FIFA - Decisión disputa Durosinmi 01062023

REF. FPSD-8998

Decision of the Dispute Resolution Chamber passed on 1 June 2023 regarding an employment-related dispute concerning the player Gafar Adefolarin Durosinmi BY: Frans de Weger (the Netherlands), Chairperson Johan van Gaalen (South Africa), member Calum Beattie (Scotland), member

CLAIMANT / COUNTER-RESPONDENT:

Gafar Adefolarin Durosinmi, Nigeria Represented by Mr Loizos Hadjidemetriou

RESPONDENT / COUNTER-CLAIMANT:

Uthai Thani FC, Thailand Represented by Islam Hisham & Partners Law Firm pg. 2

REF. FPSD-8998

I. Facts of the case

1. On 4 July 2022, the Nigerian player Gafar Adefolarin Durosinmi (hereinafter the player) and the Thai club Uthai Thani FC (hereinafter the club) concluded an employment agreement

(hereinafter the Employment Agreement) valid until 30 April 2023.

2. In Clause 4 of the Employment Agreement, the player and the club (jointly referred to as the parties) agreed upon the following financial conditions: − THB (Thai Baht) 170,000 “net amount before deducting expenses and taxes” / month − Flight ticket for player THB 50,000 end of season; − Bonuses: THB 80,000 for 15 goals; o THB 30,000 for 10 assist; o THB 5,000 for match win if the player starts at first 11; o 2 months salary in case of promotion to T1. o

3. In Clause 5.1 of the Employment Agreement, the following provision was stipulated: “The Player acknowledges and agrees that the period specified in this agreement may be terminated in any of the following cases: (…)

6. In other case as specified in the rules and regulation of the Club that are always in effect. If

this agreement is expired or terminated by the reason stated in article 5.1, the player shall have no right to claim or receive any compensation from the Club before the period specified in the agreement for other reasons. In addition to those stated in Article 5.1, the Player will be paid one month salary as stated in this agreement.”

4. In Clause 5.2 of the Employment Agreement, the following provision was stipulated: “The Player agrees to the Club to deduct incomes taxes and expenses as required by Thai Laws.” “The Player agreed that the Club withholds 10% of salary in case of the Player absents training

(…)”.

5. There is a mutual termination agreement on file dated 29 December 2022, which reads as follows: “The Club and Mr. Durosinmi Hafar Adefolarin don’t have any financial obligations and liberate from each others from then 1 January 2023”. The termination agreement is merely signed by the club.

6. On 30 – 31 December 2022, the club send a WhatsApp message to the player that a different foreign player will replace him. In the same exchange, the club proposed to terminate the Employment Agreement by paying the player one monthly salary.

Nonetheless, the player did not agree to that, requesting the residual value of the contract the THB 50,000 as “ticket money”. pg. 3

REF. FPSD-8998

7. On 31 December 2022, the player sent a letter to the club informing the latter that the intention to terminate the contract would be without just cause.

8. On 1 January 2023, the club asserted that it could not provide the player “playing time (…) at our Club in the second part of the League” and stating that it had the right to loan him.

9. On the same day, the player was removed from the group chat, by which the club communicated with the rest of the team. What is more, as of 2 January 2023, the player

was allegedly removed from the full training session with the rest of the team, having to train by himself with the physical trainer.

10. On 2 January 2023, the player requested to be reinstated to the training.

11. On the same day, the club alleged that the contract termination was supposedly his idea, and that the possible non-registration would be a decision of the management and coach which would not constitute a breach of contract.

12. In the following days, the player was not reinstated in the full training sessions.

13. On 3 January 2023, the player reiterated its request to be reinstated and pointed out that he has right to be registered. In its reply on 4 January 2023, the club asserted that it merely followed the rules.

14. On 5 January 2023, the player persisted to be participating in the team trainings and complained that he was not invited to the official photo shoot. In this respect, the player seeked the club’s clarifications as to his role in the team. In reply thereto, the club answered that the player should follow the instructions of the coach.

15. On 6 January 2023, the player again requested to be reinstated to the team and inquired about his registration. In its reply on 7 January 2023, the club reiterated that it followed the rules.

16. Until 11 January 2023, the player allegedly trained alone as per the instructions of the club.

17. On 11 January 2023, the player sent a letter to the club by which he requested the following: “a) Ensure that he could train the entire training sessions with the rest of the first team; b) Confirm in clear terms that he will not be deregistered for the second part of the competition and that it counted on his services for the remaining time on the contract; c) Reinstate him in the Line group”.

18. The club failed to reply to the above-mentioned letter and in an official match on 15 January 2023, the player was not participating due to the foreign quota.

pg. 4

REF. FPSD-8998

19. On 16 January 2023, the player requested the club to explain the foreign quota as well as to be reinstated.

20. Allegedly, the player did not attend trainings as of 17 January 2023.

21. On 17 January 2023, the club replied to the player, merely referring to the choices of the coach.

22. On the same day, the registration period in Thailand ended.

23. On 19 January 2023, the player terminated the Employment Agreement with the club.

24. On 28 January 2023, the player requested his documentation in order to be able to sign a new contract in the future.

25. On the same day, the club contested the legitimacy of the player’s termination and informed the player that he will merely receive pro rata salary of 15 days of January 2023 salary since he was absent for the rest of month.

26. Furthermore, on 30 January 2023, the club informed the player that he should return the car and that he will make a payment of USD 50/day as from the termination of the contract.

27. The player did not sign a new contract during the overlapping period.

II. Proceedings before FIFA

28. On 23 January 2023, the player 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 / claim

29. The requests for relief of the player were the following: “the Player is requesting the FIFA DRC to rule that the has a just cause to terminate the employment contract and to order that the Club must pay to the Player the following amounts: − THB 730,000 as compensation for breach of contract + 5% interest as from the date of the termination − THB 1,020,000 as compensation on the basis of the specificity of sport + 5% interest as from the date of the termination − THB 80,000 and THB 30,000 as bonus payments + 5% interest as from the date of

the termination − THB 80,000 for win bonusses for the remaining matches + 5% interest as from the date of the termination pg. 5 REF. FPSD-8998 − THB 340,000 for the promotion to the first league + 5% interest as from the date of the termination − USD 5,000 for legal costs”.

30. The player argued that the club clearly lost interest in him already in December 2022, when it suggested a mutual termination of the contract.

31. In this respect, the player argued since he did not agree to the one-sided termination agreement, the club “adopted an abusive set of bullying tactics to force the Player out of his contract, which is contrary to art. 14 par. 2 of the FIFA RSTP. The following means were used by

the Club: a. Sending an already signed termination agreement in which the parties would no longer have any claims against each other b. Isolating the player from the rest of the team in training c. Excluding the player from the Line communication group d. Not confirming that they would count on his services for the remainder of the season e. Playing three other foreign players and therefore exceeding the foreigner quota.”

32. The player firstly asserted that the isolation from the team already gives him just cause to terminate the contract.

33. The player further pointed to the jurisprudence of the CAS and DRC, that it a fundamental right of the player to be registered. In this regard, the player provided for evidence that the national rules allow for three foreign players and that other players (excluding him) in the club were registered as they participated in an official match.

34. Based on the above, the player was of the opinion that he had just cause to terminate the contract.

35. In his calculations, the player provided the following break-down: − “TBH 730,000 is due as compensation for breach of contract corresponding to 4 salaries

of January, February, March and April 2023 (4 x TBH 170,000) as well as the flight ticket, which value was set in the contract on TBH 50,000.” − “TBH 1,020,000 for additional damages based on the specificity of sport since the Club acted in clear bad faith which has resulted in a situation that the Player is not being able to exercise his profession, therewith damaging the Player’s fitness, market value and career opportunities.” − TBH 80,000 and TBH 30,000 for “bonuses for goals and assists given that those conditions were prevented from happening due to the bad faith of the club.” − “THB 5,000 per win. Given that there would still be 16 matches to play, this would result in the amount of TBH 80,000. In addition, given that the Player would be paid two monthly salaries if the Club would obtain promotion, another amount of THB 340,000 is pg. 6 REF. FPSD-8998 due. Also these amounts are relevant in this procedure given that due to the breaches and bad faith behaviour of the Club, the Player was unable to obtain these goals.” b. Position of the club / counterclaim

36. In its reply, the club submitted a counterclaim against the player with the following request for relief: “1) To reject the Player's claim in full. 2) To accept the Club’s counterclaim against the Player and decide as follows:

A) Essentially:

1. To consider that the Player liable for the breach without just cause of the Employment

Contract.

2. To condemn the Player to pay an amount of Bath 170,000-/ as agreed compensation according to article 5.1.6 of the Contract.

3. To condemn the Player to pay an amount of Bath 200,000-/ as compensation for the loss of the loan transfer fee.

4. To condemn the Player to pay an amount of Bath 52,500-/ as a car’s rent, for using it for

30 days without having any legal right after termination of the Contract.

5. To condemn the Player to pay interests at a rate of five percent (5%) per annum over entire amounts requested from the due date of each payment until the date of the effective payment.

B) First alternatively: To accept the Player’s claim partially and to establish that he has entitled to receive a mere amount of Bath 167,750-/ as an agreed compensation according to article 5.1.6 of the Contract. C) Third alternatively: To accept the Player’s claim partially and to establish that he has entitled to receive a mere amount of Bath 312,258-/ after mitigation of the compensation according to the factors mentioned above. 3) To fix a sum of USD (5,000-/) “five thousand dollars”, to be paid by the Player to the Club, to help him in the payment of its legal fees and costs. 4) As a consequence of the above, to condemn the Player to pay all expenses and costs of the present proceedings, if any.”

37. The club argued that: “a) The Club was dealing with the Player in a high level of good faith, and never requested him to terminate the Contract. b) According to article 5 of the Contract, the Club provided the Player with a loan offer with features better than he was getting in the Club, but he refused it without any justifying reason. c) Based on the Player’s wishes, the Club prepared a termination document to terminate the Contract mutually in accordance with article 5.6.1 of the Contract by paying the Player one month's salary as compensation as they have agreed in the Contract, but later on, he refused to comply with it. pg. 7

REF. FPSD-8998 d) After the Player refused to be loaned to another club, and refused to make a mutual termination according to the Contract provision, The Club’s management put a lot of pressure on the head coach to keep the Player with the team, and indeed it is happened, although the Player’s misbehaviour towards the Coach in several occasions.

e) The Player never trained alone, and he failed to provide any single evidence proving that, but he was trained with a group of players at the same time with the rest of the team under the leader of the physical trainer to doing training program which has been made for the Player f) The Player received all his financial rights until the date of termination. g) The Player used the Club’s car for 30 days after terminating the Contract without having any legal rights. h) The Player failed to submit such single evidence proving that he was following the head coach’s instruction and training program. i) The Player caused serious damage to the Club by losing the loan fee. j) The Player was planning in bad faith to terminate the contract.”

38. What is more, the club was of the opinion that under the circumstances, the de-registration alone does not give the player just cause to terminate the contract.

39. The club alleged that it was the player who “created all those problems” when “he refused to respect the contractual obligation by refusing to accept the loan offer that brought from the Club to him, and when he even refused to terminate the Contract mutually according to article 5.6.1 of the Contract.”

40. The club argued that also the player’s calculations provided in the claim are not correct and pointed to the compensation clause 5.1 of the Employment Agreement, Clause 5.2 of the Employment Agreement (tax and deduction for absence) as well as to the fact that a payment of THB 89,467 was made to the player as a salary of January 2023. The club also rejected the argumentation of the player that he should be entitled to an additional compensation of six months as well as to the conditional payments.

41. In its counterclaim, the club provided for the following break-down: − one month's salary of THB 170,000 as compensation; − TBH 200,000 as a lost damage head (loan fee); − TBH 52,500 “as a result of using the car without having any legal basis”;

− USD 5,000 as legal costs. pg. 8

REF. FPSD-8998

c. Position of the player / reply to the counterclaim

42. In his reply to the counterclaim, the player referred to the facts of the case and argued that “the dispute started when the Club wrote on Line to the Player on 28 December 2022 that they had replaced him.”

43. In this respect, the player strongly contested any of the alleged misbehaviour: “i. There was no reason for the player to treat the coach badly (obviously, it was in his interest to treat him well given that he wanted to play for the club) ii. The apparent bad treatment has not been mentioned in any of the letters of the Club, therefore it is clear that the Club retroactively makes up this argument to put the player in a bad light. iii. The statement of the coach cannot be considered objective evidence, given that he is still under the employment of the club and therefore has a reason to repeat the club's argumentation. iv. The club mentioned that the coach informed the club many times that he does not want the player to continue with the team and that he misbehaved but the club fails to submit any proof of this.

1. Even if the player misbehaved (which he did not) the club should have followed the procedure in the contract on misbehaviour. vi. The Club never put the Player on notice for any misbehaviour. In the first email they sent back to the player's former lawyer, the club merely indicated it could not guarantee playing time, they have the right to loan him, that he breached the contract by not wanting the loan, but that they could still organise training for him.“

44. The player further contested that he “can be forced to join a club against his liking.” In any event, he pointed to the text exchange between the parties and highlighted that the club is “taking the conversation out of context.”

45. Regarding the separate training, the player pointed out that this was never “for a specified

period of time; the player was simply excluded from the team for the rest of the season and he was not registered.”

46. In this respect, the player summarized that “the club does not dispute that:

a. The player was excluded from the main squad; b. The player was replaced by another foreign player. c. The player was deregistered”

47. As to the calculations provided by the club, the player asserted: − “art. 5.1.6 of the contract relating to “no compensation or that of 1 month” is neither reciprocal nor proportionate”; pg. 9

REF. FPSD-8998 − “As to the taxes, Art. 4 of the contract clearly stipulates that the amounts are paid to the player as NET amounts”; − What is more, “the club has not provided any evidence that this is the tax rate, the player refutes it and the club has also not shown that it would still need to pay tax. Also, the amount to be awarded will be awarded as compensation, which is a different component as income”; − “the player confirms having received the amount of THB 89,467 after he already filed a claim”, i.e. “this amount can be deducted from the amount of THB 730,000, leaving a balance of THB 640,533 for January plus 5% interest as from the date of termination“; − “As to the deduction of the 10%, the player refutes he was unjustifiably absent for 3 days and in any case, the club never started a disciplinary procedure against him”, i.e. “the club cannot now retroactively deduct 10% of his salary“.

48. Finally, the player reiterated its request of relief, acknowledging the amount paid by the club in January 2023: − “THB 640,533 as compensation for breach of contract + 5% interest as from the date of the termination − THB 1,020,000 as compensation on the basis of the specificity of sport + 5% interest as

from the date of the termination − THB 80,000 and THB 30,000 as bonus payments + 5% interest as from the date of the termination − THB 80,000 for win bonusses for the remaining matches + 5% interest as from the date of the termination − THB 340,000 for the promotion to the first league + 5% interest as from the date of the termination − USD 5,000 for legal costs − impose sporting sanctions on the club for the blatant breach of contract”.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

49. 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 23 January 2023 and submitted for decision on 1 June 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.

50. 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 pg. 10

REF. FPSD-8998

Regulations on the Status and Transfer of Players (March 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 player from Nigeria and a club from Thailand.

51. 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 (March 2023 edition), and considering that the present claim was lodged on 23 January 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

52. 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

53. 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.

1. Main legal discussion and considerations

54. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that this is a claim of a player against a club concerning a termination of a contract on the basis of deregistration. The club lodged a parallel counterclaim.

55. In this context, the Chamber acknowledged that it its task was to establish if the player had just cause to terminate the contract on 19 January 2023.

56. At this point, the Chamber closely looked at the situation between the parties prior to the termination of the employment relationship by the player and recalled that termination is an ultima ratio measure and only when there are objective criteria which do not reasonably

pg. 11 REF. FPSD-8998 permit to expect the 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.

57. The DRC then observed that it remained undisputed between the parties that the player was not registered within the respective registration period, i.e. that it can be seen from the evidence on file that the club had no interest to allow the player to compete in official matches.

58. The Chamber then remarked that this consists of a violation of the player’s personality rights: a club – as an employer – has the duty to protect the personality rights of the player – as an employee. What is more, the Chamber added that the career development of a footballer may be prejudiced as a result of inactivity and thus, the club has a duty to allow its players to engage in the activity for which they have been in principle employed and are qualified for.

59. In this regard, the DRC has pointed to its jurisprudence by which it was confirmed on multiple occasions that “among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow teammates in the team’s official matches”.

60. In addition, the Chamber observed that it is evident from the evidence on file that the player has been unjustifiably excluded from the training as documented by the persistent correspondence by the player to the club. At this point, the DRC noted that such exclusion was never limited in time. Regarding the allegations of the club concerning the misbehaviour of the player and his inclusion in the trainings, the DRC took note that no evidence was provided to support the club’s position.

61. Considering the foregoing, the DRC concluded that the player had just cause to terminate

the contract, especially given that he requested his registration by various letters. The Chamber then highlighted that whereas the clubs sent various messages to the player, none of them was the registration of the latter, but rather a termination of the contract. In this respect, the Chamber decided that the argumentation of the club cannot be upheld due to the severity of the breach and rejected the counterclaim of the club. ii. Consequences

62. 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 club.

63. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to THB 80,533 pg. 12

REF. FPSD-8998

(THB 170,000 minus THB 89,467), corresponding to the residual value of January 2023. In this respect, the Chamber wished to remark that no salary deduction of 10% shall apply as no due disciplinary process has been initiated.

64. As a consequence, 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 amounts which were outstanding under the contract at the moment of the termination, i.e. THB 80,533.

65. In addition, 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 at the rate of 5% p.a. on the outstanding amounts as from 19 January 2023 until the date of effective payment.

66. 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.

67. 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.

68. 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.

69. 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 THB 560,000 (i.e. THB 170,000 times 3 plus THB 50,000) serves as the basis for the determination of the amount of compensation for breach of contract. pg. 13

REF. FPSD-8998

70. 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.

71. In this respect, the Chamber noted that the player remained unemployed since the unilateral termination of the contract.

72. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

73. In this respect, the Chamber decided to award the player compensation for breach of contract in the amount of THB 560,000 as the residual value of the contract.

74. 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 January 2023 until the date of effective payment. iii. Compliance with monetary decisions

75. 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.

76. In this regard, t