Labour Disputes
Texto da decisão
REF FPSD-6159
Decision of the
Dispute Resolution Chamber
passed on 21 July 2022
regarding an employment-related dispute concerning the player Kayode
Olanrewaju Ayobami
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Alejandro ATILIO TARABORELLI (Argentina), Member
Roy VERMEER (The Netherlands), Member
CLAIMANT:
Kayode Olanrewaju Ayobami, Nigeria
Represented by Ercan Sevdimbas
RESPONDENT:
Gazisehir GFK, Turkey
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REF FPSD-6159
I. Facts of the case
1.
On 2 March 2018, the Ukrainian club, FC Shakhtar Donetsk (hereinafter: Shakhtar), and
the Nigerian player, Mr Kayode Olanrewaju Ayobami (hereinafter: the player or the
Claimant), entered into an employment agreement valid as 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.
3.
On 9 August 2019, the player was transferred on loan from Shakhtar to the Turkish club,
Gazisehir GFK (hereinafter: the club or the Respondent) until 31 May 2020.
4.
In accordance with the loan agreement signed by the parties (hereinafter: the loan
agreement), the club undertook to pay the player’s salaries until the end of the loan period.
5.
Article 3 of the loan agreement provided that:
“An employment contract binding FC Shakhtar and the player shall be suspended for the Loan
Period. It is acknowledged and agreed that during the Loan Period FC Shakhtar will be released
from its respective obligations under the FC Shakhtar Playing Contract and no other additional
payments shall be due or payable to the player by FC Shakhtar during or in respect of the Loan
Period, including but without limitation any salary, bonuses, travel expenses, subsistence,
accommodation expenses and any other benefits of any nature. To the extent, the player had
any claim or entitlement to any payments from FC Shakhtar during or in respect of the Loan
Period, whether known or unknown at the date hereof, the player hereby waives them
unconditionally. Further, any failure by FC Gaziantep to honor its payment obligations to the
player under or in connection with the FC Gaziantep Contract shall not give a rise to any liability
FC Shakhtar to the player”.
6.
In parallel, the player and the club concluded an employment contract valid as from 15
August 2019 until 31 May 2020 (hereinafter: the employment contract).
7.
Under clause 3 of the employment contract, the club undertook to pay the player a total
fixed remuneration of EUR 1,115,000 net, payable as follows:
a. EUR 220,000 net as sign-on fee on the signing date;
b. EUR 15,000 net as a lump sum on 21 August 2019; and
c. EUR 880,000 net in 10 monthly instalments of EUR 88,000 each, due by the end
of each month starting on 30 August 2019 and ending on 30 May 2020.
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8.
Between 23 and 28 May 2020, Shakhtar and the club agreed on the extension of the loan
agreement until “the end of the TFF Super League matches” previously suspended because
of the disruption caused by the COVID-19 pandemic. The respective instruction was
inserted and confirmed in the Transfer Matching System (TMS).
9.
On 1 June 2020, the player sent Shakhtar a notice by means of which he: (i) acknowledged
that there was “no financial obligation on Gaziantep FC related to the months after the loan
contract expires”; and (ii) recalled that “it is agreed between the clubs in accordance with the
emergency rules of FIFA and Turkish FA, [the player]’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”.
10. On 2 June 2020, the player and the club signed a private agreement (hereinafter: the
Agreement) to also extend the duration of the employment contract until the official end
of the season.
11. Article 3 of the Agreement read as follows:
“Article 3 – Remuneration
3.1. The monthly instalments owed by the club according to the employment contract, with
maturity date on 30.03.2022, 30.04.2020 and 30.05.2020 (264.000 Euros net in total), are due
at the present date and will be paid by the club as follows:
-
132.000 Euros net no later than 30.06.2020;
132.000 Euros net no later than 28.07.2020;
3.2. The club doesn’t have to pay any monthly instalment for the football services provided by
the player during the extension period.
3.3. Considering the concessions made by the player on 3.2 above, the club hereby agrees that
If it fails to pay in full and on time any of the instalments from article 3.1 above, than the player
will be paid also the months of June and July 2020 with the full monthly remuneration,
respectively 88.000 Euros net for each month. For the sake of good order, the parties clearly
specify that any delay (even one day) to the payment dates established on 3.1 will trigger the
application of the present article, independently of the quantum of the amount that the club
failed to pay.
3.4. All other financial rights of the player, such as performance bonuses, etc. agreed within
the employment contract will be paid as they have been established by the parties.
3.5. In addition, the fine of 64.705.88 euros dated 25.10.2019 which was issued by the decision
of the administration board will be canceled”.
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12. On 21 July 2020, the player lodged first a claim against Shakhtar before the FIFA Dispute
Resolution Chamber (DRC). The player claimed to be entitled to EUR 150,000
corresponding to his salaries of June and July 2020 (EUR 75,000 each). The case was filed
under reference no. 20-01034.
13. On 10 March 2021, the DRC issued its decision in the cited case and ruled that the claim
of the player should be rejected (hereinafter: the DRC Decision). In synthesis, the DRC
considered that the player failed to prove the club’s liability to pay his salaries of June and
July 2020 taking into consideration the extension of the loan agreement (and the
consequent suspension of the employment agreement dated 2 March 2018).
14. On 12 May 2021, the player appealed the DRC Decision to the Court of Arbitration of Sport
(CAS). The case was filed under ref. CAS 2021/A/7956.
15. On 18 January 2022, CAS issued its award in the cited case (hereinafter: the CAS Award).
Accordingly, the player’s appeal was dismissed, and the DRC Decision entirely confirmed.
II. Proceedings before FIFA
16. On 24 May 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
17. In his claim, the player referred to the DRC Decision and to the CAS Award, and argued
that the club should be liable to pay his salaries for the extended period of June and July
2020.
18. In particular, the player requested to be awarded the following amounts:
a.
EUR 88,000 as the salary of June 2020, plus 5% interest p.a. as from 30 June 2020;
b.
EUR 88,000 as the salary of July 2020, plus 5% interest p.a. as from 31 July 2020.
b. Reply of the club
19. On 13 June 2020, the club filed its reply to the player’s claim.
20. The club submitted a copy of the player’s notice of 1 June 2020 and the Agreement, and
highlighted that he expressly agreed that no additional payment would be due by the club
for the period of the extension.
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21. In addition, the club stressed that the content of clause 3 of the employment contract was
clear to establish that the remuneration therein stipulated – despite divided in
instalments – was due for the whole 2019/2020 season. Likewise, all the amounts were
undisputedly paid to the player and the only remaining debt was settled via Agreement.
22. As to the content of the Agreement, the club maintained that the amounts mentioned in
clause 3 were timely delivered as follows: (i) EUR 44,000 on 22 June 2020; (ii) EUR 44,000
on 16 July 2020; and (iii) EUR 88,000 on 28 July 2020.
23. Based on the above, the club concluded that it had already fulfilled its financial obligations
and requested the player’s claim to be dismissed.
c. Unsolicited correspondence of the player
24. On 14 June 2022, the FIFA general secretariat acknowledged receipt of the club’s reply and
informed the parties that the submission phase in the current proceedings was closed
and no further submission would be admitted to the file (cf. art. 23 of the Procedural Rules
Governing the Football Tribunal).
25. On 16 June 2022, the player filed additional comments on this matter.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 24 May 2022 and submitted
for decision on 21 July 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.
27. 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, par.
1 lit. b) of the Regulations on the Status and Transfer of Players (July 2022 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 a Turkish club.
28. At this point, the DRC recalled that the player filed additional comments on 16 June 2022,
once the submission phase of the present proceedings was already closed, and without
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being invited to do so by the FIFA general secretariat. As a consequence, the Chamber
referred to art. 23 of the Procedural Rules and emphasized that parties to the proceedings
are not authorised to supplement or amend their submissions or requests for relief or
produce new evidence once the submission phase is closed. Therefore, the DRC
established that said submission was inadmissible.
29. 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 (July 2022 edition), and
considering that the present claim was lodged on 24 May 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
30. 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
31. 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
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for outstanding remuneration
only. Specifically, the parties strongly disputed whether the coach is entitled to receive an
additional remuneration for the extended period of the employment contract (i.e. for the
months of June and July 2020), as a result of the COVID-19 outbreak.
33. The DRC observed that the player, on his part, claimed that he provided extra services for
the club until the official end of the season and shall be remunerated accordingly. On the
other hand, the club argued that: (i) the remuneration described in the employment
contract corresponds to the amount due for the whole season, regardless of an eventual
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extension such as the one caused by the pandemic; and (ii) the player expressly agreed
that no addition remuneration would be due for the extended period of June and July
2020.
34. In view of this dissent between the parties, the members of the Chamber turned their
attention to the documentation on file and carefully analysed the wording of clause 3 of
the employment contract in combination with article 3 of the Agreement. In this respect,
the DRC was mindful of the following:
a. under the employment contract the parties expressly agreed that: (i) their
employment relationship would be valid until the end of the 2019/2020 season; and
(ii) the player was entitled to receive a total remuneration of EUR 1,115,000, payable
in five instalments but in consideration of the services provided for the club during
the whole season; and
b. under the Agreement: (i) the parties agreed upon the payment of the outstanding
amounts due to the player; and (ii) the player clearly and expressly confirmed that
no extra payments would be due for the months of June and July 2020.
35. By considering the above, the DRC was already convinced that the player’s claim for
outstanding remuneration lacked contractual basis. Notwithstanding and for the sake of
completeness, the Chamber also deemed important to highlight that the player’s own
behaviour demonstrates that he was aware and in agreement with the fact that the club
would not be liable to pay any extra remuneration for the additional months.
36. In particular, the Chamber found it noteworthy that: (i) the player never contested the
validity of the Agreement and did not file any evidence that it was signed against his will
(i.e. under duress); (ii) the player did not advance any evidence that he has ever claimed
outstanding salaries against the club, let alone that he put the latter in default; (iii) on the
other hand, the player filed a claim and appeal against Shakhtar for overlapping period
and different amounts under the employment agreement signed between them on 2
March 2018. Moreover, the DRC inferred that the player has only decided to claim against
the club after having his claim (and appeal) against Shakhtar rejected.
37. It follows from the above, in the Chamber’s view, that there was no room to depart from
what the parties had agreed to beforehand.
38. Lastly, the DRC wished to point out that – even if the additional comments of the player
were admitted to the file – they would not have an impact on the aforementioned
conclusion, insofar as the player did not dispute that the payments were properly
received as described in clause 3 of the Agreement, but limited himself to argue that said
document was signed under pressure without filing convincing evidence to this extent.
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39. In light of all the foregoing, the members of the DRC decided that the claim of the player
should be rejected.
d. Costs
40. 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.
41. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kayode Olanrewaju Ayobami, is rejected.
2. 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).
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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