FIFA - Decisión disputa Durmishaj 14092023

REF. FPSD-10627

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Fiorin Durmishaj

COMPOSITION:

Martín AULETTA (Argentina), Deputy Chairperson Stella MARIS JUNCOS (Argentina), member Mario FLORES CHEMOR (Mexico), member

CLAIMANT:

Fiorin Durmishaj, Greece Represented by Antonis Vogiatzakis

RESPONDENT:

Olympiakos Nicosia, Cyprus Represented by Koushos Korfiotis Papacharalambous pg. 2

REF. FPSD-10627

I. Facts of the case

1. On 9 January 2023, the Greek player Fiorin Durmishaj (hereinafter: the Claimant or the Player) and the Cypriot club Olympiakos Nicosia (hereinafter: the Respondent or the Club) concluded an Employment Agreement valid as of the date of signature until 30 June 2023 (hereinafter: the

Contract).

2. Art. 1 of the Contract reads inter alia as follows: 1.3. The Player's gross remuneration shall be as follows: 1.3.1. From 09/01/2023 until 31/01/2023, a monthly gross salary of €1.684 (€1.500 net}. 1.3.2. From 01/02/2023 until 28/02/2023, a monthly gross salary of €1.684 {€1.500 net}. 1.3.3. From 01/03/2023 until 31/03/2023, a monthly gross salary of €1.684 (€1.500 net). 1.3.4. From 01/04/2023 until 30/04/2023, a monthly gross salary of €1.684 (€1.500 net).

1.3.5. From 01/05/2023 until 31/05/2023, a monthly gross salary of €1 .684 (€1.500 net). 1.3.6. From 01/015/2023 until 30/06/2023, a monthly gross salary of €0 All taxes payable to the Tax Department, as per the applicable legislation, shall be paid by the Club.

3. Art. 13 of the 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.

4. On the same date, the Parties concluded an additional private agreement titled "Supplementary Agreement" (hereinafter: the Private Agreement) in the following terms:

1. The player's remuneration shall be as follows: • With the signing of the present agreement an amount of €5.500 (NET) • From 01/02/2023 until 28/02/2023, an amount of 4500 EURO (NET) • From 01/03/2023 until 31/03/2023, an amount of 4500 EURO (NET) • From 01/04/2023 until 30/04/2023, an amount of 4500 EURO (NET) • From 01/05/2023 until 31/05/2023, an amount of 3500 EURO (NET)

2. The Employer undertakes to cover and pay to the Employee, 1 return air ticket economy class from his Country to Cyprus for the period 2022-2023.

3. The employer undertakes to provide the employee with free use of a car. All the running costs, and any damages occurred by the football player shall be borne by the employee.

4. The Employer undertakes to provide the Employee accommodation near the Team's training ground during the whole period of employment. The utility expenses of electricity, water telephone and any damages will be covered by the player.

5. The total amount for the condition 3 and 4 will be up to 5000 euro for the whole employment period pg. 3

REF. FPSD-10627

5. On 24 May 2023 the Player sent a default notice to the Club requesting the outstanding salaries for March and April 2023 granting a deadline of 15 days to comply, to no avail.

6. On the same date, the Respondent replied informing that the board of directors had resigned, and a new board would be elected on 31 May 2023.

7. On 9 June 2023, the Claimant sent another default notice requesting the amount of EUR 17,000 to be paid within 5 days.

8. On 15 June 2023, the Claimant terminated the contract adducing just cause.

II. Proceedings before FIFA

9. On 20 June 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

10. The Claimant acknowledges the existence of art. 13 of the Contract. However, it sustains that the Cypriot NDRC does not comply with the requirement of Circular 1010.

11. In this regard, the Claimant argues that the “Pancyprian Footballers Association (PASP), which is the official representative of the professional football players and the official branch of FIFPro in Cyprus, has not participated in the constitution of the CF A DRC. By means of its letter dated 10 January 2022

(Exhibit 13) the professional players union in Cyprus clarifies that the CF A DRC "is not an independent arbitration tribunal since it is exclusively managed and operated by the CF A. What is more, the PASP was not involved in the appointment of the members of the NDRC and, consequently, the players are not represented in the NDRC'.”

12. Hence, according to the Claimant the Cypriot NDRC does not respect the principle of parity and

equal representation.

13. The Claimant further sustains that the Private Agreement is an integral part of the employment relationship between the parties. In this regard, the Claimant deems that: - The term of the Private Agreement is identical to the term of the Contract; - The Private Agreement provides the payment of a "salary" against the Player's services, payable at the exact same dates and under the same terms as the salary provided in the Employment Contract; - The "salary" paid under the Private Agreement is severely higher than the salary provided under the Employment Contract which, under normal circumstances is non-sensical given that the Player was hired by the Club primarily for his football abilities; the exploitation of the Player's image is only secondary to his football services. pg. 4

REF. FPSD-10627 - The Private Agreement also contains several elements that constitute a typical part of an employment agreement ( accommodation, use of a car and round - trip air tickets). - The exploitation of the Player's image rights is adequately provided in Article 4 of the Standard Employment Contract and therefore, any additional agreement in this regard is redundant

14. As such, the Claimant claims that the Private Agreement shall be considered a part of the

Contract.

15. The Claimant files that since the Contract does not provide for a salary for the month of June, he is not entitled to any compensation.

16. However, the Claimant requests EUR 17,000 as overdue amounts, calculated as follows: - The net amount of EUR 6,000 against the salary for March 2023; - The net amount of EUR 6,000 against the salary for April 2023; - The net amount of EUR 5,000 against the salary for May 2023;

17. The Claimant filed the following requests for relief: - Uphold the present claim; - Determine that the Employment Agreement was terminated by the Player withjust cause; - Order the professional football club Olympiakos Nicosia to pay to the professional player Fiorin

Durmishaj the total net amount of 17,000€ against outstanding salaries under the Employment Agreement, with the applicable interest, at the rate of 5% p.a., starting accrued as of the next day since each respective sum fell due until the date of effective payment; - Impose the appropriate sporting sanctions on Olympiakos Nicosia, pursuant to the applicable provisions of the FIFA RSTP; - Order Olympiakos Nicosia to bear the entire procedural costs of the present proceedings, if any; b. Position of the Respondent

18. In its reply, the Respondent deems that the DRC has no competence to hear the claim.

19. The Respondent refers to art. 22.4.3 of the CFA RSTP, according to which “two of the ordinary members of the NDRC are elected by the CFA and another two ordinary members are elected by the

PASP”.

20. The Respondent insists that “The four members of the NDRC shall, within 15 days of their appointment, elect the vice chairman. Then, the same members shall elect the chairman of each body.

Both the chairman and the vice-chairman will be independent.” pg. 5

REF. FPSD-10627

21. The Respondent concludes that “If, for any reason whatsoever, the 4 members of the NDRC cannot reach a decision on the chairman or vice chairman, the CFA and PASP agreed to authorise the Cyprus Bar Association to appoint these persons. Needless to say, the Cyprus Bar Association is an office which is totally independent and has no ties either with the CFA, or with the PASP.”

22. In the view of the Respondent, “This is in full compliance with Circular 1010. Which demands that the two sides have equal influence over the appointment of arbitrators.”

23. The Respondent defends that “the CFA NDRC is in no way exclusively managed and operated by the CFA. Neither is it true that the players’ representatives are appointed by the CFA or the clubs. PASP

agreed and consented to the regulations concerning the CFA NDRC procedures and composition.”

24. The Respondent the “CFA NDRC has been approved by FIFA”.

25. The Respondent sustains that the DRC is not competent to hear the claim as to the Private

Agreement.

26. According to the Respondent, it had not received the termination letter since “the CFA competitions ended before the end of May. And all players left for holidays. Having in mind that the Player’s contract was to expire at the end of the season, there was not any reason anyway why he should had made any termination after the end of the season and whilst he and all other players left for their home countries.”

27. For the above, the Respondent deems that the termination of the contract was without just cause.

28. The Respondent concluded stating that it paid the amount of EUR 470,12 for the Player’s debt towards his landlord.

c. Replica of the Claimant

29. The Claimant states that “equating the appointment of the players' representatives in an NDRC by the recognized Union of Professional Players in said country with them being appointed by the Bar Association - which has no connection and expertise on the football market whatsoever - is a nonsensical allegation, it is also contradictory with the legal requirements set in the FIFA National Dispute

Resolution Chamber (NDRC) Standard Regulations”.

30. The Claimant insists that “the appointment of said representatives by the Cyprus Bar Association is in clear breach of the legal principles set in the FIFA NDRC Regulations”.

31. The Claimant reiterates that there are currently no PASP representatives in the CFA NDRC's composition.

32. As to the alleged lack of receival of the termination notice, the Claimant states that on 22 June 2023, he was contacted by the new Respondent’s treasurer.

33. As to the alleged payment to the Claimant’s landlord, the Claimant states that there is “no evidence whatsoever that the Club has made any payment towards the landlord”. pg. 6

REF. FPSD-10627

d. Duplica of the Respondent

34. Despite being invited to file a final submission, the Respondent failed to do so.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

35. 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 20 June 2023 and submitted for decision on 15

September 2023. 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.

36. 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 competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Greek player and a Cypriot club.

37. 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.

38. 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 guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs.

39. 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.

40. 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 pg. 7

REF. FPSD-10627 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.

41. 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”.

42. With the aforementioned principles in mind, the Chamber went on to examine the documentation presented by the Respondent and noted that the arguments of the Claimant regarding the nomination of arbitrators by the Cypriot Bar Association remain uncontested by the Respondent.

43. 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.

44. 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.

45. 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 (May 2023 edition) and considering that the present claim was lodged on 20 June 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Admissibility

46. The Chamber noted that the present matter involves two contractual agreements, the Contract and the Private Agreement. pg. 8

REF. FPSD-10627

47. In this regard, the Chamber recalled that, as a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it. However, such conclusion might be different if specific elements of the separate agreements suggest that it was in fact meant to be part of the actual employment relationship. In the case at hand, such elements appear to exist since the different agreements are intimately intertwined. Firstly, the contracts have the same duration. Secondly, the Private Agreement includes employment related payments such as flight tickets and accommodation.

48. Based on the above, the Chamber determined that two agreements between the parties are to be considered part of the employment relationship, and thus that all documents should be entertained together.

c. Burden of proof

49. 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). d. Merits of the dispute

50. 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 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 the assessment of the matter at hand.

1. Main legal discussion and considerations

51. 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 justice of the early termination of the contract by the Claimant, based on the alleged non-payment of certain financial obligations by the Respondent as per the contract, in accordance with art. 14bis of the Regulations.

52. In this context, the Chamber acknowledged that its task was to determine, based on the evidence presented by the parties, whether the claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had in fact been fulfilled.

53. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the pg. 9

REF. FPSD-10627 debtor club to fully comply with its financial obligation(s).

54. The Chamber noted that the Claimant claims not having received his remuneration corresponding to the months of March, April and May 2023. Furthermore, the Chamber noted that the Claimant has provided written evidence of having put the Respondent in default on 24 May 2023, i.e. at least 15 days before unilaterally terminating the contract on 15 June 2023.

55. The Chamber also noted that in the case at hand the Respondent bore the burden of proving that

it indeed complied with the financial terms of the contract concluded between the parties. Nonetheless, the evidence provided by the Respondent does not prove beyond doubt the payment of the amounts claimed as outstanding by the Claimant. The Respondent has solely submitted an alleged payment to the alleged Claimant’s landlord. However, the evidence submitted does not prove the payment of any amount.

56. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the contract, based on art. 14bis of the Regulations. ii. Consequences

57. 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.

58. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to three salaries under the contract, amounting to EUR 17,000.

59. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 17,000.

60. 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 Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date of effective payment.

61. Having stated the above, the Chamber turned to the matter of compensation payable to the player by the club in the case at stake. In doing so, the Chamber observed that the Claimant does not claim any compensation since no remuneration was due between the termination and the expiry of the Contract. Thus, the Chamber confirmed that due to the particular contractual constellation and specificities at hand, no compensation shall be paid. iii. Compliance with monetary decisions

62. 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. pg. 10

REF. FPSD-10627

63. 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.

64. 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.

65. 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.

66. 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. e. Costs

67. 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.

68. 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.

69. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 11

REF. FPSD-10627

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Fiorin Durmishaj, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, Olympiakos Nicosia, must pay to the Claimant the following amount(s): - EUR 17,000 as outstanding remuneration plus 5% interest p.a. as follows: On EUR 6,000 from 1 April 2023 until the date of effective payment; On EUR 6,000 from 1 May 2023 until the date of effective payment; On EUR 5,000 from 1 June 2023 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. Full payment (including all applicable interest) shall be made to the bank account indicated in the

enclosed Bank Account Registration Form.

6. 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.

7. 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.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 12

REF. FPSD-10627

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 FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 13