DRC Overdue Payables
Texto da decisão
REF FPSD-3727
Decision of the
Dispute Resolution Chamber
passed on 23 February 2022
regarding an employment-related dispute concerning the player Joan Tomás
Campasol
BY:
Johan van Galen (South Africa), Single Judge
CLAIMANT:
Joan Tomás Campasol, Spain
Represented by Santiago San Torcuato
RESPONDENT:
Athletikos Omilos Agia Napa, Cyprus
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I.
Facts of the case
1.
On 25 January 2020, the player and the club concluded an employment contract valid as from
the date of signature until 31 May 2020. Clause 1.1 of the contract stipulates that the contract
“will be automatically renewed for an additional period, i.e. the 2020-2021 period, if the club
(…) wins its promotion to the Top Division (i.e. today’s First Division) for the season 2019-2020,
(…), to extend it until 31/05/2021”.
2.
According to clause 1.3 of the contract, the club undertook to pay the player the following
remuneration:
“1.3.1. From 28/02/2020 until 31/05/2020, a monthly gross salary of EUR 542,30 (EUR 500
net).
1.3.2. From 31/08/2020 until 31/05/2021, a monthly gross salary of EUR 1,111.11 (EUR 1,000)
net. (…)
1.3.3. All taxes payable to the Tax department, as per the applicable legislation shall be paid
by the club”.
3.
Clause 13 of the “Standard Employment Contract” (annexed to the contract) stipulates that
“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”.
4.
On 26 January 2020, the parties signed an alleged “image rights agreement” (hereinafter: the
agreement), valid for the same period of time as the contract.
5.
Pursuant to the table annexed to the agreement, the club undertook to pay the player for the
2019/020 season EUR 12,000 payable in 4 equal instalments of EUR 3,000 each, starting from
29 February 2020, inter alia.
6.
On 8 June 2021, the player put the club in default of payment of the monthly salaries of March,
April and May 2020, in the total amount of EUR 10,500, granting the club until 18 June 2021,
“6:00 p.m. local time in Spain”, to remedy the default (note: DHL delivery receipt dated 8 June
2021 at 16:49 on file).
II. Proceedings before FIFA
7.
On 4 October 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
8.
According to the Claimant, he did not receive the last three payments as stipulated in the
contract, for EUR 542,30 gross / EUR 500 net each, as well as the last three monthly instalments
of the agreement, of EUR 3,000 each, corresponding to the 2019/2020 season. In his request
for relief, the player refers to the net amount stipulated in the contract, i.e. EUR 500, and
requests in total EUR 500 x 3 as per the contract plus EUR 3,000 x 3 as per the agreement (EUR
10,500).
9.
In spite of his verbal reminders and the formal default notice of 8 June 2021, the claimed
amounts are still outstanding.
10. Thus, the player makes the following request for relief:
“Therefore, it is requested that the Dispute Resolution Chamber decides as follows:
a) The Club has failed to satisfy any of its financial obligations according to the Contracts.
b) That the Club is to pay to the Claimant € 10.500 within 30 days of the issuance of the award,
in satisfaction of the obligations and terms of the Contracts.
c) That the Club pay the Player within 30 days of the issuance of the award interest in the
amount of 5% yearly applicable to principal amount of € 10.500 payable from the dates that
the amounts were due.
d) That the Club be warned as a sanction in accordance with article 12 Bis (1) (a) of the FIFA
RSTP.
e) Should the Club fail to pay the Player the full amount within 30 days, including interest, the
cost of the proceedings and the legal fees, that the Panel impose the most severe sanctions
contemplated under article 12 Bis (4) including a fine or a ban from registering any new players,
either nationally or internationally, for two entire and consecutive registration periods.
f) That the Club covers the entire cost of the proceeding”.
b. Position of the Respondent
11. In its reply, the club first contests the competence of FIFA to deal with the present dispute in
favour of the Cypriot National Dispute Resolution Chamber (NDRC), based on clause 13 of the
“Standard Employment Contract”. The club deems the dispute to be inadmissible. The
Regulations of the Cyprus NDRC were however not provided.
12. As to the substance, the club acknowledges owing the player the last three instalments of the
contract and the agreement in the total amount of EUR 10,500; it however alleges that due to
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the Covid-19 pandemic all activities of the club were suspended as from 15 March 2020 and
the 2019/2020 season was never resumed.
13. The club claims to have offered to pay him the amount of EUR 2,413.98 in May 2020 and
states the player accepted the aforementioned amount “for full settlement of all financial
disputes between him and the club”. No documentation however was provided in this regard.
In this respect, the club encloses copies of 2 cheques dated 5 May 2020 (for EUR 1,200) and
26 May 2020 (for EUR 1,213.98), as well a (partially translated) bank statement allegedly
proving a cheque deposit in the amount of the amount of EUR 1,213.98 to the player.
14. Thus, the club claims not to have any outstanding debts towards the player and requests that
his claim be rejected.
c. Replica of the Claimant
15. In his replica, the player first insists on the competence of FIFA to deal with the present dispute.
The player not only points out that the club did not provide any documentation proving that
the Cypriot NDRC complies with the prerequisites of Circular 1010, but he also indicates that
the Cypriot NDRC “is composed of five members, namely the Chairman, the Vice-Charman and
three members (!!!). However, it makes no reference to the appointment and equal integration
that such a body should have“. Thus, the claim should be considered admissible.
16. As to the substance, the player confirms that he stopped training as from 15 March 2020, due
to the suspension of the season following the Covid-19 pandemic. He however completely
denies having accepted a full settlement of the club’s debts against the payment of EUR
2,413.98. In particular, the player states that “the two bank cheques indicated by the Club as
payments to the Player are a complete lie. Finally, the version that on 29 May 2020 the Player
and the Club´s President agreed on everything is false. In fact, the document attached as
Appendix 3 does not even contain the signature of the Player. In other words, the Club has
forged the signature of the Player in the document (Appendix 3) because the Player has never
signed such document nor received the cheques indicated. Such a statement is sufficient to
see at a glance the Player's signature on the contract as well as on the power of attorney
granted to the undersigned”.
17. Thus, the player maintains his full claim.
d. Duplica of the Respondent
18. In its duplica, the club first insists on the exclusive jurisdiction of the Cypriot NDRC to decide
on the present case and claims the latter complies with all formal prerequisites of Circular 1010,
without however providing the relevant documentation.
19. As to the substance, the club denies the accusations of forgery and questions why the player
did not contact the police about it or provide a copy of his bank statement, proving that he did
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not receive the amounts the club alleges to have paid. The club has not provided the originals
of the contested documentation.
20. In view of the above, the club claims that the player’s claim should be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 4 October 2021 and submitted
for decision on 23 February 2022. Taking into account the wording of art. 34 of the October
2021 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.
22. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (August 2021 edition), he is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Spanish player and a Cypriot club.
23. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 4 October 2021, the August 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
24. 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 he may consider evidence
not filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Admissibility
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25. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the National Dispute Resolution Chamber of the Cyprus NDRC,
alleging that the latter is competent to deal with any disputes deriving from the relevant
employment contract, in accordance with clause 13 of the Standard Employment Contract.
26. The Chamber / Single Judge also noted that the Claimant insisted on the competence of FIFA
to adjudicate the present claim, sustaining that the NDRC of Cyprus is not an independent
arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs.
27. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, 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. The independent national arbitration tribunal must
guarantee fair proceedings and respect the principle of equal representation of players and
clubs. Equally, the Single Judge referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
28. In this respect, the Single Judge noted that the Respondent failed to provide any documentary
evidence which could prove that the national arbitration bodies of the Football Federation of
Cyprus meets the requirements established in art. 22 par. 1 lit. b) of the Regulations on the
Status and Transfer of Players, detailed in the FIFA Circular no. 1010 as well as in art. 3 par. 1
of the NDRC Regulations. On account of the above, and referring to the principle of burden of
proof contained in art. 13 par. 5 of the Procedural Rules, the Single Judge established that the
Respondent’s objection towards the competence of FIFA to deal with the present matter must
be rejected, and FIFA is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to
consider the present matter as to the substance.
29. For the sake of completeness, the Single Judge also deemed it appropriate to address ex officio
the existence of an alleged image rights agreement concluded in parallel to the employment
contract, upon which the Claimant’s claim is also based. In this respect, the Single Judge
pointed out that, in principle, he is only competent to deal with employment-related disputes.
Notwithstanding the foregoing, the Single Judge went on to analyse in detail the content of
the alleged image rights agreement concluded on 26 January 2020. In this respect, he noted
that the aforementioned agreement indeed contained a considerable percentage of the
player’s remuneration, paid on a monthly basis. Based on the Tribunal’s well-established
jurisprudence in similar cases and on the particularities of the present case, the Single Judge
decided that the image rights agreement is in fact an integral part of the employment contract
and FIFA is therefore competent to decide on claims based on the agreement. Thus, the claim
is admissible.
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d. Merits of the dispute
30. His 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 he will refer
only to the facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
31. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the payment of certain financial
obligations by the Respondent as per the contract, namely the player’s remuneration for the
three last months of the 2019/2020 season, in the total amount of EUR 10,500.
32. In this context, the Single Judge acknowledged that his 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.
33. The Single Judge 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 concluded between the parties.
34. In this respect, the Single Judge noted that while the club at first admits not having paid such
amount to the player, it claims to have reached an amicable settlement with him for the
amount of EUR 2,413.98, which it claims to have paid to him on 5 May 2020 and 26 May
2020. The player denies having concluded any settlement with the club or having received the
amount of EUR 2,413.98, contesting the authenticity of the documents provide by the club.
35. The Single Judge noted that in fact no evidence of the conclusion of any settlement agreement
between the parties was presented by the club and thus such argument cannot be upheld.
36. As to the alleged proof of payment provided by the club and the player’s accusation of forgery,
the Single Judge noted that the club indeed failed to present the original version of the disputed
documents. Furthermore, the signature of the player on the bank statement allegedly proving
the partial payment of EUR 1,213.98 is, even for a layman, very different from the player’s
signature in the contract.
37. Thus, the Single Judge concluded that the club did not discharge its burden of proving the
payment of the player’s requested remuneration and that no reasonable justification was
presented by the Respondent for not having complied with the terms of the contract.
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38. 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 concluded between the parties.
ii. Consequences
39. The Single Judge observed that the financial obligations deemed as outstanding in the present
case correspond to the player’s salaries for March, April and May 2020, i.e. EUR 500 x 3 as per
the contract plus EUR 3,000 x 3 as per the agreement.
40. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the contract, in total EUR 10,500, as detailed above.
41. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of
5% p.a. on the outstanding amounts as from the respective due dates until the date of effective
payment.
42. In continuation, the Single Judge 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.
43.
To this end, the Single Judge confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the club a
10-day deadline to cure such breach of contract.
44.
Accordingly, the Single Judge confirmed that the club had delayed a due payment 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.
45.
The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
46.
In this connection, the Single Judge 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.
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iii. 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 club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the creditor, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
50.
The club shall make full payment (including all applicable interest) to the bank account
provided by the player 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.
e. 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.
53.
Furthermore, 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 his deliberations by declaring the player’s claim admissible
and accepted.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Joan Tomás Campasol, is admissible.
2.
The claim of the Claimant, Joan Tomás Campasol, is accepted.
3.
The Respondent, Athletikos Omilos Agia Napa, has to pay to the Claimant, the following
amount(s):
EUR 500 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until
the date of effective payment;
EUR 500 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until
the date of effective payment;
EUR 500 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until
the date of effective payment;
EUR 3000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020
until the date of effective payment;
EUR 3000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020
until the date of effective payment;
EUR 3000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020
until the date of effective payment;
4.
A warning is imposed on the Respondent, Athletikos Omilos Agia Napa, in accordance with
art. 12bis of the Regulations on the Status and Transfer of Players.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), 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.
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7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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