DRC Overdue Payables
Texto da decisão
REF. FPSD-7233
Decision of the
Dispute Resolution Chamber
passed on 1 March 2023
regarding an employment-related dispute concerning
the player Sunday Ayonfe Akinbule
BY:
Philippe Diallo (France)
Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Sunday Ayonfe Akinbule, Nigeria
Represented by Activity Chambers
RESPONDENT:
FK Spartaks, Latvia
Represented by SILA International Lawyers
pg. 2
REF. FPSD-7233
I. Facts of the case
1. On 5 January 2021, the Nigerian player Sunday Ayonfe Akinbule (hereinafter: the Claimant)
and the Latvian club FK Spartaks (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from 15 January 2021 until 31 December 2025.
2. In accordance with the Contract, the Respondent undertook to pay the Claimant a monthly
remuneration of EUR 1,500, payable by no later than the 10 th day of the following respective
month.
3. On 15 March 2021, the Claimant was loaned out to the Belarussian club Shakhtyor Soligorks
until 12 July 2021.
4. On 28 August 2021, the Claimant was loaned out to the Maltese club Mosta FC until
30 June 2022.
5. On 24 June 2022, the Claimant allegedly unilaterally terminated his Contract with the
Respondent, citing as grounds for said decision “error, willful deception, duress, lack of
transparency, mistrust and failure to pay pending salaries since July 2021”.
6. During the period of his loan to Mosta FC, the Claimant’s visa for Latvia expired.
7. On 11 July 2022, the Claimant attempted to lodge a claim before he Latvian FA, for which the
latter rejected jurisdiction and stated that FIFA is competent.
8. On 9 August 2022, the Claimant sent a correspondence to the Respondent, requesting the
latter to organize his visa in order to be able to return to Latvia and commence his activity
again after finishing his loan period. Furthermore, the Claimant outlined that he had not been
paid for “many many months” and granted the Respondent 15 days to pay all unpaid salaries
and to provide him with a visa.
9. On 25 August 2022, the Claimant sent the Respondent a (further) termination letter.
II. Proceedings before FIFA
a. Position of the Claimant
10. On 27 August 2022, the Claimant lodged a claim before FIFA for the termination of his
employment Contract without just cause against the Respondent, based on the failure to pay
“many many salaries” and to procure a visa for the Claimant to return to the Respondent
following the completion of a loan move.
pg. 3
REF. FPSD-7233
11. In this respect, the Claimant outlined that the Respondent failed to pay salaries for the
following 7 months, in the total amount of EUR 10,500:
-
February 2021
June 2021
July 2021
August 2021
June 2022
July 2022
August 2022
12. Furthermore, the Claimant outlined that he put the Respondent in default of payment of the
abovementioned amounts and granted a 15-day deadline, to no avail, entitling him to
terminate the Contract with just cause on 25 August 2022.
13. Therefore, the Claimant also requested EUR 60,000 as compensation, corresponding to the
alleged residual value of the Contract as from the termination, in line with art. 17 of the
Regulations.
14. The Claimant also stated that he was seeking “5% interest”.
15. Lastly, the Claimant requested EUR 10,000 as legal expenses.
b. Position of the Respondent
16. In its reply, the Respondent alleged that the Claimant terminated his Contract unilaterally on
24 June 2022, sending a termination letter in which he alleged that he made said decision on
the grounds of “error, willful deception, duress, lack of transparency, mistrust and failure to
pay pending salaries since July 2021”.
17. The Respondent denies ever having received a correspondence prior to said termination,
indicating that the default notice dated 9 August 2022 and termination letter dated
25 August 2022 are mere illusions for the frivolous claim presently lodged before the Football
Tribunal. The Respondent further submitted in this respect that the Claimant even attempted
to submit a claim before the Latvian FA prior to these default and termination letters, to
confirm the termination of the Contract dated 24 June 2022, for which the latter rejected its
own jurisdiction.
18. Furthermore, the Respondent outlined that the Claimant had been on loan between
March 2021 and July 2021, and equally between August 2021 and June 2022, during which
periods it had been agreed that the Contract would be suspended, including the payment of
the relevant salaries.
pg. 4
REF. FPSD-7233
19. In this respect, the Respondent outlined that the only period for which the Claimant had to
be paid was between 13 July 2021 and 27 August 2021, i.e. the period when the latter was
not on loan.
20. Beyond this, as the Claimant allegedly terminated the Contract on 24 June 2022 – i.e. before
the salary for said month fell due, and before the Claimant returned from loan – the
Respondent argued that it had no obligation to pay the remaining salaries as from said date.
21. Therefore, the Respondent accepted being in debt of payment of EUR 2,250, corresponding
to the period between 13 July 2021 and 27 August 2021, but maintained that there was no
just cause regarding the termination of the Contract, since neither the requisite two monthly
salaries were outstanding, nor did the Claimant issue any default notice to that effect, in line
with art. 14bis of the Regulations.
c. Replica of the Claimant
22. The Claimant was invited to provide additional comments with regards to the Respondent’s
position.
23. The Claimant argued that he received no sign of interest from the Respondent with regards
to reintegrating him from his loan once again, as his visa had expired and the Respondent
did not bother to renew it.
24. The Claimant outlined that, as a result, he had no alternative but to return to Nigeria, and
highlighted that the Respondent demonstrated once again that it manifestly lacked the
interest in giving effect to the Contract by not providing the Claimant with a return flight.
25. The Claimant also argued that the fact that the Respondent did not file a counterclaim
demonstrates that they do not believe that the Contract was terminated without just cause.
d. Duplica of the Respondent
26. The Respondent firstly pointed out that the date of termination is uncontested, given that
the Claimant’s notice of 24 June 2022 contains unequivocal rhetoric. Following said letter, the
Respondent reiterated from his previous submission that the Claimant attempted to submit
a claim before the Latvian FA to confirm the termination of the Contract, for which the latter
rejected its own jurisdiction.
27. The Respondent then submitted that the Claimant orchestrated a termination procedure for
the sake of complying with the formal requirements of art. 14bis because, previously, no
default notice had been sent.
28. The Respondent also pointed out that the Claimant has not submitted any evidence to
corroborate his entitlement to salaries during the periods he was on loan, and stressed once
pg. 5
REF. FPSD-7233
again that, since the Contract was suspended during the loan periods, no salaries were due.
29. Therefore, the Respondent reiterated that the Claimant had no just cause to terminate the
Contract because the formal requirements of art. 14bis could not be established, and thus
only acknowledged the amount of EUR 2,250 as outstanding salary.
pg. 6
REF. FPSD-7233
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 27 August 2023
and submitted for decision on 1 March 2023. Taking into account the wording of art. 34 of
the October 2022 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.
2.
Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition), he 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 Latvian club.
3.
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 Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 15 February 2023, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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
5.
Its competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he 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-7233
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the fulfilment of certain
financial obligations under the Contract, as well as the lawfulness of the termination
thereof by the Claimant.
7.
In this context, the Single Judge acknowledged that his task was to determine whether, on
one hand, the Respondent had, indeed, been in default towards the Claimant as to the
amounts in dispute, and furthermore, whether the Claimant had subsequent just cause to
terminate the Contract.
8.
Firstly, the Single Judge recalled the line of argument submitted by the Claimant, namely
that the Respondent failed to remit several monthly salaries, as well as to reintegrate the
former into the squad following his return from loan, thereby giving rise to just cause to
terminate the Contract.
9.
On the other hand, the Single Judge observed that the Respondent contested that the
salaries claimed as outstanding had actually fallen due, on account of the fact that the
Claimant had been on loan for the majority of said period, and that the Contract had been
suspended during that time. Furthermore, the Single Judge noted the Respondent’s
assertion that the Claimant had terminated the Contract on 24 June 2022, before the expiry
of the relevant loan, thus creating the impression that he no longer wanted to return, and
therefore eliminating any need to reintegrate him upon his potential return.
10. Before entering the analysis of the parties’ respective submissions, the Single Judge
revisited the wording of art. 13 par. 5 of the Procedural Rules, according to which a party
that asserts a fact bears the burden of proving its veracity.
11. Furthermore, the Single Judge recalled his own longstanding jurisprudence, according to
which only a breach or misconduct which is of a certain severity justifies the termination of
a contract without prior warning. In other words, only when there are objective criteria
which do not reasonably permit to expect the continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be an
ultima ratio measure.
12. With the above in mind and after carefully analysing the parties’ respective submissions,
the Single Judge firstly remarked the fact that the Claimant was indeed on loan during the
disputed period, and that the parties had agreed that the Contract would be suspended
during this time. Furthermore, the Single Judge considered it noteworthy that the Claimant
had indeed attempted to submit a claim before the Latvian FA, who rejected its jurisdiction
pg. 8
REF. FPSD-7233
in favour of FIFA, and that said claim was lodged on 11 July 2022 – before the subsequent
default notice sent in August 2022 and the “second termination” of the Contract during the
same month. Lastly, the Single Judge observed that the Claimant did not contest the
termination notice 24 June 2022, hence rendering the subsequent default notice and
termination letter sent in August 2022 moot for the purposes of establishing entitlement
of any compensation.
13. Therefore, the Single Judge was able to establish that the Contract had been terminated by
the Claimant on 24 June 2022, at which point, based on the parties’ submissions, only an
outstanding amount of 1.5 monthly salaries could be established, for which no default
letter or any other correspondence had been sent. Consequently, the Single Judge
considered that said breach of contract was not consistent and serious enough to be
deemed as an ultima ratio measure, and in the absence of any evidence of any other
potential abusive conduct by the Respondent to justify such termination, concluded that
the Contract was terminated by the Claimant without just cause.
14. Based on the fact that the Respondent did not file a counterclaim, the Single Judge turned
to consider only the outstanding amounts due to the Claimant based on the Contract.
15. In this respect, the Respondent acknowledged being in debt of EUR 2,250, corresponding
to the period between 13 July 2021 and 27 August 2021, therefore amounting to exactly
one and one-half salaries under the Contract.
16. Therefore, in accordance with the general legal principle of pacta sunt servanda, the Single
Judge decided to award the Claimant outstanding remuneration of EUR 2,250. Lastly, in
accordance with his longstanding jurisprudence, as well as taking into account the
Claimant’s request, the Single Judge granted annual interest of 5% on said amount as from
27 August 2022 until the date of effective payment.
ii. Application of art. 12bis of the Regulations
17. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
18. To this end, the Single Judge confirmed that the Claimant put the Respondent in default of
payment of the amounts sought on 9 August 2022, that said amounts had fallen due more
than 30 days before, and that the Respondent was granted a deadline exceeding 10 days
to cure such breach of contract.
19. Accordingly, the Single Judge confirmed that the Respondent had delayed a due payment
without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations was met in the case at hand.
pg. 9
REF. FPSD-7233
20. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. On account of the above and
keeping in mind that this was the Respondent’s first offence under art. 12bis within the last
two years, the Single Judge decided to impose a warning on the former in accordance with
art. 12bis par. 4 lit. a) of the Regulations.
21. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
22. 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 his 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.
23. 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.
24. 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.
25. 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.
26. 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.
d. Costs
pg. 10
REF. FPSD-7233
27. 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, the Single Judge decided that no procedural costs were to be
imposed on the parties.
28. 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.
29. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 11
REF. FPSD-7233
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sunday Ayonfe Akinbule, is partially accepted.
2.
The Respondent, FK Spartaks, must pay to the Claimant the following amount(s):
- EUR 2,250 as outstanding remuneration plus 5% interest p.a. as from 27 August 2022
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning shall be imposed on the Respondent (cf. art. 12bis RSTP).
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-7233
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. 13