DRC Overdue Payables
Texto da decisão
REF FPSD-3525
Decision of the
Dispute Resolution Chamber
passed on 10 December 2021
regarding an employment-related dispute concerning the player Kevin Pierre
Lafrance
BY:
Roy Vermeer (Netherlands)
CLAIMANT:
Kevin Pierre Lafrance, France
Represented by Mr Sami Dinç
RESPONDENT:
Apoel Nicosia, Cyprus
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REF FPSD-3525
I.
Facts of the case
1.
On 20 June 2019, the French player Kevin Pierre Lafrance (hereinafter: the player or Claimant)
and the Cypriot club Apoel Nicosia (hereinafter: the club or Respondent) parties signed an
employment contract valid from the date of signing until 31 May 2021.
2.
Article 1.3 of the contract provided that the Claimant was entitled to the following payments:
- EUR 11,300 (10,000 net) monthly from 31 July 2019 until 31 May 2020 (11 salaries);
- EUR 11,300 (10,000 net) monthly from 31 July 2020 until 31 May 2021 (11 salaries).
3.
The contract further states that: “All taxes payable to the tax department, as per the
applicable legislation, shall be paid by the club”.
4.
Article 13 of the contract further states that “Any employment dispute between the club and
the player shall fall under the exclusive jurisdiction of the NDRC of the CFA and shall be
resolved according to the applicable regulations of the CFA.”
5.
On 10 January 2021, the parties signed a mutual termination agreement according to which
the Respondent agreed to pay the Claimant EUR 70,000 payable as follows:
- EUR 10,000 on 31 January 2021;
- EUR 10,000 on 28 February 2021;
- EUR 10,000 on 31 March 2021;
- EUR 10,000 on 30 April 2021;
- EUR 10,000 on 31 May 2021;
- EUR 10,000 on 30 June 2021;
- EUR 10,000 on 31 July 2021.
6.
Article 3 of the termination agreement states that “For all payments mentioned above there
shall also be a grace period of 10 days. Should the Club fail to fully and timely settle any
instalment, it shall also have to pay a penalty of 10% p.a. on the instalment’s due amount”.
7.
Article 9 of the termination agreement states that “the present agreement is regulated by
the Cyprus Football association (CFA) laws and rules, and the Club undertakes to deposit a
copy in CFA. Any and all disputes arising from, or related to, the present agreement will be
submitted exclusively to CFA or FIFA dispute resolution bodies and resolved definitively in
accordance with CFA or FIFA Regulations”.
8.
On 17 August 2021, the Claimant sent a default notice to the Respondent requesting
payment of EUR 50,000, corresponding to the 3rd to the 7th instalment and the penalty
payments in accordance with the termination agreement, granting it 15 days to comply with
its financial obligations, however to no avail.
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9.
On 2 September 2021, the Claimant lodged a claim against the Respondent at FIFA.
II. Proceedings before FIFA
10. On 2 September 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
11. In support of his claim, the Claimant submits that upon the conclusion of the termination
agreement, the Respondent did not pay a single instalment until 13 April 2021 when the
Respondent made a payment in the amount of EUR 20,000 corresponding to the 1st and 2nd
instalments.
12. According to the Claimant, despite his default notice to the Respondent dated 17 August
2021, the Claimant did not comply with its contractual obligations.
13. As a result of the above, the Claimant requests that the Respondent be ordered to pay the
outstanding amounts of EUR 50,000 plus the penalty of 10% interest p.a. in accordance with
the termination agreement.
14. The requests for relief of the Claimant were the following:
- EUR 50,000 as outstanding amounts for the 3rd until the 7th instalment, in accordance
with the transfer agreement, plus 10% interest p.a. as of the respective due dates until
the effective date of payment;
- 10% interest p.a. on the amounts of EUR 10,000 each for the 1st and 2nd instalment as
from the due dates until 13 April 2021;
b. Position of the Respondent
22.
The Respondent, in its reply, contested FIFA’s competence to hear the claim and submitted
that it rejects all allegations as submitted by the Respondent.
23.
First of all, the Respondent contests FIFA’s competence to hear the current claim and
submits that the jurisprudence to which the Claimant refers to in his claim was issued before
the amendment of the Cyprus Football Association (CFA)’s RSTP. In this respect, according
to the Respondent, the CFA NDRC is fully impartial and independent, satisfying article 22
(b) of the FIFA RSTP.
24.
The Respondent adds that there is a clear arbitration clause (article 13) in the employment
contract that leaves no room for confusion or discussion.
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25.
The Respondent also submits that in regards to the current composition of the CFA NDRC,
the regulations concerning the composition of the NDRC and its Appeal Body are the result
of an agreement between the CFA and the Cyprus Footballers’ Union (PASP) and that said
regulations are in full compliance with Circular 1010.
26.
With the above in mind, the Respondent submits that the CFA NDRC duly respects the
principle of parity and equal representation, is independent and impartial.
27.
Nonetheless, the Respondent confirmed that it did not pay the instalments stipulated in the
claim and added that it is not happy with this default but that it was as a result of the
financial consequences of COVID-19 pandemic.
28.
The Respondent further noted that it is aware that this is not an excuse for not complying
with its financial obligations and that it would settle the due instalments as soon as possible.
29.
The Respondent submitted that it is disappointed that the Claimant filed a claim against it
despite its oral communication with him explaining the financial difficulties and that he
agreed to give it more time to comply.
30.
In conclusion, the Respondent requested that the claim of the Claimant be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, it took note that the present matter was presented to FIFA on 2 September 2021 and
submitted for decision on 10 December 2021. Taking into account the wording of art. 34 of
the October 2021 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.
32. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (August 2021 edition), the Single
Judge is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a French player and a
Cypriot club.
33. However, the Single Judge acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of art. 13 of the contract, which would give the
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competence to decide on the matter at hand to the National Dispute Resolution Chamber of
the CFA (hereinafter: Cypriot NDRC).
34. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, he 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 Single Judge referred to
the FIFA Circular no. 1010 dated 20 December 2005. Equally, the Single Judge referred to
the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
35. Moreover, the Single Judge noted that the matter at hand is however not based on the
contract signed between the parties, but rather on the settlement agreement later concluded
between the parties, which settlement agreement holds the following clause:
‘The present agreement is regulated by the Cyprus Football Association (CFA) laws and rules
and the club undertakes to deposit a copy in CFA. Any and all disputes arising from, or related
to, the present agreement will be submitted exclusively to CFA or FIFA dispute resolution
bodies and resolved definitively in accordance with CFA or FIFA regulations‘.
36. In view of the aforementioned clause, the Single Judge was of the opinion that article 9 of
the settlement agreement does not make clear reference to one specific national dispute
resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations, and even
provides for the possibility of lodging a contractual dispute in front of FIFA. Therefore, the
Single Judge deemed that said clause can by no means be considered as a clear arbitration
clause in favour either of the national deciding bodies, i.e. of the Cypriot NDRC, and,
therefore, cannot be applicable.
37. Having established that the first criterion for the recognition of the competence of a national
decision-making body is not fulfilled in the present matter, the Single Judge deemed
unnecessary to examine any further points which would need to be assessed before
concluding to the competence of a national deciding body.
38. Based on the foregoing circumstances, the Single Judge concluded that he is competent to
deal with the matter at hand and that thus, the claim of the Claimant is admissible.
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 on the Status and Transfer of Players (August 2021 edition) and
considering that the present claim was lodged on 2 September 2021, the August 2021 edition
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of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
40. 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 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).
c. Merits of the dispute
41. Its competence and the applicable regulations having been established, 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 it will refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
42. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the Respondent did not explicitly deny the amounts
that were claimed to be outstanding by the Claimant, however referred to the financial
difficulties it was in as a result of the outbreak of the COVID-19 pandemic.
43. In this context, the Single Judge acknowledged that his task was to determine based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
44. The Single Judge first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties.
45. Nonetheless, the Single Judge noted that the Respondent did not contest that the amounts
claimed as outstanding by the Claimant were not paid. Furthermore, no reasonable
justification was presented by the Respondent for not having complied with the terms of the
contract. In particular, the alleged financial difficulties the Respondent was allegedly in as a
result of the outbreak of the COVID-19 pandemic, cannot be considered as a valid reason to
not comply with its financial obligations as per the settlement agreement.
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46. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties.
ii. Consequences
47. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the settlement agreement committed by the
Respondent.
48. The Single Judge observed that the financial obligations deemed as outstanding in the present
case correspond to instalments of EUR 10,000 each, due in the period between 31 March
2021 and 31 July 2021, i.e. the total amount of EUR 50,000.
49. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the settlement agreement, in total EUR 50,000, as detailed
above.
50. In addition, taking into consideration the Claimant’s request as well as the contents of the
settlement agreement, in particular its article 3, the Single Judge decided to award the
Claimant interest at the rate of 10% p.a. on the outstanding amounts as from the respective
due dates until the date of effective payment.
51. Additionally, considering that also the first two instalments of EUR 10,000 each, due on
respectively 31 January and 28 February 2021, were paid late by the Respondent, the Single
Judge further decided to award 10% interest p.a. on the amount of EUR 10,000 as of 11
February 2021 until 13 April 2021 and 10% interest p.a. on the amount of EUR 10,000 as of
11 March 2021 until 13 April 2021.
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. The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations., he has
competence to impose sanctions on the Respondent. Therefore, and in the absence of the
circumstance of repeated offence, the Single Judge decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
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54. In this connection, the Single Judge wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to more severe penalty in accordance
with art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
55. 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 his 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.
56. 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 overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
57. 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.
58. 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.
59. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
60. 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.
61. 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.
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62. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kevin Pierre Lafrance, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Apoel Nicosia, has to pay to the Claimant, the following amount:
- EUR 50,000 as outstanding remuneration plus 10% interest p.a. until the date of effective
payment as follows:
• on the amount of EUR 10,000 as from 11 April 2021;
• on the amount of EUR 10,000 as from 11 May 2021;
• on the amount of EUR 10,000 as from 11 June 2021;
• on the amount of EUR 10,000 as from 11 July 2021;
• on the amount of EUR 10,000 as from 11 August 2021.
- 10% interest p.a. on the amount of EUR 10,000 in the period between 11 February 2021
and 13 April 2021;
- 10% interest p.a. on the amount of EUR 10,000 in the period between 11 March 2021
and 13 April 2021.
4.
Any further claims of the Claimant are rejected.
5.
A warning is imposed on the Respondent.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
7.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
8. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
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9. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
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