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 10 February 2020

Decision of the Dispute Resolution Chamber (DRC) judge

passed on 10 February 2020,

by

Daan de Jong (The Netherlands)

on the claim presented by the player,

Chukwuma Emmanuel Akabueze, Nigeria

represented by Mr Talat Emre Kocak

as Claimant

against the club,

Boluspor FC, Turkey

represented by Mr Oytun Süllü

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 21 July 2018, the Claimant and the Respondent (hereinafter jointly referred to as: the parties) concluded a document titled “Protocol” (hereinafter: the protocol), valid as from the date of signature until 31 May 2019.

2. According to art. 5 of the protocol, the Respondent undertook to pay to the Claimant the total amount of Turkish Lira (TL) 928,000, in nine instalments. The Claimant was also entitled to a rent allowance in the total amount of TL 10,000, corresponding to TL 1,000 per month for the period between August 2018 and May 2019.

3. On 1 August 2018, the parties concluded an employment contract (hereinafter: the contract) valid as from 1 August 2018 until 31 May 2019.

4. Pursuant to art. 3 of the contract, the Respondent undertook to pay to the Claimant the “MINIMUM LEGAL WAGE” and an appearance fee in the amount of TL 100,000 for the season 2018/2019. This appearance fee was to be calculated taking into account the 34 games of the Turkish First Division League. The details of said payment were further set out in art. 3 of the contract, depending on the Claimant’s participation in games.

5. According to art. 8 of the contract, the Claimant also confirmed that he “accepts the decisions of the Club Board, obeys the Professional Disciplinary Regulations of the club, he is given one copy of the 2018/2019 football season disciplinary regulations while he signes the contract, he declares and accepts that he signed every single page of the regulations, the fines will be deducted from his earnings, and in the following years of his contract, if the disciplinary regulations are not changed, he accepts and confirms that the same regulations continues in the following years.”

6. On 15 June 2019, the Claimant put the Respondent in default for the payment of EUR 78,000 and TL 436,250, corresponding to the “advance payment” and the salaries of January until May 2019.

7. On 4 July 2019, the Claimant lodged a claim against the Respondent in front of FIFA, claiming the total amount of TL 436,250, corresponding to the monthly salaries of January until May 2019, i.e. TL 87,500 each. The Claimant further requested that his legal costs and the costs of the proceedings be borne by the Respondent.

8. In his claim, the Claimant argued that the Respondent had failed to pay his monthly salaries from January to May 2019, as set out in the protocol.

9. In its reply to the claim, the Respondent deemed that it had paid to the Claimant the total amount of TL 606,566.24 for the period between August 2018 and May 2019. As evidence, the Respondent provided several payment confirmations.

10. Moreover, the Respondent held that it had imposed several fines on the Claimant “based on defeat” for 4 games in the total amount of TL 29,000. In this regard, the Respondent provided a confirmation signed by the Claimant, whereby he indicated that “I acknowledge and accept that Boluspor Club shall deduct the fine amount from my renumerance”.

11. In light of the above, the Respondent requested that the claim of the Claimant be fully rejected.

12. In his replica, the Claimant reiterated the content of his claim and highlighted that the parties signed two contracts, which are “cumulative” as they regulated “different issues”. In this context, the Claimant recalled that he was entitled to a total amount of TL 938,000 according to the two contracts.

13. Furthermore, the Claimant argued that he should also be entitled to TL 94,112 for starting in 32 games, as per the appearance fee set out at art. 3 of the contract.

14. In addition, the Claimant denied ever receiving a payment of TL 600 on 31 May 2019 and contested ever signing or agreeing to pay back flight tickets to the Respondent.

15. Finally, the Claimant rejected the imposition of fines by the Respondent. In this regard, the Claimant held that he could not be fined for “something which does not lie in his sole sphere of influence, but depends on many other factors”. This said, the Claimant did not clearly contest having signed the confirmation accepting the payment of the fines.

16. In its duplica, the Respondent reiterated its previous position, alleging that it had paid the total amount of TL 635,566.24 to the Claimant.

17. The Respondent also considered that the protocol “cannot be considered as an addition to the second professional football player transfer contract”, as it was only signed as a “preliminary protocol before making a final contract”.

18. Finally, the Respondent stressed that the Claimant had signed and accepted the imposition of fines.

II. Considerations of the Dispute Resolution Chamber judge

1. First, the Dispute Resolution Chamber judge (hereinafter also referred to as: the judge) analysed whether he was competent to deal with the matter at stake. In this respect, he took note that the present matter was submitted to FIFA on 4 July 2019. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the judge 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 2019), he was competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between a Nigerian player and a Turkish club.

3. In continuation, the 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 (edition June 2019), and considering that the present claim was lodged on 4 July 2019, the June 2019 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

4. The judge also recalled the content of art. 9 par. 1 lit. e) of the Procedural Rules, according to which all documents of relevance to the dispute must be submitted in the original version, and, if need be, translated into one of the four official FIFA languages (English, Spanish, French, and German). In this regard, the judge highlighted that failure to provide the necessary translation may result in the documents in question being disregarded.

5. Finally, the judge recalled that according to 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.

6. The competence of the Dispute Resolution Chamber judge and the applicable regulations having been established, the judge entered into the substance of the matter. In this respect, he started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. However, the 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.

7. First, the judge noted that the parties concluded the proposal on 21 July 2018, valid as from the date of signature until 31 May 2019, according to which the Claimant was entitled to the total amount of TL 928,000, payable in nine instalments, as well as a rent allowance in the total amount of TL 10,000, payable in ten monthly instalments of TL 1,000.

8. Second, the judge noted that the parties entered into an employment contract on 1 August 2018, valid as from the date of signature until 31 May 2019, whereby the Respondent undertook to pay to the Claimant the minimum legal wage and appearance fees in the total amount of TL 100,000 for the season 2018/2019, depending on the Claimant’s participation in games.

9. The judge also observed that pursuant to the contract, the Claimant accepted to abide by the decisions taken by the Respondent and that fines may be deducted from his earnings.

10. In continuation, the judge noted that the Claimant lodged a claim against the Respondent, claiming the total amount of TL 436,250, as his monthly salaries from January until May 2019. On the other hand, the judge took note of the Respondent’s position according to which it would have paid to the Claimant the total amount of TL 606,566.24 over the contractual period, i.e. August 2018 to May 2019.

11. Having established the aforementioned, the judge deemed that the first underlying issue in the present dispute was to determine whether the protocol and the contract were both valid and binding or whether the conclusion of the contract had annulled the validity of the protocol.

12. In this regard, the judge took good note of the Claimant’s position that both documents were “cumulative” given that they “regulated different issues”. On the other hand, the judge observed that the Respondent considered that the protocol “cannot be considered as an addition to the second professional football player transfer contract”, as it was only signed as a “preliminary protocol before making a final contract”.

13. The judge proceeded to analyse both the protocol and the contract and observed that the issues covered are slightly different.

14. First, the contract only mentions the payment of the “minimum legal wage” and appearance fees in favour of the Claimant, while the protocol contains a detailed payment structure. This detailed payment structure, as mentioned in the protocol, consists of nine monthly instalments and mentions that “(m)inimum wages of the player are calculated and included in the above payment schedule”.

15. Second, the judge noted that the protocol contains the payment of a rent allowance to the Claimant in the amount of TL 1,000 per month. The contract, on the other hand, does not contain any provision as regards the payment of a rent allowance.

16. Taking the above into account, the judge concluded that the contractual relationship between the parties may only be complete if both the protocol and the contract are read together. By deciding otherwise, the Claimant would not be entitled to certain amounts, which were in fact agreed upon between the parties.

17. Therefore, the Dispute Resolution Chamber judge decided that the protocol and the contract are both valid and binding. As such, the Claimant is entitled to the remuneration as stipulated in art. 5 of the protocol and art. 3 of the contract.

18. Having established the above, the judge considered that the second underlying issue was to determine whether the Respondent had complied with its financial obligations.

19. In this context, the judge observed that the alleged payment confirmations, submitted by the Respondent, were not translated into an official language of FIFA (English, Spanish, French or German). Pursuant to art. 9 par. 1 lit. e) of the Procedural Rules, the judge recalled that the failure to provide the necessary translation shall result in the documents in question being disregarded.

20. Moreover, the judge noted that the Respondent failed to indicate the nature of each payment allegedly made to the Claimant. From the documentation submitted by the Respondent, the judge observed that it was impossible to determine whether the alleged payments corresponded to salaries, appearance fees, rent allowances or to payments of another nature.

21. As regards the imposition of fines by the Respondent, the judge observed that the Claimant appeared to have signed a document whereby he accepted that fines would be deducted from his salary. Moreover, the judge recalled the content of art. 8 of the contract, according to which the Claimant consented to fines imposed by the Respondent.

22. Notwithstanding the above, the judge analysed the nature of the fines which were in dispute. By doing so, the judge observed that according to the Respondent, the several fines imposed on the Claimant, in the total amount of TL 29,000, were “based on defeat” for 4 games.

23. In this regard, the judge recalled that art. 8 of the contract only concerns the imposition of fines in the context of disciplinary proceedings. This said, the judge observed that the reason invoked by the Respondent, i.e. “based on defeat” for 4 games, was not of a disciplinary nature.

24. Therefore, the judge decided that the amount of TL 29,000, imposed by the Respondent on the Claimant as fines, may not be taken into account.

25. In view of the above, the judge concluded that it had not been established that the Respondent had paid the outstanding remuneration claimed by the Claimant.

26. Therefore, the judge decided that the Claimant is entitled to the amount of TL 436,250 as outstanding remuneration for the months of January until May 2019.

27. In addition, taking into account the Claimant’s request, the judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of TL 436,250 as of the due dates until the date of effective payment.

28. Consequently, in view of all of the above, the Dispute Resolution Chamber judge decided that the Respondent must pay the amount of TL 436,250, plus 5% interest p.a. as from the due dates until the effective date of payment, to the Claimant.

29. In light of the above, the judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

30. Furthermore, the 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.

31. In this regard, the judge 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.

32. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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, 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.

33. Finally, the judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber judge

1. The claim of the Claimant, Chukwuma Emmanuel Akabueze, is partially accepted.

2. The Respondent, Boluspor FC, has to pay to the Claimant the amount of TL 436,250, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as from 1 February 2019 on the amount of TL 87,250;

b. 5% p.a. as from 1 March 2019 on the amount of TL 87,250;

c. 5% p.a. as from 1 April 2019 on the amount of TL 87,250;

d. 5% p.a. as from 1 May 2019 on the amount of TL 87,250;

e. 5% p.a. as from 1 June 2019 on the amount of TL 87,250.

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 email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount plus interest mentioned under point 2. above.

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

6. In the event that the amount due in accordance with point 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 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the amount due in accordance with point 2. 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.

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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 relating 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). 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 judge:

Emilio García Silvero

Chief Legal & Compliance Officer