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 24 September 2020

Decision of the

Dispute Resolution Chamber

passed on 24 September 2020,

regarding an employment-related dispute concerning the player Roberto Lago Soto

COMPOSITION:

Geoff Thompson (England), Chairman Bin Mohamed (Singapore), member Tomislav Kasalo (Croatia), member

CLAIMANT:

Roberto Lago Soto, Spain

Represented by Messrs Guillermo López Arana, Jesús Manuel Ortega Calderón, Juan de Dios Crespo Pérez and Enric Ripoll González

RESPONDENT:

Apoel Nicosia FC, Cyprus

I. FACTS OF THE CASE

1. On 6 July 2016, the Spanish player, Roberto Lago Soto (hereinafter: Claimant or player) and the Cypriot club, Apoel Nicosia FC Khartoum (hereinafter: Respondent or club) concluded an employment contract (hereinafter: contract) valid until 31 May 2018.

2. On 6 July 2016, the parties concluded a supplementary agreement (hereinafter: annex) to the contract.

3. Clause 1.3 of the contract provided that the Claimant was entitled to receive a monthly salary of EUR 21,200.

4. Clause 13 of the contract reads as follows: “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 regulation of the CFA”.

5. Point 2 of the annex stated: “The Player as long as he maintains a valid employment agreement with the Club, shall be entitled to the following fixed bonuses regarding European Competitions, which replace any bonuses referred to the Internal Regulations of the Club:

Qualification of team to Group Stage of UEFA UCL: EUR 100,000 net.

Qualification of team to Group Stage of UEFA UEL: EUR 50,000 net.

Regarding Cyprus Championship and Cup, the Player will be entitled to any relevant bonuses for these two targets as prescribed in the Internal regulations of the Club”.

6. Point 3 of the annex reads as follows: “If the Player participates as a start eleven player in 75% of the Club’s Championship games then the Player will be entitled to a bonus of EUR 15,000 net”.

7. In accordance with the Respondent´s internal regulations the bonuses for the season 2017/2018 were established as follows: “if Apoel FC qualifies to UCL Group stage for season 2017/2018 and wins the Cyprus Championship for 2017-2018 the total prim will be EUR 900,000”.

8. On 20 December 2019, the Claimant sent a default notice to the Respondent requesting payment of the total amount of EUR 35,849.24 as outstanding remuneration granting 10 days to remedy the default, to no avail.

9. On 6 May 2020, the Claimant lodged the claim against the Respondent in front of FIFA requesting payment of EUR 35,849.24 as bonuses plus “interest as from due date”.

10. Moreover, the Claimant requested to condemn the Respondent to pay procedural costs and requested reimbursement of legal costs.

11. According to the Claimant the Respondent won the Cyprus League 2017/2018 and qualified for the groups’ stage of the UEFA Champions League 2017/2018.

12. The Claimant explained that in accordance with the point 2 of the annex the Respondent was obliged to pay to the Claimant bonuses and that “Regarding Cyprus Championship and Cup, the Player will be entitled to any relevant bonuses for these two targets as prescribed in the Internal regulations of the Club”.

13. The Claimant further explained that in accordance with the internal regulations of the club the bonus amounts to EUR 900,000.

14. In this respect, the Claimant maintained that pursuant to the bonus distribution agreed between the Respondent and the team´s captain, the team was entitled to receive EUR 1,000,000 (instead of EUR 900,000).

15. The Claimant argued not having received the payment of said bonus despite the promises of the club´s President. Moreover, the Claimant argued that the rest of the team received said bonus.

16. The Claimant specified that for the calculation of the relevant bonus the following criteria applied:

- EUR 17.396 for each minute on the pitch,

- EUR 8.978 for each minute on the bench and

- EUR 3.703 for each minute without being called-up for the match.

17. The Claimant stated that according to the website “transfermarkt.com” his participation in the season 2017/2018 is as follows::

- 1.482 minutes on the pitch,

- 676 minutes on the bench and

- 1.080 minutes without being call-up for the match.

18. The Claimant further pointed out that he is entitled to receive the total amount of EUR 35,849.24 which is composed as follows:

Matches´ participation

EUR 17,3960

1.482 min.

EUR 25,780.87

Bench

EUR 8,9780

676 min.

EUR 6,069.13

No call-up

EUR 3,7030

1080 min.

EUR 3,999.24

Total:

EUR 35,849.24

19. The Claimant argued having received in the previous season 2016/2017 payment of a bonus amounting to EUR 18,996 for winning the team the league. The Claimant enclosed an email dated 20 May 2017 sent by the captain to the team indicating the distribution of bonuses for the previous season which reflects the same distribution than the season 2017/2018.

20. Furthermore, the Claimant maintained having received payment of bonuses related to European competitions in previous editions and for pointes obtained in the UEFA Champions League in previous seasons.

21. In sum, the Claimant maintained that the claimed bonus is established in the annex and in the internal club´s and in addition the Respondent paid them in the previous seasons to the Claimant.

22. The claimant, for his part, while acknowledging the existence of clause 13 in the abovementioned contract, expressed the inexistence, within the CFA, of a NDRC that guarantees the fairness of the process, respects the principle of equal representation and with the capacity to enter to examine the existence or not of a debt based on the evidence provided by the parties. Therefore, the player held that the FIFA DRC is the competent deciding body that has to deal with the present dispute.

23. In its reply, the club maintained that the FIFA DRC is not competent to hear the present dispute due to the existence of clause 13 in the standard employment contract giving exclusive jurisdiction to the CFA NDRC.

24. Moreover, the club sustained that CFA NDRC is an independent and impartial body, which satisfies the exception of art. 22(b) of the FIFA RSTP.

25. Furthermore, as to the substance, the Respondent rejected all the allegations of the player and maintained that it paid the requested bonuses to the player.

26. The club confirmed that it won the Cyprus championship for season 2017-18 and that it qualified to the UEFA Champions League (UCL) group stages for season 2017-18.

27. The Respondent clarified that the player was only entitled to the bonuses mentioned under section 1, titled “1. Championship Cyprus” in annex 4 of the claim, which reads as follows:

28. With regard to the above, the club further clarified that due to clause 2 of the annex the parties explicitly agreed to only one bonus concerning the European Competitions. That was, € 50,000 net for qualifying in the Europa League group stage or € 100,000 net for qualifying in the UCL group stage, only. No other bonuses were agreed for the European (as called in the contract) Competitions.

29. The club added that said clause explicitly provides that such agreed bonus “replaced all bonuses mentioned in the Club’s internal regulations, i.e. annex 4 of the Claim, apart from the bonuses for winning the Cyprus Championship and/or Cup.” Therefore, the only bonuses to which the player was entitled by virtue of annex 4 of the claim were the ones mentioned in section 1 (Championship Cyprus).

30. The club explained that as can be seen in the claim, as far as season 2017-18 is concerned, the player was paid all bonuses. Both the € 100,000 for qualification in the UCL group stage, as well as an additional bonus of € 35,551 for winning the Cypriot Championship.

31. The club further clarified that the payment of €35,551 was made to the player after the end of the 2017-18 Championship with 2 cheques, from 2 different banks, payable on the same day, which have been also provided by the player in his claim. As can be seen in the claim, one of the cheques was cashed by the player on 27/07/2018 and the other one on 31/07/2018.

32. Moreover, the club held that the player’s allegation that the Club refused to reply to his lawyer’s letter is rejected. The Club’s general director spoke on numerous occasions on the phone with both the player and his lawyer.

33. The club admitted that in February 2019 it had not yet settled all the bonuses for the 2017-18 season. What is more, also due to cashflow issues as well as following the practice of the club, for the players who will continue being part of the team, the club settles their due bonuses over a number of instalments within the season after the one when the bonuses were won. This also happened with the players mentioned in the claim, all of these players continued with the club for season 2018-19.

34. The club further explained that the reason why the club settled the player’s UCL bonus earlier was because that bonus was contractually agreed. And, unlike all the other players mentioned by the Claimant, his UCL bonus was fixed and would not increase due to his performance in the UCL. Moreover, the club stated that from all the evidence adduced by the player, there is no player saying that his bonuses, as per the internal regulations, have not been settled.

35. The club maintained that the reason behind the present dispute, is the fact that the player feels a strong injustice because most of the players, in addition to the UCL groups stage qualification bonus, were also entitled to performance based bonuses. The Claimant was not entitled to UCL performance based bonuses because of the contractually agreed bonus in art. 2 of his supplementary agreement, which explicitly prevailed over all bonuses mentioned in the internal regulations, concerning the UEFA Competitions.

36. The club further contested the data of the participation of the player in the season 2017/2018 according to the website Transfermarkt, which the club considers not official and accurate.

37. Finally, the club held that the player’s calculations as to the bonus he is entitled for the 2017-18 Championship is wrong. The total bonus to which he was entitled is € 35,551, which has been already paid to him since the summer of 2018.

38. After being requested to submit his position to the alleged payments, the Claimant maintained that the cheques mentioned by the Respondent referred to bonuses related to previous seasons.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 6 May 2020. Consequently, the DRC concluded that the November 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 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 June 2020) the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension.

3. However, the DRC acknowledged that the club contested the competence of FIFA’s deciding bodies on the basis of art. 13 of the annex to the contract highlighting that the Cyprus Football Association (CFA) has an independent deciding body to deal with the matter, i.e. the National Dispute Resolution Chamber of the CFA.

4. Taking into account the above, the Chamber 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 Chamber referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, 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.

5. In continuation, the members of the Chamber wished to stress that the club was unable to prove that, in fact, the CFA “National Dispute Resolution Chamber” 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.

6. In this respect, the DRC 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.”

7. 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”, 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 CFA, whereas such condition does not apply to the appointment of club representatives. What is more, 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 CFA has also potential influence on the selection process of player representatives, as opposed to club representatives.

8. Taking into account the foregoing articles of the Cypriot NDRC Regulations, the members of the Chamber were of the opinion that the Cypriot NDRC does not fully respect the principle of equal representation, as laid down in FIFA Circular no. 1010.

9. In view of all the above, the DRC 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.

10. Furthermore, the Chamber 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 Players, and considering that the present claim was lodged on 6 May 2020, the March 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

11. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. 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.

12. Having said that, the DRC acknowledged that, on 6 July 2016 , the Claimant and the Respondent signed an employment contract as well as an annex pursuant to which the Respondent undertook to pay to the Claimant a monthly salary as well as certain bonuses.

13. The Chamber further acknowledged that, according to the Claimant, the Respondent had failed to remit bonuses related to the season 2017/2018 when the club won the Cypriot Championship and qualified for the group stage of the UEFA Champions League. The Claimant explained that in accordance with point 2 of the annex, the Respondent was obliged to pay to the Claimant bonuses and that “Regarding Cyprus Championship and Cup, the Player will be entitled to any relevant bonuses for these two targets as prescribed in the Internal regulations of the Club”. In sum, the Claimant maintained that the claimed bonus in the amount of EUR 849,24 is established in the annex and in the internal club´s and in addition the Respondent paid them in the previous seasons to the Claimant

14. Moreover, the DRC noted that the Respondent rejected the player’s claim and argued that the player was entitled to bonuses in the amount of EUR 35,551 for the season 2017/2018 and that such amount was remitted in form of two cheques, from 2 different banks, allegedly cashed by the player on 27/07/2018 and on 31/07/2018.

15. The members of the Chamber duly noted that the player denied that said payments were related to the bonuses claimed but rather to the previous season.

16. In view of this dissent between the parties, the DRC 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 Chamber to conclude that it was up to the Respondent to prove that the alleged payments were indeed related to the bonuses in question.

17. On account of the above, the Chamber noted that the Respondent challenged the player’s calculation of the bonuses claimed on the basis of the statistics submitted, but failed to submit documents in support of its alternative calculation.

18. In this regard, the DRC examined the cheques in question, which contained no payment purpose and concluded that was not possible to determine whether the amounts paid to the player corresponded to the outstanding bonuses claimed or relate to the previous season.

19. Therefore, the Chamber wished to emphasize that the club failed to discharge its burden of proof in relation to said payments as well as the alleged lower entitlement of the player.

20. On account of the above considerations and the documentation on file, the DRC decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay EUR 35,849.24 corresponding to the bonus in relation to season 2017/2018.

21. In addition, and taking into consideration the player’s claim and the jurisprudence of the Chamber, the DRC decided to award on the aforementioned amounts interest of 5% p.a. as from 1 May 2018 until the date of effective payment.

22. Furthermore, taking into account the consideration under number II./10. 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 amounts of outstanding remuneration and/or compensation in due time.

23. In this regard, the DRC judge 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.

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

25. 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 amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Roberto Lago Soto, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, Apoel Nicosia FC, has to pay to the Claimant, the following amount:

- EUR 35,849.24 as outstanding remuneration plus 5% interest p.a. as from 1 May 2018 until the date of effective payment.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established 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 following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

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).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777