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 11 March 2021

Decision of the

Dispute Resolution Chamber

passed on 11 March 2021,

regarding an employment-related dispute concerning the player Asier Arranz Martín

COMPOSITION:

Clifford J. Hendel (USA / France), Deputy Chairman

Tomislav Kasalo (Croatia), member

Mohamed Muzammil (Singapore), member

CLAIMANT:

Asier Arranz Martín, Spain

RESPONDENT:

ALKI Oroklinis, Cyprus

Represented by Mr George T. Christofides

I. FACTS OF THE CASE

1. On 20 January 2020, the Spanish player, Asier Arranz Martín (hereinafter: the player or the Claimant) and the Cypriot club, Alki Oroklinis (hereinafter: the club or the Respondent) concluded an employment agreement valid as from the date of signature until 31 May 2020 (hereinafter: the 1st Employment Agreement).

2. As per 1.3. of the 1st Employment Agreement, for the period of 1 February 2020 until 31 May 2020, the player was entitled to a monthly “gross” salary of EUR 216 “(EUR 200 net)”.

3. On 20 January 2020, the parties signed an “Image Rights Contract” (hereinafter: 1st Image Rights Contract).

4. Art. 3 of the 1st Image Rights Contract stipulated that: “This agreement shall terminate automatically […] (3.3) by termination of the contract of employment dated 02/01/2020 between the employer and the player”.

5. As per Exhibit 1 of the 1st Image Rights Contract, the player was entitled to the following:

a. 4 monthly instalments of EUR 2,800 “net, starting from 29/02/2020”;

b. EUR 650 per month as accommodation allowance;

c. EUR 200 per month as car allowance;

d. “One return ticket”.

6. According to the Claimant, on 20 January 2020, the parties signed a second “Employment Agreement” (hereinafter: 2nd Employment Agreement) valid as from 1 September 2020 until 31 May 2021.

7. As per art. 1.3. of the 2nd Employment Agreement, for the period of 1 September 2020 until 31 May 2021, the player was entitled to a monthly “gross” salary of EUR 216 “(EUR 200 net)”.

8. According to the Claimant, on 20 January 2020, the parties signed a second “Image Rights Contract” (hereinafter: 2nd Image Rights Contract).

9. As per Exhibit 1 of the 2nd Image Rights Contract, the player was entitled to the following:

e. 9 monthly instalments of EUR 2,800 “net, starting from 30/09/2020”;

f. EUR 650 per month as accommodation allowance;

g. EUR 200 per month as car allowance;

h. “One round trip plane ticket”.

10. On 13 July 2020, the player informed the club via email of the following:

“I am contacting you to find out what day I have to show up in Larnaca to start training for the 2020/2021 season. I am a player in the squad since I have a contract for this season. In my contract included the clause of providing me a trip plane ticket […] In the event that the new club management does not want to have my services for the next season, I would like you notify me so that I can inform my lawyers and reach an agreement”.

11. By means of a letter dated July 2020, sent on 22 July 2020, the player requested the club in writing to inform him within 7 days if he is “still a player of [the club]. In addition, I ask you to inform me as soon as possible where and when I should report for training […] and to buy me a flight ticket to return to Cyprus”.

12. On 23 July 2020, the club responded via email, informing the player of the following: “We confirm that [the player] has no contract with our club for the season September 2020 to May 2021. Unfortunately the contract you attach has been altered and forged”.

13. On 24 July 2020, the player informed the club of the following: “In response to your email from the 23d of July 2020, I am really surprised with its content, and I have to say that I completely disagree with your declarations”.

II. PROCEEDINGS BEFORE FIFA

14. On 3 August 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

15. In his request for relief, the Claimant requested to be awarded compensation for breach of contract by the club in the amount of EUR 34,650 “net” plus 5% interest p.a. as from 24 July 2020.

16. In his claim, the Claimant firstly held that, “the relationship between the club and the player commenced by means of the signature of both parties” on the document entitled “Official Offer” (hereinafter: the Offer).

17. According to the player, the “Official Offer” clearly established that the employment relationship would last as from January 2020 until May 2021, with a monthly salary of EUR 3,000.

18. In continuation, the player maintained that he had always complied with his contractual obligations vis-à-vis the club.

19. Moreover, the player stated that the club never informed him when the training sessions for the 2020/2021 season would start. Hence, the player sent an email on 13 July 2020.

20. As per the player, the club never responded to his email of 13 July 2020. However, according to the player, the club did announce on social media the date on which the training sessions were to start.

21. Subsequently, the player referred to a WhatsApp conversation he had with the club, in which the latter allegedly stated: “you do not have a contract for next season”.

22. In this context, the player underlined that he disagreed with the club’s position that there is no contract for the 2020/2021 season, as he expressed in his letter of 24 July 2020.

23. As per the player, the club had terminated the employment contract without just cause.

24. In light of the above, the player argued that he was entitled to EUR 34,650 “net” as compensation for breach of contract, corresponding to the following:

a. EUR 27,000 corresponding to 9 monthly salary instalments of EUR 3,000 each;

b. EUR 5,850 corresponding to 9 monthly accommodation allowances of EUR 650 each;

c. EUR 1,800 corresponding to 9 monthly car allowances of EUR 200 each.

b. Position of the Respondent

25. The Respondent denied having signed the 2nd employment agreement. In particular, the club confirmed the exchange of correspondence between the parties on 22 and 23 July 2020 and insisted, “the documents produced by the player are forged and altered”.

26. The club pointed out that the image right agreements presented by the player are “not even signed by the President and the Club’s General Secretary. Therefore, the document presented in not a valid contract as is not duly signed”. In view of the foregoing, the club’s president filed a complaint against the player at the Cypriot police “to investigate a possible act of forgery and circulation of false documents regarding the documents in dispute”.

27. Furthermore, the club states to have submitted the 2nd employment agreement and the 2nd image rights contract to a judicial graphologist, who concluded the following:

“After evaluating all of the graphological information and findings mentioned above, I have reached the following conclusions:

1. The photocopy of the Employment Agreement for the period 01/09/2020 – 31/05/2021, which I have named 2, initially originates from the Original Employment Agreement for the period 20/01/2020 – 31/05/2020, which I have named 1.

2. Using the method of multiple photocopying, there has been interference and alterations to the photocopy of the Employment Agreement for the period 01/09/2020 – 31/05/2021, which I have named 2, all of which have been thoroughly explained and showcased in random enlargement, in the comparing graphs 1-9, resulting to the differences stated above when compared to the Original Employment Agreement.

3. The interference / alterations in the photocopy of the Employment Agreement for the period 01/09/2020 – 31/05/2021, assuming fraudulent intent, render it as forged”.

28. Finally, the club claimed that the player’s claim should be partially inadmissible, as FIFA is not competent to deal with claims deriving from image rights agreements and rejected as to the substance as the 2nd employment agreement is a forgery and the parties are not contractually bound.

c. Comments by the Claimant on the forgery allegation

29. The player provided FIFA with a high-resolution copy of the 2nd employment agreement and the 2nd image rights contract.

d. New employment situation of the Claimant

30. The player found employment with the Finnish club, FC KTP. In accordance with the pertinent employment contract, valid from as of 1 September 2020 until 31 October 2020, the player was entitled to a monthly salary of EUR 1,000.

31. On 10 December 2020, the player extended his employment relationships with FC KTP, as from 1 February 2021 until 31 October 2021. The parties agreed upon a monthly salary of EUR 2,200.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence

32. 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 presented to FIFA on 3 August 2020 and submitted for decision on 11 March 2021. Taking into account the wording of art. 21 of the 2021 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.

33. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition 2021), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Spanish player and a Cypriot club.

i. The Image Right agreement

34. In continuation, with regard to the claimed payments in connection to the image rights agreement apparently signed by the parties, the Chamber also had to verify whether, for formal reasons, it was competent to deal with this specific component or not. In fact it remains that this part of the claim could possibly not be considered due to the Chamber lacking competence to deal with disputes related to image rights.

35. While analysing whether it was competent to hear this part of the claim, the Chamber, without entering into any discussion regarding the actual wording of the agreement, which define the agreement as image rights agreement, wished to highlight that said agreement contained further elements which led 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.

36. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it. 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. In the case at hand, such elements appear to exist. The agreement contains inter alia stipulations regarding bonuses, the use of a car and flights tickets, which are typical for employment contracts and not for image rights agreements. In particular, the DRC noted that the employment contacts and the image right agreements are signed for the same duration, but the image rights contract provides for a much higher remuneration, payable on a monthly basis as well as for accommodation and a car. Consequently, the Chamber decided not to consider the image rights contracts as such, but determined that said agreements were in fact additional to the employment contracts instead.

37. In view of all the above, the Chamber established that the 2nd image rights contract and the 2nd employment agreement shall be deemed as one contractual instrument only, which reflects the employment relation of the parties. It follows that the player’s claim is also admissible in this respect.

b. Applicable legal framework

38. Subsequently, 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 Player (edition 2021, and considering that the present claim was lodged on 3 August 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

c. Burden of proof

39. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

40. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

d. Merits of the dispute

41. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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.

i. Main legal discussion and considerations

42. The foregoing having been established, the Chamber moved to the substance of the matter and took note that while the player claimed to have concluded 2 sets of contracts with the club, the 1st ones valid as from 20 January 2020 to 31 May 2020 and the 2nd ones from 1 September 2020 until 31 May 2021, the club deemed that the 2nd set of contracts is a forgery and provided, as evidence, a graphological exam, according to which the 2nd employment contract was forged.

43. In view of the foregoing, the Dispute Resolution Chamber established that the main issues to be solved in the present dispute were first whether the parties were indeed bound by a valid employment contract and second, if so, to determine whether such employment contract had been unilaterally terminated by the club with or without just cause.

44. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequence for the party that caused the unjust breach of the relevant employment contract.

45. Bearing in mind the foregoing, the Chamber first focused on the issue of the validity of the 2nd sets of contracts (the 2nd employment agreement and the 2nd image rights contract) dated 20 January 2020 and valid until 31 May 2021, contested by the club. In this respect, the Chamber recalled that the club accused the player of having forged the club’s signatures on the aforementioned documents.

46. At this stage, the DRC 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 of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

47. In continuation, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the 2nd employment agreement and the 2nd image rights contract of 20 January 2020 as well as on other documents containing the club’s signature, provided by the parties in the context of the present dispute. In this regard, the DRC pointed out that a high-resolution copy of the 2nd employment agreement and the 2nd image rights contract were in fact provided by the player, following a request of FIFA.

48. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures in the various documents provided in the present affair, the DRC had no other option but to conclude that, for a layman, the signatures on such documents do not appear to have been forged.

49. In view of all of the above, and based on the documentation currently at its disposal, the DRC came to the conclusion that, unless proven otherwise by a neutral expertise or a decision of the competent national criminal authority, for the moment, the present claim of player is based on a valid employment relationship and that the 2nd employment agreement and the 2nd image rights contract, concluded between the parties on 20 January 2020 and valid until 31 May 2021, are not only valid documents, based on the documentation on file and for a layman, but they are also to be considered jointly for establishing the parties’ employment relationship.

50. At this point, the DRC deemed important to point out that the player also presented an offer sent to him by the club, which remained uncontested by the latter, in which he is offered an employment relationship with the club from January 2020 until May 2021, for a monthly salary of EUR 3,000.

51. As a result of the foregoing, the Chamber came to the conclusion that it should be deemed that the club presented no valid justification for not executing the second set of contracts with the player and thus terminated them without just cause. The club is thus to bear the consequences that follow.

ii. Consequences

52. Having stated the above, the Chamber turned its attention to the question of the consequences of such unjustified breach of contract committed by the club.

53. In doing so, the Chamber recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

54. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent contracts contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the contracts at the basis of the matter at stake.

55. Therefore, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

56. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the 2nd employment agreement and the 2nd image rights contract until their terms. Consequently, the Chamber concluded that the amount of EUR 34,650 serves as the basis for the determination of the amount of compensation for breach of contract.

57. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

58. Indeed, the player found employment with the Finnish club, FC KTP. In accordance with the pertinent employment contract, the player was entitled to EUR 21,800. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of EUR 21,800.

59. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract termination did not take place due to said reason i.e. overdue payables by the club, and therefore decided that the player is not entitled to receive additional compensation.

60. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of EUR 12,850 to the player (i.e. EUR 34,650 minus EUR 21,800), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

61. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player interest on said compensation at the rate of 5% p.a. as of the date of claim until the date of effective payment.

iii. Compliance with monetary decisions

62. Finally, taking into account the applicable Regulations, 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 amount of outstanding remuneration and/or compensation in due time.

63. In this regard, the DRC highlighted 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.

64. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player communicates the relevant bank details to the club, provided that the decision is final and binding, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

65. The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

e. Costs

66. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

67. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Asier Arranz Martín, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, ALKI Oroklinis, has to pay to the Claimant, the following amount:

- EUR 12,850 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 3 August 2020 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.

7. This decision is rendered without costs.

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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