Labour Disputes
Texto da decisão
REF. FPSD-10795
Decision of the
Dispute Resolution Chamber
passed on 30 August 2023
regarding an employment-related dispute concerning the player Avtandil
Ebralidze
BY:
Alejandro Taraborrelli (Argentina/Italy)
CLAIMANT:
Avtandil Ebralidze , Georgia
Represented by Loizos Hadjidemetriou
RESPONDENT:
ANORTHOSIS FAMAGUSTA, Cyprus
pg. 2
REF. FPSD-10795
I. Facts of the case
1.
On 27 June 2022, the Georgian player, Avtandil Ebralidze (hereinafter: the Claimant), and
the Cypriot club, Anorthosis Famagusta (hereinafter: the Respondent) signed an
(hereinafter: “the contract”) valid as from 21 June 2022 until 31 May 2024.
2.
According to clause 1.3. of the contract, the Respondent undertook to pay to the Claimant,
the following remuneration:
3.
“1.3.
The Player’s remuneration shall be as follows:
1.3.1.
From 31/08/2022 until 31/05/2023, a monthly gross salary of €2’245.94, a total
annual of €22’459.35 (€2’000.00 net monthly, a total annual of €20’000,00 net)
1.3.2.
From 31/08/2023 until 31/05/2024, a monthly gross salary of €3’460.91, a total
annual of €34’609.07 (€3’000.00 net monthly, a total annual of €30’000,00 net)”
Additionally, the Claimant and the Respondent signed a Supplementary Agreement to the
contract, in accordance with which the Respondent undertook to pay the following to the
Claimant:
1. The Club will pay to the Player, for the period starting 31/08/2022 and ending 31/05/2023 the
additional amount of €60.000 (sixty thousand euro) net in stages and subject to the terms of
the present agreement, in 10 (ten) equal monthly instalments of €6.000 (six thousand euro)
net.
2. The Club will pay to the Player, for the period starting 31/08/2023 and ending 31/05/2024 the
additional amount of €60.000 net (sixty thousand euro net) in stages and subject to the terms
of the present agreement, in ten (10) equal monthly instalments of €6.000 net (six thousand
euro net).
3. Additionally, the Player will receive an annual amount of €10.000 (ten thousand euro) in 10
(ten) instalments of €1.000 (one thousand euro) along with his salary in order to cover his
personal expenses.
4. Clause 12 of the Supplementary Agreement stipulated the following:
“12. 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 the Cyprus FA. Any decision of the competent committee and/or authority and/or
body of the Cyprus FA might be appealed only before Court of Arbitration of Sports 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.”
pg. 3
REF. FPSD-10795
5.
On 19 June 2023, the Claimant put the Respondent in default and requested payment of
the amount of EUR 16,140 as outstanding remuneration corresponding to his salaries for
March, April and May 2023, granting it a 5-day deadline, however to no avail.
II. Proceedings before FIFA
6.
On 4 July 2023, 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
7.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations.
8.
The requests for relief of the Claimant, were that the Respondent to pay him the following
amounts.
(a) EUR 16,140 as outstanding remuneration plus 5% interest per annum as from the respective
due dates until the date of effective payment as follows:
-
on the amount of EUR 140 as from 1 April 2023
on the amount of EUR 8,000 as from 1 May 2023
on the amount of EUR 8,000 as from 1 June 2023
b. Position of the Respondent
9.
In its reply, the Respondent contested the competence of FIFA in favour of the National
Dispute Resolution Chamber of the Cyprus Football Association (NDRC Cyprus), in
accordance with its clause 13 of the contract.
10. As to the merits, the Respondent mentioned the following:
“The Player should not be allowed to proceed with the present claim because the parties
discussed over the phone and the player accepted to be paid the whole amount, EUR 16,140,
until 10/09/2023.
The Player never even informed the club that he was no longer willing to wait until
10/09/2023 or that he wanted to proceed with a claim to FIFA.
For this reason, the Player is not entitled to any legal interest and this claim of him must also
be rejected.”
pg. 4
REF. FPSD-10795
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 July 2023 and
submitted for decision on 30 August 2023. 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.
12. 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 May 2023 edition), the Single Judge 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 Cypriot club.
13. 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 (May 2023 edition), and
considering that the present claim was lodged on 4 July 2023, the May 2023 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
14. 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.
15. 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 Cyprus
(hereinafter: the NDRC of Cyprus), alleging that the latter is competent to deal with any
dispute deriving from the relevant employment contract.
16. The 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
pg. 5
REF. FPSD-10795
arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs.
17. 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.
18. In this context, the Single Judge pointed out that it should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of the NDRC of Cyprus. In this respect, the Single Judge referred
to clause 12 of the supplementary agreement, which, inter alia states: “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 the Cyprus FA”.
The Single Judge, after analysing the wording of the jurisdiction clause, conclude that such
clause was indeed clear and exclusive in favour of the competence of the NDRC of Cyprus.
19. Having established the foregoing, the Single Judge turned its attention to the further prerequisites for establishing the competence of a NDRC. The Single Judge namely referred to
principle of equal representation of players and clubs and underlined that this principle is
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 FIFA 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 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”.
pg. 6
REF. FPSD-10795
20. With the aforementioned principles in mind, the Single Judge established that the
Respondent failed to submit any documentation as corroborating evidence to proof that
the NDRC of the CFA meets the requirements of the FIFA circular 1010.
21. On account of all the above, the Single Judge established 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, on the basis of art. 22 par. 1 lit. b) of the
Regulations, to consider the present matter as to the substance.
d. Merits of the dispute
22. 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
23. 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 Claimant’s salaries
for the months of March, April and May 2023.
24. 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.
25. 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.
26. Nonetheless, the Single Judge noted that the Respondent argued that it reached an
agreement with the Claimant to pay the outstanding remuneration on 10 September 2023,
however that the Respondent failed to provide any corroborating evidence to substantiate
its argument. Furthermore, no reasonable justification was presented by the Respondent
for not having complied with the terms of the contract. In particular, the Claimant’s salaries
for the months of March, April and May 2023.
27. 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,
pg. 7
REF. FPSD-10795
the Single Judge decided that the Respondent is held liable to pay the Claimant the
outstanding amounts deriving from the contract concluded between the parties.
ii. Consequences
28. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
29. 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
which were outstanding under the contract at the moment of the termination, i.e., EUR
16,140.
30. 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.
iii. Compliance with monetary decisions
31. 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.
32. 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.
33. 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.
34. 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.
pg. 8
REF. FPSD-10795
35. 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
36. 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 Chamber decided that no procedural costs were to be
imposed on the parties.
37. Likewise, and for the sake of completeness, the Single Judge r recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
38. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-10795
Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Avtandil Ebralidze.
2.
The claim of the Claimant, Avtandil Ebralidze, is accepted.
3.
The Respondent, ANORTHOSIS FAMAGUSTA, must pay to the Claimant the following
amount(s):
- EUR 16,140 as outstanding remuneration plus 5% interest p.a. as from the respective
due dates until the date of effective payment as follows:
-
on the amount of EUR 140 as from 1 April 2023
on the amount of EUR 8,000 as from 1 May 2023
on the amount of EUR 8,000 as from 1 June 2023
4.
Any further claims of the Claimant are rejected.
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, 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.
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
pg. 10
REF. FPSD-10795
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 11