Labour Disputes
Texto da decisão
REF FPSD-6364
Decision of the
Dispute Resolution Chamber
passed on 1 September 2022
regarding an employment-related dispute concerning the player Olarenwaju Ayobami Kayode
BY:
Frans DE WEGER (The Netherlands), Chairperson
José Luis ANDRADE (Portugal), member
Alexandra GOMEZ BRUINEWOUD (Uruguay & Netherlands), member
CLAIMANT:
Kayode Olarenwaju Ayobami, Nigeria
RESPONDENT:
Sivasspor Kulubu, Türkiye
REF FPSD-6364
I Facts
1. On 7 July 2021, the parties concluded and employment contract valid until 31 May 2022.
2. Accordingly, the player was entitled to the following:
3. Clause 9 of the contract stipulated the following:
“9 - DISPUTES
Any and all disputes arising out or in connection with this Contract shall be dealt with exclusively by the
Courts and Enforcement Offices of Sivas and shall be resolved definitely in accordance with Turkish Law.”
4. On 1 June 2022, the player sent a default notice and requested the payment of EUR 240,00,
corresponding to the amounts due on 30 April 2022 and 31 May 2022, within 10 days.
II Proceedings before FIFA
1. On 14 June 2022, the player lodged a claim before FIFA for outstanding remuneration and requested
the payment of EUR 120,000 plus 5% interest p.a. as from 31 May 2022.
2. In its reply to the claim, the Respondent contested the competence of FIFA and referred to clause 9
of the contract.
3. As to the substance, the Respondent argued that it paid the player as follows:
Amount
Date
EUR/TRY Rate
TOTAL IN EUR
100.000,00 EUR
26.07.2021
100.000,00 EUR
120.000,00 EUR
27.08.2021
120.000,00 EUR
120.000,00 EUR
23.09.2021
120.000,00 EUR
10.850,00 TRY
30.09.2021
10,3273
1.050,61 EUR
10.125,00 TRY
14.10.2021
10,6470
950,97 EUR
120.000,00 EUR
27.10.2021
7.475,00 EUR
4.11.2021
11,2360
665,27 EUR
120.000,00 EUR
8.037,50 TRY
30.11.2021
2.12.2021
15,2340
120.000,00 EUR
527,60 EUR
11.262,50 TRY
9.12.2021
15,6091
721,53 EUR
16.475,00 TRY
16.12.2021
17,2525
954,93 EUR
120.000,00 EUR
REF FPSD-6364
29.250,00 TRY
16.12.2021
17,2525
1.695,41 EUR
120.000,00 EUR
28.12.2021
10.368,75 TRY
13.01.2022
15,5690
665,99 EUR
11.812,50 TRY
13.01.2022
15,5690
758,72 EUR
10.750,00 TRY
17.02.2022
15,5131
692,96 EUR
120.000,00 EUR
17.02.2022
14.750,00 TRY
17.03.2022
16,2601
907,13 EUR
21.450,00 TRY
24.03.2022
16,3363
1.313,03 EUR
120.000,00 EUR
24.03.2022
7.475,00 TRY
7.04.2022
16,1054
464,13 EUR
9.925,00 TRY
14.04.2022
15,9640
621,71 EUR
7.875,00 TRY
21.04.2022
16,0437
490,85 EUR
8.037,50 TRY
28.04.2022
15,5962
515,35 EUR
23.225,00 TRY
5.05.2022
15,7573
1.473,92 EUR
120.000,00 EUR
10.05.2022
10.662,50 TRY
12.05.2022
16,0884
662,74 EUR
9.412,50 TRY
20.05.2022
16,9040
556,82 EUR
11.250,00 TRY
24.05.2022
17,2824
650,95 EUR
10.750,00 TRY
24.05.2022
17,2824
622,02 EUR
120.000,00 EUR
8.06.2022
120.000,00 EUR
120.000,00 EUR
120.000,00 EUR
120.000,00 EUR
120.000,00 EUR
4. In his replica, the Claimant insisted in the competence of FIFA since the matter is of an international
dimension.
5. In the opinion of the Claimant, “there is no balance to put local court in Turkey in this case as competent
body because of the nationality of the club” and he expressed that he “has no confidence in the Turkish
Local Courts”.
6. As to the substance, the Claimant insisted to be paid EUR 120,000 plus 5% interest p.a. as from 31
May 2022.
7. The Claimant explained that the payments in TRY correspond to bonuses, and referred to specific
bonuses occurred during said dates, as follows:
Amount
Date
Related Match
10.850,00 TRY
30.09.2021
Sivasspor-Fatih Karagümrük (4-0)
10.125,00 TRY
8.037,50 TRY
14.10.2021
2.12.2021
Altay- Sivasspor (1 -1)
Sivasspor - Hatayspor ( 4-0)
11.262,50 TRY
9.12.2021
Alanyaspor - Sivasspor (0-1)
16.475,00 TRY
16.12.2021
Sivasspor - Galatasaray (1-0)
29.250,00 TRY
16.12.2021
10.368,75 TRY
13.01.2022
Konyaspor -Sivasspor (0-1)
11.812,50 TRY
13.01.2022
Konyaspor -Sivasspor (0-1)
10.750,00 TRY
17.02.2022
Sivasspor -Yeni.Malatyaspor (2-1)
14.750,00 TRY
17.03.2022
Adana Demirspor -Sivasspor (2-3)
REF FPSD-6364
21.450,00 TRY
24.03.2022
Sivasspor -Altay SK (2-1)
7.475,00 TRY
7.04.2022
9.925,00 TRY
14.04.2022
7.875,00 TRY
21.04.2022
Alanyaspor-Sivasspor (1-2)
8.037,50 TRY
28.04.2022
Sivasspor -Alanyaspor (1 -0)
23.225,00 TRY
5.05.2022
Galatasaray -Sivasspor (2-3)
10.662,50 TRY
12.05.2022
Sivasspor - Alanyaspor (1 -1)
9.412,50 TRY
20.05.2022
Rizespor -Sivasspor (1-2)
11.250,00 TRY
24.05.2022
Sivasspor-Kayserispor (2-1)
10.750,00 TRY
24.05.2022
8. In its duplica, the Respondent insisted in the competence of the local courts of Sivas (Turkey).
9. The Respondent underlined that “agreed freely to submit any and all disputes arising from the
employment contract exclusively to the Courts and Enforcement Offices of Sivas, do not have the right for
the choice of forum.”
10. The Respondent further considered that the assertations of the Claimant that the payments in Turkish
Lira were win-draw bonusses are also unfounded and false.
REF FPSD-6364
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) 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 14 June 2022 and submitted for decision on 1 September 2022.
Taking into account the wording of art. 34 of the June 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 Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2022 edition), it is competent to deal with
employment-related disputes with an international dimension.
3.
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 Players (June 2022 edition), and considering that the
present claim was lodged on 14 June 2022, the June 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 Chamber 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 Chamber stressed the wording of art. 13 par. 4
of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
c.
5.
Admissibility
The Chamber acknowledged that the Respondent, on the one hand, contested the competence of
FIFA’s deciding bodies on the basis of clause 9 of the contract, alleging that the competence to deal
with any dispute deriving from the relevant employment contract correspond to the Courts of Sivas.
On the other hand, the Chamber noted that the Claimant insisted on the competence of FIFA to
adjudicate the claim.
6.
Taking into account all the above, the Chamber emphasised that in accordance with art. 22 the
Regulations, FIFA is competent to hear employment-related disputes between a player and a club
with an international dimension “without prejudice to the right of any player (…) or club to seek redress
before a civil court for employment related disputes”.
REF FPSD-6364
7.
In the present matter, the Chamber duly noted that the Claimant and the Respondent had
unambiguously and exclusively agreed that any dispute that would arise from the contract would
be decided “exclusively by the Courts and Enforcement Offices of Sivas”.
8.
The Chamber recalled that parties may freely agree to give jurisdiction to a civil court, and that such
choice shall always prevail. In fact, the Chamber, recalling its jurisprudence as well as the CAS
jurisprudence in this regard, highlighted that even if the choice of law does not specify which courts
are competent (e.g. a generic reference is made to a region/city), FIFA is not competent when the
parties have exclusively agreed upon the jurisdiction of a civil court. In addition, the Chamber
emphasized that art. 22 of the Regulations provides a clear hierarchy in favour of contractual
autonomy.
9.
In view of all the above, the Chamber concluded that it was not competent to hear the dispute
between the Claimant and the Respondent, and consequently declared the claim inadmissible.
d. Costs
10. The Chamber 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 Chamber decided that no procedural costs were to be imposed on the parties.
11. Furthermore, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and
decided that no procedural compensation shall be awarded in these proceedings.
12. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-6364
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Olarenwaju Ayobami Kayode, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-6364
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).
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