Labour Disputes
Texto da decisão
REF. FPSD-12481
Decision of the
Dispute Resolution Chamber
passed on 11 January 2024
regarding an employment-related dispute concerning
the player Jospin Nshimirimana
BY:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), member
Michele COLUCCI (Italy), member
CLAIMANT:
Jospin Nshimirimana, Burundi
Represented by Talat Emre Kocak
RESPONDENT:
Yukatel Adana Demirspor A.S., Türkiye
Represented by Umur Varat and Aygin Kuruloğlu
pg. 2
REF. FPSD-12481
I. Facts of the case
1.
After 9 May 2023, the Burundian player Jospin Nshimirimana (hereinafter the Claimant or
the Player) and the Turkish club Yukatel Adana Demirspor A.S. (hereinafter the Respondent
or the Club) allegedly concluded an employment agreement (hereinafter the Employment
Agreement), valid for 2023-2024 season. Before entering into the said agreement, the Player
was employed by another Turkish club, Yeni Malatyaspor until 9 May 2023.
2.
In accordance with the Player’s submission as well as the evidence provided by the latter,
the Claimant was not in possession of the signed Employment Agreement, as it was
allegedly not provided by the Club. To support his position and to confirm his presence
with the Club, the Player provided for videos of photo shooting in the team jersey and
Whatsapp messages and a letter from Burundi FA to the Respondent, requesting the
release of the Claimant.
3.
In accordance with Clause 3 of the Employment Agreement, the Claimant and the
Respondent (jointly referred to as the Parties) agreed upon the following financial benefits:
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The yearly salary of the Player for season 2023/2024 shall be
EUR 250,000 (twohundredfiftythousand Euro) totally. The amount (250,000 Euro)
shall be divided into 10 (ten) equal salaries so Player’s monthly salary shall be
EUR 25,000 (twentyfivethousand Euro) each month (September 2023 – June 2024).
4.
On 21 August 2023, the Secretary General of Burundi FA requested the release of the
Claimant “to rejoin Burundi National team for the match CAMEROUN VS BURUNDI that will be
played in Cameroon on 12th September 2023, counting for the qualifiers of Total Energy AFCON,
Cote d’Ivoire 2024.”
5.
The letter remained unanswered by the Respondent.
6.
On 22 August 2023, the Claimant sent a letter to the Respondent, requesting the copy of
the Employment Agreement, his renewal of visa as well a salary of July 2023.
7.
In letters to the Respondent of 28 and 31 August 2023, the Claimant reiterated his previous
requests.
8.
On 7 September 2023, the Claimant terminated the contract.
9.
In accordance with Transfer Matching System (TMS), the registration period in Türkiye ran
as follows: 26 June to 15 September 2023.
10. On 7 September 2023, the Claimant signed a new contract (hereinafter the New Contract)
with the Turkish club, Sanliurfaspor Kulubu, valid until 30 June 2024. The said contract
mentioned Yeni Malatyaspor as the Player’s previous club.
pg. 3
REF. FPSD-12481
11. In accordance with the New Contract, the Player was entitled to a total payment of
EUR 37,800.
II. Proceedings before FIFA
12. On 2 November 2023, 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
13. The requests for relief of the Claimant were the following:
“The Claimant would like to request you to make a decision that the Respondent has to pay a
total amount 212.000,00 EUR as compensation with its interest stemming from 07.09.2023.
In consideration of the fact that the Respondent caused the Claimant to file the case herein,
we would like to request your honorable tribunal to make a decision that the attorney-ship
fees (as %10 of the total decision) that the Claimant is faced and shall be paid to his legal
counsel due to this case.”
14. The Claimant argued that the Employment Agreement was terminated without just cause
and that he should be entitled to compensation.
b. Position of the Respondent
15. In its reply to the claim, the Respondent filed the following request for relief:
“1. Primary, declare that the DRC does not have competence to hear the Statement of Claim
of the Player;
2. Alternatively, to reject the Statement of Claim of the Player;
3. To order the Player to assume the entirety of the FIFA DRC administration and procedural
fees, if any.”
16. Concerning the alleged non-competence of FIFA, the Respondent argued that since no
employment contract was ever concluded, the current matter does not fall under art. 22
lit. b of the Regulations.
17. The Respondent further argued that, even if FIFA would be competent, the claim should be
rejected on the same argument as stated above. In particular, the Respondent argued that
the Player joined only for a temporary duration trial and that the Respondent “did not sign
any agreement and did not make any payments to the Player during his trial but provided him
with accommodation and meals.”
pg. 4
REF. FPSD-12481
18. In this respect, the Respondent argued that it never extended any employment offers to
the Player and did not invite him to sign an employment contract.
19. The Respondent furthermore contested all evidence provided by the Claimant:
−
−
−
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Regarding the picture, the Respondent argued that it “was NOT taken in the Club’s
office. The Respondent is not aware of the circumstances surrounding the said picture,
but it could certainly confirm that the person published therein is NOT the Club’s
employee”;
“the Player did NOT file any documents, signed, or at least drafted by the Club. No proof
of the Respondent’s alleged intention to employ the Claimant (as well as the Player’s
acceptance to be employed) were provided either”;
“the contract draft was NEVER accepted by the Club”;
Regarding the video in the Respondent’s jersey, the Respondent argued that “it is a
regular practice of the Club to take pictures of their players on trial and prepare for their
potential announcement in trial games in advance, if the Club chose to enforce such an
option (which did not happen as the Player was NOT selected to the squad of the Club in
friendly matches, played during his trial period, due his poor physical condition and
performance in training).”
20. To summarize, the Respondent argued that “the Player did NOT provide any evidence capable
of demonstrating that:
i.
ii.
iii.
The Player received any employment offer from the Club;
The Player accepted any employment offer from the Club;
The parties signed any employment contract.”
21. Finally, the Respondent asserted that “the employment contract draft, provided by the Player
with his Claim, has never been signed by any of the parties, which corroborates that no mutual
consent to the terms and conditions therein had ever been reached.“
22. To conclude, the Respondent added that “all the discussions between the parties in relation
to possible employment of the Player were always strictly conditional to the successful results of
his trial at the sole satisfaction of the Club. Whilst this condition was never fulfilled, the Club
decided not to extend any employment offer to the Player. Accordingly, there was no offer which
the Player could have accepted.“
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 2 November 2023 and
pg. 5
REF. FPSD-12481
submitted for decision on 11 January 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.
24. 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 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 Burundian player
and a Turkish club.
25. 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 (May 2023 edition) and
considering that the present claim was lodged on 2 November 2023, 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
26. 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 TMS.
c. Merits of the dispute
27. 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
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
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a Player against a Club concerning
an existence of a contract and an alleged termination thereof. The DRC took note that the
pg. 6
REF. FPSD-12481
claim was contested by the Respondent, who argued that it never made any offer to the
Player, nor had it ever concluded such agreement.
29. In this context, the Chamber acknowledged that its task was to establish if an employment
contract was indeed concluded between the Parties.
30. The Chamber started by recalling the well-established jurisprudence which dictates that, in
order for an employment contract to be considered valid and binding, it should contain the
essentialia negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship and the remuneration payable by the
employer to the employee and a signature of the parties.
31. After thoroughly analysing the documentation on file, the DRC noted that the relevant
employment agreement does not bear the signature of any Club’s representative.
32. Nonetheless, despite not having a signed copy of the said contract, the DRC examined if a
consent, proving the contractual relationship, can be established between the Parties.
33. In this regard, the Chamber noted that very little documentation was made available by the
Player to support his argument. What is more, the DRC acknowledged that the evidence
provided by the Player was contested by the Club.
34. The DRC further highlighted that none of the documents provided by the Player were
signed by the Club nor had the Player provided for proof of the Respondent’s alleged
intention to employ the Claimant.
35. Finally, the DRC recalled that the New Contract mentioned Yeni Malatyaspor as the Player’s
previous club, i.e. not the Respondent.
36. Referring to art. 13 par. 5 of the Procedural Rules and the principle of the burden of proof,
the Chamber believed that the Claimant did not meet his burden of proof in order to
demonstrate his link to the Respondent.
ii. Consequences
37. Having stated the above, the members of the Chamber rejected the claim of the Player.
d. Costs
38. 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.
pg. 7
REF. FPSD-12481
39. 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.
40. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
pg. 8
REF. FPSD-12481
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jospin Nshimirimana, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-12481
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
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
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