FIFA - Decisión disputa Perez Ramirez 11052023

REF. FPSD-8985

Decision of the Dispute Resolution Chamber passed on 11 May 2023 regarding an employment-related dispute concerning the player Maireth Alejandra Perez Ramirez

COMPOSITION:

Clifford J. HENDEL (USA/France), Deputy Chairperson Alejandro ATILIO TARABORELLI (Argentina), member Stella MARIS JUNCOS (Argentina), member

CLAIMANT:

Maireth Alejandra Perez Ramirez, Colombia Represented by Ivan Bykovskiy

RESPONDENT: Ñañas, Ecuador pg. 2

REF. FPSD-8985

I. Facts of the case

1. On 15 September 2021, the Colombian player Maireth Alejandra Perez Ramirez (hereinafter: the Claimant or the Player) and the Ecuadorian club Ñañas (hereinafter: the Respondent or the Club) concluded an employment contract (hereinafter: the Contract).

2. Clause 8 of the Contract reads as follows: El sueldo mensual que "LA JUGADORA" recibirá debido al servicio prestado asciende a la suma USD$700 (SETESCIENTOS DÓLARES DE ESTADOS UNIDOS DE AMÉRICA), valor que incluye el salario, proporcional de décimo tercer y décimo cuarto sueldo y horas extras Además, a "LA JUGADORA" se le ofrece hospedaje, costo que será cubierto por el "CLUB NANAS".

Adicionalmente, "LA JUGADORA" podrá recibir un bono de USD$60 (SESENTA DÓLARES DE LOS ESTADOS UNIDOS DE AMÉRICA) por partido oficial Jugado un mínimo de 70 minutos a favor del

"CLUB ÑAÑAS".

Sumado a esto, "LA JUGADORA" recibirá un bono de USD$500 (QUINIENTOS DÓLARES DE LOS

ESTADOS UNIDOS DE AMÉRICA) a la firma del presente contrato y de USD$500 (QUINIENTOS DÓLARES DE LOS ESTADOS UNIDOS DE AMÉRICA) al iniciar la pretemporada para la temporada 2023.

Free translation into English: The monthly salary that "THE PLAYER" will receive due to the service provided amounts to the sum of USD$700 (SEVEN HUNDRED UNITED STATES DOLLARS), which includes salary, proportional thirteenth and fourteenth salary and overtime.

In addition, "THE PLAYER" is offered accommodation, cost to be covered by the "CLUB NANAS". Additionally, "THE PLAYER" may receive a bonus of USD$60 (SIXTY UNITED STATES DOLLARS) per official match played a minimum of 70 minutes in favor of "CLUB NANAS". In addition to this, "THE PLAYER" will receive a bonus of USD$500 (FIVE HUNDRED UNITED STATES DOLLARS) at the signing of this contract and USD$500 (FIVE HUNDRED UNITED STATES DOLLARS) at the beginning of the pre-season for the 2023 season.

3. Clause 9 of the Contract reads as follows: El presente contrato se encuentra vigente a partir de su firma, sin embargo, la ejecución del mismo

(inicio de pagos, afiliación, los demás compromisos del "CLUB ÑAÑAS") empezará a partir de que la jugadora empiece sus entrenamientos regulares con el club con una duración mínima de 2 temporadas o la participación del "CLUB ÑAÑAS" en los campeonatos en los que "LA JUGADORA" sea inscrita durante el año 2022, 2023 o que sean pertinentes a la temporada 2022, 2023 incluyendo la participación del Club en Copa Libertadores, en caso de clasificación tras jugar la Superliga Femenina 2022, 2023, que se podrá jugar posterior al 2023 y solo terminará una vez que

la participación del "CLUB ÑAÑAS" en dichos campeonatos haya concluido, indistintamente de la pg. 3 REF. FPSD-8985 fecha que sea.

Free translation into English: This contract is in force as of its signing, however, its execution (start of payments, affiliation, the other commitments of the "CLUB ÑAÑAS") will begin as soon as the player begins her regular training with the club with a minimum duration of 2 seasons or the participation of the "CLUB ÑAÑAS" in the championships in which "THE PLAYER" is registered during the year 2022, 2023 or that are relevant to the 2022, 2023 season including the participation of the Club in Copa Libertadores, in case of classification after playing the 2022, 2023 Women's Super League, which can be played after 2023 and will only end once the participation of the "CLUB ÑAÑAS" in said championships has concluded, regardless of the date it is."

4. Clause 13 of the Contract reads as follows: Para los efectos que se deriven de la aplicación del presente Contrato, las Partes renuncian a fuero y domicilio y señalan como jueces únicos y competentes a los miembros del Tribunal de Arbitraje Especial de la Federación Ecuatoriana de Fútbol, renunciando expresamente a los jueces que administran la justicia ordinaria en el Ecuador.

Free translation into English: For the effects derived from the application of this Contract, the Parties waive jurisdiction and domicile and appoint as sole and competent judges the members of the Special Arbitration Court of the Ecuadorian Football Federation, expressly waiving the judges who administer the ordinary justice in Ecuador.

5. On 12 December 2022, the Claimant sent a default notice to the Respondent requesting the

payment of the partial salary of October and the full salary of November 2022 and requested instructions for her reincorporation after vacations granting a deadline of 15 days to remedy the default, to no avail.

6. On 3 January 2023, the Claimant sent a default notice requesting the salaries of October (partially), November and December 2022, granting a deadline of 15 days to remedy the default, to no avail.

7. On 19 January 2023, the Claimant sent a notice of termination to the Respondent via email, via the Ecuadorian FA and courier terminating the Contract adducing just cause.

8. On 17 February 2023, the Claimant concluded an employment contract with the Colombian club Millonarios valid until 30 June 2023 (hereinafter: the Millonarios Contract).

9. On 28 February 2023, FIFA general secretariat closed the submission phase of the proceeding.

10. On 25 March 2023, the Respondent filed a submission. pg. 4

REF. FPSD-8985

II. Proceedings before FIFA

11. On 20 January 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

12. The Claimant acknowledges the existence of Clause 13 of the Contract, however the Claimant “renounces its application in virtue of the existing CAS jurisprudence, which stated clearly and expressly that the Special Arbitration Court of the Ecuadorian Football Federation could not be considered an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement in the sense of article 22 of the FIFA RSTP”.

13. Therefore, in the view of the Claimant, the FIFA DRC is competent to hear the dispute at hand.

14. The Claimant states that the salary for October 2022 was only partial, the Club paid according to this receipt despite the refusal of the Player the partial monthly salary of USD 429,03. Thus, the

difference of USD 270.97 remained unpaid.

15. The Claimant sustains that at the moment of termination, more than two monthly salaries were unpaid (partial October, November and December 2022). However, the Club did nothing to remedy its financial breach toward the Player.

16. The Claimant states that after putting the Respondent in default on 3 January 2023 and the failure to comply, she had just cause to terminate the Contract.

17. However, the Claimant states that when “the Player's legal representative tried to formally notify the Club of the termination of the Player's employment contract on January 19, 2023, when the said notification did not arrive to the Club's emails (both indicated in this claim, info@clubnanas.com,

fernandav@clubnanas.com, the second one being even the email registered in the FIFA TMS system). The message from the mail delivery system indicated, "the email was not found." the Club acted in bad faith to avoid being formally notified of the Player's contract termination.”

18. The Claimant states that at the time of the termination on 19 January 2023, the salaries of November 2022 and December 2022 had not been paid. Moreover, part of the salary for October 2022 was not paid in full either. Therefore, the salaries due are USD 1,670.97.

19. The Claimant sustains that at the moment of termination on 19 January 2023, the residual value is equal to USD 6,300.

20. The Claimant claims the total amount of compensation under article 17 of FIFA RSTP is USD

11,000.

21. The Claimant filed the following requests for relief:

1. The Claim of the Claimant, Ms. Maireth Alejandra Pérez Ramírez, is accepted. pg. 5

REF. FPSD-8985

2. The Respondent, Club de Fútbol Ñañas, Ecuador, is obliged to pay the following amounts:

• USD USD 1.670,97 in a concept of outstanding salaries and bonuses; - USD 11.000 as compensation for breach of the contract and termination without just cause based on art. 17.1. of FIFA RSTP;

3. The interest at 5% p.a. is applied on any outstanding payment from the date of the due payment until the effective date of payment on any amount, being salaries, bonuses, or compensation for breach of the employment contract, as the penalty for the delay of payment and per the longstanding jurisprudence of FIFA DRC: - 5% p.a. applies on USD 270,97 from 01.11.2022 until the effective date of payment; - 5% p.a. applies on USD 700 from 01.12.2022 until the effective date of payment; - 5% p.a. applies on USD 700 from 01.01.2023 until the effective date of payment; - 5% p.a. applies on USD 11.000 from 20.01.2023 until the effective date of payment;

b. Position of the Respondent

22. Despite being invited to submit its position, the Respondent failed to reply to FIFA in a timely manner.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

23. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the DRC” or “the Chamber”) 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 20 January 2023 and submitted for decision on 11 May 2023. Taking into account the wording of art. 34 of the October 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

24. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 Regulations on the Status and Transfer of Players (October 2022), it is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Colombian player and an Ecuadorian club.

25. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition) and considering that the present claim was lodged on 20 January 2023, the October 2022 edition of said regulations

(hereinafter: the Regulations) is applicable to the matter at hand as to the substance. pg. 6

REF. FPSD-8985

b. Burden of proof

26. 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

27. 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.

1. Main legal discussion and considerations

28. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the case at hand consists of the early termination of the contract by the Claimant, based on the alleged non-payment of certain financial obligations by the Respondent as per the contract, in accordance with art. 14bis of the Regulations. Furthermore, the Chamber underlined that the claim remains uncontested by the Respondent.

29. In this context, the Chamber acknowledged that its task was to determine, based on the evidence presented by the parties, whether the claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had in fact been fulfilled.

30. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).

31. The Chamber noted that the Claimant claims not having received his remuneration corresponding to October (partially) to December 2022. Furthermore, the Chamber noted that the Claimant has provided written evidence of having put the Respondent in default on 3 January 2023, i.e. at least 15 days before unilaterally terminating the contract on 19 January 2023.

32. The Chamber also noted that in the case at hand the Respondent bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties.

33. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the contract, based on art. 14bis of the Regulations.

pg. 7 REF. FPSD-8985 ii. Consequences

34. 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.

35. 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 USD 2,100 (salaries of November 2022 to January 2023) and USD 270,97 (partial salary of October 2022).

36. 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 amounts which were outstanding under the contract at the moment of the termination, i.e. USD 2,370.97.

37. 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 respective due dates until the date of effective payment.

38. 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.

39. 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.

40. 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.

41. 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 USD 5,900 (i.e. the residual value) serves as the basis for the determination of the amount of compensation for breach of contract.

42. 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 pg. 8

REF. FPSD-8985 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.

43. Indeed, the player found employment with Millonarios. In accordance with the pertinent employment contract, the player was entitled to approximately COP 20,000,000 (COP 4,000,000 5 months), equal on 17 February 2023 to USD 3,832.66. Therefore, the Chamber concluded that

the player mitigated his damages in the total amount of USD 3,832.66.

44. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract termination took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

45. In this respect, the DRC decided to award the amount of additional compensation of USD 2,100, i.e. three times the monthly remuneration of the player.

46. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of USD 4,167.34 to the player (i.e. USD 5,900 minus USD 3,832.66 plus USD 2,100), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

47. 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 20 January 2023 until the date of effective payment. iii. Compliance with monetary decisions

48. 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.

49. 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.

50. 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. 9

REF. FPSD-8985

51. 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.

52. 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

53. 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.

54. 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.

55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-8985

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Maireth Alejandra Perez Ramirez, is partially accepted.

2. The Respondent, Ñañas, must pay to the Claimant the following amount(s): - USD 2,370.97 as outstanding remuneration plus 5% interest p.a. as follows: On USD 270,97 from 1 November 2022 until the date of effective payment; On USD 700 from 1 December 2022 until the date of effective payment; On USD 700 from 1 January 2023 until the date of effective payment; On USD 700 from 19 January 2023 until the date of effective payment; - USD 4,167.34 as compensation for breach of contract without just cause plus 5% interest p.a. as from 20 January 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the

enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment (including all applicable interest) is not made within 45 days of notification of this decision, the following

consequences shall apply:

1. The Respondent 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.

6. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 11

REF. FPSD-8985

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. 12