Dispute Resolution Chamber
Texto da decisão
REF 20-01822 / FPSD-495
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Toluwalase Emmanuel
Arokodare
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Toluwalase Emmanuel Arokodare, Nigeria
Represented by Guy San Bartolome Sarrey
RESPONDENT:
Valmiera FC, Latvia
Represented by Gianpaolo Monteneri and Anna Smirnova
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I.
FACTS OF THE CASE
1.
On 21 December 2018, the Nigerian player, Toluwalase Emmanuel Arokodare (hereinafter:
Claimant), and the Latvian club, Valmiera FC (hereinafter: Respondent) allegedly signed an
employment contract (hereinafter: December contract) valid as from said date until 21
December 2023.
2.
Art. 3.3 of the Contract stipulated that: “(...) In case of transfer to other club, the Club (i.e.
VALMIERA FC) assumes a responsibility to pay Football Player (i.e. Mr. T.E. AROKODARE)
5% amount from the total transfer sum. (... )”
3.
On 18 September 2020, the German football club “1.FC KOLN” and the Respondent
concluded a Loan Agreement for the temporary transfer of the Claimant.
4.
In accordance with the loan agreement above mentioned, it was stipulated, inter alia, that:
“(. . .) In consideration for the transfer on a loan basis of the Player, a guaranteed net loan
fee of € 550,000 (five hundred and fifty thousand Euros) shall be paid within the five working
days from the registration of the Player for 1. FC Koln (for TMS purposes the parties will insert
the date of 28 September 2020) by 1. FC Koln to Valmieras FK. (. . .)”
5.
On 27 June 2019, the Player and the Club have signed a further employment contract (June
contract), allegedly superseding the previous one concluded in December, the content of
which follows the terms of the latter almost entirely, except for the conditional clause
originally agreed under art. 3.3.
6.
On 9 October 2020, a Player’s representative, Mr. Jean Gerard Benoit Czajka, sent a letter
to the Club requesting to pay the sum of € 27,500 (i.e. 5% of the transfer loan amounting
to € 550,000) within fifteen (15) working days as per what establish by Art. 3.3 of the
Contract.
7.
On 15 October 2020, the Club replied to the Player’s letter what follows:
“(. . .) We note that in your letter you make reference to art. 3.3 of a draft employment
contract dated 21 December 2018 between our Club and the Player, which has however
never entered into force.
The only valid employment contract between our Club and the Player is the one dated 27
June 2019, which the Player has signed in person in Valmiera while joining our Club. This
contract is the one deposited before the League.
For sake of good order, we herewith enclose copy of the employment contract for your
information. As you may note, this contract does not bear the clause to which you refer.
We therefore consider the matter as closed. (. . .)”
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8.
On 20 October 2020, the Claimant’s lawyer responded to the Club’s letter reiterating his
request for compensation due under art. 3.3 of the Contract and arguing the following:
“Concerning the second contract of employment dated 27 June 2019 (…) force is to note:
Firstly, what is not coincidence, the "second" contract of employment has been concluded
without the presence of the player's representative and has been proposed to Mr. T.E.
AROKODARE as "administrative" reason without to explain anything else.
Secondly, what is fundamental, all the terms and conditions of the "second" contract of
employment are the same ... except only one clause having been deleted, i.e. the clause
concerning the payment of 5% of transfer fee to Mr. T.E. AROKODARE.
Thirdly, what is not anecdotic, the duration of the "second" contract of employment is the
same than the first contract of employment concluded 21 December 2018, i.e.: ( . . .) This
Agreement is concluded for a term of 5 years until 21 December 2023 ( ... )
Regarding the above, notwithstanding that it is no sense that a player agrees (after six
months) to reduce substantially his remuneration without any other compensation Mr. T.E.
AROKODARE has been totally abused by your sporting entity to sign a so-called new
(second) contract of employment on 27 June 2019.
9.
On 22 October 2020, the Club replied, once again, that only the contract signed on 27
June 2019 should have been considered valid as the one to which the Player referred had
never entered into force.
10.
On 24 November 2020, the Player reported to the Latvian Football Federation and requested
clarifications on the matter.
11.
On 10 December 2020, the LFF forwarded to the Claimant the same letter sent by the Club
on 7 December 2020 in reply to the inquiry on the matter, stating as follows:
“Dear Sir,
The only valid employment contract between our Club and the Player is the one dated 27
June 2019, which the Player has signed in person in Valmiera while joining our Club. This
contract is duly deposited before your Federation and it has replaced any previous
agreements or documents signed between the parties.
Please note that even the lawyer of the Player has enclosed the contract of 27 June 2019
to his letter as Evidence 2 (not on file), although he is stating not being in possession of this
contract and asking for a certified copy of it.”
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II.
PROCEEDINGS BEFORE FIFA
12.
On 15 December, the Claimant lodged the claim at hand. A brief summary of the position
of the parties is detailed in continuation.
a.
The claim of the Claimant
13.
On his claim dated 15 December 2020, the Claimant requested that the Respondent shall
be ordered to pay the amount of EUR 27,500.00 as outstanding remuneration plus 5% p.a.
interest as of 19 September 2020.
14.
In this respect, the Claimant invoked art. 3.3 of the Contract signed on 21 December 2018
as the only one valid and binding between the Parties and accused the Respondent of
having fabricated the Player’ signature in order to avoid the payment due under the
abovementioned contractual clause.
15.
Accordingly, the Claimant requested FIFA DRC to appoint an expert in graphology in order
to analyse and verify the authenticity of the questioned contracts.
16.
Moreover, according to the Claimant, the content of art. 4.1 of the fake contract would be
in contradiction with the declared date of entry into force (i.e. 27 June 2019), as it expressly
states that: “(. . .) This Agreement is concluded for a term of 5 years until 21 December
2023 (. . .)”.
b.
Position of the Respondent
17.
In its reply to the claim, the Respondent rejected the Claimant’s request and offered an
explanation regarding the apparent existence of two employment contracts respectively
signed on 21 December 2018 and 27 June 2019.
18.
The Respondent referred that the Claimant’s transfer was one of the first experiences of
the Respondent in international football transfers. Before the transfer of the Claimant, the
Respondent was not aware about the specificities of the international transfers neither of
the procedures implemented by the Latvian immigration authorities for allowing the
entrance to player coming from non-EU countries.
19.
In this context, the Respondent admitted that in December 2018, the Claimant and the
respondent exchanged the electronic copies of the contract and pursuant to clause 4.2 of
the December contract, it was established that "the agreement shall enter into force upon
receipt of a work permit with the legislation of the republic of Latvia".
20.
Consequently, the Respondent stated that the December contract was signed in order for
the Respondent to be able to request the entry visa for the Claimant to be granted by the
competent Latvian immigration authorities. The Claimant at the moment of exchanging the
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electronic copies of the December contract was in Nigeria, and the signature of such
contract was supposed to simplify the arrangement for his EU entry documentation.
21.
According to the Respondent, as certain restrictions are imposed in accordance with the
laws of Latvia in connection with the entry visa and working permit for extra-UE citizens, it
was not possible under the December contract for the Claimant to receive a working permit.
22.
Therefore, in the Respondent’s opinion, the December contract never entered into force,
was never performed by the parties and otherwise was of no avail to the Claimant and the
respondent.
23.
“In fact, - argued the Respondent -, the Claimant remained registered with his former club
Box 2 box, and effectively arrived in Latvia only half a year later in the end of June 2019”.
24.
As per what declared by the Respondent, only following the arrival of the Claimant in Latvia,
on 27 June 2019, the parties were finally able to sign an employment contract in original
which was deposited in accordance with the regulations of the Latvian football federation.
Until the Claimant could be physically present at the Respondent’s club and put his handwritten signature on the original counterparts of the employment contract, the Respondent
declared to have not been able to deposit the employment contract with the Latvian football
federation, since the electronic copy of an employment contract is not accepted by the
Latvian football federation and only originally signed counterparts can be filed.
25.
Moreover, the Respondent underlined that the Claimant had never expressed any concern
or misunderstanding in connection with the signature of the employment contract until the
transfer on loan to 1.FC Koln in September 2020.
26.
Furthermore, the Respondent argued that on the letter sent by the Claimant’s lawyer on 20
October 2020 (cf. Point 8), the same lawyer expressly recognized that the employment
contract was effectively signed, and the only reproach of the Claimant was that, apparently,
said contract had been signed in the absence of the Claimant’s representative, but even
this, according to the Respondent, is not correct.
27.
In this context, the Respondent referred to the evidence submitted by the Claimant (piece
18 of Claimant’s exhibits) from which it would be possible to infer that also the agent of
the claimant, Mr. Jean Gerard Benoit Czajka, was present at the signature of the
employment contract.
28.
In view of the above, the Respondent rejected the accusations that the player has been
abused and stated that, on the contrary, the contract dated 27 June 2019 was freely and
willingly entered by the parties.
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29.
In a subsidiary way, the Respondent stated that even assuming that the December contract
was valid and binding, nevertheless art. 3.3 of said contract shall not apply to the transfers
that are not permanent as the one in casu, since the literal content of the abovementioned
clause would exclude such scenarios.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
30.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 15 December 2020 and
submitted for decision on 20 May 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
June 2020 edition of the Procedural Rules is applicable to the matter at hand.
31.
Subsequently, the members of the Chamber 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. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber 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.
32.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it 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 15 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
33.
The Chamber 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 stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
34.
In this respect, the Chamber 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.
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c.
35.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
it will refer only to the facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
36.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the authenticity of the two
employments contract signed respectively on 21 December 2018 and on 27 June 2019
37.
In this context, the Chamber recalled that under art. 3.3 of the December contract, the
Claimant would be entitled to receive a percentage corresponding to 5% of the transfer
fee potentially paid to the Respondent by any third club.
38.
Conversely, the Chamber observed that in the June contract, the aforementioned clause
was not inserted.
39.
In this respect, the Chamber acknowledged that its task was to first assess which of the
above referred contracts shall be considered valid and binding at the date of the player’s
loan transfer to 1.FC Koln.
40.
Firstly, the Chamber decided to conduct an analysis of the parties’ behaviours as of 21
December 2018 until the date of the claim at hand.
41.
Consistently in accordance with the principle of chronological prevalence, in such scenarios
it is imperative to conduct a chronological assessment of the parties’ behaviour before and
during the negotiations as well as after the conclusion of the contract to establish which
was de facto their will in relation to the agreements in question.
42.
At this stage, the DRC considered it appropriate to remark that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the ones
of alleged falsified signature or documents, and that such affairs fall into the jurisdiction of
the competent national criminal authority.
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43.
In continuation the Chamber recalled that all documentation remitted shall be considered
with free discretion and, therefore, it focused its attention on the documents submitted by
the parties.
44.
In this context, the Chamber noted that, according to the evidence in its possession, the
Employment Contract dated 27 June 2019 was effectively signed in presence of the player
and his representative and that the same Claimant was perfectly aware of it.
45.
Therefore, the signatures contained on said contract have been deemed as authentic by the
Chamber and, accordingly, the June contract shall be considered valid and binding between
the parties.
46.
On the contrary, as for what concerns the December contract, it appears reasonable, in the
Chamber’s opinion, to assume that until the player’s arrival in Latvia, the same Claimant
was perfectly aware of the fact that Employment agreement had yet to be finalized, to the
point that the Claimant itself expressed doubts about the validity of a “simple transfer
agreement signed by email six months before” (cf. piece 18 of the annexes to the claim)
47.
Furthermore, the Chamber wishes to observe that such types of contracts which entry into
force is conditional upon the obtainment of working permit or visa are quite common in
the current landscape of player’s international transfers, especially when said transfers occur
between countries belonging to different continents.
ii. Consequences
48.
Having stated the above, the members of the Chamber decided that the Claimant’s requests
shall be rejected.
d.
Costs
49.
The Chamber 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.
50.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Claimant, Toluwalase Emmanuel Arokodare, is rejected.
2. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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