Labour Disputes
Texto da decisão
REF FPSD-6531
Decision of the
Dispute Resolution Chamber
passed on 8 December 2022
regarding an employment-related dispute concerning
the player Edarlyn Reyes Ureña
BY:
Livia Silvia Kägi (Brazil), Chairperson
Michele Colucci (Italy), member
José Luis Andrade (Portugal), member
CLAIMANT:
CD Real Santa Cruz, Bolivia
Represented by Bichara e Motta Advogados
RESPONDENT 1:
Mr Edarlyn Reyes Ureña, Dominican Republic
Represented by Ariel N. Reck
RESPONDENT 2:
Emirates, UAE
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REF FPSD-6531
I. Facts of the case
1.
On 11 January 2021, the Bolivian club, CD Real Santa Cruz (hereinafter: the club or the
Claimant) and the Dominican player, Darlyn Reyes Ureña (hereinafter: the player or the
First Respondent ) concluded an employment contract (hereinafter: the contract), valid as
from 15 January 2021 until 31 December 2021. The player’s signature that is stamped on
the contract is the following:
2.
According to clause 5 of the contract, the club undertook to pay to the player, inter alia, a
fixed yearly remuneration of USD 36,000 divided in 12 monthly salaries of USD 3,000 each
and payable by the 20th day of the subsequent month.
3.
In accordance with clause 10 lit. f) of the contract, the club would be entitled to unilaterally
terminate the contract with just cause, should the player be absent during more than 3
days without the club having approved it in writing.
4.
Under clause 15 of the contract, the parties agreed on a buy-out clause amounting to USD
30,000, i.e. should the player wish to prematurely terminate the contract in order to sign
a new contract with another club, the player would need to pay to the club the
aforementioned amount.
5.
On the same date, 11 January 2021, the parties allegedly concluded an Annexe to the
contract (hereinafter: Annexe A), increasing the value of the buy-out from USD 30,000 to
USD 150,000 and extending the term of the contract until 31 December 2023. The player’s
signature that is stamped on the contract is the following:
6.
On 26 January 2021, the parties allegedly signed another document (hereinafter: Annexe
B) – whereby the parties agreed on the player receiving:
-
A bonus of USD 20,000 should the club qualify for Copa Libertadores de América I
and II; as well as a bonus of USD 10,000 should the club qualify for Copa Pre
Libertadores de América y Copa Sudamericana;
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-
A salary of USD 4,000 per month as from 1 January 2022.
7.
The alleged player’s signature on Annexe B is the following:
8.
On 1 February 2021, the parties concluded another contract to be registered in front of
the Bolivian FA (hereinafter: FBF), valid as from 1 January until 31 December 2021
(hereinafter: the federative contract), according to which the club undertook, inter alia, to
pay the player a remuneration of USD 3,000 per month. The player’s signature that
appears on the said contract is the following:
9.
Clause 11 of the federative contract states that the parties neither should nor can modify
the terms of the federative contract, which is the only contract, which is a condition for
the FBF to register the federative contract.
10. On 27 July 2021, the parties allegedly concluded a third Annexe to the contract
(hereinafter: Annexe C), whereby the said parties allegedly agreed on increasing the
player’s contractual income (the said document is not signed).
11. According to the information displayed in TMS, the contract’s term (inserted in TMS on 12
March 2021) is the following: from 15 January 2021 to 31 December 2023:
12. On 27 November 2021, the club received an offer from the Spanish club, Albacete
Balompié, which was interested in signing the player against payment of a transfer
compensation of USD 120,000.
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13. On 4 January 2022, the FBF informed the club that it had received an International
Transfer Certificate (ITC) request from the Emirati club, Emirates (hereinafter: Emirates,
the new club or the Second Respondent) concerning the player; which was reiterated on
12 January 2022.
14. Thereto -on 6 January 2022-, the club opposed and rejected the transfer of the player’s
ITC, informing Emirates that the player was still under contract with the club.
15. According to the information displayed in TMS concerning the transfer of the player from
the Claimant to Emirates, there is no ITC rejection uploaded by the FBF, the latter failing
to provide any response within the regulatory deadline of 7 days:
16. On 31 January 2022, the player was announced as a new player of Emirates and the player
played his first official match with the said club on 6 February 2022.
17. By means of its letter dated 8 March 2022, the club put the player and Emirates in default,
arguing that the player had terminated the contract without just cause and that both -the
player and Emirates- are liable for the player’s breach of contract.
18. On 1 January 2022, the player and Emirates concluded a contract (hereinafter: the new
contract), valid as from the date of its signature until 30 June 2022 whereby Emirates
undertook to pay to the player a total fixed remuneration of EUR 280,000 net (equal to
USD 295,000).
II. Proceedings before FIFA
a. Position of the Claimant
19. On 27 June 2022, the club lodged a claim against the player and Emirates before FIFA,
requesting to be awarded compensation for breach of contract in an amount equal to the
average between the value of the player’s new contract and the residual value of the
contract during the overlapping period in an amount no lower than USD 150,000 (cf.
clause 15 of Annexe A), plus 5% interest per annum.
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20. As other indicators, the club -while referring to the positive interest doctrine- argued that
the player’s market value was at least the one of the offer that the club received from
Albacete Balompié, i.e. USD 120,000 and that, according to the website Transfermarkt,
the player’s value is EUR 650,000.
21. In its claim, the club held that it is “clear that when an overlapping contract was signed
between the Player and [Emirates], the Employment Contract with the Claimant came to an
end, exclusively due to the unjustified breach of the Player”.
22. In this context, the club further argued that “by playing for the Second Respondent without
the authorization of the Claimant, as well as by signing a contract with the Second Respondent
and receiving compensation for such, the Player was in clear and manifest breach of the
abovementioned provisions of the Employment Contract”.
23. What is more, along with its claim, the Claimant provided a video where the player
appears in a tv program that was filmed at least 6 months after the conclusion of the
contract signed on 11 January 2022 (which is after the date on which the federative
contract was signed, i.e. the federative contract was concluded on 1 February 2021), the
player acknowledging that, thereafter, he decided to sign with a club that would pay him
more and that he would leave the Claimant in January 2022.
b. Position of the First Respondent
24. In his reply, the player argued that he only signed the contract and not Annexe 1. In this
respect, the player held that the club forged the player’s signature on Annexe 1. In this
context, the player wished to point out that -even to a layman- the signatures are
completely different and it is clear that the club has forged the player’s signature in bad
faith.
25. In addition, the player maintains that the contract that was registered with the FBF was
the federative contract (with a duration until 31 December 2021) and not any of the
Annexes provided by the club and that clause 11 thereof is clear when establishing that
the federative contract is the only contract that would regulate the contractual
relationship between the parties.
26. In addition, the player alleged that the federative contract is the last contract entered into
between the parties, since it was concluded on 1 February 2021, whereas the contract
and the Annexes would have been concluded -quad non- in January 2021. In this context,
the player argued that, in any case, the federative contract superseded any previous
contractual obligations.
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27. The above being said, the player held that the federative contract (which matches the
content of the contract) being the only legit contract that bound the parties and it having
come to an end on 31 December 2021, the claim of the Claimant needs to be rejected,
since the contract naturally expired and no breach of contract ever occurred upon the
player signing a new contract with Emirates in January 2022.
28. In connection with the video presented by the Claimant, the player argued that it has no
legal validity and that the allegations of the player that are contained therein are not
matching the content of Exhibits A and B provided by the Claimant, which signatures the
player challenges once again, reason why the said comments should -in any case- be
disregarded.
c. Position of the Second Respondent or the Respondent club
29. Despite having been invited to reply to the claim of the Claimant, Emirates failed to reply
to the claim within the deadline that it was granted to do so and, upon being invited to
provide comments as to the video presented by the Claimant, the Respondent failed to
do so and provided its reply to the claim submitted by the Claimant, which cannot be
taken into consideration in accordance with art. 11 para. 4 of the Procedural Rules.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 27 June 2022 and submitted
for decision on 8 December 2022. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that, in accordance with art. 23 par. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players October 2022 edition), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Bolivian club, a Dominican player and an Emirati club.
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3.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition)
and considering that the present claim was lodged on 27 June 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
c. Merits of the dispute
5.
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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter and recalled that the Claimant is requesting the player and Emirates be
condemned to pay compensation for breach of contract, following the alleged breach of
contract committed by the player when signing a new contract with Emirates on 1 January
2022.
7.
In this regard, the Chamber noted that the Claimant requested the compensation to
amount to the average of the residual value of the contract and the value of the player’s
new contract during the overlapping period and, subsidiary, the club requested the
compensation be equal to the buy-out allegedly agreed on by the parties under Annexe
A, i.e. USD 150,000.
8.
In this context, the Chamber observed that, on its part, the player argued that the
Annexes provided by the club contained forged signatures, since he never signed them.
In addition, arguing that the last binding contract concluded between the parties is the
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federative contract (concluded on 1 February 2021), the player requested the claim of the
club be rejected, since he was no longer contractually engaged with the Claimant when
he signed a new contract with Emirates, considering that -as per the federative contractthe contractual relationship with the Claimant ended on 31 December 2021 and that he
only signed a new contract with Emirates on 1 January 2022.
9.
The above being explained, the DRC wished to point out to the main allegations that had
been put forward by the parties:
Key elements in favour of the Claimant’s allegations:
-
The Claimant provided signed copies of the 4 signed documents (contract, Annexes
A, B and federative contract);
-
According to the information contained in TMS, the contract’s duration is from 1
January 2021 until 31 December 2023, information that cannot be modified once it
is entered into the system, i.e. when the transfer was inserted in TMS on 12 March
2021 it was stated that the contract would last until 31 December 2023;
-
The Claimant provided evidence of having presented its comments as to the
rejection of the transfer of the player’s ITC from the FBF to the UAEFA in front of the
FBF, on 6 January 2022;
-
The Respondent player appears on a video confirming that he would leave the club
of the Claimant in January 2022 in order to sign a new contract with a new club,
whereby he would receive a higher income.
Key elements in favour of the player’s allegations:
-
The transfer instruction was entered in TMS on 12 March 2021, at a time where the
parties had allegedly already concluded Annexes A and B and, however, the only
copy of the contract that was uploaded into TMS was the federative contract, i.e. the
contract foreseeing a duration until 31 December 2021;
-
Despite the club’s document, presented in front of the FBF on 6 January 2022 whereby the Claimant opposed to the transfer of the player’s ITC to the UAEFA-,
according to the information contained in the relevant transfer instruction, no
formal ITC rejection was entered into TMS;
-
It is undisputed that the latest document entered into between the parties was the
federative contract, concluded on 1 February 2021, which clause 11 states that it is
the only contract that applies to the contractual relationship entered into between
the parties.
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10. After having analysed the evidence submitted by the parties, as well as the argumentation
wielded by them, the Chamber underscored that, despite the numerous contracts on file
holding different considerations as to the duration of the contractual relationship and the
player’s remuneration – contracts whose signatures are being challenged by the player –
and the contradiction between to the pacific conduct of the Claimant and its opposition
to the transfer of the player to the Second Respondent, appreciated due to what the
Chamber referred to as administrative undertakings (rejection of the transfer of the
player to Emirates before the FBF and the lack of rejection of the player’s ITC before FIFA),
the Chamber determined that the video presented by the Claimant has a significant
weight in the clearance of the factual situation surrounding the contractual relationship
entered into between the Claimant and the First Respondent.
11. In this respect, the Chamber recalled that the said video displays the player, speaking
during an interview filmed at least 6 months after the conclusion of the contract of 11
January 2022 (which is after the date on which the federative contract was signed, insofar
as the federative contract was concluded on 1 February 2021) and that the player, in the
said interview, acknowledges that he decided to sign with another club (Emirates, in casu)
that would pay him more than what the Claimant was paying him and that, on those
grounds, he would leave the club of the Claimant in January 2022, as he finally did.
12. In view of the above, the members of the Chamber decided that, by acknowledging the
aforementioned, the player himself implicitly acknowledged having entered into Annexes
A and B, which provided for a contractual duration until 31 December 2023, which also
matches the information inserted by the parties in the Transfer Matching System upon
the conclusion of the contractual relationship (see point 11 supra). Thus, the DRC
determined that the player did terminate the contract without just cause on 1 January
2022, date on which the player signed the new contract while being under contract with
the Claimant.
ii. Consequences
13. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
14. Having stated the above, the Chamber 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
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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.
15. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to 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. 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 as the buy-out clauses contained in the contract and in
Annexe A do not hold the nature of a liquidated damages clause and, consequently,
cannot be applied for the calculation of the compensation due to the Claimant.
16. 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 in combination with the
jurisprudence of the Chamber. The DRC recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
17. 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 Claimant under the terms of the contract
and annexes from the date of its unilateral termination until 30 June 2022, i.e. during the
overlapping period of the contract (and its annexes) and the player’s new contract.
Consequently, the Chamber concluded that the amount of USD 20,000 (remuneration
due to the player as per the contract in combination with Annexe B between January 2022
and June 2022) serves as the basis for the determination of the amount of compensation
for breach of contract as per the contract and its annexes.
18. In continuation, the Chamber verified that the player’s new contract, which was valid as
from January 2022 until June 2022, states that the player’s total fixed remuneration
amounts to USD 295,000.
19. Therefore, according to the constant practice of the DRC, the Chamber underscored that
the compensation for breach of contract due to the Claimant shall amount to the average
between the residual value of the contract (and its annexes, in casu) and the player’s new
contract during the overlapping period.
20. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the First Respondent must pay
to the Claimant the amount of USD 157,500 (i.e. USD 20,000 plus USD 295,000 divided by
2), which was considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
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21. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 27 June 2022 until the date of effective payment.
22. Equally, the Chamber referred to art. 17 para. 2 of the Regulations and held that Emirates
shall be jointly and severally liable for the payment of the amounts due by the player to
the Claimant as compensation for breach of contract.
23. Lastly, the DRC wished to stress that no sporting sanctions should be imposed on neither
the First Respondent nor the Second Respondent. In this respect, the Chamber explained
that, on the basis of the circumstantial evidence, it has been determined that the contract
was in force until 2023, but in view of the numerous contracts concluded between the
parties and the allegations exchanged between them, which created an excessive
confusion as to which contract was in force, the Chamber decided to exclude the
imposition of sporting sanction in the understanding that the chain of events was not
motivated by any bad faith of the parties.
iii. Compliance with monetary decisions
24. 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.
25. In this regard, the DRC highlighted that, against players, the failure to pay the relevant
amounts in due time shall consist of a restriction on playing in official matches up until
the due amounts are paid. The overall maximum duration of the restriction shall be of up
to six months on playing in official matches.
26. Equally, the Chamber recalled 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.
27. Therefore, bearing in mind the above, the DRC decided that the First Respondent and or
the Second Respondent (jointly and severally liable) must pay the full amount due
(including all applicable interest) to the Claimant within 45 days of notification of the
decision, failing which, at the request of the Claimant, the consequences stipulated in
paras. 26 and 27 supra shall become immediately effective on the First Respondent and
Second Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
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28. The First Respondent and or Second 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.
29. The DRC recalled that the applicable consequences 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
30. 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.
31. 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.
32. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, CD Real Santa Cruz, is accepted.
2.
The Respondent 1, Edarlyn Reyes Ureña, has to pay to the Claimant USD 157,500 as
compensation for breach of contract plus 5% interest p.a. as from 27 June 2022 until
the date of effective payment.
3.
The Respondent 2, Emirates, is jointly and severally liable to pay to the Claimant USD
157,500 as compensation for breach of contract, plus 5% interest p.a. as from 27 June
2022 until the date of effective payment (cf. art. 17 para. 2 of the Regulations).
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, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent 1 shall be imposed a restriction on playing in official matches up until
the due amounts are paid. The overall maximum duration of the restriction shall be of
up to six months on playing in official matches.
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 six months.
3. The Respondent 2 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.
4. 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.
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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
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).
CONTACT INFORMATION
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