Labour Disputes
Texto da decisão
REF FPSD-7405
Decision of the
Dispute Resolution Chamber
passed on 8 March 2023
regarding an employment-related dispute concerning
the player Mickael Guillaume Kevin Panos
BY:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Mickaël Guillaume Kevin Panos, France
RESPONDENT:
Enosi Neon Paralimniou, Cyprus
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I. Facts of the case
1. On 1 January 2021, the player Mickael Guillaume Kevin Panos and the club Enosi Neon Paralimniou
concluded an employment contract valid as from 1 January 2021 until 31 May 2021.
2. According to art. 1 of said contract, the player was entitled to EUR 4,250 net per month.
3. Art. 6.1.3 of the “standard employment contract” was drafted as follows:
“6.1. The club shall
(…)
6.1.3 Promptly arrange appropriate medical and dental examinations and treatment for the Player at the
Club's expense in respect of any injury to or illness (including mental illness or disorder) of the Player save
where such injury or illness is caused by an activity or practice on the part of the Player which breaches
clause 3.2 .1 hereof in which case the Club shall only be obliged to arrange and pay for treatment to the
extent that the cost thereof remains covered by the Club's policy of medical insurance,
ln respect of any examinations and/or treatment, the necessity for which arise during the currency of the
present
and not withstanding its subsequent expiry or termination of the present, the said obligation of the Club
shall extent for a period of 12 months from the date of expiry or termination of the present.”
4. Art. 13 of the “standard employment contract” stipulated the following:
“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.”
5. On 14 March 2021, the player was injured during a match.
6. On 25 September 2021, the player sent a letter requesting, inter alia, the following:
“I remind you that due to an injury incurred during the performance of the employment contrat, I had to
pay myself for proper treatment the total amount of 4.859,12 EUR”
7. On 11 October 2021, the player reminding inter alia the same payment and to granted 10 days to
remedy the default.
8. On 26 October 2021, the player sent a letter indicating the following:
“1 put you in residence to pay the following amount to my bank account within the next 10 days :
The net amount of 4.859,12 € for the reimbursement of medical care;”
II. Proceedings before FIFA
9. On 12 September 2022, the player Mickael Guillaume Kevin Panos lodged a claim before FIFA for
outstanding medical costs, and requested the following:
EUR 4,859.12 net plus 5% interest p.a. as from 1 June 2021 ;
EUR 5,000 as legal costs.
10. The player submitted documentation to prove that he incurred in the following costs (note: all
evidence indicates that the costs were incurred in France and included partial payments from the
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French Social Security):
- 09/04/2021 – 19,14 EUR
- 09/04/2021 – 95,7 EUR
- 19/04/2021 – 76,56 EUR
- 06/05/2021 – 1500 EUR
- 18/05/2021 – 78,6 EUR
- 20/05/2021 – 77,49 EUR
- 20/05/2021 – 3 EUR
- 20/05/2021 – 77,49 EUR
- 16/06/2021 – 30 EUR
- 18/06/2021 – 246,39 EUR
- 21/06/2021 – 150 EUR
- 25/06/2021 – 30 EUR
- 25/06/2021 – 246,39 EUR
- 26/07/2021 – 50 EUR
- 30/07/2021 – 424,6 EUR
- 30/07/2021 – 125,4 EUR
- 02/08/2021 – 30 EUR
- 06/08/2021 – 125,4 EUR
- 06/08/2021 – 424,6 EUR
- 09/06/2021 – 30 EUR
- 13/08/2021 – 125,4 EUR
- 13/08/2021 – 424,6 EUR
- 30/08/2021 – 100 EUR
- 06/09/2021 – 30 EUR
- 10/09/2021 – 254,76 EUR
- 10/09/2021 – 83,6 EUR
Total: EUR 4,859.12
11. In its reply to the claim, the Respondent contested the competence of FIFA and referred to art. 13 of
the employment contract.
12. As to the substance, the Respondent explained that he never received the default notices sent by the
player.
13. The club provided a tax certificate for the year 2021, indicating that the player’s emoluments for said
year amount to EUR 23,863.
14. The club further rejected the payment of the legal costs.
15. In his duplica, the player insisted in the competence of FIFA as it stated that the club did not provide a
copy of the applicable regulations concerning the Cyprus NDRC.
16. Under any circumstance, the player explained that, based on a decision of the FIFA DRC of 29 January
2020, the Cypriot NDRC does not fully respect the principle of equal representation and hence cannot
be considered an independent arbitration tribunal guaranteeing fair proceedings.
17. As to the default notices, the player explained that he does not have access to the TMS and therefore
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cannot know under which email address the club is registered.
18. The player also insisted to be reimbursed with his medical fees (EUR 4,859.12), insofar the contract is
very clear about it.
19. The player also requested to be provided with his payslips from January 2021 until May 2021, as well
as EUR 1 per delayed day.
20. The club insisted in the competence of the Cyprus NDRC.
21. In its respect, the club quoted art. 22.4 of the Cyprus Football Federation Regulations for the
Registration and Transfer of Football Players and the DRC Procedural Regulations 2013:
According to Art 22.4 Composition and Operation of Appeal Committee and DRC:
"1. The Appeal Committee and the Dispute Resolution Committee (DRC) shall consist of five members and
more specifically of the Chairman, Vice-Chairman and three members. All members shall be appointed
within the term of fifteen days before the expiry date of the term of the previous DRC.
3. The two members of the Appeal Committee and DRC respectively will be elected from the Board of
Directors of CFA and two members of the Appeal Committee and DRC respectively will be elected by the
Pancyprian Football Players' Association ....”
22. As to the substance, the club argued that “the Player had an injury and the Club told him that they will
cover immediately all his medical expenses if he stays in Cyprus”, but argued that “without any consent or
leave of the Club [he] decided to leave Cyprus and go to France.”
23. The club stated that the player preferred to have a surgery in France as he argued that it was covered
by the French Health System.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 12 September 2022 and submitted for decision on 8
March 2023. Taking into account the wording of art. 34 of the October 2022 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.
2.
Subsequently, the members of 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 lit. b) of the Regulations
on the Status and Transfer of Players October 2022 edition), 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 French player and a Cypriot club.
3.
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 Players (October 2022 edition), and considering that the
present claim was lodged on 12 September 2022, the October 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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.
5.
Admissibility.
The Chamber further noted that the Respondent contested the competence of FIFA’s deciding
bodies in favour of the National Dispute Resolution Chamber of Cyprus (hereinafter: the NDRC of
Cyprus), alleging that the latter is competent to deal with any dispute deriving from the relevant
employment contract, in accordance with its clause 13.
6.
The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate the
present claim, sustaining that the NDRC of Cyprus is not an independent arbitration tribunal
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guaranteeing fair proceedings and respecting the principle of equal representation of players and
clubs.
7.
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, 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 arbitration 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 (NDRC) Standard
Regulations, which came into force on 1 January 2008.
8.
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
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”. The Chamber, after analysing the
wording of the jurisdiction clause, conclude that such clause was indeed clear and exclusive in
favour of the competence of the NDRC of Cyprus.
9.
Having established the foregoing, the Chamber turned its attention to the further pre-requisites
for establishing the competence of a NDRC. The Chamber namely referred to principle of equal
representation of players and clubs and underlined that this principle is one of the very
fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be
recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and
Transfer of Players, in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations,
which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the
following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy
chairman chosen by consensus by the player and club representatives (…); b) between three and ten
player representatives who are elected or appointed either on proposal of the players’ associations
affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by
FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular
no. 1010 states the following: “The parties must have equal influence over the appointment of
arbitrators. This means for example that every party shall have the right to appoint an arbitrator and
the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators
are to be selected from a predetermined list, every interest group that is represented must be able to
exercise equal influence over the compilation of the arbitrator list”.
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10. With the aforementioned principles in mind, the Chamber went on to examine the documentation
presented by the Respondent and noted that it did not provide a full copy of the applicable
regulations, but only quoted a few articles, from which it could not obtain a full perspective
concerning the composition of said Chamber.
11. As a consequence, the Chamber was of the opinion that the club failed to prove that the NDRC of
Cyprus indeed respects the principle of equal representation of players and clubs.
12. 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 Dispute
Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider
the present matter as to the substance.
d. Merits of the dispute
13. Its competence and the applicable regulations having been established; the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned 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 the assessment of the matter at hand.
i. Main legal discussion and considerations
14. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that, fundamentally, it consists in a claim for the player for the reimbursement
of certain medical costs arisen during the time of his employment with the club.
15. In this context, the Chamber acknowledged that it its task was to determine whether the player
was contractually entitled to the reimbursement of said costs.
16. The Chamber observed that the contract signed between the parties stipulates that the club would
cover the expenses for medical costs related to injuries. In particular, art. 6.1. of said contract
stipulates that the club shall “Promptly arrange appropriate medical and dental examinations and
treatment for the Player at the Club's expense in respect of any injury to or illness (including mental
illness or disorder) of the Player”
17. Within this context, the Chamber noted the club’s position, according to which the player refused
to be treated by his doctor and preferred to receive his treatment in France, under the French
Public Health System.
18. In this regard, the Chamber examined the evidence provided by the player, and observed that it
indeed confirms that the player was treated under the French public healthcare structures, and
some of said documents refer to the player as “the insured one” (l’assuré) within said system.
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19. Under these circumstances, and referring once again to the applicable clause 6.1 of the contract,
the Chamber observed that it does indeed stipulate that the club will cover the medical expenses,
but only for medical treatment that is in fact arranged by the club. However, after examining the
evidence on file, a majority of the Chamber considered that this does not appear to be the case,
as the player preferred to follow his treatment in France and he has not discharged the burden to
demonstrate that he was authorized by the club to be treated abroad. As a result, the claim had
to be rejected.
20. The Chamber also noted that the club provided during the investigation a copy of the player’s tax
certificate, and therefore the player’s request for the payment slips shall be rejected.
e. Costs
21. 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.
22. 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.
23. Lastly, the DRC 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 Football Tribunal has jurisdiction to hear the claim of the claimant, Mickael Guillaume Kevin
Panos.
2.
The claim of the Claimant, Mickael Guillaume Kevin Panos, is rejected.
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).
CONTACT INFORMATION
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