Labour Disputes
Texto da decisão
REF FPSD-6685
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Abraham
Nnamdi Nwankwo
BY:
Omar Ongaro (Italy), Chairperson
Khaled Awad Al Thebity (Saudi Arabia), member
Michele Colucci (Italy), member
CLAIMANT:
Abraham Nnamdi Nwankwo, Nigeria
Represented by Mr Yakub Kizilkaya
RESPONDENT:
Balikesirspor Kulübü Derneği, Türkiye
Represented by Messrs Turgut Özgüç
Korhan Armağan
Özgün
and
Page 2
REF FPSD-6685
I.
Facts of the case
1.
On 8 September 2020, the Nigerian player, Abraham Nnamdi Nwankwo (hereinafter: the
Claimant), and the Turkish club, Balikesirspor Kulübü Derneği (hereinafter: the
Respondent) signed an employment contract valid as from the date of signature until
31 May 2023.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia an annual remuneration of TRY 30,000, payable in 10 monthly
instalments of TRY 3,000, by no later than the 30th day of each respective month as from
August until May of the following year.
3.
Furthermore, in accordance with art. 9 of the Contract, the Claimant and the Respondent
(hereinafter jointly: the Parties) agreed as follows:
“The parties are free to accept the authority of the Dispute Resolution Board within the
framework of the Dispute Resolution Board Instruction in the resolution of any dispute arising
from this contract.”
4.
By correspondence dated 30 May 2022, the Claimant put the Respondent in default of
payment of TRY 73,500, corresponding to 20 unpaid monthly salaries of TRY 3,000 each,
as well as accounting for an increase in minimum wage in Turkish law, by way of which
the Claimant calculated his salaries as from January 2022 to be TRY 4,250. The Claimant
granted the Respondent a time limit of 15 days in order to remedy the default, to no avail.
5.
By correspondence dated 16 June 2022, the Claimant terminated the Contract.
II. Proceedings before FIFA
6.
On 12 July 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 defaulted on several monthly salaries,
accumulating a debt of TRY 66,250 over the course of the Contract. Furthermore, the
Claimant outlined that he put the Respondent in default of payment of said amounts,
granting a 15-day deadline to remedy the alleged breach of contract. Therefore, the
Claimant argued, there was just cause to terminate the Contract.
8.
The Claimant requested outstanding remuneration in the amount of TRY 66,250,
corresponding to 15 monthly salaries of TRY 3,000 each, for the period of September 2020
Page 3
REF FPSD-6685
until December 2021, as well as 5 monthly salaries of TRY 4,250 each, for the period of
January 2022 until May 2022.
9.
Furthermore, the Claimant requested interest on said amounts as from the due dates of
the respective instalments until the date of effective payment.
10. As for compensation, the Claimant requested TRY 59,750, corresponding to 11 monthly
salaries for the period between June 2022 and May 2023. In this respect, the Claimant
calculated the salary for June 2022 as TRY 4,250, in line with the alleged increase in
minimum wage mandated by Turkish law, and the remaining salaries between July 2022
and May 2023 as TRY 5,500, in line with a further alleged increase in minimum wage
mandated by Turkish law.
11. Additionally, the Claimant requested additional compensation in the amount of
TRY 16,500, corresponding to three monthly salaries of TRY 5,500 each.
12. Lastly, the Claimant did not request interest on the compensation claimed.
b. Position of the Respondent
13. The Respondent firstly challenged the competence of the Football Tribunal, arguing that
art. 9 of the Contract excludes the jurisdiction of the latter in favour of the Turkish
National Dispute Resolution Chamber.
14. Furthermore, the Respondent submitted a number of payment receipts and proofs of
transaction of alleged payments made towards the Claimant in the total amount of
TRY 38,900.
15. Lastly, the respondent asserted that, since the Claimant did not submit any evidence as
to having suffered “sporting prejudice”, he should not be entitled to additional
compensation.
c. Comments of the Claimant
16. The Claimant was asked by the FIFA Administration to comment on the alleged payments
made by the Respondent in the latter’s submission.
17. In this respect, the Claimant confirmed most of the payments that were asserted by the
Respondent, with the exception of three, with the following explanations:
-
TRY 500, allegedly made on 26 April 2022 – signature contained on payment receipt
did not belong to the Claimant;
Page 4
REF FPSD-6685
-
TRY 2,500, allegedly made on 29 June 2022 – signature contained on payment
receipt did not belong to the Claimant;
-
TRY 1,000, allegedly made on 3 May 2022 – so signature contained on payment
receipt.
18. The Claimant, therefore, alleged that the amount outstanding at the date of termination
was TRY 31,350, i.e. significantly more than the 2-month minimum required to terminate
the Contract with just cause, in line with art. 14bis of the Regulations.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 12 July 2022 and submitted
for decision on 29 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.
20. 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 (July 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.
21. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the National Dispute Resolution Chamber of Türkiye Futbol
Federasyonu (hereinafter: the NDRC of Türkiye), alleging that the latter is competent to
deal with any dispute deriving from the Contract, in accordance with art. 9 thereunder.
22. Taking into account the above, the Chamber emphasised that, in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established
at national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
Page 5
REF FPSD-6685
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
23. In this context, the Chamber pointed out that it should first analyse whether the Contract
contained a clear and exclusive jurisdiction clause in favour of the NDRC of Türkiye.
24. In this respect, the Chamber referred to art. 9 under the Contract, according to which “The
parties are free to accept the authority of the Dispute Resolution Board within the framework
of the Dispute Resolution Board Instruction in the resolution of any dispute arising from this
contract.” The Chamber, after analysing the wording of the jurisdiction clause, concluded
that such clause did not clearly and exclusively establish the competence of the NDRC of
Türkiye, in accordance with art. 22 par. 1 lit. b).
25. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without need to
enter the analysis of any further requirement, it established that the Respondent’s
objection to the competence of FIFA’s decision-making bodies to deal with the present
matter has to be rejected and that the Dispute Resolution Chamber is competent, on the
basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present matter as to the
substance.
26. 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 (July 2022 edition), and
considering that the present claim was lodged on 12 July 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
27. 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
28. 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
Page 6
REF FPSD-6685
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
29. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
termination of the Contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the Contract.
30. In this context, the Chamber acknowledged that it its task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had, in fact, remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
31. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
32. The Chamber noted that the Claimant asserts not having received is remuneration
corresponding to the period between September 2020 and May 2022. Furthermore, the
Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 30 May 2022, i.e., at least 15 days before terminating the
Contract unilaterally on 16 June 2022.
33. The Chamber also noted that, in the case at hand, the Respondent bore the burden of
proving that it indeed complied with the financial terms of the Contract. In this respect,
the Chamber recalled that the Respondent submitted several payment slips, in the total
amount of TRY 38,900. Of those alleged payments, the Claimant acknowledged all receipts
submitted by the Respondent, with the exception of three in the total amount of
TRY 4,000, contesting the validity of respective receipts on account of the signature which
was purportedly unauthentic, or lack thereof entirely.
34. In this respect, after carefully analysing the evidence submitted by the Respondent, more
specifically, the three contested payment slips, the Chamber established that these
indeed fell short of meeting the burden of proving that the Respondent had effected the
alleged payments to the Claimant. In particular, the Chamber noted that the signature on
two of the slips differed substantially from the remaining, and acknowledged, payment
Page 7
REF FPSD-6685
slips, and that the third one contained no signature at all to prove that any payment had
been received by the Claimant.
35. Furthermore, the Chamber recalled that the Contract stipulated an annual salary of
TRY 30,000, divided into 10 monthly salaries of TRY 3,000 each. In this respect, the
Chamber took note of the argumentation submitted by the Claimant that an increase in
minimum wage took place during the course of the Contract and that this should be taken
into account when assessing the entitlement of the latter to outstanding remuneration
and compensation under the Contract. The Chamber also took note that the Claimant
submitted media releases as evidence in respect of the assertion that an increase in
minimum wage took place.
36. In this context, the Chamber deemed that the evidence submitted by the Claimant did
not meet the burden of proof in accordance with art. 13 par. 5 of the Procedural Rules to
the effect of establishing that the Claimant’s remuneration under the Contract could be
increased. Therefore, the Chamber held that the figure representing the Claimant’s salary
for the purposes of calculating the outstanding remuneration and potential
compensation shall be TRY 3,000.
37. Having established the above, the Chamber noted that the Claimant stated not having
received any salaries as from September 2020. Thus, the Chamber established that, for
said period, the Claimant should have received a total amount of TRY 60,000.
Furthermore, the Chamber recalled that the Claimant acknowledged that a total amount
of TRY 34,900 had been paid by the Respondent. Thus, the Chamber established that the
total amount of remuneration which had remained unpaid at the time the Contract was
terminated was TRY 25,100, or, in pro-rata terms, more than 8 monthly salaries.
38. In this respect, the Chamber further noted that the Respondent did not contest the nonpayment of the remaining amounts which were established as outstanding, and that no
evidence was provided by the latter proving that the amounts had, indeed, been paid.
39. Thus, in accordance with art. 14bis of the Regulations, which stipulates that a player has
just cause to terminate his contract if the club unlawfully fails to pay at least two monthly
salaries, and the player has put the club in default of payment in writing, granting a
deadline of 15 days to remedy the alleged breach, the Chamber concluded that the
Claimant had a just cause to terminate the Contract on 16 June 2022.
ii. Consequences
40. 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.
Page 8
REF FPSD-6685
41. In this respect, the Chamber recalled that the outstanding remuneration at the time of
termination amounted to TRY 25,100. As such, and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay
the Claimant the amounts which were outstanding under the Contract at the moment of
termination.
42. 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 from the following dates, until the
date(s) of effective payment:
-
On the amount of TRY 1,100, 5% p.a. as from 1 October 2021;
On the amount of TRY 3,000, 5% p.a. as from 31 October 2021;
On the amount of TRY 3,000, 5% p.a. as from 1 December 2021;
On the amount of TRY 3,000, 5% p.a. as from 31 December 2021;
On the amount of TRY 3,000, 5% p.a. as from 31 January 2022;
On the amount of TRY 3,000, 5% p.a. as from 1 March 2022;
On the amount of TRY 3,000, 5% p.a. as from 31 March 2022;
On the amount of TRY 3,000, 5% p.a. as from 1 May 2022;
On the amount of TRY 3,000, 5% p.a. as from 31 May 2022.
43. Having stated the above, the Chamber turned to the calculation of the compensation
payable to the player by the club in the case at stake. In doing so, the Chamber firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular,
the remuneration and other benefits due to the player under the existing contract and/or
the new contract, the time remaining on the existing contract up to a maximum of five
years, and depending on whether the contractual breach falls within the protected
period.
44. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained a provision by means of which the
Parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract.
45. In this regard, the Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
46. As a consequence, the Chamber determined that the amount of compensation payable
by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations, The Chamber recalled that said
Page 9
REF FPSD-6685
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
47. Bearing in mind the foregoing, as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the former under the terms of
the Contract until its term. Consequently, the Chamber concluded that the amount of
TRY 30,000 (i.e., 10 times TRY 3,000, corresponding to the Claimant’s salary entitlement
under the Contract, as from the date of termination until the contractual term) serves as
the basis for the determination of the amount of compensation for breach of contract.
48. In continuation, the Chamber verified whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been able to reduce his loss of income. According to the constant practice of the
Chamber, as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a
new employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
49. In this respect, the Chamber noted that the Claimant remained unemployed since the
unilateral termination of the Contract.
50. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
a player did not sign any new contract following the termination of his previous contract,
the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
51. In this respect, the Chamber decided to award the Claimant compensation for breach of
contract in the amount of TRY 30,000, i.e., 10 times TRY 3,000, as the residual value of the
Contract that was prematurely terminated.
52. Lastly, the Chamber noted that no interest was requested by the Claimant on any
compensation which was to be awarded in the case at hand. Thus, and in accordance with
the general legal principle of ne ultra petita, the Chamber granted no interest on the
amount of TRY 30,000.
iii. Compliance with monetary decisions
53. 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.
Page 10
REF FPSD-6685
54. In this regard, the DRC 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.
55. Therefore, bearing in mind the above, the DRC 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.
56. 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.
57. The DRC 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
58. 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.
59. 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.
60. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 11
REF FPSD-6685
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abraham Nnamdi Nwankwo, is partially accepted.
2.
The Respondent, Balikesirspor, has to pay to the Claimant, the following amount(s):
- TRY 1,100 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 31 October 2021
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5%
31 December 2021 until the date of effective payment;
interest
p.a.
as
from
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 31 January 2022
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 31 March 2022
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 31 May 2022
until the date of effective payment;
- TRY 30,000 as compensation for breach of contract without just cause.
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:
Page 12
REF FPSD-6685
▪
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 the ban
shall be of 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 article 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
Page 13
REF FPSD-6685
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 14