DRC Overdue Payables
Texto da decisão
REF. FPSD-15343
Decision of the
Dispute Resolution Chamber
passed on 17 December 2024
regarding an employment-related dispute concerning the player
Ivan Mauricio Arboleda
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Jon NEWMAN (USA), Member
Andre DOS SANTOS MEGALE (Brazil), Member
CLAIMANT:
Ivan Mauricio Arboleda, Colombia
Represented by Uno-One Legal Partners
RESPONDENT:
Anorthosis Famagusta, Cyprus
pg. 2
REF. FPSD-15343
I. Facts of the case
1.
On 17 June 2023, the Colombian player Ivan Mauricio Arboleda (hereinafter: the Claimant
or the Player) and the Cypriot club Anorthosis Famagusta (hereinafter: the Respondent or
the Club) concluded an employment contract (hereinafter: the Contract) valid as from 22
June 2023 until 30 June 2024.
2.
Article 2 of the Contract referred to a standard employment contract (hereinafter: the
Standard Employment Contract) and read as follows:
“2.1. 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.
2.2. The terms of the Standard Employment Contract constitute an integral part of the present
Contract having full and direct implementation.
2.3. The Club's Internal Regulations, as agreed between the Club and the Team's captains
constitute an integral part of the present Contract, regarding matters of disciplinary procedures.
2.4. In case of conflict, the terms of the Standard Employment Contract shall take precedence
over the terms of the present Contract. […]”
3.
On 18 June 2023, the Claimant and the Respondent concluded a supplementary agreement
(hereinafter: the Supplementary Agreement) to the Contract.
4.
The Supplementary Agreement stipulated the following:
“The parties wish to update the remuneration, bonuses and associated benefits that the Player
will be entitled to receive, under the employment agreement, as well as amend supplementary
clauses.”
5.
According to the Contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 5,000 net from 31 August 2023 until 31 May 2024.
6.
In addition to the remuneration under the Contract, the Supplementary Agreement
stipulated that the Respondent undertook to pay the Claimant a monthly salary of EUR
15,000 net from 31 August 2023 until 31 May 2024.
7.
Furthermore, articles 2 and 3 of the Supplementary Agreement read as follows:
“2. Bonus Payments
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REF. FPSD-15343
2.1. The Club will pay to the Player an extra bonus of €1.000 (one thousand euro) net for every
clean sheet in official Championship games of the Club. This payment is payable one month
after the end of every season.”
3. Extra Payments
3.1 The Club will pay to the Player an extra allowance of €10.000 (ten thousand euro), for the
Player’s personal expenses such as housing, car rental etc. This payment is due on 1/7/2023.
3.2 The Club will pay to the Player an extra allowance of €30.000 (ten thousand euro), if the
Player is in the starting line-up for more than (thirty) official Championship games. […]”
8.
Lastly, article 13 of the Standard Employment Contract and article 10 of the Supplementary
Agreement read as follows:
Article 13 of the Standard Employment Contract
“Any employment dispute between the Club and the Player shall fall under the exclusive
jurisdiction of the National Dispute Resolution Chamber of the CFA and shall be resolved
according to the applicable regulations of the CFA.”
Article 10 of the Supplementary Agreement
“All and every disputes the Parties explicitly and irrevocably agree that will be introduced
exclusively (“exclusive agreed jurisdiction”) before the competent authority and/or committee
and/or body of FIFA Football Tribunal. Any decision of the FIFA Football Tribunal might be
appealed only before Court of Arbitration of Sport based in Lausanne, Switzerland by a Panel
consisting of one (1) member and using the English language. The Regulations of FIFA and
Cyprus FA and the legislation of Republic of Cyprus will be used by the hearing committees
at all stages.”
9.
By correspondence dated 1 July 2024, the Claimant sent the following default notice to the
Respondent:
“Our client has informed us that the club is in default of the following amounts as of today:
EUR €3,000 NET (three thousand euros) missing from salary for December 2023, due since
1 January 2024.
EUR €20,000 NET (twenty thousand euros) salary for February 2024, due since 1 March
2024.
EUR €20,000 NET (twenty thousand euros) salary for March 2024, due since 1 April 2024.
EUR €20,000 NET (twenty thousand euros) salary for April 2024, due since 1 May 2024.
EUR €20,000 NET (twenty thousand euros) salary for May 2024, due since 1 June 2024.
EUR €20,000 NET (twenty thousand euros) salary for June 2024, due since 1 July 2024.
All the above amounts are required to be paid along with an interest of 5% p.a.
pg. 4
REF. FPSD-15343
We must draw your attention to the fact that the repeated and constant delays in the payment
of his remuneration constitutes a serious violation of your contractual obligations which has
seriously affected the Player’s trust and confidence in your club’s will to honor the contractual
obligations. We affirm that this breach will not be accepted or tolerated by the Player any longer.
In light of the outstanding payments, through this letter, the Player intimates you that the club
is obligated to clear all its overdue payables amounting to EUR €103,000 NET (one hundred
and three thousand euros) plus interest of 5% p.a. from the respective due dates until the date
of effective payment.
Such amounts are required to be paid by the Club within ten (10) days (Article 12 bis para. 31
of the FIFA RSTP) from the receipt of this notice by email.
We further inform you that the club has still not paid the Player the bonus of EUR €13,000 NET
(thirteen thousand euros) for the thirteen (13) clean sheets cf. Clause 2 of the Supplementary
Agreement, which will be due on 20 July 2024. Thus, the club is reminded that such amount will
fall due shortly and is accordingly, requested to pay the said amount along with the balance
salary payments.
The total outstanding amount till date is EUR €116,000 NET (one hundred and sixteen thousand
euros) plus interest of 5% p.a. from the respective due dates until the date of effective payment.
Failure to comply with all the above breaches shall entitle the Player to seek intervention
of competent legal bodies where the club runs the risk of incurring sporting sanctions.”
II. Proceedings before FIFA
10. On 24 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
11. According to the Claimant, the Respondent has failed to comply with its financial and
contractual obligations.
12. The requests for relief of the Claimant, were the following:
“1) The Respondent has overdue payables towards the Claimant.
2) The Respondent shall be ordered to pay the Claimant the total amount of EUR 116.000 net (one
hundred sixteen thousand euros net), plus interest of 5% p.a. broken down as follows:
●EUR 3.000 net (three thousand euros) along with an interest of 5% p.a. as from 1 January
2024 until the date of effective payment;
pg. 5
REF. FPSD-15343
●EUR 20.000 net (twenty thousand euros) along with an interest of 5% p.a. as from 1 February
2024 until the date of effective payment;
●EUR 20.000 net (twenty thousand euros) along with an interest of 5% p.a. as from 1 March
2024 until the date of effective payment;
●EUR 20.000 net (twenty thousand euros) along with an interest of 5% p.a. as from 1 April
2024 until the date of effective payment;
●EUR 20.000 net (twenty thousand euros) along with an interest of 5% p.a. as from 1 May
2024 until the date of effective payment;
●EUR 20.000 net (twenty thousand euros) along with an interest of 5% p.a. as from 1 June
2024 until the date of effective payment; and
●EUR 13.000 net (thirteen thousand euros) along with an interest of 5% p.a. as from 11 June
2024 or as from 21 July 2024 until the date of effective payment.
3) Following the notification of the FIFA decision, as per Article 12bis para. 2 and para. 4c) and 4d)
of the FIFA RSTP, to impose the relevant sporting sanctions on the Respondent.”
b. Position of the Respondent
13. According to the Respondent, FIFA is not competent to hear the present dispute as the
parties have signed a valid arbitration clause, pursuant to article 13 of the Contract, which
grants exclusive competence to the National Dispute Resolution Chamber (hereinafter: the
NDRC) of the Cyprus Football Association (hereinafter: the CFA). In this regard, the
Respondent referred to CAS jurisprudence and argued that the NDRC of the CFA is fully
impartial and independent according to art. 22 par. 1 lit. b) of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations).
c. Replica of the Claimant
14. In its replica, the Claimant argued that article 10 of the Supplementary Agreement prevails
over article 13 of the Contract, as the Supplementary Agreement was signed after the
Contract and therefore supersedes it. In this regard, the Claimant referred to the legal
principle contra proferentem and argued that the Parties agreed to exclusively submit all
disputes under the Supplementary Agreement to FIFA after signing the Contract, which
indicates the will of the parties to depart from the Contract.
15. In addition, the Claimant referred to CAS jurisprudence to argue that if the Contract and
the Supplementary Agreement would be read together, there would be two jurisdiction
clauses granting exclusive competence to two separate decision-making bodies, which
would give the Claimant the freedom to choose its forum.
d. Duplica of the Respondent
16. Despite being invited to do so, the Respondent failed to provide its duplica.
pg. 6
REF. FPSD-15343
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter: the 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 24 July 2024 and submitted for decision on
17 December 2024. Taking into account the wording of art. 34 of the March 2023 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.
18. Furthermore, the Chamber 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (October 2024 edition), 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 Colombian player
and a Cypriot club.
19. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the NDRC of the CFA, alleging that the latter is competent to
deal with any employment dispute between the Club and the Player, in accordance with
article 13 of the Standard Employment Contract.
20. The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the jurisdiction clause in favour of the NDRC of the CFA
derives from the Standard Employment Contract, which has subsequently been
superseded by the Supplementary Agreement and its jurisdiction clause in favour of FIFA.
21. Taking into account the above, the Chamber emphasised that, in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players (hereinafter, the
Regulations), FIFA is, in principle, competent to hear an employment-related dispute
between a club and a player of an international dimension. Nevertheless, the parties may
explicitly opt in writing for such dispute to be decided by an independent arbitration
tribunal that has been established at national level within the framework of the association
and/or a collective bargaining agreement. Any such arbitration clause must be included
either directly in the contract or in a collective bargaining agreement applicable on the
parties. Furthermore, the independent national arbitration tribunal must guarantee fair
proceedings and respect the principle of equal representation of players and clubs. Equally,
the Chamber referred to the principles contained in the FIFA National Dispute Resolution
Chamber Standard Regulations, which came into force on 1 January 2008.
22. In continuation, the Chamber recalled the following wording of the preamble of the
Supplementary Agreement:
pg. 7
REF. FPSD-15343
“The parties wish to update the remuneration, bonuses and associated benefits that the Player
will be entitled to receive, under the employment agreement, as well as amend supplementary
clauses.”
23. In this context, after a thorough analysis of the documentation on file, the Chamber
pointed out that the parties amended the Standard Employment Contract, notably its
jurisdiction clause, by signing the Supplementary Agreement. In other words, the Chamber
considered the Supplementary Agreement as a lex specialis to the Standard Employment
Contract.
24. With the aforementioned principles in mind, the Chamber referred to the following
wording of article 10 of the Supplementary Agreement:
“All and every disputes [sic] the Parties explicitly and irrevocably agree that will be introduced
exclusively (“exclusive agreed jurisdiction”) before the competent authority and/or committee
and/or body of FIFA Football Tribunal. Any decision of the FIFA Football Tribunal might be
appealed only before Court of Arbitration of Sport based in Lausanne, Switzerland by a Panel
consisting of one (1) member and using the English language. The Regulations of FIFA and Cyprus
FA and the legislation of Republic of Cyprus will be used by the hearing committees at all stages.”
25. Consequently, the Chamber was of the opinion that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected and that the Dispute
Resolution Chamber is competent to consider the present matter as to the substance on
the basis of art. 22 par. 1 lit. b) of the Regulations.
26. 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 Players (October 2024 edition), and
considering that the present claim was lodged on 24 July 2024, the June 2024 edition of
said regulations is applicable to the matter at hand as to the substance.
b. Burden of proof
27. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
pg. 8
REF. FPSD-15343
c. Merits of the dispute
28. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
i. Main legal discussion and considerations
29. The Chamber then moved to the substance of the matter, and took note of the fact that it
concerns a claim for outstanding remuneration. In particular, the Chamber noted that,
according to the Player, the Club failed to remit EUR 116,000 net as monthly salaries and
bonuses.
30. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
31. The Chamber first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the Contract and the
Supplementary Agreement concluded between the parties.
32. Nonetheless, the Chamber noted that the Respondent failed to provide its position on the
substance of the claim and that no reasonable justification was presented by the
Respondent for not having complied with the terms of the Contract and the Supplementary
Agreement.
33. In view of the foregoing 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 and the Supplementary Agreement concluded between the parties.
34. Having stated the above, the Chamber observed that the outstanding remuneration at the
time of termination, coupled with the specific requests for relief of the Player, are
equivalent to salaries of EUR 103,000 net, as well as bonuses amounting to EUR 13,000 net.
35. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. EUR
116,000 net.
pg. 9
REF. FPSD-15343
36. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from their corresponding dates until the date of
effective payment.
ii. Art. 12bis of the Regulations
37. In continuation, the Chamber referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
38. To this end, the Chamber confirmed that the Player put the Club in default of payment of
the amounts sought on 1 July 2024, and granted a deadline of 10 days to cure such breach
of contract. However, the Chamber noted that the monthly salaries of May 2024 and June
2024 were not outstanding for more than 30 days on that date.
39. Accordingly, the Chamber confirmed that the Club had delayed the due payment of the
monthly salaries of December 2023, February 2024, March 2024 and April 2024 without a
prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
40. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Club. On account of the above and bearing in mind
that this is the fourth offense by the Club within the last two years, the Chamber decided
to impose a fine of USD 11,250 on the Club in accordance with art. 12 bis par. 4 lit. c) of the
Regulations.
41. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
42. Finally, taking into account the applicable Regulations, the Chamber 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.
43. 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. The overall
pg. 10
REF. FPSD-15343
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
44. Therefore, bearing in mind the above, the DRC 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.
45. 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.
46. The DRC 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
47. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
48. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-15343
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Ivan Mauricio
Arboleda.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Anorthosis Famagusta, must pay to the Claimant the following amount:
- EUR 116,000 net as outstanding remuneration plus 5% interest p.a. as follows:
−
5% interest p.a. over the amount of EUR 3,000 net as from 1 January 2024 until the
date of effective payment;
−
5% interest p.a. over the amount of EUR 20,000 net as from 1 February 2024 until
the date of effective payment;
−
5% interest p.a. over the amount of EUR 20,000 net as from 1 March 2024 until the
date of effective payment;
−
5% interest p.a. over the amount of EUR 20,000 net as from 1 April 2024 until the
date of effective payment;
−
5% interest p.a. over the amount of EUR 20,000 net as from 1 May 2024 until the
date of effective payment;
−
5% interest p.a. over the amount of EUR 20,000 net as from 1 June 2024 until the
date of effective payment; and
−
5% interest p.a. over the amount of EUR 13,000 net as from 15 July 2024 until the
date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
A fine in the amount of USD 11,250 is imposed on the Respondent, which must be paid
to FIFA within 30 days of notification of this decision. Such fine must be paid to the
following bank account with a clear reference to the case FPSD-15343:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
6.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
pg. 12
REF. FPSD-15343
7.
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.
8.
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.
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-15343
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:
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14