DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 15 gennaio 2020 • Stagione sportiva: 2019/2020

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 15 January 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 15 January 2020,

by Mr Omar Ongaro (Italy), DRC judge,

on the claim presented by the player,

Jens Cools, Belgium

represented by Ms Pascale De Borger

as Claimant

against the club,

Pafos FC, Cyprus

represented by Mr Christoforos Florou

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 20 July 2018, the Belgian player Jens Cools (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the contract) with the Cypriot club, Pafos FC (hereinafter: the club or the Respondent), valid as from 1 July 2018 until 31 May 2020.

2. According to the contract, the club undertook to pay the player a monthly salary of EUR 10,000, payable on the 20th day of each month.

3. According to art. 13 of the appendix to the contract, “Any employment dispute between the Club and the Player shall fall under the exclusive of the National Dispute Resolution Chamber of the CFA and shall be resolved according to the applicable regulations of the CFA”.

4. On 20 July 2018, the parties signed a “supplementary agreement” (hereinafter: agreement) in addition to the contract, which, inter alia, contains the following clauses:

- “The employer shall cover expenses to the employee that are confirmed by relevant documents for the purchase of air-tickets of economy class in the Name of the employee or the members of his family (invited person), for the avoidance of a doubt, this means 5 times a round trip for the persons mentioned above for the flights between Belgium and Cyprus in the contracted period”.

- “The employer is entitled to 10% of transfer fee, should he be transferred to another club for a paid fee”.

5. On 13 July 2019, the club concluded an agreement (hereinafter: transfer agreement) with the Belgian club, KAS Eupen, regarding the permanent transfer of the player, including a transfer fee of EUR 200,000, payable by KAS Eupen as follows:

- EUR 150,000 “14 days after completion of the transfer in TMS”;

- EUR 50,000 until 1 March 2020.

6. According to information contained in the Transfer Matching System (TMS), the player was registered with KAS Eupen on 3 August 2019.

7. On 23 August 2019, the player sent a letter to the club requesting payment of EUR 30,593.55, corresponding to his outstanding remuneration of June 2019 and July 2019, reimbursement of flight tickets as well as his proportion of the transfer fee.

8. On 12 September 2019, the player lodged a claim against the club requesting payment of the following monies:

- EUR 10,000 corresponding to his salary of June 2019;

- EUR 4,193.55 corresponding to his salary until 13 July 2019 on a pro-rata basis;

- EUR 1,400 as reimbursement for flight tickets;

- EUR 15,000 corresponding to 10% of the first instalment of the transfer fee.

In addition, the player requested interest of 5% p.a. as of the due dates.

9. In his claim, the player maintained that his salaries of June 2019 and July 2019 (until 13 July2019 on a pro rata basis) remained outstanding.

10. Furthermore, the player submitted receipts for the following flights between Cyprus and Belgium:

- EUR 811,08 from 23 and 26 December 2018 (2 persons);

- EUR 379,25 from 26 January 2019 and 15 February 2019;

- EUR 305,98 from 16 March 2019.

11. In addition, referring to the clause agreed upon in the supplementary agreement, the player held being entitled to 10% of the first instalment of the transfer agreement.

12. In its reply, the club referred to art. 13 of the appendix to the contract and contested FIFA’s competence to deal with the matter at hand, as the National Dispute Resolution Chamber of the CFA (hereinafter: the Cypriot NDRC) should be competent to deal with any employment related disputes arising out of the contract. Further, the club argued that Cypriot NDRC complies with FIFA’s minimum standards for fair proceedings.

13. In this respect, the club argued that the Cypriot NDRC is an independent arbitration tribunal, established at national level, which respects the principle equal representation of players and clubs, and which has an independent chairman (who is chosen by the club representatives and player’s representatives). Furthermore, the club pointed out that the clause in article 13 of the appendix to the contract is clear and unambiguous.

14. From the submitted documentation, it can be noted that, inter alia, the following articles are included in the NDRC Regulations:

- 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”.

15. As to the substance, and in case the Chamber would declare itself competent, the club rejected the player’s claim.

16. In this regard, the club argued that the player waived the right to claim any remuneration due until the date of the transfer as well as his proportion of the transfer fee, in order to find an agreement about the transfer as such.

17. On account of the above, the club held that due to that reason, the transfer fee was lower than the actual value of the player.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 4 September 2019. Consequently, the DRC judge concluded that 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 (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January 2020), the Dispute Resolution Chamber judge is, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Belgian 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 art. 13 of the appendix 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 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 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 DRC judge 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 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.”

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 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.

10. Furthermore, 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 Players, and considering that the present claim was lodged on 4 September 2019, the June 2019 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 judge acknowledged that, on 20 July 2018, the Claimant and the Respondent signed an employment contract pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of EUR 10,000 during the course of the contractual relationship.

13. The DRC judge further acknowledged that, according to the Claimant, the Respondent had failed to remit his salaries of June and July 2019, reimbursement for certain flight tickets as well as the contractually agreed percentage of the transfer fee paid by his new club in relation of his transfer in July 2019.

14. Moreover, the DRC judge noted that the Respondent rejected the player’s claim and argued that the player waived the right to claim any remuneration due until the date of the transfer as well as his proportion of the transfer fee, in order to find an agreement about the transfer as such.

15. In view of this dissent between the parties, 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 Respondent to prove that the alleged waiver, on the basis of which it declined payment of the claimed amounts, indeed existed.

16. In this regard, the DRC judge examined the Respondent’s position and noted that the club failed to submit any corroborating evidence in support of its argument that the player waived his entitlements.

17. Furthermore, the DRC judge took note of the supplementary agreement, signed on 20 July 2018, according to which:

- “The employer is entitled to 10% of transfer fee, should he be transferred to another club for a paid fee”.

18. Moreover, the DRC judge acknowledged that the player undisputedly was transferred from the Respondent to the Belgian club, KAS Eupen, on 13 July 2019, for the total transfer fee of EUR 200,000 from which EUR 150,000 already due.

19. Regarding the reimbursement of the claimed flight tickets, the DRC judge concluded that the player substantiated his claim sufficiently by submitting receipt of his flight tickets.

20. On account of the above considerations and the documentation on file, the DRC judge decided that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the requested amounts as follows:

- EUR 10,000 corresponding to his salary of June 2019;

- EUR 4,193.55 corresponding to his salary until 13 July 2019 on a pro-rata basis;

- EUR 1,400 as reimbursement for flight tickets;

- EUR 15,000 corresponding to 10% of the first instalment of the transfer fee.

21. In addition, and taking into consideration the player’s claim and the jurisprudence of the Chamber, the DRC judge decided to award on the aforementioned amounts interest until the date of effective payment as follows:

a. 5% p.a. as of 21 June 2019 on the amount of EUR 10,000;

b. 5% p.a. as of 14 July 2019 on the amount of EUR 4,193.55;

c. 5% p.a. as of 17 March 2019 on the amount of EUR 1,400;

d. 5% p.a. as of 18 August 2019 on the amount of EUR 15,000.

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 DRC judge

1. The claim of the Claimant, Jens Cools, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, Pafos FC, has to pay to the Claimant the amount of EUR 30,593.55, plus interest until the date of effective payment as follows:

a. 5% p.a. as of 21 June 2019 on the amount of EUR 10,000;

b. 5% p.a. as of 14 July 2019 on the amount of EUR 4,193.55;

c. 5% p.a. as of 17 March 2019 on the amount of EUR 1,400;

d. 5% p.a. as of 18 August 2019 on the amount of EUR 15,000.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision of the relevant bank account to which the Respondent must pay the amounts mentioned under point 3. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due plus interest in accordance with point 3. above are 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).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned sums plus interest are 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 related to the appeal procedure:

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. 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

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

www.tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer