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 25 February 2021

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 February 2021,

regarding an employment-related dispute concerning the player Stephen OBAYAN SUNDAY

COMPOSITION:

Geoff Thompson (England), Chairman Stefano Sartori (Italy), member Joseph Antoine Bell (Cameroon), member

CLAIMANT:

STEPHEN OBAYAN SUNDAY, Spain

Represented by Mr. Hrvoje Raic

RESPONDENT:

PAFOS FC, Cyprus

I. FACTS

1. On 1 July 2019, the Spanish player Stephen Obayan Sunday (hereinafter: the player or Claimant) and the Cypriot club Pafos FC (hereinafter: the club or Respondent) signed a contract and a supplementary agreement, valid between 1 July 2019 and 31 May 2020, according to which the player was entitled to receive the following amounts:

- EUR 18,000 as advance fee ‘payable within 14 days from the day of the signature of the said agreement’;

- EUR 180,000 net as salary, payable in ten monthly instalments of EUR 18,000 each, payable on the 20th day of the following month for the previous month

- bonuses as set forth in the pertinent Supplementary agreement,

- all taxes on the agreed net amounts.

2. Art. 3.1.1.3 of the contract stipulates: ‘The player agrees to attend at any reasonable place for the purposes of and to participate in training and match preparation’.

3. Art. 3.2.7 of the contract holds the following clause: ‘The player agrees that he shall not: Except in cases of emergency, arrange or undergo any medical treatment without first giving the club proper details of the proposed treatment and physician/surgeon and without requesting the club’s consent, which the club will not unreasonably withhold’.

4. On 23 September 2019, the player received a Disciplinary Decision from the club dated 13 September 2019, based on which a breach by the player of art. 3.1.1.3 of the contract was established (hereinafter: the first decision). As a result, the player was given an oral warning and a fine of ‘two weeks basic salary’, suspended for a period of 12 months. Further, from the information submitted it turns out that the player was informed about the start if said proceeding on 4 September 2019, as he had sent a WhatsApp message that the player had taken a flight to see his family and that consequently, he returned late to the club.

5. On 26 September 2019, the player appealed said decision, however did not receive further communication from the club regarding said appeal.

6. On 10 November 2019, the player sustained an injury in a match between the club and Enosis Neon Paralimniou.

7. On 25 February 2019, the player put the club in default for the amount of EUR 45,000 as well as the reimbursement for the costs of medical therapies he underwent, providing a 15 days’ deadline to pay.

8. On 26 February 2020, the club issued a Disciplinary Decision (hereinafter: the second decision), based on which the player was given a written warning and a fine of ‘one week basic salary’, as well as the full implementation of the sanction as per the first decision.

9. On 17 March 2020, the player received a new correspondence from the club by means of which he was informed that a new disciplinary hearing would take place on 31 March 2020, for breaching art. 3.2.7 of the contract.

10. On 20 March 2020, the club paid the player the amounts of EUR 9,000 as ‘balance of the December salary’ and EUR 9,000 as ‘first half of the January 2020 salary’.

11. On 26 March 2020, the player informed the club that denied all allegations as per the disciplinary proceedings and reiterated his request to be paid EUR 45,000 and the costs of his medical treatment. Said request was denied by the club in a further letter dated 2 April 2020, however made the following payments:

- EUR 9,000 as ‘balance of the January salary’;

- EUR 4,500 as ‘part of the February 2020 salary’.

12. On 8 April 2020, the player denied the club’s allegations and again put the club in default for an amount of EUR 31,500 and the costs of his medical expenses.

13. On 13 May 2020, the club paid the player EUR 9,000 as ‘half of the March salary’ and on 19 May 2020, the club informed the player that no sanctions as to the alleged breach of art 3.2.7 would be upheld against the player, due to inconclusive evidence (hereinafter: the third decision).

14. On 17 November 2020, the player lodged a claim against the club in front of FIFA, requesting the amount of EUR 79,447, plus 5% interest p.a. as from the respective due dates, as outstanding remuneration, broken down as follows:

- EUR 18,000 as salary for July 2019;

- EUR 13,500 as unpaid part of the salary for February 2020;

- EUR 9,000 as salary for March 2020;

- EUR 18,000 as salary for April 2020;

- EUR 20,947 as costs of medical expenses.

15. In his claim, the player explains that the club tried to avoid making the payment of outstanding salaries by initiating disciplinary proceedings against him.

16. The player however explains that none of these proceedings followed a due process: in the first proceeding, he was never informed about the outcome of the appeal, in the second proceeding was ‘scrapped due to the simple fact that the player did not commit any disciplinary offence’ and for the third proceeding, the player never received any decision.

17. In its reply to the claim, the club confirmed that it indeed paid EUR 193,500 out of the total amount of EUR 198,000, however that it also deducted an amount of EUR 13,500 ‘as disciplinary fine in accordance with disciplinary decision dated 26/02/2020’.

18. As to the claimed medical expenses, the club denies that it ever agreed to pay said expenses, as it never authorized the player to follow medical treatment abroad.

19. As to the disciplinary proceedings, the club explains that in case no appeal is received, the decision is considered final and binding, as per at. 3.3.4 of the employment agreement.

20. As to the fine of EUR 13,500 imposed, the club explains that said fine of ‘three weeks salary’ was imposed on 26 February 2020 and notified to the player by hand. As no appeal was received from the player, said decision was final and binding. Furthermore, the club argues that the fie is not disproportionate, as it incorporated a fine of two weeks salary as per the decision dated 13 September 2019, and a fine of one week salary as per the decision dated 26 February 2020.

21. In connection with the medical expenses, the club argues that the claimed amount of EUR 20,947 allegedly corresponds to the costs of medical treatment that the player underwent in Madrid, Spain. The club denies that it is responsible for the payment of said costs, as it never received an invoice from the player and also because the player never informed the club about the medical treatment abroad.

22. In conclusion, the club asks for the rejection of the player’s claim or alternatively, to decide that it is only liable to pay an amount of EUR 45,000.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 17 November 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 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 October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a Spanish player and a Cypriot club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (February 2021 edition), and considering that the claim was lodged on 17 November 2020, the October 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. 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 the documentation submitted by the parties. 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.

5. First of all, the Chamber acknowledged that the Claimant and the Respondent had concluded an employment contract valid as from 1 July 2019 until 31 May 2020, according to which the Claimant was entitled to a sign-on fee of EUR 18,000, as well as 10 monthly payments of EUR 18,000 each, and bonuses.

6. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the amount of EUR 79,447, indicating that the Respondent failed to pay him several salaries and medical expenses, as well as that it invalidly imposed a fine of EUR 13,500 on him.

7. Subsequently, the Chamber noted that the Respondent, in its defence, confirmed that it imposed several fines in the total amount of EUR 13,500 on the Claimant, for his alleged absence form training sessions and further argued that it is not obliged to reimburse the medical expenses the Claimant is requesting.

8. In view of the foregoing , the members of the Chamber underlined that the central issue in the matter at hand was to establish (1) whether it could be established that several salaries remained unpaid by the Respondent, (2) whether the Respondent had validly imposed fines on the Claimant and (3) whether the Respondent is obliged to reimburse the medical expenses of the Claimant.

9. First of all, the Chamber wished to point out that the total amount of EUR 45,000, to which the Claimant was contractually entitled to, remained unpaid. The Respondent however further explains that it imposed a fine of EUR 13,500 on the Claimant and denied its obligation to reimburse the medical expenses.

10. Turning to the fines imposed, the Chamber analysed the fines imposed on the Claimant on 13 September 2019 and 26 February 2020, due to his alleged absence from training sessions, the Chamber first of all noted that it appeared that the Respondent indeed asked the Claimant for his comments on the allegations, and subsequently took a decision, which was then notified to the Claimant.

11. However, the Chamber also took note that the Claimant could demonstrate that he appealed the first decision, which allegation is simply denied by the Respondent, however without a further specification and/or additional documentation. What is more, the Respondent was also not able to demonstrate that it duly notified the second decision dated 26 February 2020 to the Claimant, who argues that he was not aware at all of said decision. Hence, the Chamber was unanimous in its conclusion that the fine in the total amount of EUR 13,500, imposed by means of the decisions dated 12 September 2019 and 26 February 2020, must be disregarded.

12. Furthermore, and in any case, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players.

13. In conclusion, the Chamber determined that the Respondent could not set-off its debt towards the Claimant by means of the various fines imposed on him and that thus, at least an amount of EUR 58,500 is due to the Claimant.

14. Subsequently, as to the medical expenses claimed by the Claimant, the Chamber analysed the receipts provided by the Claimant as well as the contents of the contract, and noted that all these medical treatments were undergone in Madrid, Spain. What is more, based on the contract, the Respondent did not have a contractual obligation per se to reimburse said amounts of medical expenses, as the Claimant had – except for cases of emergency – to request permission from the Respondent.

15. What is more, the Claimant also failed to submit evidence that he duly asked the Respondent for permission to undergo said medical treatments outside Cyprus, that there was a situation of emergency, or that the Respondent agreed with paying for said medical expenses costs. As a result, the Chamber decided to reject this part of the Claimant’s claim.

16. For all the above reasons, the Chamber decided to partially accept the Claimant´s claim and determined that the Respondent must pay to the Claimant the total amount of EUR 58,500 as outstanding remuneration.

17. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as follows:

 on the amount of EUR 18,000 as of 21 August 2019;

 on the amount of EUR 13,500 as of 21 March 2020;

 on the amount of EUR 9,000 as of 21 April 2020;

 on the amount of EUR 18,000 as of 21 May 2020.

18. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

19. Furthermore, taking into account the consideration under number II./3. 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.

20. 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.

21. 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.

22. 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, Stephen Obayan Sunday, is accepted.

2. The Respondent, Pafos FC, has to pay to the Claimant, the following amount:

- EUR 58,500 as outstanding remuneration plus 5% interest p.a. until the date of effective payment as follows:

 on the amount of EUR 18,000 as of 21 August 2019;

 on the amount of EUR 13,500 as of 21 March 2020;

 on the amount of EUR 9,000 as of 21 April 2020;

 on the amount of EUR 18,000 as of 21 May 2020.

3. Any further claims of the Claimant are rejected.

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:

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