DRC Overdue Payables
Texto da decisão
REF. FPSD-15236
Decision of the
Dispute Resolution Chamber
passed on 2 October 2024
regarding an employment-related dispute concerning the
player Sekou Gassama Cissokho
BY:
Calum BEATTIE (Scotland)
CLAIMANT:
Sekou Gassama Cissokho, Spain
Represented by Iván López Hierro
RESPONDENT:
Anorthosis Famagusta, Cyprus
pg. 2
REF. FPSD-15236
I. Facts of the case
1.
On 4 August 2023, the Spanish player Sekou Gassama Cissokho (hereinafter, the Claimant
or the Player) and the Cypriot club Anorthosis Famagusta (hereinafter, the Respondent or
the Club) concluded an employment contract (hereinafter, the Contract) valid as from 4
August 2023 until 30 June 2025.
2.
In accordance with Clause 1 of the Contract, the Club undertook to pay to the Player
(hereinafter, jointly referred to as the Parties) a salary of EUR 50,000 net per season.
3.
Pursuant to Clause 13 of the Standard Employment Contract, which is attached to the
Contract,
“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 6 August 2023, the Parties concluded the so-called “Supplementary Agreement”, in
accordance which “The parties wish to update the remuneration, bonuses and associated
benefits that the Player will be entitled to receive, under the employment agreement, as well as
amend supplementary clauses”.
5.
According to Clause 1 of the Supplementary Agreement, the Club undertook to pay to the
Player an additional amount of EUR 203,000 net per season.
6.
Clause 10 of the Supplementary Agreement established the following:
“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 FIFA Football Tribunal. Any decision of the FIFA Football Tribunal 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”.
7.
On 11 April 2024, the Player and the Club (hereinafter, jointly referred to as the Parties)
concluded the so-called “Termination and Settlement Agreement” (hereinafter, the
Termination Agreement) in accordance with which “The employment agreement dated
4/08/2023 and every other agreement related to the Player’s employment by the Club are hereby
mutually terminated with immediate effect”.
8.
Pursuant to Clause 3 of the Termination Agreement, the Club undertook to pay to the
Player EUR 127,500 in the following instalments:
“3.1. € 25.000 (twenty five thousand euro) upon signing the present agreement.
pg. 3
REF. FPSD-15236
3.2. € 8.000 (eight thousand euro) on or before 15/5/2024.
3.3. € 8.000 (eight thousand euro) on or before 15/6/2024.
3.4. € 8.000 (eight thousand euro) on or before 15/7/2024.
3.5. € 8.000 (eight thousand euro) on or before 15/8/2024.
3.6. € 8.000 (eight thousand euro) on or before 15/9/2024.
3.7. € 8.000 (eight thousand euro) on or before 15/10/2024.
3.8. € 8.000 (eight thousand euro) on or before 15/11/2024.
3.9. € 8.000 (eight thousand euro) on or before 15/12/2024.
3.10. € 8.000 (eight thousand euro) on or before 15/1/2025.
3.11. € 8.000 (eight thousand euro) on or before 15/2/2025.
3.12. € 8.000 (eight thousand euro) on or before 15/3/2025.
3.13. € 8.000 (eight thousand euro) on or before 15/4/2025.
3.14. € 6.500 (six thousand five hundred euro) on or before 15/5/2025”.
9.
In accordance with Clause 4 of the Termination Agreement:
“Above amounts, as described in articles 3.1 to 3.14, will be paid in the Player’s bank account,
within three (3) days after each payment is agreed as due. These three (3) days period is to be
considered as a grace period and is explicitly agreed that only after the lapse of such period, the
Player could initiate procedures for claiming the amount. Failure to pay even one of the overdue
instalments entitles the player to initiate a process to claim the entire debt”.
10. Clause 12 of the Termination Agreement establishes the following:
“Any dispute arising out of the present agreement shall fall within the exclusive jurisdiction of
FIFA”.
11. On 4 June 2024, the Player put the Club in default and requested payment of EUR 8,000,
corresponding to the second instalment per the Termination Agreement, due on 15 May
2024. The Player granted the Club a deadline of ten days to comply with its contractual
obligations.
II. Proceedings before FIFA
12. On 16 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the Parties’
position is detailed below.
a. Position of the Claimant
13. According to the Player, at the time of lodging the present claim the Club had only paid the
first instalment of the Termination Agreement in the amount of EUR 25,000.
pg. 4
REF. FPSD-15236
14. The Player, referring to Clause 4 of the Termination Agreement, claimed being entitled to
the overall amount agreed pursuant to the acceleration clause provided therein.
15. The Player requested the following relief (freely translated from Spanish):
“(…) To issue a decision upholding the present claim and, consequently, and taking into account,
inter alia, article 12bis of the Regulations on the Status and Transfer of Players, order [the Club]
to pay to [the Player] the net amount of one hundred and two thousand and five hundred Euros
(EUR 102,500), plus default interest for late payment arising from such non-compliance, as well
as the costs of these proceedings, if any, and take the appropriate disciplinary measures against
the Club”.
b. Position of the Respondent
16. In its reply, the Respondent initially sustained that FIFA is not competent to hear the
present claim. The Club argued that, according to the Standard Employment Contract
attached to the Contract, the Parties agreed on the exclusive competence of the National
Dispute Resolution Chamber of the Cyprus Football Association (hereinafter, the NDRC and
the CFA, respectively).
17. According to the Club, the NDRC of the CFA is fully impartial and independent, thus
satisfying art. 22 par. 1 lit. b) of the Regulations.
18. As to the substance of the present dispute, the Club argued that the Player should not be
allowed to proceed with the claim, as allegedly the Parties discussed over the phone and
the Player agreed to be paid the overall amount in May 2025.
c. Replica of the Claimant
19. In his replica, the Claimant initially exposed that he was not able to comply with the
deadline granted by the FIFA General Secretariat due to IT incidents beyond his control.
20. According to the Player, the Termination Agreement superseded the Contract and any
other agreements between the Parties. Furthermore, the Termination Agreement provides
the exclusive jurisdiction of FIFA.
21. The Player reiterated his request for relief.
d. Duplica of the Respondent
22. Despite being invited to do so, the Club failed to submit a duplica.
pg. 5
REF. FPSD-15236
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter, the 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 16 July 2024 and submitted for
decision on 2 October 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.
24. Furthermore, 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 par. 1 lit. b) of the June
2024 edition of the Regulations on the Status and Transfer of Players (hereinafter, the
Regulations), 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.
25. However, the Single Judge noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the NDRC of the CFA, alleging that the latter is competent to
deal with any dispute deriving from the employment relationship based on Clause 13 of
the Standard Employment Contract.
26. The Single Judge also noted that the Player insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the Termination Agreement, which contains a jurisdiction
clause in favour of FIFA, superseded the Contract and any other agreements entered into
between the Parties.
27. At this point, the Single Judge reverted to the Transitional measures established in art. 26
par. 1 lit. c) of the Regulations (editions of February and June 2024), according to which
“Article 22 paragraph 1 b) and c) shall apply only to cases brought to FIFA as from 1 January
2025. Any other case shall be assessed according to the previous regulations”.
28. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations (May 2023 edition), FIFA is, in principle, competent to hear
employment-related disputes 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. Furthermore, 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
pg. 6
REF. FPSD-15236
contained in the FIFA National Dispute Resolution Chamber Standard Regulations, which
came into force on 1 January 2008.
29. In this context, the Single Judge pointed out that it should be analysed first whether the
contract at the basis of the present dispute contained a clear and exclusive jurisdiction
clause in favour of the NDRC of Cyprus.
30. In doing so, the Single Judge observed that on 4 August 2023 the Parties concluded the
Contract, to which the Standard Employment Contract is attached. The Single Judge noted
that the Standard Employment Contract is provided by the CFA and must be registered
with it. Furthermore, the Single Judge observed that there are no provisions left to the
agreement of the parties, but it is rather a contract to which any player must adhere in
order to be validly registered with the CFA.
31. In this respect, the Single Judge noted that, in accordance with Clause 13 of the Standard
Employment Contract, “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”.
32. The Single Judge further noted that, on 6 August 2023, the Parties concluded the so-called
“Supplementary Agreement”, in accordance which “The parties wish to update the
remuneration, bonuses and associated benefits that the Player will be entitled to receive, under
the employment agreement, as well as amend supplementary clauses”. In addition, that
pursuant to Clause 10 of the Supplementary Agreement, “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 FIFA Football
Tribunal. Any decision of the FIFA Football Tribunal 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”.
33. The Single Judge lastly noted that, on 11 April 2024, the Parties concluded the Termination
Agreement, in accordance with which “The employment agreement dated 4/08/2023 and
every other agreement related to the Player’s employment by the Club are hereby mutually
terminated with immediate effect”.
34. Based on the above, the Single Judge concluded that the Termination Agreement, by way
of which the Parties agreed to mutually terminate their employment relationship,
superseded any previous agreement between them and, consequently, determined that
the contract at dispute in the present case is the Termination Agreement.
35. With the above in mind, the Single Judge noted that, pursuant to Clause 12 of the
Termination Agreement, “Any dispute arising out of the present agreement shall fall within the
exclusive jurisdiction of the Fédération Interlational Football Association (FIFA)”.
pg. 7
REF. FPSD-15236
36. After analysing the wording of the cited jurisdiction clause, the Single Judge concluded that
the Parties irrevocably and exclusively agreed that any disputes arising from the
Termination Agreement would be submitted to FIFA.
37. As a consequence, the Single Judge determined 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 requirements, he established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that he is
competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present
matter as to the substance.
38. The Single Judge wished to emphasise that the same conclusion would apply if one
considers the contradictory provisions in the Standard Employment Contract and in the
Supplementary Agreement. In this respect, the Single Judge determined that the
jurisdiction clauses provided therein did not exclusively establish the competence of the
NDRC of the CFA in accordance with art. 22 par. 1 lit. b) of the Regulations, as the former
provided the competence of the NDRC of Cyprus, and the latter the competence of FIFA.
39. 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 (June 2024 edition), and considering that the present claim was
lodged on 16 July 2024, the June 2024 edition of said Regulations is applicable to the matter
at hand as to the substance.
b. Admissibility of the Player’s replica
40. On 16 August 2024, the FIFA General Secretariat invited the Claimant to provide his position
on the Respondent’s reply to the claim by no later than 23 August 2024.
41. Following a thorough review of the documentation provided by the Claimant together with
his replica, the FIFA General Secretariat determined that a technical error prevented him
from submitting the replica through the Legal Portal within the aforementioned deadline,
as evidenced by the support ticket created by the Claimant on 23 August 2024 and
submitted together with his replica on 26 August 2024, once the technical issues were
resolved.
42. In view of the above, the Single Judge decided that the replica of the Player was admissible.
c. Burden of proof
43. 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
pg. 8
REF. FPSD-15236
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).
d. Merits of the dispute
44. Having established the competence and the applicable regulations, 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 assessing the matter at hand.
i. Main legal discussion and considerations
45. The Single Judge then moved to the substance of the matter, and took note of the fact that
it concerned a claim for outstanding amounts arising from the Termination Agreement.
46. In this respect, the Single Judge observed that the Player claimed being entitled to EUR
102,500 net pursuant to the acceleration clause provided in Clause 4 of the Termination
Agreement after the Club failed to pay the second instalment, which was due on 15 May
2024, by 18 May 2024.
47. The Single Judge also observed that the Club did not dispute being in default of the
aforementioned instalment, nor the fact that the acceleration clause had effectively been
triggered. In this respect, the Club justified not having paid any amount to the Player as the
Parties had allegedly agreed to differ the payment until May 2025.
48. The Single Judge referred to art. 13 par. 5 of the Procedural Rules, and noted that the
Respondent did not submit any evidence on the alleged communications with the Player,
and thus determined that the Club did not meet his burden of proving the alleged
agreement between the Parties.
49. In other words, the Single Judge concluded that the Club did not provide any valid
justification for not having complied with its financial obligations, and consequently
decided to dismiss its argumentation in this respect.
50. In view of the foregoing, and considering that the acceleration clause provided in Clause 4
of the Termination Agreement was effectively triggered, which was not even disputed by
the Respondent, the Single Judge concluded that based on the legal principle of pacta sunt
servanda, the Club is held liable to pay to the Claimant the outstanding amounts deriving
from the Termination Agreement concluded between the Parties, namely, EUR 102,500 net.
pg. 9
REF. FPSD-15236
51. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% per annum on the outstanding amounts as from 19 May 2024, day
in which the acceleration clause was automatically triggered, until the date of effective
payment.
ii. Art. 12bis of the Regulations
52. 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.
53. 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.
54. Accordingly, the Single Judge confirmed that the Club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
55. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Club. On account of the above and bearing in
mind that this is the first offense by the Club within the last two years, the Single Judge
decided to impose a warning on the Club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
56. 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.
iii. Compliance with monetary decisions
57. 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.
58. 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
pg. 10
REF. FPSD-15236
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
59. 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.
60. 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.
61. 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
62. 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.
63. Likewise, and for the sake of completeness, 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.
64. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the Parties.
pg. 11
REF. FPSD-15236
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Sekou Gassama
Cissokho.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Anorthosis Famagusta, must pay to the Claimant the following amount(s):
EUR 102,500 net as outstanding amount plus 5% interest per annum as from 19 May 2024
until the date of effective payment.
4.
A warning is imposed on the Respondent.
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. 12
REF. FPSD-15236
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13