Labour Disputes
Texto da decisão
REF. FPSD-13211
Decision of the
Dispute Resolution Chamber
passed on 2 April 2024
regarding an employment-related dispute concerning
the player Michael Bosa Awoke
BY:
Andre DOS SANTOS MEGALE (Brazil)
CLAIMANT:
Michael Bosa Awoke, Nigeria
Represented by Mak International Group
RESPONDENT:
ASCK (Association Sportive des Chauffeurs de la Kozah), Togo
pg. 2
REF. FPSD-13211
I. Facts of the case
1.
On 5 October 2022, the Nigerian player, Michael Bosa Awoke (hereinafter: the Claimant or
the player) and the Togolese club, ASCK - Association Sportive des Chauffeurs de la Kozah
(hereinafter: the Respondent or the club) concluded an employment contract valid for 3
years (hereinafter: the contract).
2.
In accordance with clause 3 of the contract, the player was entitled to XOF 1,500,000, of
which XOF 500,000 was payable in the first season. The remainder of the amount due
would be paid once the club’s executive board was “satisfied with the player's performance
in the first season”.
3.
In accordance with clause 14 of the contract, the player was entitled to a monthly salary of
XOF 100,000.
4.
The following facts are based in the statement of claim and the response of the
Respondent; however, it is to be noted that no documentation in support to the following
facts were provided and some dates were not clearly specified:
-
-
-
CLAIMANT
The club decided to exclude the
player
from
the
club's
professional team, forbidding
him to resume training with the
team at the start of the season
2023/2024.
The club's technical staff and
administrative
management
informed the player that "he does
not have the level to continue
playing with ASCK from the new
2023/2024 season", season that
started on 1 August 2023.
On 1 August 2023, the club
terminated the contract without
just cause.
-
RESPONDENT
The player was loaned for the
rest of the season to another
club (appears to be 2022/2023).
-
Between June-July, the player
was absent without just cause.
-
After a match against the club
Arsenal (club’s where the player
was loaned), players received a
bonus and 1 week off. The player
appeared a week later to receive
the bonus.
-
The club informed by phone to
the player that the training
would re-start.
-
The player did not appear, and
he indicated the club that he
would not return.
pg. 3
REF. FPSD-13211
5.
By correspondence dated 30 October 2023, the Claimant requested payment of the
balance of the signature bonus and payment of his salaries from June to October 2023.
6.
The player confirmed FIFA that he remained unemployed.
II. Proceedings before FIFA
7.
On 2 January 2024, 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
8.
The Claimant lodged a claim for breach of contract. In his claim, the player argued that the
club terminated the contract without just cause before its terms, given that the club has
unilaterally decided, to dismiss the player for the season 2023/2024 and failed to pay his
salaries.
9.
In view of the foregoing the club failed to comply with FIFA regulations relating to the
contractual stability and therefore, he is entitled to compensation for breach of contract.
10. The player indicated that the club only paid 8 salaries and requested the following
amounts:
-
Salaries June 2023 – October 2025: XOF 2,800,000
-
Remaining of signature bonus: XOF: 1,100,000
-
Additional compensation: XOF: 600,000
11. Consequently, the player claimed he is entitled to XOF 4,500,000 plus 5 % interest as from
1 August 2023, date on which the contract was effectively terminated.
b. Position of the Respondent
12. In its reply, the Respondent indicated the following:
-
The club's obligations towards the player (monthly salary, accommodation) were met until
July 2023.
-
The player was loaned to another club due to his low performance.
-
In July 2023, following the promotion to the second division, a meeting was held, for which
the player was absent. In that meeting, a week off was granted to the players and staff.
pg. 4
REF. FPSD-13211
Despite such absence, the player made sure to come back after a week to collect his bonus
which was paid.
-
The player was informed that he must resume training with the club, this was made by
telephone.
-
“The technical staff were surprised to find that the was absent when the season resumed. The
club's team manager contacted him by phone to ask him to resume training like the other
players. He replied clearly that he would not be returning to Kara. Since then, his contacts have
been unreachable. We therefore phoned the head of his training centre, who has so far failed
to get back to us.”
c. Information provided by the Togolese Football Federation (FTF)
13. On 8 March 2024, the FIFA general secretariat requested the FTF to provide (i) the player’s
historic of transfers within the Federation; (ii) the period(s) of registration of the player with
you’re the club and (iii) copy of the contracts signed with the player.
14. The FTF provided the following information as to the historic of transfers within the
federation (freely translated to English):
Club
Country
ACADEMY
SHABAB FC
Togo
ASCK
Togo
Level
Nature
From
To
Amateur (without
contract)
Permanent
8 October 2022
1 November
2022
Amateur (without
contract)
Permanent
1 November
2022
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 2 January 2024
and submitted for decision on 2 April 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.
pg. 5
REF. FPSD-13211
16. Subsequently, the Single Judge 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. lit. b) of the
Regulations on the Status and Transfer of Players (February 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 Nigerian player
and a Togolese club.
17. Subsequently, the Single Judge analysed 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 2 of the Regulations on the Status and Transfer of Players (February 2024 edition)
and considering that the present claim was lodged on 2 January 2024, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
18. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
19. The competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised 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.
i. Main legal discussion and considerations
20. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the parties strongly dispute the breach of the contract
and its consequences.
21. In particular the Single Judge noted that the Claimant alleges that the Respondent
terminated the contract without just cause before its terms, given that the club has
unilaterally decided to dismiss him for the season 2023/2024 and failed to pay his salaries.
On the other hand, the club alleges that the player was loaned for a period, that it paid the
pg. 6
REF. FPSD-13211
salaries until July 2023 and that when the club called the player to join back the team, he
did not come back, and was it was unable to reach him.
22. The Single Judge was also observant that the statement of claim and the response of the
Respondent did not present any evidence supporting the assertions made. In this context,
the Single Judge outlined – while noting that hardly any supporting evidence has been
provided by the parties in these proceedings – that the following events can be determined:
-
As per the information provided by the FTF the player was not loaned to a third club.
-
the player indicated that the contract was terminated on 1 August 2023.
-
the club also indicated that after July the player did not come back to the training
sessions.
-
A default notice was sent on 30 October 2023, i.e., almost three months after the alleged
termination of the contract.
23. In consideration of all the above the Single Judge stressed that the player’s narrative
concerning the alleged termination by the club as well as the club’s narrative that the player
disappeared and was not able to contact him are not supported by any evidence. From the
lack of documentation on file, the Single Judge decided that it cannot be determined that
either the club or the player unlawfully breached of contract and consequently, no
compensation for breach of contract can be awarded to the player. On the contrary, it
appears that both parties’ lost interest in continuing with the contract since 1 August 2023,
by the lack of communication since that date.
24. Consequently, the Single Judge decided that the player was only entitled to his outstanding
remuneration until 1 August 2023. In this context the Single Judge observed that the
Claimant claimed his salaries for June 2023 and July 2023.
25. Then, the Single Judge noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties. Nonetheless, no evidence was provided.
26. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely XOF 200,000.
27. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 1 August 2023
until the date of effective payment.
pg. 7
REF. FPSD-13211
ii. Compliance with monetary decisions
28. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
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.
29. In this regard, the Single Judge 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, 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.
30. Therefore, bearing in mind the above, the Single Judge 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. 24 par. 2, 4, and 7 of the Regulations.
31. 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.
32. The Single Judge 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. 24 par.
8 of the Regulations.
d. Costs
33. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
34. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
35. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-13211
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Michael Bosa Awoke, is partially accepted.
2.
The Respondent, ASCK (Association Sportive des Chauffeurs de la Kozah), must pay to the
Claimant the following amount(s):
- XOF 200,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2023
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. 24 of the Regulations on the Status and Transfer of Players, 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. 24 par. 7 and 8 and art. 25 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
pg. 9
REF. FPSD-13211
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10