FIFA - Decisión disputa Cuero 01062023

REF. FPSD-8433

Decision of the Dispute Resolution Chamber passed on 1 June 2023 regarding an employment-related dispute concerning the player Janer Alexis Ordoñez Cuero BY: Frans de Weger (the Netherlands), Chairperson Johan van Gaalen (South Africa), member Calum Beattie (Scotland), member

CLAIMANT:

Janer Alexis Ordoñez Cuero, Colombia Represented by Sportia Law

RESPONDENT:

UE Engordany, Andorra Represented by Mr Marc Remola Navarro pg. 2

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I. Facts of the case

1. On 1 August 2022, the Colombian player Janer Alexis Ordoñez Cuero (hereinafter: the Claimant or player) and the Andorran club UE Engordany (hereinafter: the Respondent or club) allegedly concluded an employment contract (hereinafter: the Contract) valid as from the date of signature until 31 May 2023.

2. In accordance with the seventh clause of said Contract, the Respondent allegedly undertook to pay the Claimant a net monthly salary of EUR 900, as well as a net monthly accommodation allowance of EUR 300 within the first 10 days of each month.

3. Furthermore, the Contract also stipulated via the twelfth clause thereunder as follows: “Las partes se comprometen a resolver de forma amistosa cualquier disputa o desacuerdo que pueda surgir del desarrollo del presente contrato, sin perjuicio de poder someter cualquier controversia, a los tribunales del deporte y en su defecto a los tribunales andorranos.” Free translation into English: “The parties commit to resolve any disputes that may arise out of the present contract amicably, without prejudice of any party to submit such potential disputes to the sporting tribunals or, failing that, the civil courts of Andorra”.

4. Following the signature of the Contract, at an unspecified date, the Respondent allegedly

informed the Claimant that “his services were no longer required and that he should leave”, to which the Claimant responded that he was not prepared to do so, and instead intended to honour the terms of the Contract.

5. On 11 October 2022, the Claimant put the Respondent in formal notice via his legal representative, stating as follows: “According to the information provided by the Player, it has not been possible to obtain the work and residence permit, UE Engordany considers that the contract signed in August is not valid due to the lack of obtaining the work and residence permit and preventing the Player from accessing the Club’s premises to continue providing his services.

In view of the above and in order to put on record that the Club considers the contract to be null and void and that the Player is under no obligation to continue providing his services, I hereby formally request you to state within three (3) days whether the said contract is still in force. In the meantime, the Player will continue to attend training.”

6. On 12 October 2022, the Respondent allegedly “tore up one of the copies of the Contract signed in August, saying that the Contract was worthless.” In addition, it allegedly threatened the pg. 3

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Claimant with expulsion from the country because of his lack of a visa and attempted to make him sign a waiver of all future claims in exchange for EUR 1,000.

7. On 14 October 2022, the Claimant put the Respondent in default once again, outlining the alleged breaches of contract that occurred on 12 October 2022, as well as extending the deadline to confirm the Respondent’s commitment to the Contract for another 24 hours, failing which, the Claimant stated that he would consider the Contract terminated. pg. 4

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II. Proceedings before FIFA

8. On 1 December 2022, the Claimant lodged a claim before FIFA for compensation due to the unlawful termination of the Contract by the Respondent. A short summary of the parties’

submissions is outlined below. a. Position of the Claimant

9. The Claimant maintained that the existence of an employment relationship created by the Contract is undisputable, and submitted a copy of said Contract, the original version of which was subsequently torn up by the Respondent.

10. The Claimant asserted that the Contract was terminated without just cause by the Respondent, purely because the latter failed to obtain a work permit for the Claimant.

11. The Claimant stated that he was not paid any amounts and thus requested compensation in the amount of EUR 12,000, corresponding to 10 x EUR 1,200, or the sum of the monthly salary and accommodation allowance for the entire term of the Contract. The Claimant also requested that said compensation shall be augmented by interest at the standard rate of 5% p.a..

12. Lastly, the Claimant requested the imposition of sanctions on the Respondent.

b. Position of the Respondent

POSITION OF THE RESPONDENT

13. In its reply, the Respondent firstly contested the competence of FIFA to hear the present claim, firstly based on the fact that the Contract “contains no jurisdiction clause in favour of FIFA”, and secondly, because the DRC can only hear labour disputes, and the Respondent and the Claimant, allegedly, share no employment relationship, thereby not meeting the requirements under art. 22 par. 1 lit. b) of the Regulations.

14. Furthermore, the Respondent outlined that the document submitted by the Claimant, which is supposedly a copy of the Contract, does not contain the signature of the Claimant and, therefore, does not prove the existence of the contractual relationship. The Respondent, therefore, rejected the notion that the Contract was a valid and binding employment agreement.

15. The Respondent also outlined that the copy of the Contract submitted by the Claimant was a forgery, as the supposed signature of the president of the Respondent was fabricated by the former sporting director, who was allegedly also the agent of the Claimant and therefore had a conflict of interests.

16. In the absence of a Contract, the Respondent argued, the Claimant cannot possibly claim compensation, as there is no basis for such claim. pg. 5

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17. The Respondent, therefore, requested that the claim be rejected.

c. Replica of the Claimant

18. The Claimant insisted on the jurisdiction of FIFA. In particular, the Claimant pointed out that the argument that there is no clause in favour of FIFA is irrelevant, and that in any case, there is no clause clearly excluding FIFA’s jurisdiction, thereby making FIFA competent in accordance with art. 22 par. 1 lit. b) of the Regulations.

19. The Claimant also vehemently rejected the notion that the copy of the Contract submitted to the file had been falsified, pointing out that the Respondent provided no evidence of the allegation of forgery or the abuse of contractual templates.

20. The Claimant also stressed that the signature and the seal on the copy of the Contract is that of the President, and not the Sporting Director, who allegedly forged such Contract.

21. The Claimant also pointed out that the lack of his signature on the submitted copy is unimportant, as the Contract (signed and sealed by the Respondent), if only signed by the employer, is, at the very least, seen as a unilateral offer which is valid until revoked. The Claimant, however, also reiterated and denounced that the Respondent tore up the copy of the Contract which was signed by both parties.

22. The Claimant further asserted that the existence of the Contract in general and the ratification thereof is undisputed, as the following evidence indicates: - Social media posts by the Respondent in which the Claimant appears in uniform with other teammates; - Exchange of correspondence with FIFA regarding the ITC, stating that the transfer was “cancelled”; - Photo of team sheet for matchdays of the Andorran league; - An unsigned payment receipt of lump sum of EUR 1,000; - An unsigned proposed termination agreement.

23. The Claimant thus reiterated his request for relief.

d. Duplica of the Respondent

DUPLICA OF THE RESPONDENT

24. The Respondent briefly reiterated that the Football Tribunal should not be held competent.

25. Additionally, the Respondent amended its position from the initial argumentation that there was no Contract at all, to stating that the Claimant was merely on trial – and that such trial was not successful. pg. 6

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26. As to the ITC, the Respondent argued that the correspondence exchanged with FIFA relates to a previously failed instruction for an “amateur transfer”, and that this allegedly further supports the line of argument that the Claimant never was part of the actual squad.

27. Lastly, the Respondent outlined as to the alleged payment receipt that the Claimant “demanded from the [Respondent] the amount of 1,000 euros and the drafting of a contract resolution, for its subsequent study and signature, which it did not carry out and uses it as an element to prove a contract that never existed”. pg. 7

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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 and submitted for decision on 1 June 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.

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 (March 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 Colombia and a club from Andorra.

3. Furthermore, the Chamber took note that the Respondent contested the jurisdiction of FIFA to deal with the present claim.

4. The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate the present claim, sustaining that the Contract does not contain a clear and exclusive jurisdiction clause in favour of another forum, and that FIFA should be deemed competent to resolve the dispute at hand.

5. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle, competent to hear an employment-related dispute between a club and a player of an international dimension. Nevertheless, the parties may explicitly opt in writing for such dispute to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. The independent national arbitration tribunal must guarantee fair proceedings and respect the principle of equal representation of players and clubs. Equally, the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

6. In this context, the Chamber pointed out that it should first analyse whether the employment contract at the basis of the present dispute contained a clear and exclusive jurisdiction clause in favour of a forum different than the Football Tribunal. pg. 8

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7. In this respect, the Chamber recalled the wording of clause 12 of the Contract, which stipulated as follows: “The parties commit to resolve any disputes that may arise out of the present contract amicably,

without prejudice of any party to submit such potential disputes to the sporting tribunals or, failing that, the civil courts of Andorra.” (Freely translated from Spanish)

8. After analysing the wording of the above-mentioned jurisdiction clause, the Chamber concluded that such clause did not clearly and exclusively establish the competence of any specific forum ahead of the Football Tribunal, making only a general reference to “sporting tribunals” and, only subsidiarily, the civil courts of Andorra.

9. As a consequence, the Chamber was of the opinion that the first pre-requisite for establishing the competence of an NDRC was not met, and therefore, without the need to enter the analysis of any further requirement, it established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present matter as to the substance.

10. 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 (March 2023 edition), and considering that the present claim was lodged on 1 December 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

11. 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

12. 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. pg. 9

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1. Main legal discussion and considerations

13. 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 validity of the Contract, as well as the lawfulness of the potential termination thereof.

14. In this context, the Chamber acknowledged that it its task was to determine whether the Contract was indeed validly and bindingly concluded, and if so, whether or not the termination thereof occurred with or without just cause.

15. To begin with, the Chamber recalled the argumentation of the Claimant that the Respondent, who was in possession of the only signed copy of the Contract, had torn it up, thereby terminating the employment relationship between the parties with just cause.

16. On the other hand, the Chamber noted that the Respondent denied the existence of a contractual relationship between the parties at all, and purported that the Claimant had forged a copy of the Contract, thereafter submitting it to the file and lodging the present claim in bad faith.

17. Before analysing the argumentations of the parties, the Chamber revisited the wording of art. 13 par. 5 of the Procedural Rules, which stipulates that a party relying on a certain fact bears the burden of proving its veracity.

18. Having established the above, the Chamber firstly addressed the allegations that the Respondent tore up the original version of the Contract, and that the copy on file was a

forgery.

19. In this respect, the Chamber noted that the copy submitted by the Claimant not only contained the stamp of the Respondent, but also the signature of its president. The Respondent, in this respect, provided no evidence in support of its allegation of forgery, or that the sporting director, who was dismissed several weeks after the Contract had been signed, was also the Claimant’s agent and had forged such document on the Claimant’s behalf.

20. Furthermore, and in any event, the Chamber was of the opinion that the Claimant submitted ample evidence to adequately corroborate the line of argument that there was a contractual relationship between the parties – including social media posts by the Respondent with the Claimant, as well as team sheets from match days in which the Respondent was involved, and the Claimant was listed.

21. The Chamber further wished to point out the inconsistent submission of the Respondent, who firstly argued that there was no contractual relationship at all, to subsequently changing the narrative to the Claimant being on trial. pg. 10

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22. In respect of such argumentation, the Respondent failed to provide any evidence to corroborate that the Claimant was on trial (such as a trial offer, a clause in the respective Contract or any correspondence exchanged between the parties).

23. Lastly, the Chamber wished to remark that the Respondent failed to successfully contest the allegation that it attempted to force the Claimant to signa a termination agreement / waiver, a copy of which was provided by the latter. In this respect, the Chamber emphasised that he Respondent merely alleged that the Claimant “demanded” such a waiver, without providing any evidence to undermine the fact that such document was signed, in reality, by itself.

24. Therefore, the Chamber firstly established that the Claimant submitted satisfactory evidence that there was a contractual relationship between the parties, and that the Respondent failed to meet his burden of proving that the Contract submitted to the file was a forgery.

25. Consequently, the Contract was held to be valid and binding.

26. Having established the above, the Chamber observed that the Respondent failed to provide any argumentation as to the lawfulness of the alleged contractual termination, whereas it took note of the fact that the Claimant was uncontested in arguing that the Respondent terminated the Contract on account of not being able to obtain a work permit for the Claimant.

27. The Chamber subsequently referred to art. 18 par. 4 of the Regulations, as well as its longestablished jurisprudence in arguing that a Contract may not be made subject to the existence of either a work permit or a medical examination, the former of which was applicable in the present case.

28. As such, the Chamber concluded that the Respondent terminated the Contract without just cause on 12 October 2022. ii. Consequences

29. 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.

30. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to two monthly salaries and accommodation allowances under the Contract, amounting to EUR 2,400 net. pg. 11

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31. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the net amounts which were outstanding under the contract at the moment of the termination, i.e.

EUR 2,400 (i.e. two times EUR 900 plus two times EUR 300).

32. In addition, 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 at the rate of 5% p.a. on the outstanding amounts as from the following dates:

• On the amount of EUR 1,200 net, 5% p.a. as from 11 August 2022 until the date of effective payment; - On the amount of EUR 1,200 net, 5% p.a. as from 11 September 2022 until the date of effective payment.

33. 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 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.

34. 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.

35. 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.

36. 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 player under the terms of the contract

from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of EUR 9,600 net (i.e. the residual value of the Contract, or 8 x EUR 1,200 net between October 2022 and May 2023) serves as the basis for the determination of the amount of compensation for breach of contract. pg. 12

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37. In continuation, the Chamber verified as to whether the player 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 as well as art. 17 par. 1 lit. ii) 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 in connection with the player’s general obligation to mitigate his damages. The Chamber established that the Claimant had remained unemployed, and thus failed to mitigate his damages.

38. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 9,600 net to the Claimant (i.e. the residual value of the Contract), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

39. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 12 October 2022 until the date of effective payment. iii. Compliance with monetary decisions

40. 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.

41. 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.

42. Therefore, bearing in mind the above, the DRC decided that the Respondent 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, 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 the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations. pg. 13

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43. The 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.

44. The DRC 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

45. 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.

46. 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.

47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 14

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IV. Decision of the Dispute Resolution Chamber

1. The Football Tribunal has jurisdiction to hear the claim of the claimant, Janer Alexis Ordoñez

Cuero.

2. The claim of the Claimant is partially accepted.

3. The Respondent, UE Engordany, must pay to the Claimant the following amount(s): - EUR 2,400 net as outstanding remuneration plus interest p.a. as follows: - 5% interest p.a. over the amount of EUR 1,200 net as from 11 August 2022 until the date of effective payment; - 5% interest p.a. over the amount of EUR 1,200 net as from 11 September 2022 until the date of effective payment. - EUR 9,600 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 12 October 2022 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

6. 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 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.

7. 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. pg. 15

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8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 16

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NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION: FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 17