as a valid and binding employment contract between the Claimant and the
Respondent. Accordingly, the Chamber ruled that the parties did not enter into an
employment relationship and there was no employment contract between the Claimant
and the Respondent, from which it follows that no breach of contract could have occurred.
54. In addition, the Chamber considered it appropriate to remark that, in accordance with the
well-established jurisprudence of the Players’ Status Chamber and the Court of Arbitration
for Sport (CAS), and contrary to the Player’s allegations, the conditions precedent to which
the Loan Agreement was subject, i.e., the Player’s (i) passing a medical examination and (ii)
signing an employment contract with the Respondent, are not only perfectly valid and do
not imply a potestative clause in favour of the Respondent, but, most importantly, confirm
the above considerations in the sense that the Loan Agreement was not an employment
contract between the Claimant and the Respondent, but only an agreement for the Player’s
transfer on loan from CD Morón to the Respondent.
pg. 10
REF. FPSD-15649
55. Based on the foregoing considerations, the Chamber concluded that the Player did not
meet his burden of proof in demonstrating that an employment contract was ever
concluded with the Respondent. Therefore, the DRC decided to reject the claim of the
Player and his entitlement to compensation for breach of contract or any other concept
and amount.
d. Costs
56. 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.
57. 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.
58. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-15649
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Patricio Leonardo Núñez, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-15649
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. 13