Labour Disputes
Texto da decisão
REF FPSD-5250
Decision of the
Dispute Resolution Chamber
passed on 7 July 2022
regarding an employment-related dispute concerning the player Kodjovi E.
Dadzie
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
José Luis ANDRADE (Portugal), member
Peter LUKASEK (Slovakia), member
CLAIMANT/COUNTER-RESPONDENT:
Kodjovi E. Dadzie, Togo
Represented by Mawuli Kwaku Avorgah
RESPONDENT/COUNTER-CLAIMANT:
Akwa United FC, Nigeria
Represented by May Soccer Agency
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REF FPSD-5250
I. Facts of the case
1.
On 8 November 2019, the Togolese player Kodjovi E. Dadzie (hereinafter: the player or the
Claimant/Counter-Respondent) and the Nigerian club Akwa United FC (hereinafter: the club
or the Respondent/Counter-Claimant) concluded an employment contract valid as from 13
November 2019 until 12 November 2022 (hereinafter: the contract).
2.
The contract was entered into by the two parties only but is however titled “loan
agreement contract between the [club] and [the player]”.
3.
Under the contract’s clause 2, the player was entitled to the following:
a. NGN 600,000 net as monthly salary, payable at the end of each month;
b. NGN 1,000,000 as “loan fee”.
4.
For the sake of completeness, said clause is reproduced below:
“2. LOAN, REMUNERATION & BONUS:
In remuneration for his services, the Club shall pay a monthly salary of [NGN 600,000] only
NET at the end of each month for the duration of the contract, or as may be reviewed in tandem
with performance. Also for this period, it is hereby agreed as follows:
(e) That Akwa United Football Club, Uyo has agreed to enter a loan agreement with the player
Kodjovi Dadzie.
(f) That Akwa United Football Club, Uyo has agreed to pay the sum of [NGN 1,000,000] only to
the player for the said loan.
(g) That Akwa' United Football Club, Uyo has agreed that the player Kodjovi Dadzie can leave
the club at any time during the football season 2021/2022 if the club is no more interested in
his services.
(h)That in furtherance to Article 4, above, if Kodjovi Dadzie services an international contract
during this loan period, Akwa United Football Club, Uyo hall be entitled to Thirty Percent (30%)
of the transfer fees negotiated by the player's representatives.”
5.
On 9 August 2021, the club issued a “clearance certificate”, according to which the player
had been “officially released to play for any club of his choice unconditionally”.
6.
On the same date, the player signed a document with the following content:
“This is to certify that I have signed and collected the original copy of my clearance
papers from the secretary Akwa United Football Club, Uyo.
I have mutually agreed to terminate my contract with Akwa United Football Club, Uyo
due to technical shortcoming”.
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7.
According to the information available in the Transfer Matching System (TMS), the player
and the Togolese club, Gomido de Kpalime, signed an employment contract valid as from
8 October 2021 until the end of the season 2021/2022, for the following fixed
remuneration:
a. XOF 100,000 as monthly salary (approx. NGN 72,300);
b. XOF 150,000 as sign-on fee (approx. NGN 108,440).
8.
According to TMS, the 2021/2022 season in Togo started on 20 September 2021 and ends
on 31 May 2022.
9.
In the relevant transfer instruction, the “clearance certificate” of 9 August 2021 is
presented as “proof of last contract end date”.
II. Proceedings before FIFA
10. On 23 February 2022, the player filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the player
11. According to the player, he is entitled to outstanding remuneration and compensation for
breach of contract. The player additionally argued that on “the end of July 2021” the club
terminated the contract without just cause.
12. He accordingly seeks the following amounts:
a. NGN 500,000 as unpaid portion of the “loan fee”;
b. NGN 9,600,000 as compensation for breach of contract equivalent to the
residual value of the contract (between August 2021 and November 2022);
c. USD 10,000 as compensation for “abusive, early, unilateral termination of his
contract”.
13. No interests were requested by the player on said amounts.
b. Reply and counterclaim of the club
14. The club objected to the player’s claim for the “loan fee” or “sign-on fee” on the grounds
that (a) the club never agreed to pay a sign-on fee to the player and (b) sign-on fees were
“banned and outlawed” in Nigeria since 2014.
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15. Notwithstanding the above, the club recognized that it paid NGN 500,000 to the player on
8 November 2019, and argued that it also paid NGN 550,000 to the player. In support of
the above, the club filed internal accounting documentation.
16. The club subsequently argued that the parties had agreed on the mutual termination of
the contract on 9 August 2021 and therefore that articles 14bis and 17 of the FIFA
Regulations on the Status and Transfer of Players “cannot be invoked by the player”. On
this note, the club states that a termination agreement was “signed” but did not file any
evidence to this end.
17. The club also indicated that it paid the player’s salary of August 2021 as a further proof
that the termination was made on a mutual basis.
18. On this basis, the club rejected that any compensation is payable to the player, requested
that the claim be dismissed, and requested that the player be ordered to pay back the
“loan fees” of NGN 1,000,000.
c. Reply to the counterclaim by the player and unsolicited
correspondence
19. The player filed his reply to the counterclaim and argued that the loan fees are in fact a
sign-on fee or contract renewal bonus, for there was no loan between two clubs, but in
fact an amount payable to the player for the renewal of his contractual relationship, since
the parties had been previously engaged since 2016. The player reiterated that the club
had already paid half of the sign-on fee.
20. The player further denied that the contract was terminated on a mutual basis and argued
that the mutual termination agreement filed by the club is a fraud. He also stated that the
clearance certificate does not reflect any mutual agreement of the parties but rather
confirms that he had been unilaterally released from the club.
21. The player moreover referred to the evidence filed by the club and informed that they
prove that the club unilaterally reduced his salary from NGN 600,000 to NGN 550,000. As
such, he amended his request for relied as follows:
a. Balance of salaries from September 2020 to August 2021 = 12 x NGN 50,000
= NGN 600,000, plus “default interest of 5% p.a.”;
b. Half of the player’s “signing” bonus of NGN 500,000 plus interest of 5% p.a.
since 8 November 2019 since “it was not agreed at the signing of the contract
the club was going to pay the NGN 1,000,000 in two instalments”;
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c. The “remainder of the contract” of NGN 9,000,000 as 15 months from
September 2021 to November 2022;
d. USD 10,000 as compensation for “abusive, early, unilateral termination of his
contract”.
22. After the player filed his reply to the counterclaim and the deadline had already expired,
he filed an additional submission and correspondence.
d. Final comments of the club
23. The club reiterated that in its view the player could not demonstrate that he was entitled
to the sign-on fees. It contended that such fees were “never negotiated” in the contract of
8 November 2019. The insisted that sign-on fees have been banned in Nigeria since 2014
and referred to the decision of the FIFA Dispute Resolution Chamber in case FPSD-4001
in this regard.
24. The club in continuation stated that the contract was mutually terminated and filed a copy
of a termination agreement (hereinafter: the termination agreement). Moreover, it
explained that the player’s signature found therein is authentic.
25. As to the reduction of salaries, the club rejected this allegation and argued that the player
and his teammates entered into an agreement with the club in that because of the COVID19 pandemic, NGN 50,000 were deducted from the player’s salary on monthly basis less
during 12 months as until August 2021. As evidence, the club referred to the club’s own
accounting statements in the file.
26. The club asked the claim to be dismissed.
27. Upon request of FIFA, the club filed the originals of the termination agreement.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 23 February 2022 and
submitted for decision on 7 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.
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29. 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.
a b) of the Regulations on the Status and Transfer of Players (edition July 2022), the
Dispute Resolution Chamber is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Togolese player and a Nigerian club.
30. At this point, the Chamber referred to art. 23 par. 3 of the Regulations (edition July 2022),
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.
31. In this context, the Chamber recalled that the present claim was lodged in front of FIFA
on 23 February 2022. Therefore, in line with art. 23 par. 3 of the Regulations on the Status
and Transfer of Players (edition July 2022), any amounts fallen due before 23 February
2020 are affected by the statute of limitations.
32. The Chamber noted that, in the present case, the player admits in his reply to the
counterclaim that the sign-on fee (or loan fees as described in the contract) was payable
on 8 November 2019, yet the claim was filed on 23 February 2022 and the counterclaim
on 6 April 2022. The Chamber thus concluded that the remainder of the sign-on fee
should have been claimed by 8 November 2021 and thus, the player’s claim in this respect
is time-barred. Equally, any issue regarding the reimbursement of the “loan fees”, as
counterclaimed by the club, are also barred by the statute of limitations.
33. Consequently, the specific part of the player’s claim as well as the club’s counterclaim are
considered inadmissible.
34. 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 23 February 2022, the February 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
35. Lastly, the Chamber referred to article 11 of the Procedural Rules (both the October 2021
and June 2022 editions) and concluded that the player’s unsolicited correspondence is
inadmissible since filed after the expiry of the relevant deadline.
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REF FPSD-5250
b. Burden of proof
36. 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 TMS.
c. Merits of the dispute
37. 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
38. The foregoing having been established, the Chamber moved to the substance of the
matter, and acknowledged that its task was to make a determination of the following:
a. Did the club validly reduce the player’s salaries due to COVID?
b. Was the contract terminated on a mutual basis, or did the club terminate it without just
cause by firing the player?
c. What are the consequences of the above?
39. The Chamber examined these issues in turn.
a. Did the club validly reduce the player’s salaries due to COVID?
40. As to the COVID-19 reduced salaries, the club argued that the player had entered into an
agreement and consented to the reduction. However, the club only filed scare evidence
to this end, showing that it paid NGN 550,000 per month, referring to its own accounting
statements, but filed no specimen of any agreement in this regard.
41. In this context, the Chamber, first of all, wished to highlight that FIFA issued a set of
guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
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additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on
the most relevant questions in connection with the regulatory consequences of the
COVID-19 outbreak and identifies solutions for new regulatory matters.
42. The Chamber also wished to refer to the fact that said guidelines – as per the explicit
wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only
applicable to “unilateral variations to existing employment agreements”. Therefore, except
where a termination of a contract occurred following a unilateral variation made as a
result of COVID-19 (in which case the validity of the variation must first be assessed under
the guidelines), said guidelines do not apply to assess unilateral terminations of existing
employment agreements. The Chamber further noted that for the assessment of disputes
that are presented before the FIFA judicial bodies concerning the unilateral termination
of a contract, the FIFA Regulations as well as the established jurisprudence of the
Chamber shall apply.
43. As to the concept of a situation of force majeure, the Chamber also noted that, based on
the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not
declare that the COVID-19 outbreak was a force majeure situation in any specific country
or territory, or that any specific employment or transfer agreement was impacted by the
concept of force majeure. In other words, in any given dispute, it is for a party invoking
force majeure to establish the existence of said event under the applicable law/rules as
well as the consequences that derive in connection thereto. The analysis of whether a
situation of force majeure existed has to be considered on a case-by-case basis, taking
into account all the relevant circumstances.
44. Bearing in mind the above considerations, the Chamber concluded that the club had not
provided any valid justification for the non-payment of the amounts that were
outstanding in that it could not demonstrate any agreement in this regard – conversely
to the arguments raised and therefore falling short of meeting the required burden of
proof in line with art. 13 par. 5 of the Procedural Rules.
45. On this basis and in line with the COVID-19 Guidelines, the Chamber decided to set aside
the arguments of the club and confirm that the player is entitled to NGN 600,000 as the
balance of his unpaid salaries between September 2020 and August 2021.
b. Was the contract terminated on a mutual basis, or did the club terminate it without
just cause by firing the player?
46. The Chamber recalled that with respect to the termination agreement, in line of the
original documents filed with the FIFA general secretariat as well as the evidence on file,
it was for the player to demonstrate – as argued in his rejoinder – that the termination of
the contract was not consensually made in line with art. 13 par. 5 of the Procedural Rules.
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47. In this respect, the Chamber observed that the signature found in the termination letter,
when compared to the other documents on file, are remarkably similar. As such, and
absent other evidence in support of the player’s reasoning that said document was not
authentic, we Chamber concluded that the termination letter is valid and that the contract
was terminated on a mutual basis.
c. What are the consequences of the above?
48. Having found that the club failed to honour its payment obligations towards the player,
the Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 12 salaries
under the contract, amounting to NGN 600,000 in total.
49. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay to the player the amounts
which were outstanding under the contract at the moment of the termination, i.e. NGN
600,000 (i.e. 12 times NGN 50,000).
50. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest at the rate
of 5% p.a. on the outstanding amounts as from their due dates until the date of effective
payment.
51. Having stated the above, the Chamber confirmed that because the termination of the
contract took place on a mutual basis, no breach took place and therefore no
compensation is to be paid to the player – as such, this part of the claim was rejected.
ii. Compliance with monetary decisions
52. Finally, taking into account the applicable Regulations, the Chamber 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.
53. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, 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.
54. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification
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of the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
55. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
56. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
57. 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.
58. 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.
59. 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/Counter-Respondent, Kodjovi E. Dadzie, is partially accepted
insofar it is admissible.
2.
The counterclaim of the Respondent/Counter-Claimant, Akwa United FC, is inadmissible.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the
following amount(s):
a. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 October
2020 until the date of effective payment;
b. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 November
2020 until the date of effective payment;
c. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 December
2020 until the date of effective payment;
d. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2021
until the date of effective payment;
e. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 February
2021 until the date of effective payment;
f.
NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021
until the date of effective payment;
g. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021
until the date of effective payment;
h. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment;
i.
NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment;
j.
NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2021
until the date of effective payment;
k. NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2021
until the date of effective payment;
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l.
NGN 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 September
2021 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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/Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
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
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