Labour Disputes
Texto da decisão
REF. FPSD-14991
Decision of the
Dispute Resolution Chamber
passed on 18 October 2024
regarding an employment-related dispute concerning
the player Eric Boakye
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Alejandro Atilio TARABORRELLI (Argentina & Italy), Member
Stefano SARTORI (Italy), Member
CLAIMANT:
Eric Boakye, Ghana
Represented by Wouter Van Zetten
RESPONDENT:
ŠD NK Olimpija Ljubljana, Slovenia
Represented by Marusa Perko
pg. 2
REF. FPSD-14991
I. Facts of the case
1.
On 15 January 2018, the Ghanaian player, Eric Boakye (hereinafter: the Player or the
Claimant), and the Slovenian club, ŠD NK Olimpija Ljubljana (hereinafter: the Club or the
Respondent), entered into an employment contract (hereinafter: the First Contract) valid as
from the date of the signature until 1 July 2021.
2.
On 19 February 2019, the parties concluded a document titled “Annex No. 3 to the
Professional Contract no. Er – Bo – 2018” (hereinafter: Annex to the First Contract), that
included the following in clause 2 (quoted verbatim):
“2. Article
The parties agreed that the player receives extra 225 EUR gross. For that amount player
will send the invoice every month no later than to the 20th of the month.”
3.
On 28 March 2020, the parties concluded a document titled “Agreement regarding variable
bonuses from contract under article 7.1.6. and 7.1.7” (hereinafter: Bonus Agreement), which
established the following (quoted verbatim):
“1. The player already received 10.000 EUR gross for ten appearances in the official
matches for season 18/19.
2. In the matter of variable bonuses, which the club has to pay to the player for season
18/19 and 19/20, club and the player make the following agreement:
a. ) In case of a transfer Eric Boakye to another club in summer 2020, the club will make
immediate payment of 30.000 € to the player.
b. ) In case the player is not transfer to another club in summer 2020, the club will make
a payment of 30.000€ to the player until 01.09.2020.
1. Club is obligated to pay an interest of 6% from 01.03.2020 till the moment that the
amount of 30.000, - is paid.”
4.
On 18 February 2021, the parties concluded a document titled “Professional Football
Contract” (hereinafter: Second Contract), valid from 1 July 2021 until 30 June 2022.
5.
In clause 7.1., the parties established the Player’s remuneration as follows (quoted
verbatim):
“Article 7 (payment for professional football and other player benefits)
(1) The club hereby undertakes to pay the player as follows on the basis of this contract
and on the basis of the invoice issued: - a monthly gross amount of EUR 9.000,00 + VAT,
by the 20 day of the month for the previous month, with statutory default interest
charged from the day of arrears until the day of payment in the event of arrears (…)”
6.
In clause 7.3., some bonuses were stipulated in favour of the Player (quoted verbatim):
pg. 3
REF. FPSD-14991
“(3) During the term of the contract, the club will pay the player the following financial
benefits, which are regarded as a variable part of the payments and to which the player
is entitled on the basis of internal club rules and on the basis of the invoice issued, as
follows hereunder:
• premiums
• variable bonuses for the team's performance during the season.
(3.1) The player receives variable bonuses amounting to 500,00 EUR gross (five hundred
euros 00/100 gross) for a win in the official match (obtained 3 points) for each relevant
game, but only if the club at the end of the current month in which the player played such
a match, is at least in 3rd place overall of the first Slovenian football league and under
the following conditions:
• 100% of the variable bonus amount in case the player started the match,
• 75% of the variable bonus amount in case the player entered the match by the end of
the first half,
• 50% of the variable bonus amount in case the player entered the match by the end of
second half,
• 25% of the variable bonus amount in case the player is reserve and remains on the
bench during the match and does not enter the game.
(3.2) The player receives variable bonuses amounting to 165,00 EUR gross (one hundred
and sixty five euros 00/100 gross) for a draw in the official match (obtained 1 point) for
each relevant game, but only if the club at the end of the current month in which the
player played such a match, is at least in 3rd place overall of the first Slovenian football
league under the following conditions:
• 100% of the variable bonus amount in case the player started the match,
• 75% of the variable bonus amount In case the player entered the match by the end of
the first half,
• 50% of the variable bonus amount in case the player entered the match by the end of
second half,
• 25% of the variable bonus amount in case the player is reserve and remains on the
bench during the match and does not enter the game.
In case the player is not even listed as a reserve, the player is not entitled to receive any
variable bonuses.
(3.3.) after ten (10) appearances in the official matches for the club, the player is entitled
to the bonus in the amount of 10.000,00 EUR gross;
(3.4.) after twenty (20) appearances in the official matches for the club, the player is
entitled to the bonus in the amount of 10.000,00 EUR gross.
The amount of VAT is not included in any on the above stated amounts and shall be paid
by the club.”
7.
Finally, clause 18 and 19 included the following provisions (quoted verbatim):
“Article 18
(final provisions)
pg. 4
REF. FPSD-14991
1. This contract shall be subject and is only valid in case the club pays the player an
amount due of 30.000,00 EUR at the latest on 7 April 2021. In case the club does not pay
the total amount of 30.000,00 EUR by 7 April 2021, this contract shall be deemed not
entered into and without any effect at all. However, this does not mean that the player
waived his right to claim the outstanding amount. As such, the player will still be entitled
to the payment of 30.000,00 EUR plus interest at a rate of 6% as of 1 September 2020
until the date of the actual payment in accordance with the agreement signed on 28
March 2020.
2. This contract is concluded in three identical copies, of which each party receives one
copy while the third is received by the NZS registration body.
3. The contracting parties shall agree any amendments or additions by means of a
written addendum to this contract.
4. The invalidity of any provision of this contract shall not render the entire contract null
and void.
5. The dub undertakes to submit a copy of this contract and any and all amendments
and additions to the NZS registration body within 15 days of conclusion.
6. The provisions of the acts of the Club, the applicable collective agreement and
applicable laws shall apply directly to all matters not governed by this contract.
Article 19
(validity of the contract)
This contract shall enter into force on the day that it is signed by both contracting parties
and under the fulfilment of the special condition from the article 18 (1) above.”
8.
On 17 March 2022, the Player issued the invoice No. 03-22 for bonuses for EUR 9,577, of
which EUR 2,850 corresponded to “bonus - Cup”, EUR 5,000 to “bonus - EU” and the
remainder to VAT.
9.
On 6 April 2022, the Club issued the invoice No. 0036-22 to the Player for EUR 47.92, which
corresponded to a “home jersey”.
10. On 16 May 2022, the Player issued the invoice No. 05-22 for April 2022 for EUR 11,254.50,
of which EUR 9,000 corresponded to “the contract for April”, EUR 225 to “Annex” and the
remainder to VAT.
11. On 17 May 2022, the Club issued the invoice No. 0046-22 to the Player for EUR 47.92, which
corresponded to a “home jersey”.
12. Between 22 July 2021 and 22 May 2022, in the 2021/2022 season, the Player made 37
appearances for the Club: 32 in the Prva Liga (31 in the starting line-up and one as a secondhalf substitute), four in the UECL qualifiers (all in the starting line-up) and one in the Pokal
Slovenije (in the starting line-up). The Club achieved 16 wins and 8 draws in the Prva Liga
and the Player was in the starting line-up for all these matches except for one draw, in
which he was a second-half substitute.
pg. 5
REF. FPSD-14991
13. On 7 June 2022, the Player issued the invoice No. 06-22 for May 2022 for EUR 12,675.80, of
which EUR 9,000 corresponded to “the contract for May”, EUR 225 to “Annex”, EUR 1,165 for
“bonus” and the remainder to VAT.
14. On 30 June 2022, the Player issued the invoice No. 07-22 for June 2022 for EUR 12,254.50,
of which EUR 9,000 corresponded to “the contract for June”, EUR 225 to “Annex” and the
remainder to VAT.
15. On 25 October 2022, the Club issued the credit note No. 1-22 for EUR 3,019.50, which
corresponded to “Annex (for the period 1 July 2021 – 30 May 2022)” and VAT.
16. On 30 January 2023, the Player put the Respondent in default and requested payment of
EUR 77,000 plus VAT and interest within 10 days. The Player provided the following
breakdown of the alleged debts owed to him: (i) EUR 27,000, which corresponded to the
monthly salaries for April, May and June 2022 exclusive of VAT, plus 5% interest p.a. from
20 May 2022, 20 June 2022 and 20 July 2022 respectively until the date of effective payment;
(ii) EUR 20,000, which corresponded to bonuses for 10 and 20 appearances exclusive of
VAT, plus 5% interest p.a. from 11 September 2021 and 8 December 2021 until the date of
effective payment; (iii) and EUR 30,000 which corresponded to a signing fee, exclusive of
VAT, plus 6% interest p.a. from 1 September 2020 until the effective date of payment.
17. On 21 February 2023, the Club replied to the Player’s letter, arguing that his claim lacked
legal basis, as the Second Contract never came into effect due to its suspensive condition.
The Club also stated that it had a counterclaim against the Player for EUR 162,019.50 which
had to be deducted from any possible claim by him. Regarding the bonuses for
appearances and the signing fee, the Club additionally argued that the Player had not
issued any invoice in that respect.
18. On 30 March 2023, the Club issued a consolidated payment order for EUR 41,646.46 in
favour of the Player. On the same date, the Club paid EUR 41,646.46 to the Player.
19. On 31 March 2023, the Club sent an email to the Player informing him that on 30 March
2023 it made a payment of EUR 41,646.46 to amicably settle the claim he made in the letter
sent on 30 January 2023. The Club also informed the Player that the other receivables
claimed were unfounded, and that the Player had never issued any invoices regarding
them.
20. On 3 November 2023, the Player put the Respondent in default again and requested
payment of EUR 35,353.54 plus VAT setting a 10 days’ time limit in order to remedy the
default.
21. Also on 3 November 2023, the Club replied to the Player informing that his request lacked
legal grounds.
pg. 6
REF. FPSD-14991
II. Proceedings before FIFA
22. On 18 June 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
23. According to the Claimant, the Club failed to pay the salaries for May and June 2022 and
several bonuses, totalling EUR 57,629.75 including VAT.
24. In this regard, the Player claimed that:
a) In accordance with clause 7.3.1 and 7.3.4 of the Second Contract, he was entitled to
receive a bonus of EUR 500 gross plus VAT for each match won by the Club in which he
was in the starting line-up. As the Club won 16 matches with him in the starting lineup, he is entitled to EUR 8,000 plus 22% VAT.
b) In accordance with clause 7.3.2 and 7.3.4 of the Second Contract, he was entitled to
receive a bonus of EUR 165 gross plus VAT for each match drawn by the Club in which
he was in the starting line-up. As the Club drew seven matches with him in the startingline-up, he is entitled to EUR 1,155 plus 22% VAT. Furthermore, he was entitled to
receive a bonus of EUR 82.50 plus 22% VAT for one match drawn in which he was a
second-half substitute.
c) In accordance with clause 7.3.3 and 7.3.4 of the Second Contract, he was entitled to
receive a bonus of EUR 10,000 gross plus 22% VAT for making 10 appearances during
the 2021/2022 season.
d) In accordance with clause 7.3.3 and 7.3.4 of the Second Contract, he was entitled to
receive a bonus of EUR 10,000 gross plus 22% VAT for making 20 appearances during
the 2021/2022 season.
e) The bonuses were all payable at the end of the 2021/2022 football season, together
with the salary for June.
f) The Club did not pay the salaries for May and June 2022.
25. The requests for relief of the Claimant were the following:
“1. To accept this claim;
pg. 7
REF. FPSD-14991
2. To determine that the Club has overdue payables towards the Player and that the Club,
as per the Employment Contract, must pay the Player the amount of € 57,629.75 plus
applicable interest until the date of effective payment, specified as follows:
Monthly salary May 2022 € 10,980.- (including 22% VAT), plus 5% interest per annum, to
be calculated as from 20 June 2022;
Monthly salary June 2022 € 10,980.- (including 22% VAT), plus 5% interest per annum, to
be calculated as from 20 July 2022;
Bonuses wins 2021/2022 € 9,760.- (including 22% VAT), plus 5% interest per annum, to
be calculated as from 20 July 2022;
Bonuses draws 2021/2022 € 1,509.75 (including 22% VAT), plus 5% interest per annum,
to be calculated as from 20 July 2022;
Bonuses appearances 2021/2022 € 24,400.- (including 22% VAT); plus 5% interest per
annum, to be calculated as from 20 July 2022.
3. To impose on the Club a ban from registering any new players, either nationally or
internationally, in case the amounts are not paid within the 45-day deadline;
4. To order the Club to assume the entirety of the FIFA DRC administration and procedural
fees, if any.”
b. Position of the Respondent
26. According to the Respondent, the Second Contract was concluded under the suspensive
condition that the Club would pay the Player a signing fee of EUR 30,000. Since the Club
never paid the signing fee, the Second Contract did not come into effect and the Player’s
claim lacks legal basis.
27. The Club argued that, consequently, the parties were governed by the model contract
provided by the Football Association of Slovenia and agreed that the Player was entitled to
a monthly payment for his services in the amount of EUR 9,000 without VAT. Additionally,
the Respondent indicated that the Player issued monthly invoices for his services and
bonuses, and that neither in the notice of default sent on 30 January 2023 nor at any time
before lodging this claim did the Player request payment for bonuses related wins and
draws, which had already been paid by the Club.
28. Simply put, the Club argued that it paid the salaries for April, May and June 2022, as well as
the bonuses for wins and draws, but did not pay the signing fee and bonuses for
appearances because (i) the Player never issued any invoices, (ii) they are time-barred, and
(iii) they are unfounded.
29. Regarding the salaries, the Respondent assured that on 30 March 2023, it paid EUR
41,646.46 corresponding to all the invoices issued by the Player (No. 03-22, 05-22, 06-22
and 07-22) to amicably settle the dispute. In this regard, invoice No. 05-22 corresponded to
April, invoice No. 06-22 to May and invoice No. 07-22 to June. The Club stated that the Player
did not contest this payment but claimed that with this amount the Club had paid the
pg. 8
REF. FPSD-14991
signing fee. According to the Club, the signing fee was never paid because the Player never
issued any invoice for it.
30. In connection with the bonuses, the Club argued that the Player issued invoices for
bonuses for 14 wins (EUR 500 net each, totalling 8,540 gross with VAT) and for seven draws
(EUR 165 net each for six games in which he was in the starting line-up and EUR 82.50 net
for one game in which he was a second-half substitute, totalling EUR 1,308.45 gross with
VAT), in accordance with the Club’s rulebook (hereinafter: Rulebook). Additionally, the Club
acknowledged that it had not paid bonuses for two wins in April 2022 and for one drawn
in July 2021, but argued that the Player never invoiced for these amounts.
31. Furthermore, the Club indicated that, according to the Rulebook, the Player was supposed
to receive a smaller amount for bonuses and that he was actually overpaid by EUR 3,222.50.
In any event, the Club argued that, except for the bonuses for May 2022, all the other
bonuses for wins and draws that the Player could claim were time-barred.
32. Regarding the bonuses for appearances, the Club insisted that the Second Contract never
came into force and that the Player never issued any invoice in this respect. However, the
Club asserted that the claim for the bonus for 10 appearances expired on 11 September
2023 and the bonus for 20 appearances expired on 8 December 2023, which was two years
after the Player made 10 and 20 appearances, respectively.
33. In connection with the signing fee, the Club also insisted that it had never paid such an
amount and that, in any case, this amount was time-barred, as it should have been claimed
by 7 April 2023 at the latest.
34. Finally, the Club argued that the Player is not entitled to VAT, as he never invoiced the
bonuses and the signing fee, and he is no longer a VAT-registered entity in Slovenia.
35. The requests for relief of the Respondent were the following (quoted verbatim):
“Based on all the above the Club respectfully requests the honourable Tribunal to decline
and refuse the claim of the Claimant entirely, respectively rule that the claims are
inadmissible and decide that the Claimant has to repay the Respondent the cost of this
unjustified proceeding before FIFA in the amount of at least 15.000,00 EUR.”
c. Rejoinder of the Claimant
36. In his rejoinder, the Claimant alleged that the Second Contract was subject to a potestative
condition entirely under the control of the Club. In this regard, he assured that the
condition must be deemed illegal and null and void and cannot be invoked by the Club as
a legal basis for the non-execution of the Second Contract.
pg. 9
REF. FPSD-14991
37. The Player also stated that the Club’s argument regarding the absence of invoices should
be disregarded, as it would undermine the purpose of an employment contract between a
player and a club. According to the Player, it would impose an additional obligation on him
merely to receive the basic remuneration to which he is entitled.
38. Regarding the payment of 30 March 2023, the Player argued that the financial documents
were solely derived from the Club’s own administration and were never mentioned or
shared with him in any previous correspondence. In this sense, the Player claimed that in
the e-mail sent by the Club on 31 March 2023 no reference was made to the payment of
any specific invoices, reductions, set-offs and credit notes. The Player assured that, since
no specific provision was provided, that payment must be regarded as a partial payment,
following the chronological order of due dates of the different elements of the
remuneration, i.e., the EUR 41,646.46 should be set-off against the oldest debts. Moreover,
the Player said that he could not be prejudiced by the club’s decision to fail to pay him on
time or by the Club's decision to later make payments in an arbitrary unspecified and
irrational manner.
39. Finally, the Player asserted that the claim was not time-barred, in that the payment of 30
March 2023 should be considered as a partial payment of the oldest debts. Thus, the
outstanding remuneration consisted of the salaries for May 2022 and June 2022, which fell
due on 20 June 2022 and 20 July 2022. Additionally, there was no specific provision
regarding the payment dates for the bonuses, and these types of bonuses are always
payable at the end of the season. For this reason, it should have been paid on or before 20
July 2022.
d. Final comments of the Respondent
40. In its final comments, the Respondent mentioned that pacta sunt servanda should be
respected. In this regard, the Club argued that the parties decided to conclude the Second
Contract with the suspensive condition, which was neutral and in favour of the Claimant. In
addition, the Club said that should the condition be considered null and void, the Claimant
would not be entitled to the payment of the signing fee.
41. The Respondent also pointed out that the Player provided services through a company, and
it was clear that he did not issue the invoices for the bonuses as he was not entitled to
them. Moreover, the Club indicated that the Player concluded a contract with an
accountant company, which managed his bookkeeping and issued invoices on his behalf.
42. Furthermore, the Club insisted that the payment of 30 March 2023 was made according to
the exact specification outlined in its reply, and the Claimant failed to provide a detailed
specification of the invoices that were subject to the payment in question. Additionally, the
Club argued that in the letter dated 31 March 2023, it mentioned that all other receivables
claimed in the Player’s letter were disputed and non-existent, and that the Player did not
issue any invoices for them. Moreover, the paid amount correlated with the sum of the
pg. 10
REF. FPSD-14991
outstanding amounts under the invoices issued by the Claimant. The Club also highlighted
that the Player allocated the payment to the signing fee for the first time in these
proceedings, and the Respondent immediately objected to said statement. Therefore, the
payment cannot be allocated to the debt that fell due first.
43. Finally, and regarding the statute of limitations, the Club stated that:
a) The statute of limitations regarding the signing fee expired on 1 September 2022 or on
7 April 2023 at the latest.
b) The bonuses for wins and draws were paid on a monthly basis on the 20th day of the
month for the previous month, according to the Rulebook. Therefore, almost all bonuses
are time-barred.
c) The appearances bonuses were paid after 10 and 20 appearances. Thus, the claim of
these bonuses is also time-barred.
pg. 11
REF. FPSD-14991
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
44. First of all, the Dispute Resolution Chamber (hereinafter: the 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 18 June 2024 and submitted for decision on
18 October 2024. Taking into account the wording of art. 34 of the March 2023 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.
45. Furthermore, 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 (June 2024 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 Ghanaian player
and a Slovenian club.
46. 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 2024 edition), and
considering that the present claim was lodged on 18 June 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Admissibility
47. Then, the Chamber noted that the admissibility of some of the claims is contested by the
Club, which states that the Player’s claim for remuneration due prior to 18 June 2022 (i.e.,
two years prior to the date of the claim) should be considered as time-barred. The Player,
however, deems his claim should be considered fully admissible, as he argues that all the
amounts he is claiming should have been paid after 18 June 2022.
48. At this point, the Chamber referred to art. 23 par. 3 of the Regulations, which stipulates
that the decision-making bodies of FIFA shall not hear any dispute if more than two years
have elapsed since the facts leading to the dispute arose. The application of this time limit
shall be examined ex officio in each individual case.
49. In this context, the Chamber recalled that the present claim was lodged in front of FIFA on
18 June 2024. Therefore, in line with art. 23 par. 3 of the Regulations, any amounts fallen
due before 18 June 2022 are affected by the statute of limitations.
pg. 12
REF. FPSD-14991
50. The Chamber pointed out that the Player requests payment of the salaries for May and
June 2022, the bonuses for wins and draws, and the bonuses for appearances. Thus, the
Chamber moved on to analyse the admissibility of each of these claims.
51. Regarding the salaries, and without yet entering in the analysis of whether the Second
Contract came into force, the Chamber observed that clause 7.1. of this contract stated that
the Club had to pay salaries on the 20th day of the month for the previous month. Therefore,
according to the Second Contract, the salary for May should have been paid by 20 June
2022 at the latest and the salary for June by 20 July 2022 at the latest. As the claim was
lodged on 18 June 2024, the Chamber considered that the claim of these salaries, based on
the Second Contract, is not time-barred and is admissible.
52. Concerning the bonuses for wins and draws, the Chamber noted that the Club argued that
they were paid monthly and based on the Club’s Rulebook, as the Second Contract never
came into force. Conversely, the Player stated that the bonuses were paid in accordance
with the Second Contract, which was silent regarding its due dates. In this sense, the Player
asserted that they should have been paid at the end of the season, along with the salary of
June 2022, i.e., on 20 July 2022.
53. First, the Chamber considered that the Rulebook cannot be analysed as part of the
contractual basis of the claim, considering that the Club only provided an alleged copy of
said document that was signed by another player and not by the Claimant. Therefore, and
without yet analysing whether the Second Contract came into force, the Chamber was of
the opinion that this contract is the only contractual basis of the claim which includes some
provisions related to the bonuses. In this respect, the Chamber observed that, indeed, the
Second Contract was silent regarding the due dates of the bonuses.
54. Notwithstanding the above, the Chamber wished to highlight that, as the Second Contract
is silent, the parties’ conduct is extremely important in determining the parties’ intention
concerning how and when the bonuses were paid out. In this regard, the majority of the
Chamber pointed out that the Player invoiced for these bonuses on a monthly basis. For
example, the majority of the Chamber remarked that in the invoice 0011-21 for August 2021
submitted as evidence, the Player requested EUR 1,500 for bonuses. In that month, the
Club achieved three wins, which was consistent with the invoiced amount. This was
repeated monthly, and the amount matched the number of games won or drawn, except
for a few minor exceptions that the Club itself acknowledged. Moreover, the majority of the
Chamber considered that there is no evidence on file indicating that these bonuses were
not related to wins and draws. As a consequence, these bonuses were to be paid monthly,
along with the salaries, rather than at the end of the season.
55. Hence, since the Claim was lodged on 18 June 2024 and the salaries were paid on the 20th
day of the month for the previous month, the Chamber, by majority, considered that the
Player can only claim for the bonuses accrued in May 2022 and in June 2022, as any other
claim would be time-barred because their respective due dates fell prior to 18 June 2022.
pg. 13
REF. FPSD-14991
Thus, the Chamber, by majority, decided that the claim for these bonuses is only partially
admissible.
56. In connection with the bonuses for appearances, the Chamber saw that the Club also
argued that the claim of these bonuses shall be time-barred, because they should have
been paid when the Player made his 10th and 20th appearances, while the Player contended
that they should have been paid by the end of the season. In this regard, the Chamber
noted that the Second Contract is also silent on the specific due dates of these bonuses.
57. Nonetheless, the Chamber, by majority, highlighted that the wording of the Second
Contract stipulated that the Player would be entitled to the bonuses after his 10th and 20th
appearances in official matches. Therefore, the majority of the Chamber considered that
these bonuses were accrued at the moment he played his 10th and 20th matches, which is
consistent with the interpretation the Player himself made when he sent his notice of
default on 30 January 2023, requesting interest for these bonuses from 11 September 2021
and 8 December 2021, when he made his 10th and 20th appearances, rather than from 20
July 2022. This is also consistent with the behaviour of the parties during the labour
relationship, in that the Player invoiced several bonuses monthly. In this respect, the
relevant members of the Chamber wished to remark again on the importance of the
parties’ conduct.
58. Consequently, the Chamber, by majority, decided that these bonuses are completely timebarred, as the Player should have claimed them by 11 September 2023 and 8 December
2023 at the latest. Even if it could be considered that the bonuses should have been paid
with the salary of the month in which they were accrued, the due dates should have been
20 October 2021 and 20 January 2022, and they would also be time-barred, as the Player
would have had until 20 October 2023 and 20 January 2024 at the latest to claim them.
Following this reasoning, the Chamber, by majority, stated that the Player’s requests for
these bonuses is inadmissible.
59. Based on the abovementioned, the Chamber decided that the Claimant’s request for relief
is partially time-barred. Consequently, the specific part of the Claimant’s claim related to
the payment of the bonuses for wins and draws prior to May 2022, and the bonuses for
appearances is considered inadmissible by majority.
c. Burden of proof
60. 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).
pg. 14
REF. FPSD-14991
d. Merits of the dispute
61. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
62. The Chamber then moved to the substance of the matter and took note of the fact that this
is a claim of a player against a club for overdue payables.
63. First, the Chamber recalled that, according to the Player, the Club failed to pay him two
salaries and several bonuses for appearances, wins and draws. Conversely, the
Respondent argued, inter alia, that (i) the Second Contract, on which the Player based his
claim, did not come into force and his claim lacks legal grounds; (ii) the Player never issued
invoices for the amounts that he is now claiming; and (iii) the salaries for May and June and
the bonuses for wins and draws had already been paid.
64. In this context, the Chamber acknowledged that its task was to determine (i) whether or
not the Second Contract came into force, (ii) which amounts was the Club obliged to pay to
the Player, (iii) what amounts were paid by the Club on 30 March 2023 and (iv) whether or
not the Club complied with all the payments due to the Player.
(i) Did the Second Contract come into force?
65. Regarding the validity of the Second Contract, the Chamber first noted that clause 18 of
the Second Contract stipulated that the contract would only be valid if the Club paid the
Player EUR 30,000 on or before 7 April 2021. In the event that the Club did not pay this
amount, the Second Contract would not come into force; however, the Player would be
entitled to claim the outstanding amount.
66. In this respect, the Chamber was of the opinion that this suspensive condition was a clear
potestative condition, which left the decision to make the employment contract valid and
binding at the sole discretion of the Club. In accordance with the Football Tribunal’s longstanding jurisprudence, in general, potestative clauses – i.e., clauses dependent on an
event which can only be triggered by one of the contractual parties and upon the latter’s
wish – cannot be applied, as they limit the rights of the contractual counterparty in an
excessive manner and lead to an unjustified disadvantage of the latter.
67. Additionally, it is undisputed that during the term of the Second Contract the Player
provided services to the Club and the Club paid the Player remuneration for those services.
pg. 15
REF. FPSD-14991
In this regard, it is clear that the parties were bound by a contract and, although the Club
argued that in absence of the validity of the Second Contract a model contract had applied,
the Chamber found that the Club did not provide any evidence of this, as the copy of the
alleged model contract provided by the Club was completely blank.
68. Furthermore, the monthly remuneration paid to the Player was EUR 9,000 excluding VAT,
which matches the amount established by the parties in the Second Contract. Also, the
Club alleged having paid bonuses in an amount higher than what was supposedly
established in its Rulebook. This higher amount corresponds to the sum stipulated in the
Second Contract, which is another indication that the Second Contract came into force. In
this sense, not only did the Second Contract contain a potestative suspensive condition
that cannot be applied, but the behaviour of the parties during an entire year demonstrates
that they considered themselves bound by the Second Contract. In any case, the principle
of non venire contra factum proprium shall apply.
69. Consequently, in the Chamber’s view, the Second Contract was valid and binding and the
potestative condition shall be considered null and void. For the sake of completeness, the
Chamber clarified that only the suspensive condition shall be deemed invalid, without this
implying that the Player was not entitled to the signing fee.
(ii) Which amounts was the Club obliged to pay to the Player?
70. Having stated that the Second Contract was valid and binding, the Chamber moved to
determine which amounts the Club was obliged to pay.
71. In this sense, based on the provisions of the Second Contract, the Chamber mentioned that
the Player was entitled to EUR 30,000 for the signing fee and to 12 salaries of EUR 9,000 +
VAT. Furthermore, according to the evidence provided by the parties, the Chamber noted
that the Club won 16 matches, all with the Player in the starting line-up, and drew eight
matches in the Prva Liga, seven with the Player in the starting line-up and one as a secondhalf substitute, i.e., he was entitled to EUR 8,000 gross + VAT for wins and EUR 1,237.50
gross + VAT for draws. Additionally, the Player was entitled to EUR 20,000 gross + VAT for
reaching 10 and subsequently 20 appearances in official matches.
(iii) Which amounts did the Club pay on 30 March 2023?
72. Taking the above into consideration, the Chamber then analysed what amounts were paid
by the Club on 30 March 2023. In this regard, the Chamber first remarked that it is
undisputed that, when the employment relationship ended, the Club had paid the Player
the salaries for the six months of 2021 and the salaries for January, February, and March
2022.
pg. 16
REF. FPSD-14991
73. Then, the Chamber noted that on 30 January 2023 the Player sent a notice of default
requesting payment of EUR 77,000 plus VAT and applicable interest, which corresponded
to (i) the salaries for April, May and June 2022, (ii) the bonuses for appearances and (iii) the
signing fee. Additionally, on 21 February 2023, the Club rejected the Player’s claim, and
highlighted that he never issued invoices regarding the payments for the bonuses and the
signing fee.
74. Notwithstanding the above, on 30 March 2023 the Club paid EUR 41,646.46 and on 31
March 2023 informed the Player that it made this payment to amicably settle the dispute,
without recognising his claims. The Club argued that all other supposed receivables were
disputed and non-existent and insisted that it should be noted that he never issued an
invoice in this regard or claimed such payments before 30 January 2023. The Chamber
pointed out that the Club did not specify which amounts it covered with the payment made
on 30 March 2023, and which amounts remained disputed. However, the Chamber also
noted that the Club referred to the amounts in dispute as the amounts for which the Player
did not issue any invoice. Therefore, the Chamber concluded that the Club considered that
the amounts in dispute were the signing fee and the bonuses for appearances.
75. In this context, the Chamber highlighted that the Player, after the Club’s payment, did not
send any communication to the Club indicating that he allocated the partial payment to the
debts he considered to be the oldest, namely the signing fee and the salary for April,
according to his claim. Additionally, the Chamber observed that in the letter dated 3
November 2023, the Player also failed to make any reference to his argument. It was only
in his claim that he argued that the Club, with the March 2023 payment, paid the signing
fee including interest and the salary for April 2022 including VAT and interest, without
providing a breakdown of the calculations he used to support this assertion or showing
how the payment corresponded to these debts.
76. What is more, although in the claim the Player argued that the oldest debts were the
signing fee and the salary for April 2022, the Chamber pointed out that in the letter dated
30 January 2023, he requested interest for the bonuses for appearances starting from 11
September 2021 and 8 December 2021, while he requested interest for the salary of April
2022 starting from 20 May 2022. Therefore, it is clear that the Player understood the
bonuses to be older debts than the salary for April and later changed his argument. Thus,
his argument cannot be sustained in accordance with the principle non venire contra factum
proprium.
77. Conversely, the Chamber noted that the Club argued that it owed the Player for the
following invoices: 03-22 for EUR 9,577, 05-22 for EUR 11,254.20, 06-22 for EUR 12,675.80
and 07-22 for EUR 11,254.50. Additionally, the Chamber also observed that the Club issued
a credit note for EUR 3,019.50 on 25 October 2022, arguing that it had overpaid the Player
EUR 225 per month throughout the entire year, and deducted that amount.
pg. 17
REF. FPSD-14991
78. The Chamber found that the amount the Club argued it paid correlates with the payment
of the invoices with the mentioned deductions, without implying that these deductions
were correctly made, and that the Club has provided sufficient evidence to support the
allegations that it had only paid the pending invoices.
79. In the Chamber’s view, the Club met the burden of proving that it allocated the payments
made on 30 March 2023 to the invoices issued by the Player for the bonuses of March 2022
and the salaries for April, May and June 2022, along with the respective bonuses included
in the invoices for those months. Indeed, the Chamber considered that the Player failed to
prove otherwise, even going so far as contradicting himself.
80. Therefore, based on the evidence on file, the Chamber concluded that, on 30 March 2023
the Club paid for the bonuses of March 2022 and the salaries for April, May, and June 2022,
along with the corresponding bonuses and VAT.
(iv) Did the Club comply with all payments due to the Player?
81. Finally, the Chamber moved to determine whether the Club complied with all the payments
due to the Player.
82. Regarding the salary for May 2022, the Chamber noted that the Club paid EUR 12,627.88,
including bonuses (EUR 1,421.30 including VAT) and EUR 225 for the amount stipulated in
the Annex to the First Contract plus VAT. However, the Chamber observed that the Club
made a deduction of EUR 47.92, arguing that this amount had already been partially paid
as compensation for a jersey costing that amount. The Chamber discerned that there was
no contractual provision which allows for the set-off of any amounts against amounts due
to the Player; therefore, the Club would not be allowed to set-off the cost of football jerseys
against salary payments due to the Player.
83. Additionally, the Chamber also observed that the Club then deducted EUR 225 plus VAT
from this invoice, totalling EUR 274.5, with the credit note 1-22. Thus, the Chamber
concluded that the Club paid EUR 10,932.08 out of the EUR 10,980 the Player requested,
owing the Player EUR 47.92.
84. Nonetheless, the Chamber pointed out that, when the Club paid the salary for June 2022,
it paid the Player EUR 11,254.50, including VAT. In this case, the Club did not deduct the
amount corresponding to the Annex plus VAT in the credit note, as it made the deduction
only from the salaries for July 2021 until May 2022. Therefore, the Chamber found that the
Player received a higher amount for June 2022 than the EUR 10,980, including VAT, that
was requested.
85. Consequently, since the Club has already paid the Player EUR 22,186.58 for the salaries of
May and June 2022, and the Player claimed that the outstanding amount was EUR 21,960,
pg. 18
REF. FPSD-14991
the Chamber considered that there are no outstanding amounts regarding these two
months.
86. In connection with the bonuses for wins and draws, and as mentioned above, the Chamber,
by majority, decided that only the claim for the bonuses for wins and draws accrued in May
and June 2022 is admissible. In May 2022, the Club achieved two wins and one draw in
which the Player was in the starting line-up, while in June there were no official matches.
Thus, the Player was entitled to EUR 1,165 plus VAT. Nonetheless, the Chamber remarked
that the Player had already invoiced this amount in the invoice 06-22, which was paid by
the Club on 30 March 2023. Hence, the Chamber concluded that the Club does not have
any outstanding debt regarding the bonuses for May and June 2022.
87. Finally, regarding the bonuses for appearances, the Chamber recalled that, by majority, the
claim related to these bonuses is considered inadmissible for being time-barred.
ii. Consequences
88. Having stated the above, and while the members of the Chamber held diverging opinions
as to the admissibility of some of the Player’s requests for relief, it nevertheless
unanimously decided that the Claimant’s requests for relief which have been held - by
majority - to be admissible shall be rejected.
e. Costs
89. 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.
90. 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.
91. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 19
REF. FPSD-14991
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Eric Boakye, is rejected insofar as it is admissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 20
REF. FPSD-14991
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 21