FIFA - Decisión disputa Loria 24082023

REF. FPSD-10881

Decision of the Dispute Resolution Chamber passed on 24 August 2023 regarding an employment-related dispute concerning the player Giorgi Loria BY: Stefano Sartori (Italy)

CLAIMANT:

Giorgi Loria, Georgia Represented by Yury Zaytsev

RESPONDENT:

ANORTHOSIS FAMAGUSTA, Cyprus pg. 2

REF. FPSD-10881

I. Facts of the case

1. On 2 March 2022, the Georgian player, Giorgi Loria (hereinafter: the Claimant), and the Cypriot club, Anorthosis Famagusta (hereinafter: the Respondent) signed an employment contract (hereinafter: “the contract”) valid as from 1 June 2022 until 30 June 2024.

2. On 15 March 2022, the Claimant and the Respondent signed a Supplementary Agreement to the contract.

3. Clause 13 of the employment contract stipulates: “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 27 June 2023, the Claimant and Respondent concluded a termination agreement

(hereinafter: “termination agreement”) by means of which they agreed to mutually terminate the contract.

5. In accordance with the termination agreement, the Respondent agreed to pay to the Claimant the total amount of EUR 85,000 (eighty-five thousand euro) net as follows: - EUR 20,000 net on or before 28 June 2023; - EUR 20,000 net on or before 15 July 2023; - EUR 25,000 net on or before 15 August 2023; - EUR 20,000 net on or before 10 September 2023.

6. Clause 5 of the termination agreement stipulates:

“All the payments in [clause] “4” shall enjoy a 5 days grace period. If the Club fails to make any of these payments by the due date and after the lapse of the 5-day grace period, the Club will immediately pay to the Player the rest of the payments stipulated in clause 4 with 5% interest p.a. from the date of any supposed payment until the effective date of the payment plus a contractual penalty of EUR 20.000 (twenty thousand euro) net. Considering that the Employee waived of the significant part of his income for the season 2023/2024, this contractual penalty is recognized by the Parties fair and proportional. This clause is recognized by both Parties as essentialia negotii.”

7. Clause 6 of the termination agreement stipulates: “Any dispute arising out of the present agreement shall fall within the exclusive jurisdiction of

FIFA Tribunal.”

8. On 4 July 2023, the Claimant put the Respondent in default and requested payment of the pg. 3

REF. FPSD-10881 amount of EUR 85,000 net as outstanding amount and contractual penalty of EUR 10,000 by 5 July 2023, however to no avail.

II. Proceedings before FIFA

9. On 11 July 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. According to the Claimant, the Respondent failed to pay the first instalment due as per the termination agreement therefore in accordance with clause 5 of the said agreement, “if the Club fails to make any of stipulated payments by the due date and after the lapse of the 5 (five) day grace period, the Club shall immediately pay to the Player the complete amount of EUR 85,000 with 5% interest p.a. from the date of supposed payment until the effective date of the payment. The first instalment under the Termination Agreement fell due

on 28 June 2023. However, the Respondent failed to pay the abovementioned amount neither in due time nor within the 5day grace period (by 3 July 2023).”

11. The requests for relief of the Claimant, were that the Respondent to pay him the following amounts: - EUR 20,000 net as outstanding remuneration plus 5 % interest p.a. as from 29 June 2023 until the date of effective payment; - EUR 65,000 net as outstanding remuneration plus 5 % interest p.a. as from 5 July 2023 until the date of effective payment; - EUR 20,000 net as contractual penalty.

b. Position of the Respondent

12. In its reply, the Respondent contested the competence of FIFA in favour of the National Dispute Resolution Chamber of the Cyprus Football Association (NDRC Cyprus), in accordance with its clause 13 of the contract.

13. As to the merits, the Respondent mentioned the following: “The Player should not be allowed to proceed with the present claim because after the club delayed to pay the first instalment they parties discussed over the phone and the player accepted to be paid the whole amount, EUR 85,000, until 10/09/2023, i.e. when the last instalment would have been paid according to the settlement agreement.

The Player never even informed the club that he was no longer willing to wait until 10/09/2023 or that he wanted to proceed with a claim to FIFA. pg. 4

REF. FPSD-10881

For this reason, the Player is not entitled to any penalty and this claim of him must also be rejected.” pg. 5

REF. FPSD-10881

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred

to as Single 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 11 July 2023 and submitted for decision on 24 August 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.

15. Subsequently, the Single Judge 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 May 2023 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Georgian player and a Cypriot club.

16. Subsequently, the Single 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 Players (May 2023 edition), and considering that the present claim was lodged on 11 July 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

17. The Single Judge 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 Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties, including without limitation the evidence

generated by or within the Transfer Matching System (TMS). c. Admissibility.

18. The Single Judge 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. pg. 6

REF. FPSD-10881

19. In this respect, the Single Judge noted that the contract at the basis of the dispute i.e. the termination agreement did not contain any jurisdiction clause whatsoever in favour of the

NDRC of Cyprus.

20. As a consequence, the Single Judge was of the opinion that the first pre-requisite for establishing the competence of an NDRC was not met, and therefore, without the need to enter the analysis of any further requirement, he 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

21. His competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single 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.

1. Main legal discussion and considerations

22. The foregoing having been established, the Single Judge moved to the substance of the matter and took note that the parties strongly dispute the total amount that was outstanding and due to the Claimant as per the termination agreement concluded between the parties on 27 June 2023.

23. In this context, the Single Judge acknowledged that his task was to determine whether the

amounts claimed by the Claimant had indeed already fallen due and were to be paid by the Respondent.

24. The Single Judge noted that in its submission, the Respondent argued that it reached an agreement with the Claimant to pay the outstanding remuneration on 10 September 2023, however that the Respondent failed to provide any corroborating evidence to substantiate its argument. Furthermore, no reasonable justification was presented by the Respondent for not having complied with the terms of the termination agreement.

25. In this context, the Single Judge mentioned that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant. pg. 7

REF. FPSD-10881

26. On account of the the above the Single Judge concluded that the Respondent was indeed in arrears of its financial obligations as per the termination agreement and is thus to be held liable for the consequences thereof. ii. Consequences

27. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of the termination agreement committed by the

Respondent.

28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the outstanding remuneration of EUR 85,000.

29. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding remuneration as from the respective due dates until the date of effective payment.

30. On analysis of the wording of Clause 5 of the termination agreement, the Single Judge concluded that that the said clause would be triggered should the Respondent fail to pay

the instalments as agreed to in the termination agreement after the lapse of the 5-day grace period, consequently evoking the payment of a penalty of EUR 20,000.

31. In this respect, the Single Judge recalled the jurisprudence of the Football Tribunal, in accordance with which penalties will be considered disproportionate when they constitute an amount that represents more than 50% of the principal outstanding amount. The Single Judge therefore deemed that the penalty of EUR 20,000 is to be considered reasonable and proportionate and as a result, concluded that the Claimant was entitled to the contractually stipulated agreed penalty. iii. Compliance with monetary decisions

32. Finally, taking into account the applicable Regulations, the Single Judge 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.

33. In this regard, the Single 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods. pg. 8

REF. FPSD-10881

34. Therefore, bearing in mind the above, the Single Judge 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.

35. 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.

36. The Single Judge 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

37. The Single Judge 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.

38. Likewise, and for the sake of completeness, the Single Judge r recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

39. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-10881

Decision of the Dispute Resolution Chamber

1. The Football Tribunal has jurisdiction to hear the claim of the claimant, Giorgi Loria.

2. The claim of the Claimant, Giorgi Loria, is accepted.

3. The Respondent, ANORTHOSIS FAMAGUSTA, must pay to the Claimant the following amount(s): - EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 29 June 2023 until the date of effective payment - EUR 65,000 as outstanding remuneration plus 5% interest p.a. as from 5 July 2023 until the date of effective payment - EUR 20,000 as outstanding amount

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. 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.

6. 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.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-10881

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. 11