F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 5 August 2020
Decision of the
Dispute Resolution Chamber
passed on 5 August 2020,
regarding an employment-related dispute concerning the player Yala Bolasie
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman Alexandra Gómez Bruinewoud (Uruguay/Netherlands), member Joel Talavera (Paraguay), member
CLAIMANT:
Yala Bolasie, United Kingdom
Represented by Livida Sport
RESPONDENT:
Sporting Clube de Portugal, Portugal
I. FACTS OF THE CASE
1. In September 2019, the player, Yala Bolasie, (hereinafter: the Claimant or player), was transferred on loan from the English club, Everton FC, to the Portuguese club, Sporting Clube de Portugal (hereinafter: the Respondent or club), on the basis of terms offered to him by the Respondent in two separate contracts.
2. On 2 September 2019, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 30 June 2020 (hereinafter: the contract).
3. According to clause 3 of the contract the player was entitled “for the 2019/2020” season, to the annual gross wage of EUR 2,476,200, payable in ten monthly instalments of EUR 247,620, on the 5th day of the subsequent month.
4. On 2 September 2019, the company, Koby Images Limited, of which the player was the Director, and the Respondent concluded an Image Rights Agreement valid as from the date of signature until 30 June 2020 (hereinafter: the agreement).
5. The agreement stipulated that the “COMPANY is the sole entity authorized to enter into any and all agreements involving the use of the image rights (e.g., name, likeness, image, signature, etc.) of professional football player BOLASIE YALA”.
6. Clause 2.1. of the agreement was drafted as follows: “During the aforementioned seasons SPORTING will be allowed to use without any limitation, free of charges, PLAYER’s name and image rights”.
7. Clause 2.2. of the agreement stipulated the following: “2. In consideration for the rights granted under this agreement, SPORTING shall pay to COMPANY an amount of EUR 500.000,00 (…) which shall be paid in 10 equal and successive monthly instalments of EUR 50.000,00 (…) each, payable until the last day of each month, starting from 30 September 2019.”
8. Pursuant to clause 8 of the agreement, the “COMPANY further represents and warrants to SPORTING (…) that no payments made to it under this agreement shall be for the benefits or use of the PLAYER”.
9. Clause 9 of the agreement stipulated that “This Agreement is governed by and constructed in accordance with the Swiss Law. Any dispute arising from or related to the Agreement will be submitted exclusively to the Court of Arbitration for Sport in Lausanne, Switzerland, and resolved definitively in accordance with the Code of Sports related Arbitration. The Parties expressly waive recourse to ordinary courts of law in case of any dispute arisen from or related to this Agreement”.
10. On 20 February 2020, the player’s legal representative sent a default notice to the club, indicating the following: “The sum of EUR 250,000 is now outstanding, together with interest. Please take this letter as final notice that the monies are overdue, and that they must be paid within 14 days of the date of this letter. If payment is not received, Mr Bolasie reserves his right to take formal action for recovery of the debt through any channels available to him. That may include a referral to FIFA.”
11. On 24 March 2020, the club sent an email to the player’s legal representative, stating that: “The only agreement in place between Mr. Bolasie and Sporting CP is an employment contract, and Sporting CP’s obligations arising from it have been timely satisfied.”
12. On 26 March 2020, the club sent an additional email to the player, indicating the following: “Following the previous emails on this matter, please be informed that it is the club’s intention to honour the terms of the Image Rights Agreement, as soon as possible. In any case, kindly note that this might be affected by existing constraints on the club’s and banking activity caused by Covid-19, notably further to the Presidential order that imposed quarantine and social-distancing.”
13. On 6 April 2020, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration, claiming the total amount of EUR 512,202.97, detailed as follows:
14. In this respect, the player also requested the following amounts:
- EUR 150,000, “on the basis that Sporting have acted in material breach of the Image Rights Agreement”;
- EUR 7,500, corresponding to “the costs and expenses incurred by the Respondent in bringing this claim”.
15. In its reply, the Respondent rejected the Claimant’s claim and, in particular, it argued the following:
(i) “the Company disregarded an arbitration clause submitting this dispute to the exclusive jurisdiction of the CAS;
(ii) the Company cannot be a party to a dispute before the DRC;
(iii) the Player has no actionable claim against the Respondent;
(iv) the subject matter of the dispute does not consist of an employment-related dispute according to article 22 (b) of the RSTP.”
16. According to the club, following clause 9 of the agreement, the company had the obligation to lodge the claim before CAS and not before any other body. Thus, the club argued that “and in harmony with the kompetenz-kompetenz principle”, the DRC shall decline its jurisdiction over the matter.
17. The club explained that “on one hand, Sporting CP entered into an employment contract with the Player” while, “on the other hand, a commercial company, Koby Images Ltd, concluded an image rights agreement with Sporting CP regarding the commercial exploitation of the Player’s image, name, sound and voice.”
18. The Respondent continued by stating that “despite the fact that both of the abovementioned agreements were concluded on the same date, there’s no link between them and therefore nothing similar to an employment package regarding the transfer of the Player from Everton FC to Sporting CP.”
19. Finally, the club maintained that it is clear that the present dispute is not employment-related, but commercial; and it is not between a club and a player, but between a club and an image rights company.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 6 April 2020. Taking into account the wording of art. 21 of the 2020 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 DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, edition June 2020, (hereinafter: the Regulation) the DRC is, in principle, competent to deal with matters which concerns an employment–related dispute with an international dimension.
3. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.
4. In view of the above mentioned provisions, the Chamber was eager to emphasise that, in principle, and without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, it falls under its competence to deal with international employment-related disputes between players and clubs.
5. The members of the Chamber acknowledged that the company, Koby Images Limited and the Respondent signed an agreement, i.e. an Image Rights Agreement, valid as from 2 September 2019 until 30 June 2020, in accordance with which Koby Images Limited was entitled to receive the total amount of EUR 500,000, payable in ten equal monthly instalments, in connection with the use by the Respondent of the Claimant’s image rights.
6. The Chamber then reviewed the claim of the Claimant, who requests to the Respondent the payment of the total amount of EUR 512,202.97, amount related, mainly, to outstanding image rights fee on the basis of the Image Rights Agreement.
7. The Chamber further noted that the Respondent, for its part, rejected the Claimant’s claim and considered the present dispute as not employment-related but rather a commercial one.
8. In continuation, the Chamber had to verify whether it was competent to deal with the present matter. In fact, it remains that the amount claimed by the player could possibly not be considered due to the Chamber lacking competence to deal with disputes related to image rights.
9. While analysing whether it was competent to hear the matter at hand, the Chamber wished to highlight that the image rights agreement in the matter at stake does not contain any employment-related elements or include any employment-related benefits payable to the Claimant, i.e. benefits in return of the latter’s player services rendered to the Respondent, but solely includes payments on the basis of the use by the Respondent of the Claimant’s personal image rights, which, in the opposite case, may have led the Chamber to believe that it was not in fact an image rights agreement but rather a separate agreement to the employment contract, i.e. directly linked to the services of the Claimant as a player.
10. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as non employment-related and does not have the competence to deal with it on the basis of art. 22 of the Regulations. However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. Such elements, like, for instance, stipulations regarding bonuses, the use of a car, accommodation, which are typical for employment contracts and not for image rights agreements, do not appear to be included in the image rights agreement which is at the basis of the Claimant’s petition.
11. Consequently, bearing in mind the above as well as art. 22 lit. b of the Regulations, which stipulates that the Chamber is competent to hear employment-related disputes (emphasis added), the Chamber decided that it cannot deal with the Claimant’s claim pertaining to the amount of EUR 512,202.97 based on the image rights agreement.
12. The DRC concluded its deliberations in the present matter by establishing that Claimant’s claim is inadmissible.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Yala Bolasie, is inadmissible.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).
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