Labour Disputes
Texto da decisão
REF FPSD-4428
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Chikezie Hikezie
Miracle Nwaorisa
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Mario Flores Chemor (Mexico), member
CLAIMANT / COUNTER-RESPONDENT:
Chikezie Hikezie Miracle Nwaorisa, Nigeria
Represented by Altius CV
RESPONDENT / COUNTER-CLAIMANT:
FK Spartaks, Latvia
Represented by Georgi Gradev and Marton Kiss
Page 2
REF FPSD-4428
I.
Facts of the case
1.
On 1 July 2019, the Nigerian player, Chikezie Hikezie Miracle Nwaorisa (hereinafter:
Claimant/Counter-Respondent or player) and the Latvian club, FK Spartaks (hereinafter:
Respondent/Counter-Claimant or club) concluded an employment contract (hereinafter: contract)
valid as from the date of signature until 30 November 2023.
2.
According to the contract, the club undertook to pay the player a monthly salary of EUR 1,004
gross, payable on the 10th day of each month.
3.
Furthermore, the contract establishes:
4.
On 7 March 2021, FK Spartaks, the player and the Latvian club, FC Noah Jurmala concluded a an
agreement for the loan (hereinafter: loan agreement) of the player until 31 December 2021.
5.
According to the loan agreement, FK Spartaks remained “responsible for the player’s salaries”.
6.
On 7 March 2021, the player and FC Noah Jurmala concluded an employment contract
(hereinafter: contract 2) valid as from 7 March 2021 until 31 December 2021.
7.
Art. 4.6 of contract 2 establishes that FC Noah Jurmala has the obligation: “To provide appropriate
medical care and rehabilitation procedures (massage, sauna, swimming pool, etc.) as well as to
keep information about injuries sustained by footballer during term of contract”.
8.
On 23 September 2021, the player put the club in default and requested payment of EUR 4,000,
corresponding to four monthly salaries (June 2021 until September 2021), until 8 October 2021.
Page 3
REF FPSD-4428
9.
On 8 October 2021, the club replied to the player insisting that due to his injury he was supposed
to receive his salaries from “Latvia State social insurance agency” and not from the club.
10. On 11 October 2021, the player replied to the club that he has not received the claimed salaries
from the club or the “Latvia State social insurance agency” and that the club has to make sure
that he is paid until 15 October 2021.
11. On 22 October 2021, the player terminated the contract with the club due to outstanding
remuneration in the amount of EUR 5,000, i.e. the salaries between June 2021 to October 2021.
12. The player informed the FIFA administration that he remained unemployed up to date.
II. Proceedings before FIFA
13. On 30 November 2021, 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
14. In his claim, the player requested the following monies:
- EUR 5,020 gross as outstanding remuneration (salaries June 2021 until October 2021) plus
interest of 5% as of the due dates (10th day of the month);
- EUR 1,370 as reimbursement for medical costs plus interest of 5% as of the date of the
decision;
- EUR 25,100 as compensation for breach of contract, corresponding to the residual value
plus interest of 5% as of 22 October 2021.
15. In this context, the player held having had just cause to terminate the contract on 22 October
2021, in accordance with art. 14bis RSTP.
16. The player maintained that he suffered a serious injury in a match on 17 May 2021 and
subsequently failed to remit his salaries as of June 2021 (5x EUR 1,000).
17. According to the player, the medical costs for the player in Latvia were covered by the club, but
after he returned to Nigeria, with the consent of the club, no more costs were covered by the
club.
18. In this regard, the player submitted a receipt for the claimed amount for physiotherapy and
screenings, dated 24 November 2021.
Page 4
REF FPSD-4428
19. Moreover, the player held being entitled to compensation for breach of contract in the amount
of the residual value of the contract (24 months; November 2021 until November 2023).
b. Position of the Respondent / Counterclaim
20. In its reply, the club rejected the player’s claim and lodged a counterclaim against the player
requesting payment of EUR 2,028,889 as compensation for breach of contract plus 5% interest
p.a. as from 22 December 2021.
21. The club acknowledged that the contract was suspended during the loan, besides the obligation
to pay the player’s salary, which amounted to EUR 770.42 net.
22. In this respect, it rejected the player’s claim for reimbursement of medical costs, as this was an
obligation of FC Noah Jurmala, as per contract 2.
23. The club argued that in accordance with Latvian Law, the player should have applied to the “social
security agency” which would have paid the player’s salary as of June 2021 if he would have
applied there “within the six months deadline”.
24. Further, the club held that the player did not complain about the non-payment of salaries until
late September 2021 (approx. 4 months).
25. According to the club, the player “failed to follow its device” and apply to the “social security
agency”.
26. Moreover, the club alleges that the player has to proof that he did not receive the salaries from
the Latvian “social security agency”.
27. On account of the above, the club held that the player had no just cause to terminate the contract
on 22 October 2021, since the club did not “unlawfully” withhold the salaries, but with the reason
that the player should have been paid by the Latvian “social security agency”.
28. Further, the club pointed out that it offered to amicably settle the dispute in January 2022, which
was rejected by the player.
29. Since the player terminated the contract without just cause, the club pointed out that it is entitled
to compensation for breach of contract. In this regard, it referred to art. 6.4 of the contract and
held that it was a valid liquidated damages clause, which entitles the club to receive EUR
2,000,000.
30. Moreover, the club adds the non-amortized transfer fee of EUR 28,889 (EUR 60,000 as transfer
fee paid, taking into account the total duration of contract 54 months and the moment of
termination after 26 months).
Page 5
REF FPSD-4428
c. Player’s position to the counterclaim
31. In his reply to the counterclaim, the player rejected the club’s arguments and reiterated his
position.
32. The player pointed out that “FC Noah Jurmala was involved in a match-fixing scandal due to which
its licence was suspended. Consequently, the loan agreement and the employment agreement
with FC Noah Jurmala was prematurely terminated, following which the Player (legally) returned
to the Club by the end of the 2020/2021 season”.
33. Furthermore, the player maintained that it was the club’s obligation to ensure that the player is
paid, either by payment of itself or by the Latvian “social security agency”. It was the club’s
obligation to at least assist and guide the player through the process, which can not be expected
by a foreign player.
34. Moreover, the player held that he informed the club about not having received any salary.
35. Since the club failed to organise such sick leave payment from the state, the player had just cause
to terminate the contract.
36. The player rejected the counterclaim of the club since he had just cause. Further, he pointed out
that art. 6.4 of the contract is not reciprocal and balanced, and shall therefore not been taking
into account.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
37. 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 30 November 2021 and submitted for decision on
23 June 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.
38. 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 (March 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 Latvian club.
Page 6
REF FPSD-4428
39. 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 (March 2022 edition), and considering that the
present claim was lodged on 30 November 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
40. 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
41. 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
42. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties dispute the justice of the early termination of the contract
by the player, based on the alleged non-payment of certain financial obligations by the
Respondent.
43. In this context, the Chamber acknowledged that its task was to determine as to whether the
contract was terminated by the player with or without just cause and to decide on the
consequences thereof.
44. In this context, the Chamber started to analyse the circumstances of the player’s termination on
22 October 2021 due to outstanding salaries, while technically being on loan with a third club.
45. The DRC started to analyse the specific circumstances of the matter at hand and noted that during
a loan to a third club, the employment contract is usually suspended. However, the members of
the Chamber pointed out that in this specific framework, the club kept paying the player’s salaries
and therefore such obligation was not suspended. Furthermore, it remained undisputed that the
player was not paid anymore as of June 2021, after suffering an injury in May 2021.
Page 7
REF FPSD-4428
46. The DRC took note of the club’s argumentation that the player should have applied to the Latvian
“social security agency” in order to receive his sick leave payments. In this regard, the Chamber
would like to emphasize that even if that is the case, the club still has the obligation to assist or
guide such process, especially with a foreign player. Therefore, the club’s argument that it was
not their obligation to pay and that the player’s obligation to organise himself regarding the sick
leave payments, was rejected by the DRC.
47. On account of the above, the Chamber concluded that the salary payments as of June 2021
remained outstanding, without a valid reason.
48. Taking into account the outstanding remuneration at the time of the termination, i.e. five monthly
salaries, and the player’s default notice, the DRC concluded that the player had just cause to
terminate the contract on 22 October 2021.
49. Therefore, the DRC decided to reject the club’s counterclaim.
ii. Consequences
50. 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.
51. The Chamber started to address the outstanding remuneration at the time of termination.
52. In this regard, as to the salary due to the player, and since the contract establishes a gross amount
of EUR 1,004 per month, the Chamber noted that, according to the club, the net amount paid to
the player was EUR 770.42. Such allegation remained uncontested by the player.
53. Therefore, the DRC decided to award the player the amount of EUR 3,852.10, corresponding to
five monthly salaries (5x EUR 770.42; June 2021 until October 2021).
54. As to the reimbursement of medical costs, the Chamber held that it appears that the injury
occurred during the player’s loan to a third club and that the obligation to provide medical care
(and a possible reimbursement) shall be borne by this club and not FK Spartaks). Therefore, the
DRC rejected this part of the claim.
55. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the contract at the moment of the termination, i.e. EUR 3,852.10 (i.e. 5 times
EUR 770.42).
56. 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 due dates until the date of effective payment.
Page 8
REF FPSD-4428
57. Having stated the above, the Chamber turned to the calculation of the amount of 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.
58. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
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. 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.
59. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the club to the player 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 provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
60. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract from the date of
its unilateral termination until its end date. Consequently, the Chamber concluded that the
amount of EUR 18,490.08 (i.e. the 24x EUR 770.42) serves as the basis for the determination of
the amount of compensation for breach of contract.
61. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would have
been enabled to reduce his loss of income. According to the constant practice of the DRC 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.
62. Indeed, it appears that the player did not find new employment and could therefore not mitigate
his damages up to date.
63. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of EUR 18,490.08 to
the player, which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
Page 9
REF FPSD-4428
64. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation at
the rate of 5% p.a. as of the date of claim until the date of effective payment.
iii. Compliance with monetary decisions
65. 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.
66. 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.
67. Therefore, bearing in mind the above, the DRC 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 player, 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.
68. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the present
decision.
69. 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
70. 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.
71. 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.
72. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
Page 10
REF FPSD-4428
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Chikezie Hikezie Miracle Nwaorisa, is partially
accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, FK Spartaks, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the following
amount(s):
- EUR 770.42 as outstanding remuneration plus 5% interest p.a. as from 11 July 2021 until the
date of effective payment;
- EUR 770.42 as outstanding remuneration plus 5% interest p.a. as from 11 August 2021 until
the date of effective payment;
- EUR 770.42 as outstanding remuneration plus 5% interest p.a. as from 11 September 2021
until the date of effective payment;
- EUR 770.42 as outstanding remuneration plus 5% interest p.a. as from 11 October 2021 until
the date of effective payment;
- EUR 770.42 as outstanding remuneration plus 5% interest p.a. as from 11 November 2021
until the date of effective payment;
- EUR 18,490.08 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 30 November 2021 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
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/Counter-Claimant 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.
Page 11
REF FPSD-4428
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.
7. The consequences shall only be enforced at the request of the Claimant/Counter-Respondent in
accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 12
REF FPSD-4428
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 13