Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 15 January 2020,
by Mr Omar Ongaro (Italy), DRC judge,
on the claim presented by the player,
Jens Cools , Belgium
represented by Ms Pascale De Borger
as Claimant
against the club,
Pafos FC, Cyprus
represented by Mr Christoforos Florou
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 20 July 2018, the Belgian player Jens Cools (hereinafter: the player or the
Claimant) concluded an employment contract (hereinafter: the contract) with the
Cypriot club, Pafos FC (hereinafter: the club or the Respondent), valid as from 1
July 2018 until 31 May 2020.
2.
According to the contract, the club undertook to pay the player a monthly salary
of EUR 10,000, payable on the 20th day of each month.
3.
According to art. 13 of the appendix to the contract, “Any employment dispute
between the Club and the Player shall fall under the exclusive of the National
Dispute Resolution Chamber of the CFA and shall be resolved according to the
applicable regulations of the CFA”.
4.
On 20 July 2018, the parties signed a “supplementary agreement” (hereinafter:
agreement) in addition to the contract, which, inter alia, contains the following
clauses:
- “The employer shall cover expenses to the employee that are confirmed by
relevant documents for the purchase of air-tickets of economy class in the Name
of the employee or the members of his family (invited person), for the avoidance
of a doubt, this means 5 times a round trip for the persons mentioned above
for the flights between Belgium and Cyprus in the contracted period”.
- “The employer is entitled to 10% of transfer fee, should he be transferred to
another club for a paid fee”.
5.
On 13 July 2019, the club concluded an agreement (hereinafter: transfer
agreement) with the Belgian club, KAS Eupen, regarding the permanent transfer
of the player, including a transfer fee of EUR 200,000, payable by KAS Eupen as
follows:
- EUR 150,000 “14 days after completion of the transfer in TMS”;
- EUR 50,000 until 1 March 2020.
6.
According to information contained in the Transfer Matching System (TMS), the
player was registered with KAS Eupen on 3 August 2019.
7.
On 23 August 2019, the player sent a letter to the club requesting payment of EUR
30,593.55, corresponding to his outstanding remuneration of June 2019 and July
2019, reimbursement of flight tickets as well as his proportion of the transfer fee.
8.
On 12 September 2019, the player lodged a claim against the club requesting
payment of the following monies:
- EUR 10,000 corresponding to his salary of June 2019;
Player Jens Cools, Belgium / Club Pafos FC, Cyprus
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- EUR 4,193.55 corresponding to his salary until 13 July 2019 on a pro-rata basis;
- EUR 1,400 as reimbursement for flight tickets;
- EUR 15,000 corresponding to 10% of the first instalment of the transfer fee.
In addition, the player requested interest of 5% p.a. as of the due dates.
9.
In his claim, the player maintained that his salaries of June 2019 and July 2019
(until 13 July2019 on a pro rata basis) remained outstanding.
10. Furthermore, the player submitted receipts for the following flights between
Cyprus and Belgium:
- EUR 811,08 from 23 and 26 December 2018 (2 persons);
- EUR 379,25 from 26 January 2019 and 15 February 2019;
- EUR 305,98 from 16 March 2019.
11. In addition, referring to the clause agreed upon in the supplementary agreement,
the player held being entitled to 10% of the first instalment of the transfer
agreement.
12. In its reply, the club referred to art. 13 of the appendix to the contract and
contested FIFA’s competence to deal with the matter at hand, as the National
Dispute Resolution Chamber of the CFA (hereinafter: the Cypriot NDRC) should be
competent to deal with any employment related disputes arising out of the
contract. Further, the club argued that Cypriot NDRC complies with FIFA’s
minimum standards for fair proceedings.
13. In this respect, the club argued that the Cypriot NDRC is an independent
arbitration tribunal, established at national level, which respects the principle
equal representation of players and clubs, and which has an independent chairman
(who is chosen by the club representatives and player’s representatives).
Furthermore, the club pointed out that the clause in article 13 of the appendix to
the contract is clear and unambiguous.
14. From the submitted documentation, it can be noted that, inter alia, the following
articles are included in the NDRC Regulations:
- Article 22.1.1: “The Dispute Resolution Committee shall have the competence to
adjudicate and/or resolve any financial and or other disputes which may arise […]
A. between members clubs of CFA and professional players regarding the
employment and stability in their contractual relations”;
- Article 22.2: “The decisions of the DRC can be appealed before the Appeal
Committee of the Dispute Resolution Chamber”;
Player Jens Cools, Belgium / Club Pafos FC, Cyprus
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- Article 22.4.1:”The Appeal Committee and the Dispute Resolution Committee
(DRC) shall consist of five members and more specifically of the Chairman, ViceChairman and three members […]”.
- Article 22.4.3: “The two members of the Appeal Committee and DRC respectively
will be elected from the Board of Directors of CFA and two members of the
Appeal Committee and DRC respectively will be elected by the Pancyprian
Football Players' Association. The election procedure must be approved by the
CFA. The four elected members of both the Appeal Committee and the DRC
respectively will have to elect within 15 days, the Vice-Chairman of the Appeal
Committee and DRC respectively. Accordingly the Vice-Chairman and all
members will elect the Chairman of the Appeal Committee and the DRC
respectively. If the votes are equal, the Vice-Chairman of the Committee will have
the casting vote”.
- Article 22.4.4: “The members elected by the Pancyprian Players’ Association
should be reported promptly to the CFA for approval of their appointment from
the Council of CFA”.
- Article 22.4.5: “If the Pancyprian Football Players’ Association refuses or fails to
elect any member to the DRC within the prescribed period the Council of the CFA
shall elect the member or members depending of the case”.
15. As to the substance, and in case the Chamber would declare itself competent, the
club rejected the player’s claim.
16. In this regard, the club argued that the player waived the right to claim any
remuneration due until the date of the transfer as well as his proportion of the
transfer fee, in order to find an agreement about the transfer as such.
17. On account of the above, the club held that due to that reason, the transfer fee
was lower than the actual value of the player.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, the DRC judge took note that the present matter
was submitted to FIFA on 4 September 2019. Consequently, the DRC judge
concluded that the 2018 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
Player Jens Cools, Belgium / Club Pafos FC, Cyprus
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2.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 2 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (edition January 2020),
the Dispute Resolution Chamber judge is, in principle, competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a Belgian player and a Cypriot club.
3.
However, the DRC judge acknowledged that the club contested the competence
of FIFA’s deciding bodies on the basis of art. 13 of the appendix to the contract
highlighting that the Cyprus Football Association (CFA) has an independent
deciding body to deal with the matter, i.e. the National Dispute Resolution
Chamber of the CFA.
4.
Taking into account the above, the DRC judge emphasised that in accordance
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is
competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle
of equal representation of players and clubs, has been established at national
level within the framework of the Association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to FIFA
Circular no. 1010 dated 20 December 2005. In this regard, the Chamber further
referred to the principles contained in the FIFA National Dispute Resolution
Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
5.
In continuation, the DRC judge wished to stress that the club was unable to prove
that, in fact, the CFA “National Dispute Resolution Chamber” meets the minimum
procedural standards for independent arbitration tribunals as laid down in art.
22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular
no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations.
6.
In this respect, the DRC judge referred to the principle of equal representation of
players and clubs and underlined that this principle was one of the very
fundamental elements to be fulfilled, in order for a national dispute resolution
chamber to be recognised as such. Indeed, this prerequisite is mentioned in the
Regulations on the Status and Transfer of Players, in the Circular no. 1010 as well
as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned
principle as follows: “The NDRC shall be composed of the following members,
who shall serve a four-year renewable mandate: a) a chairman and a deputy
chairman chosen by consensus by the player and club representatives (…); b)
between three and ten player representatives who are elected or appointed
either on proposal of the players’ associations affiliated to FIFPro, or, where no
such associations exist, on the basis of a selection process agreed by FIFA and
FIFPro; c) between three and ten club representatives (…).” In this respect, the
Player Jens Cools, Belgium / Club Pafos FC, Cyprus
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FIFA Circular no. 1010 states the following: “The parties must have equal
influence over the appointment of arbitrators. This means for example that every
party shall have the right to appoint an arbitrator and the two appointed
arbitrators appoint the chairman of the arbitration tribunal (…). Where
arbitrators are to be selected from a predetermined list, every interest group that
is represented must be able to exercise equal influence over the compilation of
the arbitrator list.”
7.
What is more, while analysing the documentation submitted by the parties in this
respect, in particular, the DRC judge concurred that the “Regulations for the
Registration and Transfer of Football Players and the DRC Procedural
Regulations”, in accordance with its article 22.4.4, the two members which are
elected by the Pancyprian Football Players’ Association, need to be approved by
the CFA, whereas such condition does not apply to the appointment of club
representatives. What is more, based on article 22.4.5 of the Cyprus NDRC
Regulations, in case Pancyprian Football Players’ Association refuses or fails to
nominate a player representative, the CFA has also potential influence on the
selection process of player representatives, as opposed to club representatives.
8.
Taking into account the foregoing articles of the Cypriot NDRC Regulations, the
members of the Chamber were of the opinion that the Cypriot NDRC does not
fully respect the principle of equal representation, as laid down in FIFA Circular
no. 1010.
9.
In view of all the above, the DRC judge established that the club’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, on the basis of art. 22 lit. b)
of the Regulations on the Status and Transfer of Players, to consider the present
matter as to the substance.
10.
Furthermore, the DRC judge 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,
and considering that the present claim was lodged on 4 September 2019, the June
2019 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
11.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the 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 the assessment of the
matter at hand.
Player Jens Cools, Belgium / Club Pafos FC, Cyprus
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12.
Having said that, the DRC judge acknowledged that, on 20 July 2018, the
Claimant and the Respondent signed an employment contract pursuant to which
the Respondent undertook to pay to the Claimant a monthly salary of EUR 10,000
during the course of the contractual relationship.
13.
The DRC judge further acknowledged that, according to the Claimant, the
Respondent had failed to remit his salaries of June and July 2019, reimbursement
for certain flight tickets as well as the contractually agreed percentage of the
transfer fee paid by his new club in relation of his transfer in July 2019.
14.
Moreover, the DRC judge noted that the Respondent rejected the player’s claim
and argued that the player waived the right to claim any remuneration due until
the date of the transfer as well as his proportion of the transfer fee, in order to
find an agreement about the transfer as such.
15.
In view of this dissent between the parties, the DRC judge firstly referred to 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 respective burden of proof. The
application of the said principle in the present matter led the DRC judge to
conclude that it was up to the Respondent to prove that the alleged waiver, on
the basis of which it declined payment of the claimed amounts, indeed existed.
16.
In this regard, the DRC judge examined the Respondent’s position and noted that
the club failed to submit any corroborating evidence in support of its argument
that the player waived his entitlements.
17.
Furthermore, the DRC judge took note of the supplementary agreement, signed
on 20 July 2018, according to which:
- “The employer shall cover expenses to the employee that are confirmed by
relevant documents for the purchase of air-tickets of economy class in the
Name of the employee or the members of his family (invited person), for the
avoidance of a doubt, this means 5 times a round trip for the persons
mentioned above for the flights between Belgium and Cyprus in the
contracted period”.
- “The employer is entitled to 10% of transfer fee, should he be transferred to
another club for a paid fee”.
18.
Moreover, the DRC judge acknowledged that the player undisputedly was
transferred from the Respondent to the Belgian club, KAS Eupen, on 13 July 2019,
for the total transfer fee of EUR 200,000 from which EUR 150,000 already due.
19.
Regarding the reimbursement of the claimed flight tickets, the DRC judge
concluded that the player substantiated his claim sufficiently by submitting
receipt of his flight tickets.
Player Jens Cools, Belgium / Club Pafos FC, Cyprus
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20.
On account of the above considerations and the documentation on file, the DRC
judge decided that, in accordance with the general legal principle of “pacta sunt
servanda”, the Respondent is liable to pay the requested amounts as follows:
- EUR 10,000 corresponding to his salary of June 2019;
- EUR 4,193.55 corresponding to his salary until 13 July 2019 on a pro-rata basis;
- EUR 1,400 as reimbursement for flight tickets;
- EUR 15,000 corresponding to 10% of the first instalment of the transfer fee.
21.
In addition, and taking into consideration the player’s claim and the
jurisprudence of the Chamber, the DRC judge decided to award on the
aforementioned amounts interest until the date of effective payment as follows:
a. 5% p.a. as of 21 June 2019 on the amount of EUR 10,000;
b. 5% p.a. as of 14 July 2019 on the amount of EUR 4,193.55;
c. 5% p.a. as of 17 March 2019 on the amount of EUR 1,400;
d. 5% p.a. as of 18 August 2019 on the amount of EUR 15,000.
22.
Furthermore, taking into account the consideration under number II./10. above,
the DRC judge 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.
23.
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.
24.
Therefore, bearing in mind the above, the DRC judge 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.
25.
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.
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Jens Cools, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Pafos FC, has to pay to the Claimant the amount of EUR
30,593.55, plus interest until the date of effective payment as follows:
a. 5% p.a. as of 21 June 2019 on the amount of EUR 10,000;
b. 5% p.a. as of 14 July 2019 on the amount of EUR 4,193.55;
c. 5% p.a. as of 17 March 2019 on the amount of EUR 1,400;
d. 5% p.a. as of 18 August 2019 on the amount of EUR 15,000.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision of the relevant bank account to which the Respondent must pay the
amounts mentioned under point 3. above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 3. above to FIFA to the e-mail address [email protected],
duly translated, if need be, into one of the official FIFA languages (English,
French, German, Spanish).
6.
In the event that the amounts due plus interest in accordance with point 3. above
are not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, 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 (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
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8.
In the event that the aforementioned sums plus interest are 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 FIFA’s Disciplinary Committee for
consideration and a formal decision.
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Jens Cools, Belgium / Club Pafos FC, Cyprus
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