FIFA - Decisión disputa Dorregaray 14092023

REF. FPSD-10483

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Diego Fernando Dorregaray

COMPOSITION:

Martín Auletta (Argentina), Deputy Chairperson Stella Maris Juncos (Argentina), Member Mario Flores Chemor (Mexico), Member

CLAIMANT: Club Deportivo Cuenca, Ecuador Represented by c/o Andrés Holguín Martínez

RESPONDENT / CROSS-CLAIMANT:

Player Diego Fernando Dorregaray, Argentina Represented by Alipaz Abogados

CROSS-RESPONDENT:

Ismaily SC, Egypt pg. 2

REF. FPSD-10483

I. Facts of the case

1. On 29 December 2020, the Argentinian player, Diego Fernando Dorregaray (hereinafter: the player or the Respondent / Cross-Claimant) and the Ecuadorian club, CLUB DEPORTIVO CUENCA (hereinafter: CD Cuenca or the Claimant) concluded an employment contract

(hereinafter: the contract), valid as from 1 January 2021 and until the end of the Tournament 2022 (according to the information displayed in the Transfer Matching System (TMS) said tournament ended on 13 November 2022).

2. In January 2022, the Claimant and the Egyptian club, Ismaily SC (hereinafter: Ismaily or the Cross-Respondent) exchanged correspondence in connection with the eventual registration of the player with Ismaily.

3. In particular, on 8 January 2022, Ismaily sent an offer to the CD Cuenca with the following

content:

4. In reply thereto, on 8 January 2022, CD Cuenca sent a counter-offer to Ismaily (hereinafter: the counter-offer), accepting the amount payable as transfer compensation but proposing

a different payment schedule, as follows: pg. 3

REF. FPSD-10483

5. After further exchange of correspondence whereby the CD Cuenca and Ismaily made slight changes to the payment schedule, on 9 January 2022, Ismaily sent a letter to CD Cuenca, accepting the latest counter-offer of CD Cuenca (hereinafter: the acceptance), which was signed by Ismaily only (not by the player): pg. 4

REF. FPSD-10483

6. On 10 January 2022, the CD Cuenca and the player concluded a termination agreement

(hereinafter: the termination agreement), whereby the player undertook to pay to CD Cuenca a buy-out fee (hereinafter: the buy-out fee) of USD 250,000, as follows: - USD 55,000 would be compensated with credits due by the club to the player; - USD 45,000 on 10 January 2022; - USD 75,000 on 30 June 2022; - USD 75,000 on 1 December 2022.

7. Clause 3 of the termination agreement (hereinafter: the acceleration clause) states that, should the player fail to pay any of the instalments of the buy-out fee on their due dates, the residual instalments thereof would fall due.

8. On 14 January 2022, the player and Ismaily concluded an employment contract

(hereinafter: the Ismaily contract), valid as from the date of its signature and until 7 August 2026.

9. On 17 January 2022, Ismaily paid the amount of USD 100,000 as part of the transfer compensation to CD Cuenca (Exhibit 4 to the reply to the claim).

10. By means of its letter dated 4 July 2022, CD Cuenca put the player in default of payment of the 3rd instalment of the buy-out clause in the amount of USD 75,000, thereby granting the

player a deadline of 10 days to cure his breach

II. Proceedings before FIFA

a. Position of CD Cuenca, the Claimant

11. On 7 June 2023, the CD Cuenca lodged a claim against the player in front of FIFA, requesting to be awarded the total amount of USD 150,000, corresponding to the 3rd and 4th instalment of the buy-out fee, plus 5% interest p.a. as from 30 June 2022 until the date of effective payment.

12. In its claim, CD Cuenca argued that despite having agreed to conclude the termination agreement – upon the player’s request – and having agreed on a certain amount to be paid by the player as buy-out fee, the player failed to respect his contractual obligations despite having been put in default of payment. pg. 5

REF. FPSD-10483

13. In this regard, while referring to the acceleration clause contained in the termination agreement, the Claimant requested the default interest to run as from the date on which the player was at default of payment, i.e. as from 30 June 2022, when the player failed to pay the 3rd instalment of the buy-out fee.

b. Position of the player, the Respondent / Cross-Claimant

14. In his reply and cross-claim, the player argued – inter alia – the following: - That, by the time of the conclusion of the termination agreement, CD Cuenca owed the player USD 55,000, which would have given just cause to the player to terminate the contract. - That the amount of the buy-out fee exceeded in much the residual value of the contract and the only reason why the player accepted to sign the termination agreement was because it was so agreed within the context of the negotiations undertaken between CD Cuenca and Ismaily. - In view of the aforementioned, the player argued that the termination agreement simply echoed the transfer agreed between the CD Cuenca and Ismaily (evidence of

which are the offer, the counter-offer and the acceptance) and that, therefore, rather than Ismaily signing the player as a free agent, what occurred was a hidden transfer of the player. - In this context, the player argues that it shall be Ismaily the party that shall be condemned to pay the remainder of the buy-out fee, as it is rather a transfer compensation, also considering that the only beneficiary of this particular scheme has been Ismaily. - In addition, to the above, the player stressed that, in the offer, CD Cuenca explicitly mentions that Ismaily would be – together with the player – co-responsible to pay the transfer compensation and that, in Ismaily’s letter of 9 January 2022, Ismaily did not oppose to it. - That, on 17 January 2022, Ismaily paid the amount of USD 100,000 as part of the transfer compensation to the Claimant, which serves as proof that Ismaily was responsible for the payment of the transfer fee. - That the Claimant did not send any default notice to the player, which is confirmed by the fact that the Claimant failed to provide any proof of delivery of its letter of 4 July 2022. pg. 6

REF. FPSD-10483

15. In view of all of the above, the player requested the claim of the Claimant be rejected, as it was the club the party that committed to perform the payment of the amounts claimed by the Claimant, since Ismaily and the Claimant agreed on a hidden transfer of the player and Ismaily performed the first payment of the transfer compensation.

16. In this context, arguing that the player is not liable to make any payment whatsoever to the Claimant, the player requested Ismaily be held liable to pay the outstanding transfer compensation to CD Cuenca (the cross-claim).

c. Rejoinder of CD Cuenca, the Claimant

17. In its rejoinder, the Claimant maintained – inter alia – the following:

• That the evidence provided by the player does not constitute any contract concluded between the Claimant and Ismaily, which were only negotiating an eventual transfer of the player. - That the Claimant and the player were the only contracting parties to the termination agreement, which conclusion is not disputed by the player and that the player, thereby, committed to pay to the Claimant the abovementioned buyout fee. - That there is no proof of any acceptance of Ismaily to pay the buy-out fee on behalf of the player. In this respect, the Claimant contests the validity of the evidence provided by the player as Exhibit 4 to the reply, i.e. the e-mail whereby Ismaily would have admitted having paid the amount of USD 100,000 to the Claimant. In addition, the Claimant referred to the termination agreement, whereunder the parties agreed that the first instalment of USD 100,000 would be lowered to USD 45,000 in view of the debt of the Claimant towards the player and that, therefore, no payment of USD 100,000 was ever made, which shows that the allegations of the player are false. - That the notification of 4 July 2022 was sent to the player’s wife, to whom previous correspondence addressed to the player had been sent.

d. Final comments of the player, the Respondent / Cross-Claimant

18. In his duplica, the player held – inter alia – the following: - That, even though the player signed the termination agreement, the facts that: 1.) the Claimant and Ismaily exchanged correspondence aiming at the transfer of the player, pg. 7

REF. FPSD-10483 whereby the parties gave their consent to transfer the player against payment of a transfer compensation; 2.) the said parties – thereby – agreed on Ismaily being at least jointly and severally liable together with the player, to pay the transfer compensation; 3.) the transfer compensation exceeds in much the residual value of the contract; 4.)

Ismaily was the party proceeding with the first payment of the transfer compensation; all points to the direction that the player was not signed as a free agent by Ismaily but that there existed a hidden transfer of the player and that Ismaily was the party that undertook to pay the transfer compensation to the Claimant. e. Comments of Ismaily, the Cross Respondent

19. In its comments, Ismaily argued, inter alia, the following: - That Ismaily was not a party to the termination agreement, which was freely entered into between the player and the Claimant. - That – in the negotiations undertaken between the Claimant and Ismaily – it was always clear that the player would be signed by Ismaily as a free agent and that, therefore, a transfer agreement was never concluded between the parties.

20. As to the payment of USD 100,000 made in favour of the Claimant, Ismaily acknowledged having paid it – allegedly on behalf of the player – and held the following: - “After joining Ismaily, the Player asked Ismaily to pay an amount of USD 100,000 on his behalf to the Claimant to be deducted from the Player’s financial dues of the second season under the employment contract between him and Ismaily”. - “Ismaily had no reason to reject the Player’s request, in all ways the paid amount of USD 100,000 ought to be deducted from the Player’s financial dues. Moreover, Ismaily believed it would strengthen the mutual relationship between it and the Player bearing in mind that he was a newcomer at the Club”.

21. In view of the above and stressing that the Claimant has not named Ismaily as a Respondent, Ismaily requested not to be involved in the matter at hand as a Respondent and, should it need to be, Ismaily requested the economic liability be split between the player and Ismaily as follows: “Alternatively, if Ismaily shall bear any liability, it shall be limited to USD 25,000 only as stated above, and the remaining USD 125,000 shall be borne and paid by

the Player”. pg. 8

REF. FPSD-10483

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

22. 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 7 June 2023 and submitted for decision on 14 September 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.

23. 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 May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Ecuadorian club, an Argentinian player and an Egyptian club

24. 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 (May 2023 edition) and considering that the present claim was lodged on 7 June 2023, the May 2023 edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

25. 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

26. 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

REF. FPSD-10483

1. Main legal discussion and considerations

27. The DRC unanimously concluded that, by means of the exchange of correspondence maintained between the Claimant and Ismaily on 8 and 9 January 2022, i.e. the offer, counter-offer and acceptance, the said parties agreed on the permanent transfer of the player from the Claimant to Ismaily against payment of a transfer compensation of USD

250,000.

28. In this respect, although the player was not included in the said exchange of correspondence, the Chamber noted that the Claimant and the player signed a separate document, namely, the termination agreement, whereby the parties agreed on the termination of the contract and on the player participating in the payment of the transfer compensation of USD 250,000, irrespective of said amount being called buy-out fee under the termination agreement (irrelevance of nomen iuris).

29. In this context, the Chamber underscored that any argument of the Claimant or Ismaily in the sense that no transfer of the player occurred, as the Claimant and the player validly signed a termination agreement and as the player was signed by Ismaily as a free agent needs to be rejected, insofar as multiple events demonstrate that – as maintained by the

player – what took place was a hidden transfer (permanent) of the player from the Claimant to Ismaily. In particular, the key events that demonstrate such extent are the following, underlined the Chamber: - The fact that both agreements (the one concluded between the Claimant and Ismaily via e-mails and the termination agreement entered into between the Claimant and the player) were concluded with a difference of 1 day, which creates the legitimate appearance that both were concluded within the scope of the same legal framework, i.e. the transfer of the player. - The fact that both agreements contain the same amount payable in order for the player and the Claimant to terminate the contract and for the player to be signed by Ismaily, i.e. USD 250,000, be it called transfer compensation or buy-out fee. - The fact that – as acknowledged by Ismaily – the latter paid the first instalment of the transfer compensation in the amount of USD 100,000 on 17 January 2022 demonstrates that – at least in a jointly fashion – Ismaily was aware that it was liable to pay to the Claimant the transfer compensation agreed, which was also mentioned in the counter-offer submitted by the Claimant and not disputed by Ismaily in the acceptance.

30. In view of the abovementioned considerations, the Chamber conclude that both agreements jointly constitute a transfer agreement with all legal effects. - pg. 10

REF. FPSD-10483

31. In this context, the DRC decided that both, the Respondent player and Ismaily, shall be held jointly and severally liable to pay to the Claimant the remainder of the transfer compensation. In this regard, although both, the Claimant and Ismaily, refuse Ismaily to be considered as a Respondent within the scope of the present proceedings, the DRC determined that that Ismaily shall be considered as a Respondent in the matter at hand in

view of the fact that, in its reply to the claim, the player expressly requested Ismaily be condemned to pay to CD Cuenca the remainder of the buy-out fee / transfer compensation due.

32. In view of this specific request, the DRC determined that the player did, thereby, lodge a cross claim against Ismaily, reason why the Chamber considered Ismaily as a CrossRespondent in the present proceedings.

33. However, continued the DRC, it needs to be noted that there is a discrepancy between the amount payable as transfer compensation under the transfer agreement concluded between the Claimant and Ismaily via the abovementioned exchange of emails and under the termination agreement entered into between the Claimant and the player: whereas the former indicates that the amount payable by Ismaily is USD 250,000, the latter indicates that the amount payable by the player is USD 250,000 minus the amount of USD 55,000 that was due by the Claimant to the player (compensation of credits).

34. In view of the above, the DRC decided that the credit in favour of CD Cuenca can only amount to USD 95,000 in view of the following calculations: - Transfer compensation agreed: USD 250,000; - Amount compensated with the player’s credit: USD 55,000 - Amount already paid by Ismaily: USD 100,000; Current outstanding amount: USD 95,000 (250,000 – (55,000 + 100,00) = 95,000). ii. Consequences

35. 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 player and Ismaily.

36. The Chamber observed that the outstanding remuneration due to CD Cuenca amounts to USD 95,000, in view of the aforementioned considerations.

37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the player (Respondent / Cross-Claimant) and Ismaily (CrossRespondent) are jointly and severally liable to pay to the Claimant the amount of USD 95,000. pg. 11

REF. FPSD-10483

38. As for the default interest requested by the Claimant, the Chamber decided that, considering the blatant lack of transparency in the performance of the transfer of the player, the default interest to be awarded to the Claimant, at the rate of 5% p.a., shall only run as from the date on which the claim was lodged, i.e. as from 7 June 2023, also considering the fact that the Claimant did not provide any evidence of having put the Respondents in default of payment. iii. Compliance with monetary decisions

39. 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.

40. In this regard, the Chamber highlighted that, 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. Equally, the DRC underlined 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.

41. Therefore, bearing in mind the above, the DRC decided that the player and Ismaily are jointly and severally liable to 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.) 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; and b.) 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 Ismaily in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

42. The player and Ismaily 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.

43. 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. pg. 12

REF. FPSD-10483

d. Costs

44. 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.

45. 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.

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

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Club Deportivo Cuenca, is partially accepted.

2. The claim of the Respondent / Cross-Claimant, Diego Fernando Dorregaray, is partially accepted.

3. The Respondent / Cross-Claimant and the Cross-Respondent, Ismaily SC, are jointly and

severally liable to pay to the Claimant the following amount: - USD 95,000 as outstanding remuneration, plus 5% interest p.a. as from 7 June 2023 until the date of effective payment.

4. Any further claims of the Claimant and of the Respondent / Cross-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 / Cross-Claimant shall be imposed with 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. pg. 13

REF. FPSD-10483

2. The Cross-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.

3. 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.

8. 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 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. 14