Dispute Resolution Chamber
Texto da decisão
REF FPSD-642
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021
regarding an employment-related dispute concerning the player Edward Mashinya
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Philippe Diallo (France), member
CLAIMANT:
Edward Mashinya, Zimbabwe
Represented by Loizos Hadjidemetriou
RESPONDENT:
PAEEK Kerinias FC, Cyprus
Represented by George Christofides
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REF FPSD-642
I.
FACTS OF THE CASE
1.
On 18 July 2019, the Zimbabwean player, Edward Mashinya (hereinafter: Claimant), and
the Cypriot club, PAEEK Kerinias FC (hereinafter: Respondent) signed an employment
contract valid as from 1 August 2019 until 3 May 2020.
2.
In accordance with clause 1.3.1 of the employment contract, the Respondent undertook to
pay to the Claimant, inter alia, a fixed monthly salary of EUR 1,200.
3.
Moreover, clause 1.4 of the employment contract provided for the automatic extension of
the agreement’s duration until 31 May 2021 in case the Respondent’s team had managed
to get promoted to the Cyprus Football Association (CFA) Second Division for the season
2020-21 and the Claimant had contextually participated in the team’s regular line-up for at
least 15 games during the season 2019-20.
4.
Additionally, under clause 1.3.2., the employment contract foresaw that in case of
fulfilment of the above conditions, the Claimant would have been entitled to a bonus of
EUR 1,200.
5.
Pursuant to clause 1.6.1, in case the contract had been extended to season 2020/2021, the
Claimant’ salary would have been increased to EUR 1,400 net per month from August 2020
until and including May 2021, i.e. 10 salaries, for a total of EUR 14,000 net.
6.
Furthermore, clause 13 of the employment contract reads as follows:
“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.”
7.
On 13 March 2020, the Cypriot government suspended all sports - related activities due to
the Covid-19 outbreak.
8.
At the end of the 2019-20 season, despite the fact that it was prematurely terminated due
to the COVID-19 pandemic, the Respondent had succeeded at being sportingly promoted
to the CFA Second Division.
9.
Contextually, during said season, the Claimant had also been fielded for 17 matches within
the Respondent’s team regular line-up.
10.
By correspondence dated 27 June 2020, the Claimant put the Respondent in default of
payment of EUR 6,000 as outstanding remuneration, setting a time limit expiring on 27 July
2020 in order to remedy the default.
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11.
On 29 June 2020, the Respondent replied, alleging that the Claimant’s employment was
interrupted on 12 March 2020 due to the COVID-19 pandemic and the club was therefore
not obliged to pay any remuneration since the suspension.
12.
On 20 July 2020, the Respondent contacted the Claimant again, alleging that the latter had
never contacted the club in order to receive the outstanding salary for the season 2019-20.
13.
Contextually, the Respondent informed the Claimant to be no longer interested in the
player’s services, as he was not in the plans of the coach for the coming season and that
the latter should have searched for a new club.
14.
On the same date, the Claimant replied to the Respondent, informing the latter that he was
never called to receive any due salaries.
15.
Moreover, the Claimant informed the Respondent to have no intention to sign with any
other club and to be willing to duly honour the employment contract which had been
automatically extended until 31 May 2021 due to the club’s promotion to CFA Second
Division. In the same communication, the Claimant also complained to have not been called
to attend the trainings of the new season, which were to begin on the next day, i.e. 21 July
2020.
16.
On 28 July 2020, the Claimant notified the Respondent of the unilateral termination of the
employment contract.
17.
On date, the Claimant and the Cypriot club, Meap Pera Choriou Nissou (hereinafter:
Nissou) signed an employment contract valid as from 11 August 2020 until 31 May 2021,
with a fixed monthly salary of EUR 178.
II.
PROCEEDINGS BEFORE FIFA
18.
On 12 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
19.
According to the Claimant, the Respondent openly acted in bad faith, first by neglecting
for many months the player’s entitlements, namely accruing a consistent amount due as
outstanding remuneration, and secondly by informing the same player to have been
excluded from the club’s plan only after several attempts by the Claimant to receive his due
monies.
20.
For the above reasons, the Claimant is of the opinion of having just cause to unilaterally
terminate the employment contract with the Respondent.
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21.
In this context, however, the Claimant acknowledged that, following the Covid-19
outbreak, he has received a financial benefit from the Cypriot government amounting to
EUR 664.60 and requested that said amount shall be deducted from the overall amounts
claimed.
22.
Accordingly, the requests for relief of the Claimant, were the following:
EUR 5,335 as outstanding bonus for the club’s promotion and remuneration for
the months of February, March, April and May 2020, net of the aforementioned
governmental benefit.
EUR 12,200 as compensation for breach of contract by the Respondent, which
amount has been already mitigated taking into account the subsequent player’s
new employment contract signed with Nissou.
EUR 1,780 as additional compensation, the termination having occurred because
of overdue payables
b.
Position of the Respondent
23.
In its reply to the claim, the Respondent primarily objected FIFA’s competenceover the
matter, as according to the Respondent this would be expressly excluded by article 13 of
the employment contract, freely agreed by the Parties.
24.
In the Respondent’s opinion, the above-mentioned article would attribute exclusive
competence over the present dispute to the domestic Cypriot judicial body, namely the
Cypriot Dispute Resolution Chamber.
25.
In any case, according to the Respondent, the current case would constitute an episode of
force majeure, hence it shall be decided by the FIFA Council.
26.
In a subsidiary way, and with regard to the claimed outstanding remuneration, the
Respondent argued to have registered its employees for the governmental scheme of
subsidies.
27.
Accordingly, the Respondent alleged that the Claimant received three cheques from the
government in relation to the months of March, April and May 2020, hence no further
amounts shall be paid to the player as per what foreseen by the abovementioned scheme.
28.
Therefore, the request for relief of the Respondent, was to reject the claim in its entirety.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
29.
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 presented to FIFA on 12 January 2021 and submitted
for decision on 17 June 2021. Taking into account the wording of art. 21 of the January
2021 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.
30.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Zimbabwean player and a Cypriot club.
31.
Notwithstanding the above, the Chamber acknowledged that the Respondent, in view of
clause 13 of the employment contract, contested the competence of FIFA’s deciding bodies
as, according to the Respondent, the present matter shall be adjudicated by the Cypriot
Dispute Resolution Chamber.
32.
With the aforementioned considerations in mind, and prior to entering into the analysis of
its competence, the Chamber wished to recall that in accordance with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, without prejudice to the right of any
player or club to seek redress before a civil court for employment-related disputes, 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. Any such arbitration clause must be
included either directly in the contract or in a collective bargaining agreement applicable on
the parties.
33.
With regard to the standards to be imposed on an independent arbitration tribunal existing
at national level, the DRC referred to the FIFA Circular no. 1010 dated 20 December 2005.
Equally, the members of the DRC referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
34.
In this regard, the Chamber observed that although the employment contract expressly
reserves the competence of the Cypriot Dispute Resolution Chamber on any dispute
potentially arising from the interpretation of said contract, nevertheless the Respondent
failed to provide any evidence which would allow to establish with reasonable confidence
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that the abovementioned NDRC meets the requirements requested from FIFA Regulations
and FIFA Circular n.1010, therefore it shall be presumed the opposite conclusion.
35.
Furthermore, the Chamber noted that according to the Respondent, the current case would
constitute an episode of force majeure, hence, pursuant to article 27 of the FIFA RSTP,
should the primary objection to the FIFA DRC jurisdiction be rejected, only the FIFA Council
shall eventually be competent to adjudicate on the present matter.
36.
In the Chamber’s view, the second argument presented by the Respondent cannot be
upheld.
37.
In this context, the Chamber recalled that in the FIFA Covid-19 Regulatory Issues dated 6
April 2020, the FIFA Bureau made several decisions regarding regulatory and legal issues as
a result of COVID-19. In order to temporarily amend the RSTP, the Bureau relied upon article
27 of the FIFA RSTP as its source of power, determining that the COVID-19 outbreak was a
matter not provided for and a force majeure situation for FIFA and football generally.
38.
However, the Chamber remarked that the Bureau did not determine that the COVID-19
outbreak was a force majeure situation in any specific country or territory, or that any
specific employment or transfer agreement was impacted by the concept of force majeure.
39.
In particular, and for the sake of clarity, the Chamber wishes to draw the Parties’ attention
to the fact that clubs or employees cannot rely on the Bureau’s decision to assert a force
majeure situation. On the contrary, such evaluation shall be conducted by the FIFA judicial
bodies on a case-by-case basis
40.
In conclusion, according to the Chamber, the aforementioned article 27 of FIFA RSTP does
not entitle the FIFA Council to deal with specific cases such as the current one, hence, in
casu, said article is not applicable.
41.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 12 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
42.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
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43.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
44.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
45.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the adequacy of the
governmental subsidy scheme to exempt the Respondent from complying with its financial
obligations towards the Claimant.
46.
In this context, the Chamber observed that while the Claimant acknowledged to have
received a total of EUR 664.60 from the Cypriot government as mere benefit, conversely
the Respondent alleged that in view of the CFA season’ suspension due to the Covid-19
outbreak, the Claimant was registered for a governmental subsidy scheme which had the
scope of covering the player’ salary for the entire period of suspension.
47.
However, the Chamber noted that the Respondent did not provide any evidence which
would allow to ascertain how said governmental scheme works and whether the amount
received by the Claimant was consistent with the criteria of such scheme.
48. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19
outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
appropriate guidance and recommendations to member associations and their stakeholders, to both
mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
49. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as the FIFA
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country
or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a
player’s salary.
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50. In this context, the DRC considered that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the Claimant, in other words,
the reasons brought forward by the Respondent in its defence do not exempt the Respondent from
its obligation to fulfil its contractual obligations towards the Claimant.
51.
In light of the above, the Chamber concluded that the Respondent’s objection shall be
disregarded, and that the Claimant was entitled to receive his full salary as regularly even
during the suspension of the CFA season.
52.
In particular, it shall be acknowledged that the monthly salaries of February 2020, March
2020, April 2020 and May 2020 remained outstanding, hence they shall be paid by the
Respondent.
53.
Furthermore, as the Respondent’s team has got promoted to the CFA Second Division for
the season 2020/2021, the Chamber remarked that also the bonus of EUR 1,200 agreed
under clause 1.3.2. of the employment contract shall be awarded.
54.
In this respect, the Chamber took note of the fact the Claimant was fielded as part of the
starting line-up in total of 17 matches, hence, in conjunction with the Respondent’s
promotion to the CFA Second Division, it shall be acknowledged the application of clause
1.4 of the employment contract, according to which said agreement shall be deemed to
have been automatically extended until 31 May 2021.
55.
In view of the above, and line with art.14 bis of the FIFA RSTP, the Chamber ascertained
that on 28 July 2020 the Claimant had just cause to terminate the employment contract
because of the relevant outstanding remuneration.
ii. Consequences
56.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
57.
In this context, the Chamber recalled that, as of the date of termination (i.e. 28 July 2020)
until the natural expiry date stipulated under the employment contract, the Claimant would
have been entitled to a total remuneration of EUR 14,000.
58.
Therefore, the Chamber established that said amount shall serve as a basis for the
computation of the overall compensation amount to which the Claimant shall be entitled.
59.
Furthermore, in line with art. 17 of the FIFA RSTP, the DRC recalled that in case the Claimant
signed a new contract by the time of the decision, the value of the new contract for the
period corresponding to the time remaining on the prematurely terminated contract shall
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be deducted from the residual value of the contract that was terminated early, hence
defining the so called “Mitigated Compensation”.
60.
In this respect, the Chamber noted that the Claimant concluded a new employment
contract valid as of 11 August 2020 until 31 May 2021, according to which the latter would
be entitled to a monthly salary of EUR 178.
61.
Accordingly, the Chamber calculated that the total value of the Claimant’s new
employment contract amounts to EUR 1,780, hence such amount shall be deducted from
the overall compensation to which the Claimant is entitled.
62.
Moreover, the Chamber established that, having been the early termination of the contract
due to overdue payables, the Claimant shall be entitled to an additional compensation,
corresponding to three monthly salaries, namely EUR 4,200 (3*EUR 1,400).
63.
Notwithstanding the above, the Chamber observed that despite the afore mentioned
mitigation, the overall compensation amount would exceed the residual value of the
prematurely terminated contract.
64.
Therefore, in line with art. 17.1 ii), the Chamber established that the Claimant shall be
entitled to a total compensation of EUR 14,000, however, due to the principle of ne ultra
petita, the Chamber decided to award a total of EUR 13,980, in line with the Claimant’s
request.
iii. Compliance with monetary decisions
65.
Finally, 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 the consequences
deriving from the failure of the concerned party to pay the relevant amounts of outstanding
remuneration and/or compensation in due time.
66.
In this regard, the DRC 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 and for the maximum
duration of three entire and consecutive registration periods.
67.
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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
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68.
The DRC recalled that the above-mentioned bans 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.
69.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
70.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
71.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Claimant, Edward Mashinya, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, PAEEK Kerinias FC, has to pay to the Claimant, the following amount:
EUR 5,335.40 as outstanding remuneration
EUR 13,980 as compensation for breach of contract
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established 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 following consequences shall arise:
1. 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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