FIFA - Decisión disputa Santacruz Gonzalez 03082023

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.

If the purchase option is used, the contract will have the following conditions: o - 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: The Agent sent the Offer and the Contract to the Player for acceptance and signature. o The Player sent both the Offer and the Contract signed back to the Agent. However, the o 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 o 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: The Player was congratulated by the President for signing with the Club. o The Player requested the President to be provided with the employment contract that o would be signed in order to review it.

The Player enquired the President if he needed to send a document that cancels the o 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: The Player excused himself for not being at the Club’s premises as he had some o personal/familial problems and requested the President about the revocation of the

Offer. The President replied that he forwarded this request to the Club’s lawyer.

o

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: The Player wanted to arrange the situation and sent a copy of the Offer’s revocation o draft, to be reviewed by the Club.

In accordance with the revocation draft, the Player intended that both the Offer and o the Contract become null and void. The Player sent various messages the President to resolve this situation. The last o 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.

1. 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 Facts 30 December 2022 The Player signed (with a digital signature) the Offer and the Contract. 1 January 2023 – 4 The Player and the president of the Club exchanged January 2023 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. 16 January 2023 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 - 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. 20 January 2023 The Club provided with the agreement 1 for the Player to

review it. 22 January 2023 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. 23 January 2023 The Club provided with the agreement 2 for the Player to review it. 24 January 2023 - 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. 27 January 2023 The Club requested compensation for breach of contract. 30 January 2023 The Player was registered in TMS with the Club. February 2023 The Player signed the pre-contract of Goias 23 February 2023 Termination of the relationship with Goias 29 March 2023 The Player signed a contract with Pereira and was registered with Pereira in TMS.

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 durati