F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 10 December 2020

Decision of the

Dispute Resolution Chamber

Passed in Zurich, Switzerland on 10 December 2020,

regarding an employment-related dispute concerning the player Santiago Ramos Mingo

COMPOSITION:

Geoff Thompson (England), Chairman

Angela Collins (Australia), member

Abu Nayeem Shohag (Bangladesh), member

CLAIMANT / COUNTER-RESPONDENT:

CA BOCA JUNIORS, Argentina

Represented by Mr. Javier Tebas Llanas and Mr. Tomas Dello Staffolo

RESPONDENT 1:

SANTIAGO RAMOS MINGO, Argentina

Represented by Mr. Santiago San Torcuato

RESPONDENT 2 / COUNTER-CLAIMANT:

FC BARCELONA, SPAIN

I. FACTS OF THE CASE

1. On an unspecified date, the parents of the Italian-Argentinian player, Santiago Ramos Mingo, born on 21 November 2001 (hereinafter: the player), Mrs. Marcela Mingo and Mr. Pedro Federico Ramos, and the Argentinian club, CA Boca Juniors (hereinafter: Boca), signed a document entitled “Boca Juniors Housing Complex Regulations” (original in Spanish, “Reglamento complejo habitacional Boca Juniors”), the purpose of which is the description of the rights and obligations arising from the player’s stay in the “housing complex” of Boca. The player did not sign such document.

2. The second clause of this document states: “El Jugador se alojará y podrá disfrutar de los beneficios de ser residente del Complejo Habitacional mientras [Boca] lo considere. Podrá [Boca] en cualquier momento, con o sin causa que lo justifique, decidir que el Jugador deba abandonar el Complejo Habitacional, sin que el presente implique compromiso alguno por parte de [Boca] por plazo alguno”, which translates freely to English as follows: “The Player will stay and will be able to enjoy the benefits of being a resident of the Housing Complex for as long as [Boca] considers it. [Boca] may at any time, with or without justifying cause, decide that the Player must leave the Housing Complex, without this implying any commitment on the part of [Boca] for any term”.

3. On an undetermined date during the year 2016, the player’s parents signed an authorization according to which they authorized the player to “reside in the Habitational Complex of Casa Amarilla, a property belonging to the Civil Club Atlético Boca Juniors [...]”.

4. The aforementioned authorization provides the following in its third section: “Así también autorizamos a [Boca] y/o cualquier persona física o jurídica autorizadas por [Boca] a reproducir, comunicar y a modificar por todo medio, fotografías, vídeos o cualquier otro material conocido o por conocer, con la imagen, completa o parcial, voz de nuestro hijo. Las fotografías y vídeos tomados podrán mostrarse en todo el mundo con fines publicitarios y para promover la actividad deportiva y a [Boca]. Por último, liberamos por medio de la presente a los ‘Responsables Autorizados’ de toda responsabilidad por cualquier daño, lesión sea leve y/o grave y/o cualquier incapacidad que pueda sufrir nuestro hijo como consecuencia de la práctica del fútbol y/o por cualquier otro motivo durante el tiempo que resida en el Complejo Habitacional”, which freely translates to English as follows: “Thus we also authorize [Boca] and / or any natural or legal person authorized by [Boca] to reproduce, communicate and modify by any means, photographs, videos or any other material known or to be known, with the complete image or partial, our son's voice. The photographs and videos taken may be shown around the world for advertising purposes and to promote sporting activity and [Boca]. Finally, we hereby release the ‘Authorized Responsible’ from all responsibility for any damage, injury, whether slight and / or serious and / or any disability that our child may suffer as a result of playing soccer and / or due to any other reason during the time you reside in the Housing Complex”.

5. Since 1 February 2015, the player is allegedly associated with the “Private System of Care Medicine (in Spanish: Sistema Privado de Medicina Asistencial) of the insurance company “Swiss Medical Group” through the corporate account of Boca.

6. On 20 August 2018, the player joined Boca’s reserve player squad, thereafter allegedly participating in 30 matches with said team.

7. On 9 January 2020, the player was invited to a meeting by Boca, in which he would be offered his first professional contract by said club.

8. On 15 January 2020, the player signed his first professional contract with FC Barcelona (hereinafter: FCB), valid until 30 June 2022.

9. On 29 January 2020, FCB requested Boca to provide it with the document confirming that there is no Third-Party Ownership in connection with the player registration via the Transfer Matching System (TMS).

10. On 30 January 2020, the Real Federación Española de Fútbol (RFEF) requested the issuance of the player’s International Transfer Certificate (ITC).

11. On 31 January 2020, Boca replied to FCB’s email stating inter alia that the player had been registered with them for the last 5 years, that he had participated in friendly games with Boca’s first team, that he had received payments largely exceeding his costs to play football, that the previous sporting director had offered the player two opportunities to sign a contract with Boca, and that the player had intentionally delayed and avoided to formalize his contractual link with Boca.

12. On 6 February 2020, Boca sent another letter to FCB alleging that the player was a professional and that the incorporation of the player with any other club without Boca’s previous agreement would lead to the obligation to pay damages

13. On 12 September 2020, the Asociación del Fútbol Argentino (AFA) rejected the issuance of the ITC alleging that there was no mutual agreement regarding the early termination of the employment contract between Boca and the player. According to the player passport obtained via TMS and issued by AFA, the player was registered as an amateur player with Boca.

14. On 19 February 2020, FCB sent a letter to Boca rejecting the contents of the correspondence dated 6 February 2020.

15. Subsequently, the RFEF, at the request of FCB, requested the intervention of FIFA regarding the players’ registration.

16. On 28 February 2020, the findings of the decision by the Single Judge of the Players’ Status Committee allowing the provisional registration of the Player with FCB were notified to the parties.

II. PROCEEDINGS BEFORE FIFA

17. On 6 August 2020, Boca filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of Boca

18. Boca filed a claim against the player and against his new club, FCB, requesting that the respondents be jointly and severally ordered to pay EUR 17,396,748 as compensation for breach of contract, in addition to being ordered to “pay the full legal costs and expenses of the proceedings”.

19. According to Boca, the player was included in its preseason with the professional team, as well as in the subsequent tour that took place during the month of July 2019 in the United States. In that context, Boca claims that the player: (a) participated in “two friendly matches: against Chivas de Guadalajara, on 06/072019; and against Tijuana on 10/07/2019”; (b) integrated the “Good Faith List submitted by Boca for the 2019 Conmebol Liberators Cup, participating in the squad that played against Club Athletico Paranaense on 24/07/2019”; (c) “He was included in the list of players to integrate the Professional Squad of Boca to play in the Argentine Super League Football Season 2019/2020 [...]”.

20. In its claim, Boca claimed that the player had been selected to be part of the first team’s pre-season beginning on 13 January 2020. In addition, Boca argued that the player did not attend that call and that, consequently, on 17 January 2020, Boca requested him to report to the trainings under penalty of discipline.

21. In this context, Boca explained that, without prior communication from the player or FCB, on 4 February 2020 the player was presented as a new player of the latter.

22. For the calculation of compensation, Boca has made an analogy between the characteristics of the player and the Argentine player Leonardo Balerdi (hereinafter: Balerdi), which was transferred from Boca to the German club, Borussia Dortmund, on 14 January 2019, for a price of EUR 15,765,189. In that regard, Boca stated that the profiles of both players are very similar, insofar as:

a. Balerdi was born in 1999 and the player was born in 2001;

b. Both players play as central defenders;

c. Balerdi’s salary amounted to USD 5,172 in the last year of his contract while the player’s salary was USD 20,511;

d. Both players played in “Boca’s lower categories”;

e. Balerdi was transferred to Borussia Dortmund on 14 January 2019, and the player was signed by FCB in January 2020.

23. In this context, once the similarities between the two players have been explained, Boca claimed that, at the time of Balerdi’s transfer to Borussia Dortmund, there still “were 802 days until the end” of the protected period “established by FIFA”. In that regard, Boca seeks to establish that the transfer price paid by Borussia Dortmund, i.e. EUR 15,765,189, divided by the number of days remaining within Balerdi’s protected period, i.e. 802 days, results in a compensation of EUR 19,657,342.

24. Following the above, Boca argued that since the player terminated his alleged contract with Boca on 13 January 2020, the player was subtracted from 885 days within the protected three-year period. Therefore, by multiplying that number of days by the daily compensation calculated in the previous paragraph, Boca concluded that, in the case of similar players, FCB should have paid it a transfer price not less than EUR 17,396,748.

25. In the alternative, Boca requested that the player and FCB be sentenced, jointly and severally, to the payment of EUR 10,250,000 as compensation for breach of contract. With regard to the calculations of that amount, Boca referred to an offer allegedly made by FCB concerning Balerdi in August 2018 for the above-mentioned price.

26. Boca insisted that the player played as a professional at his club. In support of that assertion, Boca claims that: (a) the player was registered with the AFA as a Boca player; (b) the player has been provided with accommodation, meals, medical assistance, and equipment; (c) the player, through his parents, signed two documents confirming the relationship between the parties; (d) the player has trained with Boca and has participated in “tours and seasons with the first team“; (e) the player “was included in professional squad matches and accrued economic prizes [...]”.

27. In relation to the costs incurred by Boca in favor of the player, the former claims: “The estimated cost per footballer hosted in the HABITACIONAL COMPLEX (including football training, education, food, cleaning, security, maintenance, bleaching, cleaning items, services, etc.) assumed by BOCA amounts to a direct cost minimum of USD 7,000 per year. In addition to the above benefits, full medical coverage provided to you through prepaid medicine company Swiss Medical, costing $1450 per year, should be added”. In this regard, Boca refers to “the national rule applicable in Argentina”, i.e. the Collective Labour Convention No. 557/09, which, in its Article 13, defines as a salary: “all benefits which the club is obliged to grant to the footballer and which import for him an economic advantage, whether in money, species, room or food”.

28. In addition, Boca refers to the bonuses accrued and allegedly paid to the player for playing matches in the round of 16 and quarterfinals of the 2019 Copa Libertadores for the sum of USD 9,061.70; and the bonuses for playing friendly matches during July 2019 of USD 3,000.

29. In this context, Boca alleged that the expenses incurred and the amounts received and / or accrued in favour of the player add up to a total of USD 20,511, “greatly exceeding the expenditures that the practice of amateur sport and even the minimum wage established for professional first division players of Argentine soccer. In the Collective Bargaining Agreement N ° 557/09, updated by the AFA Bulletin N ° 5501 of July 6, 20188, an annual minimum salary is established for Argentine soccer first division players for the 2018/2019 season of USD 5,200”. In view of all the foregoing, Boca concludes that, in any case, despite not having concluded an employment contract stricto sensu with the player, he held the status of professional at the time the contract was breached.

b. Position of the player

30. The player rejected Boca’s claim and argued that since joining Boca on 9 March 2015 at the age of thirteen, the player has never signed any contract with the club, contrary to what the latter is claiming.

31. The player explained that upon arrival at Boca, he resided in the Housing Complex. On this occasion, the player's parents, Mr. Pedro Federico Ramos and Marcela Fabiana Mingo, signed, in their capacity as legal representatives of the minor player, both (a) an authorization so that their son could reside in the Housing Complex of Boca and (b) the “Boca Juniors Housing Complex Regulations”. The player pointed out that this last document dated back to 2016. According to the player, such documents correspond solely, legally, and exclusively to the permission granted by the parents in their capacity “as parents or legal guardians” of the player as he was a minor, which is nothing other than the permission for the player to stay in the property belonging to the Argentine club. The player went on to state that it emerges from the documentation provided by Boca, it is not possible assimilate such documents - duly signed by the player's parents - to a professional contract.

32. In continuation, the player argued that FIFA has ample jurisprudence in this regard, with which the forced consideration of a contract attempted by Boca is “absolutely sterile”. The player emphasized that there was no professional contract signed by the parties, and that an offer from Boca, without the player accepting or signing it, constitutes pure and exclusively an offer of a professional contract, which therefore reaffirms that the player was not a professional.

33. The player confirmed that he had signed a professional player contract with FCB on 15 January 2020, once he was over eighteen (18) years old and, therefore, authorized to obtain an international transfer in accordance with Article 19 Section 1 of the Regulations on the Status and Transfer of Players (RSTP).

34. Following the above, the player outlined that he did not hold the professional status with Boca, and referred once more to the RSTP as well as CAS jurisprudence in this respect.

35. Lastly, as to the contractual breach, the player submitted that since he did not hold professional status, Boca’s claim cannot be upheld. In any event, the player argued that the calculations made by Boca lack legal basis on account of the fact that the transfer of another player to a different club cannot be considered as per the DRC jurisprudence.

36. The player concluded his submissions with the following:

a. There was no written contract between the player and Boca.

b. No amount of money was paid to the player in excess of the expenses incurred really effected by his footballing activity.

c. The player was never a professional before his contract with FCB was signed;

d. Therefore, the claim from the Boca Juniors club must be rejected.

c. Reply and counterclaim of FCB

37. FCB rejected Boca’s claim and lodged a counterclaim.

38. FCB argued that Boca’s claim is baseless on the grounds that the player was not a professional. To this end, FCB referred to art. 2 of the RSTP and the criteria listed therein, and argued that neither was met to determine the player’s status.

39. What is more, FCB referred to the letter addressed to the player by Boca and outlined that if the latter was offering a contract, it could never be deemed that the player was a professional as evidently no written contract had been executed. FCB went on to state that Boca’s argument that under Argentinian Law and the local CBA “the existence of contract is presumed when services are rendered, unless the circumstances of the case at hand or other causes demonstrate the opposite”.

40. FCB further referred to CAS case law in support of its position, as well as FIFA jurisprudence.

41. As to the counterclaim, FCB deems that Boca acted in bad faith regarding the rejection of the player’s ITC and that, accordingly, this amounts to an abuse of right that caused a damage to FCB. The latter referred to art. 5 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber and art. 2 of the Swiss Code of Obligations in this regard.

42. FCB went on to explain that because of the ITC dispute, the player could not be registered and fielded by FCB while the latter was paying his salary of February 2020. FCB argued that it “was obliged to pay the Player’s salary for the month of February in the amount of EUR 16,500 even though FCB was prevented from using the services of the player, and this due to the abuse of rights by Boca when it opposed, without any legal basis, the issuance of the ITC”.

43. Accordingly, FCB requested “to be awarded said amount as damages due to Boca’s bad faith behaviour, reserving its right to further amend this amount”.

d. Reply to the counterclaim by Boca

44. The reply to the counterclaim filed by Boca did not bear any signature by the lawyers who subscribed it. Accordingly, the FIFA general secretariat informed the parties that it would be up for the DRC to decide on the admissibility/validity of such reply.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

45. 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 6 August 2020 and submitted for decision on 10 December 2020. Taking into account the wording of art. 21 of the October 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

46. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute with an international dimension between an Italian-Argentinian player, an Argentinian club and a Spanish club in relation to an alleged employment relationship between the aforementioned parties invoked by Boca.

47. 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 Player (edition October 2020), and considering that the present claim was lodged on 6 August 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

48. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

49. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

50. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

i. Main legal discussion and considerations

1. The claim of Boca

51. 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 whether the player was a professional or an amateur while at Boca, and the consequences thereof vis-a-vis the execution of the employment contract between FCB and the player on 15 January 2020.

52. Consequently, the Chamber started by examining the status of the player with Boca, i.e. if the player was an amateur as alleged by the respondents, or if he was a professional, as claimed by Boca.

53. By doing so, the Chamber referred to the unequivocal contents of article 2 par. 2 of the Regulations, which clearly determines that the are two mandatory conditions for a player to be considered as a professional: (a) having a written contract with the club concerned and (b) being paid more for his footballing activity than the expenses he effectively incurs. The DRC highlighted that these two conditions are cumulative.

54. Having the above in mind, the Chamber underlined the aforementioned art. 12 par. 3 of the Procedural Rules, and confirmed that the application of the principle therein contained led to the clear conclusion that it was up to Boca to prove that the player was a professional, i.e. that the conditions set by the Regulations were met. Hence, it was up to Boca to demonstrate that the employment contract, on the basis of which it claims compensation for breach of contract from the respondents, indeed existed.

55. The Chamber recalled in this respect that Boca had submitted a series of documents in support of its claim, which were in continuation examined by the members of the Chamber.

56. To this end, the DRC found that the documentation filed by Boca pertaining to the “housing complex”, or any other documentation in this respect, cannot determine that the player signed a professional contract with Boca. On the contrary, the Chamber firmly established that the contents of such documents have no connection to the essentialia negotii necessary to establish an employment relationship with a contractual basis between the player and Boca. As alleged by the respondents, they pertain exclusively to the regulations concerning the habitational complex belonging to Boca where the player lived for a period of his life.

57. Additionally, the DRC observed that the letter sent by Boca to the player and dated 9 January 2020 is compelling evidence to the fact that no professional contract had been executed with the player, since in such occasion Boca itself admits that the player would be offered his first professional contract. Evidently, had the player been already a professional with Boca, the club would have never offered him his first contract.

58. Although confident of the exhaustiveness of the foregoing reasoning, the DRC wished to emphasize for the sake of completeness that the AFA issued the player’s passport on 10 August 2020, a copy of which was found in TMS. Such player passport confirmed that the player was never registered with Boca as a professional; in fact, it further confirmed that the player was at all times registered as an amateur in Argentina. The Chamber found this also as compelling proof that that no employment contract was concluded between Boca and the player, otherwise the player’s registration with AFA would indicate his professional status.

59. Having so found, the DRC held that in order for it to be able to assume that Boca and the player had indeed been bound through a contractual relationship with the terms as described by Boca, it had to be established, by documentary evidence, that the said parties had indeed entered into a respective labour agreement, and, if so, under which terms. In general, the Chamber held that it could not be assumed that an employment contract had been concluded by and between parties simply based on circumstances which, in general, could be but are not certain to indicate the signing of a contract.

60. In this respect, the Chamber agreed that it must be very careful with accepting documents, other than the employment contract, as evidence for the conclusion of a contract.

61. Based on the foregoing, the members of the Chamber had to conclude that the player and the club did not conclude an employment contract. What is more, even if it would have been possible to establish on the basis of the documents on file, other than an employment contract, that the parties had entered into a labour agreement, the Chamber wished to highlight that it would need to be in possession of such labour agreement in order to be able to properly assess the claim of the Claimant.

62. The DRC accordingly established that Boca could not discharge its burden of proof that the first condition set in art. 2 par. 2 of the Regulations – the existence of the written contract between the player and Boca – was met. For the sake of clarity, it suffices that since the first mandatory criterion of art. 2 par. 2 of the Regulations was met, the second criterion listed in the cited rule does not need to be examined by the DRC.

63. As a consequence, the Dispute Resolution Chamber decided that since the Claimant had not been able to prove that an employment contract had validly been concluded between itself and the player, there was no possibility for the Chamber to enter into the question whether or not such alleged employment contract had been breached.

64. All the above led the Dispute Resolution Chamber to conclude that the claim of Boca had to be rejected in its entirety.

2. The counterclaim of FCB

65. In continuation, the Chamber turned to the matter of the counterclaim filed by FCB, and started by acknowledging that the reply thereto filed by Boca did not contain a valid signature but solely the names of two lawyers empowered to represent Boca.

66. In this respect, the Chamber recalled the mandatory requirements enshrined in article 9bis par. 2 of the Procedural Rules, according to which only communications submitted as PDF files containing the date and a valid and binding signature shall have legal effect.

67. Consequently, the Chamber confirmed that Boca’s reply to FCB’s counterclaim shall have no legal effect. In this way, the DRC considered that Boca renounced its right to defence and thus accepted the allegations of FCB as to its counterclaim.

68. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision on the counterclaim upon the basis of the documents on file, that is, the submissions and evidence filed by the parties up to the counterclaim filed by FCB.

69. The DRC subsequently entered into the merits of the counterclaim and noted that FCB is claiming compensation for damages on the grounds that Boca had allegedly opposed the issuance of the player’s ITC on an illegal basis.

70. In this respect, the DRC wished to reiterate the principle of burden of proof, and found that FCB did not advance any evidence as to the alleged damage suffered. The DRC furthermore noted that the player was ultimately and swiftly registered with FCB after the decision rendered by the Single Judge of the Players’ Status Committee. Lastly, the DRC recalled its longstanding jurisprudence and confirmed that administrative formalities such as the registration of a player do not affect the validity of an employment contract as the one concluded between the player and FCB. The DRC was of the firm opinion that no evidence was produced to demonstrate that the (short) time between the request and the delivery of the player’s ITC to the RFEF caused any harm to FCB.

71. Based on the foregoing reasoning, the DRC decided that the counterclaim lodged by FCB had to be rejected.

d. Costs

72. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

73. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, CA BOCA JUNIORS, is rejected.

2. The counterclaim of the Respondent 2/Counter-Claimant, FC BARCELONA, is rejected.

3. The decision is rendered free of costs.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 of the Procedural Rules).

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