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 20 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 February 2020,

integrated as follows:

Clifford J. Hendel (USA), Deputy Chairman Roy Vermeer (Netherlands), member Daan de Jong (Netherlands), member

on the claim presented by the player,

Gadacha Charrad Aikel, France,

represented by Mr Loizos Hadjidemetriou

as Claimant

against the club,

Alki Oroklinis, Cyprus,

represented by Mr George Christofides

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 20 June 2018, the French player, Gadacha Charrad Aikel, (hereinafter: the player or Claimant), and the Cypriot club, Alki Oroklinis, (hereinafter: the club or Respondent) concluded an employment agreement valid as from the date of signature until 31 May 2019 (hereinafter: the agreement), according to which his monthly remuneration from August 2018 until May 2019 (10 salaries) was EUR 100 “net”.

2. On 20 June 2018, the Claimant and the Respondent concluded also an Image Rights agreement (hereinafter: the image rights agreement) pursuant to which the Claimant was entitled to the following remuneration:

i. EUR 2,100 net per month from August 2018 until May 2019 (a total of EUR 21,000 “net”);

ii. Accommodation, flight ticket and a car;

iii. A salary increase of EUR 100 in case he was chosen for the starting eleven and played more than 45 minutes in 12 games;

iv. EUR 1,500 as a bonus in case he was chosen for the starting eleven and played more than 45 minutes in 15 games.

3. In addition, according to art. 2.1. of the agreement “the present Contract is regulated by the provisions of the Standard Employment Contract, as these have been agreed between the Cyprus Football Association (CFA) and the Cyprus Footballer’s Union (PASP) and as these provisions have been codified in Annex 1 of the CFA Registration and Transfer of Players Regulations”.

4. Furthermore, art. 2.2. of the agreement stipulated the following: “The terms of the Standard Employment Contract constitute an integral part of the present Contract having full and direct implementation.”

5. Moreover, according to art. 2.3 of the agreement “In case of conflict, the terms of the Standard Employment Contract shall take precedence over the terms of the present Contract”.

6. Art. 2.5 of the agreement stipulated the following: “If the club will relegate to the second division then the player will not be paid the rest of his salaries by the exact moment of relegation.”

7. Pursuant to art. 13 of the Standard Employment Contract (hereinafter: the contract) the parties agreed that “any employment dispute between the Club and the Player shall fall under the exclusive jurisdiction of the National Dispute Resolution Chamber of the CFA and shall be resolved according to the applicable regulations of the CFA.”

8. According to art. 3 of the image rights agreement “This agreement shall terminate automatically:

3.1. After its expiry.

3.2. By mutual consent of the parties.

3.3. By termination of the contract of employment dated 20/06/2018 between the Employer and the player.”

9. On 12 August 2019, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the payment of outstanding remuneration in the amount of EUR 3,800, plus legal interest as from 31 May 2019, corresponding to EUR 100 as basic monthly salary, EUR 100 as salary increase, EUR 2,100 in monthly salary in accordance with the image rights contract and EUR 1,500 as participation bonus. Moreover, the Claimant requested the “Imposition of sanctions on the Respondent as per art 12bis (4), (5) & (6) of the FIFA RSTP”.

10. In his claim, the Claimant first asserted that the FIFA DRC was competent to hear the present dispute. The Claimant stated, with reference to cases 18-01514/osv and 18-01308/pam, that the Cyprus NDRC was not independent and impartial as per art. 22 (b) of the RSTP and consequently it cannot exclude the FIFA DRC’s jurisdiction. Additionally, the claimant listed the following arguments in an attempt to show that the CFA NDRC did not meet the requirements set in the FIFA RSTP and Circular no. 1010:

I. The procedure for the election of the player’s representatives is controlled and monitored by the CFA and is not left in the entire and absolute freedom of the players’ union. The Claimant claimed that this is proven by art. 22.4 (3) which stipulates that the election of the players’ representatives must be approved by the CFA;

II. The player’s representatives must first be approved by the council of the CFA (Art 22.4 (4)), which shows that the CFA has the power to intervene by approving or rejecting the appointment of the player’s representatives;

III. The CFA has the right, in case it believes, in its sole discretion, that the Players’ union refuses or fails to elect member, to appoint said member by itself (art. 22.4 (5)). The claimant claimed that this shows that the CFA considers itself “as having the ultimate power to manage and decide on the appointment of the NDRC members and the running of the NDRC in the absence of the player’s union”.

IV. The NDRC is not an independent arbitration tribunal, it is only an intra association adjudicating body and second, it is not independent from the CFA which pays the members of the NDRC;

V. CFA NDRC does not award interest on its monetary awards and additionally the practise of the NDRC is contrary even to the Cyprus legislation which provides that in cases of due payables a legal interest (currently at 2%) must be credited on the awardee amounts since the day that every amount became due;

VI. Finally, the Claimant refused to accept the CFA NDRC’s competence because according to art. 22.39 (5) awards for overdue salaries can be paid off with up to 24 monthly instalments. This means that if the Claimant had filed his claim before the NDRC, in case an award for overdue payables was issued in his favour, the Respondent would have had the right to file an application for payment of the due payables in up to 24 monthly instalments, within 30 days since the issuance of the award, without any interest being credited in favour of the Claimant. According to the Claimant, this is unacceptable and contrary to his rights as well as the established jurisprudence of the FIFA DRC and the CAS.

11. As to the substance, the Claimant claims that he has yet to be paid his May salary, therefore, on 18 July 2019, the Claimant put the Respondent in default giving it 10 days to comply with its contractual obligations and fully settle all his due payables, but to no avail.

12. In support of his argumentation, the Claimant provided a statement issued by the CFA showing all the games in which he participated and indicating that he has been chosen for the starting eleven competing for more than 45 minutes in each game for 12 games since “08/12/2018” and that consequently his salary increased by EUR 100.

13. Furthermore, the Claimant stated he was indeed chosen in the starting eleven of the Respondent’s team and played for more than 45 minutes in more than 15 games. Consequently, he claims to be also entitled to the payment of the EUR 1,500 participation bonus.

14. In its reply to the claim, the Respondent first contested FIFA’s competence to deal with the present dispute on the following grounds:

I. The parties mutually and freely agreed, pursuant to clause 13 of the standard employment contract, that any employment dispute between them shall fall under the exclusive jurisdiction of the CFA NDRC;

II. There is an independent arbitration tribunal established at the national level; the jurisdiction of the independent arbitration tribunal derives from a clear reference in the employment contract; the independent arbitration tribunal guarantees fair proceedings and respects the principle of equal representation;

III. In accordance with Art 22.4, the election procedure must be approved by the CFA.

IV. The DRC has no competence to adjudicate about the image rights agreement. According to the Respondent, the DRC tends to consider the agreement on image rights as separate agreements from the employment contract. The Respondent claimed that the image rights agreement in dispute does not provide any specific element leading to the conclusion that is it part of the actual employment agreement. According to the Respondent, the image rights agreement is a separate agreement from the employment agreement and the standard employment contract. The Respondent further claimed that the amount paid to the Claimant under the image rights agreement is justified by clauses 1-5 of the image rights agreement.

15. As to the substance, the Respondent rejected the allegations of the Claimant that it has not paid the salary of May 2019 amounting to EUR 200 and his image rights amounting to EUR 2,100.

16. In support of its position, the Respondent presented a copy of a document titled “Confirmation of Full payment and Compliance” concluded on 27 March 2019, by means of which the “Claimant acknowledged that the Club had fulfilled all its contractual obligations owed to him”.

17. The Respondent, in addition, stated that it did not have an obligation to pay the salary of May 2019, as according to clause 2.5 of the employment contract, in case the Club is relegated to the second division, the latter is not obliged to pay the rest of the salaries. In this respect, the Respondent provided untranslated documentation allegedly proving that it was relegated on 18 May 2019.

18. Finally, the Respondent requested the DRC to declare that:

1. “The DRC has no jurisdiction to decide about the dispute pursuant to article 13 of the Standard Employment Contract signed between the parties on 20/06/2018.

2. The Respondent has fully performed its contractual obligation deriving from the Employment Contract.

3. Reject the Claims of the Respondent as described in points A 1 – 2 of its pray for relief.

4. Declare that it has no competence to examine and award compensation in relation to the image agreement signed between the parties on 20/06/2018.”

19. Required to comment on the document “Confirmation of Full payment and Compliance”, the Claimant stated that it refers to the March 2019 salary and to all payments that should have been received until March 2019. He further pointed out that the salary of March 2019 was never claimed.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 12 August 2019 and decided on 20 February 2020. Taking into account the wording of art. 21 of the 2019 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.

2. Subsequently, the Chamber referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC is, in principle, competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between an French player and an Cypriot club.

3. At this point, the Chamber noted that the Respondent first objected the admissibility of the present claim, alleging that according to art. 13 of the agreement as well as to art. 22 of the national regulations for the status and transfer of players the Cypriot NDRC is competent to adjudicate in the present matter, arguing that the conditions set out in art. 22 (b) of the FIFA Regulations on the Status and Transfer of Players are met.

4. In this regard, the DRC noted that the Claimant asserted that FIFA has jurisdiction to deal with the present matter since the Dispute Resolution Committee of the CFA allegedly does not respect the principle of equal representation of players and clubs. In particular, he referred to art. 22.4.3 of the NDRC Regulations and highlighted that the election of the players’ representatives “must be approved by the council of the CFA”. The Claimant further argued that in accordance with art. 22.4.5 of the NDRC Regulations, the CFA “considers itself as having the ultimate power to manage and decide on the appointment of the NDRC members and the running of the NDRC in the absence of the players’ union” and that, therefore, it cannot provide for fair proceedings.

5. While analysing whether it was competent to hear the present matter, the Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contains a jurisdiction clause.

6. Having said this, the DRC turned its attention to art. 13 of the contract, on the basis of which the Respondent contested FIFA’s jurisdiction. According to said art. 13, “Any employment dispute between the Club and the Player shall fall under the exclusive jurisdiction of the National Dispute Resolution Chamber of the CFA and shall be resolved according to the applicable regulations of the CFA.”

7. In view of the aforementioned clause, the DRC was of the opinion that art. 13 of the employment contract makes clear reference to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the DRC deemed that said article constitutes an arbitration clause.

8. However, the Chamber wished to stress that, even if the contract at the basis of the present dispute includes an arbitration clause in favour of a national dispute resolution body, the Respondent was unable to prove that, in fact, the Dispute Resolution Committee of the CFA meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations.

9. In this respect, the DRC referred to the general principle of equal representation of players as well as of clubs, and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such.

10. Indeed, this prerequisite is not only mentioned in the Regulations on the Status and Transfer of Players, but also in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives […]; b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives […].” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal […].

Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list.”

11. Subsequently, the Chamber acknowledged receipt of the Regulations of the CFA, provided by the Respondent, and began to analyse their content. In this context, the DRC noted that, according to art. 22.4 of the aforementioned Cypriot Regulations, the Dispute Resolution Committee of the CFA, is composed of 5 members, as follows: a Chairman, a Vice-Chairman, one member appointed by the Executive Committee of the CFA and two members appointed by the Pancyprian Football Players’ Association.

12. In view of the aforementioned and taking into account the pre-requisites for the recognition of the jurisdiction of a Dispute Resolution Chamber at a national level stipulated in art. 22 lit. b) of the FIFA Regulations, the FIFA Circular no. 1010 and the FIFA NDRC Regulations, the DRC considered that, in light of the documentation provided by the CFA and the Respondent, the relevant national deciding body does not appear to be composed of an equal number of players’ and clubs’ representatives, since the representation of the clubs, if any, is not evident.

13. Therefore, the DRC concurred that the Respondent was unable to prove that the Dispute Resolution Committee of the CFA had met the minimum procedural standards for independent arbitration tribunals, as laid down in art. 22 lit. b) of the above-mentioned Regulations, in FIFA Circular no. 1010 as well as in the FIFA NDRC Regulations.

14. In view of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter – in favour of the Cyprus NDRC – has to be rejected and that the DRC is in principle competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

15. Having established the foregoing, the Chamber noted that the Respondent also challenged FIFA’s competence to deal with the present dispute with regard to the so-called “image rights agreement”. Thus, the Chamber pointed out that it would also have to verify whether it would be competent to deal with the player’s claim based on said agreement.

16. In this respect, the Chamber, without entering into any discussion regarding the actual wording of the agreement, which defines the agreement as an image rights agreement, wished to highlight that said agreement contained elements which led to believe that it was not in fact an image rights agreement but rather a separate agreement to the employment contract, i.e. directly linked to the services of the Claimant as a player.

17. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. In the case at hand, such elements appear to exist. In particular, the agreement contains inter alia stipulations regarding bonuses directly related to the achievement of sporting objectives, which are typical for employment contracts and not for image rights agreements. Furthermore, the Chamber noted that the player’s remuneration as per the so-called image rights agreement (EUR 2,100) is much higher than the one provided for in the employment agreement (EUR 100). Consequently, the Chamber decided not to consider the image rights agreement as such, but determined that said agreement was in fact an additional agreement to the employment contract instead and was to be considered in the analysis of the substance of the present claim.

18. Having established that it is competent to entertain the present dispute, the DRC analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 12 August 2019, the June 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

19. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

20. In this respect, the Chamber acknowledged that, on 20 June 2018, the Claimant and the Respondent concluded an employment agreement valid as from the date of signature until 31 May 2019, according to which his monthly remuneration from August 2018 until May 2019 was EUR 100 “net”.

21. The DRC further acknowledged that on 20 June 2018, the Claimant and the Respondent concluded an image rights agreement, which is to be considered an integral part of the employment contract, pursuant to which the Claimant was entitled to the following remuneration:

i. EUR 2,100 net per month from August 2018 until May 2019;

ii. Accommodation, flight ticket and a car;

iii. A salary increase of EUR 100 in case he was chosen for the starting eleven and played more than 45 minutes in 12 games;

iv. EUR 1,500 as a bonus in case he was chosen for the starting eleven and played more than 45 minutes in 15 games.

22. Having recalled the above, the DRC observed that, the Claimant, in his claim, requested outstanding remuneration in the total amount of EUR 3,800, corresponding to EUR 100 as basic monthly salary, EUR 100 as salary increase, EUR 2,100 in monthly salary in accordance with the “image rights contract” and EUR 1,500 as participation bonus.

23. The Respondent, for its part, rejected the Claimant’s claim and argued that the Claimant is not entitled to any of the claimed amounts.

24. Having said this, the DRC proceeded with an analysis of the circumstances surroundings the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

25. In this regard, the Chamber noted that the Respondent claims not to have any debts towards the Claimant based on a document titled “Confirmation of Full payment and Compliance” signed on 27 March 2019. According to the Respondent, said document proves that the “Claimant acknowledged that the Club had fulfilled all its contractual obligations owed to him”. The Claimant, for his part, denied such allegations and argued that the document refers to all payments that he should have received until March 2019 and that the salary of March 2019 was never claimed by him.

26. In this regard, the members of the Chamber wished to point out that any issues regarding the validity of the “Confirmation of Full payment and Compliance” do not need to be addressed since it only refers to the Respondent’s financial obligations towards the Claimant until the date of its signature i.e. 27 March 2019.

27. The Chamber also noted that the Claimant provided enough evidence that he was indeed entitled to the salary raise of EUR 100 due as per the “image rights agreement” as well as to the EUR 1,500 as participation bonus. As to the monthly salary of May 2019 as per the “image rights contract” (EUR 2,100) and the employment agreement (EUR 100), the club was not able to discharge its burden of proof of having either paid it or validly justified its non-payment.

28. Thus, the Chamber concluded that the total amount of EUR 3,800 had fallen due and remained outstanding. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber established that the Respondent is liable to pay such amount to the Claimant.

29. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount of EUR 3,800 as of 1 June 2019 until the date of effective payment.

30. Furthermore, taking into account the consideration under number II./18. above, the DRC referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

31. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

32. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

33. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

34. The Chamber concluded his deliberations in the present matter by establishing that the Claimant’s claim is admissible and partially accepted.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Gadacha Charrad Aikel, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Alki Oroklinis, has to pay to the Claimant, outstanding remuneration in the amount of EUR 3,800, plus 5% interest p.a. as from 1 June 2019 until the date of effective payment.

4. The Claimant is directed to inform the Respondent, immediately and directly, of the relevant bank account to which the Respondent must pay the amount mentioned above.

5. Any further claim of the Claimant is rejected.

6. The Respondent shall provide evidence of payment of the due amounts to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The aforementioned ban will be lifted immediately and prior to its complete serving, once the due amount is paid.

9. In the event that the aforementioned sum is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer