F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 10 March 2021

Decision of the

Dispute Resolution Chamber Judge

passed on 10 March 2021

regarding an employment-related dispute concerning the player Samson Olanrewaju Akinyoola

BY:

Pavel Pivovarov (Russia), DRC Judge

CLAIMANT:

Samson Olanrewaju Akinyoola, Benin

Represented by Pedro Maceirinha

RESPONDENT:

FK Senica, Slovakia

I. FACTS OF THE CASE

1. On 22 August 2019, the Beninese player Samson Olanrewaju Akinyoola (hereinafter: Claimant), and the Slovakian club, FK Senica (hereinafter: Respondent) signed an employment contract valid as from 1 July 2019 until 30 June 2022 (hereinafter: the contract).

2. In accordance with the contract, the Respondent undertook to pay to the Claimant inter alia the following amount:

“2. The monthly salary shall amount to 500 € gross during the period of 1 September 2019 until and including 31 December 2019 and 1000 € gross during the period of 1 January until and including 30 June 2020 (holiday allowance included).

3. The monthly salary shall amount to 1.500 € gross during the period of 1 July 2020 until and including 30 June 2021.

4. The monthly salary shall amount to 2.500 € gross during the period of 1 July 2021 until and including 30 June 2022.

5. The Player's basic monthly wage shall be paid no later than on the last day of the following month.

6. The Club provides accommodation in Senica, value rent maximum of 350 € per month (including payment for electricity, gas, water)”

3. Clause 10.5 of the contract inter alia reads as follows:

“The Club may cancel this Contract unilaterally, if:

(…) the player is not capable of performing his sporting duties under this Contract for a long period of time - minimum 6 month; the incapability of the Player to perform sporting duties due to health conditions shall be supported by an opinion of the Club's medical advisers (…)”.

4. Clause 10.7 of the contract reads as follows:

“This Contract shall be governed by and construed in accordance with Slovak law”.

5. By correspondence dated 29 October 2020, the Respondent sent a notice of termination to the Claimant. This notice of termination included inter alia the following terms:

“The player has undergone several medical examinations. which have shown that his state of health does not allow him to perform the sports activities of a professional football player under the conditions set out in Art. 2 and 3 of the contract. For that reason, FK Senica Immediately cancels the Professional employment contract to the player (…) in accordance with Art. 10.”

6. On 30 November 2020, the Claimant put the Respondent in default in writing for breach of contract without just cause and granted a 10 days’ deadline to remedy the default, to no avail.

7. On date 1 January 2021, the Claimant and the Venezuelan club, Caracas FC (hereinafter: Caracas) signed an employment contract valid as from date of signature until 31 December 2023 with a salary of USD 3,000 per month.

II. PROCEEDINGS BEFORE FIFA

8. On 14 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

9. The Claimant states that according to Article 18.4 of the FIFA Regulations on the Status and Transfer of Players (RSTP): "The validity of a contract may not be made subject to a successful medical examination and/or the grant of work permit".

10. Therefore, the Claimant further argues that Article 10.5 a) of the contract and paragraph one of the Annex n. 1 are null and void.

11. Moreover, according to the Claimant, he was always capable to of performing his sporting duties under the contract.

12. The requests for relief of the Claimant, were the following:

a. The Respondent shall pay to the Claimant the compensation equal to the remuneration and allowance due to the player under the time remaining of the contract calculated as follows:

i. EUR 12,000 gross as salary for the period of 1 November 2020 until 30 June 2021 (1.500 x 8 months= 12.000)

ii. EUR 30,000 gross as salary agreed for the period of 1 July 2021 until 30 June 2022 (2.500 x 12 months = 30.000)

iii. Interests calculated at 5% rate since 1 November 2020 until full payment

b. Position of the Respondent

13. According to the Respondent, based on Annex no. 1 to the contract, it will be valid after the player has passed the medical exams successfully, hence the contract had in fact never became valid and effective.

14. The Respondent states that it does not possess any medical reports on Claimant’s health prior to reports from August and September 2020 which were requested by the Respondent.

15. It is further argued that according to the medical reports, the Claimant’s health condition is probably of “inborn nature and in that case it seems at least very hazardous to even try to perform professional sports and risk fatal consequences”.

16. According to the Respondent, the Claimant failed to include the medical reports provided by the Respondent in the termination letter, “in clear lack of good faith”. Moreover, the Respondent states that the medical reports attached to the termination letter show that the Claimant’s health status has not met basic requirements for professional sport performance.

17. The Respondent states that the most important findings of the medical reports concerning the Claimant´s health status are that “the risk of sudden death due to a fatal heart rhythm disorder cannot be ruled out”.

18. The Respondent further asserts that “There is zero chance that one can find any football club in the world willing to sign and play a player with heart condition which could possibly cause fatal consequences. There is no way our club would have signed a contract with the Claimant in case we were aware of such risk”.

19. The requests for relief of the Respondent were the following: “strictly object any relevance of the claims due to absence of valid agreement between our club and the Claimant. In case the decision making FIFA body should find the agreement between our club and the Claimant valid, we insist to have terminated the Professional employment contract in good faith and according to applicable law.”

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

20. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC 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 14 December 2020 and submitted for decision on 10 March 2021. Taking into account the wording of art. 21 of the January 2021 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.

21. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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 February 2021), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Beninese player and a Slovakian club.

22. Subsequently, the DRC 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 Player (edition February 2021), and considering that the present claim was lodged on 14 December 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

23. The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

24. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

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

i. Main legal discussion and considerations

26. The foregoing having been established, the DRC Judge moved to the substance of the matter, and took note of the fact that the player filed the claim at hand requesting compensation for breach of contract without just cause by the Respondent.

27. In this context, the DRC Judge acknowledged that his task was to assess:

a. Was there a valid agreement between the parties?

b. In the affirmative, did the Respondent terminate the agreement with just cause?

c. If not, what is the compensation due to the Claimant?

28. In this respect, the DRC Judge started by recalling that following art. 18 of the Regulations, as well as the well-established DRC jurisprudence, a contract may not be made subject to a successful medical examination.

29. In this regard, the DRC jurisprudence continuously demonstrates that it is important for a club to gather all relevant information and to be properly informed about the physical condition of the player before entering into a contract.

30. The DRC Judge emphasised that by not verifying the relevant facts about the Claimant, the Respondent had taken the risk of not making an informed decision about the Claimant’s health conditions. However, the DRC Judge stressed that by no means this could constitute a valid reason for the unilateral termination of the contract by the club.

31. In light of the aforementioned, the DRC Judge recalled that clauses allowing for early termination in case of injury or illness are not valid according to DRC jurisprudence and contravene art. 18 of the Regulations.

32. Hence, the DRC Judge scrutinized carefully the contractual provisions and came to the conclusion that the provisions of clause 10 transcribed in para. 3 above, shall be deemed null and void. Moreover, and following the same line of reasoning, the DRC Judge further determined that the statement included in Annex 1 of the Contract which reads: “The contract will be valid after the player bas passed the medical exams successfully” must be also considered null and void.

33. Based on the aforementioned, the DRC Judge rejected the Respondent’s arguments and confirmed that the parties had signed a valid and enforceable agreement and that the Respondent had terminated the contract without just cause on the 29 October 2020.

ii. Consequences

34. Having stated the above, the DRC Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the Respondent.

35. Having stated the above, the DRC Judge turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the DRC Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

36. In application of the relevant provision, the DRC Judge held that he first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC Judge established that no such compensation clause was included in the contract at the basis of the matter at stake.

37. As a consequence, the DRC Judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

38. The DRC Judge then proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract until the end of the term and determined that the Claimant would be entitled to receive from the Respondent salaries in the total amount of EUR 42,000.

39. In continuation, the DRC Judge verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

40. In the matter at hand, the DRC Judge confirmed that the Claimant had signed a new contract with Caracas valid from 1 January 2021 until 31 December 2023 with a salary of USD 3,000 per month.

41. Hence, the DRC Judge observed that for the remaining term of the contract, the Claimant had been able to mitigate an amount which was already higher than the compensation requested by the Claimant in the claim at hand.

42. Notwithstanding the above, the DRC Judge further noticed that the Claimant remained unemployed for the months of November and December 2020 and determined mitigation did not apply for that period and therefore, the Claimant remained entitled to the relevant salaries.

43. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC Judge decided that the club would be liable to pay EUR 3,000 to the player, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

44. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC Judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the compensation awarded as from the date of the claim.

iii. Compliance with monetary decisions

45. Finally, the DRC 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.

46. In this regard, the DRC 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 and for the maximum duration of three entire and consecutive registration periods.

47. Therefore, bearing in mind the above, the DRC 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.

48. The DRC Judge recalled that the above-mentioned bans 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.

49. Lastly, the DRC Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

50. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

51. Likewise, and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

52. Lastly, the DRC Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Samson Olanrewaju Akinyoola, is partially accepted.

2. The Respondent, FK Senica, has to pay to the Claimant, an amount of EUR 3,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 14 December 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email addresses 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 2 above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2 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 plus interest in accordance with point 2 above are 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 amounts are 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 amounts are paid.

8. In the event that the aforementioned sums plus interest 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.

For the DRC Judge:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED 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) 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 20 of the Procedural Rules).

CONTACT INFORMATION:

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