Ivan Santiago Diaz v. MSK Zilina

At a glance

Parties

Iván Santiago Diaz (Argentinian professional footballer) v. MŠK Žilina, a.s. (Slovak football club)

Case no.

CAS 2022/A/8881

Forum and rules

Court of Arbitration for Sport, appeal procedure under the CAS Code (2020 edition)

Treaty

None. Employment contract of 16 September 2017; FIFA Statutes and RSTP

Tribunal

András Gurovits (Sole Arbitrator)

Sector

Professional football; player employment

Outcome

Appeal upheld (28 November 2023). The FIFA DRC decision of 24 March 2022 was set aside and the club was ordered to pay the unpaid salary.

Amount

Claimed and awarded: EUR 30,000 net in unpaid salary, plus 5% interest a year on six instalments of EUR 5,000 running from 16 August 2020 to 16 January 2021. The costs rulings are redacted in the published award.

The dispute

The player's contract with MŠK Žilina ran from 1 October 2017 to 31 December 2020, with a monthly salary of EUR 10,000 net from 1 July 2019. On 11 August 2020 the club moved him to its B team and cut his salary by 50% from July 2020, which left EUR 30,000 unpaid by the time the contract expired. After the contract ended, the player had an offer from ŠKF Sereď as an amateur, but his registration needed the club's confirmation. The club gave it only after he signed a "Reconciliation of Receivables" on 8 March 2021, which stated that all of the club's obligations were fulfilled. The FIFA DRC treated that document as a valid waiver and rejected his claim. On appeal, the player argued that the document was not a waiver and that, if it was, it was invalid for exploitation (duress) under Article 21 of the Swiss Code of Obligations. The club filed no Answer; it argued only that Slovak law applied.

Key holdings

1. CAS has jurisdiction, and the appeal was filed within the 21-day time limit. The Sole Arbitrator saw no reason to depart from the FIFA DRC's finding that FIFA was competent, because the club had not shown that the Slovak national dispute resolution chamber met the requirements of Article 22(1)(b) RSTP. ¶¶ 83–88
2. The choice-of-law clause in Article IX(1) of the contract is contradictory: it refers both to Slovak law and to the regulations of the Slovak FA, UEFA and FIFA. The FIFA regulations therefore apply, with Swiss law applying subsidiarily, under Article R58 of the CAS Code and Article 56(2) of the FIFA Statutes. ¶¶ 94–96
3. Paragraph 3 of the Reconciliation of Receivables is a waiver of the player's salary claims. It was conditional on the club confirming the registration, and that condition was fulfilled. ¶¶ 101–104
4. The waiver is invalid for duress under Article 21 SCO. The award calls the club's conduct a textbook example: it withheld confirmation of the registration, for which it had no valid reason, to extract the waiver of EUR 30,000 from a player who was without a contract. The player challenged the waiver within the one-year period. The result would be the same under Paragraph 39a of the Slovak Civil Code, whose content the parties had been invited to establish under Article 16 PILA. ¶¶ 107–113
5. The club must pay EUR 30,000 in unpaid salary, plus 5% interest a year under Article 104 SCO on each monthly EUR 5,000 instalment from the 16th day of the following month. The club's reliance on the player's 'weak and reckless performance' (Article VI(3)(a)) appeared pretextual, because the club had never warned him before cutting his salary. ¶¶ 115–120; operative part

Procedural history

1. 21 January 2021The player files his first claim with the FIFA DRC. He withdraws it on 12 March 2021.
2. 8 March 2021The player signs the Reconciliation of Receivables. The club then confirms his registration with ŠKF Sereď.
3. 17 September 2021The player files his second claim with the FIFA DRC, for EUR 30,000 plus interest.
4. 24 March 2022The FIFA DRC rejects the claim on the basis of the waiver. The grounds are notified on 28 April 2022.
5. 16 May 2022The player files his Statement of Appeal with CAS, together with an application for legal aid.
6. 15 December 2022András Gurovits is appointed Sole Arbitrator by the Deputy President of the CAS Appeals Arbitration Division.
7. 18 January 2023The Sole Arbitrator decides to rule on the written submissions alone, without a hearing.
8. 28 November 2023Award: the appeal is upheld and the club is ordered to pay EUR 30,000 plus interest.

Tribunal, counsel and experts

Decided by

• András Gurovits Sole arbitrator, Court of Arbitration for Sport — appointed by the institution

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Keywords

• football
• unpaid salary
• waiver
• duress
• Article 21 Swiss Code of Obligations
• exploitation of straitened circumstances
• FIFA Dispute Resolution Chamber
• choice of law
• Article R58 CAS Code
• Article 187 PILA
• Article 16 PILA
• Slovak Civil Code Paragraph 39a
• player registration
• B team reclassification
• salary reduction
• Reconciliation of Receivables
• Slovakia

Summary generated with AI from the published documents — refer to the award for the authoritative text.