CAS Case Digest · Verified against the full award text

CAS 2021/A/7757 & CAS 2021/A/7762 — Club de Futbol Pachuca & Christian Alberto Cueva Bravo v. Santos Futebol Clube & FIFA

"Cueva" · CAS upheld that Peruvian player Cueva terminated his Santos FC contract without just cause, confirming compensation liability and Pachuca's joint and several liability.

What happened in Cueva

Christian Cueva, a Peruvian professional footballer, was transferred from FC Krasnodar to Santos FC in February 2019 under a loan-to-buy agreement worth USD 7,000,000. On 16 January 2020, Cueva served Santos FC a notice claiming overdue image rights payments and housing allowances, granting only a 10-day cure period. On 27 January 2020, he terminated the contract, also citing exclusion from first-team training and non-registration for the Campeonato Paulista. He immediately signed with Mexican club CF Pachuca. Santos FC filed a claim before the FIFA DRC, which on 10 December 2020 found the termination was without just cause and ordered Cueva to pay BRL 40,193,631 plus 5% interest p.a. from 8 June 2020, with CF Pachuca jointly and severally liable. Both Cueva and Pachuca appealed to CAS. The Panel upheld the finding of termination without just cause: the outstanding amounts did not reach two monthly salaries as required by Article 14bis RSTP, the notice period was only 10 days (not 15), and the training/registration complaints were raised only in the termination letter without prior warning. The case is significant for its detailed treatment of Article 14bis RSTP requirements, the positive interest principle under Article 17.1 RSTP, FIFA's standing to be sued in horizontal disputes, and the correct methodology for calculating non-amortised transfer fees as compensation.

Procedural history of CAS 2021/A/7757

On 8 June 2020, Santos FC lodged a claim before the FIFA Dispute Resolution Chamber (FIFA DRC) against Cueva and CF Pachuca. Cueva filed a counterclaim seeking USD 3,344,996. On 10 December 2020, the FIFA DRC issued its findings (grounds notified 15 February 2021): it held Cueva terminated without just cause, ordered him to pay BRL 40,193,631 plus 5% p.a. interest from 8 June 2020, held CF Pachuca jointly and severally liable, and ordered Santos FC to pay Cueva BRL 694,839 as outstanding remuneration. CF Pachuca filed its Statement of Appeal on 5 March 2021 (CAS 2021/A/7757) and Cueva filed his on 6 March 2021 (CAS 2021/A/7762). The two proceedings were consolidated on 16 March 2021. A hearing was held by video-conference on 8 September 2021. Both appeals were filed within the 21-day deadline under Article 58 of the FIFA Statutes.

Key holdings in CAS 2021/A/7757

• FIFA has standing to be sued in CAS appeals arising from horizontal disputes decided by FIFA bodies, as such decisions constitute 'resolutions of an association' under Article 75 of the Swiss Civil Code, and appellants are entitled to summon FIFA as a respondent.
• A player invoking Article 14bis RSTP to terminate with just cause for outstanding salaries must cumulatively establish that at least two monthly salaries are overdue and that the club was given a written notice with a minimum 15-day cure period; a 10-day notice period and outstanding amounts below two monthly salaries are insufficient.
• Where an image rights agreement expressly conditions payment on the prior issuance of invoices by the licensor, that invoice requirement constitutes a condition precedent to payment, and the club is entitled to withhold payment until invoices are issued.
• Under Article 17.1 RSTP, the remuneration still due to a player under a prematurely terminated contract must be treated as a saving for the club and deducted from the compensation awarded, consistent with the positive interest principle.
• A CAS panel may not award both the non-amortised transfer fee and a lost transfer fee (lucrum cessans) cumulatively; where lost transfer revenue exceeds the non-amortised fee, only the former is awarded, and where it is lower or unproven, only the non-amortised fee is awarded, to avoid overcompensation.

How the CAS panel reasoned

The Panel applied the RSTP primarily, with Swiss law (CO) filling gaps. On just cause, it found Article 14bis RSTP was not satisfied: only two image rights instalments (BRL 400,000, equivalent to 80% of one monthly salary) were overdue at the time of the notice because the Image Rights Agreement expressly conditioned payment on prior invoice issuance, and the notice granted only 10 days rather than the required 15. The Panel rejected the argument that Articles 323 and 323a CO override the contractual invoice condition. On Article 14.2 RSTP abusive conduct, the Panel found the alleged training separation lasted only about two weeks at the start of the season and was insufficient as ultima ratio justification; the non-listing for the Campeonato Paulista was for the least important competition on a possibly temporary basis; and critically, both non-payment and training/registration complaints were raised only in the termination letter without prior warning to Santos FC, tainting the justifications as ex post rationalisation. On compensation, the Panel corrected the FIFA DRC's averaging methodology, holding that the BRL 17,740,161 remaining salary under the Santos contract was a saving to be deducted, while the Player's Pachuca salary projected to contract expiry (BRL 14,837,900) indicated replacement cost. The non-amortised Krasnodar transfer fee (USD 5,254,915 / BRL 23,904,600) was upheld as a legitimate damage item since Santos FC remained legally obliged to pay it, but the penalty and interest under the settlement agreement were excluded as Santos FC's own default costs.

Why Cueva matters in CAS jurisprudence

This award provides authoritative CAS guidance on three distinct issues: (1) FIFA always has standing to be sued in CAS appeals from horizontal disputes, resolving a contested procedural question; (2) Article 14bis RSTP sets strict cumulative requirements (two-month salary threshold and 15-day notice) that cannot be circumvented by relying on Article 12bis RSTP's 10-day grace period; and (3) the correct methodology under Article 17.1 RSTP requires treating remaining salary as a club saving and prohibits double-counting non-amortised transfer fees and lost transfer revenues.

Cases cited in this award

CAS 2008/A/1519-1520 CAS 2009/A/1880-1881 CAS 2018/A/5607-5608 CAS 2019/A/6463-6464 CAS 2013/A/3365&3366 CAS 2017/A/4977

Frequently asked questions about Cueva

Did Christian Cueva have just cause to terminate his Santos FC contract?

No. The CAS Panel upheld the FIFA DRC's finding that Cueva terminated without just cause. The outstanding amounts at the time of his 16 January 2020 notice were only BRL 400,000 (two image rights instalments), equivalent to 80% of one monthly salary, falling short of the two-month threshold required by Article 14bis RSTP. Additionally, his notice granted only a 10-day cure period rather than the mandatory 15 days, and the training/registration complaints were raised for the first time in the termination letter without prior warning to Santos FC.

Why was CF Pachuca held jointly and severally liable in the Cueva case?

CF Pachuca was held jointly and severally liable under Article 17.2 RSTP because it entered into an employment agreement with Cueva on 31 January 2020, the same day it requested Santos FC's TPO declaration, despite having been warned by Santos FC on 3 February 2020 that the Santos Employment Agreement was still in force. The Panel confirmed that joint liability under Article 17.2 RSTP applies automatically when a new club signs a player who terminated his previous contract without just cause, and CF Pachuca could not rebut the presumption of inducement.

How did CAS calculate the compensation owed to Santos FC in the Cueva case?

The Panel found the FIFA DRC's averaging methodology flawed. It held that the BRL 17,740,161 in remaining salary under the Santos Employment Agreement was a saving for Santos FC to be deducted, not averaged. The non-amortised portion of the Krasnodar transfer fee (USD 5,254,915, equivalent to BRL 23,904,600) was upheld as a legitimate damage item since Santos FC remained legally obliged to pay it, but the penalty and interest accrued under the Krasnodar-Santos Settlement Agreement were excluded as costs attributable to Santos FC's own default.

Does FIFA have standing to be sued in CAS appeals involving horizontal disputes between clubs and players?

Yes. The Panel held that FIFA always has standing to be sued in CAS appeals arising from horizontal disputes decided by FIFA bodies, because such decisions constitute 'resolutions of an association' within the meaning of Article 75 of the Swiss Civil Code. An appellant is entitled to summon FIFA as a respondent, and FIFA remains bound by the CAS award regardless of whether it chooses to actively participate. However, an appellant may also choose not to summon FIFA, in which case the CAS panel may still adjudicate the dispute.

Topics: Art. 17 RSTP & contract termination at CAS

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