Labour Disputes
Texto da decisão
REF. FPSD-9223
Decision of the
Dispute Resolution Chamber
passed on 3 August 2023
regarding an employment-related dispute concerning
the player Juan Danilo Santacruz González
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Deputy Chairwoman
Jorge GUTIÉRREZ (Costa Rica), member
Stella MARIS JUNCOS (Argentina), member
CLAIMANT / COUNTER-RESPONDENT:
Juan Danilo Santacruz González, Paraguay
Represented by Gerardo Luis Acosta Pérez
RESPONDENT / COUNTER-CLAIMANT:
CA Rosario Central, Argentina
Represented by Ruiz-Huerta & Crespo Sport Lawyers
INTERVENING PARTY 1
Goias Esporte Clube, Brazil
INTERVENING PARTY 2
Corporación Social Y Cultural de Pereira, Colombia
pg. 2
REF. FPSD-9223
I. Facts of the case
1.
The parties to the dispute are:
a. The Paraguayan player, Juan Danilo Santacruz González (hereinafter: the Player
or the Claimant/Counter-Respondent);
b. The Argentinian club, CA Rosario Central (hereinafter: the Club or the
Respondent/Counter-Claimant);
c. The Brazilian club, Goias Esporte Clube (hereinafter: Goias or Intervening Party 1);
and
d. The Colombian club, Corporación Social Y Cultural De Pereira, also known as
Deportivo Pereira (hereinafter: Pereira or Intervening Party 2).
2.
On 28 December 2022 and 30 December 2022, the Player received a document called
“aceptación de oferta”, freely translated to English as “offer acceptance” (hereinafter: the
Offer). The Offer was remitted to Mr. Rodrigo Codas, allegedly the agent of the Player
(hereinafter: the Agent). The role of the Agent is however contested by the parties.
3.
The Offer contained, inter alia, the following information:
-
Duration: 1 year.
-
2023 salaries: USD 5,000 monthly (MEP dollar rate).
-
2023 bonus: USD 130,000 to be paid on 20 March 2023 and USD 130,000 to be paid on
20 October 2023.
-
Purchase option: 50 % of the economic rights USD 500,000. The method of payment to
be determined.
o
If the purchase option is used, the contract will have the following conditions:
-
2024 and 2025 salaries: USD 5,000 monthly (MEP dollar rate).
-
2024 bonus: USD 310,000 to be paid on 20 March 2024.
-
2025 bonus: USD 360,000 to be paid on 20 March 2025.
-
The Offer was valid for the next 24 hours and its acceptance had the validity of a
contract.
pg. 3
REF. FPSD-9223
4.
It is to be noted that the specimen of the Offer on file was drafted in the Club’s letterhead
and contained a designated space for both the Club and the Player’s signatures. The
specimen on file bears the stamp of the Club, and it is signed by the Player.
5.
On the same day, 30 December 2022, the Agent requested the Player via the application
WhatsApp, to sign an employment contract dated 2 January 2023 valid as from the date of
signature until 31 December 2025 (hereinafter: the Contract).
6.
It is to be noted that the copy of the Contract provided by the Player and available on file
was only signed by him, while the specimen of the Contract provided by the Club was
signed by both parties.
7.
In accordance with the Contract, the Player was entitled to a monthly salary of ARS 600,000.
The monthly salary would be increased as from 1 January 2024 to ARS 720,000; and as from
1 January 2025 to ARS 871,200.
8.
On 30 December 2022, the Player digitally signed both the Offer and the Contract to the
Club and sent them to the Agent.
9.
Between 25 December 2022 and 31 December 2022, the Player and the Agent exchanged,
inter alia, WhatsApp messages (freely translated to English), to the following end:
o
o
o
The Agent sent the Offer and the Contract to the Player for acceptance and signature.
The Player sent both the Offer and the Contract signed back to the Agent. However, the
Player requested if the “long contract” would include the housing and “everything else”.
There were questions raised by the Player as to the signature of the contract, to which
the Agent stated that this would not be a valid contract until it had a handwritten
signature.
10. In accordance with the information retrieved from the Transfer Matching System (TMS), the
second registration period in Argentina for the season 2022/2023 started on 18 January
2023 and ended on 17 February 2023.
11. On 1 January 2023, the Player and the President of the Club exchanged WhatsApp
messages which contained, inter alia, the following:
o
o
o
The Player was congratulated by the President for signing with the Club.
The Player requested the President to be provided with the employment contract that
would be signed in order to review it.
The Player enquired the President if he needed to send a document that cancels the
acceptance of the Offer, to which the President replied that it would be the Club who
needed to revoke the Offer.
pg. 4
REF. FPSD-9223
12. On 2 January 2023, the Player and the President of the Club exchanged WhatsApp
messages which contained the following:
o
The Player excused himself for not being at the Club’s premises as he had some
personal/familial problems and requested the President about the revocation of the
Offer.
o
The President replied that he forwarded this request to the Club’s lawyer.
13. Between 3 January 2023 and 4 January 2023, the Player and the President of the Club
exchanged WhatsApp messages which contained, inter alia, the following:
o
The Player wanted to arrange the situation and sent a copy of the Offer’s revocation
o
In accordance with the revocation draft, the Player intended that both the Offer and
o
The Player sent various messages the President to resolve this situation. The last
draft, to be reviewed by the Club.
the Contract become null and void.
message is quoted as follows (quoted verbatim):
“Hola Gonzalo qué tal? Te estos molestando otra vez por el tema del documento ese que
me habías dicho esta semana ya me iban a mandarme firmado para poder revocar esa
aceptación de oferta yo lo único que necesito es que el Abog te prepare el documento
como el que te había mandado y que puedas firmarlo, así yo también ya estoy tranquilo
con ese tema, porque ya habíamos hablado de eso y Dani medio que me está
amenazando que si no voy que igual iban a presentar el contrato pero ya le había dicho
que una decisión familiar y personal no podré ir porque creo que no pueden obligarme
a ir, además que Dani y Rodrigo me dijeron que supuestamente no tenía relevancia esa
aceptación de oferta y bajo presión había firmado porque me apuraron todo ese día, que
ya se tenia que enviar, diciéndome que si de por ahí cambiaba de opinión no pasaba
nada, y al final resulta ser que yo ahora no puedo ni ver otras opciones, y como me dijiste
que ibas a ver la semana pasado cuando hablamos por teléfono y llegamos a un acuerdo
de que no tenías problema para revocar eso porque me entendías […]”
Freely translated to English:
“Hi Gonzalo, how are you? I am bothering you again about the document that you had
told me this week that you were going to send me the signed document to revoke the
acceptance of the Offer. The only thing I need is for the lawyer to prepare the document
like the one I had sent you and that you can sign it, so I am also calm about this issue,
because we had already talked about it and Dani is threatening me that if I do not go,
pg. 5
REF. FPSD-9223
they would still present the contract but I had already told him that a family and personal
decision I cannot go because I think they can't force me to go, besides that Dani and
Rodrigo told me that supposedly that acceptance of the Offer was not relevant and under
pressure I had signed because they rushed me all that day, that it had to be sent, telling
me that if I changed my mind nothing would happen, and in the end it turns out that now
I cannot even see other options, and as you told me that you were going to see last week
when we talked on the phone and we reached an agreement that you had no problem to
revoke that because you understood me.”
14. On 16 January 2023, the Player sent an email to the Club and requested, within the 3
following days, to be provided with an employment contract that reflected the Offer and
flight tickets to Argentina for himself and his lawyer, failing which the Player would revoke
his acceptance of the offer and the contract.
15. On 19 January 2023, the Club sent a letter to the Player, rejecting his letter of 16 January
2023, indicating that the parties had a contract in force and warning the Player to attend
the training sessions. The Club granted a deadline to the Player until 23 January 2023 to
comply, failing which the Club would terminate the employment relationship with just
cause.
16. On 19 January 2023, the Club and the legal representative of the Player via the application
WhatsApp exchanged the following messages:
-
The Club sent the legal representative a document of reservation of a flight ticket
from Asuncion to Rosario dated 23 January 2023.
-
The legal representative asked to change the flight to an earlier date and shared with
the Club a reservation flight’s information from Asunción to Rosario on 22 January
2023.
17. On 20 January 2023, the Club sent the Player an additional document (hereinafter: the
agreement 1) dated 2 January 2023, for the Player’s review. The agreement established,
inter alia, that the parties signed the Offer and the Contract and that the Club would pay
the Player for the 2023 season an amount of USD 260,000 payable in 2 instalments USD
130,000 on 20 March 2023 and USD 130,000 on 20 October 2023. Those amounts would
be paid with the MEP dollar rate on the due dates.
18. On 22 January 2023, the Player wrote to the Club and revoked his acceptance to the Offer,
as (a) the Offer was not sent by an e-mail or telephone of the Club and it does not contain
the signature of the president of the Club; and (b) there were substantial modifications
between the Offer and the agreement 1 with regards to the payment in USD, signature
bonus and the economic rights of the player.
pg. 6
REF. FPSD-9223
19. On 23 January 2023, the Club sent the Player via email an additional document (hereinafter:
the agreement 2) dated 23 January 2023 requesting the Player’s signature.
20. The agreement 2 contained the following payments in favour of the Player:
-
A bonus of USD 260,000: USD 130,000 payable on 20 March 2023 and USD 130,000
on 20 October 2023.
-
In case the purchase option is used, the Club would pay the Player USD 310,000 for
the 2024 season and USD 360,000 for the 2025 season.
21. On the same date, 23 January 2023, the Player was allegedly in Greece passing medical
tests for the club Atromitos FC.
22. On 24 January 2023, the Club sent an email to the Player, rejecting the letter sent by the
Player on 22 January 2023 and indicating that the parties were under an employment
relationship. The Club considered that the letter sent on 22 January 2023 is contrary to
good faith and it amounted to a unilateral breach of contract. Therefore, the Club
requested the Player avail himself at the Club’s premises until 27 January 2023 subject to
the termination of the employment relationship for breach of contract due to the Player’s
fault and abandonment of work.
23. On the same date, 24 January 2023, the Player referred to his letter dated 22 January 2023
and rejected in all terms the correspondence sent by the Club considering that there was
not a contractual relationship between the parties, since he had already terminated it.
24. On 27 January 2023, the Club sent an e-mail to the Player, informing him that the Club
considered that the Player terminated the employment relationship without just cause and
requested the Player to pay the amount of USD 1,860,762 within 10 days as compensation.
25. On the same day, 27 January 2023, the Player replied to the Club, rejecting all terms of the
Club’s letter, referring the Club to his letter dated 22 January 2023.
26. In accordance with the information retrieved from the TMS, on 30 January 2023, the Club
entered a transfer instruction to register the Player. The Player was ultimately not
registered with the Club.
27. On an unspecified date (apparently on 6 February 2023), Goias sent the Player a non-signed
pre-contract (hereinafter: the pre-contract) valid until 31 December 2023. In accordance
with the pre-contract, the Player would be entitled to a monthly salary of BRL 54,000. The
Player’s signature appears in the pre-contract in accordance with the evidence on file.
28. On 13 February 2023, Goias and the Player signed a document titled “termination of the
special sporting labour contract”. Said document stated that both parties had signed a
pg. 7
REF. FPSD-9223
contract valid from 6 February 2023 until 31 December 2023 and that it was the interest of
both parties to terminate their labour contract. It is to be noted that no copy of the alleged
labour contract was provided.
29. On 29 March 2023, the Player and Pereira signed an employment contract valid as from 29
March 2023 until 30 December 2023, including a monthly salary of USD 15,000.
30. In accordance with the information retrieved from the TMS, the first registration following
the registration with the Club was with Pereira on 31 March 2023. There is not an entry
registering the Player with Goias.
II. Proceedings before FIFA
a. Position of the Player
31. On 13 February 2023, the Player lodged a claim against the Club in front of FIFA, amended
by a new claim on 23 February 2023.
32. The Player indicated that he terminated all and any contract that may exist between the
Player and the Club on 22 January 2023 with just cause in accordance with art. 14 of the
Status and Transfer of Players (RSTP), due to the abusive behaviour of the Club. In
particular, the Player submitted that:
-
The Club offered the Player to pay a signature bonus in USD, however, the agreement
sent on 20 January 2023 stated that bonus would be paid in Argentinian pesos with the
MEP Dollar rate, which was not accepted by the Player in accordance with the Offer.
-
The Club offered to pay in USD if the purchase option of the economic rights was used.
In the agreement, sent on 20 January 2023, not only the payment would be made in
Argentine pesos and at a lower rate than the free market rate, but the Club would
“freeze” that rate on 1 January 2024 to pay it later in 10 instalments. This, according to
the Player this was not accepted by him in accordance with the Offer.
-
The fact that both agreements (1 and 2) were sent for review to the Player demonstrated
the abusive conduct aimed to breach the employment relationship or, forcing the Player
to accept working conditions different from those offered, taking advantage of the fact
that the Club had a contract without a handwritten signature in its possession.
33. In view of the foregoing, the Claimant requested to confirm that all and any contract that
may exist between the Player and the Club were terminated with just cause in accordance
with art. 14.2 of the RSTP, due to the abusive behaviour of the Club that tried to force the
modification of the Offer.
pg. 8
REF. FPSD-9223
b. Position of the Club and counterclaim
34. In its reply, the Club contested the claim of the Player and filed a counterclaim.
35. The Club mentioned that by signing the Contract, the employment relationship with the
Club has been perfected, and in view of this “the Club, through its authorities, began to plan
the arrival of the Player to Argentina and the signing of the additional agreement, after reviewing
the drafts, as agreed in the offer accepted on 30 December 2022.”
36. In accordance with the Club, the parties had an employment relationship based on the
Offer and the Contract, since both documents have all the requirements in order to
consider both documents as employment contracts. As to the Player’s argument that they
did not possess a handwritten signature, the Club stated that this does not affect the
validity of the Contract, since the Player in his claim confirmed that he has digitally signed
said document. Additionally, the Club claimed that the Player had legal advice as the
communications provided by the Player were with the Agent, who is a lawyer with
experience in the field of football.
37. Also, the Club indicated that the Player’s arrival was expected to be between 3 and 9
January 2023, however, the Player never arrived.
38. With regards to termination letter, the Club argued that the Offer and the Contract were
sent to the Player through its apparent representative, the Agent. The documents sent to
the Player were drafted in the Club’s letterhead and were first provided to the Player in
order to have his signature, and then completed, once returned, with the signature of the
Club, which according to the Club is a common practice.
39. As per the Offer, it was stated that the salary payment would be paid in MEP Dollar
however, as the bonus and the purchase option, it did not contain the currency in which it
would be paid, and it would be validly to consider that said amounts would be paid in MEP
dollar as well.
40. Additionally, the Club argued that even if the payment in USD was not clear, the Club
provided with the agreement 2 including such payments (the bonus and the purchase
option) in USD. As to the date in said agreements, the Club argued that in fact it was not
updated in the agreement but in the agreement 2 was updated.
41. In view of the foregoing, the Club concluded that the payment in dollar MEP was not a
substantial change of what was agreed, and that the Club has acted in good faith, while the
Player, in accordance with open media press was in negotiations with other clubs.
Therefore, the Club concluded that the Player terminated the employment relationship
without just cause and the Club is entitled to compensation.
pg. 9
REF. FPSD-9223
42. The Club requested the following relief:
-
To reject the Player’s claim.
-
To accept the counterclaim.
-
To condemn the Player to pay compensation:
USD 260,000 (signature bonus)
USD 60,000 (12 months’ salary as per offer)
ARS 7,200,000 (12 months’ salary as per contract)
Subsidiarily: USD 60,000 and ARS 7,200,000
Subsidiarily: ARS 7,200,000
-
To pay 5 % interest as from 27 January 2023.
-
To apply sporting sanctions on the Player.
-
To condemn the Player to pay all fees/procedural cost in the case.
c. Response of the Player to the Counterclaim
43. The Player first mentioned that he did not contest that he accepted the Offer, however he
mentioned that it was not signed by the President of the Club. Moreover, the Player stated
that he did contest that he accepted the terms of the Contract and pointed that it did not
possess a handwritten signature which was a requirement to continue with the TMS
registration process.
44. As to the just cause, the Player considered that:
-
The Offer lacks signature of the president of the Club and the Contract and the Offer
were not sent by an official e-mail of the Club, which according to the Player is the
beginning of the abusive behaviour of the Club. Following the acceptance of the Player,
he did not receive a flight ticket and the Club did not request the Player to train with it.
-
The Player did not have clear situation as to the acceptance of the Offer which was not
signed by the president of the Club.
-
The Player argued that he has an audio in which the wife’s president of the Club
recognised that the payment of the bonus is through 3rd persons, however, the Player
argued that he could not submit the evidence due to the limitations of the FIFA Legal
Portal.
-
The registration of the Player in TMS was not concluded as currently the Player is
registered with Pereira. Additionally, this process according to the Player was initiated
after the Player manifested the revocation of the Offer and not after the acceptance of
the Offer.
pg. 10
REF. FPSD-9223
-
The Player argued that following the correspondence of the Club dated 19 January 2023,
the Player and the Club discussed in order to arrange the Player’s trip. As to the delaying
actions raised by the Club, the Player argued that it was due to the special circumstances
of the lawyer.
-
According to the Player, the Club carried by all means at its disposal to force him to sign
contracts modifying the Offer that was valid and only when the Player revoked his
consent, the Club presented him with documents that reflected (in part, not all) what
was agreed in the Offer.
-
The changes provided by the Club were substantial, as due to the economic instability
in Argentina, the MEP dollar offered by the Club could be devalued by up to 100%.
-
The Player contested that the Agent was in fact his agent or that he was representing
him, he has not any representation agreement with him. The Player further rejected the
link to the Greek club.
45. In view of the foregoing, the Player considered that the Club’s behaviour falls under art 14.2
RSTP and that the Player terminated the employment relationship with just cause.
46. The Player further argued that it cannot be expected to have knowledge of Argentinian law,
and that in his previous club he was paid in USD.
47. The Player requested FIFA to reject the counterclaim.
d. Position of the Intervening Party 1
48. Goias stated that it had started negotiations with the Player without knowing that the
Player had a contract with the Club. In view of this situation, Goias decided not to proceed
with the hiring of the Player and the negotiations ended.
e. Position of the Intervening Party 2
49. Pereira failed to submit with its position within the timeframe granted by the FIFA general
secretariat.
f. Final comments of the Club
50. The Club stressed the following:
pg. 11
REF. FPSD-9223
-
It is a common practice to provide with contracts/offers without the signature of the
president and requesting first the signature of the Player. Also is common to provide
with the contracts via the Player’s agent.
-
The Club waited for the Player’s arrival, the Player never arrived in Rosario.
-
The incorporation of the MEP dollar cannot constitute a substantial change.
-
As to the registration in TMS, the Club argued that it started the registration during the
registration’s period.
-
As to the Agent, the Club argued that it provided evidence that demonstrated that the
Agent represented the Player.
-
As to the negotiations with Goias, the Club concluded that the Player was not sure that
he had breached the Contract with the Club, on the contrary, the Player was aware that
he did not recognise the contracts with the Club.
51. The request for relief remained unchanged.
pg. 12
REF. FPSD-9223
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
52. 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 13 February 2023 and
submitted for decision on 3 August 2023. Taking into account the wording of art. 34 of the
March 2023 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.
53. 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 par.1 lit. b)
of the RSTP (May 2023 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 player from Paraguay and a club from Argentina, with the
involvement of a Brazilian and Colombian clubs.
54. 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 RSTP (May 2023 edition) and considering that the present claim was lodged on
13 February 2023 and the counterclaim on 20 March 2023, the October 2022 edition of said
regulations (hereinafter : the Regulations) is applicable to the matter at hand as to the
substance.
55. Finally, the Chamber noted that the Player indicated that he was not able to upload some
audio files due to the limitations of the FIFA Legal Portal. However, the Chamber wished to
highlight that the parties can upload audio files in the Legal Portal using the adequate tool
for that. As such, it appears that the Player has misused the Legal Portal, and therefore he
shall endure the consequences that follow.
b. Burden of proof
56. 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
pg. 13
REF. FPSD-9223
57. 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
58. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the employment relationship by the Player.
59. On one hand, the Player indicated that he had just cause to terminate the Offer and the
Contract due to the abusive behaviour of the Club: the Offer and the Contract were not
signed by the president of the Club and not sent by an official e-mail of the Club, the Player
did not receive flight tickets to flight to Rosario, the agreement 1 sent by the Club did not
contain the same information as agreed in the Offer, which would represent a substantial
change (MEP dollar instead of USD), and the registration process in TMS started after the
employment relationship was terminated by the Player.
60. On the other hand, the Club considered that the Player did not have just cause to terminate
the employment relationship, considering that it is a common practice to provide players
with contracts without the signature of the president and wait for the Player’s acceptance
first, and that the Contract was sent to the Player’s agent which is also a common practice.
Additionally, the payments in MEP dollar are in accordance with local regulations, and that
the Offer already stipulated MEP dollar exchange rate, the use of the MEP dollar cannot
constitute a substantial change of the contract.
61. In this context, the Chamber recalled the following undisputed facts:
Date
30 December 2022
1 January 2023 – 4
January 2023
16 January 2023
Facts
The Player signed (with a digital signature) the Offer and the
Contract.
The Player and the president of the Club exchanged
WhatsApp messages, in which the Player requested the
president the employment contract to sign and if he needed
to send a revocation of the Offer and the Contract signed.
Additionally, the Player excused himself for not being at the
Club’s premises as he had personal issues.
The Player sent a default notice to the Club requesting the
Club to provide with the employment contract that the
reflects the Offer provided to the Player and flight tickets for
him and his lawyer. A 3-day deadline was provided.
pg. 14
REF. FPSD-9223
19 January 2023
20 January 2023
22 January 2023
23 January 2023
24 January 2023
- The Club informed the Player that the parties had already
a contract and warned him to attend the trainings. A
deadline until 23 January 2023 was provided.
- WhatsApp messages exchanges between the Club and
the Player’s legal representative regarding the flight
tickets.
The Club provided with the agreement 1 for the Player to
review it.
The Player revoked his acceptance to the Offer and Contract,
which in his view corresponds to a termination of the
employment relationship with just cause.
The Club provided with the agreement 2 for the Player to
review it.
The Player rejected the letter sent by the Club and
referred to his letter dated 22 January 2023.
The Club rejected the Player’s letter and granted him a
deadline until 27 January to be present at the Club’s
premises.
The Club requested compensation for breach of contract.
The Player was registered in TMS with the Club.
The Player signed the pre-contract of Goias
Termination of the relationship with Goias
The Player signed a contract with Pereira and was registered
with Pereira in TMS.
-
27 January 2023
30 January 2023
February 2023
23 February 2023
29 March 2023
62. In this context, the Chamber acknowledged that its task was to determine the following:
-
Are the Offer and the Contract valid contracts?
In the affirmative, did the Player have just cause to terminate the employment
relationship?
Are the Offer and the Contract valid contracts?
63. The Chamber noted as a departure point that the Offer and the Contract were sent by the
Agent to the Player. The Offer contained the stamp of the Club but was unsigned by a Club
representative, while the Contract equally was unsigned by a Club representative.
64. Subsequently, the Chamber started by recalling its well-established jurisprudence which
dictates that, in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee (or the corresponding
proof of consent of both parties), it should contain the essentialia negotii of an employment
pg. 15
REF. FPSD-9223
contract, such as the parties to the contract and their role, the duration of the employment
relationship and the remuneration payable by the employer to the employee.
65. Equally, the Chamber recalled that the signature of a contract by both parties is an
important element in order to establish an employment relationship, essentially because
this is the easiest way to demonstrate mutual consent. However, having an unsigned
specimen of the contract does not automatically mean there is no employment
relationship between the parties, because this shall be established on a case-by-case basis
and considering the entirety of the facts of the case and the elements at the disposal of the
deciding authority.
66. On this note, the Chamber stressed that the Player quite unequivocally accepted the
conditions of the Club and digitally signed the Offer and the Contract, and the Club as per
the communications on file also acknowledged that the Parties had an employment
relationship. Consequently, the Chamber concluded the parties were under an
employment relationship
67. The Chamber also noted that there were indeed still some negotiations regarding the
implementation of the Offer. However, it also determined that both the Offer and the
Contract, were already binding to the parties. The Chamber additionally stressed that both
parties at all times understood that a contract existed: the Player terminated the
employment relationship, while the Club asked the Player to comply with it – the DRC
highlighted that it was non-sensical from the Player’s to terminate an inexistent contract.
Did the Player have just cause to terminate the employment relationship?
68. Having established the above, the Chamber recalled its long-standing jurisprudence,
according to which only a breach or misconduct which is of a certain severity justifies the
termination of a contract without prior warning. In other words, only when there are
objective criteria which do not reasonably permit to expect the continuation of the
employment relationship between the parties, a contract may be terminated prematurely.
Hence, if there are more lenient measures which can be taken in order for an employer to
assure the employee’s fulfilment of his contractual duties, such measures must be taken
before terminating an employment contract. A premature termination of an employment
contract can only be an ultima ratio.
69. Given the above, the Chamber considered that the termination by the Player relying on the
fact that the Club did not provide in the agreement 1 the same provisions stipulated in the
offer cannot be considered as an ultima ratio situation, because the Player could still rely
in the Offer signed. By the same token, the Chamber also considered that the agreement
1 having a prior date, or the Offer and the Contract having been sent via a third person
cannot constitute an abusive behaviour, able to justify the termination of a contract.
70. Additionally, the Chamber observed that the registration period in Argentina in accordance
pg. 16
REF. FPSD-9223
with TMS was still open when the employment relationship was terminated, and therefore
the fact that the Player’s registration with the Club had not been completed cannot also
serve as justification for the termination.
71. With regards to the flight ticket, the Chamber noted that the Player has provided evidence
of communications in which he indicated that he could not arrive to Rosario due to
personal problems and following that, the Club communicated with the Player’s legal
representative regarding a possible reservation.
72. Moreover, following the signature of the contract, the Chamber noted that the Player sent
a default notice on 16 January 2023, which was replied by the Club within the deadline set
therein and 4 days later, the Player terminated the employment relationship. On this note,
the DRC underlined that the contract was terminated within 20 days following its
commencement. Thus, the Chamber concluded that the constellation of the matter at hand
cannot trigger the provisions stipulated in art. 14.2 of the Regulations.
73. Based on the foregoing, the Chamber concluded that Player has not provided a valid
justification for the premature termination of the employment relationship and must
therefore be held liable for this breach without just cause.
ii. Consequences
74. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Player.
75. The Chamber turned to the calculation of the amount of compensation payable to the Club
by the Player 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 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, the fees and expenses
paid or incurred by the former club (amortised over the term of the contract) and
depending on whether the contractual breach falls within the protected period.
76. 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.
77. In this regard, the Chamber established that no such compensation clause was included in
the Contract at the basis of the matter at stake.
pg. 17
REF. FPSD-9223
78. As a consequence, the Chamber determined that the amount of compensation payable by
the Player to the Club 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.
79. Bearing in mind the foregoing as well as the claim of the Club, the Chamber proceeded
with the calculation of the monies payable to the Player under the terms of the Contract
until its term. On this point, the Chamber recalled that the parties signed on the same date
the Offer and the Contract and there were still some negotiations regarding the
implementation of the Offer. In view of this, the Chamber considered that at the moment
of the termination the Contract superseded the Offer and therefore, it was only the
Contract to be used to calculate the compensation due to the Club.
80. Consequently, the Chamber concluded that the amount of ARS 26,294,400 (i.e., 600,000*12
+ ARS 720,000*12 + ARS 871,200*12) serves as the basis for the determination of the
amount of compensation for breach of contract, as this is the residual value of the Contract.
81. In continuation, the Chamber verified whether the Player had signed an employment
contract with another club during the relevant period of time. According to the constant
practice of the Chamber as well as art. 17 par. 1 of the Regulations, such remuneration
under a new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract due by a Player to his former club. In
particular, the Chamber explained that its standard practice is to calculate the average
between the Player’s remuneration with his former club and his remuneration with the
new club, for the exact same period of time comprised between the early termination of
the employment contract with the old club and the original expiry date of such contract. In
case substantial evidence thereof is provided by the Club, the Chamber might additionally
grant the damaged club the non-amortised transfer fee paid for the Player in breach and/or
the actual costs incurred by the damaged club in order to replace the leaving player.
82. In this respect, the Player had signed a contract with Goias and then signed a contract
Pereira. In this context, the Chamber observed that Goias and the Player had concluded an
employment contract considering that (a) the Player signed a pre-contract and (b) Goias
and the Player signed a termination agreement, in which it clearly referred that the parties
signed a contract between them valid from 6 February 2023 until 31 December 2023.
However, in accordance with TMS, the Player was never registered with Goias and
consequently, the pre-contract was never executed. In view of the foregoing, and for the
calculation of the present compensation, the Chamber took into consideration the contract
with Pereira which appears to be the only valid contract capable to trigger the
consequences of mitigation.
83. In accordance with the pertinent employment contract executed by and between the
Player and Pereira, the Player was entitled to approximately USD 15,000 per month.
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REF. FPSD-9223
84. Bearing in mind that the term of the employment agreement with Pereira and the Contract
binding the Player and the Club were not the same and, in particular, the new contract was
signed for a shorter period, the DRC considered that the contract with Pereira should be
fictionally extended to meet the duration of the Contract (i.e., until December 2025) so that
the calculation was done properly.
85. Thus, the Chamber concluded that the average between the Player’s remuneration with
the former club and his current remuneration amounts to ARS 64,397,025 (ARS
26,294,400+ USD 495,000/ARS 102,499,650 / 2).
86. Notwithstanding the fact that the Player terminated the Contract without just cause, the
Chamber also assessed the conduct of the Club and concluded that the latter contributed
heavily to the termination by presenting additional documents and not providing him with
a document with the same conditions concluded in the Offer. In the end, the Player was
not satisfied with the Contract and not sure about all the terms for which the Player was
hired. In view of the foregoing, the Chamber decided to reduce the compensation to ARS
42,931,350, since the Club has been found to have contributed heavily to the however
premature and unlawful termination of the Contract.
87. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Player must pay the amount of ARS
42,931,350 to the Club, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
88. Additionally, taking into consideration the Club’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Club interest on said
compensation at the rate of 5% p.a. as of 26 January 2023 until the date of effective
payment.
89. Finally, in accordance with art 17.2 of the Regulations, the new club is jointly liable for the
payment of the compensation. As per the FIFA commentary on the RSTP (edition 2021), the
new club to be considered as such is the club with which the Player was first registered
following the breach of contract. In casu, the Player had an employment agreement with
Pereira and was registered with said club as per the information retrieved from TMS.
90. Consequently, the Chamber decided that, in accordance with art. 17 par. 2 of the
Regulations, Pereira shall be jointly and severally liable for the payment of the
aforementioned amount of compensation.
iii. Compliance with monetary decisions
91. 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
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REF. FPSD-9223
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.
92. In this regard, the DRC highlighted that:
-
against clubs, the consequence of the failure to pay the relevant amounts in due time
shall consist of a ban from registering any new players, either nationally or
internationally, up until the due amounts are paid. The overall maximum duration of the
registration ban shall be of up to three entire and consecutive registration periods.
-
against players, the consequence of 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.
93. Therefore, bearing in mind the above, the Chamber decided that the Player must pay the
full amount due (including all applicable interest) to the Club within 45 days of notification
of the decision, failing which, at the request of the creditor, a restriction on playing in official
matches for the maximum duration of six months shall become immediately effective on
the Player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
94. Equally, the DRC decided that Pereira must pay the full amount due (including all applicable
interest) to the Club within 45 days of notification of the decision, failing which, at the
request of the Club, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration
periods shall become immediately effective on Pereira in accordance with art. 24 par. 2, 4,
and 7 of the Regulations.
95. The Player and Pereira shall make full payment (including all applicable interest) to the
bank account provided by the Club in the Bank Account Registration Form, which is
attached to the present decision.
96. The 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. 24 par.
8 of the Regulations.
d. Costs
97. 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.
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REF. FPSD-9223
98. 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.
99. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 21
REF. FPSD-9223
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Juan Danilo Santacruz González, is
rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, CA Rosario Central, is partially
accepted.
3.
The Claimant/Counter-Respondent must pay to the Respondent/Counter-Claimant ARS
42,931,350 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 26 January 2023 until the date of effective payment.
4.
The Intervening Party 2, Corporación Social Y Cultural de Pereira, is jointly and severally
liable for the payment of the aforementioned compensation.
5.
Any further claims of the Respondent/Counter-Claimant are 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. 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:
On the Claimant/Counter-Respondent:
1. The Claimant/Counter-Respondent shall be restricted on any football-related activity up
until the due amounts are paid. The overall maximum duration of the restriction shall
be of up to six months.
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.
On the Intervening Party 2:
3. The Intervening Party 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.
pg. 22
REF. FPSD-9223
8.
The consequences shall only be enforced at the request of the Respondent/CounterClaimant in accordance with art. 24 par. 7 and 8 and art. 25 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-9223
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
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www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 24