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 March 2021

Decision of the

Dispute Resolution Chamber

passed on 25 March 2021

regarding an employment-related dispute concerning the player Bilal Hamdi

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Daan de Jong (Netherlands), member

Alexandra Gómez Bruinewoud (Netherlands & Uruguay), member

CLAIMANT:

Bilal Hamdi, France

RESPONDENT:

Olympiakos Nicosia, Cyprus

I. Facts

1. On 7 August 2019, the parties concluded an employment contract valid as from 1 August 2019 until 31 May.

2. According to art. 1.3 of said contract, the player was entitled to a monthly salary of EUR 1,111 or EUR 1,000 net.

3. Furthermore, the parties concluded an image rights contract with the following recitals:

“'Whereas the parties to the present agree that the football player shall assign al his intellectual property and private rights regarding his intellectual rights to the CIub.”

4. According to the image rights agreement, the player was entitled to a “salary” of EUR 7,000 net.

5. The image rights agreement stipulated the following:

“6. This Contract shat be governed by. construed and interpreted in accordance with the FIFA regulations. Disputes arising out of this Contract shall be subject to the exclusive jurisdiction of the FIFA Dispute Resolution Chamber, pursuant to the relevant provisions of the FIFA Regulations on the Status and Transfer of Players.”

6. On 15 March 2020, the Cyprus Football Association suspended all competitions.

7. On the 23 of March 2020 the Minister of Health of the Republic of Cyprus issued a Decree by which he declared Nicosia, Limassol, Larnaka, Ammochostos and Paphos as infected local areas and prohibited any movements.

8. On 15 of May 2020 the CFA's Board decided to cancel all the championships and cups in view of the COVID-19 lockdown.

9. On 5 June 2020, the Minister of Health of Cyprus allowed sports competitions to resume.

10. On 16 June 2020, the player sent a default notice to the club, claiming the total outstanding amount of EUR 33,718 within 10 days, detailing the following:

“As per the stipulations of the Employment contract (1,000 Euros net per month) and the Image Right Contract (7,000 Euros net per month) of the 7 August 2020, you should have paid the salaries in amount of Euros 8,000 for February, March April and May; respectively on the last day of each month. In addition, 3000 Euros from the month of January 2020 are still overdue.

Recently, [the player] received 2 cheques amounting to 1,281.92 Euros thus reducing the total net overdue amount to 33,718.08 Euros.”

11. On 29 June 2020, the club replied to the player, indicating the following:

“(a) We have taken a note that (…) [the] player who due to injury decided to fly to France for his medical treatment and care since January 2020 and never returned to Cyprus due to the pandemia.

(b) It is further to be noted that the CFA as you are probably aware of suspended championships on the 12.3.2020 and finally terminated all the organisations on the 15.5.2020, due to COVID 19 a force majeure situation as declared by WHO and FIFA.

(c) The Club following the guidelines of FIFA and CFA submitted all professional players in Government subsidies and the player has received such payments.

(d) As from the records of the Club, the player has collected payments for his employment contract as well as from his image agreements in total €79281.92.”

12. On 2 July 2020, the player sent his replica to the club’s reply, and considered that the matter is of a “purely financial” nature.

13. On 14 July 2020, the player lodged a claim before FIFA against the club for outstanding remuneration, and requested the payment of the total amount of EUR 33,718.08, as indicated in the default notice and requesting interest as follows:

a. 5% interest p.a. on the amount of EUR 3,000 as from 1 February 2020;

b. 5% interest p.a. on the amount of EUR 8,000 as from 1 March 2020;

c. 5% interest p.a. on the amount of EUR 8,000 as from 1 April 2020;

d. 5% interest p.a. on the amount of EUR 8,000 as from 1 May 2020;

e. 5% interest p.a. on the amount of EUR 6,718.08 (after deduction of the government subsidies) as from 1 June 2020.

14. In its reply to the claim, the club invoked “the doctrine of force majeure and/ or the doctrine of frustration in order to be discharged from its contractual obligations”

15. In this respect, the club argued that, due to the COVID-19 crisis, since 13 March 2020 until 31 May 2020, neither the Club nor the Player performed their contractual obligations.

16. As a result, the club concluded that “the DRC does not have jurisdiction to decide about the alleged overdue payables for the period between 13/03/2020 -31/05/2020 due to force majeure and the FIFA Council must decide about the case.”

17. In addition, the club explained that, on March and April 2020, the player received a subsidy from the government.

18. In addition, the Respondent requested to “declare that it has no competence to examine and award compensation in relation to the image right agreement.”

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. 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised 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, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.

3. However, in relation to the aforementioned circumstance, the Chamber noted that, in view of the COVID-19 pandemic, the Respondent argued that “the FIFA Council must decide about the case.”

4. In this regard, the Chamber acknowledged that, indeed, the Bureau of the FIFA Council endorsed a series of recommendations and guidelines to address some of the key practical issues arising from the pandemic, especially with regard to player contracts and the transfer system generally. However, the Chamber underlined that, in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players in connection with art. 34 par. 12 of the FIFA Statutes, the competence of the Dispute Resolution Chamber specifically relates to rendering decisions over particular employment-related disputes with an international dimension between players and clubs. As a result, the Chamber understood that the Respondent’s request to refer the matter to the FIFA Council appears to be a misrepresentation of the applicable Regulations and Statutes, insofar employment-related disputes are specifically a competence that falls within the sphere of responsibility of the Dispute Resolution Chamber. As a result, the DRC confirmed that it is competent to decide over the present matter.

5. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering the date when the claim was lodged, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

6. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

7. In this respect, the Chamber noted that, on 7 August 2019, the parties concluded an employment contract valid as from 1 August 2019 until 31 May 2020 for a salary of EUR 1,111 or EUR 1,000 net and that, in addition, they concluded an “image rights agreement”, according to which he was entitled to a “salary” of EUR 7,000 net.

8. Thereafter, the Chamber noted that the player lodged a claim before FIFA against the club for outstanding remuneration, by means of which he requested the payment of his salaries from part of the month of January 2020, as well as his entire remuneration from February until May 2020, and part of June 2020. In this respect, the Chamber noted that the Claimant argued that his entire employment remuneration corresponded to EUR 8,000 per month, as the addition of the salary stipulated in the employment contract (EUR 1,000) and EUR 7,000 as “salary” arisen from the “image rights agreement”.

9. In this respect, the Chamber observed the first argument of the Respondent, according to which FIFA is not competent to deal with image rights agreements.

10. In relation to said argument, the Chamber observed that the so-called “image rights agreement”, although named as such, contained elements that were proper to an employment contract, such as the existence of a monthly salary for the player’s work as a professional football player.

11. In this regard, the Chamber recalled that, 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. In particular, the agreement contains inter alia stipulations regarding a monthly salary that was payable “in addition” to the primary contract, which are typical for employment contracts and not for image rights agreements. Moreover, the Chamber noted that the Image Rights Contract stipulated that it shall be “governed by, construed and interpreted in accordance with the FIFA regulations”, and that said reference indicates that, de facto, the image rights agreement, despite its naming, is a proper employment contract. Consequently, the Chamber decided not to consider the image rights agreement as such, but determined that said agreement was in fact an additional agreement to the employment contract instead.

12. The foregoing been established, that Chamber therefore concluded that, from the employment contract at stake, that the player was entitled to a salary of EUR 1,000 net and arising from the formal “employment contract”, as well as to an additional remuneration of EUR 7,000 net arising from the other contract, leading to a total monthly salary of EUR 8,000 per month.

13. In relation to the payment of said remuneration, the Chamber noted the position of the Respondent, according to which, due to the COVID-19 crisis, it was in a situation of force majeure.

14. Bearing in mind the above, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

15. Analysing the concept of a situation of force majeure, the Chamber noted that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure.

16. In other words, in any given dispute, it is for a party invoking force majeure to establish the existence of said event under the applicable law/rules as well as the consequences that derive in connection thereto. The analysis of whether a situation of force majeure existed has to be considered on a case-by-case basis, taking into account all the relevant circumstances.

17. With this idea in mind, the Chamber acknowledged the specific circumstances of the present matter, which concern the disruptions caused by the COVID-19 pandemic in the football world. However, the Chamber reminded the parties of the contents of 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 burden of proof”.

18. In this respect, and after duly examining the information gathered during the course of the investigation, the Chamber noted that the Respondent only presented vague references to the COVID-19 pandemic, and that therefore unable to demonstrate that it was facing a force majeure situation. In view of the above, the Chamber could not consider the unilateral variations of the contract as imposed by the Respondent and thus, established that the Claimant had to be remunerated in full and as contractually agreed.

19. In view of the above, the Chamber unanimously established that the total amount of EUR 33,718.08, as requested by the Claimant, remained outstanding. The Chamber, in particular, observed that said amounts correspond to EUR 3,000 for part of January 2020; EUR 8,000*3 for the entire months of February 2020 to April 2020 (incl., as mentioned, the global remuneration of the player as stipulated in the two contracts, i.e. 1,000+7,000),EUR 6,718.08 (after deduction of the government subsidies) for June 2020.

20. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 33,718.08, as agreed in the applicable contracts.

21. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a. over said amount as from the due dates.

22. As to the legal fees, the Chamber referred to art. 18 pars. 2 and 4, 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” and “no procedural compensation shall be awarded in proceedings of the Players’ Status Committee and the DRC.”

23. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

24. In this regard, the Dispute Resolution 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.

25. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

26. Finally, the Dispute Resolution 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, Bilal Hamdi, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, Olympiakos Nicosia, has to pay to the Claimant, the amount of EUR 33,718.08, plus interest until the date of effective payment as follows:

- 5% interest p.a. on the amount of EUR 3,000 as from 1 February 2020;

- 5% interest p.a. on the amount of EUR 8,000 as from 1 March 2020;

- 5% interest p.a. on the amount of EUR 8,000 as from 1 April 2020;

- 5% interest p.a. on the amount of EUR 8,000 as from 1 May 2020;

- 5% interest p.a. on the amount of EUR 6,718.08 as from 1 June 2020.

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).

CONTACT INFORMATION:

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