F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 25 February 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stephane Burchkalter (France), member

Jerome Perlemuter (France), member

on the claim presented by the player,

Omar Tofic, Ghana

represented by Mr Yusuf Chibsah

as Claimant

and the club,

Rivers United FC, Nigeria

represented by Mr Aminu Yusuf

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 27 February 2019, the Ghanaian player, Omar Tofic (hereinafter: Claimant or player), and the Nigerian club, Rivers United FC (hereinafter: Respondent or club) concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 26 February 2021.

2. According to the contract, the player was entitled to the following remuneration:

- “Basic wage: 400,000 … per annum payable by monthly instalments in arrears from 2019 to 2021

- Bonuses:

o Home win: 50,000

o Away draw: 50,000

- Any other payments as follows:

o Away win: 100,000”

3. On the same day, i.e. 27 February 2019, it appears that the parties concluded another contract with the title “Five months professional contract agreement” (hereinafter: the agreement), valid as from the date of signature until 26 July 2019 or until the end of the season 2018-19, whichever comes first. The agreement stated that “this is regardless of the expiry date of 26th February, 2021 as stated in the Nigeria Professional Football League Schedule 22 page 18 of 20”.

4. The player contested ever signing the agreement and claimed that the club forged his signature on the relevant document.

5. The agreement provided the following:

6. By letter dated 1 July 2019, the club informed the player that it had no intention to extend the contract.

7. On 29 August 2019, the club signed a release letter which stated that “It is mutually agreed that the registration of the above named player be transferred to any club of his choice with no financial recourse to both parties. The Nigeria Football Federation (NFF) and the League Management Company (LMC) are thus notified and should act accordingly.”

8. On 3 September 2019, the player put the club in default, granting the latter 5 days to confirm that the player was still considered a player of the club and 15 days to pay the outstanding amount of NGN 1,050,000.

9. On 20 September 2019, the player terminated the contract.

10. On 23 September 2019, the player filed a complaint against the club in front of FIFA, requesting the following:

11. In support of his claim, the Claimant maintained that the Respondent had not paid a significant part of his remuneration when he terminated the contract. Indeed, the Respondent was in arrears of a total amount of Nigerian Naira (NGN) 1,050,000 consisting in the salaries for the months of July and August 2019 (NGN 800,000) and NGN 250,000 corresponding to bonus payments.

12. Regarding the bonus payments specifically, the Claimant provided the following details:

- The away win against Remo Stars on 31 March 2019 (NGN 100,000)

- The home win against Timber Loader on 15 June 2019 (NGN 50,000)

- The home win against Akwa United on 19 June 2019 (NGN 50,000)

- The home win against Warri on 22 June 2019 (NGN 50,000).

13. The Claimant further alleged that in August 2019, the Respondent allegedly told him that he was no longer under contract.

14. The Claimant stated that the Respondent had failed to reply to his default notice dated 3 September 2019 regarding the payment of his outstanding remuneration.

15. In light of the above, the Claimant claimed to have had just cause to terminate the contract on 20 September 2019.

16. In reply to the claim, the Respondent first held that it had paid all the outstanding salaries due to the Claimant.

17. The club then considered that the agreement superseded the contract. As such, the “option to sign a short contract for five months was validly exercised and the contract relationship came to an end of the Nigeria Professional Football League season June 2019”.

18. In these circumstances, the club deemed it had no reason to continue paying the player, as he was no longer under contract.

19. According to the club, the player left Nigeria before the end of the Aiteo Cup but played in 4 matches between 31 March and 23 June 2019. As such, the club acknowledged the player’s claim for the payment of his bonuses but explained that “he had left the country with no contact address and Bank account was already dormant”. Moreover, the club could not pay the amounts directly to the player’s representative as the latter did not have a valid power of attorney.

20. The club further contested to have ever received the player’s default notice dated 3 September 2019 and the termination letter dated 20 September 2019. The club held that it would have reacted if it had received the said correspondence from the player.

21. Upon request from the FIFA administration for further clarifications, the player asserted that the signature on the agreement was not his and “it must therefore have been forged”.

22. The player further held that Mr Nnamdi Nwaeze, who is identified in the agreement as the player’s legal representative, has in reality never been appointed by the player.

23. In this regard, the player claimed that Mr Nwaeze contacted him via a WhatsApp message on 31 October 2019, i.e. 7 days after FIFA sent the player’s claim to the club, to ask him to sign a power of attorney dated 27 February 2019.

24. This power of attorney “would authorise Mr Nwaeze to, amongst others, sign documents on the Player’s behalf, including for the relationship with Rivers United FC”.

25. The player concluded that the above is clear evidence that Mr Nwaeze and the club collaborated in order to “distort the facts of this case”.

26. Equally, upon request of FIFA, the club provided the original copy of the agreement, which appears to contain the player’s signature.

II. Considerations of the Dispute Resolution Chamber

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 23 September 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January 2020) 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 Ghanaian player and a Nigerian club.

3. Furthermore, 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 (edition January 2020), and considering that the present claim was lodged on 23 September 2019, the June 2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. 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 the documentation submitted by the parties. 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.

5. What remained undisputed by the parties is that they concluded an employment contract on 27 February 2019. In this context, two separate documents were provided to prove the existence of a contractual relationship: the contract and the agreement; however, the player denied ever signing the agreement and alleged that his signature on the said document had been forged. The Respondent, for its part, denied any allegations of forgery and alleged that the contract and the agreement superseded the contract. As such, the Respondent stated that the “option to sign a short contract for five months was validly exercised and the contract relationship came to an end of the Nigeria Professional Football League season June 2019”.

6. At this stage, the DRC considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signature or document, and that such affairs fall into the jurisdiction of the competent national criminal authority.

7. Furthermore, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, he focused its attention on the agreement as well as on other documents containing the Claimant’s signature, provided by the parties in the context of the present dispute. In this regard, the Chamber pointed out that the original version of the agreement was provided by the Respondent.

8. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures of the Claimant in the various documents provided in the present affair, the DRC had no other option but to conclude that, for a layman, the signatures on such documents appear to be the same.

9. Consequently, the Chamber held that it must consider the agreement as having a binding effect on the Claimant. Therefore, it is to be understood that the employment relationship came to an end in June 2019, i.e. at the end of the season 2018/2019. Indeed, with its letter dated 1 July 2019, the Respondent had indicated to the Claimant that it did not wish to extend their employment contract beyond the end of the season 2018/2019.

10. With this established, the DRC reverted to the Claimant’s claim. With regard to his claim for compensation for breach of contract, such claim does not have a basis since the contract had expired at the end of June 2019. Equally, any amounts claimed as outstanding remuneration beyond the month of June 2019 must be rejected.

11. Nonetheless, the Claimant also claims outstanding remuneration, in particular the bonus payments for matches played in the total amount of NGN 250,000. In this regard, the Chamber duly noted that the Respondent had acknowledged being in debt towards the player of such amounts, but that it could not proceed to the relevant payments after the expiry of the contract, as the player’s bank account was “dormant”.

12. In view of the above, the Chamber decided that, according to the principle of pacta sunt servanda, the Respondent must pay the Claimant outstanding bonus payments in the amount of NGN 250,000, plus 5% interest p.a. on said amount as from the respective due dates, as follows:

- 5% interest p.a. on the amount of NGN 100,000 as from 1 April 2019 until the date of effective payment;

- 5% interest p.a. on the amount of NGN 50,000 as from 17 June 2019 until the date of effective payment;

- 5% interest p.a. on the amount of NGN 50,000 as from 20 June 2019 until the date of effective payment;

- 5% interest p.a. on the amount of NGN 50,000 as from 24 June 2019 until the date of effective payment.

13. In continuation, the Chamber also noted that the agreement provided for the payment of NGN 500,000 as “five months contract fee”, and that there was no evidence on file that such amount had been duly paid to the player.

14. As a consequence, the Chamber also decided that the Respondent must pay the Claimant the outstanding amount of NGN 500,000 plus 5% interest as of 1 July 2019.

15. In addition, as regards the claimed legal expenses in the amount of USD 1,000, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request relating to legal expenses.

16. Furthermore, taking into account the consideration under number II./3. 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.

17. 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.

18. 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.

19. 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.

20. The Chamber concluded its deliberations by establishing that the claim is partially accepted. Any further claims of the Claimant are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Omar Tofic, is partially accepted.

2. The Respondent, Rivers United FC, has to pay to the Claimant outstanding remuneration in the amount of Nigerian Naira (NGN) 750,000, plus interest as follows:

- NGN 500,000, plus 5% interest p.a., as from 1 July 2019 until the date of effective payment;

- NGN 100,000, plus 5% interest p.a., as from 1 April 2019 until the date of effective payment;

- NGN 50,000, plus 5% interest p.a., as from 17 June 2019 until the date of effective payment;

- NGN 50,000, plus 5% interest p.a., as from 20 June 2019 until the date of effective payment;

- NGN 50,000, plus 5% interest p.a., as from 24 June 2019 until the date of effective payment.

3. Any further claim lodged by the Claimant is rejected.

4. 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. 2. above.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with point III.2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due in accordance with point III.2. 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 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).

7. The ban mentioned in point III.6. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned sums are 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 DRC. 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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 point 2 of the directives issued by the CAS. 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

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer