Labour Disputes
Texto da decisão
REF FPSD-8270
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player Julius Tarigbolo Owoeri
BY:
Frans DE WEGER (The Netherlands) , Chairperson
Jorge GUTIERREZ (Costa Rica), member
Stefano SARTORI (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Julius Tarigbolo Owoeri, Nigeria
Represented by Mr J. Rebelo da Silva
RESPONDENT / COUNTER-CLAIMANT:
Etincelles Football Club, Rwanda
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I. Facts of the case
1. On 15 October 2020, the player Julius Tarigbolo Owoeri and Etincelles Football Club
concluded an employment contract valid as from “the year the championship begins” until
30 June 2022.
2. Accordingly, the player was entitled to RWF (Rwandan Franc) 150,000 per month “which
can be reduced or increased depending on the production he will show in his work”.
3. Following art. 3 of the contract, the player was entitled to a recruitment fee in the amount
of RWF 1,500,000.
4. In this respect, and following the information contained in the Transfer Matching System
(TMS) (Red. 331800), on 22 October 2020, Etincelles entered a transfer instruction to
engage the player from CA Peñarol.
5. On 23 October 2020, the Uruguayan Football Association (“AUF") cancelled the transfer
instruction since the player was not registered in Uruguay.
6. On 23 October 2020, the player was arrested for alleged “forgery, falsification and use of
forger documents” and “fraud” (note: Report from the Rwanda Correctional Service on
File).
7. On 15 November 2020, the club sent a termination letter with the following contents:
“Based on a letter we have received from FIFA (….) based also on the report of the head coach
of ETINCELLES FC of 12th November 2020, we would like to inform you that we have terminated
the contract and we ask you to reimburse the ETINCELLES FC team for the recruitment
amounting to one million five hundred thousand (1.500.000 frs)”.
8. On 16 November 2020, the club sent a letter to FIFA indicating the following
“After finding out that he has never signed a contract [with] Peñarol or being recognized as its
player
Furthermore, according [to] the head Coach of Etincelles, after doing a deep research has find
out that the videos presented and the CV are not his, this took us to the termination of his
contract
Accordingly, we do not want him anymore (…)”
9. On 24 November 2020, FIFA sent a letter to Étincelles requesting said club to provide the
following information, while indicating that failure to do so may lead to sanctions by the
FIFA Disciplinary Committee:
“1) A detailed statement explaining how your club got this Proof of Last Contract End Date
(“POLCED”),
clarifying, in particular
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a. Full details of where, when and how you obtained the POLCED;
b. Full details of what steps were taken by your club to verify the validity of the POLCED.”
10. On 14 December 2020, the club replied to FIFA as follows:
“Sir, we signed the player Julius TARIGBOLO Owoeri on 15 October 2020, giving us credentials
using (Whatsapp) to put him in TMS on 22 October 2020, in order to prevent COVID 19 epidemic
in RWANDA we had been instructed to use soft copies that was not easy to know that the
documents are forgeries and we are sorry for the inconvenience.”
11. On 15 December 2020, the player was put in provisional detention.
12. On 27 October 2022, the player was released (“acquitted with immediate release”).
13. The player informed FIFA that he remained unemployed.
II. Proceedings before FIFA
1. On 18 November 2022, the player lodged a claim before FIFA for breach of contract
without just cause and requested the payment of compensation in the amount of RWF
3,075,000, plus interest as from 22 November 2020.
2. As to the admissibility of the claim, the player considered that all procedural actions were
suspended between 23 November 2020 until 27 October 2022, i.e. during the time of his
provisional detention.
3. In its reply, the club confirmed that it terminated the contract due to the opening of an
investigation concerning the misuse of the TMS.
4. The club requested to be paid with the residual value of the contract (RWF 3,000,000 for
20 months, from November 2020 until June 2022), as well as the reimbursement of RWF
1,500,000 as sign-on fee, as well as the imposition of “the appropriate sporting sanctions”.
5. The Respondent explained that it discovered that the player was in fact impersonating
another Nigerian player named Stephan Worgu, and that it therefore misled when signing
the contract.
6. The club considered that in this particular case, the termination of the contract was
adopted as a last resort given that the act of impersonating another player during contract
negotiations is a fraudulent act, and in itself, a serious breach of trust.
7. In his replica, the Claimant denied the position of the Claimant.
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8. The Claimant insisted that he previously played for Peñarol and denied that he wrote any
“apology letter”.
9. The player argued that he is not responsible for the documents uploaded into TMS.
10. The player stated that he knows that “on 15 November 2020 club decided to terminate the
contract when FIFA still hasn´t pronounced about the alleged false documents”.
11. The Claimant explained that he never had the opportunity to defend himself. He
considered that the decision of the club to dismiss him violated his most elementary rights
to defend himself.
12. Under any circumstance, the player considered that the reason given by the club (i.e. not
having signed a previous contract with Peñarol) is not a valid reason to terminate the
contract.
13. In addition, the player underlined that the Rwandan Court decided that he was not guilty
of the charges that were pressed against him.
14. Despite being invited to do so, the Respondent failed to provide his duplica.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 18 November 2022 and
submitted for decision on 23 February 2023. Taking into account the wording of art. 34 of
the October 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.
2.
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 (October 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 Rwandan club.
3.
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 (October 2022 edition),
and considering that the present claim was lodged on 18 November 2022, the October
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Admissibility
4.
At this point, the Chamber referred to art. 23 par. 3 of the Regulations, which stipulates
that the decision-making bodies of FIFA shall not hear any dispute if more than two years
have elapsed since the facts leading to the dispute arose. The application of this time limit
shall be examined ex officio in each individual case.
5.
In this context, the Chamber recalled that the present claim was lodged in front of FIFA
on 18 November 2022, whereas the matter fundamentally relates to the unilateral
termination of the contract by the club on 15 November 2020, i.e. more than two years.
6.
However, the Chamber also acknowledged the specific circumstances occurred in the
matter at hand, insofar the player appears to have been in jail from 23 October 2020 until
27 October 2022. According to the player, this circumstance prevented him from
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defending himself, and therefore he considered that the prescription time limits shall be
interrupted for said period.
7.
Given the above, the Chamber recalled once again the contents of art. 23 par. 3 of the
Regulations, and noted that, fundamentally, they appear to be silent as to providing any
specific reason for the suspension of the statute of limitations. Yet, the Chamber also
observed that said provision establishes that the application of the time limit “shall be
examined ex officio in each individual case”.
8.
As a result, the Chamber understood that art. 23 par. 3 of the Regulations provides an
extended capacity to the Football Tribunal to analyse the scope of temporary application
of the statute of limitations. Indeed, the Chamber observed that art. 23 par. 3 of the
Regulations does not prevent the Football Tribunal from deciding upon the interruption
of the statute of limitations.
9.
However, this being the case, the Chamber concurred that the interruption of the statute
of limitations could only be considered in the light of highly specific circumstances.
10. The Chamber observed that the matter at stake concerns a very exceptional situation that
may have indeed prevented the player from acting before the Football Tribunal, as he was
arrested and subsequently put in provisional detention for almost two years, i.e. from 23
October 2020 until 27 October 2022. In addition, the Chamber also noted that, despite
this long period of detention, the player was later acquitted. As a result, the Chamber
considered that it appears to be dubious whether the player could effectively exercise his
rights before the Football Tribunal during the period of his detention.
11. The Chamber referred in this regard to the principle of in dubio pro actione, and
unanimously agreed that, given the absolutely exceptional circumstances surrounding
the matter at stake, that the statute of limitations during the period of detention of the
player, from 23 October 2020 until 27 October 2022, had to be considered as interrupted.
12. Therefore, considering the interruption of said period during almost two years, while
underlining again that the claim of the player was lodged on 18 November 2022 and the
event giving rise to the dispute occurred on 15 November 2020, the Chamber established
that the claim of the player had to be considered as admissible in accordance with art. 23
par. 3 of the Regulations, with due consideration to the highly extraordinary
circumstances related to the player’s detention. The Chamber wished to emphasize that
said interruption of the prescription period had to be understood as being granted on an
exceptional basis, given the specificities of the present matter, as set out above.
c. Burden of proof
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13. 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).
d. Merits of the dispute
14. 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
15. The foregoing having been established; the Chamber moved to the substance of the
matter.
16. In particular, the Chamber first noted that, on 15 October 2020, the parties concluded an
employment contract valid until 30 June 2022. Thereafter, the Chamber observed that the
player was arrested on 23 October 2020 and that, on 15 November 2020, the club
unilaterally terminated the contract based on said circumstances.
17. In view of the above, the Chamber understood that the matter at stake fundamentally
relates to establishing whether the club had a just cause to unilaterally terminate the
contract on 15 November 2020, and to determine the circumstances thereof.
18. The Chamber was equally eager to emphasise that only a breach or misconduct which is
of a certain severity would justify the termination of a contract without prior warning. In
other words, only when there are objective criteria which do not reasonably permit to
expect a continuation of the employment relationship between the parties, a contract
may be terminated prematurely. Hence, if there are more lenient measures which can be
taken in order for an employer to assure the employee’s fulfilment of his contractual
duties, such measures must be taken before terminating an employment contract. A
premature termination of an employment contract can only be used as ultima ratio.
19. In this regard, the Chamber wished to emphasize that it is not competent to examine the
alleged criminal elements of the matter at stake, and therefore it is not in a position to
evaluate the arrest and detention of the player. Indeed, the Chamber emphasized that its
competence relates to employment-related disputes between professional football
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players and clubs. However, from a purely contractual perspective and also taking into
account the employment obligations of any football player, the majority of the Chamber
understood that, de facto, the player’s detention for almost two years rendered
impossible to pursue the employment relationship as agreed between the parties, since
the player would have been unable to effectively exercise his profession during the
detention period.
20. Consequently, the majority of the Chamber understood that the club had a just cause to
unilaterally terminate the contract on 15 November 2020 since, ultimately, the
continuation and execution of the employment relationship became impossible following
the player’s detention.
21. The majority of the Chamber considered that the claim of the player shall therefore be
rejected.
22. However, and also taking into account that on 27 October 2022 the player was released
two years later without charges, which was confirmed by the Rwandan Court on 24
October 2022, the Chamber also established that he cannot be held liable for his arrest.
23. As a result, the Chamber unanimously established that no compensation can be granted
to the club for the termination of the contract. Furthermore, the Chamber decided that,
under the specific circumstances of the case, also no reimbursement of the sign-on fee
will be granted. Therefore, also the club’s counterclaim must be rejected, recalling that
the player could not be held responsible for his detention.
24. Consequently, the Chamber concluded that the counterclaim of the club had to be
rejected.
a. Costs
25. 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.
26. 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.
27. 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 / Counter-Respondent, Julius Tarigbolo Owoeri, is admissible.
2.
The Claim of the Claimant / Counter-Respondent is rejected.
3.
The counterclaim of Etincelles Football Club is rejected.
4.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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