Labour Disputes
Texto da decisão
REF. FPSD-6922
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Bachana Arabuli
BY:
Angela Collins, Australia
CLAIMANT:
Bachana Arabuli, Georgia
Represented by Kosmas Mitsios
RESPONDENT:
PAS Lamia 1964 FC, Greece
Represented by Zemberis, Markezinis, Lambrou & Associates
pg. 2
REF. FPSD-6922
I. Facts of the case
1.
On 16 September 2021, the Georgian player Bachana Arabuli (hereinafter: the Claimant or
player) and the Greek club PAS Lamia 1964 FC (hereinafter: the Respondent or club)
concluded an employment contract (hereinafter: the contract) valid as from the same date
until 30 June 2022.
2.
Pursuant to art. 4.1 and 4.4 of the contract, the Respondent undertook to pay the Claimant
a monthly basic wage of EUR 726 plus further 10 instalments of EUR 7,246 each,
respectively due by the end of each month.
3.
Furthermore, under art. 4.2, the contract established that the Claimant shall be entitled to
the following bonuses:
•
EUR 10,000 if the player participated in at least 10 games of the Greek Super League
and for a minimum of 46 minutes each game;
•
EUR 10,000 if the player participated in at least 20 games of the Greek Super League
and for a minimum of 46 minutes each game;
•
EUR 1,000 for each assist or goal realized by the player during an official match of the
Greek Super League.
4.
Based on the contract, the aforementioned bonuses were made subject to the further
condition of being the relevant results being validated at the end of the competition and
the Respondent team being not relegated.
5.
Moreover, the contract foresaw that the Respondent would pay a total of EUR 2,000 to the
Claimant as housing allowance by 30 June 2022 (art. 4.3) and three further bonuses in
occasion of Christmas, Easter and the player’s holidays, each corresponding to EUR 363
(art. 4.1).
6.
Lastly, pursuant to art. 4.7 of the contract, “the amounts stated above (art. 4 par. 1-4) are paid
in full and to the bank account of the player (..).”
7.
During the season 2021/2022, the Claimant participated in a total of 28 matches of the
Greek Super League with the Respondent’s team, scored 4 goals and gave one assist. In
this context, the Claimant was part of the starting line-up of the Respondent’s team during
12 games while he played for more than 46 minutes during each one of them.
8.
At the end of the sporting seasons 2021/2022, the Respondent’s team was able to remain
in the Greek Super League and thus was not relegated.
pg. 3
REF. FPSD-6922
9.
On 8 July 2022, the Claimant put the Respondent in default in writing and requested the
payment of EUR 39,296 as overdue payables under the contract, setting a deadline of 10
days in order to remedy the alleged breach.
10. On 19 July 2022, the Claimant served a second default letter to the Respondent, highlighting
that the payment of the bonuses due under art. 4.2 of the contract had already been
delayed for more than 30 days without a prima facie legal basis.
II. Proceedings before FIFA
11. On 1 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
12. In his claim, the player argued that the club failed to comply with a consistent part of its
financial obligations and argued that in spite of the several attempts to find an amicable
solution, the Respondent did not show any intention to remedy its breach.
13. In particular, the Claimant stated that the club failed to – and consequently shall - pay the
following sums:
•
“EUR 726 as basic wage for April 2022, payable no later than 30 April 2022;
•
EUR 726 as basic wage for May 2022, payable no later than 31 May 2022;
•
EUR 726 as basic wage for June 2022, payable no later than 30 June 2022;
•
EUR 363 as the Holiday benefit for 2022, payable no later than 1 June 2022;
•
EUR 5.263 as part of the instalment due for April 2022, payable no later than 30 April 2022;
•
EUR 7.246 as instalment due for May 2022, payable no later than 31 May 2022;
•
EUR 7.246 as instalment due for June 2022, payable no later than 30 June 2022;
•
EUR 15,000 as bonuses due under art. 4.2 and payable no later than 19 June 2022
(participation in at least 10 games for at minimum 46 minutes + 5 among goals and assists);
•
EUR 2,000 as housing allowance, payable no later than 30 June 2022;
•
5% interest on each of the sums above as from the respective due dates”.
pg. 4
REF. FPSD-6922
14. Furthermore, the Claimant specified that all the amounts stipulated under the contract
were intended as net in spite of no express reference to it.
b. Position of the Respondent
15. In its reply, the Respondent objected to the total amount claimed by the Claimant, namely
as in the club’s view all the sums stipulated under the contract were intended as gross.
16. In particular, the Respondent explained that, in line with the wording of the contract, the
payment of the sums thereto indicated shall be subject to the Hellenic Fiscal Legislation.
17. In this context, the Respondent argued that the basic wage payable to the Claimant would
be indeed EUR 650 net and not EUR 726, as further proven and confirmed in the relevant
web page of the Hellenic Players’ Union.
18. Likewise, the Respondent declared having been obliged by law to withhold and deduct an
income tax of 22% from each instalment due under the contract and to pay it directly to
the tax authorities while paying the Claimant the remaining amounts as net, namely
because his total income was higher than EUR 40,000.
19. Accordingly, in the Respondent’s opinion, after the last payment of EUR 4,430 made on 2
September 2022, the actual number of outstanding salaries amounts to EUR 1,050.80 only
and it corresponds to a part of the last instalment due under the contract, namely for June
2022, while all the other sums indicated under art. 4.1 and 4.4 of the contract have been
cleared for a total of EUR 62,943 as acknowledged by the same Claimant.
20. Similarly, with regard to the bonuses stipulated under art. 4.2 of the contract, the
Respondent acknowledged their achievement by the Claimant but contested that also in
this case the demanded amount of EUR 15,000 shall be subject to taxation, hence the
Claimant shall receive EUR 11,700 only.
21. Finally, the Respondent recognized the Claimant’s entitlement to EUR 2,000 net as housing
allowance for the month of June 2022.
22. Accordingly, the Respondent recognized an outstanding remuneration of EUR 14,750.80 in
favor of the Claimant and requested FIFA to limit its decision to said amount.
c. Rejoinder of the Claimant
23. In his final submission, the Claimant acknowledged having received a payment of EUR
4,430 by the Respondent on 2 September 2022.
pg. 5
REF. FPSD-6922
24. Nevertheless, the Claimant insisted on his position, holding that all the amounts agreed
under the contract were intended as net.
25. In support of his allegation, the Claimant stated that at the beginning of the employment
relationship the Respondent had paid the monthly instalment of EUR 7,246 in full and
produced the relevant account statement in order to corroborate his allegations.
26. In this context the Claimant stated that there would be no other reason for the Respondent
to pay this exact amount if not because this was the net stipulated remuneration.
27. Furthermore, in reference to the content of the Hellenic Player’s Union’s web page and the
Hellenic Tax Code, the Claimant argued that these documents produced by the Respondent
have indeed the mere scope of providing the local stakeholders, including the players, with
a generic guideline and principle over the taxation regimen in force in Greece, but they do
not establish a legal presumption that every amount indicated in a contract subject to the
Greek law shall be intended as gross.
28. Accordingly, the Claimant reiterated his request for overdue payables amending it in
function of the aforementioned payment of EUR 4,430 and demanding a total of EUR
34,866 plus a 5% interest per annum as from the respective due dates.
d. Final comments of the Claimant
29. In its final comments, the Respondent insisted on the fact that as confirmed by the
instructions received from the Hellenic Union of Professional Players (PSAP) during the
summer 2022: “(..) All the amounts listed in article 4 of the Contract (4.1 – Salary, 4.2 – Bonus,
4.4 – Instalments) should have “net” next to them. Otherwise, they are considered gross
earnings.”
30. In this context, the Respondent argued that these instructions were provided by the PSAP
to all the players in Greece in order that these would be aware of their effective
entitlements under their employment contract.
31. Furthermore, the Respondent referred to art. 60 of the Greek Law 4172/2013 in order to
clarify the criteria adopted by the relevant domestic authority to calculate the net amount
payable to each player, including the Claimant.
32. Finally, for the purpose of computation of the running date of interest on the relevant sums
payable to the Claimant, the Respondent declared that all the monies became due as from
1 July 2022.
pg. 6
REF. FPSD-6922
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 1 August 2022
and submitted for decision on 15 February 2023. Taking into account the wording of art.
34 of the October 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
34. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition), the Single Judge
of 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
Georgian player and a Greek club.
35. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 1 August 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
36. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
37. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
pg. 7
REF. FPSD-6922
i. Main legal discussion and considerations
38. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Respondent did not contest the existence of
overdue payables in favor of the Claimant but only their quantum.
39. In particular, the Single Judge observed that according to the Respondent, all the sums
stipulated under the employment agreement are to be intended as gross and the relevant
domestic taxation shall be applied before awarding them to the Claimant.
40. In this respect, the Single Judge was of the opinion that although the contract does not
expressly indicates whether the payable amounts are net or gross, its wording of art. 4.7
of the contract indicate as follows: “The amounts stated above (4.1, 4.2, 4.3, 4.4) are paid in
full and complete (…)”. Accordingly, the single Judge found that the wording of the quoted
article appears in line with the interpretation of the contract advanced by the Claimant.
41. Furthermore, the Single Judge observed that the Respondent failed to explain why the first
payment made to the Claimant at the beginning of the employment relationship was
indeed corresponding to the exact value of the first instalment indicated under art. 4.4 of
the contract (i.e. EUR 7,246), nor, in the Single Judge’s opinion, the club was able to prove
that pursuant to the Greek tax code it would exist a legal presumption operating in favor
of the club’s interpretation of the contract.
42. With the above in mind and considering the principles venire contra factum proprium and
estoppel, the Single Judge determined that the club shall be estopped from changing its
behaviour, as it generated a reasonable expectation on the player. Consequently, she
ruled that all the monies payable by the club under the contract are net.
43. As a consequence, bearing in mind that the Respondent did not dispute the existence of
the overdue payables alleged by the Claimant, the latter shall be entitled to all the sums
claimed as outstanding.
44. Notwithstanding the above, the Single Judge noted that the Claimant acknowledged
payment by the Respondent of EUR 4,430 on 2 September 2022 but failed to specify from
which of the overdue sums that amount should be deducted. Accordingly, the Single Judge
decided to set off said monies against the sums which result chronologically older as
claimed by the player in his first submission.
45. Having stated the above, and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely EUR 34,866.
pg. 8
REF. FPSD-6922
46. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the latter decided to award the Claimant interest at
the rate of 5% p.a. on the outstanding amounts as from 20 July 2022 until the date of
effective payment.
ii. Compliance with monetary decisions
47. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 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.
48. In this regard, the Single Judge 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. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
49. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
50. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
51. The Single 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. 24 par.
8 of the Regulations.
d. Costs
52. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be
imposed on the parties.
pg. 9
REF. FPSD-6922
53. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
54. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-6922
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bachana Arabuli, is accepted.
2.
The Respondent, PAS Lamia 1964 FC, must pay to the Claimant the following amount(s):
EUR 3,374 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
EUR 7,246 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of effective payment;
EUR 7,246 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2022
until the date of effective payment;
EUR 15,000 net as outstanding bonus plus 5% interest p.a. as from 1 July 2022 until the
date of effective payment;
EUR 2,000 net as housing allowance plus 5% interest p.a. as from 1 June 2022 until the
date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision, the
following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be
of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance with
art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-6922
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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pg. 12