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 24 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 24 February 2020,

by Philippe Diallo (France), DRC judge,

on the claim presented by the player,

Lucas Domínguez Irarrazabal, Chile,

represented by Mr Eduardo Carlezzo

as Claimant

against the club,

Paphos FC, Cyprus,

represented by Mr Christoforos Florou

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 1 September 2017, the Chilean player, Lucas Dominguez Irarrazabal (hereinafter: the player or the Claimant) concluded with the Cypriot club, Paphos FC (hereinafter: the club or the Respondent), the following documents:

- an employment contract (hereinafter: the 1st contract), valid as from 1 September 2017 until 31 May 2018;

- a version of the standard contract prescribed by the Football Association of Cyprus (hereinafter: the standard contract).

2. On 2 September 2017, the parties further concluded a supplementary contract (hereinafter: the 2nd contract).

3. Pursuant to article 1.4 of the 1st contract, the Claimant was inter alia entitled to receive “2 return flights per season for the player”.

4. According to the 2nd contract, the player was additionally entitled to receive, inter alia, the following benefits and/or bonuses: “€5000 (Five thousand euro) net as bonus if the Employee at the end of season 2017/2018 has participated in full in at least 20 (Twenty) official games of the Cyprus Championship and/or Cup. Full participation is consider if the Employee is used in a 90 (ninety minutes) game for at least (sixty) minutes. Participation for less than 60 minutes will not be considered as full participation as mentioned herein […]”.

5. According to article 2.3 of the 1st contract, the parties agreed that “in case of conflict, the terms of the Standard Employment Contract shall take precedence over the terms of the present Contract”.

6. As per article 5 of the 2nd contract, the parties further agreed that said agreement would “be governed by the laws of the Republic of Cyprus and FIFA Regulations or/and C.F.A. Regulations”.

7. Additionally, article 13 of the standard contract stipulates the following: “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. On 24 November 2018, the player sent a default notice to the club, requesting the payment of EUR 9,122.12, corresponding the following: (i) EUR 5,000 as bonus for having participated in full in at least 20 (Twenty) official games of the Cyprus Championship and/or Cup at the end of season 2017/2018; (ii) EUR 4,122.12 corresponding to the flight tickets he had purchased in 2017 and 2018. By means of said letter, the player further provided the club a deadline until 7 December 2018.

9. On 23 January 2019, the player sent a further default letter, providing the club 10 days to remedy the default.

10. On 5 February 2019, the player lodged a claim in front of FIFA against the club requesting the payment of EUR 9,122.12 (cf. point 7. above). The player further requested the imposition of sporting sanctions against the club in accordance with art. 12 bis of the RSTP, “forbidding the club from registering any new players […] for one entire registration period. In addition, the player requested the club to pay the “eventual costs of the present procedure”.

11. In its replies dated 12 March 2019 and 15 April 2019, respectively, the club firstly contested FIFA’s competence to deal with the matter at hand arguing that “the employment contract at the basis of the present dispute actually contained a clear and exclusive arbitration clause in favour of a specific national dispute resolution body”. In this respect, as per the club, the employment related disputes arising out of the contract should be dealt by “the judicial bodies of Cyprus Football Association” and in particular the National Dispute Resolution Chamber of the Cyprus Football Association (hereinafter: the NDRC of the CFA).

12. From the club’s point of view, the “employment agreement of the Parties makes a clear reference in favour to the […] CFA DRC” and the “CFA DRC adopts and applies regulations in accordance to the requirements of FIFA which guarantees fair procedure in relation to the judicial examination of any such dispute between clubs and Football Players”.

13. In this context, in support of its allegations, the club provided a copy of the “Regulations for the Registration and Transfer of Football Players and the DRC Procedural Regulations 2013” of the CFA which includes inter alia the following provisions:

- Article 22.1.1: ‘The Dispute Resolution Committee shall have the competence to adjudicate and/or resolve any financial and or other disputes which may arise […] A. between members clubs of CFA and professional players regarding the employment and stability in their contractual relations’;

- Article 22.2: ‘The decisions of the DRC can be appealed before the Appeal Committee of the Dispute Resolution Chamber’;

- Article 22.4.1:’The Appeal Committee and the Dispute Resolution Committee (DRC) shall consist of five members and more specifically of the Chairman, Vice- Chairman and three members […].

- Article 22.4.3: ‘The two members of the Appeal Committee and DRC respectively will be elected from the Board of Directors of CFA and two members of the Appeal Committee and DRC respectively will be elected by the Pancyprian Football Players' Association. The election procedure must be approved by the CFA. The four elected members of both the Appeal Committee and the DRC respectively will have to elect within 15 days, the Vice-Chairman of the Appeal Committee and DRC respectively. Accordingly the Vice-Chairman and all members will elect the Chairman of the Appeal Committee and the DRC respectively. If the votes are equal, the Vice-Chairman of the Committee will have the casting vote’.

- Article 22.4.4: ‘The members elected by the Pancyprian Players’ Association should be reported promptly to the CFA for approval of their appointment from the Council of CFA’.

- Article 22.4.5: ‘If the Pancyprian Football Players’ Association refuses or fails to elect any member to the DRC within the prescribed period the Council of the CFA shall elect the member or members depending of the case’.

14. In a subsidiary manner, and should FIFA be competent, the club acknowledged the player’s allegations should be partially upheld “in respect to the requested award of the amount €5.000 as bonuses”.

15. However, with regard to the reimbursement of the flight tickets, the club held that, contrary to what the player stated in his claim, it “is not liable to pay any amount for the Claimant’s tickets since the tickets have been purchased by the Claimant without the prior knowledge and/or the prior consent of the Respondent”. As per the club, it “was obliged to provide two return tickets to the Claimant and not money for the purchase of such tickets […]. Please take into account that the tickets have been purchased in high prices”.

16. In his replica, the player first of all contests the club’s allegations that the NDRC of the CFA is competent to deal with the employment related part of the current dispute. In this respect, the player argues that, the “Cyprus NDRC cannot be qualified as an independent national arbitration tribunal that respects the principle of equal representation of players and clubs, as is required by FIFA”.

17. Referring to art. 22.4 of the CFA Regulations (i.e. “Composition and Operation of appeal Committee and DRC”) the player deemed that “the composition of the Cyprus NDRC is in complete disagreement with both the FIFA Circular n° 1010 and the FIFA NDRC Standard Regulations” as two members of the Appeal Committee and DRC were to be elected from the Board of Directors of CFA, “which goes totally against the principle of equal representation of players and clubs”.

18. In addition, the player argued that the NDRC of the CFA does not meet the minimum standards for fair proceedings, since there is no appropriate balance between player and club representatives, as “the Chairman is elected by the Vice-Chairman and all the other members, among them the two members that are elected directly by the Board of Directors of the CFA”. Thus, as per the player, “the parties (representation of players and clubs), once again, do not have equal influence over the appointment of all the members. In other words, the Cyprus NDRC Regulation definitely is not an independent arbitration tribunal, once it does not respect the principle of equal representation of players and clubs”.

19. In view of the aforementioned, the player considered that the “FIFA DRC is (...) the sole competent body to deal with the present case”.

20. As to the substance, the Claimant pointed out that, according to article 1.4.a) of the 1st contract, “the Respondent contractually agreed to provide the player with 2 return flights per season (this fact is undisputed and is confirmed in the contract and in the Respondent’s own words) and failed to comply with this obligation”.

21. In this respect, the Claimant further sustained the following: “Affirming that the Club’s obligation was to provide (to buy) the air tickets and not eventually to reimburse it is an absurd interpretation of the contract and clearly shows the bad faith of the Respondent towards the Claimant”.

22. Furthermore, as per the player, “contrary to what was said by the Respondent, [he] made several requests to the Club regarding the purchase of the air tickets and never received a single reply. For this reason, the player had to buy the air tickets with his own money in two different occasions, first for the Christmas period and again at the end of the season 2017/2018, without receiving any kind of reimbursement from the Club”.

23. Lastly, regarding the Respondent’s allegation that the flight tickets had been purchased “in high prices”, the player explained that “the amounts paid are in line with the amounts charged by the airlines companies, especially considering the Christmas holiday and the beginning of summer holidays in Europe, which is exactly the period in which the player had to buy these tickets, in his period of vacation”.

24. On 27 May 2019, by means of an unsolicited correspondence, the club alleged having paid the sum of EUR 5,000 to the player and provided a copy of the relevant payment receipt.

25. In its duplica, the club insisted on its arguments regarding the inadmissibility of the claim.

26. As to the substance, the club rejected the player’s allegation that he “made several requests to the Club regarding the purchase of the air tickets” and submitted that it never received a request for reimbursement of the flight tickets from the Claimant. In this context, the Respondent sustained that the Claimant failed to fulfil his burden of proof. Consequently, the club rejected the claim of the player regarding the reimbursement of the flight tickets.

27. On 29 January 2020, the player confirmed having received the payment of EUR 5,000 from the Respondent (cf. point I.24. above).

II. Considerations of the DRC judge

1. First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge or the judge) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 February 2019. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand.

2. With regard to the competence of the DRC judge, art. 3 of the Procedural Rules states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition January 2020). In accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of the aforementioned Regulations, the DRC judge would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Chilean player and a Cypriot club.

3. However, the DRC judge acknowledged that the club contested the competence of FIFA’s deciding bodies on the basis of article 13 of the standard contract highlighting that the Football Association of Cyprus has an independent deciding body to deal with the matter, i.e. the NDRC of the CFA.

4. In this regard, the judge noted that the player rejected such position and insisted that FIFA has jurisdiction to deal with the present matter.

5. Taking into account the above, the DRC judge emphasised that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at 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 judge referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

6. In continuation, the judge wished to stress that the club was unable to prove that, in fact, the NDRC 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 FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations.

7. In this respect, the DRC judge referred to the principle of equal representation of players and 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. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the 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”.

8. What is more, while analysing the documentation submitted by the parties in this respect, in particular, the DRC judge concurred that the “Regulations for the Registration and Transfer of Football Players and the DRC Procedural Regulations 2013”, in accordance with its article 22.4.4, the two members which are elected by the Pancyprian Football Players' Association, need to be approved by the Football Association of Cyprus, whereas such condition does not apply to the appointment of club representatives.

9. Moreover, the DRC judge took note of the fact that, based on article 22.4.5 of the Cyprus NDRC Regulations, in case Pancyprian Football Players’ Association refuses or fails to nominate a player representative, the Council of the Football Association of Cyprus has also potential influence on the selection process of player representatives, as opposed to club representatives.

10. Taking into account the foregoing articles of the Cyprus NDRC Regulations, the DRC judge was of the opinion that the NDRC of the CFA does not fully respect the principle of equal representation, as laid down in FIFA Circular no. 1010.

11. In view of all the above, the DRC judge established that the club’s objection to 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.

12. Subsequently, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition January 2020), and considering that the present claim was lodged on 5 February 2019, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

13. The competence of the DRC judge and the applicable regulations having been established, the judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge 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.

14. First of all, the DRC judge noted that the parties entered into an employment contract valid as from 1 September 2017 until 31 May 2018, according to which the Claimant was entitled to receive, inter alia, “2 return flights per season for the player”.

15. Furthermore, the DRC judge took note that, on 24 November 2018, the player put the Respondent in default, requesting reimbursement of the flight tickets in the amount of EUR 4,122.12, as well as the payment of the bonus in the amount of EUR 5,000, setting a 10 days’ deadline to remedy the default.

16. In addition, the DRC judge noted that, on 23 January 2019, the player sent a further default letter, providing the club 10 days to pay the outstanding amounts.

17. In continuation, the DRC judge recalled that the Claimant lodged a claim in front of FIFA on 5 February 2019, requesting the payment of EUR 9,122.12, corresponding to (i) the reimbursement of flight tickets in the amount of EUR 4,122.12; (ii) the payment of the bonus in the amount of EUR 5,000.

18. Subsequently, the judge noted that, on 29 January 2020, the player confirmed having received the payment of EUR 5,000 from the Respondent, corresponding to the bonus stipulated under article 1.a) of the 2nd contract.

19. In continuation, as to the Claimant’s request for the reimbursement of flight tickets, the DRC judge acknowledged that the Claimant requested reimbursement of the flight tickets in the amount of EUR 4,122.12, whereas the Respondent stated that the Claimant purchased the flight tickets “without the prior knowledge and/or the prior consent of the Respondent” and “in high prices”.

20. In this respect, the DRC judge, recalling again the basic principle of burden of proof under art. 12 par. 3 of the Procedural Rules, and based on the evidence submitted by the parties, on one hand noted that the Claimant incurred in the expense of the flight tickets and, on the other hand, the judge noted that the Respondent did not substantiate its defense, as, notably, it did not provide any convincing reason to justify the non-reimbursement of such flight tickets.

21. Furthermore, the DRC took note of the fact that the club limited its arguments to stating that it believed that “the tickets have been purchased in high prices”. However, the DRC judge referred once again to article 1.4 of the 1st contract and noted that it did not include any specific limitations to the type of the flight tickets (e.g., only economy class and/or no more than a given amount to be spend per year). In this context, the DRC judge determined that it was the sole responsibility of the club to add such limitations to this contractual clause.

22. In view of the above, the DRC judge concluded that it could be established that the Respondent had failed to reimburse to the Claimant the flight tickets as contractually agreed and, and in accordance with the general legal principle of pacta sunt servanda, the Respondent, consequently, is to be held liable to reimburse the amount of EUR 4,122.12 to the Claimant.

23. The DRC judge concluded his deliberations in the present matter by establishing that the claim is admissible and partially accepted, and that any further claim lodged by the Claimant is rejected.

24. Furthermore, taking into account the consideration under number II.12. above, the DRC judge 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 amount of outstanding remuneration in due time.

25. In this regard, the DRC judge pointed out that, against clubs, the consequence of the failure to pay the relevant amount in due time shall consist of a ban 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.

26. Therefore, bearing in mind the above, the DRC judge 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.

27. Finally, the DRC judge 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.

III. Decision of the DRC judge

1. The claim of the Claimant, Mr Lucas Domínguez Irarrazabal, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Paphos FC, has to pay to the Claimant the amount of EUR 4,122.12.

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 email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point III.2. above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with point III.2. 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 due in accordance with point III.2. 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 amount plus interest is paid.

9. In the event that the amount due in accordance with point III.2. above 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 DRC. 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 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.

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For the Dispute Resolution Chamber:

Emilio García Silvero

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