Labour Disputes
Texto da decisão
Decis ion 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,
S am uel Akurugu, Ghana
represented by Mr Yussif Alhassan Chibsah
as Claimant
against the club,
Riv ers United FC, Nigeria
represented by Mr Aminu Yusuf
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 20 February 2018, the Claimant and the Respondent (hereinafter jointly referred to as:
the parties) concluded an employment contract (hereinafter: the contract), valid as from
1 March 2018 until 28 February 2021.
2.
According to art. 7 par. 1 of the contract, the Respondent undertook to pay to the Claimant
an annual salary of Nigerian Naira (NGN) 450,000, as well as bonuses as follows:
-
NGN 50,000 per home win;
NGN 50,000 per away draw;
NGN 100,000 per away win.
3.
On 9 October 2018, the Respondent terminated the contract in writing, due to “non
performance” (hereinafter: the termination notice).
4.
On 6 September 2019, the Claimant lodged a claim against the Respondent in front of
FIFA.
5.
In his claim, the Claimant firstly maintained that the Respondent still owed him NGN 50,000
corresponding to a match played and won on 20 May 2018.
6.
In addition, the Claimant held that the Respondent terminated the contract without just
cause. Therefore, the Claimant considered that he was entitled to compensation for breach
of contract. In this context, the Claimant argued that the residual value of the contract
amounted to twenty-nine monthly salaries of NGN 450,000, thereby totaling
NGN 13,050,000.
7.
Moreover, the Claimant argued that between October 2018 and September 2019, i.e. after
the termination notice, the Respondent won seven home matches, drew four away
matches and won one away match, resulting to a total amount of NGN 650,000.
8.
In continuation, the Claimant estimated that he would be entitled to an additional match
bonus compensation of NGN 2,500,000, corresponding to the probability of matches won
and drawn by the Respondent between September 2019 and February 2021.
9.
The Claimant further requested an additional compensation of NGN 2,700,000
“corresponding to 6 monthly salaries […] on the basis of specificity of sport”.
10. Finally, the Claimant requested that his legal costs in the amount of USD 1,000 be borne
by the Respondent and that sporting sanctions be imposed on the Respondent.
11. In reply to the claim, the Respondent firstly acknowledged that the Claimant was entitled
to NGN 50,000 as a bonus for the match played on 20 May 2018.
Player Samuel Akurugu, Ghana / Club Rivers United FC, Nigeria
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12. With regard to the termination notice, the Respondent argued that it had just cause to
terminate the contract on the basis of a “code of conduct” allegedly signed between the
parties on 1 January 2018, valid until 28 February 2021 (hereinafter: the code of conduct).
13. According to the Respondent, the “code of conduct” stipulated that it was entitled to
terminate the contract “if the player is found incapable to perform his duties due to […]
non-performance i.e. not meeting up in training and matches”. Thus, the Respondent
considered that no compensation is due to the player.
II. Cons iderations of the Dis pute Res olution Cham ber 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 6 September 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 and par. 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition 2020), the Dispute Resolution
Chamber judge was competent to decide on the present matter, which concerns an
employment-related dispute between a Ghanaian player and a Nigerian 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 2020), and
considering that the present claim was lodged on 6 September 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. 3 third sentence of the Procedural Rules,
according to which submissions received outside the time limit shall not be taken into
account by the pertinent FIFA deciding body.
5.
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.
6.
First, the Dispute Resolution Chamber judge noted that the parties entered into an
employment contract valid as from 1 March 2018 until 28 February 2021, according to
Player Samuel Akurugu, Ghana / Club Rivers United FC, Nigeria
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which the Respondent undertook to pay the Claimant an annual salary of NGN 450,000, as
well as bonuses of NGN 50,000 per home win, NGN 50,000 per away draw and NGN 100,000
per away win.
7.
Second, the judge noted that on 9 October 2018, the Respondent unilaterally terminated
the contract, invoking the Claimant’s “non performance”.
8. In continuation, the judge noted that the Claimant lodged a claim against the Respondent
maintaining that the Respondent had terminated the contract without just cause.
Consequently, the Claimant requested outstanding remuneration and compensation for
breach of contract.
9. Having established the aforementioned, the judge deemed that the underlying issue in the
present dispute was to determine whether the contract had been unilaterally terminated
with or without just cause by the Respondent on 9 October 2018 and the consequences
thereof.
10. In this context, the judge observed that in the termination notice, the Respondent explicitly
invoked the poor performances of the Claimant to justify the termination of the contract.
In particular, the judge noted that the Respondent referred to the code of conduct
according to which it was entitled to terminate the contract “if the player is found
incapable to perform his duties due to […] non-performance i.e. not meeting up in training
and matches”.
11. First, the judge considered that poor performance is a purely subjective appreciation, as it
is left to the full discretion of the Respondent. This led the judge to recall the constant
jurisprudence of the Dispute Resolution Chamber and of the Court of Arbitration for Sport
(CAS), according to which a player’s poor performance may not constitute a valid reason to
unilaterally terminate an employment contract.
12. Second, the judge referred to art. 9 par. 3 third sentence of the Procedural Rules, as the
Respondent had only provided the code of conduct after the closure of the investigation.
13. Therefore, the judge concluded that the Respondent failed to provide any corroborating
evidence within the granted deadline which could justify the contract termination.
14. As a general rule and notwithstanding the aforementioned, the judge recalled that the
termination of a contract should only be an ultima ratio. In the present matter, the judge
noted that the Respondent did not alert, warn or sanction the Claimant, prior to
terminating the contract.
15. In light of the above, the Dispute Resolution Chamber judge decided that the Respondent
terminated the contract without just cause.
16. The judge firstly noted that outstanding remuneration in the amount of NGN 50,000 was
still due to the Claimant as a bonus for a match played and won on 20 May 2019. In this
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regard, the judge observed that the Respondent acknowledged the right of the Claimant
to receive this bonus. As such, the judge decided that the Claimant is entitled to outstanding
remuneration in the amount of NGN 50,000.
17. 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 NGN 50,000 as
of 10 October 2018 until the date of effective payment.
18. Having established that the Respondent is to be held liable for the early termination of the
contract without just cause, the judge focused its attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the judge decided
that the Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract.
19. In these circumstances, the judge focused his attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the 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 Claimant 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.
20. In application of the relevant provision, the judge held that it first of all had to clarify as to
whether the pertinent employment contract contains 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 judge established
that no such compensation clause was included in the contract at the basis of the matter at
stake.
21. As a consequence, the judge determined that the amount of compensation payable by the
Respondent to the Claimant had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. The 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.
22. Bearing in mind the foregoing as well as the claim of the Claimant, the judge proceeded
with the calculation of the monies payable to the Claimant under the terms of the contract
until 28 February 2021. In view of the foregoing, the judge observed that the residual value
of the contract is NGN 13,050,000, corresponding to twenty-nine monthly salaries of
NGN 450,000, which shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
23. In continuation, the judge verified as to whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been able to reduce his loss of income. According to art. 17 par. 1 point ii) of the
Regulations, such remuneration under a new employment contract shall be deducted from
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the residual value of the contract that was terminated early, in the calculation of the
amount of compensation for breach of contract (“the mitigated compensation”).
24. In this respect, the judge noted that indeed the Claimant had concluded a new employment
contract with the Japanese club Ocacias Kyoto, which entitled him to a monthly salary of
Japanese Yen (JPY) 200,000. As such, the judge deemed that the Claimant was able to
mitigate his loss in the amount of JPY 2,400,000. In this regard, the judge concluded that
the mitigated compensation of the Claimant would amount to NGN 5,161,910.
25. Having established the above, the judge took note of the Claimant’s request for
NGN 650,000, corresponding to bonuses for matches won and drew by the Respondent
between October 2018 and September 2019. In this regard, the judge observed that the
parties were no longer contractually bound during that period of time. Consequently, the
judge concluded that this request lacked any contractual basis and decided that the
Claimant is not entitled to bonuses for results obtained by the Respondent after the
termination of the contract.
26. In continuation, the judge analysed the Claimant’s request for the payment of
NGN 2,500,000 as an additional match bonus compensation corresponding to the
probability of matches won and drawn by the Respondent between September 2019 and
February 2021. Considering that this request is purely speculative as it is based on matches
which have not yet occurred, the judge decided to reject it.
27. Finally, the judge addressed the request of the Claimant for the payment of an additional
compensation of NGN 2,700,000 “corresponding to 6 monthly salaries […] on the basis of
specificity of sport”. The judge noted that this request was not based on any contractual
provision, nor was it substantiated. Therefore, the judge decided to reject this request.
28. Consequently, in view of all of the above, the Dispute Resolution Chamber judge decided
that the Respondent must pay the amount of NGN 5,161,910 to the Claimant, which is
considered by the judge to be a reasonable and justified amount as compensation for
breach of contract.
29. 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 compensation
as of the date on which the claim was lodged, i.e. 6 September 2019, until the date of
effective payment.
30. In light of the above, the judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
31. 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.
32. 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
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players, either nationally or internationally, up until the due amounts are paid and for the
maximum duration of three entire and consecutive registration periods.
33. 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.
34. 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. Decis ion of the Dis pute Res olution Cham ber judge
1.
The claim of the Claimant, Samuel Akurugu, is partially accepted.
2.
The Respondent, Rivers United FC, has to pay to the Claimant outstanding remuneration
in the amounts of Nigerian Naira (NGN) 50,000, plus interest at the rate of 5% p.a. on the
aforementioned amount as from 10 October 2018 until the date of effective payment.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in the
amount of NGN 5,161,910, plus interest at the rate of 5% p.a. on the aforementioned
amount as from 6 September 2019 until the date of effective payment .
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly, preferably
to the e-mail address 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
points 2. and 3. above.
6.
The Respondent shall provide evidence of payment of the due amounts in accordance
with points 2. and 3. above to FIFA to the e-mail address [email protected], duly translated,
if need be, into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amounts due plus interest in accordance with points 2. and 3. above
are not paid by the Respondent w ithin 45 day s 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).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
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9.
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.
*****
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: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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