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 19 November 2020

Decision of the

Dispute Resolution Chamber

passed on 19 November 2020,

regarding an employment-related dispute concerning the player Federico Pablo Ezequiel Ruiz

COMPOSITION:

Geoff Thompson (England), Chairman Daan de Jong (Netherlands), member Michelle Colucci (Italy), member

CLAIMANT:

SPORTING CLUBE DE PORTUGAL, Portugal

Represented by Mr José Carlos Oliveira and Mr José Miguel Albuquerque

RESPONDENT:

FEDERICO PABLO EZEQUEIL RUIZ, Argentina

I. FACTS OF THE CASE

1. On 15 April 2016, the Portuguese club, Sporting Clube de Portugal (hereinafter: Claimant or club) and the Argentinian player, Federico Pablo Ezequiel Ruiz (hereinafter: Respondent or player) concluded an employment contract (hereinafter: contract), valid as from 1 July 2016 until 30 June 2020.

2. According to the contract, the Claimant undertook to pay the Respondent a monthly salary of EUR 20,833.33.

3. On 13 September 2018, the Claimant, the Respondent and the Portuguese club, SU Sintrense, concluded an agreement (hereinafter: loan agreement) regarding the temporary transfer of the player from the Claimant to SU Sintrense until 30 June 2019.

4. According to the loan agreement, the Claimant would continue to the player’s salary as agreed in the contract.

5. Art. 8 of the loan agreement reads as follows: “Sporting shall keep the disciplinary power over the player. Notwithstanding, Sintrense will also have the power to take disciplinary action whenever it is deemed appropriate for the execution of this agreement”.

6. On 18 January 2019, US Sintrense issued the following statement:

7. On 2 August 2019, the Claimant terminated the contract with the player as a consequence of the unauthorized absence of the player.

8. On 1 August 2020, the Claimant lodged a claim against the Respondent for breach of contract and requested compensation in the amount of EUR 500,000.

9. In its claim, the Claimant held that the player breached the contract since he was absent without authorization as from 16 December 2018.

10. The Claimant maintained that on 9 January 2019, it was informed by SU Sintrense about the player’s absence. In this regard, after further exchange with SU Sintrense, the Claimant initiated disciplinary proceedings against the player on 26 February 2019.

11. In support of its argumentation, the Claimant submitted an internal “final report”, dated 30 July 2019, detailing the disciplinary proceeding against the player, without submitting any correspondence/documents upon which said report relied on.

12. The “final report” is summarized as follows:

- 26 February 2019: Initiation of disciplinary proceedings.

- 8 March 2019: Notification sent to player.

- 19 March 2019: The player’s representative, Mr Mario dos Santos Paiva, submitted a power of attorney and requested access to the “record of the disciplinary proceeding”.

- 25 March 2019: The player’s representative submitted his reply and requested to hear certain witnesses. Apparently the player argued that he was undergoing medical treatment and was authorised to be absent.

- 14 May 2019: Date to hear the witnesses, which allegedly failed to show up.

- 30 July 2019: Conclusion of the report is that the “penalty of dismissal with just cause” shall be applied as the player failed to proof his allegations.

13. In this context, the Claimant requested compensation for breach of contract since the player was absent without a valid reason as from 16 December 2019.

14. On account of the above, the Claimant referred to the player’s monthly salary (i.e. EUR 20,833.33) and held that it should be compensated for the “period of the unjustified absence”, i.e. “16 December 2019 until 4 February 2019”, since it did pay the player’s salary.

15. Therefore, the Claimant requested the compensation for breach of contract in the amount of EUR 500,000 (note: no further specification), but a minimum of EUR 265,516.63, as follows:

- EUR 229,116.63 as residual value of the contract (2 August 2019 until 30 June 2020);

- EUR 36,400 as salaries paid during the player’s absence.

16. The player failed to submit his reply to the claim within the time-limit given by FIFA.

17. According to information contained in the Transfer Matching System (TMS), the player has not signed any further contract.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 1 August 2020. Consequently, the DRC concluded that the June 2020 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).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. 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 an employment-related dispute with an international dimension.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 1 August 2020, the June 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the 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. In particular, the DRC recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. Having said that, the DRC acknowledged that, on 15 April 2016, the Claimant and the Respondent signed an employment contract valid until 30 June 2020. Further, the members of the Chamber noted that the Claimant, the Respondent and SU Sintrense agreed upon to temporarily transfer the player to SU Sintrense between 13 September 2018 and 30 June 2019, while the Claimant undertook to continue to remit the player’s salary as per contract.

6. In continuation, the Chamber took notice of the Claimant’s claim, alleging being entitled to compensation for breach of contract since the player allegedly remained absent without authorization as from 16 December 2018. The DRC also noted that the Claimant terminated the contract with the player on 2 August 2019 after disciplinary proceedings.

7. Subsequently, the DRC observed that the Respondent submitted its reply to the claim after notification of the closure of the investigation of the matter at hand. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this regard, the members of the Chamber decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant.

8. In view of the above, the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

9. Having stated the above, the DRC pointed out that the Claimant’s allegations remained, in principle uncontested, but nevertheless, the members of the Chamber have the duty to examine if the club substantiated its claim sufficiently.

10. In this regard, the Chamber noted that the Claimant, apart from the relevant contracts, only submitted two documents in support of its allegations: A copy of the statement of SU Sintrense and the “final report” regarding the disciplinary proceeding against the player, which appears to be an internal summary of said proceeding without any evidence enclosed. The DRC emphasized that the club failed to submit proof of any communication with the player and did not even submit the alleged termination dated 2 August 2019.

11. Having duly taken note of the documentation presented by the Claimant, the DRC concluded that since the club failed submit any documentation where it requested the player to render his services and therefore had to conclude that the club was not interested in the player’s services anymore.

12. In respect of the foregoing, the DRC had to conclude that the documents presented by the player did not prove beyond doubt that the club and the player had validly entered into an employment contract.

13. On account of the above, since the Claimant failed to sufficiently substantiate its allegations, the Chamber decided to reject the club’s claim.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

The claim of the Claimant, Sporting Clube de Portugal, is rejected.

For the DRC:

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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