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 28 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 28 February 2020,

by

John Newman (USA)

on the claim presented by the player,

Elliot Grandin, France,

represented by Mr Loizos Hadjidemetriou

as Claimant

against the club,

Ermis Aradippou FC, Cyprus,

represented by Mr George Christofides

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 11 January 2017, the player, Elliot Grandin (hereinafter: the Claimant or the player). concluded an employment contract (hereinafter: the contract) with the club, Ermis Aradippou FC (hereinafter: the Respondent or the club), valid as from 11 January 2017 until 31 May 2017.

2. In accordance with art. 1.3 of the contract, the player was entitled to “an annual gross salary” in the amount of EUR 3,200, payable in four equal instalments as follows:

“From 11/01/2017 until 31/01/2017, a monthly gross salary of EUR 0”;

“From 01/02/2017 until 28/02/2017, a monthly gross salary of EUR 800 :- (EUR 737,86 net)”;

“From 01/03/2017 until 31/03/2017, a monthly gross salary of EUR 800 :- (EUR 737,86 net)”;

“From 01/03/2017 until 30/04/2017, a monthly gross salary of EUR 800 :- (EUR 737,86 net)”;

“From 01/05/2017 until 31/05/2017, a monthly gross salary of EUR 800 :- (EUR 737,86 net)”;

3. Furthermore, art. 2.1 of the contract stipulated that “the present Contract is regulated by the provisions of the Standard Employment Contract”.

4. In accordance with art. 13 of the standard employment contract “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.”

5. On 17 August 2019, the Claimant lodged a claim for outstanding remuneration in the total amount of EUR 17,600, plus 5% interest “from 31/01/2017 and/or from the date when each amount became due”, corresponding to the following:

- EUR 2,600 “for February 2017”;

- EUR 5,000 “for March 2017”;

- EUR 5,000 “for April 2017”;

- EUR 5,000 “for May 2017”,

6. The Claimant further requested the imposition of sporting sanctions against the Respondent.

Admissibility

7. In its reply to the claim, the club firstly held that the FIFA DRC has no jurisdiction to decide on the present matter pursuant to the standard employment contract as well as the national DRC Regulations. In particular, the club referred to art. 13 of the standard employment contract as well as art. 22 of the national regulations for the status and transfer of players, and argued that the conditions set out in art. 22 (b) of the FIFA Regulations on the Status and Transfer of Players are met.

8. In support of its position, the club presented a copy of the “Regulations for the registration and transfer of football players and the DRC procedural regulations 2013” (hereinafter: NDRC Regulations), which include, inter alia, the following:

- Art. 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 between inter alia member clubs of CFA and professional players regarding the employment and stability in their contractual relations;

- Art. 22.2: the decisions of the DRC can be appealed before the Appeal Committee of the Dispute Resolution Chamber;

- Art. 22.4.1: “the Appeal Committee and the Dispute Resolution Committee (DRC) [hereinafter: NDRC] shall consist of five members and more specifically of the Chairman, Vice- Chairman and three members“.

- Art. 22.4.3 holds that “the two members of the Appeal Committee and [NDRC] respectively will be elected from the Board of Directors of CFA and two members of the Appeal Committee and [NDRC] 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 [NDRC] respectively will have to elect within 15 days, the Vice-Chairman of the Appeal Committee and [NDRC] respectively. Accordingly the Vice- Chairman and all members will elect the Chairman of the Appeal Committee and the [NDRC] respectively. If the votes are equal, the Vice-Chairman of the Committee will have the casting vote.”

- Art. 22.4.4 reads that “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.”

- Art. 22.4.5 stipulates that “(i)f the Pancyprian Football Players’ Association refuses or fails to elect any member to the [NDRC] within the prescribed period the Council of the [CFA] shall elect the member or members depending of the case”.

9. The player insisted on FIFA’s competence to deal with the present matter arguing that the Cypriot NDRC is not independent and impartial. In particular, the player referred to Article 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 player further argued that by means of Article 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”.

Substance:

10. In his claim, the player deemed that the “Respondent wanted to have two different documents signed for the Claimant’s employment. A so called employment agreement and a so called supplementary agreement.”

11. Furthermore, the player argued that “immediately after signing the CoE [contract] the supplementary agreement […] was signed. This agreement, for reasons never explained to the Claimant, was dated 25/01/2018 […] the Respondent does not have a duly signed original or copy of the supplementary agreement in his possession. He was never given a signed copy by the Respondent and, after contacting the CFA, he was informed that this document was never submitted to the CFA”.

12. Moreover, the Claimant explained that “when the Claimant signed the CoE and the supplementary agreement on 11/01/2017, only the president of the Respondent was present. Because the Claimant was told by the Respondent, by virtue of the Respondent’s statutes, both documents needed to be also signed by the club’s general secretary in order to be legally valid, the Claimant was told that all originals were going to be kept at the Respondent’s offices until the general secretary could sign the them the next day.”

13. According to the Claimant, the Claimant was entitled to the following amounts pursuant to the supplementary agreement:

“i. A total of EUR 16,800 payable in 4 instalments on the last day of each month. As explicitly stated in the supplementary agreement, the total remuneration of the Claimant under both the CoE and the supplementary agreement would not exceed the amount of EUR 20,000.

ii. A bonus of EUR 6,000 in case the Respondent ended the season in the top 6

iii. A car

iv. A furnished apartment”.

14. Furthermore, the Claimant argued that “during the course of the Claimant’s employment, the Respondent was not timely and fully paying the Claimant’s agreed salaries. Until today, the Respondent has only paid a total of EUR 3,400 out of the agreed total of EUR 20,000.”

15. Moreover, the player claimed that before the last game of the season, the club wanted the player to sign a document titled “Final Payment Declaration” which stated that the player had no outstanding salaries form the club.

16. In this regard, the player deemed that he was told that “this declaration was needed to be submitted to the CFA Licencing Committee so that the Respondent would not have any problems with its assessment by the CFA Club Licencing Committee. The Claimant was reassured that all his due salaries would be duly paid to him in a few days.”

17. The player however refused to sign this as he had “lost his trust to the Respondent”.

18. Moreover, the player deemed that after contacting the CFA Licencing Committtee, he was shown a signed version of the “Final Payment Declaration” and stressed that he has never signed it and requested “FIFA to ask for expert testimony to examine the original of the document and ascertain whether it was signed by the Claimant.

19. Furthermore, the player stressed that the whatsapp conversation he had “with the intermediary working on behalf of the Respondent, the day before the signing of the agreements” is enough evidence to prove “that this agreement [supplementary agreement] was indeed signed”.

20. Moreover, the player highlighted that “on 11/01/2017, after the Claimant agreed to the final offer of the club, he was sent via email copies of the agreed contracts […]. The email was sent by the club’s director (manager), Mr George Athanasiou”.

21. Finally, the player emphasized that “how can anyone accept that a player of such a market value, fully capable and legible to compete, who player in the majority of his club’s games, scored 3 goal, who was paid around EUR 4,000 per month by his previous and subsequent clubs, would accept and employment of only EUR 800 per month? Especially without any accommodation, car and meals?”

22. In its reply, the club rejected the player’s claim and deemed that at the end of the contract, the player signed a document titled “FINAL PAYMENT DECLARATION” by which he confirmed that all amounts have been duly paid.

23. Moreover, the club stressed that the parties only concluded one agreement, i.e. the employment contract, and that it has no knowledge of any other agreement with the player.

24. In this regard, the club argued that it “denies that the person who allegedly carried out negotiations was an intermediary of the Respondent” and that the document provided by the player “does not reveal the identity of the person who had that conversation with”.

25. Furthermore, the club claimed that it paid the player all amounts, i.e. EUR 3,200, and therefore the player’s claim cannot be accepted.

26. In his replica, the player reiterated his previous position and stressed that he did not sign the document titled “FINAL PAYMENT DECLARATION”.

27. In spite of having been invited to do so, the club did provide its final comments nor the original version of the document “FINAL PAYMENT DECLARATION” as requested by FIFA.

II. Considerations of the Dispute Resolution Chamber (DRC) judge

1. First, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge) analysed whether he was competent to deal with the matter at stake. In this respect, he took note that the present matter was submitted to FIFA on 17 August 2019 and decided on 28 February 2020. Consequently, the 2019 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 (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (January 2020 edition) he 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 DRC judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 13 of the standard employment contract highlighting that the Cyprus Football Association (CFA) has an independent deciding body to deal with the matter, i.e. the Dispute Resolution Chamber of the CFA.

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

5. Taking into account all the above, the DRC judge emphasised that in accordance with art. 22 lit b) of the Regulations on the Status and Transfer of Players, he is, in principle, competent to deal with employment-related disputes of an international dimension; the parties may, however, explicitly opt in writing for any disputes arisen between them to be decided by an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. With regard to the standards to be imposed on an independent arbitration tribunal existing at national level, the DRC judge referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the DRC judge 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 this respect, DRC judge noted the Claimant’s allegation, according to which the Cypriot NDRC is not independent and impartial, in particular, highlighting the election of the player’s representatives and concluding 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 players’ union”.

7. With the aforementioned in mind, the DRC judge first emphasised that, in the present matter, indeed it would appear that the parties agreed, by means of art. 13 the contract, that the disputes arisen between them in relation to the employment contract would be resolved by the Cypriot NDRC.

8. Nevertheless, and in accordance with said art. 22 lit. b) of the Regulations, the DRC judge emphasised that he needed to analyse whether the entire dispute resolution system within the CFA, i.e. the Cypriot NDRC, actually complies with the requirements as mentioned in point II./5. above. In so doing, the DRC judge recalled that, in accordance with art. 12 par. 3 of the Regulations, it is for the Respondent to prove that the Cypriot NDRC is an independent tribunal guaranteeing fair proceedings and which respects the principle of equal representation of players and clubs.

9. The DRC judge further stressed that the principle of equal representation of players and clubs is 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, 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 the same vein, 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”.

10. Taking into account the above, the DRC judge entered into the examination of the Cypriot NDRC Regulations entered into force as from 2013, which was submitted by the Respondent during the course of the investigation of the matter at stake.

11. In particular, the DRC judge observed Article art. 22.4.3, art. 22.4.4 and art. 22.4.5 of the NDRC Regulations (see I.8. above).

12. In this respect, the DRC judge noted that, from the above mentioned articles of the Cypriot NDRC Regulations, the principle of equal representation of players and clubs is not respected with regard to the appointment of the two members elected by the Pancyprian Football Players’ Association, as the election of these members requires the approval of the CFA and in case the Pancyprian Football Players’ Association refuses of fails to elect any members, these members will be elected by the CFA. The DRC judge emphasised that such a requirement, i.e. the approval of the CFA, is not in line with the abovementioned principle.

13. In view of all the above, the DRC judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the DRC judge 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.

14. Subsequently, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (January 2020 edition), and considering that the present claim was lodged on 17 August 2019, the June 2019 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

15. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

16. First of all, the DRC judge acknowledged that on 11 January 2017, the player and the club signed an employment contract valid as from 11 January 2017 until 31 May 2017, according to which, the player was entitled to a total amount of EUR 3,200.

17. Furthermore, the DRC judge noted that it is undisputed between the parties, that the Respondent paid the amount in accordance with the abovementioned contract.

18. The DRC judge then reviewed the claim of the player, who maintains that the parties concluded a supplementary agreement, according to which the player was entitled to, inter alia, an additional amount of EUR 16,800 and that the Respondent failed to pay any amount foreseen by this agreement.

19. Moreover, the DRC judge took note of the player’s argument that he never received a signed copy of the supplementary agreement and that he later found out that the club only registered the employment contract with the CFA.

20. The DRC judge then reviewed the position of the Respondent and acknowledged that the latter deemed that at the end of the contract, the player signed a document titled “FINAL PAYMENT DECLARATION” by which the player confirmed that all amounts have been duly paid.

21. In addition, the DRC judge took note of the club’s argument that the parties only signed the employment contract and that it has no knowledge of any other agreement concluded with the player. Moreover, the DRC judge acknowledged that the club denied that the person who allegedly carried out the negotiations with the player via whatsapp was an intermediary of the club.

22. In view of the foregoing, the DRC judge deemed that the first issue to be solved is, whether the player signed the document titled “FINAL PAYMENT DECLARATION”. In this regard, the DRC judge acknowledged that according to the player he never signed said document and that he deemed said document to be a forgery.

23. In this regard, the DRC judge considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones related to the possible forgery of a document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

24. Having said that, the DRC judge underlined that, despite being invited to do so, the Respondent was unable to provide the original copy of the “FINAL PAYMENT DECLARATION”. On account of these considerations, the DRC judge concluded that he was in no position to verify the authenticity of the document and, thus, could not take it into consideration.

25. In continuation, the DRC judge then turned his attention to the issue of the alleged signing of the supplementary agreement.

26. In view of this dissent between the parties in respect of the basic question as to whether or not a supplementary contract between them had been concluded, the DRC judge firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of the said principle in the present matter led the DRC judge to conclude that it was up to the player to prove that the supplementary agreement, on the basis of which he claims outstanding remuneration from the Respondent, indeed existed.

27. In this respect, the DRC judge recalled that the Claimant maintained that he never received a copy of the supplementary agreement he asserts having signed with the Respondent. However, the player submitted a series of documents as well as an unsigned copy of the supplementary agreement in support of his claim which were in continuation examined by the DRC judge.

28. In this regard, the DRC judge took note of the evidences provided by the Claimant. The DRC underscored that said evidences consisted in: i) a whatsapp conversation between the player and an alleged intermediary working on behalf of the club, the day before the signing of both agreements; and ii) an alleged e-mail sent by the club’s director with the copies of the agreed contracts.

29. Having duly taken note of the aforementioned documentation presented by the Claimant, the DRC judge held that in order for him to be able to assume that the Claimant and the Respondent had indeed been bound through a supplementary agreement with the terms as described by the Claimant, it had to be established, to his satisfaction, by documentary evidence, that the said parties indeed concluded said agreement. In general, the DRC judge held that he could not assume that a supplementary agreement had been concluded by and between the parties simply based on circumstances which, in general, may be likely but are not certain to indicate the signing of such an agreement. In addition, the members of the Chamber agreed that the DRC judge must be very careful with accepting documents, other than actual signed contracts, as evidence for the conclusion of a contract.

30. As a first step, the DRC judge analysed the whatsapp conversation with the alleged intermediary acting on behalf of the club. In this respect, the DRC judge concluded that it could not be established that said person was indeed an intermediary authorized by the club. Moreover, the DRC judge wished to point out that said whatsapp conversation does not prove that the parties concluded a supplementary agreement on the next day.

31. In addition, the DRC judge took a closer look at the copy of the e-mail provided by the Claimant. The DRC judge noticed that the Claimant did not provide the original e-mail which he allegedly received by the director of the club, but an e-mail chain in which the e-mail sent by the club was forwarded several times. The DRC judge concluded that based on said document it cannot be established, which documents were attached in the original e-mail and, since the e-mail was sent without a “subject” there is no indication what purpose said e-mail had. In fact, the DRC judge emphasized that it is not clear whether any document was attached at all as this information is not visible in the provided document.

32. In respect of the foregoing, the DRC judge had to conclude that the documents and arguments presented by the Claimant did not prove beyond doubt that the Respondent and the Claimant had validly signed a supplementary agreement.

33. All the above led the DRC judge to conclude that the claim of the player has to be rejected, due to its lack of evidence.

III. Decision of the DRC judge

1. The claim of the Claimant, Elliot Grandin, is admissible.

2. The claim of the Claimant is rejected.

*****

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 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, a copy of which we enclose hereto. 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

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer