Labour Disputes
Texto da decisão
REF FPSD-5073
Decision of the
Dispute Resolution Chamber
passed on 1 September 2022
regarding an employment-related dispute concerning the player Christian Osaguona Ighodaro
BY:
Frans DE WEGER (The Netherlands), Chairperson
José Luis ANDRADE (Portugal), member
Alexandra GOMEZ BRUINEWOUD (Uruguay & Netherlands), member
CLAIMANT:
Christian Osaguona Ighodaro, Nigeria
RESPONDENT:
Al Shorta Club, Iraq
INTERVENING PARTY:
SHB Da Nang Club, Vietnam
REF FPSD-5073
I Facts
1. On 7 September 2020, the player Christian Osaguona Ighodaro and Al Shorta Club concluded an
employment contract valid as from 8 September 2020 until 30 June 2021.
2. Following art. 1 of the contract, the player was employed “to play in the Club’s teams during the term of
the contract”.
3. Accordingly, the parties agreed upon the following:
“(. . .) The value of the contract shall be USD 350'000 (THREE HUNDRED FIFTY THOUSAND
USD) payable to the Player asfollows:
35% advance payment upon the signing of the Contract
35% at the beginning of the Second Phase of the Iraqi Football League
30% at the expiry of the Contract
The Club shall provide the Player with suitable accommodation, meal, free medical treatment in the event
the Player sustains an injury as result of participation on the Club 's sport activities and pay for his visa and
residency fees.
The Player shall be entitled to one return flight tickets per season in economy class.”
4. The contract further stipulated the following:
“13. If the Player violates any of his duties, responsibilities and oblitations (…) the Club shall have the right
to apply the following disciplinary measures:
a) Warning
b) Fines
c) Suspension
d) Termination of the Contract”.
(…)
15. The Club shall be entitled to terminate the Contract for Just cause as defined by the jurisprudence of FIFA
Dispute Resolution Chamber (…) if the Player breaches his obligations towards the Club. However, the Club
also shall be entitled to terminate the Contract before its expiring term, without notice, should any of the
following violations occur
a) If the Player is absent without valid reason for three consecutive training sessions or for a total of seven
inconsecutive sessions in one season (…)”
5. On 14 September 2020, the player sent a default notice requesting the payment of the outstanding
amount of USD 122,500 by no later than 26 September 2020.
6. On 18 September 2020, the player sent a notice via his representative, indicating that he was still
awaiting to the documents to travel to Qatar, i.e. the flight tickets and the “Exceptional Entry Permit”.
7. On 28 September 2020, the player insisted with a new notice.
8. On 30 September 2020, A Shorta replied as follows:
“With reference to your letter (…) in order to obtain a visa entry for [the player] and a flight tickets to travel
from Nigeria to Iraq he must provide our club with a recent Covid-19 Screening Test (i.e. a certificate of
evidence of negative PCR test) issued by a state authority.
Therefore, once again, by this email we invite your client to submit to us the aforementioned test on
or before 4 October 2020 failing which your client will be held in breach of contract.
REF FPSD-5073
As for his remuneration, he will be paid as soon as he arrives in Iraq and resumes his contractual
relationship with our club.”
9. On 2 October 2020, the player replied to the club, noting that the amount of USD 122,500 was still
outstanding, while inviting the latter “take contact ON TODAY with his representative, Mr. Mohamed
EZZAHTI (…) to arrange all formalities necessary (visa and fly tickets) for the player and him.”
10. On 9 October 2020, the parties agreed upon a contractual amendment with the following terms:
“(. . .) The value of the contract shall be USD 310'000 (THREE HUNDRED TEN THOUSAND USD) payable to the
Player as follows:
35% advance payment upon the signing of the Contract
35% at the beginning of the Second Phase of the Jraqi Football League
30% at the expiry of the Contract
The Player shall be entitled to a bonus in the amount of USD 10 '000 (Ten Thousand USD) if the team of the
Club wins the Iraqi Pro Premier Football League.
The Player shall be entitled to a bonus in the amount of USD 10'000 (Ten Thousand USD) if the team of the
Clun is qualified for 1/8 AFC Champion's League round.”
11. On 11 January, the club presented a “Mutual Rescision and Release Agreement” to the player, which he
refused to sign.
12. According to the Claimant, on 29 January 2021, the club prevented him from attending trainings and
changed his accommodation from the “Uruk Hotel” to the “Toledo Hotel”.
13. On 3 February 2021, the player sent a new notice to the club with the following contents:
“I always have and will always perform as a professional football player
(…)
As consequence, by the present, I formally invite you to re-integrate me within the training sessions
of the professional group and to take in charge the haste! costs where I stay /rom September 2020.
(…)
in virtue of the employment contract, you have the obligation to give me training sessions with the first team
(because I am a professional football player) (cf Article 11.1) and a suitable accommodation (cf Article IV.9).”
14. On 23 February 2021, the player sent a new default notice to the club further expressing that 35% of
the value of the contract (i.e. USD 108,500) became due on said date. The player further requested to
be reintegrated with the team, and granted 15 days to remedy the default.
15. On 26 February 2021, Al Shorta sent a letter via email to the player, referred to as “Notice of Breach
of the Employment Contract” indicating the following:
“As evidenced by the recorded voicemails exchanged between you and the Club officials, you have been
completely absent from work since 10 January 2021 (i.e. for more than 45 days) and you have been refusing
to attend the team training session and all other activities of the club despite the fact that the Club officials
have been in contact with you on daily basis asking you to fulfil your obligations towards the Club as per
the terms of your contract of employment
In this respect, clause 15 of the Employment Contract entails as follows:
The Club shall be entitled to terminate the Contract for Just cause (…)
REF FPSD-5073
In light thereof: this is to formally notify you that you are in a breach of the employment contract and hence
(i) you are not entitled to any entitlements since 10 January 2021 and (ii) you are liable to compensate the
Club for such a breach of contract.”
16. According to Al Shorta, on 2 March 2021, the player left Iraq.
17. On 2 January 2022, the player concluded a new employment contract with the Bahraini club, HIDD
Sports Club, valid as from the date of signature until 31 May 2022.
18. On 11 January 2022, said contract was terminated by mutual agreement
19. On 11 February 2022, the player signed a contract with the Vietnamese club, Da Nang.
II Proceedings before the Dispute Resolution Chamber
20. On 7 February 2022, the player Christian Osaguona Ighodaro lodged a claim before for outstanding
remuneration and breach of contract without just cause, and requested the payment of the following
amounts:
- USD 108,500 net as outstanding remuneration, plus 5% interest p.a. as from 24 February “2020”
until the date of effective payment;
- USD 93,000 as compensation for breach of contract without just cause, corresponding to the
residual value of the contract, plus 5% interest p.a. as from the date of claim;
- USD 40,000 as additional compensation, due for the egregious circumstances (“comportement
aggravant”), plus 5% interest p.a. as from the date of decision.
21. The player explained that the club abandoned him and left him without his passport.
22. The player further explained that Al Shorta requested him to sign a document referred to as “Mutual
Rescission and Release Agreement” in order to take the necessary steps to register him via TMS with
his new club.
23. In its reply, the Respondent explained that the player could not arrive on time to Iraq, and that this is
the reason why it concluded an amendment. The Respondent stated that the contract effectively
began on 9 October 2020.
24. The Respondent declared that it paid USD 108,500 (i.e. the first instalment) on 22 October 2020.
25. Thereafter, the Respondent noted that, in January 2021, “the player started skipping training sessions
claiming that he was going to the gym to work on his upper body”, and underlined that the player was
absent in January 2021 from 18 training sessions.
26. In accordance with the club, the player’s fitness level declined and therefore was separated from the
main team.
27. The club argued that the Player also violated the Covid-19 Protocol to the extent that it could not rule
out the possibility of him contacting someone infected with Covid-19 at the gym. The club stated that
“this is another reason why the Player needed to be separated from the players who regularly start matches”.
REF FPSD-5073
28. The club explained that, from 2 February 2021 until 1 March 2021, the team manager notified the
player on a daily basis of the time and venue of the training sessions, but stated that the player failed
to do so and missed 24 consecutive training sessions during the month of February 2021.
29. The club attached a series of voice messages from conversations allegedly held with the club, where
the player replied as follows:
- 5 February 2021: “I am not training with your Olympic team. If it is your Olympic team, I do not go. I do
not train with the Olympic team”;
- 8 February 2021: “I did not sign with Al- Shorta to train with these small kids though, the university
team. I did not sign with Al-Shorta for university team. I signed a professional contract. I could not train
with these young boys.”
- 11 February 2021: “I cannot train with the Olympic team. I had a professional contract not an amateur
contract to train with the Olympic team.”
30. In the opinion of the club, the voice messages leave no doubt that the player was refusing to attend
trainings.
31. The club considered that, in accordance with art. 1 of the contract, the player was not guaranteed with
a right to be in the first team, but considered that it could discretionarily use the player’s services for
the first and/or reserve team.
32. The club explained that its reserve team, also known as “Olympic Team” and “Blue Team” is also
composed by professionals, just as the Claimant.
33. The club wished to emphasize that that it did not change the player’s accommodation nor it has ever
asked him to leave the Uruk Hotel and move to another hotel.
34. The club further denied that it ever retained the player’s passport and explained that he did not hear
from him anymore since his departure from Iraq on 2 March 2021. In this respect, the club provided
documentation from the Interior Ministry of Iraq, which would prove that (i) the Player departed Iraq
on 2 March 2021 using his passport no. A50273187 which is the same passport he used to enter Iraq
on 9 October 2020. According to the club, “this means that the Player has been in possession of his
passport all the time during his stay in Iraq.”
35. As to the notice of 26 February 2021, the club underlined that it was a “notice of breach” and by no
means a “notice of termination”. The club wished to specify that it did not dismiss the player. In the
opinion of the club, the contents of the notice of 26 February 2021 cannot be construed in isolation,
since it was done in reply to the player’s notice of 25 February 2021.
36. The club denied having obstructed the delivery of the Player’s ITC in favour of Al-Hidd Club since said
club did not create an instruction in TMS.
37. In view of the above, the club lodged a counterclaim against the club and requesting the following:
- To order the player to pay USD 155,525 “if the DRC would deem that the termination occurred on
2 February 2021) or USD 126,101 “if the DRC would deem that the termination occurred on 2
March 2021”
- Held Da Nang FC as jointly and severally liable.
REF FPSD-5073
38. In his replica, the player insisted that the club terminated the contract without just cause on 26
February 2021.
39. The player insisted that it is false to pretend that he accepted to train with the reserve team.
40. The player denied that he was absent in January 2021, but explained that he was injured between 1
January 2021 until 10 January 2021.
41. The Claimant explained that no training session was programmed during the days of 2,6,8,12,17,20
and 23 January 2021.
42. The player considered that, after February 2021, Al Shorta took all the necessary means to terminate
the contract.
43. Following the player, the “Olympic Team” is only composed of “minor children”.
44. The player explained that, on 11 January 2022, the club proposed him to settle the contract.
45. As final comments, the player insisted in his initial claim.
46. Da Nang was invited to provide its position as potential intervening party.
47. In this respect, Da Nang explained that it hired the player when his contract with Al Shorta already
expired.
REF FPSD-5073
III Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) 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 7 February 2022 and submitted for decision on 1 September 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2022 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between a Nigerian player and an Iraqi club.
3.
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 (June 2022 edition), and considering that the
present claim was lodged on 7 February 2022, the June 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b.
Burden of proof
4.
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
5.
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 abovementioned 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
REF FPSD-5073
6.
First of all, the members noted that, on 7 September 2020, the player Christian Osaguona Ighodaro
and Al Shorta Club concluded an employment contract valid as from 8 September 2020 until 30 June
2021.
7.
Subsequently, the Chamber observed that the player lodged a claim before FIFA against the club for
breach of contract without just cause,, arguing, fundamentally, that the club forced him to train
alone and to participate with the second club, while abandoned him and left him without his
passport.
8.
On the other hand, the Chamber took note of the position of the Respondent, and observed that
the latter rejected the player’s arguments, while simultaneously lodged a counterclaim against him.
9.
In view of the above, the Chamber understood that the main legal issue at stake is to determine
whether the contract concluded between the parties was terminated with or without just cause, and
the consequences thereof.
10. In this respect, the Chamber first recalled the main events that led to the present dispute.
11. In particular, the Chamber noted that, after starting the employment contract in September 2020,
during the month of January 2021, the player was demoted to the club’s second team, also referred
to as the “Olympic Team”. The Chamber also observed that the was forced to train alone.
12. The Chamber then paid attention to the fact the player consistently contested his demotion via the
exchange of different written and audio messages.
13. Thereafter, the Chamber observed that, on 26 February 2021, the club sent a notice to the player,
referred to as “Notice of Breach of the Employment Contract”, with the following contents:
“As evidenced by the recorded voicemails exchanged between you and the Club officials, you have
been completely absent from work since 10 January 2021 (i.e. for more than 45 days) and you have been
refusing to attend the team training session and all other activities of the club despite the fact that the
Club officials have been in contact with you on daily basis asking you to fulfil your obligations towards
the Club as per the terms of your contract of employment
In this respect, clause 15 of the Employment Contract entails as follows:
The Club shall be entitled to terminate the Contract for Just cause (...)
In light thereof: this is to formally notify you that you are in a breach of the employment contract and
hence (i) you are not entitled to any entitlements since 10 January 2021 and (ii) you are liable to
compensate the Club for such a breach of contract.”
14. After reviewing the contents of the aforementioned correspondence, the Chamber understood that
it does not imply a termination of the contract, but only a notification from the club by means of
which it only informed the player that it considered that the latter was in a situation of contractual
breach.
REF FPSD-5073
15. Ultimately, the Chamber also observed that it is fundamentally uncontested that the player
permanently left Iraq on 2 March 2021. In the opinion of the Chamber, this departure de facto
represented a unilateral termination of the contract by the player, as it also appears that the parties
have ceased any contact as from said date and until the present proceedings, which were lodged
before FIFA almost a year later. As a result, the Chamber established that the contract was
unilaterally terminated by the player on 2 March 2021.
16. The foregoing having been established, the Chamber turned its attention to determining whether
the player had a just cause to terminate the contract on said date.
17. In this respect, the Chamber recalled that the core of the present dispute appears to be the player’s
demotion to the “Olympic Team”.
18. On this note, the Chamber wished to underline that art. 1 of the contract stipulated that the player
was employed “to play in the Club’s teams”, whereas the term “teams” is expressed in its plural form.
Hence, the Chamber understood that no contractual provision in the contract guaranteed that the
player had to participate with the first team only. Therefore, following the contract concluded
between the parties, the player’s secondment to the second team (the “Olympic Team”) appears to
be a possibility that was foreseen by the parties.
19. In relation to said demotion, the Chamber observed that the player consistently rejected to train
and participate with the “Olympic Team”. Yet, given that the contract allowed the club to assign the
player to other teams than the first one, a majority of the Chamber understood that the player had
no valid reason to not participate with the “Olympic Team”, as he was contractually bound to
perform his duties for all the teams of the club, and not exclusively for the first team.
20. In addition, the Chamber also noted that the player also complained about having been forced to
train alone during the month of January 2021.
21. In relation to said argument, the Chamber took into account that it is undisputed that the player
suffered an injury in January 2021. In this respect, the Chamber referred to its longstanding
jurisprudence for comparable situations, and remarked that, in principle. a player should train with
his team and not be separated to receive individual training”. Yet, the Chamber also expressed that,
following this same jurisprudence, if a player needs to recover from an injury and it is required to
improve their fitness levels, moving him temporarily to train with the reserves might be justified. As
a result, the Chamber established that the argument of the player is not sufficient to justify a
unilateral termination of the contract.
22. All in all, the majority of the Chamber understood that the aforementioned events lead to conclude
that the player did not have a genuine interest in pursuing the contractual relationship and that,
therefore, he terminated the contract without just cause on 2 March 2021.
23. On the other hand, the Chamber also acknowledged that the club lodged a counterclaim against the
player. However, given the established facts of the matter, the Chamber also observed that the the
REF FPSD-5073
club could not establish damages. In the opinion of a majority of the Chamber, the club also
contributed to the termination by consistently expressing that it had a lack of interest in the player’s
services.
24. Therefore, the Chamber decided that (a) the player terminated the contract without just cause, while
(b), it shall also reject the counterclaim of the club due to the reasons expressed in point II 23 above.
25. Nevertheless, after duly examining the documentation and evidence on file, and after also taking
into account the claim of the player as well as the position of the Respondent, the Chamber
established, in accordance with the principle of pacta sunt servanda, that the player is entitled to
USD 108,500 net as outstanding remuneration, which became due on 24 February 2021.
26. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the Chamber decided to award 5% interest p.a. over said amount as from the due
date
ii. Compliance with monetary decisions
27. 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.
28. In this regard, the Chamber 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.
29. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player / within 45 days of notification of the decision,
failing which, at the request of the creditor, 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.
30. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
31. 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.
REF FPSD-5073
d.
Costs
32. 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.
33. Furthermore, 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.
34. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-5073
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Christian Osaguona Ighodaro, is partially accepted.
2.
The Respondent, Al Shorta Club, has to pay to the Claimant, the outstanding amount of USD
108,500 net plus 5% interest p.a. as from 24 February 2021 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.
The counterclaim of Al Shorta is rejected.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5073
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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