Labour Disputes
Texto da decisão
REF FPSD-5784
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Eze
Vincent Okeuhie
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Michele Colucci (Italy), member
CLAIMANT:
Eze Vincent Okeuhie, Nigeria
Represented by LOIZOS HADJIDEMETRIOU & ASSOCIATES LLC
RESPONDENT:
FC Shakhtyor Soligorsk, Belarus
Represented by Darina Nikitina
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I. Facts of the case
1.
On 15 January 2021, the Nigerian player, Eze Vincent Okeuhie (hereinafter: Claimant or
player) and the Belarusian club, FC Shakhtyor Soligorsk (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from 15 January 2021
until 15 January 2022.
2.
On 16 January 2021, the parties amended the contract with a supplementary agreement,
which inter alia extended the duration of the contract until 31 December 2022.
3.
According to the contract and the supplementary agreement, the Respondent undertook
to pay the Claimant the following payments:
- USD 12,500 net as monthly salary, payable until the 14th day of the month;
- USD 200 as accommodation allowance per month;
- USD 50,000 net on 1 April 2021;
- USD 50,000 net on 1 October 2021;
- USD 50,000 net on 1 April 2022;
- USD 50,000 net on 1 October 2022.
4.
Furthermore, the contract and the supplementary agreement established that the player
is entitled to “2 air tickets economy class on the route Minsk-Lagos-Minsk during the year”.
5.
Art. 5.7 of the contract establishes: “Employee explicitly agrees that on Employer’s decision
could be transferred to reserve/backup football team of Employer in order to take part in
football matches of lower sporting level.”
6.
According to the Claimant, as of 13 January 2022 (start of the preparation training for the
new season), he was not allowed to train with his training group (strikers) and as of 23
January 2022, he was completely “blocked from team’s activities, i.e. training sessions, coach
briefings and lectures”.
7.
According to the club, on 21 January 2022, it issued an “order” for the player to join the
second team for the period between 23 January 2022 and 5 February 2022.
8.
On 27 January 2022, the Claimant put the Respondent in default and requested to be
reinstated to the first team training sessions.
9.
On 2 February 2022, after the club had not answered the first request, the Claimant sent
another letter and requested again to be immediately reinstated to the first team training
sessions.
10. According to the player, on 2 February 2022, his agent was told by the club that the player
could go on loan.
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11. On 3 February 2022, the club requested the player to be ready for a meeting on 4 February
2022, which included a visit by the police and requested the player to submit the
“necessary documents for a VISA application in Turkey”.
12. On 4 February 2022, the club posted on its Instagram account a statement with a picture
of the player, which read: “Vincent Eze Okeuhie will no longer play for Shakhtar in Soligorsk.
The Nigerian footballer is currently absent with the team in Gomel training.”
13. On 4 February 2022, the Claimant sent a letter to the Respondent again, requesting
explanations regarding the application for a VISA in Turkey and to be reinstated in the
team immediately. The player pointed out that he would terminate the contract if he was
not reinstated by 5 February 2022.
14. According to the player, after he send the letter, on 4 February 2022, he was invited for a
meeting with two club representatives, where he was told that the new coach does not
want him in the team and that he would never train or play with the first team again. The
club allegedly tried to convince the player to go on loan.
15. On 5 February 2022, the club sent a letter to the player, referring to the meeting the day
before and stating that the parties: “reached an understanding on all issues” and that the
player is “at the main team pre-season preparation camp, which takes place in Gomel,
and he is provided with a training process according to the contract” (note: letter is on
file).
16. On 5 February 2022, the player replied to the club’s letter and rejected that an agreement
was found. He reiterated the content of his previous letter.
17. On 7 February 2022, the club sent another letter to the player’s lawyer stating that the
player “agreed to the proposed way” and was at the moment in a “individual training
program together with a fitness trainer and is gaining physical condition”.
18. On 7 February 2022, the player replied to the club’s letter and again rejected that an
agreement was found, while contesting that it was an “individual training program” but
simply a ban. He reiterated the content of his previous letter and requested the club to
state when the player would be reinstated, if at all.
19. On 8 February 2022, the club replied stating:
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20. On 9 February 2022, the player replied to the club’s letter and pointed out that the club
again failed to give the player a date when he would be reinstated, if at all. Again, he
warned the club he would terminate the contract if by tomorrow he would not be
reinstated.
21. On 11 February 2022, the player terminated the contract with the club due to the
exclusion of 19 days from team trainings.
22. On 12 and 18 February 2022, the club refused to accept the termination of the contract
since the player’s lawyer alleged failed to provide a power of attorney. In those letters,
the club requested the player to return and act in accordance with the contract.
23. On 31 March 2022, the club terminated the contract with the player due to his absence.
24. According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed up to date.
II. Proceedings before FIFA
25. On 16 April 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
26. In his claim, the Claimant requested payment of the following monies:
- USD 4,910.71 as outstanding pro-rata salary for February 2022 plus 5% interest
p.a. as of 11 February 2022;
- USD 1,259.65 as reimbursement for the flight ticket from Nigeria to Belarus in
January 2022 plus 5% interest p.a. as of 11 February 2022;
- USD 1,698.53 as reimbursement for the flight ticket from Belarus to Nigerian on
14 February plus 5% interest p.a. as of 14 February 2022;
- USD 232,589.29 as compensation for breach of contract plus 5% interest p.a. as
of 11 February 2022;
- Additional compensation up to 6 monthly salaries.
27. The player held having had just cause to terminate the contract after having requested to
be reinstated several times and after being completely “frozen out” for 19 days without a
valid reason.
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28. According to the player, he was forced to train alone, with no coach and that he had no
perspective of being reinstated after he was (orally) told that the coach does not want him
in the team.
29. The player argues that the club acted abusive and wanted to force him out of the club,
leaving him with no choice than to terminate the contract.
30. In this context, the player claimed that there was nothing more he could have done.
31. He also rejected the club’s argumentation that an agreement was found in the meeting
of 4 February 2022.
b. Position of the Respondent
32. In its reply to the claim, the club rejected the claim.
33. The club argued that the player had no just cause to terminate the contract since the
player was “ordered” to train with the second team, but decided to train alone instead.
According to the club, the player showed “demonstrative misbehaviour” by not following
the club’s instructions.
34. In this context the club argued that it was “trying to bring the Player back in sporting
behaviour and execution of the contractual obligations in good faith” by paying the player’s
salary, providing accommodation and “sporting practice”. The club also acknowledges that
it never fined the player.
35. The Respondent rejected the player’s allegation that his last training was on 14 January
2022 since he was part of the team for a friendly match on 15 January 2022 and was sent
to the gym during another friendly match on 20 January 2022.
36. Further, the club maintained that due to the player’s “insulting behaviour”, it ordered the
player to train with the second team (cf. above; note: an internal memo was submitted in
this regard). According to the club, the player refused to sign such order, but accepted it.
37. The club further acknowledged receipt of the letter’s sent by the lawyer of the player, but
held that since no power of attorney was enclosed and it could not be sure that he is
representing the player.
38. Therefore, in the opinion of the club, the termination notice was not “correctly” submitted
by the player.
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39. Moreover, the club stated that its intention was not to terminate the contract with the
player, which is why it requested the player to return after his termination).
40. The club argued that it was not its intention to send the player on loan and that this was
the intention of his agent.
41. Furthermore, the club denied having acted in an abusive way as it was in accordance with
the contract to send the player to the second team.
42. Regarding the outstanding remuneration claimed, the club held that it remitted the total
amount of Belarusian Rubles 716,873.15 to the player, which also covers the pro-rata
salary of February 2022.
43. Regarding the flight tickets, the club held that the player failed to submit any
documentation to the club and therefore no reimbursement took place.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
44. 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 16 April 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.
45. 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 an Nigerian player
and a Belarusian club.
46. 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 16 April 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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b. Burden of proof
47. 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
48. 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
49. 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 Claimant.
50. In this context, the Chamber acknowledged that its task was to determine as to whether
the contract was terminated by the Claimant with or without just cause and to decide on
the consequences thereof.
51. The DRC noted that the player terminated the contract on 11 February 2022, after having
requested several times to be reinstated in the team’s training, from which he claimed to
be absent as of 14 January 2022. Moreover, the Chamber took notice that according to
the player the club was no longer interested in his services and he was told that he would
never train or play for the first team again.
52. The members of the Chamber also noted that the club on the other side argued that the
player was sent to the second team, in accordance with the contract, and that he
subsequently terminated the contract without just cause.
53. In this framework, the DRC started to analyse the circumstances of the termination and
established that the argumentation of the club was contradicting and does not seem
plausible. Most importantly, the Chamber wished to emphasize that there is no proof that
the “order” to send the player to the second team was actually sent to the player, who
claimed having not been given any reason for not being able to train with the first team.
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54. Moreover, taking into account the documentation on file, and especially the club’s
uncontested Instagram post dated 4 February 2022, the DRC was convinced that the club
lost interest in the player’s services, even though it maintained that it did not want to
terminate the contract.
55. Further, the DRC pointed out that the club’s argumentation that the player’s lawyer failed
to provide a power of attorney and therefore it did not react to several letters and
subsequently claiming that the termination was not correct.
56. Taking into account the several requests of the player, and since the player was not able
to train with a team for about 3 weeks and due to the fact that he did not appear to have
had any perspective for a change in the nearby future, the DRC decided that the player
had just cause to terminate the contract on 11 February 2022 as an ultima ratio.
ii. Consequences
57. 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.
58. The Chamber observed that the salary of February 2022 was not yet due at the time of
termination and will therefore be awarded as part of the compensation.
59. However, the DRC decided that the player is entitled to a reimbursement of his flight ticket
from January 2022, in accordance with the contract.
60. 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
amount corresponding to his flight ticket, i.e. USD 1,259.65.
61. 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 11 February 2022 until the date
of effective payment.
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62. 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.
63. 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.
64. 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.
65. 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 USD 239,198.53 (i.e. 11x USD 12,500; February 2022 until
December 2022 plus USD 100,000 from the instalments due, plus the flight ticket in the
amount of USD 1,698.53) serves as the basis for the determination of the amount of
compensation for breach of contract.
66. 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.
67. The DRC noted that the player did not find new employment up to date and was therefore
not able to mitigate his damages.
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68. 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 USD 239,198.53 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
69. 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 16 April 2022 until the date of effective payment.
iii. Compliance with monetary decisions
70. 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.
71. 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.
72. 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.
73. 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.
74. 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.
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d. Costs
75. 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.
76. 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.
77. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Eze Vincent Okeuhie, is partially accepted.
2.
The Respondent, FC Shakhtyor Soligorsk, has to pay to the Claimant, the following
amount(s):
- USD 1,259.65 plus 5% interest p.a. as from 11 February 2022 until the date of effective
payment;
- USD 239,198.53 as compensation for breach of contract plus 5% interest p.a. as from 16
April 2022 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.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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