Labour Disputes
Texto da decisão
REF FPSD-6339
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player Izuchukwu
Jude Anthony
BY:
Jon Newman (USA)
CLAIMANT:
Izuchukwu Jude Anthony, Nigeria
Represented by Nir Inbar Sports Law
RESPONDENT:
FC Spartak Trnava, Slovakia
Represented by SOUKENÍK –ŠTRPKA s. r. o.
REF FPSD-6339
I. Facts of the case
1.
On 1 January 2021, the Nigerian player, Izuchukwu Jude Anthony (hereinafter: the Claimant),
and the Slovakian club, FC Spartak Trnava (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract), valid from 1 January 2021 until 30 June
2022.
2.
Pursuant to article 4 of the contract, the Claimant was entitled to a monthly salary of EUR
8,000 per month from 1 July 2021.
3.
On 13 September 2021, the Claimant and Respondent concluded a termination agreement
(hereinafter: termination agreement) by means of which they agreed to mutually terminate
the contract.
4.
In accordance with the termination agreement, the Respondent agreed to pay to the
Claimant by 30 September 2021, the following amounts:
-
August 2021 salary
bonus for the UECL 2021 season
EUR 9,000 as an additional amount
5.
On 25 May 2022, the Claimant put the Respondent in default and requested payment of
the amount of EUR 20,500 setting a 15 days’ time limit in order to remedy the default,
however to no avail.
II. Proceedings before FIFA
6.
On 13 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
7.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations.
8.
The requests for relief of the Claimant, were that the Respondent pay him the amount of
EUR 20,500 corresponding to the outstanding amount due under the termination
agreement as detailed in par. 4 above plus 5% interest per month as from 30 September
2021.
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b. Position of the Respondent
9.
In its reply, the Respondent rejected the proposal of FIFA and indicated that the Claimant
made an unauthorised claim, due to the following facts:
(a) August 2021 salary
-
-
The agreed salary is the gross sum, i.e. the net sum paid to the Claimant is lower than EUR 8,000.
For example, the net sum paid to the Claimanťs bank account for the month July 2021 was the
sum in amount of EUR 6,272.91; the samé net sum should háve been also the monthly Claimanťs
salary for the month August 2021. The calculation of the net income has been never objected by
the Claimant and he accepted it.
Based on the 2021 Contract, Amendment to the 2021 Contract and the Termination agreement
the Claimant’s claim to the monthly salary for August 2021 was in amount of EUR 6,272.91 and
not in amount of EUR 8,000 as stated by the Claimant.
(b) The claimed bonuses for the UECL 2021/2022
-
Neither 2021 Contract nor the Termination agreement establishes the Claimant’s right to any
bonuses for the UECL 2021/2022 or their amount. Even the Claimant has not submitted any
evidence or proof on what basis he is demanding payment of amount of EUR 3,500 as the
bonuses for the UECL 2021/2022.
-
According to the internal regulations of the Respondent the final amount of the bonus for the
player or member of the implementation team is always determined by the team Head coach.
The Head coach decided that the Claimants bonuses for the UECL 2021/2022 were in amount of
EUR 376.67 net.
(c) Balance of the Claimant’s salary
-
-
due to the Claimant’s injury and his incapacity to perform agreed sports activities for the
Respondent, the Respondent applied the procedure according to the Article V (4), (d) of the 2021
Contract and reduced the agreed monthly salary of the Claimant for the months February and
March 2021 by 50%.
Due to the mentioned the Respondent has not been obliged to pay the Claimant the rest of the
Claimant's salary for the months of February, March, and April 2021 in amount of EUR 9,000 (as
stated in Termination agreement) but only in amount of EUR 3,000, i.e., the rest of Claimant's
monthly salary for April 2021 whereas the reduced monthly salary for the months February and
March 2021 has already been paid to the Claimant).
10. On account of the above the Respondent indicated that the total amount due in relation to
the termination agreement was only the amount of EUR 9,649.58, corresponding to the:
(i)
Claimant's net monthly salary for August 2021 in amount of EUR 6,272.91
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(ii) Claimant's claim for bonuses for the UECL 2021/2022 granted by the head coach in amount
of EUR 376.67 net
(iii) rest of the Claimant's salary for the month of April 2021 in amount of EUR 3,000.
11. Moreover, the Respondent notified the Claimant in writing “on the offset of its claim in
amount of EUR 1,838.67 (resulting from the improperly paid monthly salary to the Claimant for
the month December 2020) against the Claimant's claim resulting from the Termination
agreement in amount of EUR 9,649.58. After the offset the outstanding debt of the Respondent
to the Claimant was the sum in amount of EUR 7,810.91. The Respondent paid the outstanding
debt to the Claimant in amount of EUR 7,810.91 by the wire transfer on 1 December 2021.”
12. In conclusion the Respondent stated that it had no further obligations towards the
Claimant and requested that the Claimant’s claim in its entirety be rejected.
c. Additional Comments Claimant
13. The Claimant mentioned that the Respondent itself drafted the termination agreement,
hence it “never mentioned that any of the EUR 9,000 or the August 2021 salary shall be deducted
due to any alleged prior injuries or any other reason. The Termination was signed on September
2021 and is presumed to have settled any pending disagreements. Therefore, the August 2021
salary and EUR 9,000 were fully due. The Respondent was not entitled to offset any amounts.”
14. Moreover, the Respondent's "notification" allegedly sent to the Claimant on December 2020
is also irrelevant – “The Parties later signed new 2021 Contract; The Termination (September
2021) did not mention any set off amounts but instead, addressed specific amounts to be paid
by the Respondent to the Claimant – as drafted by the Respondent in the Termination Both
Parties are declaring, that by the date of contract termination all financial terms resulting from
the contract have been settled."
15. The Claimant denied that he received a payment in the amount of EUR 7,810.91 allegedly
paid by the Respondent. In this regard the Claimant mentioned that the document
provided by the Respondent clearly do not qualify as evidence for any bank transfer to the
Claimant.
16. In conclusion the Claimant reiterated his claim and reaffirmed that the Respondent failed
to pay him the full August 2021 salary, the UEFA bonus, and the EUR 9,000 payment.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In this
REF FPSD-6339
respect, he took note that the present matter was presented to FIFA on 13 June 2022 and
submitted for decision on 22 November 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.
18. 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 Single Judge
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 Slovakian club.
19. 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 13 June 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
20. 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
21. 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
22. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note that the case at hand pertains to a claim for outstanding
remuneration filed by the Claimant against the Respondent in connection with a
termination agreement, concluded between them on 13 September 2021.
REF FPSD-6339
23. In this context, the Single Judge acknowledged that his task was to determine whether the
amounts claimed by the Claimant had fallen due and were to be paid by the Respondent.
24. The Single Judge noted that according to the Claimant, the Respondent failed to remit the
amounts agreed to in the termination agreement.
25. In this respect, the Single Judge noted that in accordance with the termination agreement,
the Respondent agreed to pay to the Claimant by 30 September 2021, the following
amounts:
-
August 2021 salary
bonus for the UECL 2021 season
EUR 9,000 as an additional amount
26. In this context the Single Judge remarked that the Respondent bore the burden of proving
that it indeed complied with the financial terms of the termination agreement concluded
between the parties.
27. In continuation, the Single Judge noted that the Respondent on its account argued that it
had no further obligations towards the Claimant, in light of the following:
(i)
it was allowed to set-off certain amounts from the salary of the Claimant due to the
improperly paid monthly salary to the Claimant for the month December 2020,
(ii) that the Claimant was entitled to net salary and not the gross amount, and
(iii) that the Claimant failed to submit evidence to proof his entitlement to the bonus
28. The Single Judge, however proceeded to reject the aforesaid arguments of the Respondent,
on the basis that (i) the notification to set-off amounts was sent to the Claimant after the
parties concluded the termination agreement; (ii) the Respondent failed to submit its
internal regulations on the basis of how bonus is awarded, additionally it failed to specify
the same in the termination agreement; and (iii) the payment evidence provided by the
Respondent in the amount of EUR 7,810.91 does not prove beyond doubt that the said
payment was remitted to the Claimant. In conclusion the Single Judge therefore held that
no reasonable justification was presented by the Respondent for not having complied with
the terms of the termination agreement.
29. Taking the above into account and the documentation presented by the Claimant, the
Single Judge concluded that the Respondent had failed to fulfil the contractually agreed
obligations as per the termination agreement and is thus to be held liable for the
consequences thereof.
REF FPSD-6339
ii. Consequences
30. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the termination agreement committed by the
Respondent.
31. 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
outstanding amount of EUR 20,500, corresponding to the following amounts:
-
EUR 8,000 as August 2021 salary
EUR 3,500 as bonus for the UECL 2021 season
EUR 9,000 as an additional amount
32. What is more, based on its well-established jurisprudence, the Single Judge decided to
award 5% interest p.a. on the above amounts from the 1 October 2021 until the date of
effective payment.
iii. Art. 12bis of the Regulations
33. In continuation, bearing in mind the foregoing considerations, the Single Judge referred to
art.12bis par. 2 of the Regulations, which stipulates that any club found to have delayed a
due payment for more than 30 days without a prima facie contractual basis may be
sanctioned in accordance with art. 12bis par. 4 of the Regulations. In this respect, the Single
Judge confirmed that the Respondent failed to comply with its financial obligations in line
with the contract, without a prima facie justification, and was duly notified of the
contractual breach by the Claimant, who granted the Respondent at least 10 days to cure
its default, to no avail.
34. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent.
35. Moreover, the Single Judge referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating circumstance and
lead to a more severe penalty.
36. Bearing in mind the above and taking into account that this is a first offense of the
Respondent in the past two years, the deciding body decided to impose a warning on the
Respondent.
iv. Compliance with monetary decisions
37. 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 his decision, the pertinent FIFA
REF FPSD-6339
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.
38. 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.
39. 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.
40. 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.
41. 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
42. 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.
43. 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.
44. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-6339
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Izuchukwu Jude Anthony, is partially accepted.
2.
The Respondent, FC Spartak Trnava, has to pay to the Claimant, the following amount(s):
- EUR 20,500 as outstanding amount plus 5% interest p.a. as from 1 October 2021 until the
date of effective payment
3.
Any further claims of the Claimant are rejected, and a warning is imposed on the
Respondent.
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
REF FPSD-6339
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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