Labour Disputes
Texto da decisão
REF FPSD-6248
Decision of the
Dispute Resolution Chamber
passed on 14 December 2022
regarding an employment-related dispute concerning
the player Okwuchukwu Francis Ezeh
BY:
Iñigo Riestra (México), Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Okwuchukwu Francis Ezeh, Nigeria
Represented by Mr Yakub Kizilkaya
RESPONDENT:
Tuzlaspor, Türkiye
Represented by Mr Ercan Sevdimbas
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I. Facts of the case
1.
On 21 January 2022 the Nigerian player, Mr OKWUCHUKWU FRANCIS EZEH (hereinafter:
the player or the Claimant) and the Turkish club Tuzlaspor concluded an employment
contract (hereinafter: the contract), valid as from 21 January until 31 May 2020, within the
scope of a temporary transfer of the player from the Turkish club Adana Demirspor to
the Respondent.
2.
According to clause 3 of the contract, the club undertook to pay to the player -during the
term of the contract-, inter alia, the following amounts:
-
EUR 25,000 as sign-on fee;
EUR 111,000 divided in 5 monthly salaries of EUR 22,200 each (payable between
January and May 2022);
EUR 10,000 as bonus, should the player score “10 goals or assists in the second
half of the 2021/2022 football season”.
II. Proceedings before FIFA
a. Position of the Claimant
3.
On 2 June 2022, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration in the total amount of EUR 54,400, plus 5% interest
p.a. as from the respective due dates, broken down by the Claimant as follows:
-
EUR 22,200 corresponding to the salary of April 2022;
EUR 22,200 corresponding to the salary of May 2022;
EUR 10,000 corresponding to the bonus contemplated under clause 3 of the
contract.
4.
In his claim, the player argued that the club failed to pay the salaries of April and May
2022, as well as the bonus for having scored and / or assisted 10 times during the second
half of the 2021/2022 season. In this respect, the Claimant argued that he made “8 goals
and 2 assist in the league games and he has scored 3 goals in a friendly game against
Galatasaray on 28th January 2022” (note: document on file).
5.
Therefore, the player held that he “made 11 goals and 2 assists in the second half of the
season after he signed with Tuzlaspor”, i.e. “he scored 13 goals or assists”, which entitles
him to receive the bonus stipulated under clause 3 of the contract in the amount of EUR
10,000.
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b. Position of the Respondent
6.
In its reply, the Respondent rejected the allegations of the Claimant and argued that, out
of the fixed payment of EUR 111,000 (the 5 salaries of EUR 22,200 each), the club duly
proceeded with the payment of EUR 105,390 and TL 9,997,50 (note: document on file)
and, consequently, the argument of the Claimant that the amount of EUR 44,400
corresponding to the salaries of April and May 2022 is overdue is not correct. According
to the evidence provided by the club, the latter would have proceeded with the following
payments in favour of the player:
-
EUR 25,000 on 21 January 2022;
EUR 7,260 on 28 February 2022;
EUR 12,740 on 23 February 2022;
TL 5,000 on 25 March 2022;
TL 4,997.50 on 25 March 2022;
EUR 16,000 on 4 April 2022 (he relevant document refers to TL 25,760);
EUR 22,200 on 08 April 2022;
EUR 10,000 on 14 April 2022;
EUR 12,190 on 28 April 2022.
7.
As for the bonus of EUR 10,000 requested by the Claimant, the Respondent maintained
that -contrary to the allegations of the player- the Claimant did not score or assist 10 goals
during the second half of the season 2021/2022 and, consequently, he cannot be entitled
to the bonus requested.
8.
In addition, the club referred to the difficult financial situation that the club has
undergone as a consequence of the Covid-19 pandemic and the devaluation of the
Turkish Lira as reasons that prevented the club from fully complying with its financial
obligations in due time.
c. Player’s comments on payments
9.
In addition, the club referred to the difficult financial situation that the club has
undergone as a consequence of the Covid-19 pandemic and the devaluation of the
Turkish Lira as reasons that prevented the club from fully complying with its financial
obligations in due time.
10. The player argued that, from the payment proof provided by the club, the latter only paid
the amount of EUR 89,390 and TL 35,757.50 to the player, i.e. the player acknowledged
the payment of the payments described by the Respondent, with the exception of the
payment of EUR 16,000.
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11. In this respect, the player held that the proof of payment provided by the Respondent
explicitly states that the latter made a payment of TL 25,760 on 4 April 2022, but that the
said amount is not equal to EUR 16,000 (as stressed by the club) but to EUR 2,210 approx.
12. In this context, the player argued that the Respondent only having paid the amounts of
EUR 89,390 and TL 35,757.50 (approx. EUR 2,210) in connection with the player’s fixed
remuneration, the club was still in default of payment on the amount of EUR 44,440 (i.e.
the salaries of April and May 2022).
13. On the other hand, the player reiterated his request as to the bonus for having scored /
assisted more than 10 goals.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as
the 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 June 2022 and
submitted for decision on 14 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 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 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 a Nigerian player
and a Turkish club.
3.
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 (October 2022 edition)
and considering that the present claim was lodged on 2 June 2022, the March 2022 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
4.
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
5.
His 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
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the Claimant is requesting to be awarded
outstanding remuneration in the total amount of EUR 54,400, plus 5% interest p.a. as
from the respective due dates.
7.
Moreover, the Single Judge observed that, on its part, the club provided documentation
in support of having proceeded with several payments in favour of the player and argued
that the player had been duly paid his fixed remuneration. As to the bonus requested by
the player, the Single Judge noted that the club held that he is not entitled thereto, since
he did not score / assist 10 goals during the second half of the 2021/2022 season.
A.) Did the club meet its burden of proof concerning the payment of the player’s fixed
remuneration?
8.
In this regard, the Single Judge noted that the Claimant acknowledged that the
Respondent made the payments described in the evidence provided by the latter.
However, continued the Single Judge, the Claimant argued that the payment performed
on 4 April 2022 -which amounts to TL 25,760- does not equal EUR 16,000 but EUR 2,210.
9.
On this note, the Single Judge underscored that, according to the currency exchange that
was applicable on 4 April 2022, TL 25760 equals EUR 1,585.
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10. Thus, the Single Judge determined that the allegation of the Claimant that the said
payment did not discharge the Respondent from the payment of EUR 16,000 but of EUR
2,210 (actually EUR 1,585, but, since the Claimant himself states that it amounts to EUR
2,210, it cannot be considered otherwise – ne ultra petita) needs to be accepted.
11. Thus, the Single Judge concluded that the Respondent paid to the Claimant the amount
of EUR 89,390 and TL 35,757.50 (which equals EUR 2,210 -calculation made by the playerand EUR 516, i.e. EUR 2,726), i.e. a total of EUR 92,116. The above being said, considering
that the player’s full fixed remuneration amounts to EUR 136,000 (sign-on fee plus
salaries) and that the club has only paid to the player the amount of EUR 92,116, the Single
Judge decided that the amount of EUR 43,884 is still due to the player.
12. In addition, considering that the 2 salaries requested by the player amount to EUR 44,400,
the Single Judge highlighted that it is to be considered that the club partially complied
with the payment of the salary of April 2022 and failed to comply with the payment of the
salary of May 2022.
B.) Is the player entitled to the requested bonus in the amount of EUR 10,000?
13. In this respect, the Single Judge noted that the player has provided evidence of having
played in 13 matches during the second half of the 2021/2022 season. Therefore, the
Single Judge decided that the player has met his burden of proof and shall be awarded
the amount of EUR 10,000 as bonus cf. clause 3 of the contract.
ii. Consequences
14. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
15. The Single Judge observed that the outstanding remuneration due to the player, coupled
with the specific requests for relief of the player, equals EUR 53,884, i.e. the salary of April
2022 (partially), the salary of May 2022 and the bonus due cf. clause 3 of the contract.
16. As a consequence, 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
amounts which were outstanding under the contract, i.e. EUR 53,884.
17. 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 outstanding amounts as follows:
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-
On the amount of EUR 21,684, as from 1 May 2022 until the date of effective
payment;
On the amount of EUR 22,200, as from 1 June 2022 until the date of effective
payment;
On the amount of EUR 10,000, as from 2 June 2022 (date of claim – in view of the
lack of due date for its payment) until the date of effective payment.
iii. Compliance with monetary decisions
18. 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.
19. 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.
20. 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.
21. 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.
22. 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
23. 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.
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24. 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.
25. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Okwuchukwu Francis Ezeh, is partially accepted.
2.
The Respondent, Tuzlaspor, has to pay to the Claimant the following amount(s):
- EUR 53,884 as outstanding remuneration plus 5% interest p.a. as follows:
-
On the amount of EUR 21,684, as from 1 May 2022 until the date of effective
payment;
-
On the amount of EUR 22,200, as from 1 June 2022 until the date of effective
payment;
-
On the amount of EUR 10,000, as from 2 June 2022 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.
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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
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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