Labour Disputes
Texto da decisão
REF FPSD-2995
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Samuel
Emen Eduok
COMPOSITION:
Omar Omgaro (Italy), Deputy Chairperson
Peter Lukasek (Slovakia), member
Yuriy Zapisotskiy (Ukraine), member
CLAIMANT:
Buyuksehir Belediye Erzurumspor, Turkey
Represented by 14 Sports Law
RESPONDENT:
Samuel Emen Eduok, Nigeria
Represented by M Boro Rajic
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I.
Facts of the case
1.
On 31 January 2019, the parties signed an employment contract (hereinafter: the contract).
2.
On 19 July 2019, the parties signed a Settlement Agreement, following a dispute between
the parties (hereinafter: Settlement Agreement).
3.
Clause 3 of the Settlement Agreement states the following: “Subject to the conditions set
forth under this Agreement, the Player shall pay to Erzurumspor the following compensation
(hereinafter, the “Compensation”): a) either 15% of the future transfer compensation, VAT,
bank expenses, income taxes excluded, if any, but in any case not less than EUR 250,000 or;
b) EUR 250,000”.
4.
Clause 4 of the Settlement Agreement reads as follows: “The Parties acknowledge and agree
that the payment of the Compensation stipulated in article 3/ a) above is subject to the Player
receiving an amount at least equivalent from the Player's new club as follows: 15 % of the
future transfer· compensation received by the Player's new club or at least EUR 250,000 paid
by the Player's new club to the Player. Such Compensation shall be paid to Erzurumspor 45
days following his future transfer”.
5.
Clause 5 of the Settlement Agreement provides the following: “In the event that the Player's
employment contract with the Player's new club duly expires, is renewed before or after expiry
or is mutually terminated or unilaterally terminated or the Player leaves his new club without
the payment of a transfer fee, and in case the Player retires, then Erzurumspor shall be entitled
to the amount stipulated in article 3/ b) above. Such Compensation shall be paid to
Erzurumspor 45 days following the termination or renewal of the Player's agreement with his
new club”.
6.
Clause 6 of the Settlement Agreement states the following: “The Player guarantees to
Erzurumspor that in addition to the conditions stipulated in clause 4, Player’s entitlement to
the amount stipulated in clause 5/ will be inserted in his employment contract which will be
signed between him and the new club and such clause will cover the entitlement of the Player
to the abovementioned amount in case conditions stipulated in clause 5/ will occur. In case
such clause is not inserted in the employment contract between the Player and the new club,
Erzurumspor’s entitlement to the amounts stipulated in clauses 3/ a) and 3/ b) will not be
contingent upon the Player effectively receiving any payment from his new club and such
amount will be due and payable to Erzurumspor by the Player in case any of the conditions
mentioned in clause 4/ or clause 5/ are fulfilled”.
7.
Clause 12 of the Settlement Agreement reads as follows: “As a condition precedent to the
entry into force of the present Agreement, the Player shall sign a new contract with a new
club. If the Player does not have a valid contract with a new club by 22 July 2019, the Parties
shall obligation to execute this Agreement.”
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8.
On 19 July 2021, the Respondent signed a new contract with the Croatian club, HNK Hajduk,
(hereinafter: the new club), valid as from the date of signature until 30 June 2022.
9.
On 26 August 2020, the Respondent was transferred on loan, free of payment to the Turkish
club, Konyaspor, for the period as from 26 August 2020 until 30 June 2021.
10. On 10 February 2021, the Claimant sent a default notice to the Respondent, requesting that
he provides a copy of his new contract in order to ascertain the amount due to it in
accordance with the settlement agreement, while at the same time requesting payment of
EUR 250,000 within 15 days.
11. On the same date, the Respondent’s representative responded and stated that the
Respondent “has not been transferred permanently from HNK Hajduk, he’s currently on loan
to Konyaspor until 30th June 2021. At the end of his current temporal transfer, he will return
to HNK Hajduk. We are fully aware of the compensation agreement signed with BB
Erzurumspor and will comply with the terms of this agreement when it becomes activated which includes a percent of the transfer fee received by Hajduk or 250,000 Euro. As at the
present, it is our opinion that since Mr. Eduok is on loan with Konyaspor, with no transfer fee
paid to HNK Hajduk then the said agreement between Mr. Eduok and Erzurumspor is not
active. We are unable to share the employment contract signed between Mr. Eduok and
Konyaspor as this is not relevant to the present matter. If you’re interested in the club-club
agreement signed between HNK Hajduk and Konyaspor, then please contact HNK Hajduk for
further information”.
12. On the same date, the Claimant replied and stated that “it maintains the content of its default
notice in its entirety and that it awaits payment within the prescribed timeline”.
II. Proceedings before FIFA
13. On 7 July 2021, the Claimant lodged a claim against the Respondent.
14. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
15. In its claim, the Claimant states that, in the light of a financial dispute, which had arisen
between the parties regarding the alleged non-performance of its financial obligations under
the contract, the Respondent sent two default notices to the Claimant on 30 May 2019 and
4 June 2019 respectively. Specifically, the Respondent requested that the Claimant proceeded
with the payment of the amount due to him.
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16. The Claimant adds that the Respondent proceeded to terminate the contract on 21 June
2019, alleging just cause.
17. According to the Claimant, on the same date, it made a payment of EUR 108,000 to the
Respondent.
18. On 22 June 2019, considering that the Claimant proceeded with the payment of the disputed
outstanding remuneration, it invited the Respondent to return to the club. Nevertheless, he
insisted on bearing just cause as to the termination of the contract; hence he rejected the
Claimant’s invitation to join the club.
18. Therefore, in order to avoid adversary legal proceedings before FIFA’s judicial bodies, the
parties entered into negotiations and, on 19 July 2019, concluded a settlement agreement.
19. Pursuant to Clause 3 of the settlement agreement, the Respondent undertook to
remunerate the Claimant either with (i) 15% of the future transfer compensation, but, in
any case, no less than EUR 250,000 or with (ii) the net amount of EUR 250,000.
20. During the summer transfer window 2020, the Claimant submits that it came to its
attention that the Respondent was transferred from “HNK Hajduk” to “Konyaspor”, a
professional football club affiliated to Turkish Football Federation.
21. In the light of this transfer, given that the relevant clauses of the settlement agreement
were triggered, the Claimant states that it contacted the Respondent, requesting him to
comply with his contractual obligations and thus proceed to the payments stipulated in the
settlement agreement.
22. Following several fruitless attempts, the Claimant submits that it was finally able to reach the
Respondent on 10 February 2021. Specifically, it served a notification Letter to Mr. Ojore Oka,
the Respondent’s Agent (the email address stipulated in Clause 15 of the Settlement
Agreement as the exclusive contact route on behalf of the Player in relation to the
Agreement). In the same notification, the Respondent’s new club (a.k.a. Konyaspor) was
also copied.
23. The Respondent was invited to comply with his contractual obligations and thus comply
with the payment of the amounts stipulated in the Settlement Agreement within the
following 15 days. In particular, he was requested either to provide the Club with a
copy of his employment contract with Konyaspor, so that the Claimant could “ascertain
whether transfer was undertaken against a fee or not, which in turn will determine the
amount owed to the Club” or to proceed with the immediate payment of EUR 250,000.
24. According to the Claimant, on that same date (10 February 2021), the Respondent
replied via his agent, certifying the validity of the Settlement Agreement and reassured the
Claimant that he “will comply with the terms of this agreement when it becomes activated”.
In this regard, he cited that he “has not been transferred permanently from HNK Hajduk”
but he was on loan to the Turkish club. As such, the relevant clauses of the Settlement
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Agreement were not triggered, and therefore, he was not obliged to proceed to the
relevant payments as stipulated in the Settlement Agreement.
25. The Claimant adds that it replied to the above letter noting that pursuant to the RSTP, no
distinction is made between permanent and loan transfers of a football player, and this is
the reason why no further classification in relation to the “nature” of the transfer was
included into the Agreement. Hence, the relevant clauses of the Settlement Agreement were
activated and, thus, he shall proceed to the immediate and duly payment of the amounts
stipulated therein.
26. Following the Respondent’s failure to comply with the provisions of the Settlement
Agreement, the Claimant submits that it was left with no choice but to submit a claim before
the FIFA DRC.
27. In its request for relief, the Claimant requested the following:
order the Respondent to present all the relevant documents in relation to his transfer
from HNK Hajduk to Konyaspor in order to determine in accordance with clause 3/a)
of the Settlement Agreement, the remuneration payable to the Claimant;
Based on the content of the aforesaid documentation, order the Respondent to pay EUR
250,000 pursuant to Clause 3/b) of the Settlement Agreement or to pay 15% of the
future transfer compensation, but in any case, no less than EUR 250,000.
Order the Respondent to pay 5% interest p.a. calculated over the outstanding amount,
as of the day after such amount became due, i.e. 45 days following his transfer, until the
date of effective payment;
Subsidiarily, order the Respondent to pay 5% interest p.a. calculated over the
outstanding amount, as of the day after such amount became due, i.e. 11 October 2020,
until the date of effective payment.
b. Position of the Respondent
19. The Respondent in his reply started by confirming the contents of the Settlement Agreement.
20. On 26 August 2020, the Respondent submits that he was temporarily transferred from HNK
Hajduk to Konyaspor, free of payment, with an option to transfer permanently, which was
not exercised.
21. According to the Respondent, it is important to emphasize that, contrary to the Claimant’s
allegations, no breach of the Settlement Agreement occurred since article 5 of the Settlement
Agreement in his new contract, which, of course, had to be stipulated in gross amount, in
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order for him to receive a net amount stipulated in the article 3/ b) of the Settlement
Agreement in the amount of EUR 250,000.
22. The respondent further states that, in addition to the aforementioned, the factual
background of this case -again contrary to the allegations of the Claimant- clearly indicates
that no clause from the Settlement Agreement was triggered based on the loan of the Player
from HNK Hajduk to Konyaspor.
23. In reply to the legal analysis of the case provided by the Claimant, the Respondent emphasised
that the legal analysis of the Claimant is wrong and unsupported by evidence. In this context,
the Respondent states that the Claimant's interpretation of the Settlement Agreement is
fundamentally wrong.
24. On this note, the Respondent added that, contrary to the analysis of the Claimant, the
Settlement Agreement differentiates all possible scenarios with regards to the Player's move
from HNK Hajduk to a third football club and if the Player permanently leaves HNK Hajduk or
even retires.
25. The Respondent adds that, by a simple application of the principle argumentum a contrario,
it is blatantly obvious that in case of free loan of a Player from his new Club (HNK Hajduk) to
a third Club (Konyaspor), there is no compensation to be paid to the Claimant, meaning that
there is no "lacuna" in the Settlement Agreement as the Claimant is falsely claiming.
26. On the contrary, the Settlement Agreement is quite clear and simple to interpret and
understand; an interpretation that showcases that the sums requested by the Claimant are
still not due because the terms for payment of the requested sum are still not triggered.
27. It seems, according to the Respondent, that the Claimant is entirely omitting the fact that the
Settlement Agreement, in its article 7, clearly indicates that the amounts of compensation
from article 3/ a) and 3/ b) are not of a cumulative nature, meaning that the Claimant can
only receive the sum of compensation either based on the article 3/ a) in connection with the
conditions from the article 4) or based on the article 3/ b) in connection with the conditions
from the article 5).
28. Notwithstanding the aforementioned, the Respondent emphasizes that the Claimant was a
party in drafting the Settlement Agreement and thus, if the DRC would consider that there is
any "gap" in the Settlement Agreement, and it is quite obvious that such gap did not exist,
by application of the principle "contra stipulatorem", the DRC has to interpret this Settlement
Agreement against the draftsmen, in this case against the Claimant.
29. The Respondent submitted the contract concluded between him and HNK Hajduk and added
that, in the aforementioned contract, he entirely complied with his obligation concerning
article 6 of the Settlement Agreement and, thus, the contract between him and HNK Hajduk
contains clause 4 par 2) point e).
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30. Additionally, the Respondent states that the cited clauses mirror the terms and conditions of
the articles 3, 4 and 5 of the Settlement Agreement where he, inter alia, agreed the gross
amount which reflects the net amount of EUR 250,000 which he needs to pay to the Claimant
in the events defined in the article 4 and 5 of the Settlement Agreement.
31. According to the Respondent, the simplest way to establish that the conditions triggering the
payment of the requested sums are still not due is to answer the following question: "What
would happen if HNK Hajduk Plc would permanently transfer the Player to a third football
club against payment of EUR 5,000,000 in this transfer window".
32. The Respondent adds that the answer to the aforementioned question is simple, as the
Claimant would then ask for 15% of the said future transfer compensation, but since the
sum of EUR 250,000 from the art. 3/ b) and the percentage of the future transfer which
cannot be less than EUR 250,000 from the art. 3/ a) are clearly not of cumulative nature, as
defined in the art. 7 of the Settlement Agreement, then, if the FIFA DRC would sustain the
interpretation of the Claimant, and somehow prematurely award it the sum of EUR 250,000,
then the Claimant would not be in position to get anything more given the exclusive nature
of each point from the article 3/ of the Settlement Agreements as defined in the article 7 of
the Settlement Agreement.
33. In this context, the Respondent submits that it is evident that he provided to the Claimant
accurate information and reassurance that it would pay the compensation once it becomes
due, which is still not the case meaning that this claim was lodged prematurely by the
Claimant.
34. In conclusion, the Claimant submits that the claim was filed prematurely given that the
requested sums are still not due and that the claim should therefore be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
35. 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 07 July 2021 and submitted for decision on
. Taking into account the wording of art. 34 of the October 2021 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.
36. 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 (August 2021 edition), the Dispute
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Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Turkish club and a
Nigerian player.
37. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 07 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
38. 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
39. 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
40. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant is requesting to be awarded compensation in
accordance with the Settlement Agreement concluded between the parties on 19 July 2019.
41. In particular, the DRC noted that the main issue to consider is whether the temporary transfer
of the Claimant from HNK Hajduk to Konyaspor activated any of clauses from Settlement
Agreement and if yes, to which sum the Club is entitled.
42. Based on the submissions on file and the new contract signed by the Respondent with
Konyaspor, the Chamber observed that this transfer (on loan) was free of payment, i.e. no
compensation / fee was payable by the loanee club to the loaner club for the transfer of the
player.
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43. With the above in mind, the Chamber observed that clause 5 of the Settlement Agreement
states that “In the event that the Player's employment contract with the Player's new club
duly expires, is renewed before or after expiry or is mutually terminated or unilaterally
terminated or the Player leaves his new club without the payment of a transfer fee, and in
case the Player retires, then Erzurumspor shall be entitled to the amount stipulated in article
3/ b) above. Such Compensation shall be paid to Erzurumspor 45 days following the
termination or renewal of the Player's agreement with his new club”.
44. In the case at hand, continued the Chamber, the Respondent moved on loan free of payment
until 30 June 2021 but was still under contract with his former club, HNK Hajduk, until 30
June 2022.
45. Additionally, after an analysis of clause 5 of the settlement agreement, the DRC determined
that said clause is general, vague and leaves room for interpretation.
46. Therefore, in case of uncertainty about the exact wording of a clause, it is upheld against the
drafter of said clause (in dubio contra proferentem), in this case, the Claimant.
47. In view of the above, based on the submissions on file, the DRC that clauses 3, 4 and 5 of
the Settlement Agreement were not triggered and, therefore no compensation is due to the
Claimant.
48. In view of the above, the DRC unanimously decided to reject the Claimant’s request.
d. Costs
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any requests made by the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Buyuksehir Belediye Erzurumspor, is rejected.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
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