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

DRC Judge

passed on 25 February 2021

regarding an employment-related dispute concerning the player Lorenzo

Riera Ortega

BY:

Philippe Diallo (France), DRC Judge

CLAIMANT:

Lorenzo Riera Ortega, Spain

Represented by Mr Loizos Hadjidemetriou

RESPONDENT:

Enosis Neon Paralimniou FC, Cyprus

I. FACTS OF THE CASE

1. On 23 August 2018, the Spanish player Lorenzo Riera Ortega, and the Cypriot club, Enosis Neon Paralimniou FC, concluded 2 different agreements: an employment contract (hereinafter: the contract) and an image rights agreement (hereinafter: the image rights agreement) both of them valid as from the date of their signature until 31 May 2019. In this respect, it must be noted that the image rights agreement provided is not signed by the club and that no copy of the image rights agreement was uploaded into TMS.

2. Moreover, clause 1.3.1 of the contract stipulates that the player is entitled to a monthly salary of EUR 100 net.

3. In addition, clause 2.1 of the contract reads as follows: “The present Contract is regulated by the provisions of the Standard Employment Contract, as these have been agreed between the Cyprus Football Association (CFA) and the Cyprus Footballers´ Union (PASP) and as these provisions have been codified in Annex 1 of the CFA Registration and Transfer of Players Regulations”.

4. Clauses 2.2 and 2.3 of the contract read as follows: “2.2. The terms of the Standard Employment Contract constitute an integral part of the present Contract having full and direct implementation. 2.3. In case of conflict, the terms of the Standard Employment Contract shall take precedence over the terms of the present Contract”.

5. In accordance with Exhibit 1 to the image rights agreement provides that the player is entitled, as from 31 August 2018 until 31 May 2019, to monthly instalments of EUR 7,900 net. In addition, Exhibit 1 to the contract provides, on top of the aforementioned fixed remuneration, the following benefits: sporting promotion bonuses, victory bonuses, transportation, accommodation and meals.

6. Clause 7 of the image rights agreement states that, in case of any dispute arisen in connection with the contract, the dispute should be adjudicated “by the Regulations of the CFA and/or UEFA and/or FIFA supplementary with the contract of employment that the parties have already signed”.

7. On 1 December 2018, the parties concluded a novation to the contract (hereinafter: the novation to the contract), valid as from 1 December 2018 until 31 May 2019, in accordance with which the player was entitled to a monthly salary of EUR 1,000; remaining the image rights agreement valid and in force.

8. On 5 August 2019, the parties concluded a second contract (hereinafter: the second contract), in accordance with which the parties agreed to continue their employment relationship as from 5 August 2019 until 30 June 2021.

9. In accordance with clause 1 of the second contract, the player was entitled to the following remuneration:

- EUR 1,000 net as from 31 August 2019 until 31 May 2020;

- EUR 1,200 net as from 31 August 2020 until 31 May 2021.

10. Clause 2.1 of the second contract reads as follows: “Both player and club mutually agree that both they have the right to terminate the present agreement after the end of football season 2019-2020 by written notice that should be given the latest by the 15/6/2020 with a compensation of 5,000 euro (five thousand euro) as damages. Furthermore, both club and player accept that they cannot claim any financial and/or other kind of compensation after the exercise of the abovementioned right by both sides”.

11. On the same date, i.e. 5 August 2019, the parties entered into a second image rights agreement (hereinafter: the second image rights agreement), whereby the club undertook to pay to the player the amount of EUR 48,000 net, as follows:

- EUR 4,000 as sign-on fee;

- EUR 4,000 by 5 September 2019;

- EUR 40,000 in 10 instalments of EUR 4,000 each, payable as from 31 August 2019 until 31 May 2020.

12. Clause 3 of the second image rights agreement states as follows: “This agreement shall terminate automatically: after its expiry on 30 June 2021 [or] by mutual consent of the parties, [or] by termination of contract of employment dated 5 August 2019 between the [club] and the [player]”

13. On 12 June 2020, the player allegedly terminated the second contract and the second image rights agreement ex. clause 2.1 of the second contract and the Respondent allegedly accepted the said termination.

14. By means of his correspondence dated 9 September 2020, the player put the club in default of payment in the amount of EUR 44,300, granting the club a 10 days´ deadline to remedy the default; however, to no avail.

15. On 23 September 2020, the player lodged a claim against the club before FIFA, requesting to be awarded outstanding remuneration in the amount of EUR 44,300, plus 5% interest p.a. as from their respective due dates, broken down by the player as follows:

- EUR 900 corresponding to the unpaid part of the salary of the salary of December 2018 as per the novation to the contract;

- EUR 900 corresponding to the unpaid part of the salary of the salary of January 2019 as per the novation to the contract;

- EUR 900 corresponding to the unpaid part of the salary of the salary of February 2019 as per the novation to the contract;

- EUR 900 corresponding to the unpaid part of the salary of the salary of March 2019 as per the novation to the contract;

- EUR 7,900 corresponding to the instalment of March 2019 as per the image rights agreement;

- EUR 1,000 corresponding to the salary of April 2019 as per the novation to the contract;

- EUR 7,900 corresponding to the instalment of April 2019 as per the image rights agreement;

- EUR 1,000 corresponding to the instalment of May 2019 as per the novation to the contract;

- EUR 7,900 corresponding to the instalment of May 2019 as per the image rights agreement;

- EUR 1,000 corresponding to the salary of March 2020 as per the second contract;

- EUR 4,000 corresponding to the instalment of March 2020 as per the second image rights agreement;

- EUR 1,000 corresponding to the salary of April 2020 as per the second contract;

- EUR 4,000 corresponding to the instalment of April 2020 as per the second image rights agreement;

- EUR 1,000 corresponding to the salary of May 2020 as per the second contract;

- EUR 4,000 corresponding to the instalment of May 2020 as per the second image rights agreement.

16. In his claim, the Claimant held that, despite having complied with his contractual obligations and having put the Respondent in default of payment, the latter has not complied with its contractual obligations towards the player.

17. In connection with the image rights agreement, the Claimant maintained the following: “Despite the fact that the image rights agreement was duly signed by both parties, the Respondent omitted giving the Claimant an original or a copy of the contract with the Respondent’s signature. Nevertheless, as will be proven below, the image rights agreement’s contractual terms was fully recognised by the Respondent and its financial terms have been partly complied with”. In this regard, the Claimant provided bank checks allegedly concerning the payment by the Respondent of monthly instalments of EUR 7,900 during the months of October 2018 and the months as from February 2019 until May 2019, which correspond to the amount allegedly due to the Claimant as per the image rights agreement.

18. Despite having been invited to reply to the claim, the Respondent only provided its comments as to the claim lodged by the Claimant on 4 February 2021, i.e. outside of the deadline granted by the FIFA administration to do so. In this regard, the Respondent argues that it provided its reply on 16 October 2020 and is enclosing to its statement of defence a screenshot of the email allegedly sent to FIFA on the said date.

19. In its late statement of defence, the Respondent challenged the competence of FIFA and maintained the following: “The DRC does not have jurisdiction to decide about the alleged overdue payables for the period due to force majeure and the FIFA Council must decide about the case”. In addition, the Respondent challenged the competence of FIFA to adjudicate upon the image rights contract, insofar the “DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it”.

20. Moreover, the Respondent stated the following arguments:

- That the Claimant only provided an unsigned copy of the image rights agreement, which shall have no legal effect and that, even if it was considered valid, the said agreement was not concluded with the club, but with a “public limited company named Enosis Neon Paralimniou”).

- That it paid to the player all due amounts until 15 March 2020, when the championship was suspended (note: the Respondent enclosed several payment checks as Exhibit 4 to its statement of defence, as well as documentation in support of the suspension of sporting activities). In addition, the Respondent held that, “the Player for all the period he remained at the respondent Club signed certifications for full payments by the Club and submitted them to the CFA”.

- That “[r]egarding the player´s employment contract instalments of March – May [2020], the Club registered its employees to the Governmental Scheme of Subsidies. The player received two cheques from the government for April and May. A third cheque is due for March [2020]. Therefore, the player has received all the amount due according to the Governmental Scheme directly from the State since the Club participated due to pandemic force majeure reasons to the Scheme for all player”.

- That, on 12 June 2020, the player informed the club that he unilaterally terminated the second contract, exercising clause 2.1 of the second contract. In particular, the Respondent provided the alleged termination notice, where the player stated, inter alia, the following: “The player hereby terminates the said contract with immediate effect for the period 2020-2021 according to paragraph 2.1 of the said agreement dated 5.8.2019. The player should pay according the provisions 2.1 of the said agreement the amount of €5000 damages so as to be released from his obligations. You owe to our client the amount of €25000 for March salary which we call you upon to decrease from the said amount that it is due to you. The remaining amount would be paid to you via Bank transfer payment Hellenic Bank (details)”. According to the Respondent, the player never made the payment of EUR 2,500.

21. In its request for relief, the Respondent requested the following: “1. The DRC should dismiss the Claim of the player; 2. That DRC does not have jurisdiction to decide about the alleged overdue payables for the period due to force majeure and the FIFA Council must decide about the case; 3. Without prejudice to relief 1, the DRC must reject Claimant´s claims regarding overdue payables for the period 15th March – 30/05/2020, as both parties were discharged from their contractual obligations due to force majeure, caused by COVID-19 and the subsequent decrees of the Cypriot Minister of Health who prohibited any sporting event until 5th of June, that is after the expiration of the contract concluded with the parties. 4. Declare that it has no competence due to privity and lack of jurisdiction to examine and award compensation in relation to the image rights agreement dated 24 August 2018 and such claim should be dismissed. The player should be ordered to pay to the Club the amount of EUR 2,500 as per their letter dated 12.6.2020”.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 23 September 2020 and submitted for decision on 25 February 2021. Taking into account the wording of art. 21 of the January 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.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 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, the DRC judge is, in principle, competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension.

3. In this point, the DRC judge observed that the Respondent only replied to the claim on 4 February 2021, once the investigation-phase of the present proceedings was already closed. Furthermore, the DRC judge noted that, In its late reply to the claim, the Respondent maintained that it did reply to the claim on 16 October 2020, i.e. within the deadline granted to the Respondent to reply to the claim. In this regard, the DRC judge, after having carefully analysed all the documentation on file, corroborated that no reply was received by the FIFA administration from the Respondent within the scope of the present case until 4 February 2021.

4. In this context, the DRC judge referred to arts. 9 para. 3 and 4 of the Procedural Rules and wished to emphasize that parties to the proceedings are not authorised to supplement or produce a new submission once the investigation-phase of the proceedings is closed; and the competent FIFA deciding body shall take a decision upon the basis of the documents on file, since submissions received outside of the time limit shall not be taken into account.

5. Nevertheless, the DRC judge noted that the Respondent –in its late statement of defense– challenged the competence of FIFA to adjudicate on the present matter on the grounds of different arguments. In this regard, the DRC judge stressed that, despite the Respondent´s submission not being considered ex. art. 9 para. 3 and 4 of the Procedural Rules, there are three main admissibility issues that shall be addressed: the competence of the DRC judge to adjudicate on image rights agreements, the lack of the club´s signature on the image rights agreement and the identity of the company entering into the second image rights agreement.

6. As to the first of the admissibility issues referred, the DRC judge wished to stress that, as a general rule, if there are separate agreements, the DRC and the DRC judge tend to consider that they are not competent to decide on agreements which subject-matter is the license of image rights, as those are not employment-related agreements. However –pointed out the DRC judge– 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, observed the DRC judge. In particular, the agreement contains, inter alia, stipulations regarding bonuses related to the performance of the team, accommodation and the use of a car, which are typically included in employment contracts and not in image rights agreements. Consequently, the DRC judge determined that the image rights agreement should not be considered as a separate agreement, but rather as a supplementary agreement to the employment contract.

7. The above being clarified, the DRC judge pointed out that, despite no signed specimen of the image rights agreement was provided by the Claimant and despite no such copy was uploaded into TMS (extent corroborated by the FIFA administration), the Claimant provided 5 bank checks as proof that the club paid 5 instalments of EUR 7,900 –which equals the amount of the monthly instalments due as per the image rights agreement– during the months of October 2018 and May 2019. Consequently, after having carefully analyzed the documentary evidence brought by the parties, the DRC judge concluded that the aforementioned bank checks constitute sufficient proof on a balance of probability as to reach the conclusion that the said image rights agreement was indeed entered between the parties, insofar the Claimant did thereby prove that the Respondent complied with financial obligations which are identical to the ones described in the image rights agreement.

8. As to the argument of the Respondent regarding the lack of standing to be sued in connection with the second image rights agreement, the DRC judge concluded that, even though the said agreement is signed by a company named Enosis Neon Paralimniou Public LTD, it is clear that the said company integrates the same sporting entity as the club does, in view of the identical names of both, the company and the club itself, and since the agreements were concluded at the same moment in time, had the same term and the termination of the employment contracts would also lead to the termination of the image rights agreement(s). Thus, determined the DRC judge, the argument of the Respondent in this regard cannot be upheld and it is to be determined that the club was the counter-party in both sorts of agreements: the employment contracts (and its novation), as well as the image rights agreement(s).

9. Consequently, the DRC judge confirmed that he is competent to deal with the matter at hand in connection not only with the employment contracts but also in connection with the image rights agreement(s), ex. art. 3 par. 1 and 2 of the Procedural Rules as well as art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players.

10. In continuation, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC judge 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 23 September 2020, the August 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

11. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge 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. Entering into the substance of the matter-at-hand, the DRC judge acknowledged that it remained undisputed that the Claimant unilaterally terminated the contract on 12 June 2020, exercising clause 2.1 of the second contract. After a thorough analysis of the documentary evidence on file, the DRC judge noted that, as per the bank checks provided by the Claimant, the Respondent seems to have failed to comply, inter alia, with the payment of the instalments due for the months of November 2018 –as per the contract–, December 2018 and January 2019 –as per the novation to the contract– and the instalments due during those 3 months as per the image rights contract.

13. However, explained the DRC judge, since the Claimant is allocating the payments made thereafter by the Respondent to the already overdue instalments, and in view of the fact that the said allocation leads to the same outcome, i.e. the Claimant´s entitlement to EUR 29,300, the DRC judge decided that the allocation indicated by the Claimant shall be accepted; which also does not go in detriment of the Respondent, since the default interest that is to be granted in connection with the said instalments will be lower, given that the Claimant allocates the overdue instalments to later months.

14. Moreover, in view of the lack of a valid reply from the club on file, the DRC judge determined that, as to the amount of EUR 15,000 requested by the Claimant, corresponding to the aggregate salary for the months of March, April and May (EUR 1,000 per month as per the second contract and EUR 4,000 per month as per the second image rights agreement), the said amount shall be awarded to the Claimant, in application of the principle of law, pacta sunt servanda.

15. Moreover, the DRC judge stressed that it is needless to enter into the analysis of whether the said instalments were or not payable by the Cypriot government upon the pandemic outbreak –as stressed by the Respondent– insofar the reply of the Respondent shall not be taken into consideration ex. arts. 9 para. 3 and 4 of the Procedural Rules.

16. In view of the above, the DRC judge concluded that the Claimant shall be awarded outstanding remuneration in the amount of EUR 44,300 (cf. point I.15 supra for breakdown), as requested, in application of the legal principle, pacta sunt servanda.

17. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence in this respect, the DRC judge decided to award the Claimant interest of 5% interest p.a. as from their respective due dates until the date of effective payment.

18. Furthermore, the DRC judge wished to point out that art. 12bis is not applicable to the present case, insofar the said regulatory provision should only apply on cases where the financial obligation arises prima facie. In view of the fact that the image rights agreement on file is not signed and the Claimant´s entitlement thereto needed an analysis of the balance of probability, the DRC judge decided that the said moneys were not payable prima facie. Hence, the said provision cannot be of application to the present matter.

19. Furthermore, taking into account the consideration under number II./10. above, the DRC judge referred to para. 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 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.

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 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.

23. The DRC judge concluded his deliberations in the present matter stipulating that the claim is admissible and entirely accepted. In this regard, the DRC emphasized that the fact that the Claimant requested 12bis sanctions to be applied on the Respondent does not change the degree of acceptance, since the application of sanctions does not depend on the party´s request, but on the application of the Regulations and the decision of the corresponding deciding body.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Lorenzo Riera Ortega, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, Enosis Neon Paralimniou FC, has to pay to the Claimant outstanding remuneration in the amount of EUR 44,300, plus interest, calculated as follows:

- 5% interest p.a. over the amount of EUR 900 as from 1 January 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 900 as from 1 February 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 900 as from 1 March 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 900 as from 1 April 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 7,900 as from 1 April 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 1,000 as from 1 May 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 7,900 as from 1 May 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 1,000 as from 1 June 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 7,900 as from 1 June 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 1,000 as from 1 April 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 4,000 as from 1 April 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 1,000 as from 1 May 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 4,000 as from 1 May 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 1,000 as from 1 June 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 4,000 as from 1 June 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. The decision is rendered free of costs.

For the DRC judge:

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