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 15 April 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 15 April 2020,

by Stijn Boeykens (Belgium), DRC judge

on the claim presented by the player,

Olanrewaju Muhammed Kehinde, Nigeria

represented by Mr Yakub Kizilkaya

as Claimant

against the club,

Denizlispor Kulübü, Turkey

represented by Mr Mustafa Serhan Altay

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 10 January 2019, the Nigerian player, Olanrewaju Muhammed Kehinde, (hereinafter: the Claimant), and the Turkish club, Denizlispor Kulübü, (hereinafter: the Respondent) concluded an employment contract valid as from the date of signature until 31 May 2020.

2. According to the contract, the parties agreed to the following:

“A) THE SECOND HALF OF FOOTBALL SEASON 2018-2019

NET total amount of 120.000 EUR will be paid by the Club to the Player as follow:

1.1 – Advance Payment

Club will make a payment of 50.000 EUR at the sign date of 08.01.2019 as an advance payment.

1.2 – Salary

The Club undertakes to pay the PLAYER the total NET Salary amount of 70.000 EURO payable at the second half of football season 2018-2019 as follows:

1. 14.000 EURO NET, DUE ON 15.02.2019

2. 14.000 EURO NET, DUE ON 15.03.2019

3. 14.000 EURO NET, DUE ON 15.04.2019

4. 14.000 EURO NET, DUE ON 15.05.2019

5. 14.000 EURO NET, DUE ON 15.06.2019

B- OPTION ARTICLE: if the Club is registered in Spor Toto 1st League at the end of the season 2018-2019, this contract will terminate by the Club until 10.06.2019 and player will be free. For this reason, the player accepts, declares and undertakes that he will not be entitled to any claim from the 2019-2020 season. If the club is registered in the Super League which is a top league at the end of the 2018-2019 season, the minimum fees which are written on article “C” will be revised by mutual agreement. The amendment contract will be submitted to the TFF during the 1st Transfer Registration Period of Football Season 2019-2020.

C- IN THE FOOTBALL SEASON 2019-2020

NET total amount of 280.000 EUR will be paid by the Club to the Player as follow:

1.1 – Advance Payment

Club will make a payment of 100.000 EUR at the date of 20.07.2019 as an advance payment.

1.2 – Salary

The Club undertakes to pay the Player the total NET Salary amount of 180.000 EURO payable as follows:

1. 18.000 EURO NET, DUE ON 31.08.2019

2. 18.000 EURO NET, DUE ON 30.09.2019

3. 18.000 EURO NET, DUE ON 31.10.2019

4. 18.000 EURO NET, DUE ON 30.11.2019

5. 18.000 EURO NET, DUE ON 31.12.2019

6. 18.000 EURO NET, DUE ON 31.01.2020

7. 18.000 EURO NET, DUE ON 28.02.2020

8. 18.000 EURO NET, DUE ON 31.03.2020

9. 18.000 EURO NET, DUE ON 30.04.2020

10. 18.000 EURO NET, DUE ON 31.05.2020”

3. According to the Claimant, the Respondent was indeed registered in the Super League at the end of season 2018-2019, but no mutual agreement – as mentioned in the clause above – was found between the parties with relation to the Claimant’s salary for the 2019/2020 season. Thus, the Claimant deemed that there was no certainty about his remuneration for season 2019/2020 and therefore he had a just cause to terminate the contract on 17 July 2019, based on an allegedly invalid option clause.

4. On 23 July 2019, the Claimant concluded a new employment contract with the Korean club Incheon United (hereinafter: Incheon), valid from the date of signature until 31 December 2020, for a basic annual compensation of USD 400,000 and a sign-on fee of USD 100,000, inter alia.

5. Moreover, the Claimant held that the Respondent threatened to refuse the delivery of his ITC to Incheon, claiming that it urgently needed the player at that moment. Thus the Claimant claimed that he and Incheon were forced to sign a settlement agreement with the Respondent on 26 July 2018, stating that the player terminated the contract with the Respondent without just cause and that Incheon had to pay USD 200,000 to the Respondent on behalf of the Claimant.

6. According to the settlement agreement, the parties agreed upon the following:

“Whereas Mr. Olanrewaju Muhammed Kehinde (Player) and Club Denizlispor had a valid employment contract which came into force on 10.10.2019 and should have been valid until 31.05.2020,

Whereas the Player unilaterally terminated the contract without just cause on 17.07.2019,

All three Parties mutually agreed as follows in order to settle the matter amicably;

Incheon United will pay net 200.000 USD as compensation for the premature termination of the employment contract as follows:

- 100.000 USD within seven days from the date TFF sent the ITC of the Player,

- 100.000 USD on 30 September 2019.

Payments will be made to the below given bank account of Denizlispor without a deduction;”

7. Furthermore, the Claimant added that subsequently, on 26 July 2019, he signed a private agreement with Incheon, as per which the latter would be entitled to deduct from the salaries of the Claimant the amounts paid to the Respondent in accordance with the settlement agreement.

8. According to the private agreement, the Claimant and Incheon agreed upon the following:

“2. The Parties have come to an arrangement with regard to the payment of the debt (USD 200,000 -/ including taxes) between the player and his formar club Denizlispor (TUR).

3. If the player doesn’t pay his debt, the club is allowed to use his salary & signing fee in 2009 to pay directly to his former club.

4.1 If the club pay the player’s debt to his former club Denizlispor (TUR), the first payment USD 100,000 – (including taxes) shall be paid in 7 days after completing the player’s registration in K LEAGUE South Korea.

4.2 the second payment USD 100,000 – (including taxes) shall be paid at 30th September 2019 to the player’s former club Denizlispor (TUR).”

9. On 11 November 2019, the Claimant lodged a claim against the Respondent in front of FIFA, claiming the following:

i. “Declare that the option clause which is written in the contract between the parties is invalid and there isn’t a valid contract between the parties for 2019/2020 football season;

ii. Declare that the contract (professional football player contract) between the parties has been terminated with just cause by the player because of invalid option clause or because of absence of mutual agreement;

iii. Cancel and call off the agreement between Kehinde, Incheon United and Denizlispor;

iv. Declare that the Claimant or Incheon United doesn’t have to pay any amount to Deinzlispor related with previous contractual relationship;

v. Order that Denizlispor has to make 100,000 USD refund to the Claimant or to Incheon United;

vi. Order that Denizlispor have to pay all cost for the case if there is.”

10. In its reply, the Respondent rejected the claim and argued that the contract had been terminated by the Claimant without just cause on 17 July 2019.

11. Moreover, the Respondent pointed out that the Claimant, on 23 July 2019, signed a new employment contract with Incheon which undertook to pay the Claimant USD 1,000,000. This fact proves that the Claimant terminated his contract for “monetary reasons”.

12. The Respondent added that because the contract was terminated without just cause by the Claimant, it requested to be compensated for the damages caused to it.

13. Furthermore, the Respondent emphasised that on 26 July 2019, the three parties i.e. the Claimant, the Respondent and Incheon, concluded a settlement agreement, according to which the Claimant stated in writing that he unilaterally terminated the contract without just cause.

14. Finally, the Respondent requested the following:

1) “Rejection of the plaintiff’s case and all related claims;

2) Determination of the unfair termination of the contract of the plaintiff footballer and the agreement between Denizlispor, Kehinde and Incheon United is a valid agreement;

3) Denial of a request for a refund of 100,000 USD as there is no payment made to our club;

4) We respectfully request that the claimant be paid the costs of the proceedings and the power of attorney 02.01.2020.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether it was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 11 November 2019 and decided on 15 April 2020. Taking into account the wording of art. 21 of the 2019 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.

2. Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a Nigerian player and a Turkish club.

3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 11 November 2019, the October 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

5. In this respect, the DRC judge acknowledged that, on 10 January 2019, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 31 May 2020, pursuant to which the Respondent undertook to pay to the Claimant the remuneration detailed in point I.2 above.

6. Moreover, the DRC judge acknowledged that, on 26 July 2019, the Claimant, the Respondent and Incheon concluded a settlement agreement in accordance with which the Claimant stated to have unilaterally terminated his employment contract with the Respondent without just cause. Furthermore, Incheon undertook to pay compensation to the Respondent of USD 200,000 on behalf of the Claimant.

7. Having recalled the above, the DRC judge observed that, the Claimant, in his claim, requested FIFA to inter alia declare invalid the settlement agreement signed on 26 July 2019, as it was allegedly concluded under duress, and award the reimbursement of the amount of USD 100,000 to the Claimant of Incheon.

8. The DRC judge further noted that, the Claimant considered that since he did not find an agreement regarding the payment of his salary for the 2019/2020 season with the Respondent, he deemed that there was no certainty about his remuneration for season 2019/2020 and therefore his contract should be considered as automatically terminated by the end of the 2018/2019 season.

9. Moreover, the DRC judge took note that the Respondent, for its part, maintained that the contract had been unilaterally terminated by the Claimant, as confirmed in the settlement agreement by the latter, and therefore the Claimant’s claim shall be rejected.

10. At this point, the DRC judge deemed it appropriate to remind the parties of the principle of burden of proof, reflected also in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right carries the burden of proof.

11. In the present case, the DRC judge pointed out that the Claimant bore the burden of proving that the settlement agreement was executed under duress, or any other circumstance that demonstrates that the free-will of the parties was affected on the occasion of such execution.

12. The DRC judge noted that, the Claimant however provided no substantial evidence in that sense.

13. In this context, the DRC judge noted that the parties signed the settlement agreement on 26 July 2019 – which is not contested by the Claimant – by means of which by means of which (a) the Claimant acknowledged that he had terminated the employment contract without just cause and (b) the Claimant and Incheon undertook to pay compensation to the Respondent. In this respect, the DRC judge stressed that the mentioned agreement contains all the essentialia negotii and was in principle freely and validly agreed by the parties – as no substantial evidence of the contrary was provided. In addition, he referred to the longstanding jurisprudence according to which a party signing a document of legal importance is in principle liable to bear the legal consequences deriving thereof.

14. The DRC judge also deemed it appropriate to point out that, independent of the circumstances which eventually lead to the termination of the employment contract between the Claimant and the Respondent – the settlement agreement superseded such contract and is therefore the legal document currently at the basis of any existing contractual obligations between the parties.

15. In light of the above, the DRC judge highlighted that, in accordance with the argumentation and the documentation on file – the settlement agreement appers to have been validly concluded between the parties since the Claimant. Moreover, the private agreement signed between Incheon and the Claimant is further evidence that the Claimant was fully aware of the implications of the settlement agreement.

16. All the above led the DRC judge to conclude that the claim of the Claimant has to be rejected.

III. Decision of the DRC judge

1. The claim of the Claimant, Olanrewaju Muhammed Kehinde, is rejected.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber. 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 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 (cf. point 4 of the directives).

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 DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer