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,

in the following composition:

Clifford Hendel (USA), Chairman

Roy Vermeer (The Netherlands), member

Daan de Jong (The Netherlands), member

on the claim presented by the player,

Mr Cherfa Sofyane, 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 25 July 2018, the French player, Cherfa Sofyane (hereinafter: Claimant), and the Cypriot club, Alki Oroklinis (hereinafter: Respondent) signed both an employment contract (hereinafter: contract) and an image rights agreement (hereinafter: image rights agreement), both valid as from 25 July 2018 until 31 May 2019.

2. In accordance with the contract, the Respondent undertook to pay to the Claimant inter alia EUR 200 “net” as from August 2018 until May 2019, i.e. for 10 months. In accordance with the image rights agreement, the Respondent undertook to pay to the Claimant inter alia EUR 3,300 “net” as from August 2018 until May 2019, i.e. for 10 months. Consequently, the Claimant’s total monthly remuneration was EUR 3,500 “net” for 10 months.

3. By correspondence dated 18 July 2019, the Claimant put the Respondent in default of payment of EUR 3,500 setting a time limit of 10 days in order to remedy the default.

4. On 7 August 2019, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to him overdue payables in the amount of EUR 3,500 corresponding to his salaries of May 2019, plus interest of 5% p.a. as of 31 May 2019 until the date of effective payment.

5. In reply to the claim, the Respondent rejected the Claimant’s claim. In this regard, it held that FIFA was not competent to deal with the matter at hand since the parties had mutually and freely agreed, pursuant to clause 13 of the contract, that any employment dispute between them would fall under the exclusive jurisdiction of the Cyprus Football Association National Dispute Resolution Chamber (hereinafter: CFA NDRC).

6. The Respondent argued that the CFA NDRC is an independent arbitration tribunal established at the national level which guarantees fair proceedings and respects the principle of equal representation.

7. In addition, the Respondent submitted that the FIFA Dispute Resolution Chamber has no competence to adjudicate on the image rights agreement. According to the Respondent, the image rights agreement does not provide any specific element leading to the conclusion that is it part of the contract; it would be in fact a separate agreement from the contract. The Respondent claims that the amount paid to the player under the image agreement is justified by clauses 1-5 of the image rights agreement.

8. As to the substance, the Respondent rejected the allegation of the Claimant that it has not paid the salary of May, amounting to EUR 200, and its image right agreement’s remuneration amounting to EUR 3,300. In this regard, the Respondent submitted that a waiver had been signed by the Claimant on 27 March 2019, according to which all financial dues between him and the Respondent had been settled.

9. Additionally, and as an alternative argument, the Respondent stated that it does not have an obligation to pay the Claimant’s salary of May, as according to clause 2.5 of the contract, in case that the Respondent was relegated to the second division, it was not obliged to pay the rest of the salaries.

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 hand. In this respect, it took note that the present matter was submitted to FIFA on 7 August 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 would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a French player and a Cypriot club.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of on the alleged existence of a jurisdiction clause in favour of the CFA NDRC, which supposedly respects the principles enshrined in FIFA Circular no. 1010. What is more, the Respondent has also objected to the competence of FIFA with regards to image rights agreement which, according to the Respondent, is a separate document from the contract.

4. In this regard, the Chamber noted that the Claimant is of the position that FIFA has jurisdiction to deal with the present matter.

5. The Chamber then proceeded to examine the contents of the contract and the image rights agreement. By doing so, the DRC observed, firstly, that the image rights agreement is linked to the Respondent’s performance in the relevant Cypriot league, as per its exhibit 1.

6. Secondly, the Chamber took note of the fact that the image rights agreement had the same term as the contract.

7. Lastly, the DRC noted that the image rights agreement could be terminated should the contract be terminated as well.

8. Consequently, the DRC decided to reject the Respondent’s arguments, and concluded that the image rights agreement does not provide any specific element which could lead to the conclusion that is it not part of the contract. The Chamber emphasized that, in fact, the image rights agreement is intricately linked to the contract. As such, the DRC concluded that the contract and the image rights agreement shall be understood as a single document.

9. Taking into account the above, the Chamber proceeded to examine the arguments of the Respondent in connection with the CFA NDRC.

10. By doing so, the Chamber emphasised that in accordance with art. 22 lit. b) of the January 2020 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one in hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

11. Furthermore, the members of the Chamber directly recalled the first sentence of art. 22 of the Regulations on the Status and Transfer of Players, which stipulates that FIFA’s competence is without prejudice to the right of any player or club to seek redress before a civil court for employment related disputes.

12. In this context, and while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber deemed it of utmost importance to highlight that the present dispute pertains to an employment contact, as outlined above.

13. Having said this, the members of the Chamber turned to the contents of the contract and the image rights agreement, which are the basis of the present dispute between the player and the club, and emphasized that, in line with the jurisprudence of the Dispute Resolution Chamber, the CFA NDRC does not seem to observe the principle of equal representation between players and clubs, in light of the fact that the regulations in place regarding the CFA NDRC grant the Cyprus Football Association influence on the selection process of player members as opposed to club members.

14. In view of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is 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. Subsequently, 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, he confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition January 2020) and considering that the present claim was lodged in front of FIFA on 7 August 2019, the June 2018 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.

16. 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 documentation on file. However, the DRC 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.

17. Having said this, the DRC acknowledged that the Claimant and the Respondent signed the contract and the image rights agreement, both valid from 25 July 2018 until 31 May 2019, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, EUR 3,500 as monthly salaries.

18. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the total amount of EUR 3,500 corresponding to his remuneration of May 2019.

19. In this context, the DRC took particular note of the fact that, on 18 July 2019, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring of 10 days in order to remedy the default.

20. Subsequently, the DRC took into account that the Respondent, for its part, held that the any financial dues between the parties had been settled by means of a waiver executed by the parties on 27 March 2019. Alternatively, the Respondent argued that, as according to clause 2.5 of the contract, in case that the Respondent was relegated to the second division, it was not obliged to pay the rest of the salaries.

21. In this regard, the Chamber recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. With that in mind, the Chamber noted that the Respondent alleges that the Claimant’s salary of May 2019 had been settled by means of a waiver executed in 27 March 2019, and concluded that such argument by the Respondent must be rejected on the account that payments due to the Claimant by 27 March 2019 have no connection with the dispute at hand.

22. In continuation, the DRC turned to the Respondent’s argument regarding its alleged relegation and the contents of clause 2.5 of the contract, and noted that the evidence brought forward by the Respondent in regards to the alleged relegation was not translated to any of the official languages of FIFA. As such, and in line with article 9 of the Procedural Rules as well as the correspondence addressed by the FIFA Secretariat to the Respondent on 2 September 2019, the DRC concluded that such documentation could not be taken into consideration.

23. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 3,500, corresponding to his remuneration of May 2019.

24. Consequently, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 3,500.

25. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant interest on the above-mentioned amount as from 1 June 2019, i.e. the first day of default by the Respondent.

26. Furthermore, taking into account the consideration under number II./15. above, the Chamber 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.

27. 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.

28. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts 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.

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

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Cherfa Sofyane, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Alki Oroklinis, has to pay to the Claimant the amount of EUR 3,500, plus interest at the rate of 5% p.a. as from 1 June 2019 until the date of effective payment.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under point III./3. above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with point III./3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount plus interest due in accordance with point III./3. above 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 ban mentioned in point III./7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sum plus interest 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.

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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 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 Code of sports-related arbitration. 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.

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