Labour Disputes
Texto da decisão
REF. FPSD-11985
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Thomas Epehstion
BY:
Frans de Weger (the Netherlands), Chairperson
Stijn Boeykens (Belgium), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Thomas Ephestion, France
Represented by UNFP
RESPONDENT:
Mezőkövesd Zsóry FC, Hungary
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REF. FPSD-11985
I. Facts of the case
1. On 3 January 2023, the French player Thomas Ephestion (hereinafter: Claimant or player)
and the Hungarian club Mezőkövesd Zsóry FC (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: the Contract) valid as from the date of
signature until 30 June 2025.
2. According to the Contract, the Respondent undertook to pay the Claimant a net monthly
salary of EUR 7,000.
3. Furthermore, the Contract stipulated under art. XI, par. 49 as follows:
“The Parties agree that they shall make efforts to settle their possible dispute in amicable way
by negotiations. If these efforts fail –in cases determined by the rules of MLSZ and FIFA –the
Parties may turn to the organizational units with MLSZ or FIFA scope of authority, in case of
labour dispute to the Administrative and Labour Court having competence and scope of
authority, and in all other disputes arising out of their legal relationship the Parties
stipulate the exclusive jurisdiction of the Sports Standing Arbitration Court based on the
Article 47 of the Sports Law. The number of arbitrators is three; the procedure is determined
by the Procedural Rules of the Arbitration Court.”
4. Furthermore, under art. XII of the Contract, the parties agreed as follows:
“Parties agree that if the employee will not enter he field at least 50% of the total minutes of
the matches-17 matches-of the Hungarian Football League First Division (NB1) 2022/2023
season league matches -in the Employer's first division adult football team, this contract shall
be terminated by the Employer and the Employee as well until the 15 of June 2023 after
sending a written notice to the employee/employer. Only those matches counts where the
employee was healthy.”
5. On 14 June 2023, the parties signed a mutual termination agreement (hereinafter: the
Agreement) in accordance with which they amicably departed from the Contract.
6. In accordance with art. 3 of the Agreement, the following was established:
“Parties lay down that the employee has already taken all his paid leave time. Employee
hereby declares that all of his salaries will be paid by no more than 5 days after the day of
termination. Parties lay down that the employee will not have to show on trainings and
training matches until the date of termination.”
7. Moreover, in accordance with art. 5 of the Agreement, the parties agreed as follows:
“The employer informs the employee that if the employee was inaccuracy or forced to sign
this agreement within thirty days of its recognition or termination he may challenge this
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REF. FPSD-11985
agreement in writing with the employer and, if it is ineffective, employee may apply to the
competent court within thirty days.”
FACTS AND DEFAULT NOTICES
8. On 3 January 2023 the parties signed the Contract.
9. On 14 June 2023, the Claimant sent a letter to the Respondent, stating as follows:
“In accordance with what we agree in our Contract (…) I hereby inform you that I wish to
invoke this clause and terminate the Contract between us. (…) I would be grateful if you could
acknowledge receipt of this termination of contract and send me by return my certificate of
termination, which will enable me to sign as a free player with my next club.”
10. On the same day, the parties signed the Agreement.
11. After this date, the parties sent no further communication between each other until the
lodging of the present claim.
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REF. FPSD-11985
II. Proceedings before FIFA
12. On 28 September 2023, the Claimant lodged a claim against the Respondent in front of
FIFA. A brief summary of the parties’ submissions is outlined below.
a. Position of the Claimant
13. In his claim, the player argued that the Respondent failed to pay the outstanding
amounts due under the Contract – i.e. the residual value of the Contract, between June
2023 and June 2025, which the latter allegedly undertook to pay on the basis of the
Agreement.
14. The Claimant emphasised that the wording of the clause mentioned under art. 3 of the
Agreement clearly indicated that “all salaries” referred to the residual value of the
Contract.
15. The Claimant therefore requested, in accordance with art. 12bis of the Regulations, EUR
175,000 net as an outstanding amount, as well as EUR 5,000 legal costs and interest.
b. Counterclaim of the Respondent
16. On 20 October 2023, the Respondent lodged a “counterclaim”, in which his request for
relief stated as follows:
-
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“To terminate the proceedings in view of the fact that the dispute at hand is a labour
dispute, governed by Hungarian Labour Law and is to be resolved by the Hungarian
Labour Court;
Alternatively, to reject the claim in full, as the Respondent has fully complied with its
financial obligations.”
17. The Respondent made reference to par. 49 of the Contract, in which the parties agreed
that labour disputes are to be submitted to Hungarian labour courts, and as the present
qualifies as a “labour dispute”. By virtue of this clause, the Respondent opined that the
Football Tribunal does not hold jurisdiction to hear the present claim.
18. The Respondent further made reference to art. 5 of the Agreement, in accordance with
which any challenge to the provisions thereunder must be brought to the “competent
court”. The Respondent understood that this unequivocally referred to the Hungarian
labour courts. The Respondent further used this argument to underpin that FIFA has no
jurisdiction to entertain the Claimant’s request.
19. Subsidiarily, as to the merits, the Respondent emphasised that the Agreement in no way
establishes an obligation to pay the residual value of the Contract as an outstanding
amount.
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REF. FPSD-11985
20. The Respondent hereby emphasised that the Claimant requested the termination of the
Contract due to diminished playing time, by way of an express termination clause
contained in the Contract under art. XII. The Respondent stressed that in light of this, the
real intention of the parties could not possibly have entailed payment of the residual
value of the Contract, for a player whose playing time was limited, and who requested
termination of the Contract himself.
21. The Respondent asserted that, instead of the above, the clause in question merely
referred to the pro-rata remaining salary for June 2023, which had been paid in full.
22. The Respondent lastly pointed out that the Claimant, under art. 5 of the Agreement, the
Claimant was obligated to raise any challenges vis-à-vis the Agreement within 30 days
with itself, or failing any resolution to this effect, to the “competent court”. By not
contacting the Respondent within 30 days, the Respondent argued that the Claimant is
deemed to have waived any objections as to the interpretation of the Contract.
c. Comments of the Claimant
OMMENTS OF THE CLAIMANT
23. In his reply to the “counterclaim”, the Claimant insisted on FIFA’s jurisdiction.
24. The Claimant firmly argued that the clauses referred to by the Respondent – both in the
Contract, as well as the Agreement – are not exclusive, and that by way of consequence
the parties cannot be held to have opted out of the jurisdiction of FIFA.
25. As to the merits, the Claimant briefly argued that the Respondent was the one who
drafted the Agreement and that, by way of consequence, and in accordance with in dubio
contra proferentem, should be interpreted in the Claimant’s favour – i.e. referring to the
residual value of the Contract.
26. The Claimant therefore reiterated his request for relief.
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REF. FPSD-11985
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 28 September 2023 and
submitted for decision on 8 February 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.
28. Subsequently, the members of 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 lit. b) of the
Regulations on the Status and Transfer of Players May 2023 edition), the Dispute Resolution
Chamber is – in principle – competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a French player and
a Hungarian club.
29. Notwithstanding, the Chamber noted that the Respondent contested the competence of
FIFA’s deciding bodies in accordance with its clause art. XI, par. 49 of the Contract and
art. 5 of the Agreement.
30. The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the Contract did not contain a clear and exclusive clause
in favour of any other tribunal – to the effect of excluding FIFA’s jurisdiction.
31. Taking into account all 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, 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 Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
32. In this context, Chamber 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 another forum.
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REF. FPSD-11985
33. The Chamber recalled the wording of these provisions for ease of reference:
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“The Parties agree that they shall make efforts to settle their possible dispute in amicable
way by negotiations. If these efforts fail –in cases determined by the rules of MLSZ and
FIFA –the Parties may turn to the organizational units with MLSZ or FIFA scope of
authority, in case of labour dispute to the Administrative and Labour Court having
competence and scope of authority, and in all other disputes arising out of their legal
relationship the Parties stipulate the exclusive jurisdiction of the Sports Standing
Arbitration Court based on the Article 47 of the Sports Law. The number of arbitrators is
three; the procedure is determined by the Procedural Rules of the Arbitration Court.”
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“The employer informs the employee that if the employee was inaccuracy or forced to sign
this agreement within thirty days of its recognition or termination he may challenge this
agreement in writing with the employer and, if it is ineffective, employee may apply to the
competent court within thirty days.”
34. The Chamber, after analysing the wording of the jurisdiction clause, concluded that such
clause did not clearly and exclusively establish the competence of either the National
Dispute Resolution Chamber under the auspices of the MLSZ, nor the labour courts of
Hungary, in accordance with art. 22 par. 1 lit. b) of the aforementioned Regulations.
35. The Chamber emphasised hereby, in accordance with its longstanding jurisprudence, that
as long as more than one alternative forum is named as the chosen deciding body for
potential disputes arising from a Contract – particularly if FIFA is named amongst these
thereunder – the respective clause cannot be considered “clear and exclusive” within the
meaning of art. 22 par. 1 lit. b).
36. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, it 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.
37. 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 (May 2023 edition), and
considering that the present claim was lodged on 28 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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REF. FPSD-11985
b. Burden of proof
38. 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).
c. Merits of the dispute
39. Its competence and the applicable regulations having been established, 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 the assessment of the matter at hand.
i. Main legal discussion and considerations
40. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the obligation of the
Respondent to remit certain financial obligations under the Contract.
41. In this context, the Chamber acknowledged that it its task was to determine whether, based
on the evidence on file, the Claimant had at all been entitled to receive the amounts in
dispute, and, if affirmative, what the consequences of such potentially unlawful nonpayment may be. The Chamber hereby pointed out that the Respondent acknowledged the
non-payment.
42. Prior to entering the analysis of the matter, the Chamber wished to recall the importance
of art. 13 par. 5 of the Procedural Rules, pursuant to which a party that wishes to rely on a
purported fact also bears the burden of proving its veracity.
43. Having stated this, the Chamber noted that the dispute at hand revolved around the
interpretation of art. 3 of the Agreement. The Chamber recalled its wording, as follows:
“Parties lay down that the employee has already taken all his paid leave time. Employee hereby
declares that all of his salaries will be paid by no more than 5 days after the day of termination. Parties
lay down that the employee will not have to show on trainings and training matches until the date of
termination.”
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REF. FPSD-11985
44. In light of said provision, the Chamber noted that the Claimant requested salaries under
the Contract as from June 2023 until June 2025 – or, the Contract’s residual value.
45. On the other hand, the Respondent had argued that the clause cannot be interpreted to
mean that the residual value of the Contract is due – rather that the clause referred to the
pro-rata salary of June 2023, which had, according to the Respondent, been duly paid.
46. After carefully analysing the wording of the above provision, the Chamber opined that the
wording could objectively be understood not to reflect the residual value of the Contract.
47. In particular, the clause (or the Agreement, for that matter) revealed no exact figure on the
basis of which the Claimant could establish a legitimate expectation to remotely resemble
compensation in the amount claimed, nor is the word “compensation” included therein to
indicate that this was the intention of the parties.
48. The Chamber was also convinced by the argumentation of the Respondent that the
termination of the Contract via the Agreement had resulted due to art. XII of the Contract
– due to the Claimant’s limited playing time. This created the indication that the Claimant
had initiated the termination, and that, as a result, it was unlikely that the parties’ intention
reflected an obligation for the Respondent to pay a substantial amount of compensation
to the Claimant.
49. Equally, by reference to art. 5 of the Agreement, the Chamber noted that the Claimant
failed to raise any objection as to the wording of the Agreement within 30 days – when the
payment of any outstanding amounts would have had to occur after 5 days of the
Agreement’s signature. This further cemented the Chamber’s conclusion that the Claimant
most likely had no legitimate expectation to the residual value of the Contract.
50. Having established this, the Chamber moved on to consider the consequences of such
interpretation.
51. In particular, the Chamber noted that the Claimant had outlined in his petition that he was
not paid for the month of June 2023. Equally, the Chamber noted that, despite arguing that
it had made the respective payment, provided no evidence to this effect.
52. Lastly, the Chamber also recalled that the Claimant had been under Contract with the
Respondent for 14 days of said month.
53. Consequently, the Chamber concluded that the Respondent was to be held liable for paying
the outstanding pro-rata remuneration of the month of June 2023, in the amount of
EUR 3,266.66 net, in accordance with the general legal principle of pacta sunt servanda.
54. 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
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REF. FPSD-11985
of 5% p.a. on the outstanding amounts as from 15 June 2023 until the date of effective
payment.
55. Lastly, and for completeness’ sake, the Chamber rejected the counterclaim of the
Respondent in its entirety.
ii. Compliance with monetary decisions
56. 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.
57. 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
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
58. 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.
59. 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.
60. 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
61. 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.
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REF. FPSD-11985
62. 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.
63. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-11985
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant / CounterRespondent, Thomas Ephestion.
2.
The claim of the Claimant / Counter-Respondent is partially accepted.
3.
The Respondent / Counterclaimant, Mezőkövesd Zsóry FC, must pay to the Claimant /
Counter-Respondent EUR 3,266.66 net as outstanding remuneration plus 5% interest
p.a. as from 15 June 2023 until the date of effective payment.
4.
Any further claims of the Claimant / Counter-Respondent are rejected.
5.
The counterclaim of the Respondent / Counterclaimant was rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
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
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REF. FPSD-11985
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).
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