Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 January 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay ), member
Daan de Jong (the Netherlands ), member
on the claim presented by the player,
Nuno Henrique Gonçalv es Nogueira, Portugal
represented by Mr José Duarte Reis
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 Portuguese player Nuno Henrique Gonçalves Nogueira
(hereinafter; the Player or the Claimant) and the Cypriot club, Pafos FC
(hereinafter; the Club or the Respondent) signed an employment contract, valid
as from 15 July 2018 until 31 May 2020 (hereinafter; the contract).
2.
According to Art 1.3 of the contract, the Player was entitled to the following
remuneration:
1.3.1; “From 15/07/2018 until 31/12/2018 the monthly gross salary of EUR
11,658.48 (EUR 10,000.00 net) in six monthly instalments with the first for
the gross amount of EUR 6658.48 (EUR 5000 net) payable on 20th of
August 2018 and the other five for the gross amount of 11658.48 (EUR
10000 net) each payable on the 20 day of each next month, starting on
the 20/09/2018 and the last payment will be payable on the 20/01/2019”.
1.3.2; “From 01/01/2019 until 31/05/2019 the monthly gross salary of EUR
11,712.02 (EUR 10,000.00 net) in Five equal monthly instalments payable
on the 20th day of each next month, starting on the 20/02/2019 and the
last payment will be payable on the 20/06/2019”.
1.3.3; “From 01/06/2019 until 31/12/2019 the monthly gross salary of EUR
11,712.02 (EUR 10,000.00 net) in Seven equal monthly instalments payable
on the 20 day of each next month, starting on the 20/07/2019 and the last
payment will be payable on the 20/01/2020”.
1.3.4; “From 01/01/2020 until 31/05/2020 the monthly gross salary of EUR
11,958.48 (EUR 10,000.00 net) in Five equal monthly instalments payable
on the 20th day of each next month, starting on the 20/02/2020 and the
last payment will be payable on the 20/06/2020”.
“All taxes payable to the Tax Department, as per the applicable
legislation, shall be paid by the Club”.
3.
According to Art 2.1 of the contract, “The present contract is regulated by the
provision of the Standard Employment Contract, as these have been agreed
between the Cyprus Football Association (CFA) and the Cyprus Footballer’s
Union (PASP) and as these provisions have been codified in Annex 1 of the CFA
Registration and Transfer of Players Regulations”.
4.
According to Art 2.2 of the contract, “The terms of the Standard Employment
Contract constitute an integral part of the present contract having full and
direct implementation and it has been attached as Appendix A on the present
agreement initialled by the parties and by consent made an inseparable part
hereof”.
5.
According to Art. 13 of Appendix A of the contract entitled “Standard
Employment Contract”:
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 2 of 12
“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 application regulations of the CFA”.
6.
On the same date i.e. 20 July 2018, the Player and the Club signed a
supplementary agreement to the contract (hereinafter: the supplementary
agreement), concerning “the extra benefits and/or bonuses of the Employee”.
In accordance, with the supplementary agreement, the Player was entitled to
different bonuses and benefits, inter alia, “an additional amount of EUR 800
per month for the rent of an apartment”.
7.
According to Art 5 of the supplementary agreement, “This Agreement will be
governed by the laws of the Republic of Cyprus and FIFA Regulations or/ and
C.F.A Regulations and the FIFA bodies will be competence to hear any dispute
between the parties in respect to the current agreement”.
8.
On 10 September 2018, the Club unilaterally terminated the contract in writing.
9.
In accordance with the termination notice of 10 September 2018 on file, the
Club held that “due to the unprofessional behaviour” of the Player and “despite
our efforts”, the Player “could not be registered at the Club”. Moreover, it
stated, inter alia, the following:
10.
“as a result of his nonregistration, we have been forced to register
another football player to our team. during the last hours of the
transfers, firstly without be trained with the football team and
secondly, without passing any medical examination.
is unfortunate to state we have to state that as the Agent of the
Football Player. you have acted with this unprofessional way and
despite the fact that you and the football player have been notified.
you omitted to deposit the necessary documents that you have been
asked. in order for our team to be able to register the aforesaid
football player to the team's force.
For all the above reasons and events. our Football Club does not have
any other option but to terminate the employment agreement with
your client. i.e. the Football Player. because of your negligence and
also to reserve the Football Club's legal rights to claim compensation.
not only from you but also from the Football Player.”
On 18 October 2018, the Player sent to the Club, by email and fax, a notification
for the payment of amounts in debt that according to the Player correspond to
EUR 262,287.52. The Player gave the Club 15 days to cure its alleged default.
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 3 of 12
11.
On 29 January 2019, the Player lodged a claim in front of FIFA against the Club,
and requested the latter be order to pay him EUR 264,287.52, broken down as
follows:
a) EUR 17,316.96 in outstanding remuneration for salary owed at the date of
termination due on “20 August 2018 and 20 September 2018”;
b) EUR 246,970.56 in compensation corresponding to amounts due from
October 2018 until 31 May 2020.
c) Interest of 5% “from the date when the first salary was due until full
payment”.
12.
The Player claims that the Club did not pay him any of the salaries stipulated in
the contract, and that because he was “ordered to leave the house he was
living” he was “obliged to return to his country”.
13.
According to the Player, the Club terminated the contract without just cause since
it did not have a valid reason not to register the contract with the Cyprus Football
Association. In this regard, the Player argued that the contract had been signed on
20 July 2018, “long before the end of the registration period”, and that his
intermediary provided the Club with all the documents necessary to register the
Player.
14.
Furthermore, the Player states that he was forbidden to train and was ordered to
leave the Club and the house where he was living in.
15.
The Club, for its part, contested the competence of FIFA to deal with the present
matter since the contract “contained a clear and exclusive arbitration clause in
favour of the judicial bodies of Cyprus Football Association” i.e. the National
Dispute Resolution Chamber of the CFA (hereinafter; the Cypriot NDRC) while
referring to Art. 13 of Appendix A of the contract.
16.
According to the Club, the terms of the Standard Employment Contract had been
attached as an appendix to the contract and had been initialled by the parties, so
that “both parties had fully accepted the said terms at the time of the signature of
the employment agreement”.
17.
Along these lines, the Club enclosed a copy of a document entitled “Regulations
for the Registration and Transfer of Football Players and the DRC Procedural
Regulations 2013” (hereinafter; the NDRC Regulations) and held that it is “clear
that the NDRC of CFA is an independent judicial body protecting the legitimacy
interest of each party”.
18.
In support of its argumentation, the Club held the following:
In regards to equal representation, the Club argues that the Cypriot NDRC
duly respects that principles of parity and equal representation;
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 4 of 12
In regards to the independence and impartiality of the tribunal, according to
the Club, the procedural regulations of the Cypriot NDRC and its appeal body
are “almost a word per word translations into Greek of the FIFA DRC
procedural regulations”;
According to the Club, the principle of a fair hearing is respected, the parties
may appoint a licensed lawyer of their choice, and the decision of the NDRC
Appeal Body can be challenged before the Court of Arbitration for Sport
(TAS-CAS).
19.
As to the substance, the Club rejected the claim of the Player and held that it
terminated the contract with just cause on 20 September 2018.
20.
According to the Club, it was the obligation of the Player and his agent to provide
the Club with all the necessary documents in order to register the Player with the
Cyprus FA.
21.
The Club claimed that, in accordance with Art 3.3 of the FIFA Regulations on
Working with Intermediaries, the Club required the Player to provide it with his
“intermediary’s declaration and/or representation agreement in order to file it into
the Cyprus Association”. The Club alleges that the Player “never responded” to the
“repeated” invitations of the Club.
22.
According to the Club, it was not able to register the Player with the Cyprus FA due
to the “non-provision” of the documents and that the “actions of the Claimant’s
agent are connected with the Claimant since the obligation for the provision of
these documents was on the Claimant’s shoulders”.
23.
Consequently, the Club argued that the contact was terminated with just cause as
according to the Club the Player “breached essential terms of the employment
agreement and also of the regulations”.
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 29
January 2019. 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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 5 of 12
Players (edition January 2020) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the DRC would, in principle, be competent to decide on a
litigation which involves a Portuguese player and a Cypriot club regarding an
employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of Art. 13 of Appendix A of the
contract.
5.
On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on the claim lodged by him against the
Respondent.
6.
Taking into account all the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the January 2020 edition 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 the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
members of 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.
7.
In this respect, the DRC turned its attention to the 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
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 6 of 12
a predetermined list, every interest group that is represented must be able to
exercise equal influence over the compilation of the arbitrator list”.
8.
On account of the above, the Chamber went on to examine the documentation
presented by the Respondent. From the NDRC Regulations submitted by the Club,
as well as the argumentation submitted by the parties, it follows that the
appointment of the members chosen by the players’ association must be approved
by the Cyprus Football Association (article 22.4.4), whereas such condition does not
apply to the appointment of club members. Moreover, article 22.4.5 of the NDRC
Regulations also appears to grant the Cyprus Football Association influence on the
selection process of player members as opposed to club members.
9.
Based on the foregoing circumstances, the Chamber concluded that the Cypriot
NDRC does not fully respect the principle of equal representation and hence cannot
be considered an independent arbitration tribunal guaranteeing fair proceedings.
Therefore, the Chamber concluded it is competent to deal with the matter at hand
and that the claim of the Player is admissible.
10.
Subsequently, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In
this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the
Regulations on the Status and Transfer of Players (edition January 2020), and
considering that the present claim was lodged on 29 January 2019, the June 2018
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. In doing so, the
members of the Chamber started by acknowledging that the parties to the dispute
had signed the contract on 20 July 2018 in accordance with which the Respondent
would pay the Claimant a monthly salary of EUR 10,000 net.
12.
In continuation, the Chamber noted that the Claimant lodged a claim against the
Respondent maintaining that the Respondent had breached the contract by
terminating it without just cause and by failing to remit his salaries.
13.
Thereafter, the members of the Chamber took note of the reply of the Respondent,
who alleged that the termination of the contract by its initiative was made with
just cause as the Claimant allegedly failed to provide the Club with certain
documents necessary for his registration with the Cyprus Football Association.
14.
In this context, the Chamber considered relevant to recall its jurisprudence in
accordance with which the validity of an employment contract cannot be made
conditional upon the execution of (administrative) formalities, such as, but not
limited to, the registration procedure in connection with the international transfer
of a player, which is the sole responsibility of a club and on which a player has no
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 7 of 12
influence. As regards the matter at stake, the Respondent acknowledged that it did
not proceed to the registration of the contract and asserted that the Claimant did
not provide him with documentation to this extent. In this regard, the Chamber
emphasized that, in accordance with art. 2 par. 1 of Annexe 3 of the Regulations,
an application to register a professional shall be accompanied by a copy of the
contract between the new club and the professional. For these reasons and whilst
emphasizing once more that it is the responsibility of the club to register a player’s
contract with its national association, the members of the Chamber decided to
reject the Respondent’s arguments in this regard.
15.
On account of the above, in particular, by not carrying out the relevant steps for
the registration procedure of the contract although this being the responsibility of
the Respondent, the Chamber established that the Respondent had refused to
accept the Claimant’s services without any valid reason. Such conduct constitutes,
in the Chamber’s view, a clear breach of contract without just cause. Accordingly,
the Chamber concurred that the Respondent is to be held liable for the early
termination of the employment contact without just cause.
16.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber focussed
its attention on the consequences of such termination. Taking into consideration
art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled
to receive an amount of money from the Respondent as compensation for the
termination of the contract with just cause in addition to any outstanding payments
on the basis of the relevant employment contract.
17.
Consequently, on account of the above and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent is liable
to pay to the Claimant the amount of EUR 5,000 in connection with the
remuneration due to the Claimant in accordance with the contract until its early
termination.
18.
In addition, taking into consideration the Claimant’s claim, the Chamber decided
to award the Claimant interest at the rate of 5% p.a. as of the day following the
day on which such payment of EUR 5,000 fell due in accordance with the pertinent
contract, i.e. 21 August 2018.
19.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the specificity
of sport and further objective criteria, including, in particular, the remuneration
and other benefits due to the Claimant under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 8 of 12
years, and depending on whether the contractual breach falls within the protected
period.
20.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in the event of breach of contract.
In this regard, the Chamber established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
21.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled, in particular, the contents of lit. i) of the aforementioned article,
according to which, as a general rule, in case the player did not sign any new
contract following the termination of his previous contract, the compensation shall
be equal to the residual value of the contract that was prematurely terminated.
22.
The members of the Chamber then turned their attention to the fact that the Player
did not sign any new contracts for the relevant period and, accordingly, the DRC
proceeded to examine the remuneration and other benefits due to the Claimant
under the existing contract.
23.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the contract as from its date of
termination without just cause by the Respondent, i.e. 10 September 2018, until 31
May 2020, and concluded that the Claimant would have received in total EUR
225,000 as remuneration had the contract been executed until its expiry date.
24.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant’s claim and that the Respondent must pay the amount of EUR 225,000 as
compensation for breach of contract in the case at hand.
25.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount
of compensation as of the date of the claim, i.e. 29 January 2019 until the date of
effective payment.
26.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
27.
Furthermore, taking into account the consideration under points II./18 and II./24.
above, the Chamber 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
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 9 of 12
the consequences deriving from the failure of the concerned party to pay the
relevant amounts of outstanding remuneration and/or compensation in due time.
28.
In this regard, the Chamber 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.
29.
Therefore, bearing in mind the above, the DRC 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.
30.
Finally, the Chamber 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.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Nuno Henrique Gonçalves Nogueira, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Pafos FC, has to pay to the Claimant outstanding remuneration in
the amount of EUR 5,000, plus interest at the rate of 5% p.a. on said amount as
from 21 August 2018 until the date of effective payment.
4.
Furthermore, the Respondent has to pay the Claimant compensation for breach of
contract in the amount of EUR 225,000, plus interest at the rate of 5% p.a. on said
amount as from 29 January 2019 until the date of effective payment.
5.
Any further claim of the Claimant is rejected.
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 10 of 12
6.
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
amount mentioned under points III./2. & III./3. above.
7.
The Respondent shall provide evidence of payment of the due amount in
accordance with points III./2. & III./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).
8.
In the event that the amount due in accordance with points III./2. & III./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 amounts are 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).
9.
The ban mentioned in point III./8. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
10.
In the event that the aforementioned sum is 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 relating to the m otiv ated decis ion (legal remedy):
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,
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 11 of 12
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Nuno Henrique Gonçalves Nogueira, Portugal / Club Pafos FC, Cyprus
Page 12 of 12