Labour Disputes
Texto da decisão
REF. FPSD-10428
Decision of the
Dispute Resolution Chamber
passed on 2 August 2023
regarding an employment-related dispute concerning
the player Kingsley Ugochukwu Onuegbu
BY:
Khalid Awad Al Thebity (Saudi Arabia)
Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Kingsley Ugochukwu Onuegbu, Germany
RESPONDENT:
Qingdao Hainiu FC, China PR
pg. 2
REF. FPSD-10428
I. Facts of the case
1.
On 15 March 2022, the German player Kingsley Onuegbu (hereinafter: Claimant or player)
and the Chinese club Qingdao Hainiu FC (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: the Contract) valid as from the date of signature until
31 December 2022.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the following remuneration:
-
Total net salary of USD 300,000;
USD 2,000 per goal scored, cumulatively up to USD 50,000;
USD 2,000 per match won;
USD 1,000 per draw;
USD 11,000 for winning the “third phase”;
USD 15,000 for winning the “fourth phase”.
3.
On 1 May 2023, the Claimant put the Respondent in default of payment of USD 96,000 and
granted the latter a deadline of 15 days to remedy the alleged breach.
4.
On 16 May 2023, the parties signed an agreement (hereinafter: the Settlement) by way of
which it was agreed that the debt of USD 96,000 net which had allegedly accumulated over
the course of the Contract should be reduced to USD 86,000 net, and that said amount was
payable within 5 working days of said Settlement being signed.
5.
Furthermore, the parties agreed within said Settlement that, if payment of the due amount
were to be delayed by more than 7 working days, a liquidated penalty of USD 5,000 would
become due towards the Claimant.
6.
Lastly, the Settlement specified that, outside of the figure of USD 86,000 which was due
thereunder, no further rights or obligations from either party would be outstanding.
7.
On 12 June 2023, the Claimant informed the FIFA Administration that the Respondent had
made a payment of USD 86,000 “a few days back”.
II. Proceedings before FIFA
8.
On 2 June 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
pg. 3
REF. FPSD-10428
a. Position of the Claimant
9.
According to the Claimant, the Respondent failed to pay him due amounts under both the
Contract and the Settlement.
10. Initially, the Claimant asserted that the Respondent failed to pay the amount of USD 86,000
which was due under the Contract as a result of achieving certain conditional bonuses. The
player’s claim read as follows:
“After myself and the club reached an agreement to pay me which I agree to reduce the debt to
86,000 dollars, we both signed and its pass the deadline (delay of latest 7 days) and they still
ignored the agreement.”
11. During the proceedings, the Claimant acknowledged having received payment of the
amount of USD 86,000 at an unspecified date, yet subsequently insisted that the
Respondent was obligated to pay him an additional amount of USD 10,000, corresponding
to the figure which was waived by virtue of the Settlement. More specifically, the Claimant
asserted as follows:
“Few days back the club paid an amount of 86,000 dollars to my account which is supposed to
be 96,000 dollars in total so I’m still demanding the sum of 10,000 dollars remaining.”
12. The Claimant further made an allegation of “signature fraud” against the Respondent,
highlighting that “before every season the Chinese Football Federation CFA made it mandatory
that every player registered to the club must sign a paper showing they have received all their
salaries from last year before being able to get the licence for the new season, however I didn’t
sign that contract and my signature must have been forced, so I would like them to present the
paper presented to the federation and who signed on my behalf and I’m demanding a
compensation fee for signature fraud”.
b. Position of the Respondent
13. Despite having been invited to do so, the Respondent failed to provide a position to the
claim.
pg. 4
REF. FPSD-10428
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 2 June 2023
and submitted for decision on 2 August 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.
15. 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 lit. b) of the
Regulations on the Status and Transfer of Players (May 2023 edition), he is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from Germany and a club from China PR.
16. 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 (May 2023 edition), and
considering that the present claim was lodged on 2 June 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
17. 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 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
18. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he 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 considerations he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
pg. 5
REF. FPSD-10428
i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the basis of the present claim is the payment of
certain financial obligations by the Respondent towards the Claimant.
20. In this context, the Single Judge acknowledged that his task was to assess whether, based
on the evidence contained on file, the Respondent had indeed been in default towards the
Claimant, and subsequently whether compensation was payable as a result thereof.
21. The Single Judge wished to firstly recall the submission of the Claimant, which he
considered important for the present proceedings, particularly due to the fact that the
Respondent provided no submission of its own.
22. The Single Judge noted that the Claimant first claimed not having received the amount of
USD 86,000 which was stipulated by the Settlement. Subsequently, and after allegedly
receiving payment of the amount of USD 86,000 – i.e. the amount mutually agreed upon –
the Claimant changed his position to request an additional amount of USD 10,000, which
corresponded to the sum by which the overall debt of the Respondent had been reduced
as a result of the Settlement being signed.
23. Furthermore, the Single Judge recalled that the Claimant had made an allegation of
signature fraud, for which he had requested an additional compensation fee.
24. The Single Judge equally observed that, in support of his arguments, the Claimant had
submitted as evidence copies of the Contract and Settlement, sporting data to corroborate
his achievement of certain conditional bonuses under the Contract, and a copy of a default
notice sent to the Respondent on 1 May 2023.
25. Before evaluating these submissions, the Single Judge wished to once again recall the
wording of art. 13 par. 5 of the Procedural Rules, according to which a party that wishes to
rely on an alleged fact bears the burden of proving its veracity.
26. Having established this, the Single Judge proceeded to evaluate the matter on its merits. In
this respect, it was deemed particularly noteworthy that the Claimant, after acknowledging
that he agreed to reduce his debt from USD 96,000 to USD 86,000 in order to receive
payment of the due amount more quickly, nonetheless amended his request for relief to
include payment of USD 10,000 after receiving payment of USD 86,000 at an unspecified
date.
27. The Single Judge, in this respect, pointed out firstly that the Settlement stipulated that no
amounts of any kind outside of the sum of USD 86,000 were due to the Claimant. By paying
said amount to the Claimant, the Respondent had complied with the terms of the
Settlement.
pg. 6
REF. FPSD-10428
28. Thus, the Claimant was held to have validly waived his entitlement to the remaining sum
of USD 10,000, and, indeed, by altering his initial stance according to which the amount
claimed was only USD 86,000, the claim for the remaining USD 10,000 could be held to
constitute venire contra factum proprium.
29. In any event, therefore, the request for USD 10,000 was rejected by the Single Judge.
30. Subsequently, the Single Judge took note that the Settlement, though this amount was not
requested by the Claimant, contained a penalty clause according to which payment of the
due amount more than seven working days after the stipulated deadline would be met
with an additional payment of USD 5,000 due by the Respondent.
31. In the context of said clause, the Single Judge wished to emphasise that, although the
Claimant alleged that the amount of USD 86,000 had been paid late, no evidence (such as
the relevant proof of payment or a bank extract) had been adduced. The Single Judge
considered that, particularly for a contractual penalty for late payment, the burden of
proving that said payment had been late to the extent of triggering the relevant clause had
been on the Claimant, rather than the Respondent having to disprove that it had failed to
make the payment on time.
32. Thus, the Single Judge also rejected said request by the Claimant, on account of the latter
failing to meet the burden of proving that the contractual penalty provision had been
triggered.
33. Lastly, the Single Judge turned to the allegation of forgery made against the Respondent.
In this respect, the Single Judge once again emphasised that the submission of evidence
was of vital importance in order to be able to build a credible case. It was noted that 1) no
copy of the allegedly forged agreement, or the relevant regulation in accordance with which
such an agreement may have been required was adduced to the file; 2) no details or
argumentation concerning any allegedly waived amounts had been provided by the
Claimant, in accordance with which a potential compensation could be determined; and
lastly (and most importantly) no evidence whatsoever of forgery or undue influence of any
other kind committed by the Respondent had been provided to support the Claimant’s
allegation.
34. In the absence of a concrete request for relief and any corroborating evidence to build the
Claimant’s argument, the Single Judge saw no other choice than to dismiss the request for
compensation on the basis of purported forgery.
35. In conclusion, and keeping in mind that the Claimant acknowledged having received the
amount of USD 86,000 by the Respondent – the only amount demonstrably due by the
latter – the Single Judge decided to reject the Claimant’s petition in its entirety.
pg. 7
REF. FPSD-10428
d. Costs
36. 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.
37. 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.
38. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-10428
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kingsley Ugochukwu Onuegbu, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-10428
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
pg. 10