F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 18 June 2020
Decision of the
Dispute Resolution Chamber
passed via videoconference, on 18 June 2020,
regarding an employment-related dispute concerning the player Michael Santos
Rosadilla
COMPOSITION:
Geoff Thompson (England), Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
RAYO VALLECANO, Spain
Represented by Mr Juan de Dios Crespo Perez and Mr Alfonso León Lleó
RESPONDENTS:
MICHAEL SANTOS ROSADILLA, Uruguay
Represented by Mr José Paez
FC KOBENHAVN, Denmark
MALAGA CF, Spain
I. FACTS OF THE CASE
1) On 6 June 2016, player Michael Nicolas Santos Rosadilla (hereinafter: the player) and Malaga
Club de Fútbol (hereinafter: Malaga) concluded an employment contract valid until 3 June
2020, i.e. for 4 seasons.
2) On 14 August 2019, Malaga and Rayo Vallecano de Madrid (hereinafter: the Claimant or Rayo)
allegedly concluded a transfer agreement for the player for a fee of EUR 1,936,000.
3) On 15 August 2019, Rayo and the player signed an employment contract, valid from 14
August 2019 until 30 June 2023, according to which he would be entitled to the following
remuneration:
a) Season 2019/2020:
i) EUR 1,000,000 gross, payable in 14 payments of EUR 71,428.57 each, as 12 monthly
payments and 2 extraordinary instalments due in the first 20 days of February and July
2020, respectively.
b) Season 2020/2021:
i) For the second division: EUR 1,000,000 gross, payable in 14 payments of EUR 71,428.57
each, as 12 monthly payments and 2 extraordinary instalments due in the first 20 days
of February and July 2021, respectively.
ii) For the first division: EUR 1,150,000 gross, payable in 14 payments of EUR 82,142.85
each, as 12 monthly payments and 2 extraordinary instalments due in the first 20 days
of February and July 2021, respectively.
c) Season 2021/2022:
i) For the first division:
(a) In case Rayo was in the first division in the 2020/2021 season: EUR 1,322,500
gross, payable in 14 payments of EUR 94,464.28 each, as 12 monthly payments
and 2 extraordinary instalments due in the first 20 days of February and July
2022, respectively.
(b) In case Rayo was in the second division in the 2020/2021 season: EUR 1,150,000
gross, payable in 14 payments of EUR 82,142.85 each, as 12 monthly payments
and 2 extraordinary instalments due in the first 20 days of February and July
2022, respectively.
ii) For the second division:
(a) In case Rayo was in the first division in the 2020/2021 season: EUR 1,150,000
gross, payable in 14 payments of EUR 82,142.85 each, as 12 monthly payments
and 2 extraordinary instalments due in the first 20 days of February and July
2022, respectively.
(b) In case Rayo was in the second division in the 2020/2021 season: EUR 1,000,000
gross, payable in 14 payments of EUR 71,428.57 each, as 12 monthly payments
and 2 extraordinary instalments due in the first 20 days of February and July
2022, respectively
d) Season 2022/2023:
i) For the first division:
(a) In case Rayo was in the first division in the 2020/2021 and 2021/2022 seasons:
EUR 1,520,870 gross, payable in 14 payments of EUR 108,633 each, as 12 monthly
payments and 2 extraordinary instalments due in the first 20 days of February
and July 2023, respectively.
(b) In case Rayo was in the first division in the 2020/2021 or 2021/2022 season: EUR
1,322,500 gross, payable in 14 payments of EUR 94,464.28 each, as 12 monthly
payments and 2 extraordinary instalments due in the first 20 days of February
and July 2023, respectively.
(c) In case Rayo was in the second division in the 2020/2021 and 2021/2022
seasons: EUR 1,150,000 gross, payable in 14 payments of EUR 82,142.85 each, as
12 monthly payments and 2 extraordinary instalments due in the first 20 days of
February and July 2023, respectively.
ii) For the second division:
(a) In case Rayo was in the second division in the 2020/2021 and 2021/2011
seasons: EUR 1,000,000 gross, payable in 14 payments of EUR 71,428.57 each, as
12 monthly payments and 2 extraordinary instalments due in the first 20 days of
February and July 2023, respectively.
(b) In case Rayo was in the first division in the 2020/2021 or 2021/2011 season: EUR
1,150,000 gross, payable in 14 payments of EUR 82,142.85 each, as 12 monthly
payments and 2 extraordinary instalments due in the first 20 days of February
and July 2023, respectively.
(c) In case Rayo was in the first division in the 2020/2021 and 2021/2022 seasons:
EUR 1,322,500 gross, payable in 14 payments of EUR 94,464.28 each, as 12
monthly payments and 2 extraordinary instalments due in the first 20 days of
February and July 2023, respectively.
4) Clause 4 of the contract also stipulates that in case the player terminates the contract, in
accordance with art. 16 par. 1 and 2 of the Royal Decree 1006/1985, he must pay Rayo
compensation of EUR 50,000,000 plus applicable taxes. In a free translation from the original
in Spanish, the amount of compensation stipulated in this clause is a result of the will of the
parties and, regardless of the point in time in which the contract is terminated, it shall prevail
over any criteria of the FIFA Regulations, international law, sports regulations or any federal
regulations.
5) Clause 6 of the contract also stipulates that for whatever is not provided for in this Agreement,
the Royal Decree No. 1006/1985 dated June 26 shall be followed, to rule the special work
relationship of the professional players, the collective bargaining in effect, and all other
applicable standards.
6) On 20 August 2019, Malaga concluded a transfer agreement for the player with F.C.
Kobenhavn (hereinafter: Kobenhavn) for the total amount of EUR 2,200,000.
7) Also on 20 August 2019, the player and Kobenhavn signed an employment contract valid as
from the date of signature until 30 June 2023, for a monthly salary of DKK 739,500, a stay-on
fee of DKK 1,208,000 payable on 31 January 2020 and collective bonuses.
II. PROCEEDINGS BEFORE FIFA
A. Position of the Claimant: Rayo Vallecano
8) On 28 November 2019, Rayo lodged a claim before FIFA against the player, Malaga and
Koberhavn, requesting FIFA to determine that the employment contract between the parties
was terminated by the player without just cause and thus the latter should be held liable to
pay the compensation to Rayo in the amount of EUR 50,000,000, in accordance with the
compensation clause in the contract, plus 5% interest p.a. Rayo also requested that Malaga
and Kobenhavn should be held jointly and severally liable for the payment of the
aforementioned amount.
9) Rayo further requests that sporting sanctions be applied on the player, Malaga and
Kobenhavn, and that the respondents bear all the costs of the proceedings.
10) Rayo relies on the description of the facts made above. In addition, it claims that on 15 August
2019, Malaga and the player signed a termination agreement, ending their employment
relationship and that on 16 August 2019 the player passed the medical examination with Rayo
and his registration with the club at the Real Federacion Espanola de Futbol (RFEF) was
requested.
11) On 21 August 2019, Rayo requested the player in writing to carry out any necessary actions
to respect the contract concluded with the club and present himself at the offices of Rayo
within 48 hours from the receipt of the letter. On the same day, Rayo also addressed Malaga
and Kobenhavn in writing, reminding Malaga of the termination agreement and of the
employment contract concluded between the player and Rayo. On 26 August 2019, Rayo
again contacted the player, Malaga and Kobenhavn, granting another deadline to accomplish
all necessary actions allowing the player to join Rayo.
12) On 29 August 2019, the player replied to Rayo, pointing out that Malaga refused to sign the
termination agreement with the player in spite of him and that therefore the employment
contract signed between the player and Rayo on 15 August 2019 is invalid. On the same day,
Kobenhavn also replied to Rayo, explaining that it was not aware of the fact that Rayo and
Malaga had negotiated the transfer of the player and that it acted in good faith and in
consideration of all legal and regulatory aspects.
13) On 13 September 2019, Rayo provided Kobenhavn with the (unsigned) termination
agreement and with the employment contract signed with the player, requesting his return
in 48 hours, while reminding it of the possible application of art. 17 and 18 of the RSTP.
14) As the player did not return to Rayo, the latter lodged a claim at FIFA against him, Malaga
and Kobenhavn respectively for breach of contract without just cause, by signing two
employment contracts for the same period of time, and for inducement to breach.
B. Position of the First Respondent: the player
15) In his reply, the player first contests the competence of the FIFA DRC to deal with the present
dispute in favour of the labour courts in Spain, based on clause 6 of the employment contract
signed between the player and Rayo.
16) Furthermore, the player refers to art. 19 of the Royal Decree, which establishes that any
conflicts arisen between professional sportsmen and their clubs, as a consequence of their
employment contracts, are of the competence of the Spanish labour courts (“Los conflictos
que surjan entre los deportistas profesionales y sus clubes o entidades deportivas, como
consecuencia del contrato de trabajo, serán competencia de la Jurisdicción Laboral”).
17) Thus, the player claims that the present claim, in line with art. 22 of the Regulations and in
line with the DRC jurisprudence, is inadmissible.
18) As to the substance, the player entirely rejects the claim of Rayo and claims that the latter
acted in bad faith, by hiding the fact that Rayo and Malaga never agreed upon the definitive
terms of the transfer agreement for the player, as Malaga in fact never signed the transfer
agreement.
19) The player claims that his decision to put his signature on the transfer agreement between
Rayo and Malaga on 14 August 2019 and on the employment contract with Rayo on 15
August 2019 was flawed, since he was erroneously led to believe by Rayo that his transfer to
the latter was certain and already agreed upon with Malaga. However, he later on discovered
that the essentialia negotii were allegedly not present in the employment contract with Rayo
or in the transfer agreement with Malaga and Rayo, since the consent of one of the parties –
namely the player – is flawed, wrongly induced in error by Rayo.
20) The player claims that the document he received from Rayo had the “draft watermark” deleted
from the version Rayo had in fact received from Malaga, which induced him further into the
error of thinking that such version of the transfer agreement was definitive and already
agreed upon by Malaga and Rayo.
21) The player refers to the letter dated 16 August 2019 sent by his legal representative to Malaga,
in which he requests the latter – convinced by Rayo – to sign the termination agreement of
15 August 2019 provided to him by Malaga itself and to stop trying to modify the terms of
the transfer agreed with Rayo, finally signing the transfer agreement. The player claimed that,
in case Malaga would not respect one of aforementioned requests, it would be assumed that
it tacitly consented to them. As no reply was received from Malaga, the player again sent the
letter on 17 August 2019, 03:30 a.m., requesting the club to reply until 12:00.
22) The player also provided evidence of several emails exchanged between his legal
representative and Rayo between 17 and 19 August 2019, in which the player requests Rayo
– and even provides it with the draft of an email – to contact La Liga and ask to require Malaga
to “stop blocking the transfer” and take the necessary steps to allow the player to finally be registered with Rayo. Nevertheless, Rayo did not contact La Liga. The player also submitted
evidence of having requested Rayo any written proof that Malaga had rejected the preagreed
terms of the agreement, to which Rayo replied there wasn’t any, that having been an
oral discussion between the clubs.
23) The player deems that Rayo, in its claim, in fact acknowledges having signed an employment
contract with the player, in spite of having beforehand accused Malaga of not wanting to
comply with the terms of the transfer allegedly pre-agreed upon, finally signing the transfer
agreement. Thus, by not lodging a club v. club claim against Malaga and Kobenhavn, and
instead lodging an employment-related claim mainly against the player, Rayo commits
procedural fraud, by changing the nature of a dispute, in order not to pay procedural costs.
24) In addition, the player claims that Rayo, by accusing Malaga of not wanting to comply with
their previously agreed transfer terms and still convincing the player to sign an employment
contract with it in fact induced the player to breach his previous employment contract with
Malaga, by erroneously convincing him that his transfer from Malaga to Rayo had been
agreed and concluded.
25) In addition, the player refers to clause 3 of the transfer agreement, which stipulates that: “3.-
Que interesando al jugador el quedar vinculado de futuro al RAYO VALLECANO, conviniendo
al RAYO VALLECANO la vinculación del citado jugador para que se incorpore a su plantilla, y
conviniendo al MALAGA CF el traspaso definitivo del 100% de los derechos federativos y 100%
de los derechos económicos del jugador al RAYO VALLECANO, las partes llegan al presente
acuerdo de traspaso con base a las siguiente”. Thus, he claims that it was never his intention
to conclude an employment contract with Rayo before first having the transfer agreement
finalized.
26) Finally, he claims that no compensation is payable to Rayo, as his consent to the employment
contract was intentionally flawed by said club, which induced him to breach his employment
contract with Malaga and since Rayo did not take the necessary measures in order to enforce
the employment contract signed between Rayo and the player also against Malaga and
register him with La Liga.
27) Thus, the player requests that, in case the claim of Rayo is considered admissible, the claim
of Rayo should be rejected since the player’s consent was flawed when he signed the
employment contract with Rayo or alternatively since Rayo should not be allowed to benefit
from its own tort. In any case, the player requests that the claim of Rayo should be rejected
and that due to the latter’s procedural bad faith, the Chamber should impose procedural
costs on said club.
C. Postion of the Second Respondent: Málaga
28) In its reply, Malaga fully rejects the claim of Rayo, pointing out that it never signed a transfer
agreement with Rayo or a termination agreement with the player, since Malaga’s signature is
missing in all of these documents and they therefore do not contain all the essentialia negotii.
29) In addition, Malaga denies having given its consent to the aforementioned documents in any
alternative manner other than the usual signature. Both documents indicate the club’s
president, Sheik Abdula Nasser Bin A. Al Thani as signator and the Mercantile Registry of
Malaga makes public all the names of the persons who can sign contracts on behalf of the
club. Not only the signature of the club’s president is not on the contract, but his consent was
also not present in any other document brought to the file.
30) Therefore, Malaga claims that Rayo’s claim should be entirely rejected and that the latter
should pay procedural costs in the amount of CHF 25,000.
D. Position of the Third Respondent: Kobenhavn
31) In its reply, Kobenhavn endorses the allegations of the player and of Malaga, as to the nonexistence
of a valid transfer agreement between Rayo and Malaga and fully rejects the claim
of Rayo.
32) In particular, it claims to have signed a valid transfer agreement with Malaga and a valid
employment contract with the player on 20 August 2019, following which the player’s transfer
instruction was uploaded in TMS and approved by the Spanish association without any
objections on 21 August 2019.
33) Furthermore, according to the information contained in TMS, the player was registered with
Malaga until his transfer to Kobenhavn. Thus, Kobenhavn claims that it cannot be considered
to have induced the player to breach his employment contract and shall not be liable to pay
any compensation or suffer any sporting sanctions.
34) Finally, Kobenhavn requests that the claim of Rayo should be rejected. Kobenhavn deems
that it should not be considered the new club of the player, held jointly and severally liable
to pay any type of compensation to Rayo or imposed any sporting sanctions, costs or fees.
E. Procedural remark
35) On 6 April 2020, all parties were informed by FIFA, without prejudice of a future formal
decision, that the DRC did not appear to be competent to deal with the present dispute, but
rather the Spanish courts, in line with clause 6 of the contract, art. 19 of the Royal Decree
1006/29185 and with the Chamber’s jurisprudence.
36) The Claimant, however, reacted by requesting a formal decision by the DRC.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
A. Competence
37) In relation to the competence, 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 submitted to FIFA on 28 November
2019. Consequently, the 2019 edition of the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
38) Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the Dispute Resolution Chamber is in principle competent
to deal with employment-related disputes with an international dimension between a player
and a club.
B. Admissibility
39) Notwithstanding the above, the Chamber acknowledged that the player contested the
competence of FIFA arguing that, pursuant to clause 6 of the employment contract and art.
19 of the Royal Decree 1006/1985 of 26 June, the Spanish labour courts are competent to
deal with the substance of the present matter.
40) Furthermore, the Chamber also noted that, in spite of FIFA’s communication of 6 April 2020,
Rayo insisted that the DRC should pass a formal decision on the present case.
41) In view of the contradicting positions of the Claimant and the player regarding FIFA’s
competence, the Chamber deemed it appropriate to analyse the content of clause 6 of the
contract and of art. 19 of the Royal Decree 1006/1985 of 26 June, upon which the competence
of the Spanish labour courts would rely.
42) In this respect, the Chamber noted that clause 6 of the contract stipulates that for anything
not provided for in the employment contract, the Royal Decree 1006/1985 of 26 June is
applicable. Furthermore, it took note that art. 19 of the Royal Decree establishes that any
conflicts arisen between professional sportsmen and their clubs, as a consequence of their
employment contracts, are of the competence of the Spanish labour courts.
43) At this point, the Chamber also deemed it appropriate to refer to art. 22 of the Regulations,
according to which FIFA’s competence to hear labour disputes is “without prejudice to the
right of any player or club to seek redress before a civil court for employment-related disputes”.
44) As a consequence of the foregoing – and without entering the analysis of the merits of the
dispute or in particular the validity of the employment contract between the player and Rayo
– the Chamber concluded that the Spanish labour courts are the competent jurisdiction to
deal with any employment-related dispute arising from said contract, based on clause 6 of
the latter and art. 19 of the Royal Decree 1006/1985 of 26 June.
45) In addition, the Chamber also noted that the Claimant cannot lodge a claim based on the
employment contract between Rayo and the player, which it deems valid and binding, while
rejecting or ignoring the content of the competence clause included therein.
46) Finally, the Chamber emphasized that such conclusion is in accordance with its longstanding
jurisprudence.
II. Conclusion
47) As a result of the aforementioned, the Chamber decided that the claim of the Claimant, Rayo
Vallecano, is inadmissible, as the competence of the Spanish labour courts to deal with
employment-related disputed deriving from the contract is exclusive, in accordance with
clause 6 of the contract and art. 19 of the Royal Decree 1006/1985 of 26 June.
IV.DECISION OF THE DISPUTE RESOLUTION CHAMBER
The claim of the Claimant, Rayo Vallecano, is inadmissible.
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 (cf. CAS Directives at Legal.FIFA.com).
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).
CONTACT INFORMATION:
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