Labour Disputes
Texto da decisão
REF FPSD-5954
Decision of the
Dispute Resolution Chamber
passed on 06 July 2022
regarding an employment-related dispute concerning the player Ndubuisi
Emmanuel Okoye
BY:
Jorge Gutierrez, Costa Rica
CLAIMANT:
Ndubuisi Emmanuel Okoye, Nigeria
Represented by Loizos Hadjidmetriou
RESPONDENT:
Sirens FC, Malta
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REF FPSD-5954
I. Facts of the case
1.
On 10 August 2019, the Nigerian futsal player, Mr Ndubuisi Emmanuel Okoye (hereinafter:
the player or the Claimant), and the Maltese Futsal club, Sirens FC (hereinafter: the club or
the Respondent), concluded an employment contract valid as from 1 August 2019 until 30
April 2020 (hereinafter: the employment contract).
2.
In accordance with clause 2.1 of the employment contract, the club undertook to pay the
player a monthly remuneration of EUR 2,000 net.
3.
Furthermore, clause 2.5 of the employment contract read as follows: “Bonuses will be
awarded as following: if the club wins the Premier League a bonus of ten thousand euro (€
10,000), if the club wins the Trophy Knock out five thousand euro (€ 5,000) awarded or if the
club final classification qualifies for participation in Europa League five thousand euro (€
5,000) awarded”.
4.
On 14 March 2020, the Malta Football Association (MFA) announced that all the football
and futsal matches would be suspended due to the COVID-19 pandemic outbreak. Said
suspension was subsequently extended on 17 and 30 March 2020.
5.
On 19 March 2020, the parties entered into a termination agreement with the following
content:
“No further obligations declaration between the two parties
I Ndubuisi Emmanuel Okoye (passport number AO5885619) Declare that i have been paid in
full to date by Sires FC.
By signing this document both parties agree that are no other further obligations, of any kind,
between each other and end of contract”.
6.
On 18 May 2020, the MFA issued an official statement announcing that its Executive
Committee had decided to terminate the 2019/2020 BOV Premier League and FA Trophy
competitions due to the COVID-19 impacts. It also informed that the sporting outcomes
would be discussed and notified by the Council.
7.
On 25 May 2020, the MFA announced inter alia that “the Maltese teams who will be
participating in the 2020-21 UEFA Club Competitions are Floriana FC (UEFA Champions
League), Valleta FC, Hibernius FC and Sirens FC (UEFA Europa League), Birkarkara FC (UEFA
Women’s Champions League) and Luxol Futsal (UEFA Futsal Champions League)”.
8.
On 19 June 2020, the parties signed an “agreement in respect of March 2020 wages” and an
“agreement in respect of March 2020 wages”. Accordingly, they established that the amount
of EUR 564.88 would be paid for the month of March 2020, and EUR 731.02 for the month
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of April 2020. Moreover, the last paragraphs of the documents read as follows: “the
amount being paid is in full and final settlement for the month of [March / April] 2020. However
[the club] is committing itself to continue paying the COVID-19 wage supplement being paid by
the Maltese government up to the month of June 2020”.
9.
On 29 July 2020, the player sent the club’s president an email requesting EUR 5,000 to be
wired to his wife’s bank account.
10. On 5 May 2021, the player (via his legal representative) sent the club a default notice by
means of which he claimed payment of the same EUR 5,000, corresponding to the bonus
for the qualification to the UEFA Europa League (cf. clause 2.5 of the employment
contract). The player granted the club a 10 days’ deadline to cure the breach.
11. On 12 May 2021, the club replied to the player’s notice and opposed his allegations as to
the sporting bonus. In this opportunity, the club referred to the termination agreement
and maintained that the parties confirmed not having any further obligations against
each other.
II. Proceedings before FIFA
12. On 6 May 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
13. In accordance with the player, the club breached its financial duties by failing to pay him
the bonus for the qualification to the UEFA Europa League (cf. clause 2.5 of the
employment contract). In this respect, the player clarified that the termination agreement
“was nothing more from a confirmation that the Claimant’s payables until the signing date
were duly settled and he was not to have any claim for those payables in the future”.
14. In addition, the player filed a copy of messages allegedly exchanged with the club in the
electronic application WhatsApp and argued that the latter was fully aware of the
payment obligation. As such, he requested to be awarded EUR 5,000 net plus 5% interest
p.a. as from 25 May 2020 (i.e. date of the MFA’s official announcement) until the date of
effective payment.
b. Position of the club
15. On 27 May 2022, the club filed its reply to the player’s claim. Accordingly, it highlighted
the content of the termination agreement and recalled the general legal principle of pacta
sunt servanda. In this respect, the club stressed that no further obligations were pending
between the parties, hence that the player’s claim “is totally unjustified and unfounded”.
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16. Based on the above, the club argued that the claim should be entirely rejected.
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 respect, he took note that the present matter was presented to FIFA on 6 May 2022
and submitted for decision on 6 July 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.
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, par. 1, 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 Maltese 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 (July 2022 edition), and
considering that the present claim was lodged on 6 May 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
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considerations he will refer only to the facts, arguments, and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
22. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that, on one hand, the player claims to be entitled to a
sporting bonus of EUR 5,000 as per clause 2.5 the employment contract. The club, on the
other hand, refers to the termination agreement and stresses that there is no outstanding
remuneration.
23. In this context, the Single Judge turned his attention to the documentation on file and
specifically to the content to the termination agreement dated 19 March 2020. In doing
so, he observed that – as opposed to the argumentation of the player – it clearly
constituted a general discharge of obligations in connection with the employment
contract. In particular, the Single Judge considered that by signing such document: (i) the
player acknowledged receipt of all his entitlements until that date; and (ii) the parties
expressly released each other from any further obligations.
24. In the Single Judge’s view, proof of the abovementioned appeared in the fact that the
parties entered into two different agreements on 19 June 2020 in order to address the
additional payments for the months of March and April 2020 – confirming that the
employment contract was already terminated and was no longer valid and binding to the
parties. Thus, the Single Judge was firm to determine that in case the player and the club
intended to agree upon the payment of any potential bonus, they should have done so in
writing.
25. In addition to the above, the Single Judge also wished to underline that the player put the
club in default for the first time in May 2021 i.e. one year after the relevant payment being
triggered. Nonetheless, after having his request rejected on the basis of the termination
agreement, the player waited more than one year to seek relief before FIFA – inducing the
legitimate expectation of acceptance of the club’s position (venire contra factum proprium).
26. In view of the foregoing, the Single Judge concluded that the player could not establish to
a comfortable satisfaction degree that he should be entitled to the outstanding
remuneration sought. For the sake of completeness, the Single Judge found it worth it to
mention that the jurisprudence of the Football Tribunal regarding waivers should not be
applicable in the case at hand insofar as the player’s claim refers to (future) contingent
payments and not to remuneration for work already performed.
27. Based on all the abovementioned considerations, the Single Judge decided that the
player’s claim should be rejected.
28. By way of conclusion, 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,
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coach, football agent, or match agent”. Accordingly, he decided that no procedural costs
were to be imposed on the parties.
29. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ndubuisi Emmanuel Okoye, is rejected.
2. 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
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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