Labour Disputes
Texto da decisão
REF FPSD-7520
Decision of the
Dispute Resolution Chamber
passed on 13 January 2023
regarding an employment-related dispute concerning the player Omar Tofic
BY:
Stefano Sartori, Italy
CLAIMANT:
Omar Tofic, Ghana
Represented by PFAG
RESPONDENT:
Wikki Tourists FC, Nigeria
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REF FPSD-7520
I. Facts of the case
1.
On 1 September 2020, the Ghanaian player Omar Tofic (hereinafter: the player or the
Claimant) and the Nigerian club Wikki Tourists FC (hereinafter: the club or the Respondent)
concluded an employment contract valid for one season.
2.
Following a dispute between the parties, on 24 March 2021, the FIFA Dispute Resolution
Chamber rendered a decision (hereinafter: the Decision) whereby the Respondent was
ordered inter alia to pay the following amounts to the Claimant:
a. NGN 100,000 as outstanding remuneration plus 5% interest p.a. as from 1
October 2020 until the date of effective payment;
b. NGN 450,000 as outstanding remuneration plus 5% interest p.a. as from 1
November 2020 until the date of effective payment; and
c. NGN 4,500,000 as compensation for breach of contract without just cause plus
5% interest p.a. as from 19 November 2020 until the date of effective payment.
3.
On 22 December 2021, the parties concluded a settlement agreement (hereinafter: the
agreement).
4.
According to the agreement, the Respondent undertook to pay the Claimant USD 5,310
by 1 April 2022, under penalty of a fine of USD 1,700 and interest of 10% p.a.
5.
The agreement further reads that:
a. USD 5,310 is equivalent to NGN 2,109,310;
b. The Respondent had already paid USD 5,200 plus NGN 1,050,000 to the player.
6.
The agreement has no indication to which bank account the amounts must be paid.
7.
On 25 May 2022, the Respondent sent a letter to the Claimant stating as follows:
“Following the mutual agreement between both parties, You may recall that, the
Management of Wikki Tourists F.C have make the payment through Bank as earlier said,
First payment on 9th December, 2021, is $5,282 equivalent to Nigeria currency, Three
Million and Twenty Eight Thousand Naira (N3,028,000.00) only, also on 21st December,
2021 the sum One Million Fifty Thousand Naira (N 1,050,000.00) only, Nigeria currency was
credited to the player account and acknowledgement received.
In view of the above therefore, we appeal for period extension to when the financial situation
of the club is back on its feet.
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Sequel to the above the club is aware of the remaining balance we promise to complete the
payment.”
8.
On 18 October 2022, the club allegedly made a deposit in favour of the player of NGN
972,000 in a bank account in Nigeria.
9.
On 16 September 2022, the Claimant lodged a claim against the Respondent in front of
FIFA and requested payment of USD 5,310 as outstanding salaries plus 10% interest p.a.
as from 2 April 2022 until the payment date as well as USD 1,700 as penalty under the
agreement.
10. In his claim, the player presented a Bank Account Registration Form indicating a bank
account in Ghana to receive payments.
11. On 4 October 2022, the Respondent was invited by FIFA to provide its position to the
claim.
12. In its reply, the Respondent referred to the Decision and argued that the parties were
bound by it. It contextually argued that it made the payments indicated in the notice of
25 May 2022 together with a deposit on 18 October 2022 to the player’s bank account.
13. The Respondent also argued that the agreement is contrary to the decision and therefore
not binding. As such, it submitted to have complied with the Decision and requested that
the claim be dismissed.
14. Upon request of FIFA for the player to confirm whether he had received the payment of
NGN 972,000, the player argued as follows:
“(…) please note that the bank account registration form referred to the player’s bank
account in Ghana. Also, the payment was to be made in USD and the previous payments
made before the settlement agreement was signed were also made to the player's bank
account in Ghana. The Ghanaian bank account is the only account that is to be used by the
player. As such, the player does not consider that he has been paid any amounts due under
the settlement agreement.”
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 16 September
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2022 and submitted for decision on 13 January 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.
16. 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 (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 Ghanaian player
and a Nigerian club.
17. 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 (October 2022 edition),
and considering that the present claim was lodged on 16 September 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
18. 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, he 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
19. The 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,
he 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.
i. Main legal discussion and considerations
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent as per the agreement: according to the player,
the club failed to remit USD 5,310 for that he seeks interest and penalty accordingly. The
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Respondent, on its turn, argued that it complied with the Decision and no amounts are
due, as well as that the agreement was not binding.
21. In this context, the Single Judge first started by analysing the issue of whether the
agreement was valid and binding. In doing so, he referred to principles of essentialia
negotii and pacta sunt servanda and, highlighted that the club did not advance any
evidence to the effect that the agreement was not willingly entered into by both parties.
As such, the Single Judge had no other option but to reject the argumentation of the
Respondent and to confirm that the agreement was valid and binding to the parties.
22. For the sake of completeness, the Single Judge equally underscored that the agreement
had accounted for previous payments made by the club and therefore effectively novated
the parties’ mutual rights and obligations. This is in line with the general practice of the
Football Tribunal and in particular FIFA Circular no. 1628, according to which:
“the conclusion of an agreement between the parties will automatically lead to the closure
of disciplinary proceedings, and any claim resulting from the breach of such agreements
will have to be lodged before the Players' Status Committee or Dispute Resolution Chamber,
as applicable, or before the competent bodies at national or international level mutually
agreed by the parties”.
23. While confirming that the structures of the Football Tribunal now replace the adjudicatory
bodies mentioned in the referred letter, the Single Judge found that this is exactly the
situation at hand, where the parties signed the agreement following the Decision. As such,
the argumentation of the club that payments should have been performed in line with
the Decision and not the agreement were entirely dismissed by the Single Judge.
24. Accordingly, the Single Judge came to the conclusion that the Respondent was to make
payment to the player in accordance with the agreement which, however, does not
indicate any bank account. At the same time, the Single Judge observed that the player
does not deny that the deposit of NGN 972,000 argued by the Respondent was made to
his bank account in Nigeria. Instead, the player solely maintained that he was using
another bank account in Ghana.
25. Absent any contractual disposition and considering that the player does not deny that the
deposit of NGN 972,000 was made to his bank account, the Single Judge concluded that
such payment of NGN 972,000 should be considered. The Single Judge was furthermore
comforted with his decision since the financial obligation was de facto complied with by
the club, therefore ordering the latter to “repay” the same concepts as requested by the
player would amount to unjust enrichment of the latter.
26. In continuation, the Single Judge noted that NGN 972,000 is approximately USD 2,227 as
converted with the exchange rate of the date of the deposit – this therefore leaves a
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balance of USD 3,083 to be paid in line with the agreement, which originally foresaw a
payment of USD 5,310. On this basis, it is undisputed that the payment performed by the
club was made late and therefore the interest and penalty shall apply as contractually
agreed under the agreement in line with the principle pacta sunt servanda. The Single
Judge clarified nonetheless that no interest shall apply on the penalty in accordance with
the principle ne bis in idem.
27. As a consequence, the Single Judge decided that the Respondent is liable to pay to the
Claimant the amounts which were outstanding under the agreement, with interest and
the penalty, as follows:
a. Interest of 10% p.a. on the amount of USD 5,310 as from 2 April 2022 until 18
October 2022;
b. USD 3,083 plus 10% p.a. as from 19 October 2022 until the date of effective
payment;
c. USD 1,700 as contractual penalty.
ii. Compliance with monetary decisions
28. 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 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.
29. 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.
30. 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.
31. 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.
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32. 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
33. 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.
34. 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.
35. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Omar Tofic, is partially accepted.
2.
The Respondent, Wikki Tourists FC, has to pay to the Claimant the following amount(s):
-
Interest at the rate of 10% p.a. on the amount of USD 5,310 as from 2 April 2022 until
18 October 2022;
USD 3,083 plus interest at the rate 10% p.a. on said amount as from 19 October 2022
until the date of effective payment;
USD 1,700 as contractual penalty
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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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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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