Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 20 February 2020,
in the following composition:
Clifford Hendel (US A), Chairman
Roy Verm eer (The Netherlands ), member
Daan de Jong (The Netherlands ), member
on the claim presented by the player,
Mr Cherfa S ofy ane, France
represented by Mr Loizos Hadjidemetriou
as Claimant
against the club,
Alki Oroklinis , Cyprus
represented by Mr George Christofides
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 25 July 2018, the French player, Cherfa Sofyane (hereinafter: Claimant), and the
Cypriot club, Alki Oroklinis (hereinafter: Respondent) signed both an employment
contract (hereinafter: contract) and an image rights agreement (hereinafter: image
rights agreement), both valid as from 25 July 2018 until 31 May 2019.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant
inter alia EUR 200 “net” as from August 2018 until May 2019, i.e. for 10 months. In
accordance with the image rights agreement, the Respondent undertook to pay to
the Claimant inter alia EUR 3,300 “net” as from August 2018 until May 2019, i.e. for
10 months. Consequently, the Claimant’s total monthly remuneration was EUR 3,500
“net” for 10 months.
3.
By correspondence dated 18 July 2019, the Claimant put the Respondent in default
of payment of EUR 3,500 setting a time limit of 10 days in order to remedy the
default.
4.
On 7 August 2019, the Claimant lodged a claim against the Respondent in front of
FIFA asking that the Respondent be ordered to pay to him overdue payables in the
amount of EUR 3,500 corresponding to his salaries of May 2019, plus interest of 5%
p.a. as of 31 May 2019 until the date of effective payment.
5.
In reply to the claim, the Respondent rejected the Claimant’s claim. In this regard, it
held that FIFA was not competent to deal with the matter at hand since the parties
had mutually and freely agreed, pursuant to clause 13 of the contract, that any
employment dispute between them would fall under the exclusive jurisdiction of
the Cyprus Football Association National Dispute Resolution Chamber (hereinafter:
CFA NDRC).
6.
The Respondent argued that the CFA NDRC is an independent arbitration tribunal
established at the national level which guarantees fair proceedings and respects the
principle of equal representation.
7.
In addition, the Respondent submitted that the FIFA Dispute Resolution Chamber
has no competence to adjudicate on the image rights agreement. According to the
Respondent, the image rights agreement does not provide any specific element
leading to the conclusion that is it part of the contract; it would be in fact a
separate agreement from the contract. The Respondent claims that the amount
paid to the player under the image agreement is justified by clauses 1-5 of the
image rights agreement.
8.
As to the substance, the Respondent rejected the allegation of the Claimant that it
has not paid the salary of May, amounting to EUR 200, and its image right
agreement’s remuneration amounting to EUR 3,300. In this regard, the Respondent
Player Cherfa Sofyane, France / Club Alki Oroklinis, Cyprus
Page 2 of 8
submitted that a waiver had been signed by the Claimant on 27 March 2019,
according to which all financial dues between him and the Respondent had been
settled.
9.
Additionally, and as an alternative argument, the Respondent stated that it does
not have an obligation to pay the Claimant’s salary of May, as according to clause
2.5 of the contract, in case that the Respondent was relegated to the second
division, it was not obliged to pay the rest of the salaries.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 7 August
2019. Taking into account the wording of art. 21 of the 2019 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.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed 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 January 2020) the Dispute Resolution Chamber would, in principle,
be competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a French player and a
Cypriot club.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of on the alleged existence of a
jurisdiction clause in favour of the CFA NDRC, which supposedly respects the
principles enshrined in FIFA Circular no. 1010. What is more, the Respondent has
also objected to the competence of FIFA with regards to image rights agreement
which, according to the Respondent, is a separate document from the contract.
4.
In this regard, the Chamber noted that the Claimant is of the position that FIFA has
jurisdiction to deal with the present matter.
5.
The Chamber then proceeded to examine the contents of the contract and the
image rights agreement. By doing so, the DRC observed, firstly, that the image
rights agreement is linked to the Respondent’s performance in the relevant Cypriot
league, as per its exhibit 1.
6.
Secondly, the Chamber took note of the fact that the image rights agreement had
the same term as the contract.
Player Cherfa Sofyane, France / Club Alki Oroklinis, Cyprus
Page 3 of 8
7.
Lastly, the DRC noted that the image rights agreement could be terminated should
the contract be terminated as well.
8.
Consequently, the DRC decided to reject the Respondent’s arguments, and
concluded that the image rights agreement does not provide any specific element
which could lead to the conclusion that is it not part of the contract. The Chamber
emphasized that, in fact, the image rights agreement is intricately linked to the
contract. As such, the DRC concluded that the contract and the image rights
agreement shall be understood as a single document.
9.
Taking into account the above, the Chamber proceeded to examine the arguments
of the Respondent in connection with the CFA NDRC.
10. By doing so, the Chamber emphasised that in accordance with art. 22 lit. b) of the
January 2020 edition of the Regulations on the Status and Transfer of Players it is
competent to deal with a matter such as the one in 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 Chamber referred to the FIFA Circular no. 1010
dated 20 December 2005. In this regard, the members of the Chamber further
referred to the principles contained in the FIFA National Dispute Resolution
Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
11. Furthermore, the members of the Chamber directly recalled the first sentence of art.
22 of the Regulations on the Status and Transfer of Players, which stipulates that
FIFA’s competence is without prejudice to the right of any player or club to seek
redress before a civil court for employment related disputes.
12. In this context, and while analysing whether it was competent to hear the present
matter, the Dispute Resolution Chamber deemed it of utmost importance to
highlight that the present dispute pertains to an employment contact, as outlined
above.
13. Having said this, the members of the Chamber turned to the contents of the
contract and the image rights agreement, which are the basis of the present dispute
between the player and the club, and emphasized that, in line with the
jurisprudence of the Dispute Resolution Chamber, the CFA NDRC does not seem to
observe the principle of equal representation between players and clubs, in light of
the fact that the regulations in place regarding the CFA NDRC grant the Cyprus
Football Association influence on the selection process of player members as
opposed to club members.
14. In view of all the above, the Chamber established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected,
Player Cherfa Sofyane, France / Club Alki Oroklinis, Cyprus
Page 4 of 8
and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b)
of the Regulations on the Status and Transfer of Players, to consider the present
matter as to the substance.
15. Subsequently, the DRC analysed which edition of the Regulations on the Status and
Transfer of Players 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 (edition January 2020) and considering that
the present claim was lodged in front of FIFA on 7 August 2019, the June 2018
edition of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
16. The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and 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.
17. Having said this, the DRC acknowledged that the Claimant and the Respondent
signed the contract and the image rights agreement, both valid from 25 July 2018
until 31 May 2019, in accordance with which the Claimant was entitled to receive
from the Respondent, inter alia, EUR 3,500 as monthly salaries.
18. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining
that the Respondent has overdue payables towards him in the total amount of EUR
3,500 corresponding to his remuneration of May 2019.
19. In this context, the DRC took particular note of the fact that, on 18 July 2019, the
Claimant put the Respondent in default of payment of the aforementioned amount,
setting a time limit expiring of 10 days in order to remedy the default.
20. Subsequently, the DRC took into account that the Respondent, for its part, held that
the any financial dues between the parties had been settled by means of a waiver
executed by the parties on 27 March 2019. Alternatively, the Respondent argued
that, as according to clause 2.5 of the contract, in case that the Respondent was
relegated to the second division, it was not obliged to pay the rest of the salaries.
21. In this regard, the Chamber recalled that according to the legal principle of the
burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party
claiming a right on the basis of an alleged fact shall carry the burden of proof. With
that in mind, the Chamber noted that the Respondent alleges that the Claimant’s
salary of May 2019 had been settled by means of a waiver executed in 27 March
2019, and concluded that such argument by the Respondent must be rejected on the
account that payments due to the Claimant by 27 March 2019 have no connection
with the dispute at hand.
Player Cherfa Sofyane, France / Club Alki Oroklinis, Cyprus
Page 5 of 8
22. In continuation, the DRC turned to the Respondent’s argument regarding its alleged
relegation and the contents of clause 2.5 of the contract, and noted that the
evidence brought forward by the Respondent in regards to the alleged relegation
was not translated to any of the official languages of FIFA. As such, and in line with
article 9 of the Procedural Rules as well as the correspondence addressed by the FIFA
Secretariat to the Respondent on 2 September 2019, the DRC concluded that such
documentation could not be taken into consideration.
23. On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR
3,500, corresponding to his remuneration of May 2019.
24. Consequently, the DRC decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue
payables in the total amount of EUR 3,500.
25. In addition, taking into consideration the Claimant’s request, the members of the
Chamber decided to award the Claimant interest on the above-mentioned amount
as from 1 June 2019, i.e. the first day of default by the Respondent.
26. Furthermore, taking into account the consideration under number II./15. above, 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.
27. In this regard, the Chamber pointed out 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.
28. 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, following the notification of the present
decision, communicates the relevant bank details to the Respondent, 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.
29. Finally, the Chamber 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. 24bis par. 3 of the Regulations.
Player Cherfa Sofyane, France / Club Alki Oroklinis, Cyprus
Page 6 of 8
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Cherfa Sofyane, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Alki Oroklinis, has to pay to the Claimant the amount of EUR 3,500,
plus interest at the rate of 5% p.a. as from 1 June 2019 until the date of effective
payment.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under point III./3. above.
6.
The Respondent shall provide evidence of payment of the due amount in accordance
with point III./3. above to FIFA to the e-mail address [email protected], duly translated
into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount plus interest due in accordance with point III./3. above
is not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, 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 (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
8.
The ban mentioned in point III./7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
9.
In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the Dispute Resolution Chamber. Where such decisions contain confidential information,
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
Player Cherfa Sofyane, France / Club Alki Oroklinis, Cyprus
Page 7 of 8
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber).
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with Code of sports-related arbitration. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Cherfa Sofyane, France / Club Alki Oroklinis, Cyprus
Page 8 of 8