Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 4 June 2020,
in the following composition:
Clifford Hendel (US A/France), Deputy Chairman
Elv is Chetty (S ey chelles ), member
Tom is lav Kas alo (Croatia), member
on the claim presented by the player,
Oriol Lozano Farrán, Spain,
represented by Asociación de Futbolistas Españoles
as “Claimant”
against the club
Aris FC (Athlitikos S y llogos Thes s alonikis o Aris Podos feriki Anony m i Eteria),
Greece
as “Respondent”
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 9 July 2010, the Spanish player, Oriol Lozano Farrán (hereinafter: the
Claimant or the player), and the Greek club, PAE O Aris Thessaloniki
(hereinafter: PAE) signed an employment contract valid as from the date of
signature until 30 June 2013.
2.
In accordance with the employment contract, the player was, inter alia, entitled
to the following remuneration:
“1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)
13)
EUR 10,000 due on 21 June 2010
EUR 20,000 due on 31 August 2010
EUR 80,000 due on 31 October 2010
EUR 100,000 due on 31 January 2011
EUR 120,000 due on 31 May 2011
EUR 30,000 due on 31 August 2011
EUR 85,000 due on 31 October 2011
EUR 110,000 due on 31 January 2012
EUR 125,000 due on 31 May 2012
EUR 35,000 due on 31 August 2012
EUR 90,000 due on 31 October 2012
EUR 110,000 due on 31 January 2013
EUR 135,000 due on 31 March 2013
3.
On 5 July 2011, the Claimant and PAE signed a termination agreement, by means
of which PAE undertook to pay to the Claimant the amount of EUR 300,000.
4.
On 30 March 2012, the abovementioned parties signed an “agreement for the
novation of the contract of 5 July 2011” (hereinafter: the novation), as per which
the PAE should pay the Claimant the amount of EUR 350,000 in instalments in
virtue of the early termination of the contract. The novation, as per its clause 4,
also stipulated that in case any of the instalments remained outstanding for
more than 30 days, the player had the right to claim the full compliance with
the employment agreement signed on 9 July 2010.
5.
The first instalment of the novation, corresponding to EUR 90,000, was duly paid
by PAE.
6.
On 29 May 2014, the Claimant lodged a first claim in front of FIFA against the
Respondent, claiming the total amount of EUR 750,000, corresponding to the
residual amount of the employment contract, based on the non-compliance of
PAE with the novation.
7.
On 1 October 2014, the Hellenic Football Federation (hereinafter: the HFF)
informed FIFA that “due to their dissolution/entering in liquidation process, the
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
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following FSAs are already inexistent and no longer affiliated with HFF: - FC ARIS
[PAE]”.
8.
On 24 February 2015, the Claimant was informed that in consideration of the
information received by FIFA from the HFF on 1 October 2014, FIFA was not
competent to hear the dispute in light of the fact that the club PAE was no
longer affiliated to the HFF.
9.
The HFF further informed FIFA that whilst PAE is automatically fully disaffiliated
from the Hellenic Football Federation, it is “without having any direct or indirect
relation to the HFF any more”. The HFF also stated that ‘Aris Thessalonikis AS’
(hereinafter: FC Aris) competes in the C National Division Championship for the
2014/2015 season. It is the “founding association” of PAE” and should not be
confused with it “since they are two totally different legal entities that operate
parallel to and independently of each other, have different administrations,
different tax registry numbers, different assets and liabilities and different rights
and obligations”. In addition, the HFF states “more specifically, PAE was
established as a football société anonyme by converting only the amateur
football players department of the above association, in accordance with the
provisions of the Law of Amateur and Professional Sports and operated as such
until its aforementioned dissolution by law”.
10.
On 8 May 2018, the Claimant lodged a claim against “Aris FC” in front of FIFA,
requesting the payment of the amount of EUR 750,000, corresponding to the
residual amount of the employment contract, based on the non-compliance of
the novation and in particular referencing its clause 4, claiming that the
respondent club was reaffiliated to the HFF.
11.
The club Athlitikos Syllogos Thessalonikis o Aris PAE (hereinafter: the
Respondent or AST) replied to the claim by means of a letter which letterhead
reads “Aris FC”. The contents of the club’s reply are detailed in continuation.
12.
On 4 October 2018, the Court of Arbitration for Sport (CAS) passed a decision in
the matter CAS 2016/A/4918 Ikechukwu John Kingsley Ibeh v. Aris Thessaloniki
AS & PAE O Aris FC & FIFA. In this regard, CAS decided the following:
“166. This CAS Award confirms that the Player has a final and binding,
enforceable debt against PAE. However, the Sole Arbitrator acknowledges that
PAE is now in liquidation, so it is unlikely that the Player will be able to recover
much, if any, of his debt from PAE.
167. Accordingly, if the Player believes that AST [the Respondent] is the legal or
sporting successor of PAE, the Player may wish to enforce his debt against AST.
If the Player wished to do so, then that is a new claim against a different legal
entity. The Player should bring his claim against AST following Article 22 of the
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
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RSTP, through the FIFA DRC, respecting the time limitations of the RSTP (noting
that the information regarding the existence of AST perhaps only became
available from the HFF on 13 July 2018 during these CAS proceedings). He should
then seek to convince the FIFA DRC that AST is the sporting successor of PAE and
should, somehow, be responsible for the debt that PAE owes to him under this
CAS Award.”
13.
During the procedure in front of CAS, the Sole Arbitrator noted that in the
2017/2018 season a team called “Aris Thessaloniki” was playing in the 2nd
highest Greek Football League and requested from the HFF to clarify why such
a team was playing in the Greek second division, which the Sole Arbitrator
understood to be a professional league, “not amateur”.
14.
The HFF confirmed on 13 July 2018 that during the 2015/2016 season, a team
competing under the name “FC Aris” had “won the championship and thus
gained the right to be promoted to the Football League division, which is the
Greek second professional division” and according to Greek Law “only football
societés anynomyes are entitled to participate in professional division
championships; therefore, in case of a promotion of an amateur sports
association’s football team to a professional division, the association is obliged
to establish a football societé anonyme which will replace the association and
participate in the championship of that division”.
15.
On 21 February 2020, the FIFA Dispute Resolution Chamber passed a decision in
the matter 19-00332 and, inter alia, decided that the Respondent was the legal
successor of PAE.
16.
In his claim, the player claims that for season 2014/2015 the Respondent finished
2nd in the third division; for season 2015/2016 the Respondent finished 1st in
the third division and was promoted to the second division, after having player
its last match of the season on 15 May 2016.
17.
The Claimant further claims that as from 1 July 2016, i.e. the beginning of the
2016/2017 season, the “2-year delay” for lodging a claim against the club was
renewed, and thus the present claim was timely lodged. The Claimant explicitly
states that its new claim is based on the employment contract signed between
the parties on 9 July 2010.
18.
Accordingly, the player requested that the Respondent is ordered to pay him
the total amount of EUR 750,000, corresponding to the instalments no. 5 to 13
of the employment agreement, plus 5% interest p.a. as from 31 May 2012 until
the date of actual payment.
19.
In its reply to the claim, the Respondent rejected the player’s claim and argued
and argued as follows:
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
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“Regarding the case with Ref.nr. 18-00978 we would like to refer that Athlitikos
Syllogos Thessalonikis o Aris Podosfairiki Anonymi Etaireia is a different entity
and S.A. PAE O ARIS FC is now a S.A. under liquidation, so have to claim your
requests and debts from them. Athlitikos Syllogos Thessalonikis o Aris
Podosfairiki Anonymi Etaireia is a different company with different owners,
with different Board of Directors, different VAT number and different legal
entity. There is no legal or financial relevance between Athlitikos Syllogos
Thessalonikis o Aris Podosfairiki Anonymi Etaireia and PAE O ARIS FC under
liquidation S.A. The only relevance between Athlitikos Syllogos Thessalonikis o
Aris Podosfairiki Anonymi Etaireia and PAE O ARIS FC under liquidation S.A. is
the use of the same stadium. Regarding the Global Commercial Law, a newly
established S.A. cannot undertake the financial obligations of another S.A.
because there are different shareholders and VAT number. This can happen only
in case of buy-out or merger but it’s not applied in this case”.
20.
As such, the Respondent requested FIFA the following:
a) “stop persecuting our company for cases of other company because you are
harming our reputation,
b) acknowledge that Athlitikos Syllogos Thessalonikis o Aris Podosfairiki
Anonymi Etaireia with VAT No EL997350594, established in 2016 and is newly
established S.A.
c) take into consideration and the correspondence between FIFA and Hellenic
Football Federation about relevant claims (as attached)”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA
on 8 May 2018. Taking into account the wording of art. 21 of the 2019 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition March 2020), 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 Spanish player and a Greek club.
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
5
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition March 2020), and considering that the claim was
lodged on 8 May 2018, the June 2018 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
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. In particular, the
Chamber recalled that, in accordance with art. 6 par. 3 of Annex 3 of the
Regulations, FIFA may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or
contained in the TMS.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
6.
First of all, the DRC referred to art. 25 par. 5 of the Regulations, according to
which the Dispute Resolution Chamber shall not hear any case subject to the
Regulations if more than two years have elapsed since the event giving rise to
the dispute. Considering that the claim of the Claimant was lodged on 8 May
2018, the Chamber deemed that, in principle, it could not enter into any claim
for salaries that fell due prior to 8 May 2016. However, the members of the
Chamber wished to highlight the special circumstances of the present case, in
particular, that the information regarding the existence of the Respondent only
became available after the letter from HFF on 13 July 2018 during the
aforementioned CAS proceedings.
7.
Consequently, the members of the DRC shared the view respectively of the CAS
and the FIFA DRC on case 19-00332, and concluded that the request for the
salaries accrued before the date of 8 May 2016 are not barred by the statute of
limitations in accordance with art. 25 par. 5 of the Regulations.
8.
Subsequently, the Chamber wished to emphasise that the parties do not dispute
neither the contents of the employment agreement nor of the novation.
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
6
9.
Having established the above, the DRC considered that the underlying issue in
this dispute, considering the parties’ position, was to determine as to whether
the Respondent can be considered as a sporting successor of PAE and if so,
whether the Respondent is liable to pay PAE’s debts towards the player.
10.
With this in mind, the DRC started by acknowledging the position of the player,
who directed a claim against the Respondent and therefore deems it to be liable
for the obligations of PAE towards the player.
11.
Having said this, the members of the Chamber took note of the Respondent’s
position which, in short, affirms that it is a different legal entity from PAE.
12.
With the above-mentioned considerations in mind and in relation to the new
club’s position, the DRC referred to previous decisions of FIFA’s decision-making
bodies related to this particular issue as well as to the CAS Award 2013/A/3425
which mutatis mutandis can be applied to the present matter. Indeed, in said
Award, CAS, while confirming a previous decision of FIFA, established that a club
is a sporting entity identifiable by itself, which is formed by a combined set of
elements that constitute its image.
13.
In particular, the DRC fully adopted the reasoning of the Sole Arbitrator in the
aforementioned Award that reads as follows:
“The Sole Arbitrator highlights that the decisions that had dealt with the
question of the succession of a sporting club in front of the CAS (CAS
2007/A/1355; TAS 2011/A/2614; TAS 2011/A/2646; TAS 2012/A/2778) and in front
of FIFA’s decision-making bodies (…), have established that, on the one side, a
club is a sporting entity identifiable by itself that, as a general rule, transcends
the legal entities which operate it. Thus, the obligations acquired by any of the
entities in charge of its administration in relation with its activity must be
respected; and on the other side, that the identity of a club is constituted by
elements such as its name, colours, fans, history, sporting achievements, shield,
trophies, stadium, roster of players, historic figures, etc. that allow it to
distinguish from all the other clubs. Hence, the prevalence of the continuity and
permanence in time of the sporting institution in front of the entity that
manages it has been recognised, even when dealing with the change of
management companies completely different from themselves” (original text in
Spanish).
14.
Having said this, the members of the Chamber focused their attention on the
following facts:
a.
Both, PAE and AST competed in the Greek league under the name of “Aris
FC” or “Aris Thessaloniki”;
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
7
b.
c.
d.
e.
f.
15.
The logo of PAE and AST are almost identical;
Both clubs held their local matches in the same stadium;
Both clubs have their registered office at the same address;
The colours of the clubs are the same;
Both clubs share the same history. In particular, according to AST’s website,
the club was established in 25 March 1914 and won three Championship
titles (1928, 1932 and 1946).
On account of all the above, the DRC reached the following conclusions:
a.
b.
There are sufficient elements to establish that AST has been the same club
as PAE throughout its history, despite the alleged change of owners, board
of directors etc.;
Moreover, by using the same name (“Aris FC”), logo, stadium and, in
particular, the history, it is evident that the new club had the intention to
maintain the identity and image of PAE in order to be considered the same
club.
16.
In view of the foregoing conclusions, the DRC unanimously decided that AST is
the sporting successor of PAE. As such, the Chamber decided that the
Respondent has standing to be sued and it is therefore liable to pay to the
Claimant the amounts due under the employment agreement and the novation.
17.
In continuation, the Chamber turned to the issue of the amount sought by the
player, and recalled, once again, that the Respondent made no submissions
regarding the substance of the matter.
18.
Accordingly, the Chamber observed that clause 4 of the novation is equivalent
to a financial disposition in a settlement agreement. In other words, it means
the same as if the parties had written that the Claimant, should the Respondent
fail to make the payments as agreed, was entitled to EUR 750,000. This amount
therefore is not compensation for breach of contract, but in fact an outstanding
payment, hence no mitigation shall be considered.
19.
Further, the DRC noted that the initial breakdown of amounts claimed, as filed
by the player in his statement of claim, adds up to EUR 840,000, and that he had
acknowledged receipt of EUR 90,000, therefore arriving at the requested
amount of EUR 750,000.
20.
In regards to the Claimant’s claim for interest, he Chamber observed the request
made by the Claimant requested that it all applies from 31 May 2012, i.e. the
date of default. However, the Chamber concluded that some installments were
not due by such date, and no disposition of the novation states that all the
instalments fell automatically due. Accordingly, the Chamber decided that the
request for interests should be partially granted, as follows:
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
8
-
From 31 May 2012 for payments due up to that date (otherwise the decision
would be ultra petita);
From the due dates for payments agreed to be made after 31 May 2012 (as
clause 4 of the novation reverts back to the employment agreement).
21.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Oriol Lozano Farrán, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Aris FC (Athlitikos Syllogos Thessalonikis o Aris Podosferiki
Anonymi Eteria), has to pay to the Claimant w ithin 30 day s as from the
notification of this decision, the amount of EUR 750,000, plus interest at the rate
of 5% p.a. as follows:
-
On the amount of EUR 380,000 as from 31 May 2012 until the date of effective
payment;
On the amount of EUR 35,000 as from 31 August 2012 until the date of
effective payment;
On the amount of EUR 90,000 as from 31 October 2012 until the date of
effective payment;
On the amount of EUR 110,000 as from 31 January 2013 until the date of
effective payment;
On the amount of EUR 135,000 as from 30 March 2013 until the date of
effective payment.
4.
Any further claim lodged by the Claimant is rejected.
5.
In the event that the amounts plus interest due to the Claimant in accordance
with the above-mentioned number 3 are not paid by the Respondent within the
stated time limits, the present matter shall be submitted, upon request, to the
FIFA Disciplinary Committee for consideration and a formal decision.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify FIFA
of every payment received.
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
9
*****
Note relating to the findings of the decis ion (art. 15 and 18 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber):
A request for the grounds of the decision must be received, within 10 day s of receipt
of notification of the findings of the decision. Failure to do so within the stated
deadline will result in the decision becoming final and binding and the parties being
deemed to have waived their rights to file an appeal.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Oriol Lozano Farrán, Spain / Aris F.C. (Athlitikos Syllogos Thessalonikis o Aris Podosferiki Anonymi
Eteria), Greece
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