Labour Disputes
Texto da decisão
REF. FPSD-12950
Decision of the
Dispute Resolution Chamber
passed on 7 May 2024
regarding an employment-related dispute concerning
the player Tengemo Emmanuel
BY:
Angela COLLINS (Australia)
CLAIMANT/COUNTER-RESPONDENT:
Tengemo Emmanuel, Cameroon
Represented by Thomas Joseph Bodiong
RESPONDENT/COUNTER-CLAIMANT:
Rivers United FC, Nigeria
Represented by Amin Yusuf
pg. 2
REF. FPSD-12950
I.
Facts of the case
1.
On 1 August 2023, the player from Cameroon, Tengemo Emmanuel (hereinafter:
Claimant/Counter-Respondent or player) and the club from Nigeria, Rivers United FC
(hereinafter: club or Respondent/Counter-Claimant) concluded an employment contract
(hereinafter: contract) valid as from the commencement of the 2023/2024 season until the
end of the 2024/2025 season.
2.
According to TMS, the 2023/2024 season are 01.07.2023 - 30.06.2024 and the contract is
indicated as valid as from 1 August 2023 until 30 June 2025.
3.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of Nigerian Naira (NGN) 500,000.
4.
On 23 October 2023, the club sent a termination agreement to the player, which the player
did not sign.
5.
On 7 November 2023, the club issued a release letter, which stipulates:
“It is mutually agreed that the registration of the above-named Player be transferred to any club
that is interested in his services.
The Nigeria Football Federation (NFF), Nigeria Premier Football League and any other relevant
football body are thus notified and should act accordingly.”
6.
On 13 November 2023, the player sent a notice to the club, i.e., termination of player
contract, requesting the amount of NGN 12,000,000 as compensation for breach of
contract.
7.
On 26 November 2023, the player sent a further letter to the club, as a reminder, granting
the club a further deadline of 5 days to pay the owed amount.
8.
On 8 December 2023, the club sent a letter to the player, which stipulated the following:
“WITHDRAWAL OF RELEASE LETTER
Compliments from the Management of Rivers United Football Club Port
Harcourt, Nigeria.
We write to withdraw the Release Letter dated 7th November, 2023 which
was erroneously issued to Emmanuel Tengemo. We are apologetic as we
wish for him to resume club training as we equally promise to pay his fare
back to Port Harcourt as soon as we are informed of the cost.
Thank you for your attention on this matter.”
pg. 3
REF. FPSD-12950
9. On 10 December 2023, the player concluded an employment contract with the club from
Cameroon, My Soccer Center FC Bamenda, valid as from 10 December 2023 until 10 May
2024, entitling him to a daily training bonus of CFA 1,000.
II. Proceedings before FIFA
10. On 6 December 2023, 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 Player
11. On 6 December 2023, the player lodged a claim against the club in front of FIFA and
requested that the player pay him the amount of NGN 10,500,000 corresponding to unpaid
salaries and compensation for breach of contract.
12. In his claim, the player argued that the club is in violation of its contractual provisions.
a. Position of the Club
13. In its reply, the club indicated that on 23 October 2023, the parties decided to mutually
terminate the contract.
14. Additionally, the club stated that the player could not invoke the provisions of art.14 of the
Regulations on the basis that it did not owe the player any outstanding monthly salaries as
it continued to pay the salaries of the player until December 2023, in support hereof the
club submitted payment vouchers.
15. The club mentioned that when the termination notice was sent, the player was still in the
training camp of the club and the parties were still negotiating on the signing of the mutual
termination agreement.
16. The club indicated that the player’s behaviour was inconsistent as it received a further
notice from the player on 26 November regarding outstanding salaries after he allegedly
terminated the contract.
17. In conclusion, the club requested the following relief:
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“That the Respondent fulfilled its entire obligation to the latter as stipulated in the contract and
paid the Claimant to date including the month of December 2023 and on that basis the Claimant
claim be dismissed.
That the Claimant be made to refund the sum of N940,000.00 being the monthly salaries for the
month salaries for the month of November and December 2023 less tax because Claimant had
already left the club and did not render any services during this periods
pg. 4
REF. FPSD-12950
-
-
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That the purported mutual termination of agreement letter dated 23 October 2023 does not
constitute a termination letter as the agreement was not signed and sealed by both parties, the
FIFA rules and regulations is clear on mutual termination i.e., “A mutual termination or early
termination of an employment contract can only be considered valid since it requires both
parties to negotiate the terms on which they are willing to accept a rescission of the contract.
His purported termination letter be considered inadmissible.
That the Claimant be held liable for breach of its contractual obligation to the Respondent and
the Claimant be sanctioned for breach of contract.
That the Claimant deceived the Respondent purportedly agreeing to the mutual termination but
when he was supposed to sign left his duties without informing the Respondent hence, he should
be sanctioned.
That the Claimant on all was not able to discharge the burden of proof, against the Respondent,
that the Respondent unilaterally terminated the employment contract this case be dismissed,
and the Claimant sanctioned for breach of contract. Thus, the claim of the Claimant fails the
Respondent be indemnified of monies paid while he was unavailable to perform his duties as
well damages for breach of contract in the tune of N 12,000,000.00 (twelve million naira only)
in Nigeria currency.”
c. Player’s reply to the counterclaim
18. The player, inter alia, denied that the parties concluded a mutual termination agreement,
he indicated the said agreement was imposed by the club and he refused to sign it.
pg. 5
REF. FPSD-12950
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 6 December 2023
and submitted for decision on 7 May 2024. 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.
2.
Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (February 2024 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Cameroon and a club from
Nigeria.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition)
and considering that the present claim was lodged on 6 December 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
4.
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 she 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
5.
Her 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
considerations she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
pg. 6
REF. FPSD-12950
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and noted that the case at hand pertains to a claim for compensation for breach of
contract of the player against the club and a counterclaim of the club against the player.
7.
The Single Judge noted that the club argued that the parties mutually agreed to terminate
the contract, moreover that it fully complied with its contractual financial obligations.
8.
In this context, the Single Judge acknowledged that her task was to determine the validity
of the mutual termination agreement.
9.
As a starting point, the Single Judge deemed it best to recall the circumstances of the matter
at hand, and therefore took the following into consideration:
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On 7 November 2023, the club issued a mutual termination agreement and release letter.
On 13 November 2023, the player sent a “termination letter” to the club requesting
compensation.
On 26 November 2023, the player sent a reminder regarding compensation to the club
On 8 December 2023, withdrew its release letter issued and requested the player to resume
training with the club.
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10. In consideration of the above events, the Single remarked that the club acknowledged that
it sent the release letter to the player on 7 November 2023, however as to the mutual
termination, in the opinion of the Single Judge such an agreement was never finalised
between the parties, neither are there any evidence on file of the acceptance of such terms
on account of the player, therefore the Single Judge rejected the argument of the club that
the contract was terminated by mutual agreement.
11. In reference to art. 13 par. 5 of the Procedural Rules and the principle of the burden of
proof, the Single Judge was of the opinion that the Respondent did not meet his burden of
proof in support of its counterclaim and arguments.
12. Taking the circumstances in consideration, the Single Judge therefore came to the
conclusion that the player understood that the club had indeed terminated the contract,
additionally the Single Judge remarked that on account of the behaviour of the club, it
seems that its intention was anyway to terminate the employment relationship specifically
in reference to their argument of “mutual termination” of the employment relationship with
the player.
13. On account of all the above, the Single Judge concluded that the club unilaterally
terminated the contract without just cause on 7 November 2023.
pg. 7
REF. FPSD-12950
14. Accordingly, the Single Judge deemed that the withdrawal of the release letter, one month
after termination of the contract, shall not be taken into account in the assessment of this
matter.
15. Consequently, the Single Judge concluded that the counterclaim of the club is entirely
rejected.
ii. Consequences
16. Having stated the above, the Single Judge 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 Single
Judge 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.
17. In application of the relevant provision, the Single Judge held that she 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
18. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
19. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge
concluded that the amount of NGN 10,000,000 (i.e., November 2023 until June 2025 at NGN
500,000 x 20 months) serves as the basis for the determination of the amount of
compensation for breach of contract.
20. In continuation, the Single Judge 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
pg. 8
REF. FPSD-12950
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.
21. Indeed, the player found employment with the club from Cameroon, My Soccer Center FC
Bamenda, valid as from 10 December 2023 until 10 May 2024, entitling him to a daily
training bonus of CFA 1,000. Therefore, the Single Judge concluded that the player
mitigated his damages with an approximate amount of XAF 175,000 [daily bonus of XAF
1,000 over a period of 5 months - 10 December 2023 until 10 May 2024 – total days for the
period - 174] (approximately NGN 325,944)
22. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Single Judge confirmed that the contract
termination did not occur due to the said reason.
23. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the amount
of NGN 9,674,056 (NGN 10,000,000 less NGN 325,944), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
iii. Compliance with monetary decisions
24. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with her 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.
25. In this regard, the Single Judge 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.
26. Therefore, bearing in mind the above, the Single Judge 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.
pg. 9
REF. FPSD-12950
27. 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.
28. The Single Judge 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
29. 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, coach, football agent,
or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be
imposed on the parties.
30. 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.
31. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-12950
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Tengemo Emmanuel, is partially
accepted.
2.
The claim of the Respondent/Counter-Claimant, Rivers United FC, is rejected
3.
The Respondent/Counter-Claimant, Rivers United FC, must pay to the Claimant/CounterRespondent the following amount(s):
- NGN 9,674,056 as compensation for breach of contract without just cause
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-12950
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. 12