DRC Overdue Payables
Texto da decisão
REF. FPSD-15025
Decision of the
Dispute Resolution Chamber
passed on 23 September 2024
regarding an employment-related dispute concerning the player
Mushangalusa Bakenga Namugunga
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Stefano SARTORI (Italy), Member
Jorge GUTIÉRREZ (Costa Rica), Member
CLAIMANT:
Mushangalusa Bakenga Namugunga, Norway
Represented by Mathias T. Gebremichael
RESPONDENT:
Apollon Limassol, Cyprus
Represented by Alkis Papantoniou
pg. 2
REF. FPSD-15025
I. Facts of the case
1.
On 10 January 2024, the Norwagian player Mushagalusa Bakenga Namugunga (hereinafter,
the Claimant or the Player) and the Cypriot club Apollon Limassol (hereinafter, the
Respondent or the Club) concluded an employment contract (hereinafter, the Contract) valid
as from 10 January 2024 until 30 June 2024.
2.
Pursuant to Clause 1.3.1 of the Contract, the Club undertook to pay to the Player
(hereinafter, jointly referred to as the Parties) a monthly salary of EUR 9,000 net in five
instalments throughout the validity of the Contract.
3.
Clause 1.3 also provided the following:
“All taxes payable to the Tax Department, as per the applicable legislation, shall be paid by the
Club, except the contribution for the General Healthcare System (GHS) according to the new Law
which will be paid by the Club and will be deducted from the monthly net salary of the Player
(deduction of 2,65% after Feb 2020)”.
4.
According to Clause 2 of the Contract:
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. The terms of the Standard Employment Contract constitute an integral part of the present
Contract having full and direct implementation”.
5.
In accordance with Clause 13 of the Standard Employment Contract, which is attached to
the Contract:
“Any employment dispute between the Club and the Player shall fall under the exclusive
jurisdiction of the National Dispute Resolution Chamber of the CFA and shall be resolved
according to the applicable regulations of the CFA”.
6.
Also on 10 January 2024, the Parties concluded the so-called “Supplementary Agreement”
(hereinafter, the Agreement), in accordance with which the Club further undertook to pay
the Player an additional salary of EUR 55,000 net in five equal instalments of EUR 11,000
net, as well as EUR 5,000 net in five instalments of EUR 1,000 net as accommodation, both
payable on the last day of each month as from January to May 2024.
7.
On 31 May 2024, the Player put the Club in default granting it a deadline of fifteen days to
proceed with the payment of EUR 54,989 as per the following amounts and concepts:
pg. 3
REF. FPSD-15025
- February 2024: EUR 989 as per the Agreement;
- March 2024: EUR 12,000 as per the Agreement;
- April 2024: EUR 9,000 and EUR 12,000 as per the Contract and the Agreement,
respectively; and
- May 2024: EUR 9,000 and EUR 12,000 as per the Contract and the Agreement,
respectively.
II. Proceedings before FIFA
8.
On 24 June 2024, the Player filed the claim at hand before FIFA. A summary of the Parties’
position is detailed below.
a. Position of the Player
9.
According to the Player, the Club failed to comply with its financial obligations and failed to
pay his monthly remuneration of February 2024, in part, and his remuneration for the
months of March, April and May 2024.
10. The Player requested the following relief:
“In light of the above, the Claimant respectfully requests the DRC to rule as follows:
a. Acknowledge the non-payment of the salaries and allowances for the months of February,
March, April, and May 2024 by [the Respondent].
b. Order [the Respondent] to pay to the Player the outstanding amount of fifty-four thousand
euros net (€ 54.989).
c. Order [the Respondent] to pay 5% interest p.a. on the outstanding amounts as from its
due dates until the date of effective payment.
d. Impose a warning or a reprimand (or both) on [the Respondent], in accordance with Art.
12bis par. 4 lit a) and b).
e. Pursuant to Art. 24 of the RSTP, if full payment (including all applicable interest) is not made
within 45 days of notification of DRC’s decision, the following consequences shall apply:
- The Club shall be banned from registering any new players, either nationally or
internationally, up until the due amounts and the remaining value of the settlement
pg. 4
REF. FPSD-15025
sum is paid to the Player. The maximum duration of the ban shall be of up to three
entire and consecutive registration periods.
- 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”.
b. Position of the Club
11. In its reply, the Club initially disputed the competence of FIFA to hear the present dispute,
arguing that the Contract concluded between the Parties clearly and explicitly provided the
jurisdiction of the National Dispute Resolution Chamber of the Cyprus Football Association
(the NDRC and the CFA, respectively).
12. The Club sustained that the NDRC of the CFA meets the minimum procedural standards of
the FIFA Circular letter nº 1010, namely, (i) the principle of parity when constituting the
arbitration tribunal; (ii) the right to an independent and impartial tribunal; (iii) the principal
of fair hearing; (iv) the right to contentious proceedings; and (v) the principle of equal
treatment.
13. As to the substance of the dispute, the Club argued that it paid the accommodation
allowance for February 2024 on 29 February 2024. Furthermore, the Club also sustained
that, according to the Contract, it undertook to pay to the Player EUR 9,000 net per month
with a deduction of 2.65% to be paid to the General Healthcare System (GHS) of Cyprus. In
this respect, according to the Club the Player’s monthly salary was EUR 8,761.50, which was
allegedly evidenced by the proof of payments submitted by the Claimant, “whose accuracy
and correctness was not challenged by the Claimant in his claim or before that”.
14. The Club requested the following relief:
A. The claim of the Claimant is inadmissible, because the parties have agreed on the exclusive
jurisdiction of the CFA NDRC to adjudicate any potential dispute between the parties.
In case our request to deem the Claim inadmissible is dismissed, we subsidiarily request the
following by your Chamber:
A. To find that the amount requested by the Claimant is wrong and reject his claim;
B. To find that the amount of EUR 1,000 for the accommodation allowances of February 2024
has been paid and is not overdue;
C. To find that the amount of EUR 18,000 of alleged outstanding payments arising from the
Employment Agreement shall be deducted by the amount of EUR 477 which are not payable
to the Player on the basis of art. 1.3 of the Employment Agreement.
pg. 5
REF. FPSD-15025
D. To reject the request of the Claimant for the imposition of disciplinary sanctions against the
Club.
c. Replica of the Player
15. In his replica, the Player argued that FIFA was competent to hear the present dispute, as
has been confirmed in previous decisions of the Dispute Resolution Chamber against
Cypriot clubs.
16. As to the substance, the Player initially pointed out that the Club did not provide proof of
payment of the allowances for February 2024, but rather the payment of his monthly salary
for this month, which was acknowledged by the Player in his claim.
17. The Player further acknowledged the deduction of 2.65% on his salary, and consequently
claimed being entitled to EUR 17,523 as per the Contract.
18. The Player amended his request for relief as follows:
a. Acknowledge and decide that the claim of the Claimant, is admissible before the FIFA DRC.
b. Acknowledge the non-payment of the salaries and allowances for the months of February,
March, April, and May 2024 by [the Respondent].
c. Order [the Respondent] to pay to the Player the total outstanding amount of fifty-four
thousand five hundred and twelve euros net (€54.512), in owed salary and allowances to
the Player, under the Employment Agreement and the Supplementary Agreement, as
follows:
- € 17,523 under the Employment Agreement.
- € 36,989 under the Supplementary Agreement.
d. Duplica of the Club
19. In its duplica, the Respondent insisted that FIFA does not have jurisdiction to hear the
present claim. In this respect, it argued that the jurisprudence of the Dispute Resolution
Chamber is not binding on the present Panel, and that the Judges are in a position to
decide, considering the facts, arguments and legal status of the specific case.
20. According to the Club, the Decisions submitted by the Player are not applicable to the
present case, as either the Regulations of the NDRC have changed or the claimants did not
provide the relevant evidence.
pg. 6
REF. FPSD-15025
21. The Club also argued that the Player failed to address any of the arguments presented in
its reply to the claim, namely, the existence of a clear and exclusive jurisdiction clause in
favour of the NDRC of the CFA and that its regulations fulfil the requirements of the FIFA
Circular letter nº 1010.
22. As to the substance, the Club insisted that it paid the allowances corresponding to the
month of February 2024, providing the relevant evidence.
23. The Club reiterated its request for relief.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. First of all, the Dispute Resolution Chamber (hereinafter, the 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 24 June 2024 and submitted for decision on
23 September 2024. Taking into account the wording of art. 34 of the March 2023 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter, the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
25. Furthermore, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed
that, in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition) (hereinafter, the
Regulations), the DRC is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Norwegian player
and a Cypriot club.
26. However, the Chamber noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the NDRC of Cyprus, alleging that the latter was competent to
deal with any dispute deriving from the relevant employment contract in accordance with
Clause 2 of the Contract in conjunction with Clause 13 of the Standard Employment
Contract.
27. The Chamber also noted that the Player insisted on the competence of FIFA to adjudicate
the present claim, sustaining that in previous occasions FIFA has retained jurisdiction over
the NDRC of the CFA.
28. At this point, the Chamber reverted to the Transitional measures established in art. 26 par.
1 lit. c) of the Regulations (editions of February and June 2024), according to which “Article
22 paragraph 1 b) and c) shall apply only to cases brought to FIFA as from 1 January 2025. Any
other case shall be assessed according to the previous regulations.”
pg. 7
REF. FPSD-15025
29. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players (May 2023 edition),
FIFA is, in principle, competent to hear an employment-related dispute between a club and
a player of an international dimension. Nevertheless, the parties may explicitly opt in
writing for such dispute to be decided by an independent arbitration tribunal that has been
established at national level within the framework of the association and/or a collective
bargaining agreement. Any such arbitration clause must be included either directly in the
contract or in a collective bargaining agreement applicable on the parties. The independent
national tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber Standard Regulations, which
came into force on 1 January 2008.
30. In this context, the Chamber pointed out that it should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of the NDRC of Cyprus. In this respect, the Chamber referred
to Clause 13 of the Standard Employment Contract, according to which:
“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”.
31. The Chamber, after analysing the wording of the jurisdiction clause, concluded that such
clause was indeed clear and exclusive in favour of the competence of the NDRC of the CFA.
32. Having established the foregoing, the Chamber turned its attention to the further prerequisites for establishing the competence of a NDRC. The Chamber namely referred 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 NDRC to be recognised
as such. Indeed, this prerequisite is mentioned in the Regulations, 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 association 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 a predetermined list, every interest group
that is represented must be able to exercise equal influence over the compilation of the
arbitrators list”.
pg. 8
REF. FPSD-15025
33. With the aforementioned principles in mind, the Chamber went on to examine the
documentation presented by the Respondent, and observed that it only consisted of an
extract of some regulations and a translation of such extract, making it impossible to
ascertain what edition of the regulations is referred to. Furthermore, the Chamber also
established that the Respondent did not submit any documentation on the actual
composition of the NDRC.
34. As a consequence, the Chamber was of the opinion that the Club failed to submit enough
documentation as corroborating evidence to proof that the NDRC of the CFA meets the
requirements of the FIFA Circular no. 1010.
35. On account of all the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter has to be rejected and that the DRC
is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present
matter as to the substance.
36. 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 (June 2024 edition), and considering that the present claim was
lodged on 24 June 2024, the June 2024 edition of said Regulations is applicable to the
matter at hand as to the substance.
b. Burden of proof
37. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
38. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
pg. 9
REF. FPSD-15025
i. Main legal discussion and considerations
39. The Chamber then moved to the substance of the matter, and took note of the fact that
the present case concerns a claim of a player against a club for outstanding remuneration
per the Contract and the Agreement.
40. In this context, the Chamber observed that, in his claim, the Player initially claimed being
entitled to EUR 54,989 net as salaries and allowances for the months of February 2024 (in
part) and March, April and May 2024. The Chamber also noted that the Club sustained
having paid the accommodation allowance for the month of February 2024 (i.e., amounting
to EUR 1,000 net), and that pursuant to Clause 1.3 of the Contract, a deduction of 2.65%
should be applied to the Player’s monthly salary agreed in the Contract.
41. The Chamber further observed that, in his replica, the Player denied having received the
allowance for February 2024, but acknowledged the deduction of 2.65% in his monthly
remuneration per the Contract. The Player amended his request for relief, and requested
the payment of EUR 17,523 net and EUR 36,989 net per both the Contract and the
Agreement, respectively (i.e., the total amount of EUR 54,512 net).
42. Based on the above, the Chamber observed that the Parties were almost in agreement as
to the amounts due by the Club after the Player acknowledged the deduction of 2.65% with
regard to the salary agreed in the Contract. In fact, the Chamber noted that the Parties only
disputed the payment of EUR 1,000 corresponding to the February 2024 allowance per the
Agreement.
43. Accordingly, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the Parties, whether the February 2024 allowance 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 Chamber noted that in the case at hand the Club bore the burden of proving that it
indeed complied with the above payment as stipulated in the Agreement, and turned its
attention to the evidence provided by the Respondent in this regard.
45. After having carefully analysed the evidence submitted, the Chamber observed that, on 29
February 2024, the Club delivered a check to the Player under the concept “Allowances Feb’
24” in the amount of EUR 1,000. The Chamber also noted that this check was signed by the
Player.
46. Based on the foregoing, the Chamber unanimously considered that the Club met his
burden of proof as to the payment of the disputed amount, and concluded that the Player’s
claim for the February 2024 monthly allowance shall be rejected.
pg. 10
REF. FPSD-15025
47. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Club is held liable to pay the Player the outstanding amounts deriving from the Contract
and the Agreement concluded between the Parties, amounting to the total sum of EUR
53,523 net as follows:
- EUR 12,000 net, corresponding to the March 2024 allowances per the Agreement;
- EUR 8,761.50 net and EUR 12,000 net, corresponding to April 2024 per the Contract
and the Agreement, respectively; and
- EUR 8,761.50 net and EUR 12,000 net, corresponding to May 2024 per the Contract
and the Agreement, respectively.
48. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Player interest at the rate of
5% per annum on the outstanding amounts, as from their due dates, calculated as follows:
- 5% p.a. over the amount of EUR 12,000 net as from 1 April 2024;
- 5% p.a. over the amount of EUR 20,761.50 net as from 1 May 2024; and
- 5% p.a. over the amount of EUR 20,761.50 net as from 1 June 2024; and
ii. Art. 12bis of the Regulations
49. In continuation, the Chamber 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.
50. To this end, the Chamber confirmed that the Player put the Club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the club
a 10-day deadline to cure such breach of contract.
51. Accordingly, the Chamber confirmed that the Club had delayed a due payment without a
prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
52. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Club. On account of the above and bearing in mind
that this is the first offense by the Club within the last two years, the Chamber decided to
impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
pg. 11
REF. FPSD-15025
53. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
54. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
55. 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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
56. Therefore, bearing in mind the above, the DRC 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.
57. 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.
58. 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
59. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the Parties.
60. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
pg. 12
REF. FPSD-15025
61. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
pg. 13
REF. FPSD-15025
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Mushangalusa
Bakenga Namugunga.
2.
The claim of the Claimant, Mushangalusa Bakenga Namugunga, is partially accepted.
3.
The Respondent, Apollon Limassol, must pay to the Claimant the following amount(s):
EUR 53,523 net as outstanding remuneration plus 5% interest per annum as follows:
- 5% interest p.a. over the amount of EUR 12,000 net as from 1 April 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 20,761.50 net as from 1 May 2024 until the date
of effective payment; and
- 5% interest p.a. over the amount of EUR 20,761.50 net as from 1 June 2024 until the date
of effective payment.
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 of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
8.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
pg. 14
REF. FPSD-15025
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 15
REF. FPSD-15025
NOTE RELATED TO THE APPEAL PROCEDURE
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 16