Labour Disputes
Texto da decisão
REF. FPSD-10254
Decision of the
Dispute Resolution Chamber
passed on 7 July 2023
regarding an employment-related dispute concerning the player Aaron
Olenare Samuel
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), Member
Khadija TIMERA (Senegal), Member
CLAIMANT:
Aaron Olenare Samuel, Nigeria
Represented by Nir Inbar
RESPONDENT:
Erzurumspor FK, Türkiye
pg. 2
REF. FPSD-10254
I. Facts of the case
1.
On an unspecified date, the Nigerian player Aaron Olenare Samuel (hereinafter: the player
or the Claimant) and the Turkish club, Erzurumspor FK (hereinafter: the club or the
Respondent) concluded an employment contract valid until 31 May 2023 (hereinafter: the
Contract).
2.
According to clause 3 of the Contract, the club undertook to pay the player the following
amounts:
For the season 2021/2022: total of EUR 420,000 net, as follows:
•
EUR 60,000 on the date of signature; and
•
EUR 360,000 as salary, payable in 10 monthly instalments of EUR 36,000
each as from 31 August 2021 until 31 May 2022. No payment would be due
in June and July 2022.
For the season 2022/2023 (if the club competed in the Super League): total of EUR
550,000 net, as follows:
•
EUR 50,000 on 15 August 2022; and
•
EUR 500,000 as salary, payable in 10 monthly instalments of EUR 50,000
each as from 31 August 2022 until 31 May 2023.
For the season 2022/2023 (if the club competed in the First League): total of EUR
420,000 net, as follows:
•
EUR 60,000 on 15 August 2022; and
•
EUR 360,000 as salary, payable in 10 monthly instalments of EUR 36,000
each as from 31 August 2022 until 31 May 2023.
3.
On 20 October 2021, the player put the club in default and requested payment of EUR
108,000 as his salaries from August until October 2021 (i.e., EUR 36,000 each) within 15
days.
4.
On 3 April 2022, the player put the club in default for the second time and requested
payment of EUR 90,000 within 15 days, corresponding to his salaries of January (50%),
February, and March 2023.
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REF. FPSD-10254
5.
On 17 October 2022, the player put the club in default for the third time and requested
payment of EUR 150,000 within 15 days, corresponding to his salaries of August,
September, and October 2022 (i.e., EUR 50,000 each).
6.
On 3 April 2023, the following events took place:
•
the player put the club in default for the fourth time and requested payment of
EUR 108,000 within 5 days, corresponding to his salaries of February, March and
April 2023 (i.e., EUR 36,000 each);
•
the club replied to his notice, (i) stated that the salary of April 2023 was not yet
due; and (ii) informed that the salaries of February and March 2023 would be paid
on 8 April 2023. Alternatively, it requested a deadline extension due to financial
consequences of the earthquake in Türkiye; and
•
the player granted additional 10 days for the payment of February and March
2023 salaries, as well as requested the April 2023 salary to be paid by no later
than 30 April 2023.
7.
On 16 April 2023, the player acknowledged that an amount of EUR 36,000 was still
outstanding following his previous letter of 3 April 2023. Consequently, he requested the
club to cure the breach within 48 hours under penalty of termination.
8.
On 17 April 2023, the club replied to the player and informed that it could not pay the salary
of March 2023 due to the financial difficulties.
9.
On 18 April 2023, the player notified the club of the termination of the Contract due to
overdue payables.
10. The player informed that he remained unemployed following the termination of the
Contract.
II. Proceedings before FIFA
11. On 17 May 2023, the player filed the claim at hand before FIFA.
12. In his claim, the player argued that the club was systematically late for the payment of his
salaries giving cause to the termination. Furthermore, he pointed out that he acted in good
faith and granted grace periods, to no avail.
13. Consequently, the player requested to be awarded the following amounts:
•
EUR 36,000 as outstanding remuneration;
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REF. FPSD-10254
•
EUR 72,000 as compensation i.e., the residual value of the Contract;
•
EUR 108,000 as additional compensation due to egregious circumstances; and
•
5% interest p.a. as from 19 April 2023 until the date of effective payment.
14. On 16 June 2023, the club filed its reply to the claim of the player.
15. In doing so, the club argued that it was unable to fulfil its financial obligations (i.e., the salary
of March 2023) due to earthquake in Türkiye on 6 February 2023, and its economic
consequences that amounted to a force majeure situation. Therefore, the club argued that
the player terminated the Contract without just cause, hence no amount shall be awarded.
16. Alternatively, the club maintained that the quantum of compensation claimed by the player
was unjustified as it supersedes the residual value of the Contract. As such, it alleged that
the claim should be limited – in any scenario – to EUR 108,000 (i.e., EUR 36,000 as
outstanding remuneration and EUR 72,000 as compensation).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 17 May 2023 and submitted
for decision on 7 July 2023. 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.
18. 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 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (May 2023 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.
19. 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 17 May 2023, the March 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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REF. FPSD-10254
b. Burden of proof
20. 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
21. 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
22. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for breach of contract whereby
the player terminated the Contract on 19 April 2023, claiming to have just cause due to
overdue payables. In contrast, the DRC was also observant that the club referred to the
earthquake in Türkiye and the economic consequences that followed in justification of its
default (force majeure situation).
23. Against this background, the Chamber took due consideration that it remained undisputed
between the parties that, at the time of the termination: (i) the player’s salary of March
2023 was still outstanding; and (ii) the player had already put the club in default in multiple
occasions, as well as granted it additional deadlines (longer than 15 days) to remedy its
breaches.
24. In parallel, the DRC found it decisive that the club failed to provide any documentary
evidence regarding the impossibility to perform the payments to players, which – in the
Chamber’s view – could not be simply presumed due to the occurrence of the earthquake
in Türkiye. Likewise, the DRC also highlighted that financial difficulties per se are not a valid
reason to justify a club’s default towards a player.
25. The DRC felt furthermore comforted with the abovementioned conclusion by considering
that the club was systematically late in its financial obligations a long time before the
earthquake took place.
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REF. FPSD-10254
26. On this note, the Chamber was firm to determine that the club could not meet its burden
of proof to demonstrate that it complied with its contractual duties and/or that it was
legally authorized not to do so (cf. art. 13, par. 5 of the Procedural Rules). Thus, as per its
solid jurisprudence, the DRC decided that the persistent and substantial non-compliance
of the contractual obligations by the club in casu could justify the unilateral termination of
the contract as well as it could hold it liable for breach of contract.
27. Based on the factual and contractual situation, the Chamber decided that the player had
just cause to terminate the Contract (cf. art. 14 of the Regulations), and the club should be
then liable to the consequences that follow.
ii. Consequences
28. 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.
29. Firstly, the Chamber observed that the outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, is equivalent to the
player’s salaries of March and April 2023 (i.e., EUR 36,000 net each).
30. Consequently, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the total of EUR 72,000 net.
31. In addition, the Chamber recalled that per its jurisprudence the player would in principle
be entitled to interest of 5% p.a. on the abovementioned amounts as from each respective
due date until the date of effective payment. Nevertheless, the DRC noted that the player
expressly requested interest to apply as from the date of termination of the Contract (i.e.,
19 April 2023), what the DRC then decided to follow in line with the principle of ne ultra
petita.
32. 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.
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REF. FPSD-10254
33. 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.
34. 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.
35. 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 36,000 (i.e., the salary of May 2023) serves as the basis
for the determination of the amount of compensation for breach of contract.
36. 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.
37. Indeed, the player informed that he remained unemployed following the termination of
the Contract. Therefore, he was not able to mitigate his damages.
38. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations and stressed
that, due to the lack of mitigation by the player, no additional compensation should be
awarded.
39. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 36,000
net to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
40. 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 19 April 2023 until the date of effective payment.
pg. 8
REF. FPSD-10254
iii. Compliance with monetary decisions
41. 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.
42. 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.
43. 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
44. The club 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.
45. 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
46. 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.
47. 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.
48. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-10254
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aaron Olenare Samuel, is partially accepted.
2.
The Respondent, Erzurumspor FK, must pay to the Claimant the following amount(s):
- EUR 72,000 net as outstanding remuneration plus 5% interest p.a. as from 19 April 2023
until the date of effective payment; and
- EUR 36,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 19 April 2023 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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REF. FPSD-10254
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 11