Labour Disputes
Texto da decisão
Decision of the
DRC Judge
passed in Zurich, Switzerland, on 12 June 2020,
regarding an employment-related dispute concerning the player Kevin Pierre LAFRANCE
BY:
Daan de Jong (The Netherlands), DRC Judge
CLAIMANT:
KEVIN PIERRE LAFRANCE, France
Represented by Mr. Sami Dinç
RESPONDENT:
AEL PODOSFERO DIMOSIA, Cyprus
Represented by Mr. Christoforos Florou
Tel: +41 43/222 7777 [email protected]
REF 20-00212
I. FACTS OF THE CASE
1.
On 16 July 2017, the French player, Kevin Pierra Lafrance (hereinafter: the player or the Claimant)
and the Cypriot club, AEL Podosfero Dimosia (hereinafter: the club or the Respondent) signed an
employment contract (hereinafter: the contract), valid as from 16 July 2017 until 31 May 2019,
i.e. seasons 2017/2018 and 2018/2019.
2.
Clauses 2.1 and 2.2 of the contract read as follows:
“2.1. The present Contract is regulated by the provisions of the Standard Employment Contract,
as these have been agreed between the Cyprus Football Association (CFA) and the Cyprus
Footballers' Union (PASP) and as these provisions have been codified in Annex 1 of the CFA
Registration and Transfer of Players Regulations.
2.2. The terms of the Standard Employment Contract constitute an integral part of the resent
Contract having full and direct implementation”.
3.
According to 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 tire applicable regulations of the CFA”.
4.
Additionally, on 17 July 2017, the club and the player executed an agreement titled “The
additional employment agreement” (hereinafter: the supplementary agreement), which inter alia
reads as follows (quoted verbatim):
“1. The Club and the Player acknowledge, agree and understand that the present agreement is
an additional agreement on the employment agreement between the two parties dated
16/07/2017.
2. The player will receive the following benefits from the Club for each Football Season 2017/2018
and 2018/2019
2.1 € 20000 (Twenty Thousand Euro) net, if the Club wins the Cyprus Championship or
2.2 € 10000 (Ten Thousand Euro) net, if the Club participates to Europe Competitions”.
5.
The Respondent qualified for the UEFA Europa League for the season 2019/2020 due to its
performance in the local league.
6.
On 2 July 2019, the Claimant sent a default letter to the Respondent requesting the payment of
EUR 19,000, corresponding to his “last salary and the bonus for the participation to Europe
Competitions”, granting the club a 14 days’ deadline to remedy the default.
7.
On 9 December 2019, the Claimant sent a second default notice to the Respondent, requesting
the payment of EUR 10,000 as the bonus established under clause 2.2 of the supplementary
agreement and giving 15 days for the club to comply with its obligations.
8.
On 13 January 2020, the player sent a third default notice to the club, requesting the payment of
the amount EUR 10,000 and grating a deadline of 10 days to remedy the default.
Page 2 of 9
REF 20-00212
9.
The player filed the claim at hand against the club before FIFA, and claimed that he had not
received the amount of EUR 10,000, corresponding to the bonus stipulated under clause 2.2. of
the supplementary agreement. In this context, the player pointed out that the Respondent
qualified for the Europa League for the season 2019/2020.
10. Furthermore, the player submitted that the club failed to meet its contractual obligations and to
respond to his default notices. As such, the player requested the club be ordered to pay him EUR
10,000 plus interest of 5% p.a. as from 31 May 2019 until the date of effective payment.
11. For its part, the Respondent firstly objected to the competence of FIFA and held, while referencing
the contents of the contract, that the dispute resolution chamber of the Cyprus Football
Association (hereinafter: CFA NDRC) is competent to hear the dispute.
12. As to the substance, the Respondent argued that the Claimant is charging the bonus for the
participation of the club in European competitions in the season 2019/2020, i.e. when the player
was no longer under contract with the Respondent. It further submitted that it did not play in any
European competition during the seasons 2017/2018 and 2018/2019. Accordingly, the
Respondent deems that the Claimant is not entitled to any bonuses.
13. In conclusion, the Respondent requested that the claim be deemed inadmissible or, alternatively,
fully rejected.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the DRC judge analysed whether he was competent to deal with the matter at hand.
In this respect, he took note that the present matter was submitted to FIFA on 3 February 2020.
Taking into account the wording of art. 21 of the June 2020 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 DRC judge 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 June 2020), the Dispute Resolution Chamber would, in principle,
be competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a French player and a Cypriot club.
3.
However, the DRC judge acknowledged that the Respondent contested the competence of FIFA’s
deciding bodies based on the alleged existence of a jurisdiction clause in favour of the CFA NDRC,
which supposedly respects the principles enshrined in FIFA Circular no. 1010.
4.
In this regard, the DRC judge noted that the Claimant is of the position that FIFA has jurisdiction
to deal with the present matter.
Page 3 of 9
REF 20-00212
5.
Taking into account the above, the DRC Judge stressed that in accordance with art. 22 lit. b) of
the June 2020 edition of the Regulations on the Status and Transfer of Players he is competent to
deal with a matter such as the one in 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 DRC judge referred to the FIFA Circular no.
1010 dated 20 December 2005.
6.
In this regard, the DRC judge further referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January
2008.
7.
Furthermore, the DRC judge directly recalled the first sentence of art. 22 of the Regulations on
the Status and Transfer of Players, which stipulates that FIFA’s competence is without prejudice
to the right of any player or club to seek redress before a civil court for employment-related
disputes.
8.
In this context, and while analysing whether he was competent to hear the present matter, the
DRC judge deemed it of utmost importance to recall the contents of art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
9.
Having said this, the DRC judge turned to the allegation of the club that the CFA NDRC complies
with the principles enshrined in FIFA Circular no. 1010 and the FIFA NDRC Standard Regulations.
In this respect, DRC judge observed that no evidence was brought forward by the club in support
of such allegation.
10. What is more, the DRC judge emphasized that, in line with the jurisprudence of the Dispute
Resolution Chamber, the CFA NDRC does not seem to observe the principle of equal
representation between players and clubs, in light of the fact that the regulations in place
regarding the such body grant the Cyprus Football Association influence on the selection process
of player members as opposed to club members.
11. In view of all the above, the DRC judge established that the Respondent’s objection towards the
competence of FIFA to deal with the present matter has to be rejected, and that he is competent,
on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider
the present matter as to the substance. Hence, the DRC judge decided that the Claimant’s claim
is admissible.
12. In continuation, the DRC 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
par. 2 of the Regulations on the Status and Transfer of Players (edition June 2020), and considering
Page 4 of 9
REF 20-00212
that the present claim was lodged on 3 February 2020, the January 2020 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.
13. The competence of the DRC judge and the applicable regulations having been established, the
DRC judge entered into the substance of the matter. In this respect, the DRC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
on file. However, the DRC judge emphasised that in the following considerations he will refer only
to the facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
14. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed the
contract and the supplementary agreement, the latter establishing a bonus of EUR 10,000 in
favour of the player “for each Football Season 2017/2018 and 2018/2019 (…) if the Club
participates to Europe Competitions” (sic).
15. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the
Respondent has overdue payables towards him in the total amount of EUR 10,000, corresponding
to the aforementioned bonus.
16. Subsequently, the DRC judge took into account that the Respondent, for its part, held that the
player was claiming a bonus for the participation of the club in European competitions in the
season 2019/2020, when the player was no longer under contract with the Respondent. The DRC
judge also acknowledge that the club further submitted that it did not play in any European
competition during the seasons 2017/2018 and 2018/2019, and that hence the player is not
entitled to any bonuses.
17. Lastly, the DRC judge observed that the parties do not dispute that the club did qualify to play in
the UEFA Europa League in the season 2019/2020 due to its performance in the season
2018/2019.
18. In this regard, the DRC judge considered thus that the center of the dispute is whether the bonus
established under clauses 2 and 2.2 of the supplementary agreement related, on one hand, to the
qualification of the club to play in an European competition in the season 2019/2020, as argued
by the Claimant; or, on the other hand, if it regards the participation of the club in an European
competition in the seasons 2017/2018 and 2018/2019, as argued by the Respondent.
19. The DRC judge then turned his attention to the contents of clauses 2 and 2.2 of the supplementary
agreement, and observed that such clauses neither have a clear wording, nor are grammatically
correct. As such, the DRC judge decided that it would be necessary to interpret such clauses and
seek the true intention of the parties upon its drafting and conclusion.
20. By interpreting the true intention of the parties as well as the common practice of the world of
football, the DRC judge recalled the principle behind payment of bonuses, especially pre-defined
and contractually agreed ones. As such, he observed that these are put in place by the parties on
Page 5 of 9
REF 20-00212
the basis that a club, with the help of a player’s performance, may reach a pre-defined goal,
entitling such player to be remunerated for achieving such goal.
21. Additionally, the DRC judge reverted to the position of the club, and concluded that if the
interpretation given by the Respondent is followed, it would only be possible for the player to
enjoy a bonus if the club qualified for European competitions during the first contractual year
(season 2017/2018). Hence, the DRC judge concluded that this interpretation contradicts the
caput of the relevant clause, i.e. clause 2, which states “the player will receive the following
benefits from the club for each football season 2017/2018 and 2018/2019” (emphasis added by
the DRC judge).
22. Lastly, the DRC judge recalled the principle of contra proferentem, and concluded that since the
club drafted of both the contract and the supplementary agreement, they should be interpreted
in disfavour of the club.
23. In light of the foregoing, the DRC judge concluded that clauses 2 and 2.2 of the supplementary
agreement means that a bonus would be due to the player if the club qualified for European
competitions. Consequently, the DRC judge concluded that the true meaning of the clauses in
question is the one submitted by the player, and that he is hence entitled to the claimed bonus,
and therefore decided to uphold the arguments of the player and to reject the argumentation put
forward by the Respondent in its defence
24. On account of the aforementioned considerations, and since it stands undisputed that the club
qualified to play in the UEFA Europa League in the season 2019/2020, the DRC judge established
that the Respondent failed to remit to the player his bonus in the total amount of EUR 10,000.
25. Therefore, the DRC judge decided that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent is liable to pay to the Claimant the total amount of EUR 10,000.
26. In addition, taking into account the Claimant’s request as well as the constant practice of the
Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the relevant payment as of the day on which the relevant payment
fell due, i.e. 31 May 2020, until the date of effective payment.
27. What is more, taking into account the consideration under number II./12. above, the DRC judge
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 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 DRC judge 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.
Page 6 of 9
REF 20-00212
29. Therefore, bearing in mind the above, the DRC judge 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 DRC 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. 24bis par. 3
of the Regulations.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, KEVIN PIERRE LAFRANCE, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, AEL PODOSFERO DIMOSIA, has to pay to the Claimant the amount of EUR
10,000, plus interest at the rate of 5% p.a. on said amount as from 31 May 2019 until the date
of effective payment
4.
The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email 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 point III./3. above.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with point
III./3. above to FIFA to the e-mail address [email protected], duly translated into one of the official
FIFA languages (English, French, German, Spanish).
6.
In the event that the amount plus interest due in accordance with point III./3. above is not paid by
the Respondent within 45 days 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 amount is 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).
Page 7 of 9
REF 20-00212
7.
The ban mentioned in point III./6. above will be lifted immediately and prior to its complete serving,
once the due amounts are paid.
8.
In the event that the aforementioned sum plus interest 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.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8 of 9
REF 20-00212
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 9 of 9