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 21 February 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 February 2020,
in the following composition:
Clifford J. Hendel (USA & France), Deputy Chairman
Pavel Pivovarov (Russia), member
Tomislav Kasalo (Croatia), member
on the claim presented by the player,
Ikechukwu John Kingsley Ibeh, Nigeria,
represented by Mr Josep F. Vandellos Alamilla
as Claimant
against the club,
Aris F.C., Greece
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 1 August 2013, the player, John Kingsley Ikechukwu Ibeh (hereinafter: the Claimant or the player), and the Greek club, PAE O Aris Thessaloniki (hereinafter: PAE) signed an employment contract valid from 1 August 2013 until 30 June 2015.
2. In accordance with art. 5 of the employment contract, the player was, inter alia, entitled to the following:
“5. The installments of contractual payments referred to in clause 4.4 of this contract shall be as follows:
1. EUR 20,000 net at 05-08-2013
2. EUR 7,018 net at 30-09-2013
3. EUR 10,000 net at 30-10-2013
4. EUR 10,000 net at 30-11-2013
5. EUR 10,000 net at 30-01-2014
6. EUR 10,000 net at 28-02-2014
7. EUR 10,000 net at 30-04-2014
8 EUR 10,000 net at 30-05-2014
(First year: EUR 87,018 net (contractual installments) + EUR 7,982 net (monthly salaries) = EUR 95,000 net total amount of contract)
9. EUR 20,000 net at 30-07-2014
10. EUR 16,404 net at 30-09-2014
11. EUR 15,000 net at 30-10-2014
12. EUR 16,000 net at 30-11-2014
13. EUR 16,000 net at 30-01-2015
14. EUR 16,000 net at 28-02-2015
15. EUR 16,000 net at 30-04-2015
16. EUR 16,000 net at 30-05-2015
(Second year: EUR 131,404 net (contractual instalments) + EUR 8,596 net (monthly salaries) = EUR 140,000 net total amount of contract)”.
3. On 16 December 2013, the Claimant formally notified PAE of the unilateral termination of the employment contract linking the parties, invoking the club’s non-compliance with its financial obligations.
4. On 14 January 2014, the Claimant lodged a claim in front of FIFA against “PAE O Aris”, asking that he be paid outstanding remuneration in the amount of EUR 27,018 pertaining to the instalments due in September, October and November 2013, as well as compensation for breach of contract in the amount of EUR 171,404 pertaining to the residual value of the employment contract.
5. On 1 October 2014, the Hellenic Football Federation (hereinafter: the HFF) informed FIFA that “due to their dissolution/entering in liquidation process, the following FSAs are already inexistent and no longer affiliated with HFF: - FC ARIS [PAE]”.
6. On 24 February 2015, the Claimant was informed that in consideration of the information received by FIFA from the HFF on 1 October 2014, FIFA was not competent to hear the dispute in light of the fact that the club PAE was no longer affiliated to the HFF.
7. The HFF further informed FIFA that whilst PAE is automatically fully disaffiliated from the Hellenic Football Federation, it is “without having any direct or indirect relation to the HFF any more”. The HFF also stated that ‘Aris Thessalonikis AS’ (hereinafter: FC Aris) competes in the C National Division Championship for the 2014/2015 season. It is the “founding association” of PAE” and should not be confused with it “since they are two totally different legal entities that operate parallel to and independently of each other, have different administrations, different tax registry numbers, different assets and liabilities and different rights and obligations”. In addition, the HFF states “more specifically, PAE was established as a football société anonyme by converting only the amateur football players department of the above association, in accordance with the provisions of the Law of Amateur and Professional Sports and operated as such until its aforementioned dissolution by law”.
8. On 11 November 2015, after having been informed of the above, the Claimant stated that the HFF does not confirm or prove through its answer that PAE is not an affiliated member and that the “so-called amateur association ‘Aris Thessalonikis AS’ [FC Aris] has to be considered the sporting successor club” and must be held liable for all liabilities assumed by the old club, i.e. PAE. This is as a result of the two entities having the same name, use the same colours and same sponsors. In addition, the websites appear to look the same, the logo remains the same and the address includes the same information such as its date of incorporation and others.
9. On 26 May 2016, the DRC rejected the player’s claim and argued that the player failed to prove that FC Aris is the sporting and/or legal successor of PAE.
10. On 19 December 2016, the player appealed the decision of the DRC at CAS, and on 4 October 2018 CAS decided the following:
“166. This CAS Award confirms that the Player has a final and binding, enforceable debt against PAE. However, the Sole Arbitrator acknowledges that PAE is now in liquidation, so it is unlikely that the Player will be able to recover much, if any, of his debt from PAE.
167. Accordingly, if the Player believes that AST [Respondent] is the legal or sporting successor of PAE, the Player may wish to enforce his debt against AST. If the Player wished to do so, then that is a new claim against a different legal entity. The Player should bring his claim against AST following Article 22 of the RSTP, through the FIFA DRC, respecting the time limitations of the RSTP (noting that the information regarding the existence of AST perhaps only became available from the HFF on 13 July 2018 during these CAS proceedings). He should then seek to convince the FIFA DRC that AST is the sporting successor of PAE and should, somehow, be responsible for the debt that PAE owes to him under this CAS Award.”
“Conclusion
169. Based on the foregoing, and after taking into due consideration all the evidence produced and all submissions made, the Sole Arbitrator finds that the Appeal is partially upheld, and PAE must pay the Player the following amounts:
- EUR 7,018, plus 5% p.a. interest from 30 September 2013 until the effective date of payment;
- EUR 10,000, plus 5% p.a. interest from 30 October 2013 until the effective date of payment;
- EUR 10,000, plus 5% p.a. interest from 30 November 2013 until the effective date of payment; and
- EUR 187,982, plus 5% p.a. interest from 16 December 2013 until the effective date of payment.
170. All further claims or requests for relief are dismissed. For the avoidance of doubt, the Sole Arbitrator noted that the Player requested the imposition of sporting sanctions (a transfer ban for two registration periods) on either PAE or Aris pursuant to Article 17 (4) of the RSTP. The Sole Arbitrator has rejected the claim that Aris was in anyway liable to the Player and, as PAE is in liquidation and no longer trading as a football club, there would be no need for sporting sanctions to be imposed, even if the Sole Arbitrator was minded to.”
11. During the procedure in front of CAS, the Sole Arbitrator noted that in the 2017/2018 season a team called “Aris Thessaloniki” was playing in the 2nd highest Greek Football League and requested from the HFF to clarify why such a team was playing in the Greek second division, which the Sole Arbitrator understood to be a professional league, “not amateur”.
12. The HFF confirmed on 13 July 2018 that during the 2015/2016 season, FC Aris “won the championship and thus gained the right to be promoted to the Football League division, which is the Greek second professional division” and according to Greek Law “only football societés anynomyes are entitled to participate in professional division championships; therefore, in case of a promotion of an amateur sports association’s football team to a professional division, the association is obliged to establish a football societé anonyme which will replace the association and participate in the championship of that division”.
13. Based on the CAS award of 4 October 2018, the player lodged a new claim against the Greek club, Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi Etaria (hereinafter: the Respondent or AST), requesting the following:
“On these grounds, the Claimant herby respectfully asks the FIFA Dispute Resolution Chamber to rule that:
i. The Respondent is the sporting and legal successor of PAE.
ii. The Respondent is obliged to pay the Claimant the debt owed by PAE, which has been confirmed by the CAS Award, i.e. the Respondent must pay the Claimant the following amounts:
- EUR 7,018, plus 5% p.a. interest from 30 September until the effective date of payment;
- EUR 10,000 plus 5% interest form 30 October 2013 until the effective date of payment;
- EUR 10,000 plus 5% interest from 30 November 2013 until the effective date of payment;
- EUR 187,982, plus 5% interest from 16 December 2015 until the effective date of payment.
14. In his claim, the player alleged that AST is the sporting successor of PAE and provided the following similarities as evidence:
Issue
PAE
AST
Name of football club operated
Aris FC
Aris FC
Registered office
Alkminis 69, Thessaloniki,
542 49
Alkminis 69, Thessaloniki,
542 49
Stadium
Kleanthis Vikelidis Stadium
Kleanthis Vikelidis Stadium
Team
colours
Yellow and Black
Yellow and Black
Logo
Yellow background with black text and artwork
Yellow background with black text and artwork (some minor differences might have been made to the artwork, but the key components remain the same).
Date of incorporation
25 March, 1914
25 March, 1914
The new entity was established in 2016, however, in the club´s official website the date of incorporation is mentioned as 1914. Therefore, it is quite evident that Aris FC has remained the same club from the date of its incorporation till the present date.
15. Moreover, the player referred to several previous decisions by FIFA and CAS, regarding legal succession of other clubs, which supported his argument that the Respondent is PAE’s sporting and legal successor.
16. In this respect, the player argued that “the only point of difference [to previous decisions by FIFA and CAS] is the fact, that in this case the new club did not immediately participate in the same division as the old club. However, that was inevitable, since PAE had been automatically disaffiliated from the HFF due to their relegation to the amateur division. According to the rules of the HFF, upon gaining promotion to the professional division (2nd division of Greek professional football) a new entity had to be formed”.
17. Moreover, the player deemed that “it is evident that the consequences of establishing a new limited liability company for the same sport by the same amateur association (in this case Aris Thessaloniki AS) is that this company will be deemed the successor of the old entity and be responsible in relation to third parties”.
18. In its reply to the claim, the club rejected the player’s claim and argued that it is a ”different company with different owners, with different Board of Directors, different VAT number and different legal entity”.
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 case at hand. In this respect, it took note that the first claim related to the present contractual dispute was submitted to FIFA on 14 January 2014 and the present one on 7 February 2019. 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 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 January 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Nigerian player and a Greek club.
3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber noted that the present claim was lodged on 7 February 2019 – after a CAS award which already decided on the substance of the matter – as a consequence and in continuation of the first claim lodged in front of FIFA on the basis of the same contractual dispute on 14 January 2014. Thus, the DRC deemed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, the 2012 edition of the aforementioned regulations (hereinafter: the 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. 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 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.
5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding 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.
6. First of all and bearing in mind its duty to verify ex officio the admissibility of the disputes submitted to it appreciation, the DRC referred to art. 25 par. 5 of the Regulations, according to which the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. In this respect, the Chamber deemed it appropriate to refer to point 167. of the CAS award, quoted in point I.10 above. In particular, the Chamber stipulated that since the information regarding the existence of the Respondent only became available to the Claimant after the letter from HFF on 13 July 2018, during the CAS proceedings, the continuation of the claim filed at FIFA on 7 February 2019 is not barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations and should therefore be considered as admissible.
7. Subsequently, the members of the Chamber wished to emphasise that the CAS already decided on the substance of the dispute. In this regard, the Chamber referred to point 137. of the CAS decision (CAS 2016/A/4918) according to which “the Sole Arbitrator sees no reason to disagree with the Player’s position. Accordingly, the Sole Arbitrator concludes that pursuant to Article 14 of the RSTP, the Player did have just cause to terminate the Employment Contract.”
8. Moreover, the DRC also observed that the Sole Arbitrator decided on the consequence of the termination with just cause, in particular, deciding that the player is entitled to the following:
- EUR 7,018, plus 5% p.a. interest from 30 September until the effective date of payment;
- EUR 10,000 plus 5% interest form 30 October 2013 until the effective date of payment;
- EUR 10,000 plus 5% interest from 30 November 2013 until the effective date of payment;
- EUR 187,982, plus 5% interest from 16 December 2015 until the effective date of payment.
9. Having established the above, the DRC considered that the underlying issue in the present dispute left for its appreciation was to determine whether the Respondent can be considered as a sporting and/or legal successor of PAE and consequently liable to pay PAE’s debts towards the player.
10. With this in mind, the DRC started by acknowledging the position of the player, who stressed that the Respondent is the sporting and legal successor of PAE, by highlighting the similarities between the two clubs as well as explaining the circumstances of how AST was founded.
11. Having said this, the members of the Chamber took note of the Respondent’s position which stressed that “[The Respondent] is a different company with different owners, with different Board of Directors, different CAT number and different legal entity”.
12. With the above-mentioned considerations in mind and in relation to the new club’s position, the DRC referred to previous decisions of FIFA’s decision-making bodies related to this particular issue as well as to the CAS Award 2013/A/3425 which mutatis mutandis can be applied to the present matter. Indeed, in said Award, CAS, while confirming a previous decision of FIFA, established that a club is a sporting entity identifiable by itself, which is formed by a combined set of elements that constitute its image.
13. In particular, the DRC agreed to fully adopt the reasoning of the Sole Arbitrator in the aforementioned Award that reads as follows:
“The Sole Arbitrator highlights that the decisions that had dealt with the question of the succession of a sporting club in front of the CAS (CAS 2007/A/1355; TAS 2011/A/2614; TAS 2011/A/2646; TAS 2012/A/2778) and in front of FIFA’s decision-making bodies (…), have established that, on the one side, a club is a sporting entity identifiable by itself that, as a general rule, transcends the legal entities which operate it. Thus, the obligations acquired by any of the entities in charge of its administration in relation with its activity must be respected; and on the other side, that the identity of a club is constituted by elements such as its name, colours, fans, history, sporting achievements, shield, trophies, stadium, roster of players, historic figures, etc. that allow it to distinguish from all the other clubs. Hence, the prevalence of the continuity and permanence in time of the sporting institution in front of the entity that manages it has been recognised, even when dealing with the change of management companies completely different from themselves” (original text in Spanish).
14. Having said this, the members of the Chamber focused their attention on the following facts:
a. Both, PAE and AST competed in the Greek league under the name of “Aris FC” or “Aris Thessaloniki”;
b. The logos of PAE and AST are almost identical;
c. Both clubs held their local matches in the same stadium;
d. Both clubs have their registered office at the same address;
e. The colours of the clubs are the same;
f. Both clubs share the same history. In particular, according to AST’s website, the club was established in 25 March 1914 and won three Championship titles (1928, 1932 and 1946).
15. On account of all the above, the DRC reached the following conclusions:
a. There are sufficient elements to establish that AST has been the same club as PAE throughout its history, despite the alleged change of owners, board of directors, etc.;
b. Moreover, by using the same name (“Aris FC”), logo, stadium and, in particular, the history, it is evident that the new club had the intention to maintain the identity and image of PAE in order to be considered the same club.
16. In view of the foregoing conclusions, the DRC unanimously decided that AST is the sporting successor of PAE and it is therefore liable to pay to the Claimant the amounts determined in the CAS award of 4 October 2018.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Ikechukwu John Kinglsey Ibeh, is admissible.
2. The claim of the Claimant is accepted.
3. The Respondent, Aris F.C., has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 27,018, plus 5% interest p.a. until the date of effective payment as follows;
a. 5% p.a. as from 30 September 2013 on the amount of EUR 7,018;
b. 5% p.a. as from 30 October 2013 on the amount of EUR 10,000;
c. 5% p.a. as from 30 November 2013 on the amount of EUR 10,000.
4. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 187,982, plus 5% interest p.a. as from 16 December 2013 until the date of effective payment.
5. In the event that the amounts due to the Claimant in accordance with the above-mentioned numbers 3. and 4. are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.
6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.
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Note related to the publication:
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Note relating to the motivated decision (legal remedy):
According to art. 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 (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: info@tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer