Labour Disputes
Texto da decisão
REF FPSD-3219
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Kayode
Olarenwaju Ayobami
COMPOSITION:
HENDEL Clifford J. (USA & France), Deputy Chairperson
ATILIO TARABORELLI Alejandro (Argentina), member
MARIS JUNCOS Stella (Argentina), member
CLAIMANT:
Kayode Olarenwaju Ayobami, Nigeria
Represented by Talat Emre Koçak
RESPONDENT:
FC Shaktar Donetsk, Ukraine
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REF FPSD-3219
I.
Facts of the case
1.
On 2 March 2018, the Nigerian player, Kayode Olarenwaju Ayobami (hereinafter: the player
or the Claimant) and the Ukranian club, FC Shaktar Donetsk (hereinafter: the club or the
Respondent) concluded an employment contract valid as from 1 June 2018 until 31 May 2023
(hereinafter: the contract).
2.
Clause 4.2 of the contract reads as follows:
“The player is entitled to an annual paid leave (must be taken outside the regular football
season), the duration of which is stipulated in the Club Collective Agreement. The annual and
additional leave plan is subject to a written approval of the head coach of the team employing
the player, and countersigned by the player and the club”.
3.
According to clauses 1 of Appendix 1 to the contract, the player was entitled to a monthly
salary of EUR 75,000 net between 1 June 2018 and 31 May 2022.
4.
On 21 September 2020, the player, the club and the Turkish club, Sivasspor, entered into a
loan agreement, according to which the player’s services were temporarily transferred from
the club to Sivasspor as from the same date until 31 May 2021 (hereinafter: the first loan
agreement).
5.
According to clause 5 of the first loan agreement, the contract remained suspended during
the term of the loan.
6.
On 7 July 2021, the player, the club and Sivasspor entered into a new loan agreement,
according to which the player’s services were temporarily transferred from the club to
Sivasspor as from the same date until 31 May 2022 (hereinafter: the second loan agreement)
7.
According to clause 6 of the second loan agreement:
“6. Consent:
The Player hereby expressly and irrevocably consents to all of the terms and conditions
contained within this Agreement and have received independent legal advice. For the sake of
clarity, the Player also acknowledges and accepts that his remuneration, including but not
limited to salary, bonus and fringe benefits, shall only be satisfied by Sivasspor during the
term of the temporary employment, i.e. from 7July 2021until 31 May 2022.
An Employment Contract binding Shakhtar and the Player shall be suspended for the
Temporary Transfer Period. It is acknowledged and agreed that as from 31 May 2021 until
31 May 2022 Shakhtar will be released from its respective obligations under the Shakhtar
Playing Contract and no other additional payments shall be due or payable to the Player by
Shakhtar during or in respect of that period, including but without limitation any salary,
bonuses, travel expenses, subsistence, accommodation expenses and any other benefits of
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any nature. To the extent, the Player has any claim or entitlement to any payments from
Shakhtar during or in respect of the period as from 31 May 2021 until 31 May 2022, whether
known or unknown at the date hereof, the Player hereby waives them unconditionally.
Further, any failure by Sivasspor to honor its payment obligations to the Player under or in
connection with the Sivasspor Contract shall not give a rise to any liability Shakhtar to the
Player”.
8.
On 8 July 2021, the player put the club in default of payment of his salary of June 2021, as
well as his pro rata salary of June 2021 (i.e. 7 days).
9.
On 12 July 2021, the player sent a reminder to the club in respect of his outstanding salaries.
10. On 13 July 2021, the club replied that it would “respond soon”.
II. Proceedings before FIFA
11. On 22 July 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
12. On 11 August 2021, the player lodged a claim before FIFA requesting the following relief:
“That the Respondent has to pay the overdue and unpaid salary of June2021-EUR
75.000,00and 7-days payment of July 2021 –17.500 EUR totally amounting 92.500 EUR with
their interest from 01.07.2021 for 75.000,00 EUR and 08.07.2021 for 17.500 EUR”.
b. Position of the Respondent
13. The club referred to the second loan agreement and claimed that based on clauses 6 and 10
of such agreement the player waived his entitlement to any remuneration. The club argued
that the conduct of the player is in violation of the principle venire contra factum proprium
and that the claim of the player is made in bath faith and is unfounded.
14. The club additionally argued that after the expiry of the first loan agreement, the player did
not return to Ukraine in spite of having been required to do so by the club and did not provide
any services to the club.
15. In support of this, the club filed e-mails and text messages exchanged with the player’s wife,
allegedly referring to the fact that the player needed a new passport.
16. The club asked that the claim be rejected.
c. Rejoinder of the Claimant
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17. The player reiterated his position and explained that by the time the first loan agreement
expired, all players from the club were on holidays.
18. The player furthermore explained that the club him put him in a difficult situation by
requesting him to come back as soon as the first loan agreement ended. The player
highlighted as follows, based on copies of e-mail attached to his submissions:
“• In order to get VISA for Ukraine, he had to go to Nigeria but due to civil war and COVID19 Pandemics, the request had not been validated and visa could not be issued (the Claimant
timely informed the Club with messages and mails)
• The Claimant returned to Turkey in order to get VISA but there was no free page for VISA
in his passport and the Player immediately informed the Club,
• The Player was also told that due to COVID-19 Pandemic, he had to go to Nigeria to take
care of all necessary procedural issues which made the Player to fly between Nigeria and
Turkey several times,
• All these correspondences made by and between two parties and the Club had never
sanctioned Player, asked his defence and/or informed that they plan to cut a portion and/or
all his remuneration”.
d. Final comments of the Respondent
19. The club stated that it resumed training after the annual leave on 11 June 2021 and that it
had no intention to call the player before such date.
20. The club additionally adduced that since May 2021 it was in contact with the player’s wife in
order to arrange the issuance of his visa, and that the player travelled back to Nigeria which
significantly delayed such process, especially because the player was not “cooperative”,
causing excessive delays. The club filed a series of text messages in support of this argument.
21. The club reiterated its position.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 22 July 2021 and submitted for decision on
12 November 2021. Taking into account the wording of art. 34 of the October 2021 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.
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23. Subsequently, the members of the Chamber 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 (August 2021 edition), 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
an Ukrainian club.
24. 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 (August 2021 edition), and
considering that the present claim was lodged on 22 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. 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. Merits of the dispute
26. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber 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
27. 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 whether the player is entitled to
the remuneration sought. The DRC further acknowledged that the club relies on the contents
of the second loan agreement and the waiver contained therein.
28. In this context, the Chamber acknowledged that it its task was to determine the following?
- Is the player entitled to any amounts during 1 June and 7 July 2021?
- What are the consequences of the waiver included in the second loan agreement?
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29. The issues were examined in turn.
Is the player entitled to any amounts during 1 June and 7 July 2021?
30. The DRC turned its attention to the documentation on file and noted that the club: (i)
confessed (or did not oppose) that it authorized the player to go back to his home country;
(ii) was frequently in contact with the player’s (or his representatives); (iii) took part in the
process of issuance of his new visa; (iv) has never requested the player to avail himself for an
specific event / date nor has put the player in default for breach of contract; (v) has never
granted the player a deadline to cure any eventual breach.
31. Additionally, the DRC observed that the player is contractually entitled to an annual leave.
32. Bearing in mind the foregoing and the argumentation of the club along the lines of exceptio
non adimpleti contractus, the DRC was comfortable to reject the club’s position and confirm
that the player is entitled to the remuneration of June 2020 plus 6 days of July, since on the
7th the contract was suspended in accordance with the principle pacta sunt servanda.
What are the consequences of the waiver included in the second loan agreement?
33. The second issue to be solved in in the case at hand is whether the second loan agreement
signed by the player is to be considered a valid waiver for outstanding remuneration. To this
end, the DRC recalled the jurisprudence of the DRC as well as the Court of Arbitration for
Sport (CAS), more specifically the awards CAS 2020/A/6727 and CAS 2016/A/4582, as well
as the DRC the decision under case ref. 21-00118.
34. From the contents of the second loan agreement, the DRC pointed out that document must
be read as both a waiver and a receipt in full settlement, meaning that the player both waived
any remuneration he could be entitled to as well as declared he had received all his dues.
35. Nonetheless, the conclusion that follows from the cited jurisprudence is that the player in
principle cannot waive his right to outstanding remuneration. The DRC pointed out that the
case at hand does not pertain to compensation for breach of contract, so this issue, although
discussed in depth by the CAS, does not need to be examined. This derives from the following
detailed in continuation.
36. As a starting point, article 341 of the Swiss Code of Obligations (SCO) prevents the employee
to waive, during the duration of the contract and within a month following the (effective)
end of the contractual relationship, claims arising from mandatory provisions of the law or of
a collective agreement. In turn, art. 361 SCO lists the absolutely mandatory provisions (i.e.
cannot be derogated from neither to the detriment of the employer or employee), while art.
362 SCO lists the relative mandatory provisions (i.e. protects the employee only as the
provisions listed therein cannot be derogated from to the detriment of the latter).
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37. At the same time, art. 20 par. 1 SCO rules that a contract (or clause) is null and void if its
terms are unlawful (i.e. a contract that contravenes art. 361 or 362). The DRC confirmed that
the salary (art. 322 SCO) is not listed under art. 361/362, therefore parties may agree on the
reduction in pay for the future; but not for work already done for the period established
under art. 341.
38. Additionally, for “receipts in full settlement”, these shall be considered to contravene art. 341
of the SCO if they contains a unilateral waiver by the employee of a claim laid down in a
mandatory provision (art. 361/362), and that this claim has not been compensated through
a transaction; put differently, if the player "indirectly" waives payment of wages for work
already done / outstanding salaries by way of a remission of debt, this waiver is null and void
unless it is part of a genuine transaction involving concessions of comparable importance on
the part of each party. In concrete terms, while assessing whether a transaction is permissible
under art. 341 of the SCO, the DRC is required to conduct a balancing of interests, and verify
whether the mutual claims waived by each party are of comparable value, i.e. if there is an
appropriate equivalence between the parties’ reciprocal concessions.
39. With the forgoing in mind, the DRC confirmed having established that the player is entitled
to his remuneration between 1 June 2021 and 6 July 2021. Accordingly, is shall be considered
that the was rendering his services to the club (albeit enjoying his annual leave) and thus that
he performed his obligations (i.e. work) under the contract for the cited period. He cannot
thus waive the remuneration for the work already performed, as confirmed by both DRC and
CAS jurisprudence.
40. Consequently, the DRC found that the waiver contained in the second loan agreement shall
be set aside and that the player is entitled to his remuneration while at the club between the
two loan agreements, based on principle pacta sunt servanda. As such, the player shall receive
his full salary of June 2021 as well as his pro rata salary of 6 days for July 2021, respectively
amounting to EUR 75,000 net and EUR 15,000 net.
41. Moreover, on the basis on the player’s petition as well as the jurisprudence of the Football
Tribunal, the DRC decided to grant interest at the rate of 5% p.a. on the cited amounts as
from their due dates until the date of effective payment.
ii. Compliance with monetary decisions
42. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 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.
43. In this regard, the DRC 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,
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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.
44. Therefore, bearing in mind the above, the DRC 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. 24bis par. 2, 4, and 7 of the Regulations.
45. 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.
46. The DRC 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. 24bis par. 8 of
the Regulations.
d. Costs
47. 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.
48. Likewise and for the sake of completeness, 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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kayode Olarenwaju Ayobami, is partially accepted.
2.
The Respondent, FC Shaktar Donetsk, has to pay to the Claimant the following amounts:
- EUR 75,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2021
until the date of effective payment;
- EUR 15,000 net as outstanding remuneration plus 5% interest p.a. as from 7 July 2021
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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