Labour Disputes
Texto da decisão
REF. FPSD-6878
Decision of the
Dispute Resolution Chamber
passed on 11 May 2023
regarding an employment-related dispute concerning
the player Samuel Emen Eduok
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stella Maris Juncos (Argentina), Member
Alejandro Atilio Taraborrelli (Argentina/Italy), Member
CLAIMANT:
Buyuksehir Belediye Erzurumspor, Türkiye
RESPONDENT:
Samuel Emem Eduok, Nigeria
Represented by Boro Rajic
pg. 2
REF. FPSD-6878
I. Facts of the case
1.
On 31 January 2019, the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: the
club or the Claimant) and the Nigerian player, Samuel Emen Eduok (hereinafter: the player
or the Respondent) signed an employment contract (hereinafter: the contract).
2.
As from 21 June 2019, the said parties are no longer in an employment relationship, since
– on the said date – the player unilaterally terminated the contract.
3.
On 19 July 2019, following a dispute between the said parties, they signed a settlement
agreement, (hereinafter: the settlement agreement).
4.
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”.
5.
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”.
6.
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”.
7.
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”.
pg. 3
REF. FPSD-6878
8.
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”.
9.
On 20 July 2019, the Respondent signed a new contract with the Croatian club, HNK Hajduk,
(hereinafter: the new club / parent club), valid as from the date of signature until 30 June
2022.
10. On 29 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 31 May 2021.
11. On 1 July 2021, upon expiration of the loan agreement with Konyaspor, the player entered
into an annexe to the contract (hereinafter: the annexe) with his parent club, thereby – inter
alia –extending the term of the contract until 31 May 2023 and modifying the remuneration
due to the player.
II. Proceedings before FIFA
a. Position of the Claimant
12. On 27 July 2022, the Claimant lodged a claim against the Respondent before the Football
Tribunal, requesting to be awarded EUR 250,000, plus 5% interest p.a. as from “the day after
such amount became due, i.e. 45 days following his renewal , until the date of effective payment”.
13. In its claim, the Claimant argued that – upon the conclusion of the annexe – the parties de
facto novated their employment relationship, which, in accordance with clause 5 of the
settlement agreement, triggered the payment of the amount of EUR 250,000, due under
clauses 3 and 4 of the settlement agreement.
b. Position of the Respondent
14. In its reply, the Respondent maintained the following:
-
That the Claimant did not meet its burden of proof as to the fact that the contract
between the player and his parent club was novated;
-
That the wording of the settlement agreement is vague and it cannot be
concluded from its wording that the renewal of the contract would trigger the
payment of the amount of EUR 250,000;
pg. 4
REF. FPSD-6878
-
That, since the wording of the settlement agreement is rather confusing, the
principle of in dubio contra proferentem applies and it shall be interpreted
against the Claimant (the party that drafted it).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 27 July 2022 and submitted
for decision on 11 May 2023. 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.
16. 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 (March 2022 edition), 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
player from a club from Türkiye and a player from Nigeria.
17. However, and albeit not disputed by the parties, the members of the DRC concluded that
the jurisdiction of the Football Tribunal must be analysed ex-officio in the case at hand,
insofar as the present dispute emanates from a settlement agreement concluded between
the parties on 19 July 2019, when no employment relationship was binding the parties any
longer, considering that the settlement agreement was concluded on 19 July 2019 and that
the player had previously terminated the contractual relationship on 21 June 2019. In this
context, the DRC underscored that the settlement agreement was concluded because of
the unilateral termination of the employment contract made by the player and, as such,
the nature of the settlement agreement is employment-related. Thus the Chamber
determined that the Football Tribunal has jurisdiction to hear the present matter cf. art. 22
para. 1 b.) of the Regulations on the Status and Transfer of Players (March 2023 edition).
18. 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 (March 2023 edition) and
considering that the present claim was lodged on 27 July 2022, the July 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
pg. 5
REF. FPSD-6878
b. Burden of proof
19. 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
20. 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
21. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that despite the argumentation of the club, it is
undisputed (as this extreme was verified by the Chamber with the information available in
the Transfer Matching System) that the player and his new club / parent club entered into
the annexe, thereby modifying, inter alia, the term of the contract and the remuneration
due to the player, which, constitutes a renewal / novation of the employment relationship,
underscored the DRC.
22. Thus, since clause 5 is clear when establishing that upon – inter alia – the renewal of the
contract entered into between the Respondent and HNK Hajduk (the parent club), the
amount of EUR 250,000 would be payable 45 days following the occurrence of the event
triggering the payment, i.e. 45 days after the renewal of the contract, and it is undisputed
that the player has failed to proceed with the said payment, the DRC unanimously
concluded that the Respondent shall be ordered to pay the said amount to the Claimant in
accordance with the legal principle: pacta sunt servanda.
ii. Consequences
23. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
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REF. FPSD-6878
24. In view of all of the above and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amount of EUR 250,000.
25. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the amount of EUR 250,000 as from 16 August 2021 (the 46th day following
the date on which the annexe was concluding and the contract between the Respondent
and his parent club was novated) until the date of effective payment.
iii. Compliance with monetary decisions
26. 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.
27. In this regard, the Chamber highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months.
28. Therefore, bearing in mind the above, the Chamber decided that the player must pay the
full amount due (including all applicable interest) to the club within 45 days of notification
of the decision, failing which, at the request of the creditor, a restriction on playing in official
matches for the maximum duration of six months shall become immediately effective on
the player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
29. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the
present decision.
30. The Chamber 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.
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REF. FPSD-6878
d. Costs
31. 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.
32. 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.
33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Erzurumspor FK.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Samuel Emem Eduok, must pay to the Claimant the following amount(s):
- EUR 250,000 as outstanding remuneration plus 5% interest p.a. as from 16 August 2021
until the date of effective payment.
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 imposed with a restriction on playing in official matches up
until the due amounts are paid. The overall maximum duration of the restriction shall
be of up to six months on playing in official matches.
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 six months.
pg. 8
REF. FPSD-6878
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
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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