Labour Disputes
Texto da decisão
REF 20-01104
Decision of the
Dispute Resolution Chamber
passed on 19 November 2020,
regarding an employment-related dispute concerning the player Federico Pablo Ezequiel
Ruiz
COMPOSITION:
Geoff Thompson (England), Chairman
Daan de Jong (Netherlands), member
Michelle Colucci (Italy), member
CLAIMANT:
SPORTING
Portugal
CLUBE
DE
PORTUGAL,
Represented by Mr José Carlos Oliveira and Mr José Miguel
Albuquerque
RESPONDENT:
FEDERICO PABLO EZEQUEIL RUIZ, Argentina
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I. FACTS OF THE CASE
1.
On 15 April 2016, the Portuguese club, Sporting Clube de Portugal (hereinafter: Claimant or
club) and the Argentinian player, Federico Pablo Ezequiel Ruiz (hereinafter: Respondent or
player) concluded an employment contract (hereinafter: contract), valid as from 1 July 2016
until 30 June 2020.
2.
According to the contract, the Claimant undertook to pay the Respondent a monthly salary of
EUR 20,833.33.
3.
On 13 September 2018, the Claimant, the Respondent and the Portuguese club, SU Sintrense,
concluded an agreement (hereinafter: loan agreement) regarding the temporary transfer of the
player from the Claimant to SU Sintrense until 30 June 2019.
4.
According to the loan agreement, the Claimant would continue to the player’s salary as agreed
in the contract.
5.
Art. 8 of the loan agreement reads as follows: “Sporting shall keep the disciplinary power over
the player. Notwithstanding, Sintrense will also have the power to take disciplinary action
whenever it is deemed appropriate for the execution of this agreement”.
6.
On 18 January 2019, US Sintrense issued the following statement:
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7.
On 2 August 2019, the Claimant terminated the contract with the player as a consequence of
the unauthorized absence of the player.
8.
On 1 August 2020, the Claimant lodged a claim against the Respondent for breach of contract
and requested compensation in the amount of EUR 500,000.
9.
In its claim, the Claimant held that the player breached the contract since he was absent
without authorization as from 16 December 2018.
10. The Claimant maintained that on 9 January 2019, it was informed by SU Sintrense about the
player’s absence. In this regard, after further exchange with SU Sintrense, the Claimant
initiated disciplinary proceedings against the player on 26 February 2019.
11. In support of its argumentation, the Claimant submitted an internal “final report”, dated 30 July
2019, detailing the disciplinary proceeding against the player, without submitting any
correspondence/documents upon which said report relied on.
12. The “final report” is summarized as follows:
- 26 February 2019: Initiation of disciplinary proceedings.
- 8 March 2019: Notification sent to player.
- 19 March 2019: The player’s representative, Mr Mario dos Santos Paiva, submitted a
power of attorney and requested access to the “record of the disciplinary proceeding”.
- 25 March 2019: The player’s representative submitted his reply and requested to hear
certain witnesses. Apparently the player argued that he was undergoing medical
treatment and was authorised to be absent.
- 14 May 2019: Date to hear the witnesses, which allegedly failed to show up.
- 30 July 2019: Conclusion of the report is that the “penalty of dismissal with just cause”
shall be applied as the player failed to proof his allegations.
13. In this context, the Claimant requested compensation for breach of contract since the player
was absent without a valid reason as from 16 December 2019.
14. On account of the above, the Claimant referred to the player’s monthly salary (i.e. EUR
20,833.33) and held that it should be compensated for the “period of the unjustified absence”,
i.e. “16 December 2019 until 4 February 2019”, since it did pay the player’s salary.
15. Therefore, the Claimant requested the compensation for breach of contract in the amount of
EUR 500,000 (note: no further specification), but a minimum of EUR 265,516.63, as follows:
- EUR 229,116.63 as residual value of the contract (2 August 2019 until 30 June 2020);
- EUR 36,400 as salaries paid during the player’s absence.
16. The player failed to submit his reply to the claim within the time-limit given by FIFA.
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17. According to information contained in the Transfer Matching System (TMS), the player has not
signed any further contract.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the Chamber
took note that the present matter was submitted to FIFA on 1 August 2020. Consequently, the
DRC concluded that the June 2020 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and confirmed 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 (edition October 2020) the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension.
3.
Furthermore, 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, and considering that the present
claim was lodged on 1 August 2020, the June 2020 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. The members of the Chamber started by
acknowledging the facts of the case, as well as the documentation contained in the 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. In particular, the DRC recalled that in accordance with art. 6 par. 3 of
Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or contained in the
Transfer Matching System (TMS).
5.
Having said that, the DRC acknowledged that, on 15 April 2016, the Claimant and the
Respondent signed an employment contract valid until 30 June 2020. Further, the members
of the Chamber noted that the Claimant, the Respondent and SU Sintrense agreed upon to
temporarily transfer the player to SU Sintrense between 13 September 2018 and 30 June
2019, while the Claimant undertook to continue to remit the player’s salary as per contract.
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6.
In continuation, the Chamber took notice of the Claimant’s claim, alleging being entitled to
compensation for breach of contract since the player allegedly remained absent without
authorization as from 16 December 2018. The DRC also noted that the Claimant terminated
the contract with the player on 2 August 2019 after disciplinary proceedings.
7.
Subsequently, the DRC observed that the Respondent submitted its reply to the claim after
notification of the closure of the investigation of the matter at hand. As a result, in line with art.
9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this regard,
the members of the Chamber decided not to take into account the reply of the Respondent
and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of those documents on file that were provided prior to the closure of
the investigation-phase, in casu, upon the statements and documents presented by the
Claimant.
8.
In view of the above, the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof.
9.
Having stated the above, the DRC pointed out that the Claimant’s allegations remained, in
principle uncontested, but nevertheless, the members of the Chamber have the duty to
examine if the club substantiated its claim sufficiently.
10. In this regard, the Chamber noted that the Claimant, apart from the relevant contracts, only
submitted two documents in support of its allegations: A copy of the statement of SU Sintrense
and the “final report” regarding the disciplinary proceeding against the player, which appears
to be an internal summary of said proceeding without any evidence enclosed. The DRC
emphasized that the club failed to submit proof of any communication with the player and did
not even submit the alleged termination dated 2 August 2019.
11. Having duly taken note of the documentation presented by the Claimant, the DRC concluded
that since the club failed submit any documentation where it requested the player to render his
services and therefore had to conclude that the club was not interested in the player’s services
anymore.
12. In respect of the foregoing, the DRC had to conclude that the documents presented by the
player did not prove beyond doubt that the club and the player had validly entered into an
employment contract.
13. On account of the above, since the Claimant failed to sufficiently substantiate its allegations,
the Chamber decided to reject the club’s claim.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
The claim of the Claimant, Sporting Clube de Portugal, is rejected.
For the DRC:
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).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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