Labour Disputes
Texto da decisão
REF FPSD-6921
Decision of the
Dispute Resolution Chamber
passed on 8 December 2022
regarding an employment-related dispute concerning the player CHUKWUMA
EMMANUEL AKABUEZE
BY:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Michele Colucci (Italy), member
José Luis Andrade (Portugal), member
CLAIMANT:
CHUKWUMA EMMANUEL AKABUEZE, Nigeria
Represented by Çağlar Akoğlu
RESPONDENT:
Bandirmaspor, Turkey
Represented by Ercan Sevdimbaş
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REF FPSD-6921
I. Facts of the case
1.
On 7 June 2021, the Nigerian player, CHUKWUMA EMMANUEL AKABUEZE (hereinafter:
Claimant or player) and the Turkish club, Bandirmaspor (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract 1) valid as from 7 July 2021 until
31 May 2022.
2.
According to contract 1, the Respondent undertook to pay the Claimant the following
amounts:
- EUR 35,000 as signing fee;
- EUR 10,000 as monthly salary, payable in 10 instalments between September
2021 and June 2022;
- EUR 700 as car and accommodation expenses, payable in 10 instalments.
- EUR 20,000 as bonus in case the player starts “21 games in first 11”;
- EUR 20,000 as bonus if the player if the player reaches “10 goals and assists”.
3.
Art. 4 of the contract 1 reads as follows:
“Extension option
In case of the Player starts 21 games in first 11, this agreement will be extended for one
more year until 31.05.2023 with 10% increase in remunerations.
If the player can’t starts 21 games in first 11, the employment agreement can be
extended by mutual agreement between the dates of 1-31 May 2022, the Club will
request the Player’s written approval as sending letter to the player’s agent’s email given
this letter.”
4.
The contract 1 further established the following remuneration for the “extension option”:
5.
On 10 August 2021, the parties signed a standard contract form of the Turkish Football
Federation (hereinafter: contract 2), valid as from the date of signature until 31 May 2023.
6.
According to contract 2, the player was entitled to the “minimum wage” for the seasons
2021/2022 and 2022/2023.
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7.
On 17 January 2022, the club notified the player with a “day off letter”, which stated:
8.
On 27 January 2022, the player reported to the club that he did not find a new club and
he requested what the next steps are.
9.
On 27 January 2022, the club notified the player that he would do “personal training
separated from the first team until further notice”.
10. On 14 February 2022, the club recalled the player for an official match of the first team.
11. On 2 June 2022, after the last match of the season, the players left for their summer
holidays.
12. On 21 June 2022, the player was removed from the teams WhatsApp Group.
13. On 21 June 2022, the player sent an email to the club and requested information about
the upcoming pre-season training.
14. On 24 June 2022, the player sent a letter to the club referring to the contractual
relationship until 31 May 2023 and requested information about the upcoming preseason training.
15. On 28 June 2022, the player sent a letter to the club referring to the pre-season of the
club that had allegedly started on 27 June 2022 and requested information about the
player’s return to the club for the upcoming season.
16. On 1 July 2022, the Claimant put the Respondent in default and requested payment of
EUR 48,500, corresponding to the salary of June 2022 (EUR 10,000) and the advance
payment for 2022/2023 (EUR 38,500) within 15 days. Further, the player requested
information about his return and the start of the pre-season training.
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17. On 18 July 2022, the club replied to the player and argued that the extension option was
not triggered and therefore the contractual relationship had expired on 31 May 2022.
Regarding the claimed outstanding remuneration, the club stated that as a sign of “good
faith” and even though no contract existed anymore, it would remit EUR 10,000.
18. On 22 July 2022, the player terminated the contract with the Respondent since the club
did not “fully” remit the outstanding remuneration and “did not stop the violations”.
19. According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed until today.
II. Proceedings before FIFA
20. On 2 August 2022, 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
21. In his claim, the Claimant requested payment of the following monies:
- EUR 700 as unpaid car and accommodation expenses for June 2022.
- EUR 20,000 as bonus for starting 21 matches in during the season 2021/2022 plus
5% interest p.a. as of 1 August 2022 (note: the player submitted statistics
underlining that he was 15 time in the starting eleven);
- EUR 20,000 as bonus for 10 goals and assists during the season 2021/2022 plus
5% interest p.a. as of 1 August 2022 (note: the player submitted statistics
underlining that he scored 3 goals and 4 assists);
- EUR 155,500 as compensation for breach of contract plus 5% interest p.a. as of 22
July 2022;
- EUR 66,000 as additional compensation (6 monthly salaries) plus 5% interest p.a.
as of 22 July 2022.
22. In this context, the player argued that he terminated the contract on 22 July 2022 with
just cause since the club violated the contract since banning him from the first team in
January 2021, while rarely giving him opportunities to play anymore.
23. He argued that he only played parts of 3 matches as of February 2022 and that the club
lost interest in his services even though one contractual year was left.
24. Regarding the duration of the contractual relationship, the player held that contract 2
clearly stipulated that the contract was valid until 31 May 2023.
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25. The player acknowledged that in contract 1, there was a unilateral extension option solely
at the discretion of the club to extend the contract for another year, which due to its
potestative nature shall not be taken into account.
26. As a conclusion, since the extension option shall not be held against the player and since
contract 2 establishes the duration until 31 May 2023, the contractual relationship was
valid until that date.
b. Position of the Respondent
27. In its reply, the Respondent requested to reject the claim of the player and to “deduct the
payments from the request”.
28. First of all, the Respondent pointed out that the claimed bonus payments were not due
since he only started in 16 matches and scored less than 10 goals/assists.
29. Regarding the extension option, the club pointed out that the requirements were not met
and therefore the contract was not extended and expired on 31 May 2022.
30. In order to show the intent of the parties, the Respondent submitted a copy of the “preagreement” between the parties, dated 15 June 2021, according to which the future
contractual relationship shall be “1 year for 2021/2022 football season + 1 year extension
option”.
31. On account of the above, the club held that no compensation is payable as the contract
expired and the termination was moot.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 2 August 2022 and submitted
for decision on 8 December 2022. Taking into account the wording of art. 34 of the
October 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.
2.
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 October 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 an
Nigerian player and a Turkish club.
3.
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 (October 2022 edition),
and considering that the present claim was lodged on 02 August 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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
5.
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.
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i. Main legal discussion and considerations
6.
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 being bound by a
contractual relationship after 31 May 2022.
7.
In this context, the Chamber acknowledged that its task was to the circumstances of the
contractual relationship and to determine if the parties were contractually bound after
31 May 2022 and to decide on the consequences thereof.
8.
The Chamber started to analyse the contractual situation and noted that contract 1, valid
until 31 May 2022, contained an extension option until 31 May 2023.
9.
The DRC held that in spite of club’s dismissive attitude and lack of communication after
the end of the 2021/2022 season, the continuation of the contract could not logically be
expected by player, as contract 1 refers to certain amount of matches to be played in
order for the extension option to be triggered, which did not materialize.
10. Furthermore, the members of the Chamber wished to emphasize that the player was not
contacted by the club or the agent regarding a possible extension by mutual agreement
between 1 May 2022 and 31 May 2022. In fact, the player was already told in January 2022
that his contract would not be renewed.
11. Moreover, the DRC analysed the content of contract 2 and noted that the document does
not contain the player’s remuneration in case of an extension as per mutual agreement.
It is merely a standard contract, which foresees “minimum wage”. According to the
Chamber, such reference was not enough to create the certainty that the contract would
be valid until 31.05.2023.
12. What is more, the members of the Chamber noted that a copy of the pre-agreement of
15 June 2021 was submitted by the club and it is an indication that the intention of the
parties was to conclude a 1-year contract with an extension option for another year.
13. On account of the above, the DRC concluded that the parties were no longer contractually
bound after 31 May 2022, after the expiration of contract 1.
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REF FPSD-6921
ii. Consequences
14. Having stated the above, the members of the Chamber turned their attention to the
requests of the player. In this context, the DRC concluded that his request for unpaid car
and accommodation expenses for June 2022 has to be rejected, as the contract was no
longer in force.
15. Furthermore, the Chamber rejected the player’s claim for bonuses as he did not start in
21 matches and since he did not score 10 goals and assists, according to the statistics on
file.
16. On account of the above, the DRC rejected the player’s claim.
d. Costs
17. 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.
18. 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.
19. 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, CHUKWUMA EMMANUEL AKABUEZE, 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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