FIFA - Decisiones estatuto del jugador - Cancela Duran 24012023

REF FPSD-8056

Decision of the Players Status Chamber passed on 24 January 2023 regarding an employment-related dispute concerning the coach Cancela

Duran Jose Carlos BY: Angélica Islas (Mexico), Single Judge of the Players Status Chamber

CLAIMANT:

Cancela Duran Jose Carlos, Argentina Represented by Nihat Güman

RESPONDENT:

Al Ahli, Saudi Arabia

REF FPSD-8056

I. Facts of the case

1. The Argentinian coach, Cancela Duran Jose Carlos (hereinafter: the Claimant or coach), and the Saudi Arabian club, Al Ahli (hereinafter: the Respondent or club) signed an employment contract, valid as from 20 July 2022 until 20 May 2023.

2. In accordance with clause 2 of the contract, the Respondent undertook to pay to the Claimant the following: “The Total wages of the Assistant coach for the Term of this Agreement is USD 100.000 one hundred thousand dollars ) net, payables during the period from 20/07/2022 through to 20/05/2023 with a monthly salary basis: net USD 10.000”

3. On 22 September 2022, the Claimant put the Respondent in default and requested payment in the total amount of USD 30,000 corresponding to salaries due for July, August and September 2022, setting a 15 days’ time limit in order to remedy the default.

4. On 8 October 2022, due to the failure by the Respondent to comply with his default notice the Claimant proceeded to terminate the contract.

II. Proceedings before FIFA

5. On 1 November 2022, 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

6. According to the Claimant, the Respondent has failed to comply with its contractual

obligations, as it only paid an amount of USD 10,000 to the Claimant during the contract period.

7. The requests for relief of the Claimant, were that the Respondent pay him:

(a) USD 20,000 as outstanding amount plus interest of 5% from due date of each payment (b) USD 70,000 compensation plus USD 30,000 mitigated compensation totally USD 100,000 plus 5% interest per annum from the date of termination on 8 October 2022 b. Position of the Respondent

8. In its reply, the Respondent, mentioned the following: “The Club has notified the claimant orally that they shall terminate their contract by a termination agreement drafted and sent to them on September 22nd, and on September 28th REF FPSD-8056 the coach’s representative replied to the sent email, informing the club that they accept the club’s proposal.”

9. Therefore, according to the Respondent “this proves that the contract was terminated from the day the coach’s representative sent their approval of the termination agreement, long before they sent their termination notice.”

10. Additionally, the Respondent mentioned that the “main reason that the Respondent did not start paying the amounts stated on the termination agreement, is that the claimant started arguing on the amounts just after they informed the club of their approval.”

11. In conclusion, the Respondent requested the following relief:

(a) “To reject the Coach’s claim entirely; (b) To confirm that no compensation shall be payable by the Club to the Coach (c) if any costs of the proceedings shall be due, to order the Claimant to cover such costs in full” c. Additional comments of the Claimant

12. The Claimant provided the following additional comments relating to the termination

agreement: (a) “The Mutual termination agreement has never been signed by the Claimant and in this regard, he mentioned the following: - “In the first place, we have sent default notice on 22 September 2022.

• Club has sent mutual termination notice on 24 September 2022 by E-mail. - Our client has accepted payment offer on the conditions that the club has to provide to Cancela Duran Jose CARLOS a ticket Jeddah to San Diego (Uruguay) by E-mail on 28

September 2022. - The club did NOT provide ticket to Cancela Duran Jose CARLOS. - Therefore, the acceptance conditions have never been completed and Cancela Duran

Jose CARLOS DID NOT SIGNED THE OFFER.”

(b) The club also did not provide any proof and evidence that the club has bought /provided ticket to Claimant. (This was condition of acceptance of offer) (c) The club also did not provide any proof and evidence that the club has made any payment to Cancela Duran Jose CARLOS on 4 October 2022 according to the Mutual Termination Offer (d) The mutual termination offer has never come into force and binding for the side of Cancela Duran Jose CARLOS.”

REF FPSD-8056

III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

13. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as Single Judge) analysed whether she was competent to deal with the case at hand. In this respect, she took note that the present matter was presented to FIFA on 1 November 2022 and submitted for decision on 24 January 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.

14. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 2 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players October 2022 edition), the Single Judge

is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Argentinian coach and a Saudi Arabian club.

15. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, she 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 1 November 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

16. The Single Judge 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 Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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

17. Her competence and the applicable regulations having been established; the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations she will refer only to the facts, arguments, and documentary evidence, which she considered pertinent for the assessment of the matter at hand.

REF FPSD-8056

1. Main legal discussion and considerations

18. The foregoing having been established, the Single Judge 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 contract by the Claimant on 8 October 2022, based on the alleged nonpayment of certain financial obligations by the Respondent as per the contract.

19. In this context, the Single Judge acknowledged that her task was to determine, based on the evidence presented by the parties, whether the claimed amounts had in fact remained unpaid by the Respondent.

20. The Single Judge noted that the Claimant claims not having fully received his remuneration corresponding to the months of July, August, and September 2022.

21. The Single Judge further noted that the Respondent argued that the parties mutually agreed to terminate the contract and that its proposal in light of the aforesaid termination was accepted by the Claimant as per his correspondence of 28 September 2022.

22. Furthermore, the Single Judge observed that the Claimant on his account argued that he accepted the payment offer as per the Respondent’s proposal on the condition that the Respondent in addition provide to him a flight ticket to San Diego (Uruguay), moreover that he indicated that he never signed the termination agreement and that on his account it therefore never became final and binding.

23. The Single Judge therefore turned her attention to the negotiations between the parties, specifically to the correspondence exchanged in the context of the alleged acceptance of the Respondent’s proposal on 28 September 2022. In this regard, the Single Judge observed that, the Claimant indeed requested a flight ticket to San Diego (Uruguay), moreover that it is clear that he failed to sign the mutual termination agreement as provided by the

Respondent.

24. While referring to art. 13 par. 5 of the Procedural Rules and the principle of the burden of proof, the Single Judge understood that the Respondent did not meet its burden of proof in order to demonstrate that the Claimant had indeed accepted its proposal by means of a duly signed mutual termination agreement. As a consequence, the Single Judge decided that the mutual termination agreement on the basis of it not being duly signed by both parties, was not final and binding and therefore cannot be considered in the assessment

of this matter.

25. In continuation, the Single Judge remarked that the contract was terminated by the Claimant on 8 October 2022.

REF FPSD-8056

26. The Single Judge highlighted that the contract commenced on 20 July 2022 and that the said contract indicates that the Claimant’s salary is due on a monthly basis at USD 10,000 per month. Furthermore, that the Claimant confirmed that the Respondent paid him an amount of USD 10,000 during the contract period, hence, the Single Judge was of the opinion that taking all of the aforesaid into account at the date of termination of the contract i.e. 8 October 2022 – salaries equivalent to two months were not outstanding and therefore the Claimant had no just cause to terminate the contract.

27. On the basis of this fact, the Single Judge mentioned that it could only consider the part of the Claimant’s claim which relates to the salaries which were outstanding and due to the Claimant at the date of termination, i.e., 8 October 2022, and that as such the Claimant’s request for compensation for breach of contract had to be rejected.

28. The Single Judge therefore concluded that the Respondent must fulfil its obligations as per the employment contract relating to the outstanding remuneration up until date of termination of the contract i.e. 8 October 2022. ii. Consequences

29. Having stated the above, the Single Judge decided that as a consequence, the Respondent is liable to pay to the Claimant the amount of USD 10,000 as outstanding remuneration, which corresponds to USD 10,000 - August salary due on 20 September 2022.

30. What is more, based on its well-established jurisprudence as well as taking into account the Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above amounts as from the respective due dates. iii. Compliance with monetary decisions

31. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 8 par. 1 and 2 of Annexe 2 of the Regulations, which stipulate that, with her 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.

32. In this regard, the Single Judge 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.

33. Therefore, bearing in mind the above, the Single Judge 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 REF FPSD-8056 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. 8 par. 2, 4, and 7 of Annexe 2 of the Regulations.

34. 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.

35. The Single Judge 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. 8 par. 8 of Annexe 2 of the Regulations.

d. Costs

36. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.

37. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be awarded in these proceedings.

38. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties.

REF FPSD-8056

Decision of the Players Status Chamber

1. The claim of the Claimant, Cancela Duran Jose Carlos, is partially accepted.

2. The Respondent, Al Ahli, has to pay to the Claimant, the following amount: - USD 10,000 as outstanding remuneration plus 5% interest p.a. as from 21 September 2022 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. 8 of Annexe 2 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. 8 par. 7 and 8 of Annexe 2 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

REF FPSD-8056

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).

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