Labour Disputes
Texto da decisão
REF. FPSD-13188
Decision of the
Dispute Resolution Chamber
passed on 20 March 2024
regarding an employment-related dispute concerning
the player Ezekiel Isoken Henty
BY:
Sihon Gauci (Malta), Single Judge
CLAIMANT:
Ezekiel Isoken Henty, Nigeria
Represented by Marios K. Apostolidis
RESPONDENT:
Apollon Limassol, Cyprus
Represented by Alkis Papantoniou
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REF. FPSD-13188
I. Facts of the case
1.
On 4 August 2022, the Nigerian player Ezekiel Isoken Henty (hereinafter: the Player or the
Claimant) and the Cypriot club Apollon Limassol (hereinafter: the Club or the Respondent)
concluded an employment agreement (hereinafter: the Contract) valid from the same date
until 30 June 2023.
2.
On 26 May 2023, the Player and the Club (hereinafter jointly referred to as: the parties)
agreed on a premature termination of the Contract and entered into a termination
agreement effective from the same date.
3.
Furthermore, on the same date, the parties signed a private agreement (hereinafter: the
Settlement Agreement) by means of which they expressly acknowledged the prior
Termination Agreement and broke down the following payment:
-
4.
EUR 11,500 payable on 1 September 2023;
EUR 11,500 payable on 1 October 2023;
EUR 10,900 payable on 1 November 2023.
Under lit. C and D of the Settlement Agreement, the parties stipulated the following:
“C. Upon the occurrence of any event of default, (with 5 working days grace period) the Player
reserves the right to send a notice after the 5 days lapse. If the Club does not fully settle the
payment within 5 days after the notice is sent the unpaid amounts and all other accrued
obligations shall automatically become immediately due and payable by the Club to the
Player.
D.
If the Club fails to make payment by the agreed date, the Player shall be entitled to
claim annual interest on any overdue amount of 25% annually from the following day of the
due date”.
5.
By correspondence dated 14 December 2023, the Player put the Club in default of EUR
10,900 as third instalment under the Settlement Agreement, granting 5 days to remedy the
breach.
II. Proceedings before FIFA
6.
On 3 January 2024, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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REF. FPSD-13188
7.
According to the Player, the Club failed to comply with its financial obligation under the
Settlement Agreement, namely by not paying the third instalment within the relevant due
date.
8.
Furthermore, the Player stated that the Club shall be held liable to pay an interest of 25%
per annum as from the day following due date of the payment based on let. D of the
Settlement Agreement.
9.
The requests for relief of the Player, accordingly, were the following:
a) “EUR 10,900 plus legal interest from 1 November 2023;
b) Imposition of a 25% interest on the outstanding sum as from 1 November 2023 (…)”
10. In its reply, the Club acknowledged its debt towards the Player but objected to the interest
rate claimed by the latter, arguing that a percentage of 25% is unlawful and excessive.
11. Accordingly, the Club requested to declare the relevant clause under the Settlement
Agreement null and void and to apply instead an interest rate of 5% per annum or at least
to reduce it accordingly.
12. Furthermore, the Club argued that based on the grace period stipulated by the parties
under the Settlement Agreement, the relevant interest shall run as from the date following
the 5th day after the due date.
13. On account of the above, and having the Player set the Club in default on 14 December
2023, the Club requested to postpone the running date of interest to 19 December 2023.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on 3 January
2024 and submitted for decision on 20 March 2024. 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.
15. 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 (February 2024 edition), the Single Judge
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REF. FPSD-13188
of 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 Cypriot club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition)
and considering that the present claim was lodged on 3 January 2024, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
17. 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 she 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
18. The 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 she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that on 4 August 2022, the Claimant and the Respondent
concluded an employment agreement valid until 30 June 2023. The Single Judge equally
noted that on the 26 May 2023 the Parties agreed on the early termination of the
employment agreement and broke down the payments due by the Respondent in three
different instalments per the Settlement Agreement.
20. Furthermore, the Single Judge noted that the Respondent acknowledged the existence of
outstanding amounts in favour of the Claimant under the Settlement Agreement and
limited its requests for relief to a reduction of the relevant interest claimed by the Player.
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REF. FPSD-13188
21. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amount
of EUR 10,900 as outstanding remuneration under the Settlement Agreement.
22. In continuation, the Single Judge turner her attention to lit. C of the Settlement Agreement
and noted that the parties stipulated therein an annual interest of 25% in case of default
by the Club.
23. In this respect, the Single Judge recalled the Football Tribunal’s longstanding jurisprudence
and concluded that such parameter is excessive. As such, the Single Judge determined that
the relevant interest had to be reduced to 18% per annum, which was deemed reasonable
and proportionate in line with the common approach of the Dispute Resolution Chamber.
24. Lastly, the Single Judge determined that the said interest shall run as from the due date of
the payments stipulated by the parties as the grace period agreed in the Settlement
Agreement would apply only in case of payment by the Respondent, quod non in casu.
Consequently, she confirmed that 18% interest p.a. shall run on the outstanding amount
as from 2 November 2023 until the date of effective payment.
ii. Compliance with monetary decisions
25. 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.
26. 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.
27. 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.
28. 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.
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REF. FPSD-13188
29. 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
30. 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.
31. 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.
32. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-13188
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ezekiel Isoken Henty, is partially accepted.
2.
The Respondent, Apollon Limassol, must pay to the Claimant the following amount(s):
EUR 10,900 net as outstanding remuneration plus 18% interest p.a. as from 2
November 2023 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.
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
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REF. FPSD-13188
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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