Labour Disputes
Texto da decisão
REF 20-01034
Decision of the
DRC Judge
passed on 10 March 2021
regarding an employment-related dispute concerning the player Kayode Olarenwaju
Ayobami
COMPOSITION:
Pavel Pivovarov (Russia), DRC Judge
CLAIMANT:
Kayode Olarenwaju Ayobami, Nigeria
Represented by Mr Talat Emre Kocak
RESPONDENT:
Shakhtar Donetsk, Ukraine
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I.
FACTS OF THE CASE
1.
On 2 March 2018, the player Kayode Olarenwaju Ayobami (hereinafter: “the Claimant” or “the
player”) and the club Shakhtar Donetsk (hereinafter: “the Respondent or “the club”) concluded
an employment contract (“the contract”) valid from 1 June 2018 until 31 May 2023.
2.
The monthly salary of the player was fixed in the net amount of EUR 75,000.00 per month for
the period between 1 June 2018 and 31 May 2022.
3.
On 9 August 2019, the Claimant was transferred on loan from the Respondent to the Turkish
club, Gaziantep FK, until 31 May 2020.
4.
On the same date, the Claimant, the Respondent and the club, Gaziantep FK signed a loan
agreement according to which the latter undertook to pay the player´s salary until the end of
the loan period.
5.
Art. 3 of the loan agreement provided that, the contract between the Claimant and the
Respondent shall be suspended for the loan period. Moreover, Gaziantep FK released the
Respondent from his financial obligations towards the player for the entire duration of the loan,
and in case of non-compliance of said agreement by Gaziantep FK no liability would have lied
on the Respondent, the player waived them unconditionally.
6.
Between 23 and 28 May 2020, the Respondent and Gaziantep FK agreed on the extension of
the loan agreement in order to allow the Turkish club to conclude the “Turkish Super League
season 2019/2020” previously suspended to the disrupt of the Covid-19 pandemic.
7.
On 1 June 2020, the Claimant informed the Respondent on the following terms: “despite the
loan contract between Gaziantep FC and Mr. Kayode expired, due to FIFA and Turkish FA
rules, the contract deemed extended until the end of 2019-2020 football season.”
8.
In the same letter, the Claimant stated “Mr. Kayode respectfully informs and underlines that as
it is agreed between the clubs in accordance with the emergency rules of FIFA and Turkish FA,
Mr. Kayode’s loan contract will end on the date the season 2019-2020 ends in Turkey but the
salaries of June 2020, July 2020 and the forthcoming months must be paid by Shaktar Donetsk
in line with the employment contract between the parties.”
9.
The Claimant is of the opinion that the salaries related to June and July 2020 should have been
paid by the Respondent as the loan agreement between the Respondent and Gaziantep FK only
foresaw Turkish club’s liability for the payment of player‘ salary until the end date of said
agreement, namely 31 May 2020.
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10.
Therefore, the player requested from the club the payment of the salaries related to June and
July 2020 which amounts to EUR 150,000 (i.e. EUR 75,000 each) plus interest from the respective
due dates.
11.
The Respondent rejected the requests made by the Claimant on the basis of the fact that on 28
May 2020 an extension of the loan period has been mutually agreed by the Respondent and
Gaziantep FK, in order to let the player successfully conclude the Turkish Super League
2019/2020.
12.
In addition, the Respondent argued that the Claimant by virtue of his letter dated 1 June 2020
confirmed his acceptance of the loan extension until the end of the season.
13.
In view of the above, the Respondent is of the opinion that alongside the time extension, all the
other terms and conditions (including the salary) of the aforementioned loan agreement were
extended and accepted by Gaziantep FK until the end of the Turkish Super League (i.e. 26 July
2020).
14.
Furthermore, the Respondent stressed out the fact that no evidence has been provided by the
Claimant in order to prove that the Respondent had agreed on different terms and accepted to
pay the player’ salary for the months of June and July.
15.
The Respondent added, “After 31 May 2020, the player did not return to Ukraine, he continued
to provide his services to Gaziantep FK until the end of the Turkish Super League season which
according to the website of the Turkish Football Association, the last match was played on 26
July 2020. During June-July 2020, the player participated in 5 matches for Gaziantep FK, which
is confirmed by the player´s profile from the website of the Turkish Football Association”.
II.
CONSIDERATIONS OF THE DRC Judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: “the DRC judge”) analyzed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 21 July 2020. Taking into account the wording of art.
21 of the 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: “the Procedural Rules”), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of
the Regulations on the Status and Transfer of Players (edition February 2021) 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 an Ukrainian club.
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3.
Furthermore, the DRC judge analyzed 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 par. 2 of
the Regulations on the Status and Transfer of Players (edition February 2021), and considering
that the present claim was lodged on 21 July 2020, the June 2020 edition of said regulations
(hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the
DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by
acknowledging the above-mentioned facts as well as the documentation contained in the file in
relation to the substance of the matter. However, the DRC judge emphasized 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.
5.
To start with, the DRC judge acknowledged that the parties to the dispute had signed an
employment contract valid from 1 June 2018 until 31 May 2023, i.e. the contract.
6.
The DRC judge further noted that on 9 August 2019, the Claimant, the Respondent and
Gaziantep FK concluded the loan agreement originally valid until 31 May 2020 and that
according to its art. 3 Gaziantep FK assumed the payment of the player’s remuneration during
the validity of the loan.
7.
In continuation, the DRC judge acknowledged that on 28 May 2020, the Respondent accepted
the offer of Gaziantep FK to extend the loan agreement based on the fact, that the Turkish
Super League 2019/2020 was suspended due to the COVID-19 outbreak.
8.
At this stage, the DRC judge pointed out that the Claimant lodged the present claim against the
Respondent requesting the payment of the salaries related to the months of June and July 2020
arguing that the loan agreement was originally valid until 31 May 2020 and hence the
Respondent should have paid the salaries matured after that date.
9.
In this respect, the DRC Judge emphasised that from the content of the correspondence
interchanged between the clubs (i.e. the Respondent and Gaziantep FK) it was evident the
willingness of said clubs to extend the loan until the end of the Turkish season 2019/2020,
without making any change of the terms agreed on 9 August 2019.
10.
In addition, the DRC judge took special note of the Claimant´s letter dated 1 June 2020 by means
of which he informed the Respondent “Mr. Kayode respectfully informs and underlines that as
it is agreed between the clubs in accordance with the emergency rules of FIFA and Turkish FA,
Mr. Kayode’s loan contract will end on the date the season 2019-2020 ends in Turkey but the
salaries of June 2020, July 2020 and the forthcoming months must be paid by Shakhtar Donetsk
in line with the employment contract between the parties.”
11.
In light of the above, the DRC judge deemed that the Claimant failed to provide conclusive
evidence in order to prove the Respondent´s liability for the payment of the player´s salaries of
June and July 2020.
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12.
What is more, the DRC judge highlighted that the Claimant did not provide any evidence
showing a change of the terms agreed between the player, the Respondent and Gaziantep FK,
in the loan agreement.
13.
In view of all the above, the DRC judge held that the Claimant did not provide enough evidence
to justify his request (cf. art. 12 par. 3 of the Procedural Rules). Thus, the DRC judge decided to
reject the claim of the Claimant.
III. DECISION OF THE DRC Judge
1.
The claim of the Claimant, Kayode Olarenwaju Ayobami, is rejected.
For the DRC Judge:
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 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:
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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
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