Labour Disputes
Texto da decisão
REF. FPSD-8745
Decision of the
Dispute Resolution Chamber
passed on 20 July 2023
regarding an employment-related dispute concerning
the player Aondona Jacob Adeede
BY:
Johan van Gaalen (South Africa)
CLAIMANT:
Aondona Jacob Adeede , Nigeria
Represented by İsmet Bumin Kapulluoğlu
RESPONDENT:
Bandirmaspor, Türkiye
Represented by Ercan Sevdimbaş
pg. 2
REF. FPSD-8745
I. Facts of the case
1.
On 8 March 2021, the Nigerian player Aondona Jacob Adeede (hereinafter: the Claimant or player)
and the Turkish club Bandirmaspor (hereinafter: the Respondent or club) concluded a protocol
(hereinafter: the protocol).
2.
In accordance with the protocol, the parties agreed to the following:
“The Club and the Player, who is currently playing in the youth setup of the Club, are
determining the conditions of the TFF Professional Football Player Employment Contract that
has been permitted, with the present instrument; it shall be valid in case the Club invites the
Player to sign the TFF Professional Football Player Employment Contract by notifying in
writing either to the address or the email address of the Player by the end of the 2021/22
summer transfer season in Turkey, that is by no later than 01.09.2021.
3- TERM
The term of the contract is 3 years starting from the signing date of the employment contract.
4- REMUNERATIONS
In relation to the employment contract, the Player shall be paid the monthly salary of 750.-EUR
net (Seven Hundred Fifty Euros net) and this amount shall include the mandatory minimum
wage that is obligatory to be paid in Turkey.
5- BONUSSES
In case the Player plays in 20 official league matches that he starts with the starting eleven in
the 2021/22 football season, the Club shall pay to Goddosky FC 25.000.-EUR net (except
Turkish Cup matches)
In case the Player plays in 25 official league matches that he starts with the starting eleven in
the 2021/22 football season, the Club shall pay to Goddosky FC an additional 10.000.-EUR net,
in addition to the bonus given above (except Turkish Cup matches).”
3.
On 12 August 2021, the player and the club concluded a first employment contract (hereinafter: the
1st contract), valid as from 12 August 2021 until 31 May 2024.
4.
Clause 3 of the 1st contract mentioned that the player would be entitled to a net monthly salary (not
less than the minimum wage, for the 2021/2022, 2022/2023 and 2023/2024 seasons.
5.
On 1 February 2022, the player and the club concluded a mutual termination protocol (hereinafter:
termination agreement), whereby the parties, inter alia, agreed to “terminate Professional Football
Player Contract which was initiated on 12 August 2021 was supposed to end on 31 May 2024 registered
before the Turkish Football Federation for an Employment agreement with their mutual consent
and will, without any claim of any cost/indemnity from each other.”
pg. 3
REF. FPSD-8745
6.
On 3 February 2022, the player and the club concluded a second employment contract (hereinafter:
the 2nd contract), valid as from 3 February 2022 until 31 May 2024.
7.
Clause 3 of the 2nd contract mentioned that the player would be entitled to a net monthly salary (not
less than the minimum wage, for the 2021/2022, 2022/2023 and 2023/2024 seasons.
8.
On 9 June 2022, the player allegedly requested payment of his outstanding remuneration,
whereupon the club requested the player to sign a document, which, inter alia, stipulated the
following:
“The parties hereby agree and accept that as of today, the Player’s current overdue and unpaid receivables
for 2021/22 football season are in a total amount of 2.250.- EUR as three-monthly salaries of April, may
and June 2022
The Player hereby explicitly agree and accept that the Club will pay the Player on the signing date of this
Protocol. For this reason, the Player agrees and accepts to waive his remaining receivables of 1.500. – EUR
and he will not claim these receivables in the future.
The Player also agree and accept that he does not have any other receivables from the Club (except 750.EUR stated above) regarding 2021/22 football season.”
9. On 9 June 2022, the club paid the amount of TRY (Turkish Lira) 13,710 to the player.
10. On 10 June 2022, the player left Turkey and on 11 June 2022, he arrived in Nigeria for the renewal of
his visa.
11. On 30 June 2022, the club informed the Nigeria Football Federation the player is a contracted football
player of the club until 31 May 2024.
12. On 20 August 2022, after obtaining his visa, the player returned to Turkey and the club’s facilities.
13. On 2 September 2022, the club issued a termination notice to the player and the Turkish Football
Federation (TFF), stipulating the following:
“Please be advised that from the beginning of the preparation trainings of 2022/2023 football season you
have been absent, and a part of your absences has been recorded by the official public notary. You
breached and violated the contract by not attending the training without the permission of the club. The
call of the club has been left answerless and that you didn't show to settle the present matter between the
Club.
For the above-mentioned reasons, please be advised that the continuation of the Contract is not possible
and maintainable for the club under the circumstances anymore for this reason, the club terminates with
just-cause the Contract undersigned between the parties and reserve its right to initiate legal action to
request compensation for the termination of the Contract.”
pg. 4
REF. FPSD-8745
14. On 5 September 2022, the player sent an email to the TFF, to enquire on his residence permit.
15. On 8 September 2022, the player sent another email to the TFF, regarding his residence permit.
16. On 8 September 2022, the TFF replied with the following:
“Dear Mr. Adeede,
Your club has terminated your contract thus we are not able to send you the letter requested.
Please find the attached termination letter above.”
II. Proceedings before FIFA
17. On 26 December 2022, the player filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the coach
18. In his claim, the player argued that the club terminated the contract without just cause as it was
aware of the player’s absence and that it was aware that he was absent to renew his visa, which was
an obligation of the club which the club failed to meet timely and the immediate termination of the
employment contract without prior notice cannot be accepted to be termination with just cause.
19. The player requested the following relief:
-
-
-
“to order the Respondent to pay to the Claimant the total amount of 3.750.-Euro net as outstanding
remuneration alongside with its interests in the rate of 5% p.a. to accrue on each instalment, starting
from the respective due date and until the date of effective payment,
to rule that the unilateral termination of the employment contract by the Club is without just cause,
to order the Respondent to pay to the Claimant the total amount of 15.000.-Euro net as
compensation for breach of contract alongside with its interest in the rate of 5% p.a. starting from
the date of termination and until the date of effective payment and
to impose sporting sanctions on the Respondent for breach of contract during the protected period.”
b. Position of the club
20. In reply to the claim, the club indicated that the protocol signed by the parties on 9 June 2022 was
signed by the player with free will and at his own request and therefore it is not invalid. Moreover,
the Player has not given up all his receivables, there is a partial waiver.
21. The club further indicated that the player was paid during the contractual period, the amounts of
“10.000.-TL (621.-EUR) on 13.05.2022, 15.000.-TL (887.-EUR) on20.05.2022, 25.000.-TL (1.415.-EUR) on
30.05.2022, in total 50.000.-TL (2.923.EUR).”
pg. 5
REF. FPSD-8745
22. According to the club the player salary for September is not due as the club terminated the contract
on 2 September 2022.
23. Furthermore, the club indicated that it “does not deny the claim that it should provide a residence permit
for the Player, but the Club has already done everything in its power in this regard. The extension time of
the residence permit of the Player was of course followed by the Club due to the fact that the Player was
foreign and could not master the procedures in our country. When the time came to extend the residence
permit, the Club wanted to take action, but at this time the Club realized that the visa of the Player had
already expired. Although it is understandable to a certain extent that it is expected only from the Club to
follow the residence permit periods, it is due to the irresponsible behavior of the Player that he does not
realize that his visa will expire and does not say anything to the Club about it.”
24. The club mentioned it gave him permission to the player “to go to his country only to carry out these
procedures. In this regard, the Club has always sent the necessary documents, as stated by the
claimant in the petition. “
25. According to the club, “the reason for the termination in question is not related to the residence permit
of the Player. After the Club did everything it could, in return, it expected its players to inform them about
the developments and to return to Türkiye as quickly as possible.”
26. In this regard the club indicated that the player failed to return to the Türkiye, and did not participate
in any training, therefore the club had no choice but to terminate the contract. “Accordingly, the said
termination is with a just cause. Therefore, any claim for compensation must be dismissed.”
27. In conclusion, the club requested the following relief:
- “dismissal about the present case and the rejection of all requests of the Claimant Player
- a decision that the judicial costs and the attorneyship fees that the Respondent is faced with shall be
paid by the Claimant.”
pg. 6
REF. FPSD-8745
III. Considerations of the Players’ Status Chamber
a. Competence and applicable legal framework
28. 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 26 December 2022 and submitted for
decision on 20 July 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.
29. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in
accordance with art. 23 par. 2 in combination with art. 22 par. 1 lit. b) of the FIFA RSTP (May 2023
edition), the Players’ Status Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a player from
Nigeria and a Turkish club.
30. 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 FIFA
RSTP (May 2023 edition) and considering that the present claim was lodged on 26 December 2022,
the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
31. 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.
Merits of the dispute
32. The 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.
pg. 7
REF. FPSD-8745
i. Main legal discussion and considerations
33. The foregoing having been established, the Single Judge moved to the substance of the matter and
took note that it pertains to a claim for outstanding remuneration and compensation for breach of
contract lodged by the player against the club.
34. The Single Judge acknowledged that, on the one hand, the player claims that the club terminated
the contract without just cause on 2 September 2022, as it was aware that he was absent to renew
his visa, which was an obligation of the club which the club failed to comply with.
35. The Single Judge noted that the club on the contrary, claims the player violated the contract, by
failing to return to Türkiye and not participating in training therefore it had just cause to terminate
the contract.
36. In view of the dissent between the parties, the Single Judge, firstly analysed the circumstances
pertaining to the case, the arguments of the parties and the documentation on file, and established
the following:
-
Prior to the player departing Türkiye, he duly alerted the Respondent to the status of his residence
permit
-
The club acknowledged that the player did not have a valid visa/permit
-
The club gave authorisation to the player to leave Türkiye for the renewal of his visa in Nigeria
-
there is no evidence on file to proof that the club made effort to obtain the visa/work permit for the
player
-
there is no evidence on file that the club called the player to return to provide his services prior to
termination
37. In consideration of the above, the Single Judge recalled the jurisprudence of the Football Tribunal,
and mentioned that as a general rule, it is the club´s duty and responsibility to obtain, if necessary,
a work permit or a visa for its players prior to the signing of an employment contract or during its
period of validity, in order for players to be able to legally enter or remain in a particular country
and be in a position to render their services to the club.
38. In casu and taking into consideration the evidence provided by the player, the Single Judge
understood that that the player was willing to continue to render his services as per the contract;
and made all the necessary arrangements in order for him to legally enter the country/remain in the
country, however the club had failed to carry out the necessary arrangements in order for the player
to remain in or enter Türkiye to render his services.
39. The Single Judge therefore concluded that the arguments of the club are to be rejected and that the
club had terminated the contract without just cause on 2 September 2022. Consequently, the club
should be held liable for the early termination of the employment contact without just cause.
pg. 8
REF. FPSD-8745
40. Furthermore, the Single Judge referred to the protocol document signed on 9 June 2022 by the
player, and, in this regard the Single Judge referred to jurisprudence of the Football Tribunal, in
terms of which a player cannot merely waive his right to outstanding remuneration.
41. In the case at hand, the Single Judge addressed the content of the protocol document and
determined that no mutual or reciprocal concessions were present in the document, as the player
in fact enjoyed no benefits and it does not seem that a balance was created between the parties.
Moreover, the Single Judge made reference to the fact that the protocol document was signed, when
the contract was still valid, which – according to the Single Judge – is also to be considered an
indication that the document might not contain a balanced agreement between the parties.
42. As a result of the foregoing, the Single Judge concluded that the protocol document concluded
between the player and the club on 9 June 2022, cannot be considered as validly made and will
therefore not be taken into account.
43. In regard to the payment documents submitted by the club, the Single Judge held that the said
documentation as submitted by the club are not conclusive documentary evidence, on the basis of
which it could be established that it made the relevant payments to the player and it cannot be
considered as proof establishing that the club complied with its contractual obligations relating to
the salaries of the player as the payments relating thereto were made in Turkish Lira, whereas the
salary of the player is payable in EUR, moreover the club failed to indicate the purpose of these
payments, therefore the Single Judge decided not to consider these payment in the assessment of
this matter.
ii. Consequences
44. Having stated the above, the Single Judge turned to the question of the consequences of such
unjustified breach of contract committed by the club.
45. As 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 player the amounts claimed as outstanding
under the contract.
46. Having established the above, the Single Judge then moved to the issue of the minimum monthly
salary of the player and in doing so, the Single Judge noted the protocol document, dated 9 June
2022 submitted as evidence established the salary of the player for the 2021/2022 season to be a
monthly salary of EUR 750 and therefore, the Single Judge decided to consider the said amount as
the established monthly remuneration of the player.
47. Consequently, the Single Judge decided that the club is liable to pay to the player his outstanding
remuneration at the time of the termination, in the amount EUR 3,750, corresponding to
outstanding salaries for the months of May, June, July, August and September 2022.
pg. 9
REF. FPSD-8745
48. Taking into consideration the player’s request as well as the constant practice of the Single Judge in
this regard, the latter decided to award the player interest at the rate of 5% p.a. on the outstanding
amounts as from the respective due dates until the date of effective payment.
49. Having stated the above, the Single 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 Single 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.
50. In application of the relevant provision, the Single Judge held that he first of all had to clarify 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.
51. In this regard, the Single Judge established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
52. As a consequence, the Single 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 Single Judge recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
53. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with the
calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Single Judge concluded that the amount of EUR 15,000 (i.e., October, November
and December 2022 (3 x 750.-Euro), the full year of 2023 (12 x 750.-Euro) and the first five months
of 2024 (until and including May 2024, 5 x 750.-Euro) serves as the basis for the determination of
the amount of compensation for breach of contract.
54. In continuation, the Single Judge verified 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 Single Judge 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.
55. In this respect, the Single Judge noted that the player remained unemployed since the unilateral
termination of the contract.
pg. 10
REF. FPSD-8745
56. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the
player did not sign any new contract following the termination of his previous contract, as a general
rule, the compensation shall be equal to the residual value of the contract that was prematurely
terminated.
57. In this respect, the Single Judge decided to award the player compensation for breach of contract in
the amount of USD 15,000, i.e., EUR 750 times 20, as the residual value of the contract.
58. Lastly, taking into consideration the player’s request as well as the constant practice of the Single
Judge in this regard, the latter decided to award the player interest on said compensation at the rate
of 5% p.a. as of 2 September 2022 until the date of effective payment.
iii. Compliance with monetary decisions
59. 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.
60. 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.
61. 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.
62. 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.
63. 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.
pg. 11
REF. FPSD-8745
d. Costs
64. 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, she decided that no procedural costs were to be imposed on the parties.¨
65. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of
the Procedural Rules and decided that no procedural compensation shall be awarded in these
proceedings.
66. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-8745
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aondona Jacob Adeede, is accepted.
2.
The Respondent, Bandirmaspor, must pay to the Claimant the following amount(s):
- EUR 3,750 as outstanding remuneration plus 5% interest p.a. as from the respective due dates
until the date of effective payment as follows:
-
On the amount of EUR 750 as from 8 May 2022
On the amount of EUR 750 as from 8 June 2022
On the amount of EUR 750 as from 8 July 2022
On the amount of EUR 750 as from 8 August 2022
On the amount of EUR 750 as from 8 September 2022
- EUR 15,000 as compensation for breach of contract without just cause plus 5% interest p.a. as
from2 September 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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. 13
REF. FPSD-8745
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14