Labour Disputes
Texto da decisão
REF FPSD-1834
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Matias Perez Acuña
BY:
Omar Ongaro (Italy), Chairperson
Yuri Zapisotsky (Ukraine), member
Peter Lukášek (Slovakia), member
CLAIMANT / COUNTER-RESPONDENT:
Matias Perez Acuña, Italy
RESPONDENT / COUNTER-CLAIMANT:
Delfin Sporting Club, Ecuador
INTERVENING PARTY:
CA Estudiantes, Argentina
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REF FPSD-1834
I.
Facts
1.
On 7 October 2020, the player and Delfin SC concluded an employment contract valid for one season,
i.e. until the end of the season 2021.
2.
According to clause 3, 4 and 6 of the contract as provided by the player, he was entitled to the following
“TERCERA. - REMUNERACION Y FORMA DE PAGO
SALARIO.- El Club Deportivo Delfin S.C de la Ciudad de Manta, cancelara al Sr. MATIAS PEREZ ACUNA,
la cantidad de $500,00 (QUINIENTOS DOLARES DE ESTADOS UNIDOS DE AMERICA), mensualmente,
netos libres de impuestos
(…)
CUARTA: RAZON DE COMISION EXCEPCIONAL DE PARTICIPACION. –
4.1.- El Club se compromete a cancelar al señor MATIAS PEREZ ACUNA, cantidad de SIETE MIL DOLARES
DE ESTADOS UNIDOS DE NORTEAMERICA (USD 7.000,00), cantidad que sera cancelada por el CLUB
DELFIN SC., los treinta de cada mes, netos libres de impuestos, mientras el jugador se encuentre
prestando sus servicios en calidad de jugador para el Club DELFIN SC, desde cl uno (1) de enero del año
dos mil veinte (2021), por una (1) temporada, hasta el treinta y uno (31) de diciembre de! año dos mil
veintiuno (2021)
(…)
6.2.-EI CLUB otorgara al jugador un derecho de prima condicional bajo !as siguientes condiciones. Al
suscribir el presente contrato se le otorgara un derecho de prima por la cantidad de VEINTE MIL DOLARES
DE LOS ESTADOS UNIDOS DE NORTEAMERICA (USD 20.000,00), pagada de la siguiente forma:
a) al suscribir el contrato se le entregara la cantidad de DIEZ MIL DOLARES DE LOS ESTADOS UNIDOS DE
NORTEAMERICA (USD. 10.000,00);
b) con fecha quince (31) de enero del año dos mil veintiuno (2021) se le entregara la cantidad de DIEZ
MIL DOLARES DE LOS ESTADOS UNIDOS DE NORTEAMERICA (USD. 10.000,00);
En caso de no aprobar los chequeos medicos y fisicos, seran devueltas por el jugador.”
Free translation into English:
"THIRD - REMUNERATION AND FORM OF PAYMENT
SALARY - The Club Deportivo Delfin S.C. of the City of Manta, will pay Mr. MATIAS PEREZ ACUNA, the
amount of $500.00 (FIVE HUNDRED UNITED STATES DOLLARS), monthly, net tax free.
(...)
FOURTH: REASON FOR EXCEPTIONAL COMMISSION OF PARTICIPATION. 4.1.- The Club agrees to pay Mr. MATIAS PEREZ ACUNA, the amount of SEVEN THOUSAND UNITED
STATES DOLLARS (USD 7.000,00), amount to be paid by CLUB DELFIN SC, the thirtieth of each month,
net of taxes, while the player is providing his services as a player for the Club DELFIN SC, from cl one (1)
January of the year two thousand and twenty (2021), for one (1) season, until the thirty-first (31)
December of! year two thousand and twenty-one (2021)
(...)
6.2.-The CLUB will grant the player a conditional bonus right under the following conditions. By signing
this contract will be granted a premium right for the amount of TWENTY THO THOUSAND UNITED
STATES DOLLARS OF THE UNITED STATES OF AMERICA (USD 20,000.00), paid as follows:
a) upon signing the contract, the amount of TEN THOUSAND UNITED STATES DOLLARS (USD. 10,000.00)
shall be paid to him;
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REF FPSD-1834
b) on the fifteenth (31st) day of January of the year two thousand and twenty-one (2021) the amount
of TEN THOUSAND UNITED STATES DOLLARS (USD. 10.000,00) will be delivered;
In case of not passing the medical and physical checks, they will be returned by the player".
3. Said contract included the following signature box:
4. Delfín provided a different version of the contract during the course of the investigation, which is also
available in the TMS.
5. According to the club, said contract was concluded on 27 October 2020. The club argued that this shall
be understood as the only valid contract existing between the parties.
6. According to said contract, the player was entitled to the following:
“TERCERA. - REMUNERACIÓN Y FORMA DE PAGO
SALARIO.- El Club Deportivo Delfín S.C de la Ciudad de Manta, cancelará al Sr. MATÍAS PÉREZ ACUNA,
la cantidad de $500,00 (QUINIENTOS DÓLARES DE ESTADOS UNIDOS DE AMÉRICA), mensualmente,
netos libres de impuestos
(…)
CUARTA: RAZÓN DE COMISIÓN EXCEPCIONAL DE PARTICIPACIÓN. 4.1.- El Club se compromete a cancelar al señor MATÍAS PÉREZ ACUNA, cantidad de QUINIETOS
DÓLARES DE ESTADOS UNIDOS DE NORTEAMÉRICA (USD 500,00), cantidad que será cancelada por el
CLUB DELFIN SC., los treinta de cada mes (…)
SEXTA: ACUERDO CONDICIONAL. –
El CLUB otorgará al jugador el pago de un departamento durante el plazo que dure el presente contrato.”
Free translation into English:
"THIRD - REMUNERATION AND METHOD OF PAYMENT
SALARY - The Club Deportivo Delfín S.C. of the City of Manta, will pay Mr. MATÍAS PÉREZ ACUNA, the
amount of $500.00 (FIVE HUNDRED UNITED STATES DOLLARS), monthly, net, tax free.
(...)
FOURTH: REASON FOR EXCEPTIONAL PARTICIPATION FEE. -
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REF FPSD-1834
4.1.- The Club agrees to pay Mr. MATÍAS PÉREZ ACUNA the amount of FIVE HUNDRED UNITED STATES
DOLLARS (USD 500.00), amount that will be paid by CLUB DELFIN SC. on the thirtieth of each month
(...)
SIXTH: CONDITIONAL AGREEMENT. The CLUB will grant the player the payment of a flat for the duration of this contract.
7. Said version of the contract stipulated the following:
“4.- TERMINACIÓN ANTICIPADA. - Las partes acuerda que el contrato al terminar de manera anticipada
o rescisión del contrato, el jugador señor MATÍAS PÉREZ ACUNA, se obliga a pagar la cantidad
SEISCIENTOS MIL DÓLARES DE LOS ESTADOS UNIDOS DE NORTEAMÉRICA (USD. 600.000,00) al Club
Deportivo Delfín S.C., por terminación anticipada o resección del presente contrato.”
Free translation into English:
"4.- EARLY TERMINATION. - The parties agree that upon early termination or rescission of the contract,
the player Mr. MATÍAS PÉREZ ACUNA, is obliged to pay the amount of SIX HUNDRED THOUSAND UNITED
STATES DOLLARS (USD. 600,000.00) to Club Deportivo Delfín S.C., for early termination or rescission of
the present contract".
8. In addition, the federative version of the contract stipulated the following:
“DÉCIMO CUARTA. - LEYES APLICABLES Y JURISDICCIÓN. RESOLUCIÓN DE CONFLICTOS Y
JURISDICCIÓN. –
Para la interpretación, cumplimiento y ejecución del presente Contrato, las partes se someten a la
jurisdicción y competencia del Cantón Manta. Renunciando expresamente a cualquier otro fuero que
pudiere corresponderles por motivo de sus domicilios presentes o futuros o por cualquier otra causa.
Las partes contratantes acuerdan, además, que toda divergencia, reclamación o duda que surja entre
ellas, referida a la interpretación, ejecución o resolución del presente convenio o cualquier diferencia que
no hubiere sido resuelta amigablemente, será resuelta en única y definitiva instancia mediante Cámara
de Mediación y Resolución de Disputas de la Federación Ecuatoriana de Fútbol o ante Comisión Del
Estatuto Del Jugador De La FEF.
En consecuencia, las partes, renuncian cualquier fuero y se someten a los antes determinados, a cuyo
fallo le reconocen expresamente efectos definitivos, de última instancia e inapelables, salvo lo dispuesto
en los Reglamentos de la FEF, FIFA y Conmebol.”
Free translation into English:
"FOURTEENTH - APPLICABLE LAW AND JURISDICTION. RESOLUTION OF CONFLICTS AND JURISDICTION.
For the interpretation, fulfilment and execution of the present Contract, the parties submit to the
jurisdiction and competence of the Canton of Manta. They expressly waive any other jurisdiction that
may correspond to them by reason of their present or future domiciles or for any other reason.
The contracting parties also agree that any divergence, claim or doubt that may arise between them,
referring to the interpretation, execution or resolution of the present agreement or any difference that
has not been resolved amicably, will be resolved in the sole and final instance by the Mediation and
Dispute Resolution Chamber of the Ecuadorian Football Federation or before the FEF Players' Statute
Commission.
Consequently, the parties waive any jurisdiction and submit themselves to those previously determined,
whose decision they expressly recognise as definitive, final and unappealable, except as provided for in
the Regulations of the FEF, FIFA and CONMEBOL.
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REF FPSD-1834
9. Said version of the contract included the following signature box:
10.
On 25 January 2021, the player sent a default notice indicating the following:
“we have been Informed that Mr. Perez Acuna has been separated from the training sessions without
justification, giving rise to a discriminatory situation which implies a breach of both the employment
contract as well as the FIFA regulations, as he ls prevented from rendering his professional services
alongside his teammates.
On the other hand, the two payments agreed in clause SEXTA – ACUERDO CONDICIONAL, in particular
in point 6.2, amounting to 10,000.-USD each, remain outstanding to date, even though both have fallen
due, specifically on 7 October 2020 (date of signature of the contract) and 15 January 2021,
respectively.”
(…)
it is hereby requested that the pending payments for a total of 20.000.-USD (TWENTY THOUSAND US
DOLARS) are settled, and all this within the next 7 days from receipt of this formaI warning (i.e. on or
before next 1 February 2021).”
11.
On 1 February 2021, the player sent an additional default notice, adding the following and granting 5
days to remedy the default:
“to the already requested debt of 20.000.-USD as per clause SEXTA – ACUERDO CONDICIONAL, an
additional amount of 7.500.-USD net has fallen due and remain outstanding, making the total debt of
27.500.-USD”
12.
On 16 February 2021, the player sent a termination notice via his lawyer with the following contents:
“In the absence of response from your side despite the repeated attempts from us for DELFIN SPORTING
CLUB to pay off their debt and put an end to the unjustified discriminatory treatment towards the player,
Mr. PEREZ ACUNA hereby terminates his employment contract with DELFIN SPORTING CLUB with just
cause and immediate effect.”
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REF FPSD-1834
13.
On 16 February 2021, the player concluded a contract with the Argentinean club, Estudiantes for a
monthly salary ARS 60,000 (approx. USD 600), valid as from the date of signature until 31 December
2021..
14.
On 19 February 2021, the player lodged a claim before FIFA and requested the payment of the following
amounts:
- Outstanding remuneration:
USD 27,500, plus 5% interest p.a. as indicated in the default notice (i.e. remuneration of January
2021 and sign-on fee).
- Compensation;
- USD 82,500, corresponding to the residual value of the contract, from February 2021 until 31
December 2021
- USD 5,000 as legal fees.
15.
According to the player, awhen he joined the team in Ecuador and while he was rendering his services
meeting the professional standards, the club suddenly, without reason and/or explanation, decided to
put him aside, starting a discriminatory treatment which then carried on until the termination of contract.
16.
In addition, the player underlined that the pending amount is equivalent to more than two monthly
salaries.
17.
In its reply to the claim, Delfin objected to the competence of FIFA and referred to clause 14 of the
contract.
18.
In this respect, Delfín argued that the Ecuadorian NDRC, a jurisdictional body established at the national
level and within the framework of the Ecuadorian the framework of the Ecuadorian Football Federation,
fully complies with all the requirements established by the Circular established by Circular Nº 1010 and
the Standard Regulations of the National Dispute Resolution Chamber (NDRC) of the FEF. Dispute
Resolution Chamber (NDRC) of FIFA, as can be seen in the Operating Regulations of the NDRC.
19.
On a subsidiary basis, and as to the substance, Delfín argued that the Player's account of events is
unreliable, includes omissions, misrepresentations and is based on a forged contract. In this respect,
Delfín argued that the alleged contract accompanied by the Claimant was never signed by the
Respondent and that the signature of the Club's president has been forged. Delfín stated that it lodged
a criminal complain in relation to this forgery.
20.
Delfín argued that the only valid contract is the federative one.
21.
Delfín further denied that it has treated the Player in a discriminatory manner and/or that the Claimant
has been excluded from regular training sessions.
22.
As a result, Delfín lodged a counterclaim against the player.
23.
In the opinion of Delfín, the player was in a clear rush to terminate the contract with the Respondent,
travel to Buenos Aires and sign a contract with Club Estudiantes.
24.
In this respect, Delfín requested the payment of USD 600,000 as compensation, as established in art. 10
par. 4 of the contract, plus 5% interest as from 16 February 2021.
25.
Alternatively, Delfín requested to calculate the payment of the due compensation as follows:
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REF FPSD-1834
- The remaining value of the Employment Contract, equivalent to: USD 162,500.This value is composed of
(i) the agreed payments from the date of termination (16 February 2021) until the end of the contract
(31 December 2021): USD 10,500;
ii)
iii) the value of the agreed payments in the event that the Club makes use of the option to purchase
provided for in the fifth clause of the contract: USD 10,500
clause five of the contract: USD 252,000; and
iv) deducting the amount to be paid by the Club to the Player in the event that the option to purchase
was exercised
provided for in clause five of the contract: USD 100,000.
- The cost of the airfare paid to the Intermediary: USD 1,249.02.
- The commission paid to the Intermediary for the recruitment of the Player: USD 10,000.
- The cost of the airfare paid to the Player: USD 2,896.74,
- TOTAL: USD 176,645.76.
26.
Delfín further underlined that the player’s new club, Estudiantes, shall be held jointly and severally liable.
27.
In his replica, the player argued that the Ecuadorian NDRC does not comply with the minimum
requirements concerning the principle of equal representation of players and clubs.
28.
The player noted that members of said NDRC do not represent the players and clubs in parity, nor the
collectives, as they are appointed by the Board of Directors of the Ecuadorian Football Federation
according to Art. 43.f of the statutes of the Ecuadorian Football Federation.
29.
In this regard, the player quoted said article:
“ART. 43.- El Directorio de la Federación tiene las siguientes atribuciones:
(…)
f. Elegir a los miembros de las comisiones y subcomisiones, de acuerdo a lo previsto en este Estatuto,
con excepción a las que correspondan al fútbol aficionado”.
Free translation into English:
"ART. 43.- The Board of Directors of the Federation has the following attributions:
(...)
f. To elect the members of the commissions and sub-commissions, in accordance with the provisions of
this Statute, with the exception of those corresponding to amateur football".
30. The player further noted that the Court of Arbitration for Sport has already ruled on several occasions
on this body, specifically, and among others, in the case CAS2017/A/5102 Fabián Andrés Vargas Rivera
v. Barcelona SC, in which the Panel declared that the bodies in that country are not independent, as they
are appointed by the Board of Directors of the Federation.
31. As to the facts, the player denied any forgery and insisted that he concluded a contract on 7 October
2020.
32. In particular, the player explained that his uncle, Mr Nelson Agoglia, received an email from Delfin on 7
October 2020, in particular Mr Eudaldo Demera Rosado ([email protected]). The player
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REF FPSD-1834
submitted a copy of the original mail in eml. format. Said email, in addition to the attached PDF, included
the following:
“Estimados, con base en, la propuesta remito contrato que contiene cláusula preliminares de
contratación de Matías Pérez, quién prestará sus servicios al CLUB DELFIN SC., para la temporada 2021,
previo a iniciar o integrarse al CLUB, deberá someterse a los chequeos médicos y físicos como condiciones
necesarias para cumplimiento del contrato y de lo acordado.
Considerar que el jugador debe remitir el contrato firmado con la huella estampada y sumillas.
El presente que remito solo será constancia de lo que firmará Matías Pérez, no siendo aceptación del
CLUB, sino el que remita con la huella dactilar estampada.“
Free translation into English:
"Dear, based on the proposal, I submit the contract containing the preliminary clause of contracting
Matías Pérez, who will provide his services to CLUB DELFIN SC. for the 2021 season, prior to starting or
joining the CLUB, he must undergo medical and physical check-ups as necessary conditions for
compliance with the contract and what has been agreed.
Consider that the player must submit the signed contract with the stamped footprint and addenda.
The present that I send will only be a record of what Matias Perez will sign, not being acceptance of the
CLUB, but the one he sends with the stamped fingerprint".
33. The player’s new club, Estudiantes, considered that it bears no liability in relation to the dispute between
the player and the club, but considered, however, that the player was unfairly treated at Delfín. As result,
Estudiantes considered that the player had a just cause to terminate the contract with his former club.
34. Estudiantes further explained that it only heard of the player’s dispute during the second half of February
2021.
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REF FPSD-1834
II. Considerations of the Dispute Resolution Chamber
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. Taking
into account the wording of art. 21 of the January 2021 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules
and emphasised that, in accordance with art.
24
par.
1
in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes with an
international dimension between players and clubs.
3. However, the Chamber took into account the Respondent's objection to FIFA's jurisdiction on the
basis of Art. 14 of the federative version of the contract concluded between the parties. The
Chamber also took note of the position of the Claimant, who in turn insisted on FIFA's jurisdiction.
4. In view of the above, the Chamber then wished to point out that, in accordance with art. 22 letter
b) of the Regulations on the Status and Transfer of Players, it is competent to hear such a case,
unless an independent arbitral tribunal guaranteeing a fair procedure 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 agreement. With regard to the rules imposed on
an independent arbitral tribunal guaranteeing a fair procedure, the Chamber referred to FIFA
Circular no. 1010 dated 20 December 2005. Similarly, the members of the Dispute Resolution
Chamber referred to the principles contained in the Standard Rules of the National Dispute
Resolution Chamber which came into force on 1 January 2008.
5. Returning to the question of the DRC's competence to rule on the present case, the Chamber first
considered it essential to verify whether the employment contract concluded between the parties
to the dispute did indeed contain a jurisdiction clause granting a specific body of the Ecuadorian
Football Federation exclusive competence to rule on the present dispute. In this respect, the
Chamber referred to Art. 14 of the federative version of the contract on the basis of which the
Respondent challenged the jurisdiction of the DRC, which states, inter alia, the following (free
translation from Spanish):
“The contracting parties also agree that any divergence, claim or doubt that may arise between
them, referring to the interpretation, execution or resolution of the present agreement or any
difference that has not been resolved amicably, will be resolved in the sole and final instance by
the Mediation and Dispute Resolution Chamber of the Ecuadorian Football Federation or
before the FEF Players' Status Commission.
Consequently, the parties waive any jurisdiction and submit themselves to those previously
determined, whose decision they expressly recognise as definitive, final and unappealable
except as provided for in the Regulations of the FEF, FIFA and CONMEBOL.”
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REF FPSD-1834
6. In this sense, and after a careful examination of the above-mentioned clause, the Chamber
understood that, indeed, the parties would appear to have agreed on a jurisdiction clause in favor
of the Mediation and Dispute Resolution Chamber of the Ecuadorian Football Federation.
7. However, in this context, the DRC stressed that, in accordance with art 22 b) of the Regulations,
it had to verify whether the said Chamber could be considered as an independent arbitral tribunal
guaranteeing a fair procedure and respecting the principle of equal representation of players and
clubs, established at national level within the framework of the association and/or a collective
agreement.
8. At this stage, the Chamber considered it relevant to recall the content of Art. 12 of the Procedural
Rules, according to which any party who invokes a right on the basis of an alleged fact has the
burden of proof, as well as the evidence is examined with free appreciation, taking into account
the conduct of the parties during the proceedings, in particular the failure to comply with a
personal summons, the refusal to answer questions and the withholding of requested evidence.
9. In this regard, the Chamber observed that the Respondent did not provide any information as to
the composition of the aforementioned body.
10. Consequently, on the basis of the documentation submitted by the club, the Chamber considered
that it could not establish that an independent arbitral tribunal guaranteeing a fair procedure and
respecting the principle of equal representation of players and clubs had been established at
national level within the Ecuadorian Football Federation.
11. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the
Status and Transfer of Players should be applicable to the present matter. In this respect, the
Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players, and considering the date when the claim was
lodged, the January 2021 edition of the aforementioned regulations (hereinafter: the Regulations)
is applicable to the matter at hand.
12. With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the
documents contained in the file. However, the Dispute Resolution Chamber emphasized that in
the following considerations it will refer only to facts, arguments and documentary evidence which
it considered pertinent for the assessment of the matter at hand.
13. In this respect, the Chamber noted that the player and Delfín SC concluded an employment
contract. However, the Chamber observed that the parties disagreed as to which version shall be
deemed as valid: according to the player, a contract dated 7 October 2020 shall be deemed as
the valid one, while the club argued that a version of 27 October 2020 was valid. The Chamber
observed that respective copies of said contracts were obtained during the course of the
investigation.
14. At this stage, the Chamber considered pertinent to recall the contents of art. 12 of the Procedural
Rules, according to which “3. Any party claiming a right on the basis of an alleged fact shall carry
the burden of proof. During the proceedings, the parties shall submit all relevant facts and
evidence of which they are aware at that time, or of which they should have been aware if they
had exercised due care” and “7. Evidence shall be considered with free discretion, taking into
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REF FPSD-1834
account the conduct of the parties during the proceedings, especially a failure to comply with a
personal summons, a refusal to answer questions and the withholding of requested evidence.”
15. In this respect, after duly analysing the information on file, the Chamber concluded that the player
met his burden of proof as to the contract of 7 October. In particular, the Chamber observed that
the player provided a copy of the email in its original (.eml) file format. In this respect, the Chamber
also noted that the contract was sent by Mr Eudaldo Demera, who worked as trustee of the club
(síndico) around September 2020, as it can be confirmed by official sources. The Chamber also
noted that contract was presigned via an inserted signature of the club’s president.
16. In relation to said email, the Chamber also observed that Mr Demera added the following (free
translation from Spanish):
"Dear, based on the proposal, I submit the contract containing the preliminary clause of
contracting Matías Pérez, who will provide his services to CLUB DELFIN SC. for the 2021 season,
prior to starting or joining the CLUB, he must undergo medical and physical check-ups
as necessary conditions for compliance with the contract and what has been agreed. “
17. In this regard, the Chamber noted that the club fully granted its consent to the aforementioned
contract, and only conditioned its validity to undergoing a medical test.
18. However, in relation to said condition, the Chamber referred to the contents of art. 18 par. 4 of
the Regulations, according to which “the validity of a contract may not be made subject to a
successful medical examination and/or the grant of a work permit.”
19. In application of the aforementioned article, the Chamber established that the condition
formulated by the club as to the medical test cannot be deemed as valid.
20. In view of the above, the Chamber unanimously agreed that the parties fully agreed upon the
terms of the contract dated 7 October 2020, and that it therefore shall examine the present matter
in the light of the aforementioned contract.
21. Subsequently, the Chamber noted that the player lodged a claim against the club, arguing that,
on 16 February 2021, he terminated the contract after having put it in default and due to the
existence of an outstanding amount of USD 27,500.
22. In relation to said amount, the Chamber also noted that the club did not provide evidence having
paid it.
23. Consequently, the Chamber established that the club failed to pay the following amounts at the
date of termination of the contract on 16 February 2021, i.e.
- USD 10,000, which was due on 7 October 2020 (first instalment of the sign-on fee), due on 8
October 2021
- USD 10,000, which was due on 15 January 2021 (second instalment of the sign-on fee); 1
February 2021
- USD 7,500, due on in January 2021 (art. 4.1 of the contract, incl. salary of USD 5,000), due
on 16 January 2021
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REF FPSD-1834
24. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution
Chamber established that the Respondent has to pay to the Claimant, the total outstanding
amount of USD 27,500, as agreed in the contract concluded on 7 October 2020.
25. In this respect, and after having established that, at the date of termination of the contract (i.e.
16 February 2021), the club owed to the player the amount of USD 27,500, the Chamber t
pointed out that such amount is equivalent to more than three monthly salaries and concluded
that, as the Respondent failed to pay said remuneration without any valid reason, it could be
established that the Respondent had seriously neglected its contractual obligations towards the
Claimant in a continuous manner and for a significant period of time.
26. In view of the above, and taking into consideration the Chamber’s longstanding jurisprudence in
this respect, the Chamber decided that the Claimant had just cause to unilaterally terminate the
employment contract and that, as a result thereof, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
27. In continuation, having established that the Respondent is to be held liable for the termination of
the contract with just cause by the Claimant, the Chamber decided that, in accordance with art.
17 par. 1 of the Regulations, the club is liable to pay compensation to the player.
28. In this respect, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of 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.
29. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains 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. 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.
30. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the club to the player 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-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be taken into account
at the discretion of the deciding body.
31. The members of the Chamber then turned their attention to the remuneration and other benefits
due to the player under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract in the calculation of the amount of
compensation.
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32. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable
to the player under the terms of the employment contract as from its date of termination with
just cause, i.e. February 2021 until December 2021, and concluded that the Claimant would have
received in total USD 82,500 (i.e. 7,000+500*11]. Consequently, the Chamber concluded that
the amount of USD 82,500 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
33. In continuation, the Chamber verified as to whether the Claimant 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 DRC, 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.
34. In this respect, the Chamber verified that the player subsequently, on 16 February 2021, the player
concluded a contract with the Argentinean club, Estudiantes for a monthly salary ARS 60,000
(approx. USD 600), valid as from the date of signature until 31 December 2021. The Chamber
established that it can be estimated that the player would have earned 10.5*600= USD 6,300
from said contract.
35. Therefore, at this stage, the Chamber established that the mitigated compensation would amount
to USD 76,200 (i.e. USD 82,500-6,300).
36. Furthermore, the Chamber also referred to art. 17 par. 1 ii of the Regulations, according to which
“d subject to the early termination of the contract being due to overdue payables, in addition to
the Mitigated Compensation, the player shall be entitled to an amount corresponding to three
monthly salaries (the “Additional Compensation”). Therefore, the Chamber established that,
given that the aforementioned circumstances are met, the player would be entitled to the
additional amount of USD 22,500 (i.e. 7,500*3).
37. However, the Chamber also referred to the aforementioned provision, according to w which “The
overall compensation may never exceed the rest value of the prematurely terminated contract.”
38. As a result, the Chamber established that the maximum amount it could award as compensation
is USD 82,500, corresponding to the rest value of the prematurely terminated contract.
39. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided to partially accept the player’s claim and that the club
must pay the amount of USD 82,500 as compensation for breach of contract in the case at hand.
40. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a.
over said amount as from the date of claim.
41. Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber
referred to par. 1 and 2 of art. 24bis 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.
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42. In this regard, the Dispute Resolution Chamber pointed out 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 and for the
maximum duration of three entire and consecutive registration periods.
43. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the event
that the Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision, communicates
the relevant bank details to the Respondent, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become effective on the Respondent in accordance with art. 24bis par.
2 and 4 of the Regulations.
44. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.
45. Moreover, as a logical consequence of all of the above, the DRC decided that the counterclaim
of Delfin is rejected.
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REF FPSD-1834
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player, Matias Perez Acuña , is admissible
2.
The claim of the player is partially accepted.
3.
Delfin Sporting Club, has to pay to the player, the following amounts:
- USD 27,500 as outstanding remuneration plus interest as follows:
-
5% interest over the amount of USD 10,000 calculated as from 8 October 2020 until the date of effective payment;
-
5% interest over the amount of USD 10,000 calculated as from 1 February 2021 until the date of effective payment.
-
5% interest over the amount of USD 7,500 calculated as from 16 January 2021 until the date of effective payment.
- USD 82,500 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 19 February 2021.
4.
Any further claims of the player are rejected.
5.
The counterclaim of Delfin Sporting Club is rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
7.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 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. Delfin Sporting Club 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.
8. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
9. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-1834
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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