Dispute Resolution Chamber
Texto da decisão
REF 20-01521
Decision of the
Dispute Resolution Chamber (DRC) Judge
passed on 21 April 2021
regarding an employment-related dispute concerning the player Jorge Yepes Roda
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Jorge Yepes Roda, Spain
Represented by Asociación de Futbolistas Españoles
RESPONDENT:
Mons Calpe SC, Gibraltar
Page 2 of 10
REF 20-01521
I.
FACTS OF THE CASE
1.
On 28 April 2017, the Spanish player, Mr. Jorge Yepes Roda (hereinafter: the Claimant or
the player) and the Gibraltarian club, Mons Calpe SC (hereinafter: the Respondent or the
club), signed an employment contract valid as from 1 August 2019 until 31 May 2020
(hereinafter: the employment contract).
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant the amount of GIP 800, as monthly salary.
3.
By correspondence dated 28 September 2020, the Claimant put the Respondent in default
of payment of GIP 2,800 relating to the salaries due in September (half), October,
November, and December 2019, granting it with a 10 days’ deadline in order to remedy
the default.
4.
On 19 October 2020, the Claimant lodged the claim at hand against the Respondent,
seeking payment of 3.5 monthly salaries (half of September, October, November, and
December 2019) in the total amount of GIP 2,800, plus 5% interest p.a. as from the due
dates.
5.
In its reply to the claim, the Respondent wrote, quoted verbatim:
“I, JOSÉ REYGADAS, acting as President and on behalf of Club Mons Calpe SC (Mons Calpe),
present the answer to the claim filed by Mr. Jorge Yepes Roda (the Player), as follows:
a) According to the contract signed between the Player and Mons Calpe (presented by the
Player as an exhibit of his Claim), the applicable Law is the Law of Gibraltar.
b) The Gibraltar Football Association has a Dispute Resolution Chamber constituted
respecting all the parameters established by FIFA. Then, the Gibraltar NDCR is the only one
with jurisdiction to rule the case at stake and FIFA has to declare that has no jurisdiction
over this case.
c) Additionally, the Player has presented the same claim in front of the Gibraltar NDCR
(Exhibit One). This confirms that FIFA has to stop dealing with this case and send it to the
mentioned local authority.
d) Mons Calpe does not owe any sum to the Player
PETITUM
1. To declare that FIFA has no jurisdiction in the case at stake.
2. To close these procedures”.
6.
Subsequently, the Claimant was invited to present its position to the Respondent’s reply.
Accordingly, the player argued that he was not aware of the claim filed before the National
Page 3 of 10
REF 20-01521
Dispute Resolution Chamber (NDRC) of Gibraltar. The player further mentioned that he had
never authorized any lawyer to file a claim before said deciding body on his behalf.
7.
In its final comments, the Respondent reiterated its position that FIFA is not competent to
hear the dispute, and explained that it was the Gibraltar Football Association (GFA) itself
that notified the claim before the Gibraltarian NDRC (hereinafter: the Gibraltarian NDRC).
8.
In continuation, upon request of the FIFA general secretariat, the GFA firstly informed the
following:
“I can confirm that a claim has been made by Mr Yepes Roda (The Claimant), together with
a number of other claimants whom are all represented by Phillips & Co. The claim is against
Mons Calpe SC (The Defendant).
Mr Yepes Roda submitted a breach of contract claim on 17 September 2020, alleging that
he is owed €2,800, in unpaid wages.
Due to several delays relating to the listing and considering of the matter including, in
particular, data protection issues, the claim was listed to be heard in January 2021.
In the intervening period, however, the Claimants lawyers raised a procedural objection in
relation to the disclosure of statements to the Defendant. As a result of the objection, the
hearing was further delayed and instead, at the January 2021 hearing, the NDRC ruled on
the disclosure point.
The NDRC determined that the Claimant’s statement would be disclosed to the Defendant.
Once these statements have been disclosed and both parties are given the appropriate time
to consider, the matter will be re-listed for consideration”.
9.
Finally, upon request of the Dispute Resolution Chamber Judge, the GFA confirmed that no
power of attorney granted by the Claimant had apparently been found in the file pending
before the Gibraltarian NDRC.
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
10.
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 19 October 2020 and
submitted for decision on 21 April 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.
Page 4 of 10
REF 20-01521
11.
Subsequently, the DRC Judge 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. b) of the Regulations
on the Status and Transfer of Players (edition February 2021), he is in principle competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Spanish player and a Gibraltarian club.
12.
However, the DRC Judge also acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on basis of the wording of the employment contract,
which supposedly contained a clear and exclusive jurisdiction clause in favour of the
Gibraltarian NDRC. Additionally, the Respondent challenged FIFA’s competence to hear this
dispute in view of the principle of lis pendens, claiming that player had already lodged the
same claim before the Gibraltarian NDRC.
13.
At this point, the DRC Judge firstly wished to recall 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 Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to
which he may consider evidence not filed by the parties.
14.
To this extent, the DRC Judge went to analyse whether the employment contract at the
basis of the present case actually contained a clear and exclusive jurisdiction clause in favour
of the Gibraltarian NDRC. By doing so, the DRC Judge observed that there is no such clause
included in the aforementioned contract. On the contrary, the DRC Judge noted that the
employment contract presents a series of contradictory references to the competence of
ordinary courts and arbitration, such as clauses 6.1, 6.2 and 6.5.
15.
On the basis of said clauses coupled with the Respondent’s submission regarding the
competence of the Gibraltarian NDRC, the DRC Judge determined that it cannot be
established with sufficiently clarity which of the referred decision-making bodies, if any,
would be competent to hear the present dispute. Therefore, considering the absence of a
clear and unequivocal jurisdiction clause in compliance with the DRC well-established
jurisprudence, the DRC Judge decided to dismiss the arguments raised by the Respondent
in this regard.
16.
As to the lis pendens, the DRC Judge once again went to analyse the documentation on
file and noted that evidence filed by the Respondent fell short of demonstrating that the
Claimant indeed filed a claim with the Gibraltarian NDRC. To this end, while in one hand
indeed a cover letter of a collective lawsuit including the name of the player was provided,
the DRC Judge highlighted that the information forwarded to FIFA by the GFA in fact
confirmed that, despite of having acknowledged such a collective claim, no personal power
of attorney in respect of the Claimant could be found on file.
Page 5 of 10
REF 20-01521
17.
Therefore, the DRC Judge concluded that no lis pendens can be established and, hence,
that he is competent to deal with the present dispute in accordance with art. 22 lit. b) of
the Regulations on the Status and Transfer of Player.
18.
Finally, 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 2 of
the Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 20 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
19.
Merits of the dispute
His competence and the applicable regulations having been established, the DRC Judge
entered into the merits of the dispute. 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.
i. Main legal discussion and considerations
20.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the Claimant requested the total amount of GIP
2,800, corresponding to the salaries due in September (half), October, November, and
December 2019.
21.
In this respect, the DRC Judge acknowledged that the amounts claimed by the Claimant
have a clear contractual basis and, additionally, that the Respondent did not dispute the
fact that the payments were not made within the relevant deadlines.
22.
As a consequence and in accordance with the general legal principle of pacta sunt servanda,
the DRC Judge decided that the Respondent is liable to pay to the Claimant the requested
remuneration.
23.
Furthermore, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the DRC Judge decided to award
the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the day
following their due dates until the date of effective payment.
24.
Therefore, the DRC Judge concluded that the claim shall be accepted.
ii. Art. 12bis of the Regulations
Page 6 of 10
REF 20-01521
25.
In continuation, the DRC 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.
26.
To this end, the DRC Judge confirmed that the Claimant put the Respondent in default of
payment of the amounts sought, which had fallen due form more than 30 days, and
granted the Respondent with 10 days to cure such breach of contract.
27.
The DRC Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that the club is a repeat offender, the DRC Judge decided to impose a reprimand on
the Respondent in accordance with art. 12bis par. 4 lit. b) of the Regulations.
28.
In this connection, the DRC 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
29.
Finally, taking into account the consideration the Regulations, 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.
30.
In this regard, the DRC 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 and for the
maximum duration of three entire and consecutive registration periods.
31.
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, 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.
32.
The DRC Judge 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.
c.
Costs
Page 7 of 10
REF 20-01521
33.
The DRC Judge 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, he decided that no procedural
costs were to be imposed on the parties.
34.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
Page 8 of 10
REF 20-01521
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Jorge Yepes Roda, is accepted.
2.
The Respondent, Mons Calpe SC, has to pay to the Claimant, the following amounts:
- GIP 400 as outstanding remuneration plus 5% interest p.a. as from 1 October 2019 until the
date of effective payment;
- GIP 800 as outstanding remuneration plus 5% interest p.a. as from 1 November 2019 until the
date of effective payment;
- GIP 800 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019 until the
date of effective payment; and
- GIP 800 as outstanding remuneration plus 5% interest p.a. as from 1 January 2020 until the
date of effective payment.
3.
A reprimand is imposed on the Respondent.
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 Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9 of 10
REF 20-01521
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 10 of 10